EXHIBIT 4
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.,
Depositor
MIDLAND LOAN SERVICES, INC.,
Master Servicer
X.X. XXXXXX COMPANY, INC.,
Special Servicer
XXXXX FARGO BANK, N.A.,
Trustee
and
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,
Paying Agent
POOLING AND SERVICING AGREEMENT
Dated as of
December 1, 2004
X.X.Xxxxxx Xxxxx Commercial Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates
Series 2004-C3
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms................................................
Section 1.02 Certain Calculations.........................................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans.................................
Section 2.02 Acceptance by Trustee........................................
Section 2.03 Representations, Warranties and Covenants of the
Depositor; Mortgage Loan Sellers' Repurchase or
Substitution of Mortgage Loans for Defects in Mortgage
Files and Breaches of Representations and Warranties........
Section 2.04 Execution of Certificates; Issuance of Uncertificated
Lower-Tier Interests........................................
Section 2.05 Grantor Trust Designations...................................
ARTICLE III
ADMINISTRATION AND
SERVICING OF THE TRUST FUND
Section 3.01 Master Servicer to Act as Master Servicer; Special
Servicer to Act as Special Servicer; Administration of
the Mortgage Loans..........................................
Section 3.02 Collection of Mortgage Loan Payments.........................
Section 3.03 Collection of Taxes, Assessments and Similar Items;
Servicing Accounts..........................................
Section 3.04 The Certificate Account, the Lower-Tier and Upper-Tier
Distribution Accounts, the Companion Distribution
Account, the Interest Reserve Account, the Gain-on-Sale
Reserve Account and the Excess Interest Distribution
Account.....................................................
Section 3.05 Permitted Withdrawals from the Certificate Account and
the Distribution Accounts and the Companion Distribution
Account.....................................................
Section 3.06 Investment of Funds in the Certificate Account and the
REO Account.................................................
Section 3.07 Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage.......................................
Section 3.08 Enforcement of Due-on-Sale Clauses; Assumption Agreements....
Section 3.09 Realization Upon Defaulted Mortgage Loans....................
Section 3.10 Trustee to Cooperate; Release of Mortgage Files..............
Section 3.11 Servicing Compensation.......................................
Section 3.12 Inspections; Collection of Financial Statements..............
Section 3.13 Annual Statement as to Compliance............................
Section 3.14 Reports by Independent Public Accountants....................
Section 3.15 Access to Certain Information................................
Section 3.16 Title to REO Property; REO Account...........................
Section 3.17 Management of REO Property...................................
Section 3.18 Sale of Defaulted Mortgage Loans and REO Properties..........
Section 3.19 Additional Obligations of Master Servicer and Special
Servicer....................................................
Section 3.20 Modifications, Waivers, Amendments and Consents..............
Section 3.21 Transfer of Servicing Between Master Servicer and Special
Servicer; Recordkeeping; Asset Status Report................
Section 3.22 Sub-Servicing Agreements.....................................
Section 3.23 [RESERVED]...................................................
Section 3.24 Representations, Warranties and Covenants of the Master
Servicer....................................................
Section 3.25 Representations, Warranties and Covenants of the Special
Servicer....................................................
Section 3.26 Interest Reserve Account.....................................
Section 3.27 Excess Interest Distribution Account.........................
Section 3.28 Directing Certificateholder Contact with Master Servicer.....
Section 3.29 Controlling Class Certificateholders and Directing
Certificateholder; Certain Rights and Powers of
Directing Certificateholder.................................
Section 3.30 Intercreditor Agreements.....................................
Section 3.31 Companion Paying Agent.......................................
Section 3.32 Companion Register...........................................
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
Section 4.01 Distributions................................................
Section 4.02 Statements to Certificateholders; CMSA Investor Reporting
Package (IRP)s..............................................
Section 4.03 P&I Advances.................................................
Section 4.04 Allocation of Collateral Support Deficit.....................
Section 4.05 Appraisal Reductions.........................................
Section 4.06 Certificate Deferred Interest................................
Section 4.07 Grantor Trust Reporting......................................
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates.............................................
Section 5.02 Registration of Transfer and Exchange of Certificates........
Section 5.03 Book-Entry Certificates......................................
Section 5.04 Mutilated, Destroyed, Lost or Stolen Certificates............
Section 5.05 Persons Deemed Owners........................................
Section 5.06 Certificate Ownership Certification..........................
Section 5.07 Appointment of Paying Agent..................................
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER,
THE SPECIAL SERVICER AND
THE DIRECTING CERTIFICATEHOLDER
Section 6.01 Liability of the Depositor, the Master Servicer and the
Special Servicer............................................
Section 6.02 Merger, Consolidation or Conversion of the Depositor, the
Master Servicer or the Special Servicer.....................
Section 6.03 Limitation on Liability of the Depositor, the Master
Servicer, the Special Servicer and Others...................
Section 6.04 Depositor, Master Servicer and Special Servicer Not to
Resign......................................................
Section 6.05 Rights of the Depositor in Respect of the Master Servicer
and the Special Servicer....................................
Section 6.06 The Master Servicer and the Special Servicer as
Certificate Owner...........................................
Section 6.07 The Directing Certificateholder and the 000 Xxxx Xxxxxx
Xxxxx X Note Representative.................................
ARTICLE VII
DEFAULT
Section 7.01 Events of Default; Master Servicer and Special Servicer
Termination.................................................
Section 7.02 Trustee to Act; Appointment of Successor.....................
Section 7.03 Notification to Certificateholders...........................
Section 7.04 Waiver of Events of Default..................................
Section 7.05 Trustee as Maker of Advances.................................
ARTICLE VIII
CONCERNING THE TRUSTEE AND THE PAYING AGENT
Section 8.01 Duties of the Trustee and the Paying Agent...................
Section 8.02 Certain Matters Affecting the Trustee and the Paying Agent...
Section 8.03 Trustee and Paying Agent Not Liable for Validity or
Sufficiency of Certificates or Mortgage Loans...............
Section 8.04 Trustee or Paying Agent May Own Certificates.................
Section 8.05 Fees and Expenses of Trustee and Paying Agent;
Indemnification of Trustee and Paying Agent.................
Section 8.06 Eligibility Requirements for Trustee and the Paying Agent....
Section 8.07 Resignation and Removal of the Trustee and Paying Agent......
Section 8.08 Successor Trustee or Paying Agent............................
Section 8.09 Merger or Consolidation of Trustee or Paying Agent...........
Section 8.10 Appointment of Co-Trustee or Separate Trustee................
Section 8.11 Appointment of Custodians....................................
Section 8.12 Access to Certain Information................................
Section 8.13 Representations and Warranties of the Trustee................
Section 8.14 Representations and Warranties of the Paying Agent...........
ARTICLE IX
TERMINATION
Section 9.01 Termination upon Repurchase or Liquidation of All
Mortgage Loans..............................................
Section 9.02 Additional Termination Requirements..........................
ARTICLE X
ADDITIONAL REMIC PROVISIONS
Section 10.01 REMIC Administration.........................................
Section 10.02 Use of Agents................................................
Section 10.03 Depositor, Master Servicer and Special Servicer to
Cooperate with Paying Agent.................................
Section 10.04 Appointment of REMIC Administrators..........................
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment....................................................
Section 11.02 Recordation of Agreement; Counterparts.......................
Section 11.03 Limitation on Rights of Certificateholders...................
Section 11.04 Governing Law................................................
Section 11.05 Notices......................................................
Section 11.06 Severability of Provisions...................................
Section 11.07 Grant of a Security Interest.................................
Section 11.08 Successors and Assigns; Beneficiaries........................
Section 11.09 Article and Section Headings.................................
Section 11.10 Notices to the Rating Agencies...............................
EXHIBITS
Exhibit A-1 Form of Class A-1 Certificate
Exhibit A-2 Form of Class A-2 Certificate
Exhibit A-3 Form of Class A-3 Certificate
Exhibit A-4 Form of Class A-4 Certificate
Exhibit A-5 Form of Class A-5 Certificate
Exhibit A-6 Form of Class A-1A Certificate
Exhibit A-7 Form of Class X-1 Certificate
Exhibit A-8 Form of Class X-2 Certificate
Exhibit A-9 Form of Class A-J Certificate
Exhibit A-10 Form of Class B Certificate
Exhibit A-11 Form of Class C Certificate
Exhibit A-12 Form of Class D Certificate
Exhibit A-13 Form of Class E Certificate
Exhibit A-14 Form of Class F Certificate
Exhibit A-15 Form of Class G Certificate
Exhibit A-16 Form of Class H Certificate
Exhibit A-17 Form of Class J Certificate
Exhibit A-18 Form of Class K Certificate
Exhibit A-19 Form of Class L Certificate
Exhibit A-20 Form of Class M Certificate
Exhibit A-21 Form of Class N Certificate
Exhibit A-22 Form of Class P Certificate
Exhibit A-23 Form of Class Q Certificate
Exhibit A-24 Form of Class NR Certificate
Exhibit A-25 Form of Class S Certificate
Exhibit A-26 Form of Class R Certificate
Exhibit A-27 Form of Class LR Certificate
Exhibit B Mortgage Loan Schedule
Exhibit C Form of Investment Representation Letter
Exhibit D-1 Form of Transfer Affidavit
Exhibit D-2 Form of Transferor Letter
Exhibit E Form of Request for Release
Exhibit F Form of ERISA Representation Letter
Exhibit G Form of Statement to Certificateholders
Exhibit H Form of Omnibus Assignment
Exhibit I-1 Form of Regulation S Transfer Certificate during Restricted
Period
Exhibit I-2 Form of Regulation S Transfer Certificate after Restricted
Period
Exhibit J Form of Purchase Option Notice
Exhibit K Form of Transfer Certificate for Rule 144A Book-Entry
Certificate to Regulation S Book-Entry Certificate during
Restricted Period
Exhibit L Reserved
Exhibit M Controlling Class Certificateholder's Reports Checklist
Exhibit N Form of Transfer Certificate for Rule 144A Book-Entry
Certificate to Regulation S Book-Entry Certificate after
Restricted Period
Exhibit O Form of Transfer Certificate of Regulation S Book-Entry
Certificate to Rule 144A Global Book-Entry during Restricted
Period
Exhibit P Form of Transfer Certificate for Regulation S Book-Entry
Certificate during Restricted Period
Exhibit Q Form Certification to be Provided with Form 10-K
Exhibit R-1 Form of Certification to be Provided to Depositor by Paying
Agent
Exhibit R-2 Form of Certification to be Provided to Depositor by Master
Servicer
Exhibit R-3 Form of Certification to be Provided to Depositor by
Special Servicer
Exhibit S Initial Companion Holders
Exhibit T Form of Notice and Certification regarding Defeasance of
Mortgage Loan
Exhibit U Information Request From Certificateholder, Beneficial
Owner or Prospective Purchaser
Exhibit V Trustee Certification/Exception Report
Exhibit W Monthly Additional Report on Recoveries and Reimbursements
Exhibit X Realized Loss Report Form
SCHEDULES
Schedule 1 Mortgage Loans Containing Additional Debt
Schedule 2 Mortgage Loans that Initially Pay Interest Only
This Pooling and Servicing Agreement (the "Agreement") is dated and
effective as of December 1, 2004, among X.X. Xxxxxx Xxxxx Commercial Mortgage
Securities Corp., as Depositor, Midland Loan Services, Inc., as Master Servicer,
X.X. Xxxxxx Company, Inc., as Special Servicer, Xxxxx Fargo Bank, N.A., as
Trustee, and JPMorgan Chase Bank, National Association, as Paying Agent.
PRELIMINARY STATEMENT:
The Depositor intends to sell commercial mortgage pass-through
certificates (collectively, the "Certificates"), to be issued hereunder in
multiple classes (each, a "Class"), which in the aggregate will evidence the
entire beneficial ownership interest in the trust fund (the "Trust Fund") to be
created hereunder, the primary assets of which will be a pool of commercial,
multifamily and manufactured housing community mortgage loans (the "Mortgage
Loans"). As provided herein, the Paying Agent shall elect or shall cause an
election to be made to treat the Trust Fund (exclusive of the Excess Interest
and the Excess Interest Distribution Account) for federal income tax purposes as
two separate real estate mortgage investment conduits (the "Upper-Tier REMIC"
and the "Lower-Tier REMIC" as described herein).
The parties intend that the portions of the Trust Fund representing
the Excess Interest, the Excess Interest Distribution Account and the proceeds
thereof will be treated as a grantor trust under subpart E of Part 1 of
subchapter J of the Code and that the beneficial interest therein will be
represented by the Class S Certificates.
LOWER-TIER REMIC
The Class LA-1-1, Class LA-1-2, Class LA-1-3, Class LA-1-4, Class
LA-1A-1, Class LA-1A-2, Class LA-1A-3, Class LA-1A-4, Class LA-1A-5, Class
LA-1A-6, Class LA-1A-7, Class LA-1A-8, Class LA-1A-9, Class LA-1A-10, Class
LA-1A-11, Class LA-1A-12, Class LA-1A-13, Class LA-1A-14, Class LA-1A-15, Class
LA-2-1, Class LA-2-2, Class LA-3-1, Class LA-3-2, Class LA-3-3, Class LA-3-4,
Class LA-3-5, Class LA-3-6, Class LA-4-1, Class LA-4-2, Class LA-4-3, Class
LA-4-4, Class LA-5-1, Class LA-5-2, Class LA-5-3, Class LA-J, Class LB, Class
LC, Class LD, Class LE, Class LF-1, Class LF-2, Class LG-1, Class LG-2, Class
LG-3, Class LG-4, Class LH-1, Class LH-2, Class LJ-1, Class LJ-2, Class LJ-3,
Class LK, Class LL-1, Class LL-2, Class LM, Class LN, Class LP, Class LQ and
Class LNR Uncertificated Interests will evidence "regular interests" in the
Lower-Tier REMIC created hereunder. The sole Class of "residual interests" in
the Lower-Tier REMIC will be evidenced by the Class LR Certificates.
The following table sets forth the Original Lower-Tier Principal
Amounts and per annum rates of interest for the Uncertificated Lower-Tier
Interests and the Class LR Certificates:
Original
Lower-Tier
Class Principal
Designation Interest Rate Amount
----------------- ---------------------------- -------------
Class LA-1-1 (1) $2,819,000
Class LA-1-2 (1) $3,387,000
Class LA-1-3 (1) $27,891,000
Class LA-1-4 (1) $22,131,000
Class LA-1A-1 (1) $680,000
Class LA-1A-2 (1) $789,000
Class LA-1A-3 (1) $4,081,000
Class LA-1A-4 (1) $4,531,000
Class LA-1A-5 (1) $4,523,000
Class LA-1A-6 (1) $15,695,000
Class LA-1A-7 (1) $4,236,000
Class LA-1A-8 (1) $4,080,000
Class LA-1A-9 (1) $11,329,000
Class LA-1A-10 (1) $3,568,000
Class LA-1A-11 (1) $18,718,000
Class LA-1A-12 (1) $3,169,000
Class LA-1A-13 (1) $2,863,000
Class LA-1A-14 (1) $2,674,000
Class LA-1A-15 (1) $98,699,000
Class LA-2-1 (1) $9,672,000
Class LA-2-2 (1) $144,998,000
Class LA-3-1 (1) $19,552,000
Class LA-3-2 (1) $51,852,000
Class LA-3-3 (1) $52,631,000
Class LA-3-4 (1) $27,435,000
Class LA-3-5 (1) $26,121,000
Class LA-3-6 (1) $58,236,000
Class LA-4-1 (1) $83,658,000
Class LA-4-2 (1) $28,411,000
Class LA-4-3 (1) $20,976,000
Class LA-4-4 (1) $33,090,000
Class LA-5-1 (1) $8,479,000
Class LA-5-2 (1) $99,139,000
Class LA-5-3 (1) $316,815,000
Class LA-J (1) $87,251,000
Class LB (1) $43,626,000
Class LC (1) $13,277,000
Class LD (1) $13,277,000
Class LE (1) $15,174,000
Class LF-1 (1) $3,505,000
Class LF-2 (1) $11,669,000
Class LG-1 (1) $1,111,000
Class LG-2 (1) $7,592,000
Class LG-3 (1) $7,058,000
Class LG-4 (1) $3,207,000
Class LH-1 (1) $8,236,000
Class LH-2 (1) $6,938,000
Class LJ-1 (1) $198,000
Class LJ-2 (1) $10,331,000
Class LJ-3 (1) $10,336,000
Class LK (1) $7,587,000
Class LL-1 (1) $2,350,000
Class LL-2 (1) $3,340,000
Class LM (1) $9,484,000
Class LN (1) $3,793,000
Class LP (1) $5,691,000
Class LQ (1) $5,690,000
Class LNR (1) $22,761,464
Class LR None(2) None(2)
(1) The interest rate for such Class of Uncertificated Lower-Tier Interests
shall be the Weighted Average Net Mortgage Rate.
(2) The Class LR Certificates do not have a Certificate Balance or Notional
Amount, do not bear interest and will not be entitled to distributions of Yield
Maintenance Charges. Any Available Distribution Amount remaining in the
Lower-Tier Distribution Account after distributing the Lower-Tier Regular
Distribution Amount shall be distributed to the Holders of the Class LR
Certificates (but only to the extent of the Available Distribution Amount for
such Distribution Date, if any, remaining in the Lower-Tier Distribution
Account).
UPPER-TIER REMIC
The Class A-1, Class A-2, Class A-3, Class A-4, Class A-5, Class
A-1A, Class A-J, Class B, Class C, Class D, Class E, Class F, Class G, Class H,
Class J, Class K, Class L, Class M, Class N, Class P, Class Q, Class NR, Class
X-1 and Class X-2 Certificates will evidence "regular interests" in the
Upper-Tier REMIC created hereunder. The sole Class of "residual interests" in
the Upper-Tier REMIC created hereunder will be evidenced by the Class R
Certificates.
The following table sets forth the designation, the pass-through
rate (the "Pass-Through Rate"), the aggregate initial principal amount (the
"Original Certificate Balance") or Notional Amount ("Original Notional Amount"),
as applicable, and the initial ratings given each Class by the Rating Agencies
for each Class of Certificates comprising the interests in the Upper-Tier REMIC
created hereunder:
Initial Original Certificate
Pass-Through Balance or Notional Ratings(1)
Rate Amount (Xxxxx'x/Fitch)
------------- ------------ -------------------- ---------------
Class A-1(2) 3.7650% $56,228,000 Aaa/AAA
Class A-2(2) 4.2230% $154,670,000 Aaa/AAA
Class A-3(2) 4.5450% $235,827,000 Aaa/AAA
Class A-4(2) 4.6570% $166,135,000 Aaa/AAA
Class A-5(2) 4.8780% $421,433,000 Aaa/AAA
Class A-1A(2) 4.8180% $179,635,000 Aaa/AAA
Class A-J 4.9220%(3) $87,251,000 Aaa/AAA
Class B 4.9610%(3) $43,626,000 Aa2/AA
Class C 4.9810%(3) $13,277,000 Aa3/AA-
Class D 5.0110%(3) $13,277,000 A1/A+
Class E 5.0440%(3) $15,174,000 A2/A
Class F 5.0399%(4) $15,174,000 A3/A-
Class G 5.2779%(4) $18,968,000 Baa1/BBB+
Class H 5.2929%(5) $15,174,000 Baa2/BBB
Class J 5.2929%(5) $20,865,000 Baa3/BBB-
Class K 4.6800%(3) $7,587,000 Ba1/BB+
Class L 4.6800%(3) $5,690,000 Ba2/BB
Class M 4.6800%(3) $9,484,000 Ba3/BB-
Class N 4.6800%(3) $3,793,000 B1/B+
Class P 4.6800%(3) $5,691,000 B2/B
Class Q 4.6800%(3) $5,690,000 B3/B-
Class NR 4.6800%(3) $22,761,464 */*
Class R None(6) N/A */*
Class X-1 0.0467%(7) $1,517,410,464(8) Aaa/AAA
Class X-2 0.5574%(7) $1,475,976,000(8) Aaa/AAA
(1) The Certificates marked with an asterisk have not been rated by the
applicable Rating Agency.
(2) For purposes of making distributions to the Class A-1, Class A-2, Class A-3,
Class A-4, Class A-5 and Class A-1A Certificates, the pool of Mortgage Loans
will be deemed to consist of two distinct Loan Groups, Loan Group 1 and Loan
Group 2.
(3) Subject to a maximum Pass-Through Rate equal to the Weighted Average Net
Mortgage Rate.
(4) The Pass-Through Rate for any Distribution Date for the Class F and Class G
Certificates will be the Weighted Average Net Mortgage Rate for the Distribution
Date minus 0.2530% and 0.0150% per annum, respectively.
(5) The Pass-Through Rate for any Distribution Date for the Class H and Class J
Certificates will be the Weighted Average Net Mortgage Rate.
(6) The Class R Certificates do not have a Certificate Balance or Notional
Amount, do not bear interest and will not be entitled to distributions of Yield
Maintenance Charges. Any Available Distribution Amount remaining in the
Upper-Tier Distribution Account, after all required distributions under this
Agreement have been made to each other Class of Certificates, will be
distributed to the Holders of the Class R Certificates.
(7) The Pass-Through Rates for each of the Class X-1 and Class X-2 Certificates
will be calculated in accordance with the related definitions of "Class X-1
Pass-Through Rate" and "Class X-2 Pass-Through Rate," as applicable.
(8) The Class X-1 and Class X-2 Certificates will not have a Certificate
Balance; rather, each such Class of Certificates will accrue interest as
provided herein on the related Class X-1 Notional Amount and Class X-2 Notional
Amount, as applicable.
As of the close of business on the Cut-off Date, the Mortgage Loans
had an aggregate principal balance, after application of all payments of
principal due on or before such date, whether or not received, equal to
$1,517,410,464.
Two mortgage loans, the 000 Xxxx Xxxxxx Xxxxx Companion Loan and the
Moorings at Mesa Cove Apartments Companion Loan (collectively, the "Companion
Loans") are not part of the Trust Fund, but are secured by the same Mortgage
that secures the related Mortgage Loan (each an "AB Mortgage Loan" and,
collectively, the "AB Mortgage Loans") that is part of the Trust Fund. As and to
the extent provided herein, the Companion Loans will be serviced and
administered in accordance with this Agreement. Amounts attributable to the
Companion Loans will not be assets of the Trust Fund, and (except to the extent
that such amounts are payable or reimbursable to any party to this Agreement)
will be owned by the related Companion Holders.
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer, the Special Servicer, the Paying Agent and the
Trustee agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms. Whenever used in this Agreement,
including in the Preliminary Statement, the following capitalized terms, unless
the context otherwise requires, shall have the meanings specified in this
Article.
"30/360 Mortgage Loans": The Mortgage Loans indicated as such in the
Mortgage Loan Schedule.
"000 Xxxx Xxxxxx Xxxxx XX Mortgage Loan": That certain Mortgage Loan
identified on the Mortgage Loan Schedule as loan number 15.
"345 Park Avenue South B Note Representative": The holder of the 000
Xxxx Xxxxxx Xxxxx Companion Loan.
"345 Park Avenue South Companion Loan": That certain loan evidenced
by a promissory B note, which is not an asset of the Trust Fund, secured by the
Mortgaged Property securing the 000 Xxxx Xxxxxx Xxxxx XX Mortgage Loan.
"345 Park Avenue South Control Appraisal Event": Means "Control
Appraisal Event" as defined in the 000 Xxxx Xxxxxx Xxxxx Intercreditor
Agreement.
"345 Park Avenue South Intercreditor Agreement": That certain
Intercreditor Agreement and Servicing Agreement, dated as of December 8, 2004,
by and between JPMorgan Chase Bank, National Association, as the Note A Holder,
and JPMorgan Chase Bank, National Association, as the Note B Holder. The 000
Xxxx Xxxxxx Xxxxx Intercreditor Agreement relates to the 000 Xxxx Xxxxxx Xxxxx
XX Mortgage Loan.
"345 Park Avenue South Whole Loan": The 000 Xxxx Xxxxxx Xxxxx XX
Mortgage Loan, together with the 000 Xxxx Xxxxxx Xxxxx Companion Loan, each of
which is secured by the same Mortgage on the 000 Xxxx Xxxxxx Xxxxx Mortgaged
Property.
"AB Mortgage Loan": As defined in the recitals to this Agreement.
"Acceptable Insurance Default": With respect to any Mortgage Loan or
Loan Pair, other than a Mortgage Loan or a Loan Pair that expressly requires the
Mortgagor to maintain insurance coverage for acts of terrorism, a default under
the related Mortgage Loan documents arising by reason of any failure on the part
of the related Mortgagor to maintain with respect to the related Mortgaged
Property specific insurance coverage with respect to, or an all-risk casualty
insurance policy that does not specifically exclude, terrorist or similar acts,
and/or any failure on the part of the related Mortgagor to maintain with respect
to the related Mortgaged Property insurance coverage with respect to terrorist
or similar acts upon terms not materially less favorable than those in place as
of December 29, 2004, as to which default the Master Servicer and the Special
Servicer may forbear taking any enforcement action, provided that the Master
Servicer (with respect to Non-Specially Serviced Mortgage Loans) or Special
Servicer (with respect to Specially Serviced Mortgage Loans), as applicable, has
determined, in its reasonable judgment, based on inquiry consistent with the
Servicing Standards and after consultation with the Directing Certificateholder,
that either (a) such insurance is not available at commercially reasonable rates
and that such hazards are not at the time commonly insured against for
properties similar to the related Mortgaged Property and located in or around
the region in which such related Mortgaged Property is located, or (b) such
insurance is not available at any rate; provided, however, the Directing
Certificateholder will not have more than 30 days to respond to the Master
Servicer's or Special Servicer's request for consultation; provided, further,
that upon the Master Servicer's or Special Servicer's determination, consistent
with the Servicing Standards, that exigent circumstances do not allow the Master
Servicer or Special Servicer to consult with the Directing Certificateholder,
the Master Servicer or Special Servicer will not be required to do so. Each of
the Master Servicer and the Special Servicer shall be entitled to rely on
insurance consultants in making determinations described above. The costs of
such insurance consultants shall be paid from the Certificate Account as a
Servicing Advance to the extent the Mortgage Loan documents do not prohibit such
amounts from being collected from the related Mortgagor and otherwise as an
expense of the Trust Fund.
"Accrued Certificate Interest": With respect to each Distribution
Date and each Class of Regular Certificates, an amount equal to interest for the
related Interest Accrual Period at the Pass-Through Rate applicable to such
Class of Certificates for such Distribution Date, accrued on the related
Certificate Balance (or with respect to the Class X-1 and Class X-2
Certificates, the Notional Amount of such Class) outstanding immediately prior
to such Distribution Date (provided that for interest accrual purposes any
distributions in reduction of Certificate Balance or Notional Amount or
reductions in Certificate Balance or Notional Amount as a result of allocations
of Collateral Support Deficit, as applicable, on the Distribution Date occurring
in an Interest Accrual Period shall be deemed to have been made on the first day
of such Interest Accrual Period). Accrued Certificate Interest shall be
calculated on the basis of a 360-day year consisting of twelve 30-day months.
"Accrued Interest From Recoveries": With respect to any Distribution
Date and any Class of Certificates (other than the Class X, Class S and the
Residual Certificates) that had an increase to its Certificate Balance as a
result of a recovery of Nonrecoverable Advances, an amount equal to interest at
the Pass-Through Rate applicable to that Class on the amount of such increase to
its Certificate Balance accrued from the Distribution Date on which Collateral
Support Deficit was allocated to such Class as a result of the reimbursement of
Nonrecoverable Advances from the Trust to, but not including, the Distribution
Date on which the Certificate Balance was so increased.
"Act": The Securities Act of 1933, as it may be amended from time to
time.
"Actual/360 Mortgage Loans": The Mortgage Loans indicated as such in
the Mortgage Loan Schedule.
"Additional Debt": With respect to any Mortgage Loan, any debt owed
by the related Mortgagor to a party other than the lender under such Mortgage
Loan as of the Closing Date as set forth on Schedule 1 hereto, as increased or
decreased from time to time pursuant to the terms of the related subordinate
loan documents (including any subordination agreement).
"Additional Exclusions": Exclusions in addition to those customarily
found in the insurance policies for mortgaged properties similar to the
Mortgaged Properties on September 11, 2001.
"Administrative Cost Rate": With respect to each Mortgage Loan, the
sum of the Servicing Fee Rate and the Trustee Fee Rate, in each case computed on
the basis of the Stated Principal Balance of the related Mortgage Loan and in
the same manner as interest is calculated on such Mortgage Loan.
"Advance": Any P&I Advance or Servicing Advance.
"Adverse REMIC Event": As defined in Section 10.01(f).
"Affiliate": 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.
"Agent": As defined in Section 5.02(c)(i)(A).
"Agreement": This Pooling and Servicing Agreement and all amendments
hereof and supplements hereto.
"Anticipated Repayment Date": With respect to any Mortgage Loan that
is indicated on the Mortgage Loan Schedule as having a Revised Rate, the date
upon which such Mortgage Loan commences accruing interest at such Revised Rate.
"Applicable Procedures": As defined in Section 5.02(b)(i).
"Applicable State and Local Tax Law": For purposes hereof, the
Applicable State and Local Tax Law shall be (a) the tax laws of the State of New
York and the State of Minnesota; and (b) such other state or local tax laws
whose applicability shall have been brought to the attention of the Trustee and
the Paying Agent by either (i) an Opinion of Counsel delivered to it, or (ii)
written notice from the appropriate taxing authority as to the applicability of
such state or local tax laws.
"Appraisal": An appraisal prepared by an Independent MAI appraiser
with at least five years experience in properties of like kind and in the same
area, prepared in accordance with 12 C.F.R. 225.64, or, in connection with an
Appraisal Reduction, a valuation meeting the requirements of clause (b)(i)(A)(2)
in the definition of Appraisal Reduction.
"Appraisal Reduction": For any Distribution Date and for any
Mortgage Loan as to which an Appraisal Reduction Event has occurred, will be an
amount calculated by the Master Servicer, based upon the appraised value
determined by the Special Servicer, in consultation with the Directing
Certificateholder, as of the first Determination Date that is at least 10
Business Days following the date on which the Special Servicer receives and
delivers to the Master Servicer the related Appraisal, equal to the excess of
(a) the Stated Principal Balance of such Mortgage Loan and any related Companion
Loan, over (b) the excess of (i) the sum of (A) 90% of the Appraised Value of
the related Mortgaged Property as determined (1) by one or more Appraisals with
respect to any Mortgage Loan (together with any other Mortgage Loan
cross-collateralized with such Mortgage Loan) with an outstanding principal
balance equal to or in excess of $2,000,000 (the costs of which shall be paid by
the Master Servicer as an Advance) or (2) by an internal valuation performed by
the Special Servicer with respect to any Mortgage Loan (together with any other
Mortgage Loan cross-collateralized with such Mortgage Loan) with an outstanding
principal balance less than $2,000,000, and (B) all escrows, letters of credit
and reserves in respect of such Mortgage Loan as of the date of calculation over
(ii) the sum of, as of the Due Date occurring in the month of the date of
determination, (A) to the extent not previously advanced by the Master Servicer
or the Trustee, all unpaid interest on such Mortgage Loan at a per annum rate
equal to its Mortgage Rate (and any accrued and unpaid interest on any related
Companion Loan), (B) all unreimbursed Advances and interest thereon at the
Reimbursement Rate in respect of such Mortgage Loan and (C) all currently due
and unpaid real estate taxes, assessments, insurance premiums, ground rents,
unpaid Special Servicing Fees and all other amounts due and unpaid with respect
to such Mortgage Loan (which taxes, premiums, ground rents and other amounts
have not been the subject of an Advance by the Master Servicer or the Trustee,
as applicable); provided, however, without limiting the Special Servicer's
obligation to order and obtain such Appraisal, if the Special Servicer has not
obtained the Appraisal or valuation, as applicable, referred to above within 60
days of the Appraisal Reduction Event (or with respect to the reduction event
set forth in clauses (i) and (vi) of the definition of Appraisal Reduction
Event, within 120 days after the initial delinquency for the related Appraisal
Reduction Event), the amount of the Appraisal Reduction shall be deemed to be an
amount equal to 25% of the current Stated Principal Balance of the related
Mortgage Loan (or AB Mortgage Loan and its related Companion Loan in the case of
an AB Mortgage Loan) until such time as such appraisal or valuation referred to
above is received and the Appraisal Reduction is calculated. Within 60 days
after the Appraisal Reduction Event, the Special Servicer shall order and
receive an Appraisal (the cost of which shall be paid as a Servicing Advance);
provided, however, that with respect to an Appraisal Reduction Event as set
forth in clause (i) of the definition of Appraisal Reduction Event, the Special
Servicer shall order and receive such Appraisal within the 120-day period set
forth in such clause (i), which Appraisal shall be delivered by the Special
Servicer to the Master Servicer, the Directing Certificateholder, the Paying
Agent and the Trustee.
With respect to each Mortgage Loan as to which an Appraisal
Reduction has occurred (unless such Mortgage Loan has become a Corrected
Mortgage Loan (for such purposes taking into account any amendment or
modification of such Mortgage Loan)), the Special Servicer shall, within thirty
(30) days of each anniversary of the related Appraisal Reduction Event, order an
Appraisal (which may be an update of a prior Appraisal), the cost of which shall
be paid by the Master Servicer as a Servicing Advance or conduct an internal
valuation, as applicable. Based upon such Appraisal or internal valuation of the
Special Servicer, the Master Servicer shall redetermine (in consultation with
the Directing Certificateholder) and report to the Directing Certificateholder
(and, in the case of the 000 Xxxx Xxxxxx Xxxxx Whole Loan, the 000 Xxxx Xxxxxx
Xxxxx X Note Representative), the Special Servicer, the Paying Agent and the
Trustee the amount of the Appraisal Reduction with respect to such Mortgage Loan
and such redetermined Appraisal Reduction shall replace the prior Appraisal
Reduction with respect to such Mortgage Loan. The Directing Certificateholder
shall have ten (10) Business Days to review each calculation of an Appraisal
Reduction. Notwithstanding the foregoing, the Special Servicer will not be
required to obtain an Appraisal or conduct an internal valuation, as applicable,
with respect to a Mortgage Loan which is the subject of an Appraisal Reduction
Event to the extent the Special Servicer has obtained an Appraisal or valuation,
as applicable, with respect to the related Mortgaged Property within the
twelve-month period immediately prior to the occurrence of such Appraisal
Reduction Event. Instead, the Special Servicer may use such prior Appraisal or
valuation, as applicable, in calculating any Appraisal Reduction with respect to
such Mortgage Loan; provided that the Special Servicer is not aware of any
material change to the related Mortgaged Property having occurred and affecting
the validity of such appraisal or valuation, as applicable.
Any Mortgage Loan previously subject to an Appraisal Reduction which
Mortgage Loan has become a Corrected Mortgage Loan (for such purposes taking
into account any amendment or modification of such Mortgage Loan), and with
respect to which no other Appraisal Reduction Event has occurred and is
continuing, will no longer be subject to an Appraisal Reduction.
Notwithstanding anything herein to the contrary, the aggregate
Appraisal Reduction related to a Mortgage Loan or the related REO Property will
be reduced to zero as of the date on which such Mortgage Loan is paid in full,
liquidated, repurchased or otherwise removed from the Trust Fund.
"Appraisal Reduction Event": With respect to any Mortgage Loan, the
earliest of (i) 120 days after an uncured delinquency (without regard to the
application of any grace period) occurs in respect of such Mortgage Loan, (ii)
the date on which a reduction in the amount of Monthly Payments on such Mortgage
Loan, or a change in any other material economic term of such Mortgage Loan
(other than an extension of the Maturity Date), becomes effective as a result of
a modification of such Mortgage Loan by the Special Servicer, (iii) the date on
which a receiver has been appointed, (iv) 60 days after a Mortgagor declares
bankruptcy, (v) 60 days after the date on which an involuntary petition of
bankruptcy is filed with respect to the related Mortgagor, if not dismissed
within such time, (vi) 90 days after an uncured delinquency occurs in respect of
a Balloon Payment with respect to such Mortgage Loan and (vii) immediately after
such Mortgage Loan becomes an REO Loan; provided, however, that an Appraisal
Reduction Event shall not occur at any time when the aggregate Certificate
Balances of all Classes of Certificates (other than the Class A Certificates)
have been reduced to zero. The Special Servicer shall notify the Master
Servicer, or the Master Servicer shall notify the Special Servicer, as
applicable, promptly upon the occurrence of any of the foregoing events.
"Appraised Value": With respect to any Mortgaged Property, the
appraised value thereof as determined by an Appraisal of the Mortgaged Property
securing the related Mortgage Loan.
"ARD Loan": Any Mortgage Loan that provides that if the unamortized
principal balance thereof is not repaid on its Anticipated Repayment Date, such
Mortgage Loan will accrue Excess Interest at the rate specified in the related
Mortgage Note and the Mortgagor is required to apply excess monthly cash flow
generated by the related Mortgaged Property to the repayment of the outstanding
principal balance on such Mortgage Loan.
"Asset Status Report": As defined in Section 3.21(d).
"Assignment": As defined in Section 2.01(c).
"Assignment of Leases": With respect to any Mortgaged Property, any
assignment of leases, rents and profits or similar instrument executed by the
Mortgagor, assigning to the mortgagee all of the income, rents and profits
derived from the ownership, operation, leasing or disposition of all or a
portion of such Mortgaged Property, in the form which was duly executed,
acknowledged and delivered, as amended, modified, renewed or extended through
the date hereof and from time to time hereafter.
"Assumed Scheduled Payment": For any Due Period and with respect to
any Mortgage Loan that is delinquent in respect of its Balloon Payment
(including any REO Loan as to which the Balloon Payment would have been past
due), an amount equal to the sum of (a) the principal portion of the Monthly
Payment that would have been due on such Mortgage Loan on the related Due Date
based on the constant payment required by the related Mortgage Note or the
original amortization schedule thereof (as calculated with interest at the
related Mortgage Rate), if applicable, assuming such Balloon Payment has not
become due, after giving effect to any reduction in the principal balance
thereof occurring in connection with a modification of such Mortgage Loan in
connection with a default or bankruptcy or similar proceedings, and (b) interest
on the Stated Principal Balance of such Mortgage Loan at the applicable Mortgage
Rate (net of interest at the Servicing Fee Rate).
"Authenticating Agent": The Paying Agent or any agent of the Trustee
appointed to act as Authenticating Agent pursuant to Section 5.01.
"Available Distribution Amount": With respect to any Distribution
Date, an amount equal to the sum of (without duplication):
(a) the aggregate amount relating to the Mortgage Loans on deposit
in the Certificate Account (exclusive of any Net Investment Earnings
contained therein and exclusive of any amount on deposit in or credited to
any portion of the Certificate Account that is held for the benefit of the
Companion Holders) and the Lower-Tier Distribution Account as of the close
of business on the related P&I Advance Date, exclusive of (without
duplication):
(i) all Monthly Payments paid by the Mortgagors that are due
on a Due Date following the end of the related Due Period and, with
respect to the first Due Date, for those Mortgage Loans that were
closed in November 2004 but have their first Due Date in January
2005, any interest amounts relating to the period prior to the
Cut-off Date;
(ii) all unscheduled Principal Prepayments (together with any
related payments of interest allocable to the period following the
related Due Date for the related Mortgage Loan), Liquidation
Proceeds or Insurance and Condemnation Proceeds, in each case,
received subsequent to the related Determination Date (or, with
respect to voluntary Principal Prepayments for each Mortgage Loan
with a Due Date occurring after the related Determination Date, the
related Due Date);
(iii) all amounts payable or reimbursable to any Person from
the Certificate Account pursuant to clauses (ii) through (xvi),
inclusive, and clause (xix) of Section 3.05(a);
(iv) all amounts payable or reimbursable to any Person from
the Lower-Tier Distribution Account pursuant to clauses (ii) through
(vii), inclusive, of Section 3.05(b);
(v) Excess Interest;
(vi) all Yield Maintenance Charges;
(vii) all amounts deposited in the Certificate Account, the
Lower-Tier Distribution Account in error; and
(viii) with respect to the Interest Reserve Loans and any
Distribution Date relating to each Interest Accrual Period ending in
(1) each January or (2) any December in a year immediately preceding
a year which is not a leap year, an amount equal to one day of
interest on the Stated Principal Balance of such Mortgage Loan as of
the Due Date in the month preceding the month in which such
Distribution Date occurs at the related Mortgage Rate to the extent
such amounts are to be deposited in the Interest Reserve Account and
held for future distribution pursuant to Section 3.26;
(b) if and to the extent not already included in clause (a) hereof,
the aggregate amount transferred from the REO Account to the Certificate
Account for such Distribution Date pursuant to Section 3.16(c);
(c) the aggregate amount of any P&I Advances made by the Master
Servicer or the Trustee, as applicable, for such Distribution Date
pursuant to Section 4.03 or 7.05 (net of the related Trustee Fee with
respect to the Mortgage Loans for which such P&I Advances are made);
(d) for the Distribution Date occurring in each March, the Withheld
Amounts remitted to the Lower-Tier Distribution Account pursuant to
Section 3.26(b); and
(e) with respect to the first Distribution Date, the Closing Date
Deposit Amount deposited into the Distribution Account pursuant to Section
2.01(g).
Notwithstanding the investment of funds held in the Certificate Account pursuant
to Section 3.06, for purposes of calculating the Available Distribution Amount,
the amounts so invested shall be deemed to remain on deposit in such account.
"Balloon Mortgage Loan": Any Mortgage Loan or Companion Loan that by
its original terms or by virtue of any modification entered into as of the
Closing Date provides for an amortization schedule extending beyond its Maturity
Date.
"Balloon Payment": With respect to any Balloon Mortgage Loan as of
any date of determination, the Monthly Payment payable on the Maturity Date of
such Mortgage Loan.
"Bankruptcy Code": The federal Bankruptcy Code, as amended from time
to time (Title 11 of the United States Code).
"Base Interest Fraction": With respect to any Principal Prepayment
on any Mortgage Loan and with respect to any Class A, Class B, Class C, Class D,
Class E, Class F, Class G and Class H Certificate is a fraction (a) whose
numerator is the greater of (x) zero and (y) the amount by which (i) the
Pass-Through Rate on such Class of Certificates exceeds (ii) the discount rate
used in accordance with the related Mortgage Loan documents in calculating the
Yield Maintenance Charge with respect to such Principal Prepayment and (b) whose
denominator is the amount by which (i) the Mortgage Rate on such Mortgage Loan
exceeds (ii) the discount rate used in accordance with the related Mortgage Loan
documents in calculating the Yield Maintenance Charge with respect to such
Principal Prepayment. However, under no circumstances shall the Base Interest
Fraction be greater than one. If such discount rate is greater than the Mortgage
Rate on such Mortgage Loan, then the Base Interest Fraction will equal zero. The
Master Servicer shall provide to the Paying Agent the discount rate references
above for purposes of calculating the Base Interest Fraction.
"Bid Allocation": With respect to the Master Servicer and each
Sub-Servicer therefor and the proceeds of any bid pursuant to Section 7.01(c),
the amount of such proceeds (net of any expenses incurred in connection with
such bid and the transfer of servicing), multiplied by a fraction equal to (a)
the Servicing Fee Amount for the Master Servicer or such Sub-Servicer therefor,
as the case may be, as of such date of determination, over (b) the aggregate of
the Servicing Fee Amounts for the Master Servicer and all Sub-Servicers therefor
as of such date of determination.
"Book-Entry Certificate": Any Certificate registered in the name of
the Depository or its nominee.
"Breach": As defined in Section 2.03(b).
"Business Day": Any day other than a Saturday, a Sunday or a day on
which banking institutions in New York, New York, Overland Park, Kansas,
Chicago, Illinois, Columbia, Maryland, Minneapolis, Minnesota, or the city and
state in which the Corporate Trust Office of the Trustee, or the principal place
of business of the Master Servicer, the Paying Agent or the Special Servicer is
located, are authorized or obligated by law or executive order to remain closed.
"CERCLA": The Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended.
"Certificate": Any one of the Depositor's Commercial Mortgage
Pass-Through Certificates, Series 2004-C3, as executed and delivered by the
Certificate Registrar and authenticated and delivered hereunder by the
Authenticating Agent.
"Certificate Account": A segregated custodial account or accounts
created and maintained by the Master Servicer pursuant to Section 3.04(a) on
behalf of the Trustee in trust for the Certificateholders, which shall be
entitled "Midland Loan Services, Inc., as Master Servicer, on behalf of Xxxxx
Fargo Bank, N.A., as Trustee, in trust for the registered holders of X.X. Xxxxxx
Chase Commercial Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2004-C3, Certificate Account." Any such account or accounts
shall be an Eligible Account. Subject to the related Intercreditor Agreement and
taking into account that each Companion Loan is subordinate to the related AB
Mortgage Loan to the extent set forth in the related Intercreditor Agreement,
the subaccount described in the next to last paragraph of Section 3.04(a) that
is part of the Certificate Account shall be for the benefit of the related
Companion Holder, to the extent funds on deposit in such subaccount are
attributed to such Companion Loan and shall not be an asset of the Trust Fund or
the Upper-Tier REMIC or Lower-Tier REMIC formed hereunder.
"Certificate Balance": With respect to any Class of Certificates
(other than the Residual Certificates, the Class S Certificates and the Class X
Certificates), (i) on or prior to the first Distribution Date, an amount equal
to the Original Certificate Balance of such Class as specified in the
Preliminary Statement hereto, and (ii) as of any date of determination after the
first Distribution Date, the Certificate Balance of such Class on the
Distribution Date immediately prior to such date of determination (determined as
adjusted pursuant to Section 1.02(iii)).
"Certificate Deferred Interest": For any Distribution Date with
respect to any Class of Certificates, the amount of Mortgage Deferred Interest
allocated to such Class pursuant to Section 4.06(a).
"Certificate Factor": With respect to any Class of Certificates, as
of any date of determination, a fraction, expressed as a decimal carried to at
least eight (8) places, the numerator of which is the then related Certificate
Balance, and the denominator of which is the related Original Certificate
Balance.
"Certificate Owner": With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of such Certificate as reflected on the books
of the Depository or on the books of a Depository Participant or on the books of
an indirect participating brokerage firm for which a Depository Participant acts
as agent.
"Certificate Ownership Certification": As defined in Section 5.06.
"Certificate Register" and "Certificate Registrar": The register
maintained and registrar appointed pursuant to Section 5.02.
"Certificateholder" or "Holder": The Person in whose name a
Certificate is registered in the Certificate Register; provided, however, that
solely for the purposes of giving any consent, approval or waiver pursuant to
this Agreement, any Certificate registered in the name of the Master Servicer,
the Special Servicer, the Trustee, the Paying Agent, the Depositor, or 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 has been obtained, if such consent, approval or waiver sought
from such party would in any way increase its compensation or limit its
obligations as Master Servicer, Special Servicer, Depositor or Trustee, as
applicable, hereunder; provided, however, so long as there is no Event of
Default with respect to the Master Servicer or the Special Servicer, the Master
Servicer and the Special Servicer shall be entitled to exercise such Voting
Rights with respect to any issue which could reasonably be believed to adversely
affect such party's compensation or increase its obligations or liabilities
hereunder; and provided, further, however, that such restrictions shall not
apply to the exercise of the Special Servicer's rights (or the Master Servicer's
rights, if any) or any of their Affiliates as a member of the Controlling Class.
The Trustee and the Paying Agent shall each be entitled to request and rely upon
a certificate of the Master Servicer, the Special Servicer or the Depositor in
determining whether a Certificate is registered in the name of an Affiliate of
such Person. All references herein to "Holders" or "Certificateholders" shall
reflect the rights of Certificate Owners as they may indirectly exercise such
rights through the Depository and the Depository Participants, except as
otherwise specified herein; provided, however, that the parties hereto shall be
required to recognize as a "Holder" or "Certificateholder" only the Person in
whose name a Certificate is registered in the Certificate Register.
"Class": With respect to any Certificates or Uncertificated
Lower-Tier Interests, all of the Certificates bearing the same alphabetical
(and, if applicable, numerical) Class designation and each designated
Uncertificated Lower-Tier Interest.
"Class A Certificate": Any Class A-1, Class A-1A, Class A-2, Class
A-3, Class A-4 and Class A-5 Certificate.
"Class A-1 Certificate": A Certificate designated as "Class A-1" on
the face thereof, in the form of Exhibit A-1 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-1 Pass-Through Rate": With respect to any Distribution
Date, a fixed rate per annum equal to 3.7650%.
"Class A-1A Certificate": A Certificate designated as "Class A-1A"
on the face thereof, in the form of Exhibit A-6 hereto, and evidencing a
"regular interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-1A Pass-Through Rate": With respect to any Distribution
Date, a fixed rate per annum equal to 4.8180%.
"Class A-2 Certificate": A Certificate designated as "Class A-2" on
the face thereof, in the form of Exhibit A-2 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-2 Pass-Through Rate": With respect to any Distribution
Date, a fixed rate per annum equal to 4.2230%.
"Class A-3 Certificate": A Certificate designated as "Class A-3" on
the face thereof, in the form of Exhibit A-3 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-3 Pass-Through Rate": With respect to any Distribution
Date, a fixed rate per annum equal to 4.5450%.
"Class A-4 Certificate": A Certificate designated as "Class A-4" on
the face thereof, in the form of Exhibit A-4 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-4 Pass-Through Rate": With respect to any Distribution
Date, a fixed rate per annum equal to 4.6570%.
"Class A-5 Certificate": A Certificate designated as "Class A-5" on
the face thereof, in the form of Exhibit A-5 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-5 Pass-Through Rate": With respect to any Distribution
Date, a fixed rate per annum equal to 4.8780%.
"Class A-J Certificate": A Certificate designated as "Class A-J" on
the face thereof, in the form of Exhibit A-9 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-J Pass-Through Rate": With respect to any Distribution
Date, a rate per annum equal to the lesser of (i) 4.9220% and (ii) the Weighted
Average Net Mortgage Rate.
"Class B Certificate": A Certificate designated as "Class B" on the
face thereof, in the form of Exhibit A-10 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class B Pass-Through Rate": With respect to any Distribution Date,
a rate per annum equal to the lesser of (i) 4.9610% and (ii) the Weighted
Average Net Mortgage Rate.
"Class C Certificate": A Certificate designated as "Class C" on the
face thereof, in the form of Exhibit A-11 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class C Pass-Through Rate": With respect to any Distribution Date,
a rate per annum equal to the lesser of (i) 4.9810% and (ii) the Weighted
Average Net Mortgage Rate.
"Class D Certificate": A Certificate designated as "Class D" on the
face thereof, in the form of Exhibit A-12 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class D Pass-Through Rate": With respect to any Distribution Date,
a rate per annum equal to the lesser of (i) 5.0110% and (ii) the Weighted
Average Net Mortgage Rate.
"Class E Certificate": A Certificate designated as "Class E" on the
face thereof, in the form of Exhibit A-13 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class E Pass-Through Rate": With respect to any Distribution Date,
a rate per annum equal to the lesser of (i) 5.0440% and (ii) the Weighted
Average Net Mortgage Rate.
"Class F Certificate": A Certificate designated as "Class F" on the
face thereof, in the form of Exhibit A-14 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class F Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Weighted Average Net Mortgage Rate minus 0.2530%.
"Class G Certificate": A Certificate designated as "Class G" on the
face thereof, in the form of Exhibit A-15 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class G Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Weighted Average Net Mortgage Rate minus 0.0150%.
"Class H Certificate": A Certificate designated as "Class H" on the
face thereof, in the form of Exhibit A-16 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class H Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Weighted Average Net Mortgage Rate.
"Class J Certificate": A Certificate designated as "Class J" on the
face thereof, in the form of Exhibit A-17 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class J Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Weighted Average Net Mortgage Rate.
"Class K Certificate": A Certificate designated as "Class K" on the
face thereof, in the form of Exhibit A-18 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class K Pass-Through Rate": With respect to any Distribution Date,
a rate per annum equal to the lesser of (i) 4.6800% and (ii) the Weighted
Average Net Mortgage Rate.
"Class L Certificate": A Certificate designated as "Class L" on the
face thereof, in the form of Exhibit A-19 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class L Pass-Through Rate": With respect to any Distribution Date,
a rate per annum equal to the lesser of (i) 4.6800% and (ii) the Weighted
Average Net Mortgage Rate.
"Class LA-1-1 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1-2 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1-3 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1-4 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-1 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-2 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-3 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-4 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-5 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-6 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-7 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-8 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-9 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-10 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-11 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-12 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-13 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-14 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-15 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-2-1 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-2-2 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-3-1 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-3-2 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-3-3 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-3-4 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-3-5 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-3-6 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-4-1 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-4-2 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-4-3 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-4-4 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-5-1 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-5-2 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-5-3 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-J Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LB Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LC Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LD Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LE Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LF-1 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LF-2 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LG-1 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LG-2 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LG-3 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LG-4 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
Class LH-1 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LH-2 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LJ-1 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LJ-2 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LJ-3 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LK Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LL-1 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LL-2 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LM Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LN Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LNR Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LP Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LQ Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LR Certificate": A Certificate designated as "Class LR" on
the face thereof, in the form of Exhibit A-27 hereto, evidencing the sole class
of "residual interests" in the Lower-Tier REMIC for purposes of the REMIC
Provisions.
"Class M Certificate": A Certificate designated as "Class M" on the
face thereof, in the form of Exhibit A-20 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class M Pass-Through Rate": With respect to any Distribution Date,
a rate per annum equal to the lesser of (i) 4.6800% and (ii) the Weighted
Average Net Mortgage Rate.
"Class N Certificate": A Certificate designated as "Class N" on the
face thereof, in the form of Exhibit A-21 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class N Pass-Through Rate": With respect to any Distribution Date,
a rate per annum equal to the lesser of (i) 4.6800% and (ii) the Weighted
Average Net Mortgage Rate.
"Class Notional Amount": The Class X-1 Notional Amount or the Class
X-2 Notional Amount, as the context requires.
"Class NR Certificate": A Certificate designated as "Class NR" on
the face thereof, in the form of Exhibit A-24 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class NR Pass-Through Rate": With respect to any Distribution Date,
a rate per annum equal to the lesser of (i) 4.6800% and (ii) the Weighted
Average Net Mortgage Rate.
"Class P Certificate": A Certificate designated as "Class P" on the
face thereof, in the form of Exhibit A-22 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class P Pass-Through Rate": With respect to any Distribution Date,
a rate per annum equal to the lesser of (i) 4.6800% and (ii) the Weighted
Average Net Mortgage Rate.
"Class Q Certificate": A Certificate designated as "Class Q" on the
face thereof, in the form of Exhibit A-23 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class Q Pass-Through Rate": With respect to any Distribution Date,
a rate per annum equal to the lesser of (i) 4.6800% and (ii) the Weighted
Average Net Mortgage Rate.
"Class R Certificate": A Certificate designated as "Class R" on the
face thereof in the form of Exhibit A-26 hereto, and evidencing the sole class
of "residual interest" in the Upper-Tier REMIC for purposes of the REMIC
Provisions.
"Class S Certificate": A Certificate designated as "Class S" on the
face thereof, in the form of Exhibit A-25 hereto, and evidencing the undivided
beneficial interest in the Grantor Trust.
"Class Unpaid Interest Shortfall": As to any Distribution Date and
any Class of Certificates, the excess, if any, of (a) the sum of (i) the
Distributable Certificate Interest in respect of such Class for the immediately
preceding Distribution Date and (ii) any outstanding Class Unpaid Interest
Shortfall payable to such Class on such preceding Distribution Date over (b) the
aggregate amount in respect of interest actually distributed to such Class on
such immediately preceding Distribution Date. The Class Unpaid Interest
Shortfall with respect to any Class of Certificates as of the initial
Distribution Date is zero. No interest shall accrue on Class Unpaid Interest
Shortfalls.
"Class X Certificates": The Class X-1 Certificates and the Class X-2
Certificates.
"Class X Reference Rate": With respect to any Distribution Date, the
rate for such Distribution Date specified in Exhibit L hereto.
"Class X-1 Certificate": Any one of the Certificates with a "Class
X-1" designation on the face thereof, substantially in the form of Exhibit A-7
attached hereto, and evidencing a "regular interest" in the Upper-Tier REMIC for
purposes of the REMIC Provisions.
"Class X-1 Notional Amount": As of any date of determination, the
sum of the then Component Notional Amounts of all the Components.
"Class X-1 Pass-Through Rate": With respect to any Distribution
Date, the weighted average of the Class X-1 Strip Rates for the respective
Components for such Distribution Date (weighted on the basis of the respective
Component Notional Amounts of such Components outstanding immediately prior to
such Distribution Date).
"Class X-1 Strip Rate": (A) With respect to any Class of the
Components (other than those Components that are Class X-2 Components which are
included for purposes of calculating the Class X-2 Notional Amount for such
Distribution Date) for any Distribution Date, a rate per annum equal to (i) the
Weighted Average Net Mortgage Rate for such Distribution Date, minus (ii) the
Pass-Through Rate for the Related Certificates and (B) with respect to any
Components that are Class X-2 Components which are included for purposes of
calculating the Class X-2 Notional Amount for such Distribution Date (i) for any
Distribution Date occurring on or before the Class X-2 Termination Date, (x) the
Weighted Average Net Mortgage Rate for such Distribution Date minus (y)(1) with
respect to Component XF-1, Component XF-2, Component XG-1, Component XG-2,
Component XG-3, Component XG-4, Component XX-0, Xxxxxxxxx XX-0, Xxxxxxxxx XX-0,
Component XJ-2 and Component XJ-3, the sum of (I) the Class X-2 Strip Rate for
the applicable Class X-2 Component and (II) the Pass-Through Rate for the
Related Certificates for such Distribution Date and (2) for each other Class X-2
Component, the greater of (I) the Class X Reference Rate for such Distribution
Date and (II) the Pass-Through Rate for the Related Certificate for such
Distribution Date, and (ii) for any Distribution Date occurring after the Class
X-2 Termination Date, a rate per annum equal to (x) the Weighted Average Net
Mortgage Rate for such Distribution Date, minus (y) the Pass-Through Rate for
the Related Certificates for such Distribution Date; provided, that in no event
shall any Class X-1 Strip Rate be less than zero.
"Class X-2 Certificate": Any one of the Certificates with a "Class
X-2" designation on the face thereof, substantially in the form of Exhibit A-8
attached hereto and evidencing a "regular interest" in the Upper-Tier REMIC for
purposes of the REMIC Provisions.
"Class X-2 Components": Each of Component XX-0-0, Xxxxxxxxx XX-0-0,
Component XX-0-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0X-0,
Component XX-0X-0, Xxxxxxxxx XX-0X-0, Component XX-0X-0, Xxxxxxxxx XX-0X-0,
Xxxxxxxxx XX-0X-0, Component XA-1A-10, Component XA-1A-11, Component XA-1A-12,
Component XA-1A-13, Component XX-0X-00, Xxxxxxxxx XX-0X-00, Xxxxxxxxx XX-0-0,
Xxxxxxxxx XX-0-0, Component XA-3-1, Component XX-0-0, Xxxxxxxxx XX-0-0,
Xxxxxxxxx XX-0-0, Component XA-3-5, Component XX-0-0, Xxxxxxxxx XX-0-0,
Xxxxxxxxx XX-0-0, Component XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0,
Component XA-5-2, Component XA-5-3, Component XA-J, Component XB, Component XC,
Component XD, Component XE, Component XF-1, Component XF-2, Component XG-1,
Component XG-2, Component XG-3, Component XG-4, Component XH-1, Component XH-2,
Component XJ-1, Component XJ-2, Component XJ-3, Component XK, Component XL-1,
Component XL-2 and Component XM.
"Class X-2 Notional Amount": (i) With respect to any Distribution
Date on or prior to the Distribution Date in June 2005, the sum of the then
Component Notional Amounts of Component XX-0-0, Xxxxxxxxx XX-0-0, Component
XX-0-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0X-0, Component
XX-0X-0, Xxxxxxxxx XX-0X-0, Component XX-0X-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx
XX-0X-0, Component XA-1A-10, Component XA-1A-11, Component XA-1A-12, Component
XA-1A-13, Component XX-0X-00, Xxxxxxxxx XX-0X-00, Xxxxxxxxx XX-0-0, Xxxxxxxxx
XX-0-0, Component XA-3-1, Component XA-3-2, Component XX-0-0, Xxxxxxxxx XX-0-0,
Xxxxxxxxx XX-0-0, Component XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0,
Component XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0, Component XA-5-2,
Component XA-5-3, Component XA-J, Component XB, Component XC, Component XD,
Component XE, Component XF-1, Component XF-2, Component XG-1, Component XG-2,
Component XG-3, Component XG-4, Component XH-1, Component XH-2, Component XJ-1,
Component XJ-2, Component XJ-3, Component XL-1, Component XL-2 and Component XM.
(ii) With respect to any Distribution Date after the
Distribution Date in June 2005 through and including the
Distribution Date in December 2005, the sum of the then Component
Notional Amounts of Component XX-0-0, Xxxxxxxxx XX-0-0, Component
XX-0X-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0X-0, Component XA-1A-6,
Component XX-0X-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0X-0, Component
XA-1A-10, Component XA-1A-11, Component XA-1A-12, Component
XA-1A-13, Component XX-0X-00, Xxxxxxxxx XX-0X-00, Xxxxxxxxx XX-0-0,
Xxxxxxxxx XX-0-0, Component XA-3-1, Component XA-3-2, Component
XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0, Component XX-0-0,
Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0, Component XX-0-0, Xxxxxxxxx
XX-0-0, Xxxxxxxxx XX-0-0, Component XA-5-2, Component XA-5-3,
Component XA-J, Component XB, Component XC, Component XD, Component
XE, Component XF-1, Component XF-2, Component XG-1, Component XG-2,
Component XG-3, Component XG-4, Component XH-1, Component XH-2,
Component XJ-1, Component XJ-2, Component XJ-3, Component XK,
Component XL-1, Component XL-2 and Component XM.
(iii) With respect to any Distribution Date after the
Distribution Date in December 2005 through and including the
Distribution Date in June 2006, the sum of the then Component
Notional Amounts of Component XX-0-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx
XX-0X-0, Xxxxxxxxx XX-0X-0, Component XX-0X-0, Xxxxxxxxx XX-0X-0,
Xxxxxxxxx XX-0X-0, Component XA-1A-10, Component XA-1A-11, Component
XA-1A-12, Component XA-1A-13, Component XX-0X-00, Xxxxxxxxx
XX-0X-00, Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0, Component XX-0-0,
Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0, Component XX-0-0, Xxxxxxxxx
XX-0-0, Xxxxxxxxx XX-0-0, Component XA-4-1, Component XA-4-2,
Component XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0, Component
XA-5-2, Component XA-5-3, Component XA-J, Component XB, Component
XC, Component XD, Component XE, Component XF-1, Component XF-2,
Component XG-1, Component XG-2, Component XG-3, Component XG-4,
Component XH-1, Component XH-2, Component XJ-1, Component XJ-2,
Component XJ-3, Component XK, Component XL-1, Component XL-2 and
Component XM.
(iv) With respect to any Distribution Date after the
Distribution Date in June 2006 through and including the
Distribution Date in December 2006, the sum of the then Component
Notional Amounts of Component XX-0X-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx
XX-0X-0, Xxxxxxxxx XX-0X-0, Component XA-1A-9, Component XA-1A-10,
Component XA-1A-11, Component XA-1A-12, Component XA-1A-13,
Component XX-0X-00, Xxxxxxxxx XX-0X-00, Xxxxxxxxx XX-0-0, Xxxxxxxxx
XX-0-0, Component XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0,
Component XA-3-5, Component XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx
XX-0-0, Component XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0,
Component XA-5-2, Component XA-5-3, Component XA-J, Component XB,
Component XC, Component XD, Component XE, Component XF-1, Component
XF-2, Component XG-1, Component XG-2, Component XG-3, Component
XG-4, Component XH-1, Component XH-2, Component XJ-1, Component
XJ-2, Component XJ-3, Component XK, Component XL-1, Component XL-2
and Component XM.
(v) With respect to any Distribution Date after the
Distribution Date in December 2006 through and including the
Distribution Date in June 2007, the sum of the then Component
Notional Amounts of Component XX-0X-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx
XX-0X-0, Xxxxxxxxx XX-0X-0, Component XA-1A-10, Component XA-1A-11,
Component XA-1A-12, Component XA-1A-13, Component XX-0X-00,
Xxxxxxxxx XX-0X-00, Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0, Component
XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0, Component XX-0-0,
Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0, Component XA-4-4, Component
XA-5-1, Component XA-5-2, Component XA-5-3, Component XA-J,
Component XB, Component XC, Component XD, Component XE, Component
XF-1, Component XF-2, Component XG-1, Component XG-2, Component
XG-3, Component XG-4, Component XH-1, Component XH-2, Component
XJ-1, Component XJ-2, Component XJ-3, Component XK, Component XL-1,
Component XL-2 and Component XM.
(vi) With respect to any Distribution Date after the
Distribution Date in June 2007 through and including the
Distribution Date in December 2007, the sum of the then Component
Notional Amounts of Component XX-0X-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx
XX-0X-0, Component XA-1A-10, Component XA-1A-11, Component XA-1A-12,
Component XA-1A-13, Component XX-0X-00, Xxxxxxxxx XX-0X-00,
Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0, Component XX-0-0, Xxxxxxxxx
XX-0-0, Xxxxxxxxx XX-0-0, Component XX-0-0, Xxxxxxxxx XX-0-0,
Xxxxxxxxx XX-0-0, Component XA-5-1, Component XA-5-2, Component
XA-5-3, Component XA-J, Component XB, Component XC, Component XD,
Component XE, Component XF-1, Component XF-2, Component XG-1,
Component XG-2, Component XG-3, Component XG-4, Component XH-1,
Component XH-2, Component XJ-1, Component XJ-2, Component XJ-3,
Component XK and Component XL-2.
(vii) With respect to any Distribution Date after the
Distribution Date in December 2007 through and including the
Distribution Date in June 2008, the sum of the then Component
Notional Amounts of Component XX-0X-0, Xxxxxxxxx XX-0X-0, Component
XA-1A-10, Component XA-1A-11, Component XA-1A-12, Component
XA-1A-13, Component XX-0X-00, Xxxxxxxxx XX-0X-00, Xxxxxxxxx XX-0-0,
Xxxxxxxxx XX-0-0, Component XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx
XX-0-0, Component XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0,
Component XA-5-2, Component XA-5-3, Component XA-J, Component XB,
Component XC, Component XD, Component XE, Component XF-1, Component
XF-2, Component XG-1, Component XG-2, Component XG-3, Component
XG-4, Component XX-0, Xxxxxxxxx XX-0, Xxxxxxxxx XX-0 and Component
XJ-3.
(viii) With respect to any Distribution Date after the
Distribution Date in June 2008 through and including the
Distribution Date in December 2008, the sum of the then Component
Notional Amounts of Component XX-0X-0, Xxxxxxxxx XX-0X-00, Xxxxxxxxx
XX-0X-00, Xxxxxxxxx XX-0X-00, Component XA-1A-13, Component
XX-0X-00, Xxxxxxxxx XX-0X-00, Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0,
Component XA-4-1, Component XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx
XX-0-0, Component XA-5-1, Component XA-5-2, Component XA-5-3,
Component XA-J, Component XB, Component XC, Component XD, Component
XE, Component XF-1, Component XF-2, Component XG-1, Component XG-2,
Component XG-3, Component XG-4, Component XH-1, Component XH-2 and
Component XJ-3.
(ix) With respect to any Distribution Date after the
Distribution Date in December 2008 through and including the
Distribution Date in June 2009, the sum of the then Component
Notional Amounts of Component XX-0X-00, Xxxxxxxxx XX-0X-00,
Xxxxxxxxx XX-0X-00, Xxxxxxxxx XX-0X-00, Component XX-0X-00,
Xxxxxxxxx XX-0X-00, Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0, Component
XA-4-2, Component XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0,
Component XA-5-2, Component XA-5-3, Component XA-J, Component XB,
Component XC, Component XD, Component XE, Component XF-1, Component
XF-2, Component XG-1, Component XG-2, Component XG-3, Component
XG-4, Component XH-1 and Component XH-2.
(x) With respect to any Distribution Date after the
Distribution Date in June 2009 through and including the
Distribution Date in December 2009, the sum of the then Component
Notional Amounts of Component XX-0X-00, Xxxxxxxxx XX-0X-00,
Xxxxxxxxx XX-0X-00, Component XX-0X-00, Xxxxxxxxx XX-0X-00,
Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0, Component XA-4-4, Component
XA-5-1, Component XA-5-2, Component XA-5-3, Component XA-J,
Component XB, Component XC, Component XD, Component XE, Component
XF-1, Component XF-2, Component XG-1, Component XG-2, Component
XG-3, Component XG-4 and Component XH-2.
(xi) With respect to any Distribution Date after the
Distribution Date in December 2009 through and including the
Distribution Date in June 2010, the sum of the then Component
Notional Amounts of Component XX-0X-00, Xxxxxxxxx XX-0X-00,
Xxxxxxxxx XX-0X-00, Xxxxxxxxx XX-0X-00, Component XA-4-3, Component
XA-4-4, Component XA-5-1, Component XA-5-2, Component XA-5-3,
Component XA-J, Component XB, Component XC, Component XD, Component
XE, Component XF-1, Component XF-2, Component XG-2, Component XG-3
and Component XG-4.
(xii) With respect to any Distribution Date after the
Distribution Date in June 2010 through and including the
Distribution Date in December 2010, the sum of the then Component
Notional Amounts of Component XX-0X-00, Xxxxxxxxx XX-0X-00,
Xxxxxxxxx XX-0X-00, Xxxxxxxxx XX-0-0, Component XA-5-1, Component
XA-5-2, Component XA-5-3, Component XA-J, Component XB, Component
XC, Component XD, Component XE, Component XF-1, Component XF-2,
Component XG-3 and Component XG-4.
(xiii) With respect to any Distribution Date after the
Distribution Date in December 2010 through and including the
Distribution Date in June 2011, the sum of the then Component
Notional Amounts of Component XA-1A-14, Component XA-1A-15,
Component XA-5-2, Component XA-5-3, Component XA-J, Component XB,
Component XC, Component XD, Component XE, Component XF-1, Component
XF-2 and Component XG-4.
(xiv) With respect to any Distribution Date after the
Distribution Date in June 2011 through and including the
Distribution Date in December 2011, the sum of the then Component
Notional Amounts of Component XA-1A-15, Component XA-5-3, Component
XA-J, Component XB, Component XC, Component XD, Component XE and
Component XF-2.
(xv) after the Distribution Date in December 2011, $0.
"Class X-2 Pass-Through Rate": With respect to any Distribution
Date, the weighted average of the Class X-2 Strip Rates for the respective Class
X-2 Components that are Class X-2 Components which are included for purposes of
calculating the Class X-2 Notional Amount for such Distribution Date (weighted
on the basis of the respective Component Notional Amounts of such Components
outstanding immediately prior to such Distribution Date).
"Class X-2 Strip Rate": With respect to each Class X-2 Component for
any Distribution Date, a rate per annum equal to (i) for any Distribution Date
occurring on or before the Class X-2 Termination Date, (v) with respect to
Component XF-1 and Component XF-2, the lesser of (A) 0.223% and (B) the Weighted
Average Net Mortgage Rate for such Distribution Date minus the Pass-Through Rate
in effect on such Distribution Date for the Class F Certificates, (w) with
respect to Component XX-0, Xxxxxxxxx XX-0, Component XG-3 and Component XG-4 the
lesser of (A) 0.000% and (B) the Weighted Average Net Mortgage Rate for such
Distribution Date minus the Pass-Through Rate in effect on such Distribution
Date for the Class G Certificates, (x) with respect to Component XH-1 and
Component XH-2, the lesser of (A) 0.000% and (B) the Weighted Average Net
Mortgage Rate for such Distribution Date minus the Pass-Through Rate in effect
on such Distribution Date for the Class H Certificates, (y) with respect to
Component XJ-1, Component XJ-2 and Component XJ-3, the lesser of (A) 0.000% and
(B) the Weighted Average Net Mortgage Rate for such Distribution Date minus the
Pass-Through Rate in effect on such Distribution Date for the Class J
Certificates, and (z) with respect to each other Class X-2 Component, (A) the
lesser of (I) the Weighted Average Net Mortgage Rate for such Distribution Date
and (II) the Class X Reference Rate for such Distribution Date, minus (B) the
Pass-Through Rate for the Related Certificates (provided that in no event shall
any Class X-2 Strip Rate be less than zero) and (ii) for any Distribution Date
occurring after the Class X-2 Termination Date, 0% per annum.
"Class X-2 Termination Date": The Distribution Date in December,
2011.
"Clearstream": Clearstream Banking, societe anonyme or any successor
thereto.
"Closing Date": December 29, 2004.
"Closing Date Deposit Amount": $928,318.08, representing the
aggregate amount of interest that would have accrued on the related Stated
Principal Balance at the related Mortgage Rates during the Due Period ending in
January 2005, for those Mortgage Loans that do not have their first Monthly
Payment due until February 2005.
"CMSA": The Commercial Mortgage Securities Association, or any
successor organization reasonably acceptable to the Trustee, the Paying Agent,
the Master Servicer and the Directing Certificateholder.
"CMSA Bond Level File": The data file in the "CMSA Bond Level File"
format substantially in the form of and containing the information called for
therein, or such other form for the presentation of such information as may be
approved from time to time by the CMSA for commercial mortgage securities
transactions generally and, insofar as it requires the presentation of
information in addition to that called for by the form of the "CMSA Bond Level
File" available as of the Closing Date on the CMSA website, as is reasonably
acceptable to the Paying Agent.
"CMSA Collateral Summary File": The data file in the "CMSA
Collateral Summary File" format substantially in the form of and containing the
information called for therein, or such other form for the presentation of such
information as may be approved from time to time by the CMSA for commercial
mortgage securities transactions generally and, insofar as it requires the
presentation of information in addition to that called for by the form of the
"CMSA Collateral Summary File" available as of the Closing Date on the CMSA
website, as is reasonably acceptable to the Paying Agent, the Trustee and the
Master Servicer.
"CMSA Comparative Financial Status Report": The monthly report in
"Comparative Financial Status Report" format substantially in the form of and
containing the information called for therein for the Mortgage Loans, or such
other form for the presentation of such information as may be approved from time
to time by the CMSA for commercial mortgage securities transactions generally
and, insofar as it requires the presentation of information in addition to that
called for by the form of the "Comparative Financial Status Report" available as
of the Closing Date on the CMSA website, is reasonably acceptable to the Master
Servicer or the Special Servicer, as applicable.
"CMSA Delinquent Loan Status Report": The monthly report in the
"Delinquent Loan Status Report" format substantially in the form of and
containing the information called for therein for the Mortgage Loans, or such
other form for the presentation of such information as may be approved from time
to time by the CMSA for commercial mortgage securities transactions generally
and, insofar as it requires the presentation of information in addition to that
called for the form of the "Delinquent Loan Status Report" available as of the
Closing Date on the CMSA website, is reasonably acceptable to the Master
Servicer or the Special Servicer, as applicable.
"CMSA Financial File": The data file in the "CMSA Financial File"
format substantially in the form of and containing the information called for
therein for the Mortgage Loans, or such other form for the presentation of such
information as may be approved from time to time by the CMSA for commercial
mortgage securities transactions generally and, insofar as it requires the
presentation of information in addition to that called for by the form of the
"CMSA Financial File" available as of the Closing Date on the CMSA website, is
reasonably acceptable to the Master Servicer or the Special Servicer, as
applicable.
"CMSA Historical Liquidation Report": The monthly report in the
"Historical Liquidation File" format substantially in the form of and containing
the information called for therein for the Mortgage Loans, or such other form
for the presentation of such information as may be approved from time to time by
the CMSA for commercial mortgage securities transactions generally and, insofar
as it requires the presentation of information in addition to that called for by
the form of the "Historical Liquidation Report" available as of the Closing Date
on the CMSA website, is reasonably acceptable to the Master Servicer or the
Special Servicer, as applicable.
"CMSA Historical Loan Modification and Corrected Mortgage Loan
Report": The monthly report in the "Historical Loan Modification and Corrected
Mortgage Loan Report" format substantially in the form of and containing the
information called for therein for the Mortgage Loans, or such other form for
the presentation of such information as may be approved from time to time by the
CMSA for commercial mortgage securities transactions generally and, insofar as
it requires the presentation of information in addition to that called for by
the form of the "Historical Loan Modification and Corrected Mortgage Loan
Report" available as of the Closing Date on the CMSA website, is reasonably
acceptable to the Master Servicer or the Special Servicer, as applicable.
"CMSA Investor Reporting Package (IRP)": The collection of reports
specified by the CMSA from time to time as the "CMSA Investor Reporting
Package." As of the Closing Date, the CMSA IRP contains seven electronic files
((1) CMSA Loan Set up File, (2) CMSA Loan Periodic Update File, (3) CMSA
Property File, (4) CMSA Bond Level File, (5) CMSA Collateral Summary File, (6)
CMSA Financial File and (7) CMSA Special Servicer Loan File) and ten
surveillance reports ((1) CMSA Servicer Watch List, (2) CMSA Delinquent Loan
Status Report, (3) CMSA REO Status Report, (4) CMSA Comparative Financial Status
Report, (5) CMSA Historical Loan Modification and Corrected Mortgage Loan
Report, (6) CMSA Historical Liquidation Report, (7) CMSA Operating Statement
Analysis Report, (8) CMSA NOI Adjustment Worksheet, (9) CMSA Loan Level
Reserve/LOC Report and (10) CMSA Reconciliation of Funds Report). In addition,
the CMSA Investor Reporting Package shall include the Monthly Additional Report
on Recoveries and Reimbursements (notwithstanding that such form of report has
not been adopted or recommended by the CMSA) and the Realized Loss Report in the
form attached hereto as Exhibit X (the "Realized Loss Report"). The CMSA IRP
shall be substantially in the form of, and containing the information called for
in, the downloadable forms of the "CMSA IRP" 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 or reports as may from time to time
be approved by the CMSA for commercial mortgage backed securities transaction
generally and, insofar as it requires the presentation of information in
addition to that called for by the form of the "CMSA IRP" available as of the
Closing Date on the CMSA website, as is reasonably acceptable to the Master
Servicer, the Special Servicer, the Trustee and the Paying Agent. For the
purposes of the production of the CMSA Comparative Financial Status Report by
the Master Servicer or the Special Servicer of any such report that is required
to state information for any period prior to the Cut off Date, the Master
Servicer or the Special Servicer, as the case may be, may conclusively rely
(without independent verification), absent manifest error, on information
provided to it by the Mortgage Loan Sellers or by the related Mortgagor or (x)
in the case of such a report produced by the Master Servicer, by the Special
Servicer (if other than the Master Servicer or an Affiliate thereof) and (y) in
the case of such a report produced by the Special Servicer, by the Master
Servicer (if other than the Special Servicer or an Affiliate thereof).
"CMSA Loan Level Reserve/LOC Report": The monthly report in the
"CMSA Loan Level Reserve/LOC Report" format substantially in the form of and
containing the information called for therein for the Mortgage Loans, or such
other form for the presentation of such information as may be approved from time
to time by the CMSA for commercial mortgage securities transactions generally
and, insofar as it requires the presentation of information in addition to that
called for by the form of the "Loan Level Reserve/LOC Report" available as of
the Closing Date on the CMSA website, is reasonably acceptable to the Master
Servicer.
"CMSA Loan Periodic Update File": The data file in the "CMSA Loan
Periodic Update File" format substantially in the form of and containing the
information called for therein for the Mortgage Loans, or such other form for
the presentation of such information as may be approved from time to time by the
CMSA for commercial mortgage securities transactions generally and, insofar as
it requires the presentation of information in addition to that called for by
the form of the "CMSA Loan Periodic Update File" available as of the Closing
Date on the CMSA website, as is reasonably acceptable to the Master Servicer,
the Paying Agent and the Trustee, and further provided that each CMSA Loan
Periodic Update File prepared by the Master Servicer shall be accompanied by a
Monthly Additional Report on Recoveries and Reimbursements and all references
herein to "CMSA Loan Periodic Update File" shall be construed accordingly.
"CMSA Loan Setup File": The data file in the "CMSA Loan Setup File"
format substantially in the form of and containing the information called for
therein for the Mortgage Loans, or such other form for the presentation of such
information as may be approved from time to time by the CMSA for commercial
mortgage securities transactions generally and, insofar as it requires the
presentation of information in addition to that called for by the form of the
"CMSA Loan Setup File" available as of the Closing Date on the CMSA website, is
reasonably acceptable to the Master Servicer and the Paying Agent.
"CMSA NOI Adjustment Worksheet": The worksheet in the "NOI
Adjustment Worksheet" format substantially in the form of and containing the
information called for therein for the Mortgage Loans, or such other form for
the presentation of such information as may be approved from time to time by the
CMSA for commercial mortgage securities transactions generally and, insofar as
it requires the presentation of information in addition to that called for by
the form of the "CMSA NOI Adjustment Worksheet" available as of the Closing Date
on the CMSA website, is reasonably acceptable to the Master Servicer or the
Special Servicer, as applicable.
"CMSA Operating Statement Analysis Report": The monthly report in
the "Operating Statement Analysis Report" format substantially in the form of
and containing the information called for therein for the Mortgage Loans, or
such other form for the presentation of such information as may be approved from
time to time by the CMSA for commercial mortgage securities transactions
generally and, insofar as it requires the presentation of information in
addition to that called for by the form of the "CMSA Operating Statement
Analysis Report" available as of the Closing Date on the CMSA website, is
reasonably acceptable to the Master Servicer or the Special Servicer, as
applicable.
"CMSA Property File": The data file in the "CMSA Property File"
format substantially in the form of and containing the information called for
therein for the Mortgage Loans, or such other form for the presentation of such
information as may be approved from time to time by the CMSA for commercial
mortgage securities transactions generally and, insofar as it requires the
presentation of information in addition to that called for by the form of the
"CMSA Property File" available as of the Closing Date on the CMSA website, is
reasonably acceptable to the Master Servicer or the Special Servicer, as
applicable.
"CMSA Reconciliation of Funds Report": The monthly report in the
"Reconciliation of Funds" format substantially in the form of and containing the
information called for therein for the Mortgage Loans, or such other form for
the presentation of such information as may be approved from time to time by the
CMSA for commercial mortgage securities transactions generally and, insofar as
it requires the presentation of information in addition to that called for by
the form of the "Reconciliation of Funds" available as of the Closing Date on
the CMSA website, is reasonably acceptable to the Trustee.
"CMSA REO Status Report": The report in the "REO Status Report"
format substantially in the form of and containing the information called for
therein for the Mortgage Loans, or such other form for the presentation of such
information as may be approved from time to time by the CMSA for commercial
mortgage securities transactions generally and, insofar as it requires the
presentation of information in addition to that called for by the form of the
"CMSA REO Status Report" available as of the Closing Date on the CMSA website,
is reasonably acceptable to the Master Servicer or the Special Servicer, as
applicable.
"CMSA Servicer Watch List and Portfolio Review Guidelines": As of
each Determination Date a report, including and identifying each Non Specially
Serviced Mortgage Loan satisfying the "CMSA Portfolio Review Guidelines"
approved from time to time by the CMSA in the "CSMA Master Servicer Watch List"
format substantially in the form of and containing the information called for
therein for the Mortgage Loans, or such other form (including other portfolio
review guidelines) for the presentation of such information as may be approved
from time to time by the CMSA for commercial mortgage securities transactions
generally and, insofar as it requires the presentation of information in
addition to that called for by the form of the "CMSA Servicer Watch List"
available as of the Closing Date on the CMSA website, is reasonably acceptable
to the Master Servicer.
"CMSA Special Servicer Loan File": The data file in the "CMSA
Special Servicer Loan File" format substantially in the form of and containing
the information called for therein for the Mortgage Loans, or such other form
for the presentation of such information as may be approved from time to time by
the CMSA for commercial mortgage securities transactions generally and, insofar
as it requires the presentation of information in addition to that called for by
the form of the "CMSA Special Servicer Loan File" available as of the Closing
Date on the CMSA website, is reasonably acceptable to the Special Servicer.
"Code": The Internal Revenue Code of 1986, as amended from time to
time, and applicable final or temporary regulations of the U.S. Department of
the Treasury issued pursuant thereto.
"Collateral Support Deficit": As defined in Section 4.04.
"Commission": The Securities and Exchange Commission.
"Companion Distribution Account": With respect to the Companion
Loans, the separate account created and maintained by the Companion Paying Agent
pursuant to Section 3.04(b) and held on behalf of the Companion Holders, which
shall be entitled "JPMorgan Chase Bank, National Association, as Companion
Paying Agent for the Companion Holders of the Companion Loans, relating to the
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp., Commercial Mortgage Pass
Through Certificates, Series 2004-C3." The Companion Distribution Account shall
not be an asset of the Trust Fund, but instead shall be held by the Companion
Paying Agent on behalf of the Companion Holders. Any such account shall be an
Eligible Account.
"Companion Holder": Each of the holders of the Companion Loans.
"Companion Loan": Each of the Companion Loans as defined in the
Preliminary Statement.
"Companion Paying Agent": The Paying Agent in its role as Companion
Paying Agent appointed pursuant to Section 3.31.
"Companion Register": The register maintained by the Companion
Paying Agent pursuant to Section 3.32.
"Compensating Interest Payments": With respect to each Mortgage Loan
(or REO Loan), an amount as of any Distribution Date equal to the lesser of (i)
the aggregate amount of Prepayment Interest Shortfalls other than resulting from
Principal Prepayments from Insurance Proceeds or Liquidation Proceeds, and (ii)
the aggregate of (A) that portion of Servicing Fees for such Distribution Date
that is, in the case of each and every Mortgage Loan and REO Loan for which such
Servicing Fees are being paid for such Distribution Date, calculated at 0.01%
per annum, and (B) all Prepayment Interest Excesses for such Distribution Date
with respect to the Mortgage Loan related to such Prepayment Interest Shortfall.
However, if a Prepayment Interest Shortfall occurs as a result of the Master
Servicer's allowing the related Mortgagor to deviate from the terms of the
related Mortgage Loan documents regarding Principal Prepayments (other than (X)
subsequent to a 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 Directing Certificateholder), then the Compensating Interest Payment for the
related Distribution Date shall be equal to the amount of such Prepayment
Interest Shortfall. In no event will the rights of the Certificateholders to
offset the aggregate Prepayment Interest Shortfalls be cumulative.
"Component": Each of Component XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx
XX-0-0, Component XX-0-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx
XX-0X-0, Component XX-0X-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0X-0, Component
XX-0X-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0X-0, Component XA-1A-10, Component
XA-1A-11, Component XA-1A-12, Component XA-1A-13, Component XX-0X-00, Xxxxxxxxx
XX-0X-00, Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0, Component XX-0-0, Xxxxxxxxx
XX-0-0, Xxxxxxxxx XX-0-0, Component XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0,
Component XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0, Component XA-4-4,
Component XA-5-1, Component XA-5-2, Component XA-5-3, Component XA-J, Component
XB, Component XC, Component XD, Component XE, Component XF-1, Component XF-2,
Component XG-1, Component XG-2, Component XG-3, Component XG-4, Component XH-1,
Component XH-2, Component XJ-1, Component XJ-2, Component XJ-3, Component XK,
Component XL-1, Component XL-2, Component XM, Component XN, Component XP,
Component XQ and Component XNR.
"Component Notional Amount": With respect to each Component and any
date of determination, an amount equal to the then Lower-Tier Principal Amount
of its Related Uncertificated Lower-Tier Interest.
"Component XA-1-1": One of the 58 components of the Class X-1
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LA-1-1 Uncertificated Interest as of
any date of determination.
"Component XA-1-2": One of the 58 components of the Class X-1
Certificates and one of the 52 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-1-2 Uncertificated Interest as of any date of determination.
"Component XA-1-3": One of the 58 components of the Class X-1
Certificates and one of the 52 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-1-3 Uncertificated Interest as of any date of determination.
"Component XA-1-4": One of the 58 components of the Class X-1
Certificates and one of the 52 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-1-4 Uncertificated Interest as of any date of determination.
"Component XA-1A-1": One of the 58 components of the Class X-1
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LA-1A-1 Uncertificated Interest as of
any date of determination.
"Component XA-1A-2": One of the 58 components of the Class X-1
Certificates and one of the 52 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-1A-2 Uncertificated Interest as of any date of determination.
"Component XA-1A-3": One of the 58 components of the Class X-1
Certificates and one of the 52 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-1A-3 Uncertificated Interest as of any date of determination.
"Component XA-1A-4": One of the 58 components of the Class X-1
Certificates and one of the 52 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-1A-4 Uncertificated Interest as of any date of determination.
"Component XA-1A-5": One of the 58 components of the Class X-1
Certificates and one of the 52 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-1A-5 Uncertificated Interest as of any date of determination.
"Component XA-1A-6": One of the 58 components of the Class X-1
Certificates and one of the 52 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-1A-6 Uncertificated Interest as of any date of determination.
"Component XA-1A-7": One of the 58 components of the Class X-1
Certificates and one of the 52 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-1A-7 Uncertificated Interest as of any date of determination.
"Component XA-1A-8": One of the 58 components of the Class X-1
Certificates and one of the 52 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-1A-8 Uncertificated Interest as of any date of determination.
"Component XA-1A-9": One of the 58 components of the Class X-1
Certificates and one of the 52 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-1A-9 Uncertificated Interest as of any date of determination.
"Component XA-1A-10": One of the 58 components of the Class X-1
Certificates and one of the 52 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-1A-10 Uncertificated Interest as of any date of determination.
"Component XA-1A-11": One of the 58 components of the Class X-1
Certificates and one of the 52 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-1A-11 Uncertificated Interest as of any date of determination.
"Component XA-1A-12": One of the 58 components of the Class X-1
Certificates and one of the 52 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-1A-12 Uncertificated Interest as of any date of determination.
"Component XA-1A-13": One of the 58 components of the Class X-1
Certificates and one of the 52 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-1A-13 Uncertificated Interest as of any date of determination.
"Component XA-1A-14": One of the 58 components of the Class X-1
Certificates and one of the 52 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-1A-14 Uncertificated Interest as of any date of determination.
"Component XA-1A-15": One of the 58 components of the Class X-1
Certificates and one of the 52 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-1A-15 Uncertificated Interest as of any date of determination.
"Component XA-2-1": One of the 58 components of the Class X-1
Certificates and one of the 52 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-2-1 Uncertificated Interest as of any date of determination.
"Component XA-2-2": One of the 58 components of the Class X-1
Certificates and one of the 52 components of the Class X-2 Certificates having a
Component Notional Amount equal to the current Lower-Tier Principal Amount of
the Class LA-2-2 Uncertificated Interest as of any date of determination.
"Component XA-3-1": One of the 58 components of the Class X-1
Certificates and one of the 52 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-3-1 Uncertificated Interest as of any date of determination.
"Component XA-3-2": One of the 58 components of the Class X-1
Certificates and one of the 52 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-3-2 Uncertificated Interest as of any date of determination.
"Component XA-3-3": One of the 58 components of the Class X-1
Certificates and one of the 52 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-3-3 Uncertificated Interest as of any date of determination.
"Component XA-3-4": One of the 58 components of the Class X-1
Certificates and one of the 52 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-3-4 Uncertificated Interest as of any date of determination.
"Component XA-3-5": One of the 58 components of the Class X-1
Certificates and one of the 52 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-3-5 Uncertificated Interest as of any date of determination.
"Component XA-3-6": One of the 58 components of the Class X-1
Certificates and one of the 52 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-3-6 Uncertificated Interest as of any date of determination.
"Component XA-4-1": One of the 58 components of the Class X-1
Certificates and one of the 52 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-4-1 Uncertificated Interest as of any date of determination.
"Component XA-4-2": One of the 58 components of the Class X-1
Certificates and one of the 52 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-4-2 Uncertificated Interest as of any date of determination.
"Component XA-4-3": One of the 58 components of the Class X-1
Certificates and one of the 52 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-4-3 Uncertificated Interest as of any date of determination.
"Component XA-4-4": One of the 58 components of the Class X-1
Certificates and one of the 52 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-4-4 Uncertificated Interest as of any date of determination.
"Component XA-5-1": One of the 58 components of the Class X-1
Certificates and one of the 52 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-5-1 Uncertificated Interest as of any date of determination.
"Component XA-5-2": One of the 58 components of the Class X-1
Certificates and one of the 52 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-5-2 Uncertificated Interest as of any date of determination.
"Component XA-5-3": One of the 58 components of the Class X-1
Certificates and one of the 52 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-5-3 Uncertificated Interest as of any date of determination.
"Component XA-J": One of the 58 components of the Class X-1
Certificates and one of the 52 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-J Uncertificated Interest as of any date of determination.
"Component XB": One of the 58 components of the Class X-1
Certificates and one of the 52 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LB Uncertificated Interest as of any date of determination.
"Component XC": One of the 58 components of the Class X-1
Certificates and one of the 52 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LC Uncertificated Interest as of any date of determination.
"Component XD": One of the 58 components of the Class X-1
Certificates and one of the 52 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LD Uncertificated Interest as of any date of determination.
"Component XE": One of the 58 components of the Class X-1
Certificates and one of the 52 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LE Uncertificated Interest as of any date of determination.
"Component XF-1": One of the 58 components of the Class X-1
Certificates and one of the 52 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LF-1 Uncertificated Interest as of any date of determination.
"Component XF-2": One of the 58 components of the Class X-1
Certificates and one of the 52 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LF-2 Uncertificated Interest as of any date of determination.
"Component XG-1": One of the 58 components of the Class X-1
Certificates and one of the 52 components of the Class X-2 Certificates having a
Component Notional Amount equal to the current Lower-Tier Principal Amount of
the Class LG-1 Uncertificated Interest as of any date of determination.
"Component XG-2": One of the 58 components of the Class X-1
Certificates and one of the 52 components of the Class X-2 Certificates having a
Component Notional Amount equal to the current Lower-Tier Principal Amount of
the Class LG-2 Uncertificated Interest as of any date of determination.
"Component XG-3": One of the 58 components of the Class X-1
Certificates and one of the 52 components of the Class X-2 Certificates having a
Component Notional Amount equal to the current Lower-Tier Principal Amount of
the Class LG-3 Uncertificated Interest as of any date of determination.
"Component XG-4": One of the 58 components of the Class X-1
Certificates and one of the 52 components of the Class X-2 Certificates having a
Component Notional Amount equal to the current Lower-Tier Principal Amount of
the Class LG-4 Uncertificated Interest as of any date of determination.
"Component XH-1": One of the 58 components of the Class X-1
Certificates and one of the 52 components of the Class X-2 Certificates having a
Component Notional Amount equal to the current Lower-Tier Principal Amount of
the Class LH-1 Uncertificated Interest as of any date of determination.
"Component XH-2": One of the 58 components of the Class X-1
Certificates and one of the 52 components of the Class X-2 Certificates having a
Component Notional Amount equal to the current Lower-Tier Principal Amount of
the Class LH-2 Uncertificated Interest as of any date of determination.
"Component XJ-1": One of the 58 components of the Class X-1
Certificates and one of the 52 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LJ-1 Uncertificated Interest as of any date of determination.
"Component XJ-2": One of the 58 components of the Class X-1
Certificates and one of the 52 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LJ-2 Uncertificated Interest as of any date of determination.
"Component XJ-3": One of the 58 components of the Class X-1
Certificates and one of the 52 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LJ-3 Uncertificated Interest as of any date of determination.
"Component XK": One of the 58 components of the Class X-1
Certificates and one of the 52 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LK Uncertificated Interest as of any date of determination.
"Component XL-1": One of the 58 components of the Class X-1
Certificates and one of the 52 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LL-1 Uncertificated Interest as of any date of determination.
"Component XL-2": One of the 58 components of the Class X-1
Certificates and one of the 52 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LL-2 Uncertificated Interest as of any date of determination.
"Component XM": One of the 58 components of the Class X-1
Certificates and one of the 52 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LM Uncertificated Interest as of any date of determination.
"Component XN": One of the 58 components of the Class X-1
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LN Uncertificated Interest as of any
date of determination.
"Component XNR": One of the 58 components of the Class X-1
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LNR Uncertificated Interest as of any
date of determination.
"Component XP": One of the 58 components of the Class X-1
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LP Uncertificated Interest as of any
date of determination.
"Component XQ": One of the 58 components of the Class X-1
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LQ Uncertificated Interest as of any
date of determination.
"Controlling Class": As of any date of determination, the most
subordinate Class of Regular Certificates (other than the Class X Certificates)
then outstanding that has a then aggregate Certificate Balance at least equal to
25% of the initial Certificate Balance of such Class of Certificates. As of the
Closing Date, the Controlling Class will be the Class NR Certificates.
"Controlling Class Certificateholder's Option Period": As defined in
Section 3.18(a)(ii).
"Controlling Class Certificateholders": Each Holder (or Certificate
Owner, if applicable) of a Certificate of the Controlling Class as certified by
the Certificate Registrar to the Trustee from time to time by such Holder (or
Certificate Owner).
"Controlling Class Option Holder": As defined in Section 3.18(a)(i).
"Corporate Trust Office": The 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 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx
00000, Attention: Corporate Trust Services (CMBS), X.X. Xxxxxx Xxxxx Commercial
Mortgage Securities Corp., Series 2004-C3 (telecopy number (000) 000-0000).
"Corrected Mortgage Loan": Any Specially Serviced Mortgage Loan that
has become current and remained current for three consecutive Monthly Payments
(for such purposes taking into account any modification or amendment of such
Mortgage Loan or Companion Loan, whether by a consensual modification or in
connection with a bankruptcy, insolvency or similar proceeding involving the
Mortgagor), and (provided that no additional default is foreseeable in the
reasonable judgment of the Special Servicer and no other event or circumstance
exists that causes such Mortgage Loan or Companion Loan to otherwise constitute
a Specially Serviced Mortgage Loan) the servicing of which the Special Servicer
has returned to the Master Servicer pursuant to Section 3.21(a).
"Crossed Group": With respect to any Mortgage Loan, such Mortgage
Loan and all other Mortgage Loans that are cross-collateralized and
cross-defaulted with such Mortgage Loan.
"Crossed Loan": A Mortgage Loan that is cross-collateralized and
cross-defaulted with one or more other Mortgage Loans.
"Crossed Loan Repurchase Criteria": (i) The weighted average Debt
Service Coverage Ratio for all remaining related Crossed Loans for the four
calendar quarters immediately preceding the repurchase or substitution shall not
be less than the greater of (a) the Debt Service Coverage Ratio for all such
related Crossed Loans, including the affected Crossed Loan, for the four
calendar quarters immediately preceding the repurchase or substitution, and (b)
1.25x, (ii) the weighted average LTV Ratio for all remaining related Crossed
Loans determined at the time of repurchase or substitution based upon an
Appraisal obtained by the Special Servicer at the expense of the related
Mortgage Loan Seller shall not be greater than the lesser of (a) the weighted
average LTV Ratio for all such related Crossed Loans, including the affected
Crossed Loan, determined at the time of repurchase or substitution based upon an
Appraisal obtained by the Special Servicer at the expense of the related
Mortgage Loan Seller and (b) 75%, (iii) the Mortgage Loan Seller, at its
expense, shall have furnished the Trustee with an Opinion of Counsel that any
modification relating to the repurchase or substitution of a Crossed Loan shall
not cause an Adverse REMIC Event, (iv) the related Mortgage Loan Seller either
(A) causes the related Crossed Loans to become not cross-collateralized and
cross-defaulted with each other prior to such repurchase or substitution or (B)
otherwise forbears from exercising enforcement rights against any Crossed Loan
remaining in the Trust Fund and (v) the Directing Certificateholder shall have
consented to the repurchase of the affected Crossed Loan, which consent shall
not be unreasonably withheld.
"Custodian": A Person who is at any time appointed by the Trustee
pursuant to Section 8.11 as a document custodian for the Mortgage Files, which
Person shall not be the Depositor, any of the Mortgage Loan Sellers or an
Affiliate of any of them. The Trustee shall be the initial Custodian.
"Cut-off Date": With respect to each Mortgage Loan, the related Due
Date of the Mortgage Loan in December 2004, or, with respect to those Mortgage
Loans that have their first Due Date in January 2005, December 1, 2004, or, with
respect to those Mortgage Loans that have their first Due Date in February 2005,
the origination date of such Mortgage Loan.
"Cut-off Date Principal Balance": With respect to any Mortgage Loan
or Companion Loan, the outstanding principal balance of such Mortgage Loan or
Companion Loan, as the case may be, as of the Cut-off Date, after application of
all payments of principal due on or before such date, whether or not received.
"Debt Service Coverage Ratio": With respect to any Mortgage Loan for
any twelve month period covered by an annual operating statement for the related
Mortgaged Property, the ratio of (i) Net Operating Income produced by the
related Mortgaged Property during such period to (ii) the aggregate amount of
Monthly Payments (other than any Balloon Payment) due under such Mortgage Loan
during such period, provided that with respect to the Mortgage Loans indicated
on Schedule 2, which pay interest only for a specified period of time set forth
in the related Mortgage Loan documents and then pay principal and interest, the
related Monthly Payment will be calculated (for purposes of this definition
only) to include interest and principal (based on the remaining amortization
term indicated in the Mortgage Loan Schedule).
"Default Interest": With respect to any Mortgage Loan, all interest
accrued in respect of such Mortgage Loan during such Due Period provided for in
the related Mortgage Note or Mortgage as a result of a default (exclusive of
late payment charges) that is in excess of interest at the related Mortgage Rate
accrued on the unpaid principal balance of such Mortgage Loan outstanding from
time to time.
"Defaulted Mortgage Loan": A Mortgage Loan (i) that is delinquent at
least sixty days in respect of its Monthly Payments or more than thirty days (or
sixty days with respect to the circumstances described in clause (ii) of the
definition of Servicing Transfer Event) delinquent in respect of its Balloon
Payment, if any, in either case 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 (ii) as to which the Master Servicer or Special Servicer
has, by written notice to the related Mortgagor, accelerated the maturity of the
indebtedness evidenced by the related Mortgage Note. For the avoidance of doubt,
a defaulted Companion Loan does not constitute a "Defaulted Mortgage Loan".
"Defaulting Party": As defined in Section 7.01(b).
"Defeasance Accounts": As defined in Section 3.20(k).
"Defect": As defined in Section 2.02(f).
"Deficient Valuation": With respect to any Mortgage Loan, a
valuation by a court of competent jurisdiction of the Mortgaged Property in an
amount less than the then outstanding principal balance of the Mortgage Loan,
which valuation results from a proceeding initiated under the Bankruptcy Code.
"Definitive Certificate": Any Certificate in definitive, fully
registered form without interest coupons.
"Denomination": As defined in Section 5.01(a).
"Depositor": X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
a Delaware corporation, or its successor in interest.
"Depository": The Depository Trust Company, or any successor
Depository hereafter named. The nominee of the initial Depository for purposes
of registering those Certificates that are to be Book-Entry Certificates, is
Cede & Co. The Depository shall at all times be a "clearing corporation" as
defined in Section 8-102(3) of the Uniform Commercial Code of the State of New
York and a "clearing agency" registered pursuant to the provisions of Section
17A of the Exchange Act.
"Depository Participant": A broker, dealer, bank or other financial
institution or other Person for whom from time to time the Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
"Depository Rules": As defined in Section 5.02(b).
"Determination Date": With respect to any Distribution Date, the
fourth Business Day preceding such Distribution Date.
"Determination Information": As defined in Section 3.18(a)(i).
"Directing Certificateholder": The Controlling Class
Certificateholder (or a representative thereof) selected by more than 50% of the
Controlling Class Certificateholders, by Certificate Balance, as certified by
the Certificate Registrar from time to time; provided, however, that (i) absent
such selection, or (ii) until a Directing Certificateholder is so selected or
(iii) upon receipt of a notice from a majority of the Controlling Class
Certificateholders, by Certificate Balance, that a Directing Certificateholder
is no longer designated, the Controlling Class Certificateholder that owns the
largest aggregate Certificate Balance of the Controlling Class will be the
Directing Certificateholder which will initially be JER Investors Trust Inc.
"Directly Operate": With respect to any REO Property, the furnishing
or rendering of services to the tenants thereof, that are not customarily
provided to tenants in connection with the rental of space "for occupancy only"
within the meaning of Treasury Regulations Section 1.512(b)-1(c)(5), the
management or operation of such REO Property, the holding of such REO Property
primarily for sale to customers, the use of such REO Property in a trade or
business conducted by the Trust Fund or on behalf of a Companion Holder or the
performance of any construction work on the REO Property (other than the
completion of a building or improvement, where more than 10% of the construction
of such building or improvement was completed before default became imminent),
other than through an Independent Contractor; provided, however, that an REO
Property shall not be considered to be Directly Operated solely because the
Trustee (or the Special Servicer on behalf of the Trustee) establishes rental
terms, chooses tenants, enters into or renews leases, deals with taxes and
insurance or makes decisions as to repairs or capital expenditures with respect
to such REO Property or takes other actions consistent with Treasury Regulations
Section 1.856-4(b)(5)(ii).
"Disqualified Organization": Any of (i) the United States, any State
or political subdivision thereof, any possession of the United States 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 a
majority of its board of directors is not selected by such governmental unit),
(ii) a foreign government, any 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 (including the tax imposed
by Section 511 of the Code on unrelated business taxable income), (iv) rural
electric and telephone cooperatives described in Section 1381(a)(2)(C) of the
Code and (v) any other Person so designated by the Trustee based upon an Opinion
of Counsel as provided to the Trustee (at no expense to the Trustee) that the
holding of an Ownership Interest in a Residual Certificate by such Person may
cause the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC
or any Person having an Ownership Interest in any Class of Certificates (other
than such Person) to incur a liability for any federal tax imposed under the
Code that would not otherwise be imposed but for the Transfer of an Ownership
Interest in a Residual Certificate to such Person. The terms "United States,"
"State" and "international organization" shall have the meanings set forth in
Section 7701 of the Code or successor provisions.
"Distributable Certificate Interest": With respect to any
Distribution Date, as to any Class of Regular Certificates, the Accrued
Certificate Interest in respect of such Class of Regular Certificates for such
Distribution Date, reduced (to not less than zero) by any allocations to such
Class of Certificates (other than in the case of the Class X Certificates) of
(i) the product of (a) any Net Aggregate Prepayment Interest Shortfall for such
Distribution Date, multiplied by (b) a fraction, expressed as a decimal, the
numerator of which is the Accrued Certificate Interest in respect of such Class
of Certificates for such Distribution Date, and the denominator of which is the
aggregate Accrued Certificate Interest in respect of all the Classes of Regular
Certificates (other than the Class X Certificates) for such Distribution Date,
and (ii) any Certificate Deferred Interest for such Distribution Date allocated
to such Class pursuant to Section 4.06(a).
"Distribution Accounts": Collectively, the Upper-Tier Distribution
Account, the Lower-Tier Distribution Account and the Excess Interest
Distribution Account, all of which may be subaccounts of a single Eligible
Account.
"Distribution Date": The 15th day of each month, or, if such 15th
day is not a Business Day, on the next succeeding Business Day, beginning in
January 2005.
"DTC": As defined in Section 5.03(d).
"Due Date": With respect to (i) any Mortgage Loan or Companion Loan,
on or prior to its Maturity Date, the day of the month set forth in the related
Mortgage Note on which each Monthly Payment thereon is scheduled to be first
due, (ii) any Mortgage Loan or Companion Loan after the Maturity Date therefor,
the day of the month set forth in the related Mortgage Note on which each
Monthly Payment on such Mortgage Loan or Companion Loan had been scheduled to be
first due, and (iii) any REO Loan, the day of the month set forth in the related
Mortgage Note on which each Monthly Payment on the related Mortgage Loan or
Companion Loan had been scheduled to be first due.
"Due Period": With respect to any Distribution Date and any Mortgage
Loan, the period commencing on the day immediately succeeding the Due Date for
such Mortgage Loan occurring in the month preceding the month in which such
Distribution Date occurs and ending on and including the Due Date for such
Mortgage Loan occurring in the month in which such Distribution Date occurs;
provided, that the first Due Period with respect to Mortgage Loans with their
first Due Date in 2005 shall begin on the Cut-off Date of such Mortgage Loan.
Notwithstanding the foregoing, in the event that the last day of a Due Period
(or applicable grace period) is not a Business Day, any payments received with
respect to the Mortgage Loans relating to such Due Period on the Business Day
immediately following such day shall be deemed to have been received during such
Due Period and not during any other Due Period.
"Eligible Account": Either (i) a segregated account or accounts
maintained with a federal or state chartered depository institution or trust
company (including the Trustee), (A) "the long-term unsecured debt obligations
of which are rated at least "Aa3" by Moody's, if the deposits are to be held in
such account for 30 days or more and the short-term debt obligations of which
have a short-term rating of not less than "P-1" from Moody's, if the deposits
are to be held in such account for less than 30 days, (B) the long-term
unsecured debt obligations of which are rated at least "AA-" by Fitch, if the
deposits are to be held in such account for 30 days or more and the short-term
debt obligations of which have a short-term rating of not less than "F-1" from
Fitch, if the deposits are to be held in such account for less than 30 days, (C)
an account or accounts maintained with PNC Bank, National Association so long as
PNC Bank's long term unsecured debt rating shall be at least "A" from Fitch (if
the deposits are to be held in the account for more than 30 days) or PNC Bank's
short term deposit or short term unsecured debt rating shall be at least "F-1"
from Fitch (if the deposits are to be held in the account for 30 days or less)
and (D) such other account or accounts with respect to which each of the Rating
Agencies shall have confirmed in writing that the then current rating assigned
to any of the Certificates will not be qualified, downgraded or withdrawn by
reason thereof, or (ii) a segregated trust account or accounts maintained with
the corporate trust department of a federal or state chartered depository
institution or trust company that, in either case, has corporate trust powers,
acting in its fiduciary capacity, provided that any state chartered depository
institution or trust company is subject to regulation regarding fiduciary funds
substantially similar to 12 C.F.R. ss. 9.10(b). Eligible Accounts may bear
interest. No Eligible Account shall be evidenced by a certificate of deposit,
passbook or other similar instrument.
"Eligible Investor": Either (i) a Qualified Institutional Buyer that
is purchasing for its own account or for the account of a Qualified
Institutional Buyer to whom notice is given that the offer, sale or transfer is
being made in reliance on Rule 144A or (ii) an Institutional Accredited
Investor.
"Environmental Assessment": A "Phase I assessment" as described in,
and meeting the criteria of, the American Society of Testing Materials Standard
Sections 1527-99 or any successor thereto published by the American Society of
Testing Materials.
"Environmental Indemnity Agreement": With respect to any Mortgage
Loan, any agreement between the Mortgagor (or a guarantor thereof) and the
originator of such Mortgage Loan relating to the Mortgagor's obligation to
remediate or monitor or indemnify for any environmental problems relating to the
related Mortgaged Property.
"ERISA": The Employee Retirement Income Security Act of 1974, as
amended.
"ERISA Prohibited Holder": As defined in Section 5.02(c)(i)(A).
"ERISA Restricted Certificate": Any Class K, Class L, Class M, Class
N, Class P, Class Q or Class NR Certificate; provided that any such Certificate:
(a) will cease to be considered an ERISA Restricted Certificate and (b) will
cease to be subject to the transfer restrictions contained in Section 5.02(c)
if, as of the date of a proposed transfer of such Certificate, either (i) it is
rated in one of the four highest generic ratings categories by a Rating Agency
or (ii) relevant provisions of ERISA would permit the transfer of such
Certificate to a Plan.
"Escrow Payment": Any payment received by the Master Servicer or the
Special Servicer for the account of any Mortgagor for application toward the
payment of real estate taxes, assessments, insurance premiums, ground lease
rents and similar items in respect of the related Mortgaged Property, including
amounts for deposit to any reserve account.
"Euroclear": Euroclear Bank societe anonyme or any successor
thereto.
"Event of Default": One or more of the events described in Section
7.01(a).
"Excess Interest": With respect to each of the Mortgage Loans
indicated on the Mortgage Loan Schedule as having a Revised Rate, interest
accrued on such Mortgage Loan after the Anticipated Repayment Date allocable to
the Excess Rate, including all interest accrued thereon. The Excess Interest
shall not be an asset of either the Lower-Tier REMIC or the Upper-Tier REMIC
formed hereunder.
"Excess Interest Distribution Account": The trust account or
accounts created and maintained as a separate account or accounts (or as a
subaccount of the Distribution Account) by the Paying Agent pursuant to Section
3.04(c), which shall be entitled "JPMorgan Chase Bank, National Association, as
Paying Agent, in trust for the registered Holders of X.X. Xxxxxx Xxxxx
Commercial Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2004-C3, Excess Interest Distribution Account," and which
must be an Eligible Account (or a subaccount of an Eligible Account). The Excess
Interest Distribution Account shall not be an asset of either the Lower-Tier
REMIC or the Upper-Tier REMIC formed hereunder.
"Excess Rate": With respect to each of the Mortgage Loans indicated
on the Mortgage Loan Schedule as having a Revised Rate, the excess of (i) the
applicable Revised Rate over (ii) the applicable Mortgage Rate, each as set
forth in the Mortgage Loan Schedule.
"Exchange Act": The Securities Exchange Act of 1934, as amended from
time to time.
"Xxxxxx Mae": Federal National Mortgage Association or any successor
thereto.
"FDIC": Federal Deposit Insurance Corporation or any successor
thereto.
"Final Recovery Determination": A reasonable determination by the
Special Servicer, in consultation with the Directing Certificateholder, with
respect to any Defaulted Mortgage Loan or Corrected Mortgage Loan or REO
Property (other than a Mortgage Loan or REO Property, as the case may be, that
was purchased by any of the Mortgage Loan Sellers pursuant to Section 6 of the
applicable Mortgage Loan Purchase Agreement, the Controlling Class Option
Holder, the applicable Companion Holder or the Special Servicer pursuant to
Section 3.18(b), any mezzanine lender pursuant to Section 3.18(e) or the Master
Servicer, Special Servicer, the Holders of the Controlling Class, or the Holders
of the Class LR Certificates pursuant to Section 9.01) that there has been a
recovery of all Insurance and Condemnation Proceeds, Liquidation Proceeds, REO
Revenue and other payments or recoveries that, in the Special Servicer's
judgment, which judgment was exercised without regard to any obligation of the
Special Servicer to make payments from its own funds pursuant to Section
3.07(b), will ultimately be recoverable.
"FIRREA": The Financial Institutions Reform, Recovery, and
Enforcement Act of 1989, as it may be amended from time to time.
"Fitch": Fitch, Inc., and its successors in interest. If neither
Fitch nor any successor remains in existence, "Fitch" shall be deemed to refer
to such other nationally recognized statistical rating agency or other
comparable Person designated by the Depositor, notice of which designation shall
be given to the Trustee, the Paying Agent, the Master Servicer and the Special
Servicer, and specific ratings of Fitch herein referenced shall be deemed to
refer to the equivalent ratings of the party so designated.
"Xxxxxxx Mac": Federal Home Loan Mortgage Corporation or any
successor thereto.
"Gain-on-Sale Proceeds": With respect to any Mortgage Loan the
excess of (i) Liquidation Proceeds of the Mortgage Loan or related REO Property
net of any related Liquidation Expenses, unreimbursed Advances, Liquidation
Fees, unreimbursed interest on Advances, unpaid Servicing Fees, and unpaid
Special Servicing Fees and additional Trust Fund expenses over (ii) the Purchase
Price for such Mortgage Loan on the date on which such Liquidation Proceeds were
received.
"Gain-on-Sale Reserve Account": A segregated custodial account or
accounts created and maintained by the Paying Agent, pursuant to Section 3.04(d)
on behalf of the Trustee in trust for the Certificateholders, which shall be
entitled "JPMorgan Chase Bank, National Association, as Paying Agent, in trust
for the registered Holders of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities
Corp., Commercial Mortgage Pass-Through Certificates, Series 2004-C3,
Gain-on-Sale Reserve Account." Any such account shall be an Eligible Account or
a subaccount of an Eligible Account.
"Grantor Trust": A segregated asset pool within the Trust Fund
consisting of the Excess Interest and amounts held from time to time in the
Excess Interest Distribution Account, beneficial ownership of which is
represented by the Class S Certificates.
"Ground Lease": The ground lease pursuant to which any Mortgagor
holds a leasehold interest in the related Mortgaged Property and any estoppels
or other agreements executed and delivered by the ground lessor in favor of the
lender under the Mortgage Loan.
"Group 1 Mortgage Loan" shall mean any Mortgage Loan identified on
the Mortgage Loan Schedule as belonging to Loan Group 1.
"Group 2 Mortgage Loan" shall mean any Mortgage Loan identified on
the Mortgage Loan Schedule as belonging to Loan Group 2.
"Hazardous Materials": Any dangerous, toxic or hazardous pollutants,
chemicals, wastes or substances, including, without limitation, those so
identified pursuant to CERCLA or any other federal, state or local environmental
related laws and regulations, and specifically including, without limitation,
asbestos and asbestos-containing materials, polychlorinated biphenyls, 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": When used with respect to any specified Person, any
such Person who (i) is in fact independent of the Trustee, the Paying Agent, the
Depositor, the Master Servicer, the Special Servicer, the Directing
Certificateholder, the 000 Xxxx Xxxxxx Xxxxx X Note Representative, and all
Affiliates thereof, (ii) does not have any material direct financial interest in
or any material indirect financial interest in any of the Trustee, the Paying
Agent, the Depositor, the Master Servicer, the Special Servicer, the Directing
Certificateholder, the 000 Xxxx Xxxxxx Xxxxx X Note Representative or any
Affiliate thereof and (iii) is not connected with the Trustee, the Paying Agent,
the Depositor, the Master Servicer, the Special Servicer, the Directing
Certificateholder, the 000 Xxxx Xxxxxx Xxxxx X Note 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 Trustee, the Paying Agent,
the Depositor, the Master Servicer, the Special Servicer, the Directing
Certificateholder or any Affiliate thereof merely because such Person is the
beneficial owner of 1% or less of any Class of securities issued by the Trustee,
the Paying Agent, the Depositor, the Master Servicer, the Special Servicer, the
Directing Certificateholder, the 000 Xxxx Xxxxxx Xxxxx X Note Representative or
any Affiliate thereof, as the case may be, provided ownership constitutes less
than 1% of the total assets of such person.
"Independent Contractor": Either (i) any Person that would be an
"independent contractor" with respect to the Trust within the meaning of Section
856(d)(3) of the Code if the Trust 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, the
Paying Agent, the Master Servicer, any Companion Holder or the Trust, delivered
to the Trustee, the Paying Agent, any Companion Holder and the Master Servicer),
so long as the Trust does not receive or derive any income from such Person and
provided that the relationship between such Person and the Trust is at arm's
length, all within the meaning of Treasury Regulations Section 1.856-4(b)(5)
(except that the Master Servicer or the Special Servicer shall not be considered
to be an Independent Contractor under the definition in this clause (i) unless
an Opinion of Counsel has been delivered to the Trustee (and, with respect to
the 000 Xxxx Xxxxxx Xxxxx Whole Loan, to the 000 Xxxx Xxxxxx Xxxxx X Note
Representative) to that effect) or (ii) any other Person (including the Master
Servicer and the Special Servicer) upon receipt by the Trustee, the Paying Agent
and the Master Servicer of an Opinion of Counsel, which shall be at no expense
to the Trustee, the Paying Agent, the Master Servicer or the Trust Fund, to the
effect that the taking of any action in respect of any REO Property by such
Person, subject to any conditions therein specified, that is otherwise herein
contemplated to be taken by an Independent Contractor will not cause such REO
Property to cease to qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code or cause any income realized in respect of such
REO Property to fail to qualify as Rents from Real Property.
"Initial Purchasers": X.X. Xxxxxx Securities Inc. and Nomura
Securities International, Inc.
"Initial Sub-Servicer": With respect to each Mortgage Loan that is
subject to a Sub-Servicing Agreement with the Master Servicer as of the Closing
Date, the Sub-Servicer under any such Sub-Servicing Agreement.
"Initial Sub-Servicing Agreement": Any Sub-Servicing Agreement in
effect as of the Closing Date.
"Institutional Accredited Investor": An entity meeting the
requirements of Rule 501(a)(1), (2), (3) or (7) of Regulation D promulgated
under the Act.
"Insurance and Condemnation Proceeds": All proceeds paid under any
Insurance Policy or in connection with the full or partial condemnation of a
Mortgaged Property, in either case, to the extent such proceeds are not applied
to the restoration of the related Mortgaged Property or released to the
Mortgagor or any tenants or ground lessors, in either case, in accordance with
the Servicing Standards.
"Insurance Policy": With respect to any Mortgage Loan, any hazard
insurance policy, flood insurance policy, title policy or other insurance policy
that is maintained from time to time in respect of such Mortgage Loan or the
related Mortgaged Property.
"Intercreditor Agreements": Each of the 000 Xxxx Xxxxxx Xxxxx
Intercreditor Agreement and the Moorings at Mesa Cove Apartments Intercreditor
Agreement.
"Interest Accrual Period": With respect to any Class of Regular
Certificates or Uncertificated Lower-Tier Interests and any Distribution Date,
the period beginning on the first day of the calendar month preceding the
calendar month in which the related Distribution Date occurs and ending on the
last day of the calendar month preceding the calendar month in which such
Distribution Date occurs, calculated assuming that each month has 30 days and
each year has 360 days.
"Interest Distribution Amount": With respect to any Class of Regular
Certificates for any Distribution Date, an amount equal to the sum of the
Distributable Certificate Interest and the Class Unpaid Interest Shortfall with
respect to such Class of Regular Certificates for such Distribution Date and any
Accrued Interest From Recoveries for such Class, to the extent not previously
paid for all prior Distribution Dates.
"Interest Reserve Account": The trust account or subaccount of the
Distribution Account created and maintained by the Paying Agent pursuant to
Section 3.26 in the name of "JPMorgan Chase Bank, National Association, as
Paying Agent, in trust for the registered holders of X.X. Xxxxxx Xxxxx
Commercial Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2004-C3, Interest Reserve Account," into which the amounts
set forth in Section 3.26 shall be deposited directly and which must be an
Eligible Account or subaccount of an Eligible Account.
"Interest Reserve Loan": Each Actual/360 Mortgage Loan.
"Interested Person": The Depositor, the Master Servicer, the Special
Servicer, any Independent Contractor engaged by the Special Servicer, any Holder
of a Certificate, each Companion Holder (but only with respect to the related AB
Mortgage Loan) or any Affiliate of any such Person.
"Investment Account": As defined in Section 3.06(a).
"Investment Representation Letter": As defined in Section 5.02(b).
"Late Collections": With respect to any Mortgage Loan or Companion
Loan, all amounts received thereon prior to the related Determination Date,
whether as payments, Insurance and Condemnation Proceeds, Liquidation Proceeds
or otherwise, which represent late payments or collections of principal or
interest due in respect of such Mortgage Loan or Companion Loan (without regard
to any acceleration of amounts due thereunder by reason of default) on a Due
Date prior to the immediately preceding Determination Date and not previously
recovered. With respect to any REO Loan, all amounts received in connection with
the related REO Property prior to the related Determination Date, whether as
Insurance and Condemnation Proceeds, Liquidation Proceeds, REO Revenues or
otherwise, which represent late collections of principal or interest due or
deemed due in respect of such REO Loan or the predecessor Mortgage Loan or
Companion Loan (without regard to any acceleration of amounts due under the
predecessor Mortgage Loan or Companion Loan by reason of default) on a Due Date
prior to the immediately preceding Determination Date and not previously
recovered. The term "Late Collections" shall specifically exclude Penalty
Charges.
"Liquidation Event": With respect to any Mortgage Loan, any of the
following events: (i) such Mortgage Loan is paid in full; (ii) a Final Recovery
Determination is made with respect to such Mortgage Loan; (iii) such Mortgage
Loan is repurchased by the applicable Mortgage Loan Seller pursuant to Section 6
of the related Mortgage Loan Purchase Agreement; (iv) such Mortgage Loan is
purchased by the Controlling Class Option Holder or the Special Servicer
pursuant to Section 3.18(b); (v) such Mortgage Loan is purchased by the Special
Servicer, the Master Servicer, the Holders of the Controlling Class or the
Holders of the Class LR Certificates pursuant to Section 9.01 or acquired by the
Sole Certificateholder in exchange for its Certificates pursuant to Section
9.01; or (vi) such Mortgage Loan is purchased by (a) the applicable Companion
Holder pursuant to or as contemplated by Section 3.18(d) or (b) a mezzanine
lender pursuant to the related mezzanine intercreditor agreement. With respect
to any REO Property (and the related REO Loan), any of the following events: (i)
a Final Recovery Determination is made with respect to such REO Property; (ii)
such REO Property is purchased by the Master Servicer, the Special Servicer, the
Holders of the Controlling Class or the Holders of the Class LR Certificates
pursuant to Section 9.01; or (iii) such REO Property is purchased by (a) the
applicable Companion Holder pursuant to or as contemplated by Section 3.18(d) or
(b) a mezzanine lender pursuant to the related mezzanine intercreditor
agreement.
"Liquidation Expenses": All customary, reasonable and necessary "out
of pocket" costs and expenses incurred by the Special Servicer in connection
with a liquidation of any Specially Serviced Mortgage Loan or REO Property
pursuant to Section 3.18 (including, without limitation, legal fees and
expenses, committee or referee fees and, if applicable, brokerage commissions
and conveyance taxes).
"Liquidation Fee": A fee payable to the Special Servicer with
respect to each Specially Serviced Mortgage Loan or REO Property as to which the
Special Servicer receives a full or discounted payoff (or an unscheduled partial
payment to the extent such prepayment is required by the Special Servicer as a
condition to a work out) with respect thereto from the related Mortgagor or any
Liquidation Proceeds or Insurance and Condemnation Proceeds with respect to the
related Mortgage Loan, or REO Property (in any case, other than amounts for
which a Workout Fee has been paid, or will be payable), equal to the product of
the Liquidation Fee Rate and the proceeds of such full or discounted payoff or
other partial payment or the Liquidation Proceeds or Insurance and Condemnation
Proceeds (net of the related costs and expenses associated with the related
liquidation) related to such liquidated Specially Serviced Mortgage Loan or REO
Property, as the case may be; provided, however, that no Liquidation Fee shall
be payable with respect to any event described in (1) clause (iii)(A) of the
definition of "Liquidation Proceeds," (2) clause (iv) of the definition of
"Liquidation Proceeds" if such repurchase occurs within the time parameters
(including any applicable extension period) set forth in this Agreement and in
the related Mortgage Loan Purchase Agreement or, if such repurchase occurs after
such time period, the Mortgage Loan Seller was acting in good faith to resolve
such breach or defect or (3) clause (v) and clause (vi) of the definition of
"Liquidation Proceeds," (except that a Liquidation Fee will be payable with
respect to any purchase by a mezzanine lender, the holder of the 000 Xxxx Xxxxxx
Xxxxx Companion Loan or the holder of the Moorings at Mesa Cove Apartments
Companion Loan if such purchase does not occur within 60 days following the date
the related Mortgage Loan becomes a Specially Serviced Mortgage Loan).
"Liquidation Fee Rate": A rate equal to 1.00%.
"Liquidation Proceeds": Cash amounts received by or paid to the
Master Servicer or the Special Servicer in connection with: (i) the liquidation
(including a payment in full) of a Mortgaged Property or other collateral
constituting security for a Defaulted Mortgage Loan through a trustee's sale,
foreclosure sale, REO Disposition or otherwise, exclusive of any portion thereof
required to be released to the related Mortgagor in accordance with applicable
law and the terms and conditions of the related Mortgage Note and Mortgage; (ii)
the realization upon any deficiency judgment obtained against a Mortgagor; (iii)
(A) the purchase of a Defaulted Mortgage Loan by the Majority Controlling Class
Certificateholder, the Special Servicer or the Master Servicer or any of their
assignees pursuant to Section 3.18(a) or (B) any other sale thereof pursuant to
Section 3.18(c), Section 3.18(e), Section 3.18(f) or Section 3.18(g); (iv) the
repurchase of a Mortgage Loan by the applicable Mortgage Loan Seller pursuant to
Section 6 of the related Mortgage Loan Purchase Agreement; (v) the purchase of a
Mortgage Loan or REO Property by the Holders of the Controlling Class, the
Special Servicer, the Master Servicer or the Holders of the Class LR
Certificates pursuant to Section 9.01 or; (vi) the purchase of a Mortgage Loan
or an REO Property by (a) the Companion Holder pursuant to Section 3.18(d) or
(b) any other mezzanine lender of the related Mortgage Loan or REO Loan.
"Loan Group": Either Loan Group 1 or Loan Group 2.
"Loan Group 1": Collectively, all of the Mortgage Loans that are
Group 1 Mortgage Loans and any successor REO Loans with respect thereto.
"Loan Group 1 Available Distribution Amount": With respect to any
Distribution Date, that portion, if any, of the Available Distribution Amount
attributable to Loan Group 1.
"Loan Group 1 Principal Distribution Amount": With respect to any
Distribution Date, an amount equal to the sum of (a) the Loan Group 1 Principal
Shortfall for such Distribution Date, (b) that portion, if any, of the Scheduled
Principal Distribution Amount for such Distribution Date attributable to Loan
Group 1 and (c) that portion, if any, of the Unscheduled Principal Distribution
Amount for such Distribution Date attributable to Loan Group 1; provided, that
the Loan Group 1 Principal Distribution Amount for any Distribution Date shall
be reduced by the amount of any reimbursements of (i) Nonrecoverable Advances
plus interest on such Nonrecoverable Advances that are paid or reimbursed from
principal collections on the Group 1 Mortgage Loans in a period during which
such principal collections would have otherwise been included in the Loan Group
1 Principal Distribution Amount for such Distribution Date, (ii) Workout-Delayed
Reimbursement Amounts that were paid or reimbursed from principal collections on
the Group 1 Mortgage Loans in a period during which such principal collections
would have otherwise been included in the Loan Group 1 Principal Distribution
Amount for such Distribution Date and (iii) following the reimbursements
provided for in clauses (i) and (ii) above, the excess, if any of (A) the total
amount of Nonrecoverable Advances and Workout-Delayed Reimbursement Amounts,
plus interest on such Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts, that would have been paid or reimbursed from principal collections on
the Group 2 Mortgage Loans as provided for in clauses (i) and (ii) of the
definition of "Loan Group 2 Principal Distribution Amount" had the Loan Group 2
Principal Distribution Amount been sufficient to make such reimbursements in
full, over (B) the Loan Group 2 Principal Distribution Amount (prior to giving
effect to clauses (i), (ii) and (iii) of the definition of "Loan Group 2
Principal Distribution Amount") for that Distribution Date (provided, further,
that, with respect to the amounts identified in clauses (i), (ii) and (iii)
above, if any of such amounts reimbursed from principal collections on the Group
1 Mortgage Loans are subsequently recovered on the related Mortgage Loan, such
recovery will be applied to increase the Loan Group 1 Principal Distribution
Amount for the Distribution Date related to the period in which such recovery
occurs.
"Loan Group 1 Principal Shortfall": With respect to any Distribution
Date, the amount, if any, by which (1) the lesser of (a) the Loan Group 1
Principal Distribution Amount for the prior Distribution Date and (b) the
Certificate Balance of the Class A-1, Class A-2, Class A-3, Class A-4 and Class
A-5 Certificates, exceeds (2) the aggregate amount distributed in respect of
principal on the Class X-0, Xxxxx X-0, Class A-3, Class A-4 and Class A-5
Certificates on the prior Distribution Date. There will be no Loan Group 1
Principal Shortfall on the first Distribution Date.
"Loan Group 2": Collectively, all of the Mortgage Loans that are
Group 2 Mortgage Loans and any successor REO Loans with respect thereto.
"Loan Group 2 Available Distribution Amount": With respect to any
Distribution Date, that portion, if any, of the Available Distribution Amount
attributable to Loan Group 2.
"Loan Group 2 Principal Distribution Amount": With respect to any
Distribution Date, an amount equal to the sum of (a) the Loan Group 2 Principal
Shortfall for such Distribution Date, (b) that portion, if any, of the Scheduled
Principal Distribution Amount for such Distribution Date attributable to Loan
Group 2 and (c) that portion, if any, of the Unscheduled Principal Distribution
Amount for such Distribution Date attributable to Loan Group 2; provided, that
the Loan Group 2 Principal Distribution Amount for any Distribution Date shall
be reduced by the amount of any reimbursements of (i) Nonrecoverable Advances
plus interest on such Nonrecoverable Advances that are paid or reimbursed from
principal collections on the Group 2 Mortgage Loans in a period during which
such principal collections would have otherwise been included in the Loan Group
2 Principal Distribution Amount for such Distribution Date, (ii) Workout-Delayed
Reimbursement Amounts that were paid or reimbursed from principal collections on
the Group 2 Mortgage Loans in a period during which such principal collections
would have otherwise been included in the Loan Group 2 Principal Distribution
Amount for such Distribution Date and (iii) following the reimbursements
provided for in clauses (i) and (ii) above, the excess, if any of (A) the total
amount of Nonrecoverable Advances and Workout-Delayed Reimbursement Amounts,
plus interest on such Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts, that would have been paid or reimbursed from principal collections on
the Group 1 Mortgage Loans as provided for in clauses (i) and (ii) of the
definition of "Loan Group 1 Principal Distribution Amount" had the Loan Group 1
Principal Distribution Amount been sufficient to make such reimbursements in
full, over (B) the Loan Group 1 Principal Distribution Amount (prior to giving
effect to clauses (i), (ii) and (iii) of the definition of "Loan Group 1
Principal Distribution Amount") for that Distribution Date provided, further,
that, with respect to the amounts identified in clauses (i), (ii) and (iii)
above, if any of such amounts reimbursed from principal collections on the Group
2 Mortgage Loans are subsequently recovered on the related Mortgage Loan, such
recovery will be applied to increase the Loan Group 2 Principal Distribution
Amount for the Distribution Date related to the period in which such recovery
occurs.
"Loan Group 2 Principal Shortfall": With respect to any Distribution
Date, the amount, if any, by which (1) the lesser of (a) the Loan Group 2
Principal Distribution Amount for the prior Distribution Date and (b) the
Certificate Balance of the Class A-1A Certificates, exceeds (2) the aggregate
amount distributed in respect of principal on the Class A-1A Certificates on the
prior Distribution Date. There will be no Loan Group 2 Principal Shortfall on
the first Distribution Date.
"Loan Pair": Collectively, a Companion Loan and the related AB
Mortgage Loan.
"Lower-Tier Distribution Account": The segregated account, accounts
or sub-accounts created and maintained by the Paying Agent pursuant to Section
3.04(b) in trust for the Certificateholders, which shall be entitled "JPMorgan
Chase Bank, National Association, as Paying Agent, in trust for the registered
Holders of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 0000-X0, Xxxxx-Xxxx Distribution
Account." Any such account, accounts or sub-accounts shall be an Eligible
Account.
"Lower-Tier Principal Amount": With respect to any Class of
Uncertificated Lower-Tier Interests, (i) on or prior to the first Distribution
Date, an amount equal to the Original Lower-Tier Principal Amount of such Class
as specified in the Preliminary Statement hereto, and (ii) as of any date of
determination after the first Distribution Date, an amount equal to the
Certificate Balance of the Class of Related Certificates on the Distribution
Date immediately prior to such date of determination (determined as adjusted
pursuant to Section 1.02(iii), and in the case of the Class LA-1-1, Class
LA-1-2, Class LA-1-3, Class LA-1-4, Class LA-1A-1, Class LA-1A-2, Class LA-1A-3,
Class LA-1A-4, Class LA-1A-5, Class LA-1A-6, Class LA-1A-7, Class LA-1A-8, Class
LA-1A-9, Class LA-1A-10, Class LA-1A-11, Class LA-1A-12, Class LA-1A-13, Class
LA-1A-14, Class LA-1A-15, Class LA-2-1, Class LA-2-2, Class LA-3-1, Class
LA-3-2, Class LA-3-3, Class LA-3-4, Class LA-3-5, Class LA-3-6, Class LA-4-1,
Class LA-4-2, Class LA-4-3, Class LA-4-4, Class LA-5-1, Class LA-5-2, Class
LA-5-3, Class LF-1, Class LF-2, Class LG-1, Class LG-2, Class LG-3, Class LG-4,
Class LH-1, Class LH-2, Class LJ-1, Class LJ-2, Class LJ-3, Class LL-1 and Class
LL-2 Uncertificated Interests, as set forth in Section 4.01(b)).
"Lower-Tier Regular Distribution Amount": As defined in Section
4.01(b).
"Lower-Tier REMIC": One of two separate REMICs comprising the Trust
Fund, the assets of which consist of the Mortgage Loans (exclusive of Excess
Interest), any REO Property with respect thereto (or an allocable portion
thereof, in the case of the AB Mortgage Loans), such amounts as shall from time
to time be held in the Certificate Account (other than with respect to the
Companion Loans), the REO Account, if any, the Interest Reserve Account, the
Gain-on-Sale Reserve Account and the Lower-Tier Distribution Account, and all
other property included in the Trust Fund that is not in the Upper-Tier REMIC or
the Grantor Trust.
"LTV Ratio": With respect to any Mortgage Loan, as of any date of
determination, a fraction, expressed as a percentage, the numerator of which is
the scheduled principal balance of such Mortgage Loan as of such date (assuming
no defaults or prepayments on such Mortgage Loan prior to that date), and the
denominator of which is the Appraised Value of the related Mortgaged Property.
"MAI": Member of the Appraisal Institute.
"Majority Controlling Class Certificateholder": As of any date, the
Controlling Class Certificateholder owning a majority of the Percentage
Interests in the Controlling Class.
"Master Servicer": Midland Loan Services, Inc., a Delaware
corporation, and its successors in interest and assigns, or any successor Master
Servicer appointed as allowed herein.
"Master Servicer Servicing Standard": As defined in Section
3.01(a)(i).
"Maturity Date": With respect to any Mortgage Loan as of any date of
determination, the date on which the last payment of principal is due and
payable under the related Mortgage Note, after taking into account all Principal
Prepayments received prior to such date of determination, but without giving
effect to (i) any acceleration of the principal of such Mortgage Loan by reason
of default thereunder or (ii) any grace period permitted by the related Mortgage
Note.
"Midland": Midland Loan Services, Inc.
"Monthly Additional Report on Recoveries and Reimbursements": With
respect to the one-month period immediately prior to the related Determination
Date, a report, containing the information and in the form as set forth on
Exhibit W with respect to such period, in all cases both on a loan-by-loan basis
and in the aggregate. The preparation of each Monthly Additional Report on
Recoveries and Reimbursements shall constitute a responsibility of the Master
Servicer and shall not constitute a responsibility of any other party. Each CMSA
Loan Periodic Update File prepared by the Master Servicer shall be accompanied
by a Monthly Additional Report on Recoveries and Reimbursements; provided that
the Master Servicer shall not be responsible for the failure to properly prepare
such report to the extent that such failure is the result of the Special
Servicer's failure to provide information required to be provided by the Special
Servicer hereunder.
"Monthly Payment": With respect to any Mortgage Loan, the scheduled
monthly payment of principal and/or interest (other than Excess Interest) on
such Mortgage Loan, including any Balloon Payment, which is payable (as the
terms of the applicable Mortgage Loan may be changed or modified in connection
with a bankruptcy or similar proceedings involving the related Mortgagor or by
reason of a modification, extension, waiver or amendment granted or agreed to
pursuant to the terms hereof) by a Mortgagor from time to time under the related
Mortgage Note and applicable law, without regard to any acceleration of
principal of such Mortgage Loan by reason of default thereunder and without
respect to any Excess Interest.
"Moody's": Xxxxx'x Investors Service, Inc. If neither Moody's nor
any successor remains in existence, "Moody's" shall be deemed to refer to such
other nationally recognized statistical rating agency or other comparable Person
designated by the Depositor, notice of which designation shall be given to the
Trustee, the Paying Agent, the Master Servicer and the Special Servicer, and
specific ratings of Moody's herein referenced shall be deemed to refer to the
equivalent ratings of the party so designated.
"Moorings at Mesa Cove Apartments AB Mortgage Loan": That certain
Mortgage Loan identified on the Mortgage Loan Schedule as loan number 22.
"Moorings at Mesa Cove Apartments Companion Loan": That certain loan
evidenced by a promissory B note, which is not an asset of the Trust Fund,
secured by the Mortgaged Property securing the Moorings at Mesa Cove Apartments
AB Mortgage Loan.
"Moorings at Mesa Cove Apartments Intercreditor Agreement": That
certain Intercreditor Agreement Among Noteholders, dated as of November 10,
2004, by and between JPMorgan Chase Bank, as the A Note Holder, and
CBA-Mezzanine Capital Finance, LLC, as the B Note Holder. The Moorings at Mesa
Cove Apartments Intercreditor Agreement relates to the Moorings at Mesa Cove
Apartments AB Mortgage Loan.
"Mortgage": With respect to any Mortgage Loan, the mortgage, deed of
trust or other instrument securing a Mortgage Note and creating a lien on the
fee and/or leasehold interest in the related Mortgaged Property.
"Mortgage Deferred Interest": With respect to any Mortgage Loan as
of any Due Date that has been modified to reduce the rate at which interest is
paid currently below the Mortgage Rate and capitalize the amount of such
interest reduction, the excess, if any, of (a) interest accrued on the Stated
Principal Balance thereof during the one-month interest accrual period set forth
in the related Mortgage Note at the related Mortgage Rate over (b) the interest
portion of the related Monthly Payment, as so modified or reduced, or, if
applicable, Assumed Scheduled Payment due on such Due Date.
"Mortgage File": With respect to each Mortgage Loan and Companion
Loan, if applicable, but subject to Section 2.01, collectively the following
documents:
(i) the original executed Mortgage Note bearing, or
accompanied by, all prior and intervening endorsements, assignments
or allonges showing a complete chain of endorsement or assignment
from the originator of the Mortgage Loan to the most recent
endorsee, and further endorsed (at the direction of the Depositor
given pursuant to the applicable Mortgage Loan Purchase Agreement),
on its face or by allonge attached thereto, without recourse,
representation or warranty, express or implied to the order of the
Trustee in the following form: "Pay to the order of Xxxxx Fargo
Bank, N.A., as trustee for the registered holders of X.X. Xxxxxx
Chase Commercial Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 2004-C3" or in blank, provided
that the requirements of this clause (i) will be satisfied by
delivery of a signed lost note affidavit and indemnity properly
assigned or endorsed to the Trustee as described above, with a copy
of the Mortgage Note attached to it;
(ii) the original Mortgage (or a certified or other copy
thereof from the applicable recording office) (except for recording
information not yet available if the Mortgage has not been returned
from the applicable recording office) and originals (or certified or
other copies from the applicable recording office) of any
intervening assignments thereof showing a complete chain of
assignment from the originator of the Mortgage Loan to the most
recent mortgagee of record, in each case with evidence of recording
indicated thereon;
(iii) an original assignment of the Mortgage, in complete and
recordable form (except for recording information not yet available
if the instrument being assigned has not been returned from the
applicable recording office), executed by the most recent assignee
of record thereof prior to the Trustee, or if none, by the
originator to "Xxxxx Fargo Bank, N.A., as trustee for the registered
holders of X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2004-C3" or in
blank;
(iv) an original or copy of any related Assignment of Leases
(if such item is a document separate from the Mortgage) and the
originals or copies of any intervening assignments thereof showing a
complete chain of assignment from the originator of the Mortgage
Loan to the most recent assignee of record, in each case with
evidence of recording thereon;
(v) an original assignment of any related Assignment of Leases
(if such item is a document separate from the Mortgage and to the
extent not already assigned pursuant to preceding clause (iii)), in
recordable form (except for recording information not yet available
if the instrument being assigned has not been returned from the
applicable recording office), executed by the applicable assignee of
record to "Xxxxx Fargo Bank, N.A., as trustee for the registered
holders of X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2004-C3" or in
blank;
(vi) an original or copy of any related Security Agreement (if
such item is a document separate from the Mortgage) and the
originals or copies of any intervening assignments thereof showing a
complete chain of assignment from the originator of the Mortgage
Loan to the applicable Mortgage Loan Seller;
(vii) an original assignment of any related Security Agreement
(if such item is a document separate from the Mortgage), in complete
form, executed by the applicable Mortgage Loan Seller to "Xxxxx
Fargo Bank, N.A., as trustee for the registered holders of X.X.
Xxxxxx Chase Commercial Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2004-C3" or in blank;
(viii) originals or copies of all consolidation, assumption,
modification, written assurance and substitution agreements, with
evidence of recording thereon, where appropriate, in those instances
where the terms or provisions of the Mortgage, Mortgage Note or any
related security document have been consolidated or modified or the
Mortgage Loan has been assumed;
(ix) the original lender's title insurance policy or a copy
thereof, together with all endorsements or riders that were issued
with or subsequent to the issuance of such policy, insuring the
priority of the Mortgage as a first lien on the Mortgagor's fee or
leasehold interest in the Mortgaged Property, or if the policy has
not yet been issued, an original or copy of a "marked-up" written
commitment (marked as binding and in all cases countersigned by the
title insurer or its authorized agent) or the pro forma or specimen
title insurance policy (accepted or approved in writing by the title
insurer or its authorized agent) or an agreement to provide the same
pursuant to lender's escrow trust instructions executed by an
authorized representative of the title insurance company, provided
the policy is issued within 18 months from the Closing Date, in
connection with the related Mortgage Loan;
(x) the original or copy of any guaranty of the obligations of
the Mortgagor under the Mortgage Loan and any intervening
assignments;
(xi) all UCC Financing Statements, assignments or copies
thereof, as filed or recorded, or in form that is complete and
suitable for filing or recording, as appropriate, or other evidence
of filing or recording sufficient to perfect (and maintain the
perfection of) the security interest held by the originator of the
Mortgage Loan (and each assignee of record prior to the Trustee) in
and to the personalty of the Mortgagor at the Mortgaged Property,
and to transfer such security interest to the Trustee;
(xii) the original power of attorney or a copy thereof (with
evidence of recording thereon) granted by the Mortgagor if the
Mortgage, Mortgage Note or other document or instrument referred to
above was not signed by the Mortgagor;
(xiii) with respect to any Mortgage Loans with Additional
Debt, a co-lender agreement, a subordination agreement or other
intercreditor agreement, pursuant to which such Additional Debt will
be subordinated to such Mortgage Loan as set forth in such
intercreditor agreement;
(xiv) any additional documents required to be added to the
Mortgage File pursuant to this Agreement;
(xv) with respect to any Mortgage Loan secured by a ground
lease, the related ground lease or a certified copy thereof and any
related ground lessor estoppels;
(xvi) a copy of any letter of credit securing such Mortgage
Loan and, within sixty (60) days of the Closing Date or such earlier
date as required by the issuer of the letter of credit, a copy of
the appropriate transfer or assignment documents (which may be in
the form of an amendment) for such letter of credit;
(xvii) a copy of any Environmental Indemnity Agreement,
together with a copy of any environmental insurance policy;
(xviii) a copy of any loan agreement(s);
(xix) a copy of any escrow agreement(s);
(xx) a copy of any property management agreement(s);
(xxi) a copy of any franchise agreements and comfort letters
related thereto;
(xxii) a copy of any lock-box or cash management agreement(s);
(xxiii) a list related to such Mortgage Loan indicating the
related Mortgage Documents included in the related Mortgage File
(the "Mortgage Loan Checklist"); and
(xxiv) with respect to each Mortgage Loan that has one or more
Companion Loan(s), the related Intercreditor Agreement and a copy of
each Mortgage Note relating to such Companion Loan(s), rather than
the original;
provided, however, that (a) whenever the term "Mortgage File" is used to refer
to documents held by the Trustee, or a Custodian appointed thereby, such term
shall not be deemed to include such documents and instruments required to be
included therein unless they are actually received by the Trustee or a Custodian
appointed thereby, (b) if there exists with respect to any Crossed Group only
one original or certified copy of any document referred to in the definition of
"Mortgage File" covering all of the Mortgage Loans in such Crossed Group, then
the inclusion of such original or certified copy in the Mortgage File for any of
the Mortgage Loans constituting such Crossed Group shall be deemed the inclusion
of such original or certified copy in the Mortgage File for each such Mortgage
Loan, (c) to the extent that this Agreement refers to a "Mortgage File" for any
Companion Loan, such "Mortgage File" shall be construed to mean the Mortgage
File for the related Mortgage Loan (except that references to the Mortgage Note
otherwise described above shall be construed to instead refer to a photocopy of
such Mortgage Note) and (d) the execution and/or recordation of any assignment
of Mortgage, any separate assignment of Assignment of Leases and any assignment
of any UCC Financing Statement in the name of the Trustee shall not be construed
to limit the beneficial interest of the related Companion Holder(s) in such
instrument and the benefits intended to be provided to them by such instrument,
it being acknowledged that (i) the Trustee shall hold such record title for the
benefit of the Trust as the holder of the related Mortgage Loan and the related
Companion Holder(s) collectively and (ii) any efforts undertaken by the Trustee,
the Master Servicer, or the Special Servicer on its behalf to enforce or obtain
the benefits of such instrument shall be construed to be so undertaken by
Trustee, the Master Servicer or the Special Servicer for the benefit of the
Trust as the holder of the applicable Mortgage Loan and the related Companion
Holder(s) collectively.
"Mortgage Loan": Each of the mortgage loans transferred and assigned
to the Trustee pursuant to Section 2.01 and from time to time held in the Trust
Fund. As used herein, the term "Mortgage Loan" includes the related Mortgage
Note, Mortgage and other documents contained in the related Mortgage File and
any related agreements. As used in this Agreement, the term "Mortgage Loan" does
not include any Companion Loan.
"Mortgage Loan Checklist": As defined in the definition of "Mortgage
File."
"Mortgage Loan Purchase Agreement": Each of the agreements between
the Depositor and each Mortgage Loan Seller, relating to the transfer of all of
such Mortgage Loan Seller's right, title and interest in and to the related
Mortgage Loans.
"Mortgage Loan Schedule": The list of Mortgage Loans transferred on
the Closing Date to the Trustee as part of the Trust Fund, attached hereto as
Exhibit B, which list sets forth the following information with respect to each
Mortgage Loan:
(i) the loan identification number and loan servicing number
(as specified in Annex A-1 to the Prospectus);
(ii) the Mortgagor's name;
(iii) the street address (including city, county, state and
zip code) and name of the related Mortgaged Property;
(iv) the Mortgage Rate in effect at origination;
(v) the Net Mortgage Rate in effect at the Cut-off Date;
(vi) the original principal balance;
(vii) the Cut-off Date Principal Balance;
(viii) the (a) original term to stated maturity, (b) remaining
term to stated maturity and (c) Maturity Date;
(ix) the original and remaining amortization terms;
(x) the amount of the Monthly Payment due on the first Due
Date following the Cut-off Date;
(xi) the applicable Servicing Fee Rate;
(xii) whether the Mortgage Loan is a 30/360 Mortgage Loan or
an Actual/360 Mortgage Loan;
(xiii) the Anticipated Repayment Date, if applicable;
(xiv) the Revised Rate of such Mortgage Loan, if any;
(xv) whether such Mortgage Loan is secured by the related
Mortgagor's interest in a ground lease;
(xvi) identifying any Mortgage Loans with which such Mortgage
Loan is cross-defaulted or cross-collateralized;
(xvii) the originator of such Mortgage Loan and the Mortgage
Loan Seller;
(xviii) whether such Mortgage Loan has a guarantor;
(xix) whether such Mortgage Loan is secured by a letter of
credit;
(xx) amount of any reserve or escrowed funds that were
deposited at origination and any ongoing periodic deposit
requirements;
(xxi) number of grace days;
(xxii) whether a cash management agreement or lock-box
agreement is in place;
(xxiii) the general property type of the related Mortgaged
Property;
(xxiv) whether the Mortgage Loan permits defeasance;
(xxv) the interest accrual period; and
(xxvi) the applicable Loan Group to which the Mortgage Loan
belongs;
Such Mortgage Loan Schedule shall also set forth the aggregate of
the amounts described under clause (vii) above for all of the Mortgage Loans.
Such list may be in the form of more than one list, collectively setting forth
all of the information required.
"Mortgage Loan Seller": Each of: (1) JPMorgan Chase Bank, National
Association, a banking association organized under the laws of the United
States, or its successor in interest, (2) Nomura Credit & Capital, Inc., a
Delaware corporation, or its successor in interest, and (3) PNC Bank, National
Association, a national banking association, or its successor in interest.
"Mortgage Note": The original executed note evidencing the
indebtedness of a Mortgagor under a Mortgage Loan or Companion Loan, together
with any rider, addendum or amendment thereto.
"Mortgage Rate": With respect to: (i) any Mortgage Loan on or prior
to its Maturity Date, the annual 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, exclusive of the
Excess Rate; or (ii) any Mortgage Loan after its Maturity Date, the annual rate
described in clause (i) above determined without regard to the passage of such
Maturity Date.
"Mortgaged Property": The real property subject to the lien of a
Mortgage.
"Mortgagor": The obligor or obligors on a Mortgage Note, including
without limitation, any Person that has acquired the related Mortgaged Property
and assumed the obligations of the original obligor under the Mortgage Note.
"Net Aggregate Prepayment Interest Shortfall": 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 Due Period,
exceeds (b) the aggregate amount deposited by the Master Servicer in the
Certificate Account for such Distribution Date pursuant to Section 3.19 in
connection with such Prepayment Interest Shortfalls.
"Net Investment Earnings": With respect to the Certificate Account,
the Servicing Accounts or the REO Account for any period from any Distribution
Date to the immediately succeeding P&I Advance Date, the amount, if any, by
which the aggregate of all interest and other income realized during such period
on funds relating to the Trust Fund held in such account, exceeds the aggregate
of all losses, if any, incurred during such period in connection with the
investment of such funds in accordance with Section 3.06.
"Net Investment Loss": With respect to the Certificate Account, the
Servicing Accounts or the REO Account for any period from any Distribution Date
to the immediately succeeding P&I Advance Date, the amount by which the
aggregate of all losses, if any, incurred during such period in connection with
the investment of funds relating to the Trust Fund held in such account in
accordance with Section 3.06, exceeds the aggregate of all interest and other
income realized during such period on such funds.
"Net Mortgage Rate": With respect to any Mortgage Loan or REO Loan
as of any date of determination, a rate per annum equal to the related Mortgage
Rate then in effect, minus the Administrative Cost Rate; provided, that for
purposes of calculating Pass-Through Rates, the Net Mortgage Rate for any
Mortgage Loan will be determined without regard to any modification, waiver or
amendment of the terms of such Mortgage Loan, whether agreed to by the Master
Servicer or the Special Servicer or resulting from a bankruptcy, insolvency or
similar proceeding involving the Mortgagor; provided, further, that if any
Mortgage Loan does not accrue interest on the basis of a 360-day year consisting
of twelve 30-day months, then, solely for purposes of calculating Pass-Through
Rates, the Net Mortgage Rate of such Mortgage Loan for any one-month period
preceding a related Due Date will be the annualized rate at which interest would
have to accrue in respect of such Mortgage Loan on the basis of a 360-day year
consisting of twelve 30-day months in order to produce the aggregate amount of
interest actually accrued (exclusive of Default Interest or Excess Interest) in
respect of such Mortgage Loan during such one-month period at the related Net
Mortgage Rate; provided, further, that, with respect to each Interest Reserve
Loan, the Net Mortgage Rate for the one month period (A) preceding the Due Dates
that occur in January and February in any year which is not a leap year or
preceding the Due Date that occurs in February in any year which is a leap year,
and (B) preceding the Due Date in March, will be the per annum rate stated in
the related Mortgage Note less the related Administrative Cost Rate. With
respect to any REO Loan, the Net Mortgage Rate shall be calculated as described
above, determined as if the predecessor Mortgage Loan had remained outstanding.
"Net Operating Income": With respect to any Mortgaged Property, for
any Mortgagor's fiscal year end, Net Operating Income will be calculated in
accordance with the standard definition of "Net Operating Income" approved from
time to time endorsed and put forth by the CMSA.
"New Lease": Any lease of REO Property entered into at the direction
of the Special Servicer on behalf of the Trust, including any lease renewed,
modified or extended on behalf of the Trust, if the Trust has the right to
renegotiate the terms of such lease.
"Nonrecoverable Advance": Any Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance.
"Nonrecoverable P&I Advance": Any P&I Advance previously made or
proposed to be made in respect of a Mortgage Loan or REO Loan which, in the
reasonable judgment of the Master Servicer or the Trustee, as applicable, will
not be ultimately recoverable, together with any accrued and unpaid interest
thereon at the Reimbursement Rate, from Late Collections or any other recovery
on or in respect of such Mortgage Loan or REO Loan; provided, however, that the
Special Servicer may, at its option, in consultation with the Directing
Certificateholder, make a determination in accordance with the Servicing
Standards, that any P&I Advance previously made or proposed to be made is a
Nonrecoverable P&I Advance and shall deliver to the Master Servicer or the
Trustee notice of such determination. Any such determination shall be conclusive
and binding on the Master Servicer and the Trustee, provided, however the
Special Servicer shall have no such option to make an affirmative determination
that any P&I Advance is or would be recoverable and in the absence of a
determination by the Special Servicer that such Advance is a Non-Recoverable
Advance, such decision shall remain with the Master Servicer or Trustee, as
applicable. In making such recoverability determination, the Master Servicer,
Special Servicer or Trustee, as applicable, will be entitled to consider (among
other things) only the obligations of the Mortgagor under the terms of the
related Mortgage Loan as it may have been modified, to consider (among other
things) the related Mortgaged Properties in their "as is" or then current
conditions and occupancies, as modified by such party's assumptions (consistent
with the Servicing Standards in the case of the Master Servicer and the Special
Servicer) regarding the possibility and effects of future adverse change with
respect to such Mortgaged Properties, to estimate and consider (among other
things) future expenses and to estimate and consider (consistent with the
Servicing Standards in the case of the Master Servicer and the Special Servicer)
(among other things) the timing of recoveries. In addition, any Person, in
considering whether a P&I Advance is a Nonrecoverable Advance, will be entitled
to give due regard to the existence of any outstanding Nonrecoverable Advance or
Workout Delayed Reimbursement Amount with respect to other Mortgage Loans which,
at the time of such consideration, the reimbursement of which is being deferred
or delayed by the Master Servicer or the Trustee because there is insufficient
principal available for such reimbursement, in light of the fact that proceeds
on the related Mortgage Loan are a source of reimbursement not only for the P&I
Advance under consideration, but also as a potential source of reimbursement of
such Nonrecoverable Advance or Workout-Delayed Reimbursement Amounts which are
or may be being deferred or delayed. In addition, any such Person may update or
change its recoverability determinations at any time (but not reverse any other
Person's determination that an Advance is a Nonrecoverable Advance) and,
consistent with the Servicing Standards, in the case of the Master Servicer, may
obtain, promptly upon request, from the Special Servicer any reasonably required
analysis, Appraisals or market value estimates or other information in the
Special Servicer's possession for making a recoverability determination. Absent
bad faith, the Master Servicer's, Special Servicer's or the Trustee's
determination as to the recoverability of any P&I Advance shall be conclusive
and binding on the Certificateholders. The determination by the Master Servicer
or the Special Servicer or the Trustee, as applicable, 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, or any updated or changed
recoverability determination, shall be evidenced by an Officer's Certificate
delivered by either the Special Servicer or the Master Servicer to the other and
to the Trustee, the Paying Agent, the Directing Certificateholder (and in the
case of the 000 Xxxx Xxxxxx Xxxxx Whole Loan, the 000 Xxxx Xxxxxx Xxxxx X Note
Representative), the Depositor, or by the Trustee to the Depositor, the Master
Servicer, the Special Servicer, the Paying Agent and the Directing
Certificateholder. The Officer's Certificate shall set forth such determination
of nonrecoverability and the considerations of the Master Servicer, the Special
Servicer or the Trustee, as applicable, forming the basis of such determination
(which shall be accompanied by, to the extent available, income and expense
statements, rent rolls, occupancy status, property inspections and any other
information used by the Master Servicer, the Special Servicer or the Trustee, as
applicable, to make such determination and shall include any existing Appraisal
of the related Mortgage Loan or Mortgaged Property). The Trustee shall be
entitled to conclusively rely on the Master Servicer's or Special Servicer's
determination that a P&I Advance is or would be nonrecoverable, and the Master
Servicer shall be entitled to conclusively rely on the Special Servicer's
determination that a P&I Advance is or would be nonrecoverable. In the case of a
cross-collateralized Mortgage Loan, such recoverability determination shall take
into account the cross-collateralization of the related cross-collateralized
Mortgage Loan.
"Nonrecoverable Servicing Advance": Any Servicing Advance previously
made or proposed to be made in respect of a Mortgage Loan or REO Property which,
in the reasonable judgment of the Master Servicer, the Special Servicer or the
Trustee, as the case may be, will not be ultimately recoverable, together with
any accrued and unpaid interest thereon, at the Reimbursement Rate, from Late
Collections or any other recovery on or in respect of such Mortgage Loan or REO
Property. In making such recoverability determination, such Person will be
entitled to consider (among other things) only the obligations of the Mortgagor
under the terms of the related Mortgage Loan as it may have been modified, to
consider (among other things) the related Mortgaged Properties in their "as is"
or then current conditions and occupancies, as modified by such party's
assumptions (consistent with the Servicing Standards in the case of the Master
Servicer or the Special Servicer) regarding the possibility and effects of
future adverse change with respect to such Mortgaged Properties, to estimate and
consider (consistent with the Servicing Standards in the case of the Master
Servicer or the Special Servicer) (among other things) future expenses and to
estimate and consider (among other things) the timing of recoveries. In
addition, any Person, in considering whether a Servicing Advance is a
Nonrecoverable Advance, will be entitled to give due regard to the existence of
any Nonrecoverable Advance or Workout Delayed Reimbursement Amounts with respect
to other Mortgage Loans which, at the time of such consideration, the recovery
of which are being deferred or delayed by the Master Servicer, in light of the
fact that proceeds on the related Mortgage Loan are a source of recovery not
only for the Servicing Advance under consideration, but also as a potential
source of recovery of such Nonrecoverable Advance or Workout Delayed
Reimbursement Amounts which are or may be being deferred or delayed. In
addition, any such Person may update or change its recoverability determinations
at any time (but not reverse any other Person's determination that an Advance is
a Nonrecoverable Advance) and, consistent with the Servicing Standards, in the
case of the Master Servicer, may obtain, promptly upon request, from the Special
Servicer any reasonably required analysis, Appraisals or market value estimates
or other information in the Special Servicer's possession for making a
recoverability determination. The determination by the Master Servicer, the
Special Servicer or the Trustee, as the case may be, that it has made a
Nonrecoverable Servicing Advance or that any proposed Servicing Advance, if
made, would constitute a Nonrecoverable Servicing Advance, or any updated or
changed recoverability determination, shall be evidenced by an Officer's
Certificate delivered by either of the Special Servicer or Master Servicer to
the other and to the Trustee, the Paying Agent, the Directing Certificateholder,
(and in the case of the 000 Xxxx Xxxxxx Xxxxx Whole Loan, the 000 Xxxx Xxxxxx
Xxxxx X Note Representative), and the Depositor, or by the Trustee to the
Depositor, the Master Servicer, the Special Servicer, the Paying Agent and the
Directing Certificateholder; provided, however, that the Special Servicer may,
at its option, in consultation with the Directing Certificateholder, make a
determination in accordance with the Servicing Standards, that any Servicing
Advance previously made or proposed to be made is a Nonrecoverable Servicing
Advance and shall deliver to the Master Servicer and the Trustee notice of such
determination. Any such determination shall be conclusive and binding on the
Master Servicer, the Special Servicer and the Trustee, provided, however the
Special Servicer shall have no such option to make an affirmative determination
that any P&I Advance is or would be recoverable and in the absence of a
determination by the Special Servicer that such Advance is a Non-Recoverable
Advance, such decision shall remain with the Master Servicer or Trustee, as
applicable. The Officer's Certificate shall set forth such determination of
nonrecoverability and the considerations of the Master Servicer, the Special
Servicer or the Trustee, as applicable, forming the basis of such determination
(which shall be accompanied by, to the extent available, such as related income
and expense statements, rent rolls, occupancy status and property inspections,
and shall include an Appraisal of the related Mortgage Loan or Mortgaged
Property). The Special Servicer shall promptly furnish any party required to
make Servicing Advances hereunder with any information in its possession
regarding the Specially Serviced Mortgage Loans and REO Properties as such party
required to make Servicing Advances may reasonably request for purposes of
making recoverability determinations. The Trustee shall be entitled to
conclusively rely on the Master Servicer's or Special Servicer's, as the case
may be, determination that a Servicing Advance is or would be nonrecoverable,
and the Master Servicer shall be entitled to conclusively rely on the Special
Servicer's determination that a Servicing Advance is or would be nonrecoverable.
In the case of a cross collateralized Mortgage Loan, such recoverability
determination shall take into account the cross collateralization of the related
cross collateralized Mortgage Loan.
"Non-Registered Certificate": Unless and until registered under the
Securities Act, any Class X-1, Class A-1A, Class F, Class G, Class H, Class J,
Class K, Class L, Class M, Class N, Class P, Class Q, Class NR, Class S, Class R
or Class LR Certificate.
"Non-Specially Serviced Mortgage Loan": Any Mortgage Loan that is
not a Specially Serviced Mortgage Loan.
"Non-U.S. Person": Any person other than a U.S. Person, unless, with
respect to the Transfer of a Residual Certificate, (i) such person holds such
Residual Certificate in connection with the conduct of a trade or business
within the United States and furnishes the Transferor and the Certificate
Registrar with an effective Internal Revenue Service Form W-8ECI (or successor
form) or (ii) the Transferee delivers to both the Transferor and the Certificate
Registrar an opinion of a nationally recognized tax counsel to the effect that
such Transfer is in accordance with the requirements of the Code and the
regulations promulgated thereunder and that such Transfer of the Residual
Certificate will not be disregarded for federal income tax purposes. A Person
shall be treated as a Non-U.S. Person, (A) notwithstanding clause (i) of the
preceding sentence, if it is a partnership (including any entity treated as a
partnership for U.S. federal income tax purposes) any interest in which is
owned, directly or indirectly, through one more partnerships, trusts or other
pass-through entities by a Non-U.S. Person or (B) if such Person is a U.S.
Person with respect to whom income from a Residual Certificate is attributable
to a foreign permanent establishment of fixed base, within the meaning of an
applicable income treaty, of such Person or any other U.S. Person.
"Notional Amount": In the case of the Class X-1 Certificates, the
Class X-1 Notional Amount. In the case of the Class X-2 Certificates, the Class
X-2 Notional Amount. In the case of each Component, the amount set forth in the
applicable definition thereof.
"Offered Certificates": The Class A-1, Class A-2, Class A-3, Class
A-4, Class A-5, Class A-J, Class X-2, Class B, Class C, Class D and Class E
Certificates.
"Officer's Certificate": A certificate signed by a Servicing Officer
of the Master Servicer or the Special Servicer, as the case may be, or a
Responsible Officer of the Trustee.
"Opinion of Counsel": A written opinion of counsel, who may, without
limitation, be salaried counsel for the Depositor, the Master Servicer or the
Special Servicer, acceptable in form and delivered to the Trustee and the Paying
Agent, except that any opinion of counsel relating to (a) the qualification of
the Upper-Tier REMIC or Lower-Tier REMIC as a REMIC, (b) compliance with the
REMIC Provisions, (c) qualification of the Grantor Trust as a grantor trust
under subpart E, Part I of subchapter J of the Code for federal income tax
purposes or (d) the resignation of the Master Servicer, the Special Servicer or
the Depositor pursuant to Section 6.04, must be an opinion of counsel who is in
fact Independent of the Depositor, the Master Servicer or the Special Servicer,
as applicable.
"Option Holder": As defined in Section 3.18(a).
"Option Price": As defined in Section 3.18(a).
"Original Certificate Balance": With respect to any Class of
Certificates (other than the Class S, the Class X and the Residual
Certificates), the initial aggregate principal amount thereof as of the Closing
Date, in each case as specified in the Preliminary Statement.
"Original Lower-Tier Principal Amount": With respect to any Class of
Uncertificated Lower-Tier Interest, the initial principal amount thereof as of
the Closing Date, in each case as specified in the Preliminary Statement.
"Original Notional Amount": With respect to the Class X-1 Notional
Amount and Class X-2 Notional Amount, the initial Notional Amount thereof as of
the Closing Date, as specified in the Preliminary Statement.
"OTS": The Office of Thrift Supervision or any successor thereto.
"Ownership Interest": As to any Certificate, any ownership or
security interest in such Certificate as the Holder thereof and any other
interest therein, whether direct or indirect, legal or beneficial, as owner or
as pledgee.
"P&I Advance": As to any Mortgage Loan or REO Loan, any advance made
by the Master Servicer or the Trustee, as applicable, pursuant to Section 4.03
or Section 7.05.
"P&I Advance Date": The Business Day immediately prior to each
Distribution Date.
"P&I Advance Determination Date": With respect to any Distribution
Date, the Business Day prior to the P&I Advance Date.
"Pass-Through Rate": Any of the Class A-1 Pass-Through Rate, the
Class A-2 Pass-Through Rate, the Class A-3 Pass-Through Rate, the Class A-4
Pass-Through Rate, the Class A-5 Pass-Through Rate, the Class A-1A Pass-Through
Rate, the Class A-J Pass-Through Rate, the Class B Pass-Through Rate, the Class
C Pass-Through Rate, the Class D Pass-Through Rate, the Class E Pass-Through
Rate, the Class F Pass-Through Rate, the Class G Pass-Through Rate, the Class H
Pass-Through Rate, the Class J Pass-Through Rate, the Class K Pass-Through Rate,
the Class L Pass-Through Rate, the Class M Pass-Through Rate, the Class N
Pass-Through Rate, the Class P Pass-Through Rate, the Class Q Pass-Through Rate,
the Class NR Pass-Through Rate, the Class X-1 Pass-Through Rate or the Class X-2
Pass-Through Rate.
"Paying Agent": JPMorgan Chase Bank, National Association, a banking
association organized under the laws of the United States, or any successor
appointed thereto pursuant to Section 5.07 or any successor Paying Agent
appointed hereunder.
"Paying Agent Fee": The portion of the Trustee Fee payable to the
Paying Agent pursuant to the terms hereof and calculated at the Paying Agent Fee
Rate.
"Paying Agent Fee Rate": 0.0006% per annum.
"Penalty Charges": With respect to any Mortgage Loan (or successor
REO Loan), any amounts actually collected thereon (or, in the case of a Mortgage
Loan (or successor REO Loan thereto) that is part of a Loan Pair, actually
collected on such Loan Pair and allocated and paid on such Mortgage Loan (or
successor REO Loan) in accordance with the related Intercreditor Agreement) that
represent late payment charges or Default Interest, other than a Yield
Maintenance Charge or prepayment premium, and other than any Excess Interest.
"Percentage Interest": As to any Certificate, the percentage
interest evidenced thereby in distributions required to be made with respect to
the related Class. With respect to any Regular Certificate, the percentage
interest is equal to the Denomination of such Certificate divided by the initial
Certificate Balance or Notional Amount, as applicable, of such Class of
Certificates as of the Closing Date. With respect to a Residual Certificate, the
percentage interest is set forth on the face thereof.
"Permitted Investments": Any one or more of the following
obligations or securities (including obligations or securities of the Paying
Agent, if otherwise qualifying hereunder), regardless whether issued by the
Depositor, the Master Servicer, the Special Servicer, the Trustee or any of
their respective Affiliates and having the required ratings, if any, provided
for in this definition and which shall not be subject to liquidation prior to
maturity:
(i) direct obligations of, and obligations fully guaranteed as
to timely payment of principal and interest by, the United States of
America, Xxxxxx Xxx, Xxxxxxx Mac or any agency or instrumentality of
the United States of America, the obligations of which are backed by
the full faith and credit of the United States of America that
mature in one (1) year or less from the date of acquisition;
provided that any obligation of, or guarantee by, Xxxxxx Mae or
Xxxxxxx Mac, other than an unsecured senior debt obligation of
Xxxxxx Mae or Xxxxxxx Mac, shall be a Permitted Investment only if
such investment would not result in the downgrading, withdrawal or
qualification of the then-current rating assigned by each Rating
Agency to any Certificate as evidenced in writing;
(ii) time deposits, unsecured certificates of deposit, or
bankers' acceptances that mature in one (1) year or less after the
date of issuance and are issued or held by any depository
institution or trust company (including the Trustee) incorporated or
organized under the laws of the United States of America or any
State thereof and subject to supervision and examination by federal
or state banking authorities, so long as the commercial paper or
other short- term debt obligations of such depository institution or
trust company are rated in the highest rating categories of each
Rating Agency or such other rating as would not result in the
downgrading, withdrawal or qualification of the then current rating
assigned by each Rating Agency to any Class of Certificates as
evidenced in writing;
(iii) repurchase agreements or obligations with respect to any
security described in clause (i) above where such security has a
remaining maturity of one year or less and where such repurchase
obligation has been entered into with a depository institution or
trust company (acting as principal) described in clause (ii) above;
(iv) debt obligations bearing interest or sold at a discount
issued by any corporation incorporated under the laws of the United
States of America or any state thereof which mature in one (1) year
or less from the date of acquisition, which debt obligations are
rated in the highest rating categories of each Rating Agency or such
other rating as would not result in the downgrading, withdrawal or
qualification of the then current rating assigned by each Rating
Agency to any Class of Certificates as evidenced in writing;
provided, however, that securities issued by any particular
corporation will not be Permitted Investments to the extent that
investment therein will cause the then outstanding principal amount
of securities issued by such corporation and held in the accounts
established hereunder to exceed 10% of the sum of the aggregate
principal balance and the aggregate principal amount of all
Permitted Investments in such accounts;
(v) commercial paper (including both non interest bearing
discount obligations and interest bearing obligations) of any
corporation or other entity organized under the laws of the United
States or any state thereof payable on demand or on a specified date
maturing in one (1) year or less from the date of acquisition
thereof and which is rated in the highest rating category of each
Rating Agency (or such lower rating as will not result in
qualification, downgrading or withdrawal of the ratings then
assigned by each Rating Agency to any Class of Certificates as
evidenced in writing);
(vi) money market funds, rated in the highest rating
categories of each Rating Agency; and
(vii) any other demand, money market or time deposit,
obligation, security or investment, (a) with respect to which each
Rating Agency shall have confirmed in writing that such investment
will not result in a downgrade, qualification or withdrawal of the
then current rating assigned by such Rating Agency to any Class of
Certificates as evidenced in writing and (b) which qualifies as a
"cash flow investment" pursuant to Section 860G(a)(6) of the Code;
provided, however, that no such instrument shall be a Permitted Investment (a)
if such instrument evidences principal and interest payments derived from
obligations underlying such instrument and the interest payments with respect to
such instrument provide a yield to maturity at the time of acquisition of
greater than 120% of the yield to maturity at par of such underlying obligations
or (b) if such instrument may be redeemed at a price below the purchase price;
and provided, further, however, that no amount beneficially owned by the
Upper-Tier REMIC or the Lower-Tier REMIC (even if not yet deposited in the
Trust) may be invested in investments (other than money market funds) treated as
equity interests for federal income tax purposes, unless the Master Servicer
receives an Opinion of Counsel, at its own expense, to the effect that such
investment will not adversely affect the status of the Upper-Tier REMIC or the
Lower-Tier REMIC. Permitted Investments that are subject to prepayment or call
may not be purchased at a price in excess of par.
"Permitted Transferee": Any Person who is a Qualified Institutional
Buyer.
"Person": Any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Plan": As defined in Section 5.02(c).
"Prepayment Assumption": A "constant prepayment rate" of 0% used for
determining the accrual of original issue discount and market discount, if any,
and the amortization premium, if any, on the Certificates for federal income tax
purposes; provided it is assumed that each Mortgage Loan with an Anticipated
Repayment Date prepays on such date.
"Prepayment Interest Excess": For any Distribution Date and with
respect to any Mortgage Loan that was subject to a prepayment in full or in part
during the related Due Period, which prepayment was applied to such Mortgage
Loan after the related Due Date and prior to the following Determination Date,
the amount of interest (net of the related Servicing Fees and any Excess
Interest), to the extent collected from the related Mortgagor (without regard to
any prepayment premium or Yield Maintenance Charge actually collected), that
would have accrued at a rate per annum equal to the sum of (x) the related Net
Mortgage Rate for such Mortgage Loan and (y) the Trustee Fee Rate, on the amount
of such prepayment from and after such Due Date and ending on the date of such
prepayment.
"Prepayment Interest Shortfall": For any Distribution Date and with
respect to any Mortgage Loan that was subject to a Principal Prepayment in full
or in part during the related Due Period, which Principal Prepayment was applied
to such Mortgage Loan after the related Determination Date (or, with respect to
each Mortgage Loan with a Due Date occurring after the related Determination
Date, the related Due Date) and prior to the following Due Date, the amount of
interest, to the extent not collected from the related Mortgagor (without regard
to any prepayment premium or Yield Maintenance Charge actually collected), that
would have accrued at a rate per annum equal to the sum of (x) the related Net
Mortgage Rate for such Mortgage Loan and (y) the Trustee Fee Rate, on the amount
of such Principal Prepayment during the period commencing on the date as of
which such Principal Prepayment was applied to such Mortgage Loan and ending on
such Due Date.
"Primary Collateral": With respect to any Crossed Loan, that portion
of the Mortgaged Property designated as directly securing such Crossed Loan and
excluding any Mortgaged Property as to which the related lien may only be
foreclosed upon by exercise of the cross-collateralization provisions of such
Crossed Loan.
"Primary Servicing Fee": The monthly fee payable by the Master
Servicer from the Servicing Fee to each Initial Sub-Servicer, which monthly fee
accrues at the rate per annum specified as such in the Sub-Servicing Agreement
with such Initial Sub-Servicer.
"Prime Rate": The "Prime Rate" as published in the "Money Rates"
section of the New York city edition of The Wall Street Journal (or, if such
section or publication is no longer available, such other comparable publication
as determined by the Paying Agent in its reasonable discretion) as may be in
effect from time to time, or, if the "Prime Rate" no longer exists, such other
comparable rate (as determined by the Paying Agent in its reasonable discretion)
as may be in effect from time to time.
"Principal Distribution Amount": With respect to any Distribution
Date and any Class of Regular Certificates, an amount equal to the sum of (a)
the Principal Shortfall for such Distribution Date, (b) the Scheduled Principal
Distribution Amount for such Distribution Date and (c) the Unscheduled Principal
Distribution Amount for such Distribution Date; provided, that the Principal
Distribution Amount for any Distribution Date shall be reduced by the amount of
any reimbursements of (i) Nonrecoverable Advances plus interest on such
Nonrecoverable Advances that are paid or reimbursed from principal collections
on the Mortgage Loans in a period during which such principal collections would
have otherwise been included in the Principal Distribution Amount for such
Distribution Date and (ii) Workout-Delayed Reimbursement Amounts that were paid
or reimbursed from principal collections on the Mortgage Loans in a period
during which such principal collections would have otherwise been included in
the Principal Distribution Amount for such Distribution Date (provided, that, in
the case of clause (i) and (ii) above, if any of the amounts that were
reimbursed from principal collections on the Mortgage Loans are subsequently
recovered on the related Mortgage Loan, such recovery will increase the
Principal Distribution Amount for the Distribution Date related to the period in
which such recovery occurs).
"Principal Prepayment": Any payment of principal made by the
Mortgagor on a Mortgage Loan which is received in advance of its scheduled Due
Date and which is not accompanied by an amount of interest representing
scheduled interest due on any date or dates in any month or months subsequent to
the month of prepayment.
"Principal Shortfall": For any Distribution Date after the initial
Distribution Date with respect to the Mortgage Loans, the amount, if any, by
which (a) the related Principal Distribution Amount for the preceding
Distribution Date, exceeds (b) the aggregate amount distributed in respect of
principal on the Class A, 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 P, Class Q and Class
NR Certificates for such preceding Distribution Date pursuant to Section 4.01(a)
on such preceding Distribution Date. The Principal Shortfall for the initial
Distribution Date will be zero.
"Privileged Person": Each Rating Agency, any of the Holders of each
Class of Certificates, each Underwriter, the Initial Purchasers, each Mortgage
Loan Seller (solely with respect to the Mortgage Loans sold by such Mortgage
Loan Seller to the Trust) and a certain financial market publisher (which
initially shall be Bloomberg, L.P., Xxxxx, LLC and Intex Solutions, Inc.), each
party to this Agreement, the Directing Certificateholder, any designee of the
Depositor and any other Person who shall have provided the Paying Agent with a
certificate, using the form attached hereto as Exhibit U, which form is
available from the Paying Agent, certifying that such Person is a
Certificateholder, a beneficial owner or a prospective purchaser of a
Certificate.
"Prospectus": The Prospectus dated December 16, 2004, as
supplemented by the Prospectus Supplement dated December 16, 2004, relating to
the offering of the Offered Certificates.
"Purchase Option": As defined in Section 3.18(a)(ii).
"Purchase Option Notice": As defined in Section 3.18(a)(iii).
"Purchase Price": With respect to any Mortgage Loan (or REO Loan) to
be purchased by a Mortgage Loan Seller pursuant to Section 6 of the related
Mortgage Loan Purchase Agreement, by the Majority Controlling Class
Certificateholder, the Special Servicer or the Master Servicer pursuant to
Section 3.18(b), by the Master Servicer, the Special Servicer, the Holders of
the Controlling Class or the Holders of the Class LR Certificates pursuant to
Section 9.01 or to be otherwise sold pursuant to Section 3.18(d), a price equal
to:
(i) the outstanding principal balance of such Mortgage Loan
(or related REO Loan) as of the date of purchase; plus
(ii) all accrued and unpaid interest on such Mortgage Loan (or
the related REO Loan) at the related Mortgage Rate in effect from
time to time (exclusive of Default and Excess Interest) to but not
including the Due Date immediately preceding the Determination Date
for the related Distribution Date in which such Purchase Price is
included in the Available Distribution Amount; plus
(iii) all related Servicing Advances that are unreimbursed out
of collections from the Mortgage Loan and accrued and unpaid
interest on related Advances at the Reimbursement Rate, and any
Special Servicing Fees whether paid or then owing allocable to such
Mortgage Loan and all additional Trust Fund expenses in respect of
such Mortgage Loan; plus
(iv) if such Mortgage Loan (or REO Loan) is being purchased by
a Mortgage Loan Seller pursuant to Section 6 of the applicable
Mortgage Loan Purchase Agreement, to the extent not otherwise
included pursuant to clause (iii), all reasonable out-of-pocket
expenses reasonably incurred or to be incurred by the Master
Servicer, the Special Servicer, the Depositor and the Trustee in
respect of the Breach or Defect giving rise to the repurchase
obligation, including any expenses arising out of the enforcement of
the repurchase obligation, including, without limitation, all legal
fees and expenses relating to the enforcement of such repurchase
obligation; plus
(v) Liquidation Fees, if any, payable with respect to such
Mortgage Loan.
With respect to any REO Property to be sold pursuant to Section 3.18(c), the
amount calculated in accordance with the preceding sentence in respect of the
related REO Loan. With respect to any REO Property to be purchased or sold
pursuant to Section 3.18(b) that relates to a Loan Pair, the term "REO Loan"
shall mean the REO Loan with respect to both the related Mortgage Loan and the
related Companion Loans.
"Qualified Bidder": As defined in Section 7.01(c).
"Qualified Institutional Buyer": A "qualified institutional buyer"
as defined in Rule 144A under the Act.
"Qualified Insurer": (i) With respect to any Mortgage Loan, REO Loan
or REO Property, an insurance company or security or bonding company qualified
to write the related Insurance Policy in the relevant jurisdiction with a
minimum claims paying ability rating of at least "A-3" by Xxxxx'x and "A-" by
Fitch and (ii) with respect to the fidelity bond and errors and omissions
Insurance Policy required to be maintained pursuant to Section 3.07(c), except
as set forth in Section 3.07(c), an insurance company that has a claims paying
ability rated no lower than two ratings below the rating assigned to the then
highest rated outstanding Certificate, but in no event lower than "A-3" by
Xxxxx'x and "A-" by Fitch (or, if not rated by one of such Rating Agencies, then
at least "A-" by two other nationally recognized statistical rating
organizations (which may include the other Rating Agency)) or, in the case of
clauses (i) and (ii), such other rating as each Rating Agency shall have
confirmed in writing will not cause such Rating Agency to downgrade, qualify or
withdraw the then current rating assigned by such Rating Agency to any Class of
Certificates as evidenced in writing.
"Qualified Substitute Mortgage Loan": A mortgage loan which must, on
the date of substitution: (i) have an outstanding principal balance, after
application of all scheduled payments of principal and interest due during or
prior to the month of substitution, whether or not received, not in excess of
the Stated Principal Balance of the deleted Mortgage Loan as of the Due Date in
the calendar month during which the substitution occurs; (ii) have a Mortgage
Rate not less than the Mortgage Rate of the deleted Mortgage Loan; (iii) have
the same Due Date as and grace period no longer than that of the deleted
Mortgage Loan; (iv) accrue interest on the same basis as the deleted Mortgage
Loan (for example, on the basis of a 360-day year consisting of twelve 30-day
months); (v) have a remaining term to stated maturity not greater than, and not
more than two years less than, the remaining term to stated maturity of the
deleted Mortgage Loan; (vi) have a then current loan-to-value ratio not higher
than that of the deleted Mortgage Loan as of the Closing Date and a current
loan-to-value ratio not higher than the then current loan-to-value ratio of the
deleted Mortgage Loan, in each case using the "value" as determined using an MAI
appraisal; (vii) comply (except in a manner that would not be adverse to the
interests of the Certificateholders) as of the date of substitution with all of
the representations and warranties set forth in the applicable Mortgage Loan
Purchase Agreement; (viii) have an environmental report that indicates no
material adverse environmental conditions with respect to the related Mortgaged
Property and which will be delivered as a part of the related Servicing File;
(ix) have a then current debt service coverage ratio of not less than the
original debt service coverage ratio of the deleted Mortgage Loan as of the
Closing Date and a current debt service coverage ratio of not less than the
current debt service coverage ratio of the deleted Mortgage Loan; (x) constitute
a "qualified replacement mortgage" within the meaning of Section 860G(a)(4) of
the Code as evidenced by an Opinion of Counsel (provided at the applicable
Mortgage Loan Seller's expense); (xi) not have a maturity date or an
amortization schedule after the date two years prior to the Rated Final
Distribution Date; (xii) have comparable prepayment restrictions to those of the
deleted Mortgage Loan; (xiii) not be substituted for a deleted Mortgage Loan
unless the Trustee has received prior confirmation in writing by each Rating
Agency that such substitution will not result in the withdrawal, downgrade, or
qualification of the rating assigned by the Rating Agency to any Class of
Certificates then rated by the Rating Agency (the cost, if any, of obtaining
such confirmation to be paid by the applicable Mortgage Loan Seller); (xiv) have
been approved by the Directing Certificateholder; (xv) prohibit defeasance
within two years of the Closing Date; (xvi) not be substituted for a deleted
Mortgage Loan if it would result in the termination of the REMIC status of
either of the REMICs established under this Agreement or the imposition of tax
on either of such REMICs other than a tax on income expressly permitted or
contemplated to be imposed by the terms of this Agreement, as determined by an
Opinion of Counsel; (xvii) have an engineering report with respect to the
related Mortgaged Property that will be delivered as a part of the related
Servicing File; and (xviii) be current in the payment of all scheduled payments
of principal and interest then due. In the event that more than one mortgage
loan is substituted for a deleted Mortgage Loan, then the amounts described in
clause (i) shall be determined on the basis of aggregate Stated Principal
Balances and each such proposed Qualified Substitute Mortgage Loan shall
individually satisfy each of the requirements specified in (ii) through (xvi)
and the rates described in clause (ii) above and the remaining term to stated
maturity referred to in clause (v) above shall be determined on a weighted
average basis, provided that no individual Mortgage Rate (net of the Servicing
Fee Rate and the Trustee Fee Rate) shall be lower than the highest fixed
Pass-Through Rate (and not subject to a cap equal to the Weighted Average Net
Mortgage Rate) of any class of Regular Certificates having a principal balance
then outstanding. When a Qualified Substitute Mortgage Loan is substituted for a
deleted Mortgage Loan, (i) the applicable Mortgage Loan Seller shall certify
that the Mortgage Loan meets all of the requirements of the above definition and
shall send such certification to the Trustee and the Directing
Certificateholders and (ii) such Qualified Substitute Mortgage Loan shall become
part of the same Loan Group as the deleted Mortgage Loan.
"Rated Final Distribution Date": As to each Class of Certificates,
January 15, 2042, the first Distribution Date after the 24th month following the
end of the amortization term for the Mortgage Loan that, as of the Cut-off Date,
has the longest remaining amortization term.
"Rating Agency": Each of Moody's and Fitch or their successors in
interest. If neither such rating agency nor any successor remains in existence,
"Rating Agency" shall be deemed to refer to such nationally recognized
statistical rating agency or other comparable Person designated by the
Depositor, notice of which designation shall be given to the Trustee and the
Master Servicer, and specific ratings of Moody's and Fitch herein referenced
shall be deemed to refer to the equivalent ratings of the party so designated.
"Record Date": With respect to any Distribution Date, the last
Business Day of the month immediately preceding the month in which such
Distribution Date occurs.
"Registrar Office": As defined in Section 5.02(a).
"Regular Certificate": Any of the Class A, 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 P, Class Q, Class NR, Class X-1 and Class X-2 Certificates.
"Regulation D": Regulation D under the Act.
"Regulation S": Regulation S under the Act.
"Regulation S Book-Entry Certificates": The Regular Certificates
sold in offshore transactions in reliance on Regulation S and represented by one
or more Book-Entry Certificates deposited with the Paying Agent as custodian for
the Depository.
"Regulation S Investor": With respect to a transferee of a
Regulation S Book-Entry Certificate, a transferee that acquires such Certificate
pursuant to Regulation S.
"Regulation S Transfer Certificate": A certificate substantially in
the form of Exhibit I-1 or Exhibit I-2 hereto, as applicable.
"Reimbursement Rate": The rate per annum applicable to the accrual
of interest on Servicing Advances in accordance with Section 3.03(d) and P&I
Advances in accordance with Section 4.03(d), which rate per annum shall equal
the Prime Rate.
"Related Certificates," "Related Uncertificated Lower-Tier
Interests" and "Related Components of Class X Certificates": For each of the
following Classes of Uncertificated Lower-Tier Interests, the related Class of
Certificates and the related Components of Class X Certificates; for the
following Components of the Class X Certificates, the related Class of
Uncertificated Lower-Tier Interests and the related Class of Certificates set
forth below; and for the following Classes of Uncertificated Lower-Tier
Interests, the related Components of the Class X Certificates and the related
Class of Certificates set forth below:
Related Uncertificated Related Components of Class X
Related Certificate Lower-Tier Interest Certificates
--------------------------------- -------------------------------------- ------------------------------------
Class A-1 Certificate Class LA-1-1 Uncertificated XA-1-1
Interest
Class LA-1-2 Uncertificated XA-1-2
Interest
Class LA-1-3 Uncertificated XA-1-3
Interest
Class LA-1-4 Uncertificated XA-1-4
Interest
Class A-1A Certificate Class LA-1A-1 Uncertificated XA-1A-1
Interest
Class LA-1A-2 Uncertificated XA-1A-2
Interest
Class LA-1A-3 Uncertificated XA-1A-3
Interest
Class LA-1A-4 Uncertificated XA-1A-4
Interest
Class LA-1A-5 Uncertificated XA-1A-5
Interest
Class LA-1A-6 Uncertificated XA-1A-6
Interest
Class LA-1A-7 Uncertificated XA-1A-7
Interest
Class LA-1A-8 Uncertificated XA-1A-8
Interest
Class LA-1A-9 Uncertificated XA-1A-9
Interest
Class LA-1A-10 Uncertificated XA-1A-10
Interest
Class LA-1A-11 Uncertificated XA-1A-11
Interest
Class LA-1A-12 Uncertificated XA-1A-12
Interest
Class LA-1A-13 Uncertificated XA-1A-13
Interest
Class LA-1A-14 Uncertificated XA-1A-14
Interest
Class LA-1A-15 Uncertificated XA-1A-15
Interest
Class A-2 Certificate Class LA-2-1 Uncertificated XA-2-1
Interest
Class LA-2-2 Uncertificated XA-2-2
Interest
Class A-3 Certificate Class LA-3-1 Uncertificated XA-3-1
Interest
Class LA-3-2 Uncertificated XA-3-2
Interest
Class LA-3-3 Uncertificated XA-3-3
Interest
Class LA-3-4 Uncertificated XA-3-4
Interest
Class LA-3-5 Uncertificated XA-3-5
Interest
Class LA-3-6 Uncertificated XA-3-6
Interest
Class A-4 Certificate Class LA-4-1 Uncertificated XA-4-1
Interest
Class LA-4-2 Uncertificated XA-4-2
Interest
Class LA-4-3 Uncertificated XA-4-3
Interest
Class LA-4-4 Uncertificated XA-4-4
Interest
Class A-5 Certificate Class LA-5-1 Uncertificated XA-5-1
Interest
Class LA-5-2 Uncertificated XA-5-2
Interest
Class LA-5-3 Uncertificated XA-5-3
Interest
Class A-J Certificate Class LA-J Uncertificated XA-J
Interest
Class B Certificate Class LB Uncertificated Interest XB
Class C Certificate Class LC Uncertificated Interest XC
Class D Certificate Class LD Uncertificated Interest XD
Class E Certificate Class LE Uncertificated Interest XE
Class F Certificate Class LF-1 Uncertificated XF-1
Interest
Class LF-2 Uncertificated XF-2
Interest
Class G Certificate Class LG-1 Uncertificated XG-1
Interest
Class LG-2 Uncertificated
Interest XG-2
Class LG-3 Uncertificated
Interest XG-3
Class LG-4 Uncertificated
Interest XG-4
Class H Certificate Class LH-1 Uncertificated XH-1
Interest
Class LH-2 Uncertificated XH-2
Interest
Class J Certificate Class LJ-1 Uncertificated XJ-1
Interest
Class LJ-2 Uncertificated XJ-2
Interest
Class LJ-3 Uncertificated XJ-3
Interest
Class K Certificate Class LK Uncertificated Interest XK
Class L Certificate Class LL-1 Uncertificated XL-1
Interest
Class LL-2 Uncertificated XL-2
Interest
Class M Certificate Class LM Uncertificated Interest XM
Class N Certificate Class LN Uncertificated Interest XN
Class P Certificate Class LP Uncertificated Interest XP
Class Q Certificate Class LQ Uncertificated Interest XQ
Class NR Certificate Class LNR Uncertificated XNR
Interest
"REMIC": A "real estate mortgage investment conduit" as defined in
Section 860D of the Code (or any successor thereto).
"REMIC Administrator": The Paying Agent or any REMIC administrator
appointed pursuant to Section 10.04.
"REMIC Provisions": Provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at Sections
860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and temporary and final Treasury regulations (or proposed
regulations that would apply by reason of their proposed effective date to the
extent not inconsistent with temporary or final regulations) and any rulings
promulgated thereunder, as the foregoing may be in effect from time to time.
"Rents from Real Property": With respect to any REO Property, gross
income of the character described in Section 856(d) of the Code.
"REO Account": A segregated custodial account or accounts created
and maintained by the Special Servicer pursuant to Section 3.16 on behalf of the
Trustee in trust for the Certificateholders, which shall be entitled "X.X.
Xxxxxx Company, Inc., or the applicable successor Special Servicer, as Special
Servicer, for the benefit of Xxxxx Fargo Bank, N.A., as trustee, in trust for
registered Holders of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2004-C3, REO Account." Any
such account or accounts shall be an Eligible Account.
"REO Acquisition": The acquisition for federal income tax purposes
of any REO Property pursuant to Section 3.09.
"REO Disposition": The sale or other disposition of the REO Property
pursuant to Section 3.18.
"REO Extension": As defined in Section 3.16(a).
"REO Loan": The Mortgage Loan deemed for purposes hereof to be
outstanding with respect to each REO Property. Each REO Loan shall be deemed to
be outstanding for so long as the related REO Property remains part of the Trust
Fund and provides for Assumed Scheduled Payments on each Due Date therefor, and
otherwise has the same terms and conditions as its predecessor Mortgage Loan,
including, without limitation, with respect to the calculation of the Mortgage
Rate in effect from time to time (such terms and conditions to be applied
without regard to the default on such predecessor Mortgage Loan). Each REO Loan
shall be deemed to have an initial outstanding principal balance and Stated
Principal Balance equal to the outstanding principal balance and Stated
Principal Balance, respectively, of its predecessor Mortgage Loan as of the date
of the related REO Acquisition. All amounts due and owing in respect of the
predecessor Mortgage Loan as of the date of the related REO Acquisition,
including, without limitation, accrued and unpaid interest, shall continue to be
due and owing in respect of a REO Loan. All amounts payable or reimbursable to
the Master Servicer, the Special Servicer or the Trustee, as applicable, in
respect of the predecessor Mortgage Loan as of the date of the related REO
Acquisition, including, without limitation, any unpaid Special Servicing Fees
and Servicing Fees, additional Trust Fund expenses and any unreimbursed
Advances, together with any interest accrued and payable to the Master Servicer
or the Trustee, as applicable, in respect of such Advances in accordance with
Section 3.03(d) or Section 4.03(d), shall continue to be payable or reimbursable
to the Master Servicer or the Trustee, as applicable, in respect of an REO Loan.
In addition, Unliquidated Advances and Nonrecoverable Advances with respect to
such REO Loan, in each case, that were paid from collections on the Mortgage
Loans and resulted in principal distributed to the Certificateholders being
reduced as a result of the first proviso in the definition of "Principal
Distribution Amount", "Loan Group 1 Principal Distribution Amount" or "Loan
Group 2 Principal Distribution Amount" shall be deemed outstanding until
recovered. Collections in respect of each REO Loan (exclusive of the amounts to
be applied to the payment of, or to be reimbursed to the Master Servicer or the
Special Servicer for the payment of unreimbursed Advances and interest thereon
and the costs of operating, managing, selling, leasing and maintaining the
related REO Property) shall be treated: first, as a recovery of accrued and
unpaid interest on such REO Loan at the related Mortgage Rate in effect from
time to time to, but not including, the Due Date in the Due Period of receipt
(exclusive of any portion that constitutes Excess Interest); second, as a
recovery of Unliquidated Advances with respect to such REO Loan; third, as a
recovery of principal of such REO Loan to the extent of its entire unpaid
principal balance; in each case, that relate to Servicing Advances and were paid
from collections on the Mortgage Loans and resulted in principal distributed to
the Certificateholders being reduced as a result of the first proviso in the
definition of "Principal Distribution Amount", "Loan Group 1 Principal
Distribution Amount" or "Loan Group 2 Principal Distribution Amount"; fourth, as
a recovery of Nonrecoverable Advances with respect to such REO Loan; and fifth,
in accordance with the Servicing Standards of the Master Servicer, as a recovery
of any other amounts due and owing in respect of such REO Loan, including,
without limitation, (i) Penalty Charges, (ii) Yield Maintenance Charges and
(iii) Excess Interest and other amounts, in that order.
"REO Loan Accrual Period": With respect to any REO Loan and any Due
Date therefor, the one-month period immediately preceding such Due Date.
"REO Property": A Mortgaged Property acquired by the Special
Servicer on behalf of, and in the name of, the Trustee or a nominee thereof for
the benefit of the Certificateholders (and the related Companion Holder, subject
to the related Intercreditor Agreement with respect to a Mortgaged Property
securing a Loan Pair) and the Trustee (as holder of the Uncertificated
Lower-Tier Interests) 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": All income, rents and profits derived from the
ownership, operation or leasing of any REO Property.
"Request for Release": A release signed by a Servicing Officer of
the Master Servicer or the Special Servicer, as applicable, in the form of
Exhibit E attached hereto.
"Residual Certificate": Any Class R Certificate or Class LR
Certificate issued, authenticated and delivered hereunder.
"Responsible Officer": When used with respect to each of the initial
Trustee or the Paying Agent, any Vice President, Assistant Vice-President,
Assistant Secretary or corporate trust officer in the corporate trust department
of the Trustee and Paying Agent, and with respect to any successor Trustee or
the Paying Agent, any officer or assistant officer in the corporate trust
department of the Successor Trustee or the Paying Agent or any other officer of
the Trustee or the Paying Agent customarily performing functions similar to
those performed by any of the above designated officers to whom a particular
matter is referred by the Trustee or the Paying Agent because of such officer's
knowledge of and familiarity with the particular subject.
"Restricted Period": The 40-day period prescribed by Regulation S
commencing on the later of (a) the date upon which Certificates are first
offered to Persons other than the Initial Purchasers and any other distributor
(as such term is defined in Regulation S) of the Certificates and (b) the
Closing Date.
"Retained Fee Rate": A rate of 0.005% per annum.
"Revised Rate": With respect to those Mortgage Loans on the Mortgage
Loan Schedule indicated as having a revised rate, the increased interest rate
after the Anticipated Repayment Date (in the absence of a default) for each
applicable Mortgage Loan, as calculated and as set forth in the related Mortgage
Loan.
"Rule 144A": Rule 144A under the Act.
"Rule 144A Book-Entry Certificate": With respect to any Class of
Certificates offered and sold in reliance on Rule 144A, a single, permanent
Book-Entry Certificate, in definitive, fully registered form without interest
coupons.
"S&P": Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc., and its successors in interest. If S&P nor any
successor remains in existence, "S&P" shall be deemed to refer to such other
nationally recognized statistical rating agency or other comparable Person
designated by the Depositor, notice of which designation shall be given to the
Trustee, the Paying Agent, the Master Servicer and the Special Servicer and
specific ratings of S&P herein referenced shall be deemed to refer to the
equivalent ratings of the party so designated.
"Scheduled Principal Distribution Amount": With respect to any
Distribution Date and the Mortgage Loans, the aggregate of the principal
portions of (a) all Monthly Payments (excluding Balloon Payments and Excess
Interest) due in respect of such Mortgage Loans during or, if and to the extent
not previously received or advanced pursuant to Section 4.03 in respect of a
preceding Distribution Date, prior to, the related Due Period, and all Assumed
Scheduled Payments for the related Due Period, in each case to the extent either
(i) paid by the Mortgagor as of the Determination Date (or, with respect to each
Mortgage Loan with a Due Date occurring or a grace period ending after the
related Determination Date, the related Due Date or last day of such grace
period, as applicable) (and not previously distributed to Certificateholders) or
(ii) advanced by the Master Servicer or the Trustee, as applicable, pursuant to
Section 4.03 in respect of such Distribution Date, and (b) all Balloon Payments
to the extent received on or prior to the related Determination Date (or, with
respect to each Mortgage Loan with a Due Date occurring or a grace period ending
after the related Determination Date, the related Due Date or last day of such
grace period, as applicable, to the extent received by the Master Servicer as of
the Business Day preceding the related P&I Advance Date), and to the extent not
included in clause (a) above.
"Securities Act": The Securities Act of 1933, as it may be amended
from time to time.
"Security Agreement": With respect to any Mortgage Loan, any
security agreement or equivalent instrument, whether contained in the related
Mortgage or executed separately, creating in favor of the holder of such
Mortgage a security interest in the personal property constituting security for
repayment of such Mortgage Loan.
"Servicing Account": The account or accounts created and maintained
pursuant to Section 3.03(a).
"Servicing Advances": All customary, reasonable and necessary "out
of pocket" costs and expenses (including attorneys' fees and expenses and fees
of real estate brokers) incurred by the Master Servicer, the Special Servicer or
the Trustee, as applicable, in connection with the servicing and administering
of (a) a Mortgage Loan (and in the case of an AB Mortgage Loan, the related
Companion Loan) in respect of which a default, delinquency or other
unanticipated event has occurred or as to which a default is reasonably
foreseeable or (b) an REO Property, including (in the case of each of such
clause (a) and clause (b)), but not limited to, (x) the cost of (i) compliance
with the Master Servicer's obligations set forth in Section 3.03(c), (ii) the
preservation, restoration and protection of a Mortgaged Property, (iii)
obtaining any Insurance and Condemnation Proceeds or any Liquidation Proceeds of
the nature described in clauses (i)-(iv) of the definition of "Liquidation
Proceeds," (iv) any enforcement or judicial proceedings with respect to a
Mortgaged Property, including foreclosures and (v) the operation, leasing,
management, maintenance and liquidation of any REO Property and (y) any amount
specifically designated herein to be paid as a "Servicing Advance".
Notwithstanding anything to the contrary, "Servicing Advances" shall not include
allocable overhead of the Master Servicer, such as costs for office space,
office equipment, supplies and related expenses, employee salaries and related
expenses and similar internal costs and expenses or costs and expenses incurred
by any such party in connection with its purchase of a Mortgage Loan or REO
Property.
"Servicing Fee": With respect to each Mortgage Loan, Companion Loan
and REO Loan, the fee payable to the Master Servicer pursuant to the first
paragraph of Section 3.11(a).
"Servicing Fee Amount": With respect to the Master Servicer and any
date of determination, the aggregate of the products obtained by multiplying,
for each Mortgage Loan, (a) the Stated Principal Balance of such Mortgage Loan
as of the end of the immediately preceding Due Period and (b) the difference
between the Servicing Fee Rate for such Mortgage Loan over the servicing fee
rate (if any) applicable to such Mortgage Loan as specified in any Sub-Servicing
Agreement related to such Mortgage Loan. With respect to each Sub-Servicer and
any date of determination, the aggregate of the products obtained by
multiplying, for each Mortgage Loan serviced by such Sub-Servicer, (a) the
Stated Principal Balance of such Mortgage Loan as of the end of the immediately
preceding Due Period and (b) the servicing fee rate specified in the related
Sub-Servicing Agreement for such Mortgage Loan.
"Servicing Fee Rate": With respect to each Mortgage Loan and REO
Loan, a rate equal to the per annum rate set forth on the Mortgage Loan Schedule
under the heading "Servicing Fee Rate," in each case computed on the basis of
the Stated Principal Balance of the related Mortgage Loan.
"Servicing File": Shall mean a photocopy of all items required to be
included in the Mortgage File, together with each of the following, to the
extent such items were actually delivered to the related Mortgage Loan Seller
with respect to a Mortgage Loan and (to the extent that the identified documents
existed on the Closing Date and the applicable reference to Servicing File
relates to any period after the Closing Date) delivered by the related Mortgage
Loan Seller to the Master Servicer: (i) a copy of any engineering reports,
environmental reports or property condition reports; (ii) other than with
respect to a hotel property (except with respect to tenanted commercial space
within a hotel property), copies of a rent roll and, for any office, retail,
industrial or warehouse property, a copy of all leases and estoppels and
subordination and non-disturbance agreements delivered to the Mortgage Loan
Seller; (iii) copies of related financial statements or operating statements;
(iv) all legal opinions (excluding attorney-client communications between the
Mortgage Loan Seller and its counsel which are privileged communications or
constitute legal or other due diligence analyses), Mortgagor's Certificates and
certificates of hazard insurance and/or hazard insurance policies or other
applicable insurance policies, if any, delivered in connection with the closing
of the Mortgage Loan; (v) a copy of the Appraisal for the related Mortgaged
Property(ies); and (vi) for any Mortgage Loan that the related Mortgaged
Property is leased to a single tenant, a copy of the lease.
"Servicing Officer": Any officer and/or employee of the Master
Servicer or the Special Servicer involved in, or responsible for, the
administration and servicing of the Mortgage Loans, whose name and specimen
signature appear on a list of servicing officers furnished by the Master
Servicer and the Special Servicer to the Paying Agent, the Trustee and the
Depositor on the Closing Date as such list may be amended from time to time
thereafter.
"Servicing-Released Bid": As defined in Section 7.01(c).
"Servicing-Retained Bid": As defined in Section 7.01(c).
"Servicing Standard": With respect to the Master Servicer, the
Master Servicer Servicing Standard and with respect to the Special Servicer, the
Special Servicer Servicing Standard.
"Servicing Transfer Event": With respect to any Mortgage Loan or
Companion Loan, the occurrence of any of the following events:
(i) a payment default shall have occurred at the original
Maturity Date, or, if the original Maturity Date of such Mortgage
Loan or Companion Loan has been extended, a payment default shall
have occurred at such extended Maturity Date; or
(ii) any Monthly Payment (other than a Balloon Payment) is
more than 60 days delinquent (unless, in the case of each AB
Mortgage Loan, prior to such Monthly Payment becoming more than 60
days delinquent the holder of the related Companion Loan cures such
delinquency); or
(iii) the Master Servicer makes a judgment, or receives from
the Special Servicer a written determination of the Special Servicer
that a payment default is imminent and is not likely to be cured by
the related Mortgagor within 60 days; or
(iv) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case
under any present or future federal or state bankruptcy, insolvency
or similar law, or the appointment of a conservator, receiver or
liquidator in any insolvency, readjustment of debt, marshaling of
assets and liabilities or similar proceedings, or for the winding-up
or liquidation of its affairs, is entered against the related
Mortgagor; provided, that if such decree or order is discharged or
stayed within 60 days of being entered, or if, as to a bankruptcy,
the automatic stay is lifted within 60 days of a filing for relief
or the case is dismissed, upon such discharge, stay, lifting or
dismissal such Mortgage Loan or Companion Loan shall no longer be a
Specially Serviced Mortgage Loan (and no Special Servicing Fees,
Workout Fees or Liquidation Fees will be payable with respect
thereto and any such fees actually paid shall be reimbursed by the
Special Servicer); or
(v) the related Mortgagor shall consent to the appointment of
a conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshaling of assets and liabilities or
similar proceedings of or relating to such Mortgagor or of or
relating to all or substantially all of its property; or
(vi) the related Mortgagor shall admit in writing its
inability to pay its debts generally as they become due, file a
petition to take advantage of any applicable insolvency or
reorganization statute, make an assignment for the benefit of its
creditors, or voluntarily suspend payment of its obligations; or
(vii) a default of which the Master Servicer has notice (other
than a failure by such Mortgagor to pay principal or interest) and
which the Master Servicer determines in its good faith reasonable
judgment may materially and adversely affect the interests of the
Certificateholders or the holders of the related Companion Loan, if
applicable, has occurred and remained unremedied for the applicable
grace period specified in the related Mortgage Loan or Companion
Loan (or if no grace period is specified for those defaults which
are capable of cure, 60 days); or
(viii) the Master Servicer has received notice of the
foreclosure or proposed foreclosure of any other lien on the related
Mortgaged Property;
provided, if the Companion Loan becomes a Specially Serviced Mortgage Loan, the
AB Mortgage Loan shall also become a Specially Serviced Mortgage Loan. If the AB
Mortgage Loan becomes a Specially Serviced Mortgage Loan, the Companion Loan
shall become a Specially serviced Mortgage Loan.
"Similar Law": As defined in Section 5.02(c).
"Sole Certificateholder": Any Certificate Owner of a book-entry
Certificate or a Holder of a definitive Certificate holding 100% of the Class
X-1, Class X-2, Class A-1A, Class F, Class G, Class H, Class J, Class K, Class
L, Class M, Class N, Class P, Class Q and Class NR Certificates or, with respect
to such Classes of Certificates an assignment of the voting rights thereof;
provided, however, that the Certificate Balances of the Class A-1, Class A-2,
Class A-3, Class A-4, Class A-5, Class A-J, Class B, Class C, Class D and Class
E Certificates have been retired.
"Special Servicer": X.X. Xxxxxx Company, Inc., and its successors
and assigns, or any successor Special Servicer appointed as herein provided.
"Special Servicer Servicing Standard": As defined in Section
3.01(a)(ii).
"Special Servicing Fee": With respect to each Specially Serviced
Mortgage Loan and REO Loan, the fee payable to the Special Servicer pursuant to
the first paragraph of Section 3.11(b).
"Special Servicing Fee Rate": With respect to each Specially
Serviced Mortgage Loan and each REO Loan, 0.25% per annum computed on the basis
of the Stated Principal Balance of the related Mortgage Loan (including any REO
Loan) or Companion Loan (if provided for under the related Intercreditor
Agreement) or REO Loan in the same manner as interest is calculated on the
Specially Serviced Mortgage Loans.
"Specially Serviced Mortgage Loan": As defined in Section 3.01(a).
"Startup Day": The day designated as such in Section 10.01(b).
"Stated Principal Balance": With respect to any Mortgage Loan, as of
any date of determination, an amount equal to (x) the Cut-off Date Principal
Balance of such Mortgage Loan (or in the case of a Qualified Substitute Mortgage
Loan, the unpaid principal balance of such Mortgage Loan after application of
all scheduled payments of principal and interest due during or prior to the
month of substitution, whether or not received), plus (y) any Mortgage Deferred
Interest added to the principal balance of such Mortgage Loan on or before the
end of the immediately preceding Due Period minus (z) the sum of:
(i) the principal portion of each Monthly Payment due on such
Mortgage Loan after the Cut-off Date, to the extent received from
the Mortgagor or advanced by the Master Servicer;
(ii) all Principal Prepayments received with respect to such
Mortgage Loan after the Cut-off Date;
(iii) the principal portion of all Insurance and Condemnation
Proceeds (to the extent allocable to principal on the related
Mortgage Loan) and Liquidation Proceeds received with respect to
such Mortgage Loan after the Cut-off Date; and
(iv) any reduction in the outstanding principal balance of
such Mortgage Loan resulting from a Deficient Valuation that
occurred prior to the end of the Due Period for the most recent
Distribution Date.
With respect to any REO Loan that is a successor to a Mortgage Loan,
as of any date of determination, an amount equal to (x) the Stated Principal
Balance of the predecessor Mortgage Loan as of the date of the related REO
Acquisition, minus (y) the sum of:
(i) the principal portion of any P&I Advance made with respect
to such REO Loan; and
(ii) the principal portion of all Insurance and Condemnation
Proceeds (to the extent allocable to principal on the related
Mortgage Loan), Liquidation Proceeds, REO Revenues received with
respect to such REO Loan.
A Mortgage Loan or a REO Loan that is a successor to a Mortgage Loan
shall be deemed to be part of the Trust Fund and to have an outstanding Stated
Principal Balance until the Distribution Date on which the payments or other
proceeds, if any, received in connection with a Liquidation Event in respect
thereof are to be (or, if no such payments or other proceeds are received in
connection with such Liquidation Event, would have been) distributed to
Certificateholders.
With respect to any Companion Loan on any date of determination, the
Stated Principal Balance shall equal the unpaid principal balance of such
Companion Loan as of such date.
"Statement to Certificateholders": As defined in Section 4.02(a).
"Subordinate Certificate": Any Class A-J, Class B, Class C, Class D,
Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N,
Class P, Class Q or Class NR Certificate.
"Sub-Servicer": Any Person with which the Master Servicer has
entered into a Sub-Servicing Agreement.
"Sub-Servicing Agreement": The written contract between the Master
Servicer or the Special Servicer, as the case may be, and any Sub-Servicer
relating to servicing and administration of Mortgage Loans as provided in
Section 3.22.
"Substitution Shortfall Amount": With respect to a substitution
pursuant to Section 2.03(b) hereof, an amount equal to the excess, if any, of
the Purchase Price of the Mortgage Loan being replaced calculated as of the date
of substitution over the Stated Principal Balance of the related Qualified
Substitute Mortgage Loan. In the event that one or more Qualified Substitute
Mortgage Loans are substituted (at the same time by the same Mortgage Loan
Seller) for one or more deleted Mortgage Loans, the Substitution Shortfall
Amount shall be determined as provided in the preceding sentence on the basis of
the aggregate Purchase Prices of the Mortgage Loan or Mortgage Loans being
replaced and the aggregate Stated Principal Balances of the related Qualified
Substitute Mortgage Loans.
"Successful Bidder": As defined in Section 7.01(c).
"Tax Returns": The federal income tax returns on Internal Revenue
Service Form 1066, U.S. Real Estate Mortgage Investment Conduit (REMIC) Income
Tax Return, including Schedule Q thereto, Quarterly Notice to Residual Interest
Holders of REMIC Taxable Income or Net Loss Allocation, or any successor forms,
to be filed on behalf of each of the Upper-Tier REMIC and the Lower-Tier REMIC
due to its classification as a REMIC under the REMIC Provisions, and the
applicable federal income tax returns to be filed on behalf of the Grantor
Trust, together with any and all other information, reports or returns that may
be required to be furnished to the Certificateholders or filed with the Internal
Revenue Service or any other governmental taxing authority under any applicable
provisions of federal tax law or Applicable State and Local Tax Law.
"Transfer": Any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"Transfer Affidavit": As defined in Section 5.02(d).
"Transferable Servicing Interest": Subject to reduction by the
Trustee pursuant to Section 3.11(a), the amount by which the Servicing Fee
otherwise payable to the Master Servicer hereunder exceeds the sum of (i) the
Primary Servicing Fee and (ii) the amount of the Servicing Fee calculated using
the Retained Fee Rate.
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
"Transferor": Any Person who is disposing by Transfer any Ownership
Interest in a Certificate.
"Transferor Letter": As defined in Section 5.02(d).
"Trust": The trust created hereby and to be administered hereunder.
"Trust Fund": The corpus of the trust created hereby and to be
administered hereunder, consisting of: (i) such Mortgage Loans as from time to
time are subject to this Agreement, together with the Mortgage Files relating
thereto; (ii) all scheduled or unscheduled payments on or collections in respect
of the Mortgage Loans due after the Cut-off Date (or with respect to a Qualified
Substitute Mortgage Loan, the Due Date in the month of substitution); (iii) any
REO Property (to the extent of the Trust Fund's interest therein); (iv) all
revenues received in respect of any REO Property (to the extent of the Trust
Fund's interest therein); (v) the Master Servicer's, the Special Servicer's and
the Trustee's rights under the insurance policies with respect to the Mortgage
Loans required to be maintained pursuant to this Agreement and any proceeds
thereof (to the extent of the Trust Fund's interest therein); (vi) any
Assignments of Leases and any security agreements (to the extent of the Trust
Fund's interest therein); (vii) any letters of credit, indemnities, guaranties
or lease enhancement policies given as additional security for any Mortgage
Loans (to the extent of the Trust Fund's interest therein); (viii) all assets
deposited in the Servicing Accounts (to the extent of the Trust Fund's interest
therein), amounts on deposit in the Certificate Account, the Lower-Tier
Distribution Account, the Upper-Tier Distribution Account, the Excess Interest
Distribution Account, the Interest Reserve Account, the Gain-on-Sale Reserve
Account and any REO Account (to the extent of the Trust Fund's interest in such
REO Account), including any reinvestment income, as applicable; (ix) any
Environmental Indemnity Agreements (to the extent of the Trust Fund's interest
therein); (x) the rights and remedies of the Depositor under each Mortgage Loan
Purchase Agreement (to the extent transferred to the Trustee); (xi) the
Uncertificated Lower-Tier Interests; and (xii) the proceeds of the foregoing
(other than any interest earned on deposits in the Lock-Box Accounts, Cash
Collateral Accounts, Escrow Accounts and any Reserve Accounts, to the extent
such interest belongs to the related Mortgagor).
"Trustee": Xxxxx Fargo Bank, N.A., a national banking association,
in its capacity as trustee and its successors in interest, or any successor
Trustee appointed as herein provided.
"Trustee Exception Report": As defined in Section 2.02(f).
"Trustee Fee": The fee to be paid to the Trustee as compensation for
the Trustee's activities under this Agreement. The Trustee Fee includes the
Paying Agent Fee. No portion of the Trustee Fee shall be calculated by reference
to any Companion Loan or the principal balance of any Companion Loan.
"Trustee Fee Rate": A rate equal to 0.00145% per annum computed on
the basis of the Stated Principal Balance of the related Mortgage Loan (and in
the same manner as interest is calculated on the related Mortgage Loan) as of
the preceding Distribution Date. The Trustee Fee Rate includes the Paying Agent
Fee Rate.
"Trustee's Direction": As defined in Section 7.01(a).
"UCC": The Uniform Commercial Code, as enacted in each applicable
state.
"UCC Financing Statement": A financing statement prepared and filed
pursuant to the UCC, as in effect in the relevant jurisdiction.
"Uncertificated Lower-Tier Interests": Any of the Class LA-1-1,
Class LA-1-2, Class LA-1-3, Class LA-1-4, Class LA-1A-1, Class LA-1A-2, Class
LA-1A-3, Class LA-1A-4, Class LA-1A-5, Class LA-1A-6, Class LA-1A-7, Class
LA-1A-8, Class LA-1A-9, Class LA-1A-10, Class LA-1A-11, Class LA-1A-12, Class
LA-1A-13, Class LA-1A-14, Class LA-1A-15, Class LA-2-1, Class LA-2-2, Class
LA-3-1, Class LA-3-2, Class LA-3-3, Class LA-3-4, Class LA-3-5, Class LA-3-6,
Class LA-4-1, Class LA-4-2, Class LA-4-3, Class LA-4-4, Class LA-5-1, Class
LA-5-2, Class LA-5-3, Class LA-J, Class LB, Class LC, Class LD, Class LE, Class
LF-1, Class LF-2, Class LG-1, Class LG-2, Class LG-3, Class LG-4, Class LH-1,
Class LH-2, Class LJ-1, Class LJ-2, Class LJ-3, Class LK, Class LL-1, Class
LL-2, Class LM, Class LN, Class LP, Class LQ and Class LNR Uncertificated
Interests.
"Underwriters": X.X. Xxxxxx Securities Inc., Nomura Securities
International, Inc., Deutsche Bank Securities Inc. and PNC Capital Markets, Inc.
"Uninsured Cause": Any cause of damage to property subject to a
Mortgage such that the complete restoration of such property is not fully
reimbursable by the hazard insurance policies or flood insurance policies
required to be maintained pursuant to Section 3.07.
"Unliquidated Advance": Any Advance previously made by a party
hereto that has been previously reimbursed, as between the Person that made the
Advance hereunder, on the one hand, and the Trust Fund, on the other, as part of
a Workout-Delayed Reimbursement Amount pursuant to subsections (iii) and (iv) of
Section 3.05(a) but that has not been recovered from the Mortgagor or otherwise
from collections on or the proceeds of the Mortgage Loan or REO Property in
respect of which the Advance was made.
"Unscheduled Principal Distribution Amount": With respect to any
Distribution Date and the Mortgage Loans, the aggregate of (a) all Principal
Prepayments received on such Mortgage Loans on or prior to the Determination
Date (or, with respect to each Mortgage Loan with a Due Date occurring or a
grace period ending after the related Determination Date, the related Due Date
or last day of such grace period, as applicable) and (b) the principal portions
of all Liquidation Proceeds, Insurance and Condemnation Proceeds (net of Special
Servicing Fees, Liquidation Fees, accrued interest on Advances and other
additional Trust Fund expenses incurred in connection with the related Mortgage
Loan) and, if applicable, REO Revenues received with respect to such Mortgage
Loans and any REO Loans on or prior to the related Determination Date (or, with
respect to each Mortgage Loan with a Due Date occurring or a grace period ending
after the related Determination Date, the related Due Date or last day of such
grace period, as applicable), but in each case only to the extent that such
principal portion represents a recovery of principal for which no advance was
previously made pursuant to Section 4.03 in respect of a preceding Distribution
Date.
"Upper-Tier Distribution Account": The segregated account or
accounts (or a subaccount of the Distribution Account) created and maintained by
the Paying Agent pursuant to Section 3.04(b) in trust for the
Certificateholders, which shall be entitled "JPMorgan Chase Bank, National
Association, as Paying Agent, in trust for the registered Holders of X.X. Xxxxxx
Xxxxx Commercial Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2004-C3, Upper-Tier Distribution Account." Any such account
or accounts shall be an Eligible Account (or a subaccount of the Distribution
Account).
"Upper-Tier REMIC": One of the two separate REMICs comprising the
Trust Fund, the assets of which consist of the Uncertificated Lower-Tier
Interests and such amounts as shall from time to time be held in the Upper-Tier
Distribution Account.
"U.S. Dollars": Lawful money of the United States of America.
"U.S. Person": A citizen or resident of the United States, a
corporation or partnership (except to the extent provided in applicable Treasury
Regulations) or other entity created or organized in, or under the laws of, the
United States, any State thereof or the District of Columbia, including any
entity treated as a corporation or partnership for federal income tax purposes,
an estate whose income is subject to United States federal income tax regardless
of its source or a trust if a court within the United States is able to exercise
primary supervision over the administration of such trust, and one or more such
U.S. Persons have the authority to control all substantial decisions of such
trust (or, to the extent provided in applicable Treasury Regulations, certain
trusts in existence on August 20, 1996 which are eligible to elect to be treated
as U.S. Persons).
"Voting Rights": The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. At all times during the term
of this Agreement, the Voting Rights shall be allocated among the various
Classes of Certificateholders as follows: (i) 4% in the case of the Class X
Certificates (allocated pro rata, between the Class X-1 and Class X-2
Certificates based upon their Class Notional Amounts) and (ii) in the case of
any other Class of Regular Certificates (other than the Class X certificates) a
percentage equal to the product of 96% and a fraction, the numerator of which is
equal to the aggregate Certificate Balance of such Class, in each case,
determined as of the Distribution Date immediately preceding such time, and the
denominator of which is equal to the aggregate Certificate Balance of the
Regular Certificates (other than the Class X Certificates), each determined as
of the Distribution Date immediately preceding such time. None of the Class S
Certificates, the Class R Certificates and the Class LR Certificates will be
entitled to any Voting Rights. Voting Rights allocated to a Class of
Certificateholders shall be allocated among such Certificateholders in
proportion to the Percentage Interests evidenced by their respective
Certificates. Appraisal Reductions shall not result in a change in the Class
Voting Rights of any Class of Regular Certificates.
"Weighted Average Net Mortgage Rate": With respect to any
Distribution Date, the weighted average of the applicable Net Mortgage Rates of
the Mortgage Loans as of the first day of the related Due Period, weighted on
the basis of their respective Stated Principal Balances as of the first day of
such Due Period (after giving effect to any payments received during any
applicable grace period).
"Withheld Amounts": As defined in Section 3.26(a).
"Workout-Delayed Reimbursement Amounts": With respect to any
Mortgage Loan, the amount of any Advances made with respect to such Mortgage
Loan on or before the date such Mortgage Loan becomes (or, but for the making of
three Monthly Payments under its modified terms, would then constitute) a
Corrected Mortgage Loan, together with (to the extent accrued and unpaid)
interest on such Advances, to the extent that (i) such Advance (and accrued and
unpaid interest thereon) is not reimbursed to the Person who made such Advance
on or before the date, if any, on which such Mortgage Loan becomes a Corrected
Mortgage Loan and (ii) the amount of such Advance (and accrued and unpaid
interest thereon) becomes an obligation of the Mortgagor to pay such amount
under the terms of the modified loan documents. That any amount constitutes all
or a portion of any Workout-Delayed Reimbursement Amount shall not in any manner
limit the right of any Person hereunder to determine in the future that such
amount instead constitutes a Nonrecoverable Advance.
"Workout Fee": The fee paid to the Special Servicer with respect to
each Corrected Mortgage Loan.
"Workout Fee Rate": A fee of 1.00% of each collection (other than
Penalty Charges and Excess Interest) of interest and principal (other than any
amount for which a Liquidation Fee would be paid), including (i) Monthly
Payments, (ii) Balloon Payments and (iii) payments (other than those included in
clause (i) or (ii) of this definition) at maturity, received on each Corrected
Mortgage Loan for so long as it remains a Corrected Mortgage Loan.
"Yield Maintenance Charge": With respect to any Mortgage Loan or REO
Loan, the yield maintenance charge or prepayment premium set forth in the
related Mortgage Loan documents; provided that no amounts shall be considered
Yield Maintenance Charges until there has been a full recovery of all principal,
interest and other amounts due under the related Mortgage Loan.
Section 1.02 Certain Calculations. Unless otherwise specified
herein, for purposes of determining amounts with respect to the Certificates and
the rights and obligations of the parties hereto, the following provisions shall
apply:
(i) All calculations of interest (other than as provided in the
Mortgage Loan documents) provided for herein shall be made on the basis of
a 360-day year consisting of twelve 30-day months.
(ii) Any Mortgage Loan payment is deemed to be received on the date
such payment is actually received by the Master Servicer, the Special
Servicer, the Paying Agent or the Trustee; provided, however, that for
purposes of calculating distributions on the Certificates, Principal
Prepayments with respect to any Mortgage Loan are deemed to be received on
the date they are applied in accordance with the Servicing Standards
consistent with the terms of the related Mortgage Note and Mortgage to
reduce the outstanding principal balance of such Mortgage Loan on which
interest accrues.
(iii) Any reference to the Certificate Balance of any Class of
Certificates on or as of a Distribution Date shall refer to the
Certificate Balance of such Class of Certificates on such Distribution
Date after giving effect to (a) any distributions made on such
Distribution Date pursuant to Section 4.01(a), (b) any Collateral Support
Deficit allocated to such Class on the immediately preceding Distribution
Date pursuant to Section 4.04, (c) the addition of any Certificate
Deferred Interest allocated to such Class and added to such Certificate
Balance pursuant to Section 4.06(b) and (d) any recoveries on the related
Mortgage Loan of Nonrecoverable Advances (plus interest thereon) that were
previously reimbursed from principal collections on the Mortgage Loans
that resulted in a reduction of the Principal Distribution Amount, Loan
Group 1 Principal Distribution Amount or Loan Group 2 Principal
Distribution Amount, which recoveries are allocated to such Class and
added to the Certificate Balance pursuant to Section 4.04 (a).
(iv) For purposes of calculations required herein, Excess Interest
shall not be added to the outstanding principal balance of the Mortgage
Loans notwithstanding that the related Loan Documents may provide
otherwise.
[End of Article I]
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans. (a) The Depositor,
concurrently with the execution and delivery hereof, does hereby establish a
trust, appoint the Trustee as trustee of the trust, assign, sell, transfer and
convey to the Trustee, in trust, without recourse, for the benefit of the
Certificateholders and the Trustee (as holder of the Uncertificated Lower-Tier
Interests) all the right, title and interest of the Depositor, including any
security interest therein for the benefit of the Depositor, in, to and under (i)
the Mortgage Loans identified on the Mortgage Loan Schedule, (ii) Sections 1, 2,
3, 4, 5, 6(a) (excluding clause (viii) of Section 6(a)), 6(c), 6(d), 6(e), 6(f),
6(g), 10, 11, 13, 14, 15, 17, 18 and 19 of each of the Mortgage Loan Purchase
Agreements, (iii) the Intercreditor Agreements and (iv) all other assets
included or to be included in the Trust Fund. Such assignment includes all
interest and principal received or receivable on or with respect to the Mortgage
Loans (other than (i) payments of principal and interest due and payable on the
Mortgage Loans on or before the Cut-off Date; (ii) prepayments of principal
collected on or before the Cut-off Date and (iii)with respect to those Mortgage
Loans that were closed in November 2004 but have their first Due Date in January
2005, any interest amounts relating to the period prior to the Cut-off Date).
The transfer of the Mortgage Loans and the related rights and property
accomplished hereby is absolute and, notwithstanding Section 11.07, is intended
by the parties to constitute a sale. In connection with the assignment to the
Trustee of Sections 1, 2, 3, 4, 5, 6(a) (excluding clause (viii) of Section
6(a)), 6(c), 6(d), 6(e), 6(f), 6(g), 10, 11, 13, 14, 15, 17, 18 and 19 of each
of the Mortgage Loan Purchase Agreements, it is intended that the Trustee get
the benefit of Sections 10, 11 and 14 thereof in connection with any exercise of
rights under the assigned Sections, and the Depositor shall use its best efforts
to make available to the Trustee the benefits of Sections 10, 11 and 14 in
connection therewith.
(b) In connection with the Depositor's assignment pursuant to
subsection (a) above, the Depositor shall direct, and hereby represents and
warrants that it has directed, each of the Mortgage Loan Sellers pursuant to the
applicable Mortgage Loan Purchase Agreement to deliver to and deposit with, or
cause to be delivered to and deposited with, the Trustee or a Custodian
appointed thereby, on or before the Closing Date, the Mortgage File for each
Mortgage Loan so assigned, with copies to the Master Servicer. If the applicable
Mortgage Loan Seller cannot deliver, or cause to be delivered, as to any
Mortgage Loan, the original Mortgage Note, the delivery requirements of the
applicable Mortgage Loan Purchase Agreement and this Section 2.01(b) shall be
deemed to have been satisfied, provided such Mortgage Loan Seller shall deliver
a copy or duplicate original of such Mortgage Note, together with an affidavit
certifying that the original thereof has been lost or destroyed and indemnifying
the Trustee. If the applicable Mortgage Loan Seller cannot deliver, or cause to
be delivered, as to any Mortgage Loan, any of the documents and/or instruments
referred to in clauses (ii), (iv), (viii), (xi) and (xii) of the definition of
"Mortgage File," with evidence of filing or recording thereon (if intended to be
recorded or filed), solely because of a delay caused by the public filing or
recording office where such document or instrument has been delivered for filing
or recordation, the delivery requirements of the applicable Mortgage Loan
Purchase Agreement and this Section 2.01(b) shall be deemed to have been
satisfied on a provisional basis as of the Closing Date as to such non-delivered
document or instrument, and such non-delivered document or instrument shall be
deemed to have been included in the Mortgage File, if a duplicate original or a
photocopy of such non-delivered document or instrument (certified by the
applicable public filing or recording office, the applicable title insurance
company or the applicable Mortgage Loan Seller to be a true and complete copy of
the original thereof submitted for filing or recording) is delivered to the
Trustee or a Custodian appointed thereby on or before the Closing Date, and
either the original of such non-delivered document or instrument, or a photocopy
thereof (certified by the appropriate county recorder's office, in the case of
the documents and/or instruments referred to in clause (ii) of the definition of
"Mortgage File," to be a true and complete copy of the original thereof
submitted for recording), with evidence of filing or recording thereon, is
delivered to the Trustee or such Custodian within 180 days of the Closing Date
(or within such longer period, not to exceed 18 months, after the Closing Date
as the Trustee may consent to, which consent shall not be unreasonably withheld
so long as the applicable Mortgage Loan Seller is, as certified in writing to
the Trustee no less often than every 90 days, attempting in good faith to obtain
from the appropriate public filing office or county recorder's office such
original or photocopy). If the applicable Mortgage Loan Seller cannot deliver,
or cause to be delivered, as to any Mortgage Loan, any of the documents and/or
instruments referred to in clauses (ii), (iv), (viii), (xi) and (xii) of the
definition of "Mortgage File," with evidence of filing or recording thereon, for
any other reason, including, without limitation, that such non-delivered
document or instrument has been lost or destroyed, the delivery requirements of
the applicable Mortgage Loan Purchase Agreement and this Section 2.01(b) shall
be deemed to have been satisfied as to such non-delivered document or
instrument, and such non-delivered document or instrument shall be deemed to
have been included in the Mortgage File, if a photocopy of such non-delivered
document or instrument (with evidence of filing or recording thereon and
certified in the case of the documents and/or instruments referred to in clause
(ii) of the definition of "Mortgage File" by the appropriate county recorder's
office to be a true and complete copy of the original thereof submitted for
recording) is delivered to the Trustee or a Custodian appointed thereby on or
before the Closing Date. Neither the Trustee nor any Custodian shall in any way
be liable for any failure by any Mortgage Loan Seller or the Depositor to comply
with the delivery requirements of the related Mortgage Loan Purchase Agreement
and this Section 2.01(b). If, on the Closing Date as to any Mortgage Loan, the
applicable Mortgage Loan Seller cannot deliver in complete and recordable form
(or form suitable for filing or recording, if applicable) any one of the
assignments in favor of the Trustee referred to in clause (iii), (v) (to the
extent not already assigned pursuant to clause (iii)) or (xi) of the definition
of "Mortgage File" solely because of the unavailability of filing or recording
information as to any existing document or instrument and/or because such
assignments are assignments in blank and have not been completed in favor of the
Trustee as specified in the related clause(s) of the definition of "Mortgage
File," such Mortgage Loan Seller may provisionally satisfy the delivery
requirements of the related Mortgage Loan Purchase Agreement and this Section
2.01(b) by delivering with respect to such Mortgage Loan on the Closing Date an
omnibus assignment of such Mortgage Loan substantially in the form of Exhibit H;
provided that all required original assignments with respect to such Mortgage
Loan, in fully complete and recordable form (or form suitable for filing or
recording, if applicable), are delivered to the Trustee or its Custodian within
180 days after the Closing Date (or within such longer period, not to exceed 18
months, as the Trustee in its discretion may consent to, which consent shall not
be unreasonably withheld so long as the applicable Mortgage Loan Seller is, as
certified in writing to the Trustee no less often than every 90 days, attempting
in good faith to obtain from the appropriate public filing office or county
recorder's office the applicable filing or recording information as to the
related document or instrument). Notwithstanding anything herein to the
contrary, with respect to letters of credit, the applicable Mortgage Loan Seller
shall deliver to the Master Servicer and the Master Servicer shall hold the
original (or copy, if such original has been submitted by the applicable
Mortgage Loan Seller to the issuing bank to effect an assignment or amendment of
such letter of credit (changing the beneficiary thereof to the Trust (in care of
the Master Servicer) that may be required in order for the Master Servicer to
draw on such letter of credit on behalf of the Trust in accordance with the
applicable terms thereof and/or of the related Mortgage Loan documents) and the
applicable Mortgage Loan Seller shall be deemed to have satisfied the delivery
requirements of the related Mortgage Loan Purchase Agreement and this Section
2.01(b) by delivering with respect to any letter of credit a copy thereof to the
Trustee together with an officer's certificate of the applicable Mortgage Loan
Seller certifying that such document has been delivered to the Master Servicer
or an officer's certificate from the Master Servicer certifying that it holds
the letter(s) of credit pursuant to this Section 2.01(b), one of which shall be
delivered to the Trustee on the Closing Date. If a letter of credit referred to
in the previous sentence is not in a form that would allow the Master Servicer
to draw on such letter of credit on behalf of the Trust in accordance with the
applicable terms thereof and/or of the related Mortgage Loan documents, the
applicable Mortgage Loan Seller shall deliver the appropriate assignment or
amendment documents (or copies of such assignment or amendment documents if the
related Mortgage Loan Seller has submitted the originals to the related issuer
of such letter of credit for processing) to the Master Servicer within 30 days
of the Closing Date. The applicable Mortgage Loan Seller shall pay any costs of
assignment or amendment of such letter(s) of credit required in order for the
Master Servicer to draw on such letter(s) of credit on behalf of the Trust and
shall cooperate with the reasonable requests of the Master Servicer or the
Special Servicer, as applicable, in connection with effectuating a draw under
any such letter of credit prior to the date such letter of credit is assigned or
amended in order that it may be drawn by the Master Servicer on behalf of the
Trust.
(c) Pursuant to each Mortgage Loan Purchase Agreement, the related
Mortgage Loan Seller is required at its sole cost and expense, to itself, or to
engage a third party to, put each Assignment of Mortgage, each assignment of
Assignment of Leases and each assignment of each UCC Financing Statement
("Assignments" and, individually, "Assignment") relating to the Mortgage Loans
conveyed by it under the applicable Mortgage Loan Purchase Agreement in proper
form for filing or recording, as applicable, and to submit such Assignments for
filing or recording, as the case may be, in the applicable public filing or
recording office, and on the Closing Date, such Mortgage Loan Seller may deliver
one (1) omnibus assignment for all such Mortgage Loans to the Trustee or its
Custodian as provided in Section 2.01(b). Except under the circumstances
provided for in the last sentence of this subsection (c), the related Mortgage
Loan Seller will itself, or a third party at such Mortgage Loan Seller's expense
will, promptly (and in any event within 120 days after the later of the Closing
Date and the Trustee's actual receipt of the related documents and the necessary
recording and filing information) cause to be submitted for recording or filing,
as the case may be, in the appropriate public office for real property records
or UCC Financing Statements, as appropriate, each assignment to the Trustee
referred to in clauses (iii) and (v) of the definition of "Mortgage File" and
each UCC assignment to the Trustee referred to in clause (xi) of the definition
of "Mortgage File." Each such Assignment submitted for recording shall reflect
that it should be returned by the public recording office to the Trustee or its
designee following recording (or to the agent of the Mortgage Loan Seller who
will then be responsible for delivery of the same to the Trustee or its
designee), and each such UCC assignment submitted for recording or filing shall
reflect that the file copy thereof should be returned to the Trustee or its
designee following recording or filing (or to the agent of the Mortgage Loan
Seller who will then be responsible for delivery of the same to the Trustee or
its designee). If any such document or instrument is determined to be incomplete
or not to meet the recording or filing requirements of the jurisdiction in which
it is to be recorded or filed, or is lost by the public office or returned
unrecorded or unfiled, as the case may be, because of a defect therein, on or
about 180 days after the Closing Date, the related Mortgage Loan Seller or its
designee shall prepare, at its own expense, a substitute therefor or cure such
defect, as the case may be, and thereafter the Mortgage Loan Seller or its
designee shall, at the expense of the related Mortgage Loan Seller, upon receipt
thereof cause the same to be duly recorded or filed, as appropriate. If, by the
first anniversary of the Closing Date, the Trustee has not received confirmation
of the recording or filing as the case may be, of any such Assignment, it shall
so advise the related Mortgage Loan Seller who may then pursue such confirmation
itself or request that the Trustee pursue such confirmation at the related
Mortgage Loan Seller's expense, and upon such a request and provision for
payment of such expenses satisfactory to the Trustee, the Trustee, at the
expense of the applicable Mortgage Loan Seller, shall cause a search of the land
records of each applicable jurisdiction or of the records of the offices of the
applicable Secretary of State for confirmation that the Assignment appears in
such records and retain a copy of such confirmation in the related Mortgage
File. In the event that confirmation of the recording or filing of an Assignment
cannot be obtained, the Trustee or the related Mortgage Loan Seller, as
applicable, shall promptly inform the other and the Trustee shall provide such
Mortgage Loan Seller with a copy of the Assignment and request the preparation
of a new Assignment. The related Mortgage Loan Seller shall pay the expenses for
the preparation of replacement Assignments for any Assignments which, having
been properly submitted for filing or recording to the appropriate governmental
office by the Trustee, fail to appear of record and must be resubmitted.
Notwithstanding the foregoing, there shall be no requirement to record any
assignment to the Trustee referred to in clause (iii) or (v) of the definition
of "Mortgage File," or to file any UCC-3 to the Trustee referred to in clause
(xi) of the definition of "Mortgage File," in those jurisdictions where, in the
written opinion of local counsel (which opinion shall be an expense of the
related Mortgage Loan Seller) acceptable to the Depositor and the Trustee, such
recordation and/or filing is not required to protect the Trustee's interest in
the related Mortgage Loans against sale, further assignment, satisfaction or
discharge by the related Mortgage Loan Seller, the Master Servicer, the Special
Servicer, any Sub-Servicer or the Depositor.
(d) All documents and records in the Depositor's or the applicable
Mortgage Loan Seller's possession relating to the Mortgage Loans (including
financial statements, operating statements and any other information provided by
the respective Mortgagor from time to time, but excluding the applicable
Mortgage Loan Seller's internal communications and underwriting analysis
(including documents prepared by the applicable Mortgage Loan Seller or any of
its Affiliates for such purposes), draft documents, attorney-client
communications which are privileged communications or constitute legal or other
due diligence analyses and credit underwriting or due diligence analyses or
data) that (i) are not required to be a part of a Mortgage File in accordance
with the definition thereof and (ii) are reasonably necessary for the servicing
of each such Mortgage Loan, together with copies of all documents in each
Mortgage File, shall be delivered by the Depositor or the applicable Mortgage
Loan Seller to the Master Servicer within 5 Business Days after the Closing Date
and shall be held by the Master Servicer on behalf of the Trustee in trust for
the benefit of the Certificateholders (and as holder of the Uncertificated
Lower-Tier Interests) and, if applicable, on behalf of the related Companion
Holder. Such documents and records shall be any documents and records (with the
exception of any items excluded under the immediately preceding sentence) that
would otherwise be a part of the Servicing File.
(e) In connection with the Depositor's assignment pursuant to
subsection (a) above, the Depositor shall deliver, and hereby represents and
warrants that it has delivered, to the Trustee and the Master Servicer, on or
before the Closing Date, a fully executed original counterpart of each of the
Mortgage Loan Purchase Agreements, as in full force and effect, without
amendment or modification, on the Closing Date.
(f) The Depositor shall use its best efforts to require that,
promptly after the Closing Date, but in all events within three Business Days
after the Closing Date, each of the Mortgage Loan Sellers shall cause all funds
on deposit in escrow accounts maintained with respect to the Mortgage Loans
transferred by such Mortgage Loan Seller, whether such accounts are held in the
name of the applicable Mortgage Loan Seller or any other name to be transferred
to the Master Servicer (or a Sub-Servicer) for deposit into Servicing Accounts.
(g) The Paying Agent hereby acknowledges the receipt by it of the
Closing Date Deposit Amount. The Paying Agent shall hold such Closing Date
Deposit Amount in the Distribution Account and shall include the Closing Date
Deposit Amount in the Available Distribution Amount for the initial Distribution
Date. The Closing Date Deposit Amount shall remain uninvested.
Section 2.02 Acceptance by Trustee. (a) The Trustee, by the
execution and delivery of this Agreement (1) acknowledges receipt by it or a
Custodian on its behalf, subject to the provisions of Section 2.01 and the
further review provided for in this Section 2.02 and to any exceptions noted on
the Trustee Exception Report, in good faith and without notice of any adverse
claim, of the applicable documents specified in clause (i), (ii), (ix), (xv),
(xvi) (or, with respect to clause (xvi), a copy of such letter of credit and an
officer's certificate as contemplated by the third to the last sentence of
Section 2.01(b) hereof) and (xxiii) of the definition of "Mortgage File" with
respect to each Mortgage Loan, of a fully executed original counterpart of each
of the Mortgage Loan Purchase Agreements, and of all other assets included in
the Trust Fund and (2) declares (a) that it or a Custodian on its behalf holds
and will hold such documents and the other documents delivered or caused to be
delivered by the Mortgage Loan Sellers that constitute the Mortgage Files, and
(b) that it holds and will hold such other assets included in the Trust Fund, in
trust for the exclusive use and benefit of all present and future
Certificateholders and, with respect to any original document in the Mortgage
File for each Loan Pair, for any present or future Companion Holder (and for the
benefit of the Trustee as holder of the Uncertificated Lower-Tier Interests), as
applicable. If any Mortgage Loan Seller is unable to deliver or cause the
delivery of any original Mortgage Note, such Mortgage Loan Seller may deliver a
copy of such Mortgage Note, together with a signed lost note affidavit and
appropriate indemnity and shall thereby be deemed to have satisfied the document
delivery requirements of Sections 2.01 and 2.02.
(b) Within 90 days of the Closing Date, the Trustee or a Custodian
on its behalf, shall review the Mortgage Loan documents delivered or caused to
be delivered by the Mortgage Loan Sellers constituting the Mortgage Files; and,
promptly following such review (but in no event later than 90 days after the
Closing Date), the Trustee shall, in the form attached as Exhibit V, certify in
writing to each of the Rating Agencies, the Depositor, the Master Servicer, the
Special Servicer, the Directing Certificateholder and the Mortgage Loan Sellers
(and in the case of the 000 Xxxx Xxxxxx Xxxxx Whole Loan, the 000 Xxxx Xxxxxx
Xxxxx X Note Representative) that, as to each Mortgage Loan listed in the
Mortgage Loan Schedule (other than any Mortgage Loan paid in full) and except as
specifically identified in any exception report annexed to such writing (the
"Trustee Exception Report"), (i) all documents specified in clauses (i) through
(v), (ix) through (xii) and (xvi) (or, with respect to clause (xvi), a copy of
such letter of credit and an officer's certificate as contemplated by the third
to last sentence of Section 2.01(b) hereof), if any, of the definition of
"Mortgage File," as applicable, are in its possession, (ii) the foregoing
documents delivered or caused to be delivered by the Mortgage Loan Sellers have
been reviewed by it or by a Custodian on its behalf and appear regular on their
face and appear to be executed and to relate to such Mortgage Loan, and (iii)
based on such examination and only as to the foregoing documents, the
information set forth in the Mortgage Loan Schedule with respect to the items
specified in clauses (iv), (vi) and (viii)(c) in the definition of "Mortgage
Loan Schedule" is correct. With respect to each Mortgage Loan listed on the
Trustee Exception Report, the Trustee shall specifically identify such Mortgage
Loan together with the nature of such exception (in the form reasonably
acceptable to the Trustee and the related Mortgage Loan Seller and separating
items required to be in the Mortgage File but never delivered from items which
were delivered by the related Mortgage Loan Seller but are out for filing or
recording and have not been returned by the filing office or the recorder's
office).
(c) The Trustee, or a Custodian on its behalf, shall review the
Mortgage Loan documents received thereby subsequent to the Closing Date; and, on
or about the first anniversary of the Closing Date, the Trustee shall, in the
form attached as Exhibit V, certify in writing to each of the Depositor, the
Master Servicer, the Special Servicer, the Directing Certificateholder (and in
the case of the 000 Xxxx Xxxxxx Xxxxx Whole Loan, the 000 Xxxx Xxxxxx Xxxxx X
Note Representative) and the applicable Mortgage Loan Seller that, as to each
Mortgage Loan listed on the Mortgage Loan Schedule (other than any Mortgage Loan
as to which a Liquidation Event has occurred) or any Mortgage Loan specifically
identified in any exception report annexed to such writing (i) all documents
specified in clauses (i) through (v), (ix) through (xii) and (xvi) (or, with
respect to clause (xvi), a copy of such letter of credit and an officer's
certificate as contemplated by the third to last sentence of Section 2.01(b)
hereof), if any, of the definition of "Mortgage File," as applicable, are in its
possession, (ii) the foregoing documents delivered or caused to be delivered by
the Mortgage Loan Sellers have been reviewed by it or by a Custodian on its
behalf and appear regular on their face and appear to be executed and relate to
such Mortgage Loan, and (iii) based on such examination and only as to the
foregoing documents, the information set forth in the Mortgage Loan Schedule
with respect to the items specified in clauses (iv), (vi) and (viii)(c) in the
definition of "Mortgage Loan Schedule" is correct.
(d) Notwithstanding anything contained in this Section 2.02 and
Section 2.03(b) to the contrary, in the case of a deficiency in any of the
documents specified in clauses (ii) through (v), (viii), (ix), (xi) and (xii) in
the definition of "Mortgage File," resulting solely from a delay in the return
of the related documents from the applicable filing or recording office, which
deficiency (i) is continuing for (a) in the case of any Mortgage Loan that is
not a Specially Serviced Mortgage Loan, more than eighteen (18) months following
the Closing Date or (b) in the case of any Specially Serviced Mortgage Loan,
thirty (30) days following a Servicing Transfer Event, and (ii) impairs or
prohibits in any material way the Master Servicer's or Special Servicer's
ability to act upon, or enforce, any of the Trust Fund's rights and remedies
under the related Mortgage Loan, or Specially Serviced Mortgage Loan, as
applicable, at the time the Master Servicer or Special Servicer attempts to act
upon, or enforce, any such right or remedy, the Directing Certificateholder, in
its sole judgment, may permit the related Mortgage Loan Seller, in lieu of
repurchasing or substituting for the related Mortgage Loan, to deposit with the
Trustee an amount, to be held in trust in a segregated Eligible Account, equal
to 25% of the Stated Principal Balance of the related Mortgage Loan (in the
alternative, the related Mortgage Loan Seller may deliver to the Trustee a
letter of credit in such amount). Such funds or letter of credit, as applicable,
shall be held by the Trustee (i) until the date on which the Master Servicer
certifies to the Trustee that such document deficiency has been cured or the
related Mortgage Loan is no longer part of the Trust Fund, at which time the
Trustee shall return such funds (or letter of credit) to the related Mortgage
Loan Seller, or (ii) if the related Mortgage Loan is or becomes a Specially
Serviced Mortgage Loan, until the date on which the Special Servicer certifies
to the Trustee that it has determined in the exercise of its reasonable judgment
that the document with respect to which such document deficiency exists is
required in connection with an imminent enforcement of the mortgagee's rights or
remedies under the related Mortgage Loan, defending any claim asserted by any
Mortgagor or third party with respect to the related Mortgage Loan, establishing
the validity or priority of any lien on collateral securing the Mortgage Loan or
for any immediate significant servicing obligation, the related Mortgage Loan
Seller shall be required to repurchase or substitute for the related Mortgage
Loan in accordance with the terms and conditions of Section 2.03(b) or Section 6
of the related Mortgage Loan Purchase Agreement; provided, however, that such
Mortgage Loan Seller shall not be required to repurchase the Mortgage Loan for a
period of ninety (90) days after receipt of a notice to repurchase (together
with any applicable extension period) if it is attempting to recover the
document from the applicable filing or recording office and provides an
officer's certificate setting forth what actions such Mortgage Loan Seller is
pursuing in connection with such recovery. In the event of a repurchase or
substitution, upon such date, the Trustee shall deposit, or cause the Master
Servicer to deposit, such funds, or shall draw upon the letter of credit and
deposit the proceeds of such draw, into the Certificate Account to be applied to
the Purchase Price (or the Substitution Shortfall Amount, if applicable, in
which event, the amount of such funds or proceeds which exceed the Substitution
Shortfall Amount shall be returned to the Mortgage Loan Seller) in accordance
with Section 2.03(b). All such funds deposited with the Trustee shall be
invested in Permitted Investments, at the direction and for the benefit of the
related Mortgage Loan Seller. Such funds shall be treated as an "outside reserve
fund" under the REMIC Provisions, which, together with any reimbursement from
the Lower-Tier REMIC, is beneficially owned by the related Mortgage Loan Seller
for federal income tax purposes, which Mortgage Loan Seller shall remain liable
for any taxes payable on income or gain with respect thereto.
(e) It is herein acknowledged that neither the Trustee nor any
Custodian is under any duty or obligation (i) to determine whether any of the
documents specified in clauses (vi), (vii), (viii), (x) and (xii) through (xxii)
of the definition of "Mortgage File" exist or are required to be delivered by
the Depositor, the Mortgage Loan Sellers or any other Person (unless identified
on the Mortgage Loan Checklist) or (ii) 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 genuine, enforceable,
sufficient to perfect and maintain the perfection of a security interest or
appropriate for the represented purpose or that they are other than what they
purport to be on their face and, with respect to the documents specified in
clause (ix), whether the insurance is effective as of the date of the
recordation, whether all endorsements or riders issued are included in the file
or if the policy has not been issued whether any acceptable replacement document
has been dated the date of the related Mortgage Loan funding. Further, with
respect to the UCC financing statements referenced in the 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 the purposes of the filings and the certification to be
delivered in accordance with this Section 2.02 that the related Mortgage File
should include one state level UCC financing statement filing for each Mortgaged
Property (or with respect to any Mortgage Loan that has two or more Mortgagors,
for each Mortgagor, except to the extent multiple Mortgagors are named as
debtors in the same UCC financing statement filing), or if the Trustee has
received notice that a particular UCC financing statement was filed as a fixture
filing, that the related Mortgage File should include only a local UCC financing
statement filing for each Mortgaged Property (or with respect to any Mortgage
Loan that has two or more Mortgagors, for each Mortgagor, except to the extent
multiple Mortgagors are named as debtors in the same UCC financing statement
filing). The assignments of the UCC financing statements to be assigned to the
Trust will be delivered on the new national forms (or on such other form as may
be acceptable for filing in the applicable jurisdiction) and in recordable
format and will be filed in the jurisdiction(s) where such UCC financing
statements were originally filed, as indicated in the documents provided, and in
accordance with then current laws.
(f) If, in the process of reviewing the Mortgage Files or at any
time thereafter, the Trustee or any Custodian finds any document or documents
constituting a part of a Mortgage File (1) not to have been properly executed or
(2) subject to Section 2.01(b) and (c), not to have been delivered, (3) to
contain information that does not conform in any material respect with the
corresponding information set forth in the Mortgage Loan Schedule or (4) to be
defective on its face (each, a "Defect" in the related Mortgage File), the
Trustee shall promptly so notify the Depositor, the Master Servicer, the Special
Servicer, the Directing Certificateholder (and in the case of the 000 Xxxx
Xxxxxx Xxxxx Whole Loan, the 000 Xxxx Xxxxxx Xxxxx X Note Representative) and
the applicable Mortgage Loan Seller (and in no event later than 90 days after
the Closing Date and every calendar quarter thereafter, commencing with the
quarter ending June 30, 2005 until March 31, 2007, by providing a written report
(the "Trustee Exception Report") setting forth for each affected Mortgage Loan,
with particularity, the nature of such Defect (in a form reasonably acceptable
to the Trustee and such Mortgage Loan Seller and separating items required to be
in the Mortgage File but never delivered from items which were delivered by such
Mortgage Loan Seller but are out for recording or filing and have not been
returned by the recorder's office or filing office).
Section 2.03 Representations, Warranties and Covenants of the
Depositor; Mortgage Loan Sellers' Repurchase or Substitution of Mortgage Loans
for Defects in Mortgage Files and Breaches of Representations and Warranties.
(a) The Depositor hereby represents and warrants that:
(i) The Depositor is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware, and the
Depositor has taken all necessary corporate action to authorize the
execution, delivery and performance of this Agreement by it, and has the
power and authority to execute, deliver and perform this Agreement and all
the transactions contemplated hereby, including, but not limited to, the
power and authority to sell, assign and transfer the Mortgage Loans in
accordance with this Agreement;
(ii) Assuming the due authorization, execution and delivery of this
Agreement by each other party hereto, this Agreement and all of the
obligations of the Depositor hereunder are the legal, valid and binding
obligations of the Depositor, enforceable against the Depositor in
accordance with the terms of this Agreement, except as such enforcement
may be limited by bankruptcy, insolvency, reorganization or other similar
laws affecting the enforcement of creditors' rights generally, and by
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(iii) The execution and delivery of this Agreement and the
performance of its obligations hereunder by the Depositor will not
conflict with any provisions of any law or regulations to which the
Depositor is subject, or conflict with, result in a breach of or
constitute a default under any of the terms, conditions or provisions of
the certificate of incorporation or the by-laws of the Depositor or any
indenture, agreement or instrument to which the Depositor is a party or by
which it is bound, or any order or decree applicable to the Depositor, or
result in the creation or imposition of any lien on any of the Depositor's
assets or property, which would materially and adversely affect the
ability of the Depositor to carry out the transactions contemplated by
this Agreement; the Depositor has obtained any consent, approval,
authorization or order of any court or governmental agency or body
required for the execution, delivery and performance by the Depositor of
this Agreement;
(iv) There is no action, suit or proceeding pending or, to the
Depositor's knowledge, threatened against the Depositor in any court or by
or before any other governmental agency or instrumentality which would
materially and adversely affect the validity of the Mortgage Loans or the
ability of the Depositor to carry out the transactions contemplated by
this Agreement; and
(v) The Depositor is the lawful owner of the Mortgage Loans with the
full right to transfer the Mortgage Loans to the Trust and the Mortgage
Loans have been validly transferred to the Trust.
(b) If any Certificateholder, the Master Servicer, the Special
Servicer, the Paying Agent or the Trustee discovers (without implying any duty
of such person to make, or to attempt to make, such a discovery) or receives
notice of a Defect in any Mortgage File or a breach of any representation or
warranty with respect to a Mortgage Loan set forth in, or required to be made
with respect to a Mortgage Loan by the applicable Mortgage Loan Seller pursuant
to, the related Mortgage Loan Purchase Agreement (a "Breach"), which Defect or
Breach, as the case may be, materially and adversely affects the value of such
Mortgage Loan, the related Mortgaged Property or the interests of the Trustee or
any Certificateholder therein, such Certificateholder, the Master Servicer, the
Special Servicer, the Trustee, the Paying Agent or the Directing
Certificateholder, as applicable, shall give prompt written notice of such
Defect or Breach, as the case may be, to the Depositor, the Master Servicer, the
Special Servicer, the applicable Mortgage Loan Seller, the Trustee, the Paying
Agent and the Directing Certificateholder and shall request in writing that the
applicable Mortgage Loan Seller, not later than 90 days after the earlier of (i)
the applicable Mortgage Loan Seller's receipt of such notice or (ii) in the case
of a Defect or Breach relating to a Mortgage Loan not being a "qualified
mortgage" within the meaning of Section 860G(a)(3) of the Code, but without
regard to the rule of Treasury Regulation Section 1.860G-2(f)(2) that causes a
defective mortgage loan to be treated as a qualified mortgage, the applicable
Mortgage Loan Seller's discovery of such Defect or Breach (the "Initial Cure
Period") that materially and adversely affects the value of any Mortgage Loan,
the related Mortgaged Property or the interests of the Trustee or any
Certificateholder therein, (i) cure such Defect or Breach, as the case may be,
in all material respects, (ii) repurchase the affected Mortgage Loan or REO Loan
at the applicable Purchase Price and in conformity with the applicable Mortgage
Loan Purchase Agreement and this Agreement or (iii) substitute a Qualified
Substitute Mortgage Loan for such affected Mortgage Loan or REO Loan (provided
that in no event shall any such substitution occur later than the second
anniversary of the Closing Date) and pay the Master Servicer for deposit into
the Certificate Account, any Substitution Shortfall Amount in connection
therewith and in conformity with the applicable Mortgage Loan Purchase Agreement
and this Agreement; provided, however, that if such Breach or Defect is capable
of being cured but is not cured within the Initial Cure Period, and the
applicable Mortgage Loan Seller has commenced and is diligently proceeding with
the cure of such Breach or Defect within the Initial Cure Period, the applicable
Mortgage Loan Seller shall have an additional 90 days commencing immediately
upon the expiration of the Initial Cure Period (such additional 90 day period,
the "Extended Cure Period") to complete such cure (or, failing such cure, to
repurchase the related Mortgage Loan or REO Loan or substitute a Qualified
Substitute Mortgage Loan)) and provided, further, that with respect to such
Extended Cure Period the applicable Mortgage Loan Seller shall have delivered an
officer's certificate to the Rating Agencies, the Master Servicer, the Special
Servicer, the Trustee and the Directing Certificateholder, setting forth the
reason such Breach or Defect is not capable of being cured within the Initial
Cure Period and what actions the applicable Mortgage Loan Seller is pursuing in
connection with the cure thereof and stating that the applicable Mortgage Loan
Seller anticipates that such Breach or Defect will be cured within the Extended
Cure Period. Notwithstanding the foregoing, any Defect or Breach which causes
any Mortgage Loan not to be a "qualified mortgage" (within the meaning of
Section 860G(a)(3) of the Code, but without regard to the rule of Treasury
Regulations Section 1.860G-2(f)(2) that causes a defective mortgage loan to be
treated as a qualified mortgage) shall be deemed to materially and adversely
affect the interests of Certificateholders therein, and such Mortgage Loan shall
be repurchased or substituted for without regard to the extended cure period
described in the preceding sentence. If the affected Mortgage Loan is to be
repurchased, the funds in the amount of the Purchase Price remitted by the
applicable Mortgage Loan Seller are to be deposited by wire transfer in the
Certificate Account. If any Breach pertains to a representation or warranty that
the related Mortgage Loan documents or any particular Mortgage Loan document
requires the related Mortgagor to bear the costs and expenses associated with
any particular action or matter under such Mortgage Loan document(s), then the
related Mortgage Loan Seller shall cure such Breach within the applicable cure
period (as the same may be extended) by reimbursing the Trust Fund (by wire
transfer of immediately available funds) the reasonable amount of any such costs
and expenses incurred by the Master Servicer, the Special Servicer, the Trustee
or the Trust Fund that are the basis of such Breach and have not been reimbursed
by the related Mortgagor; provided, however, that in the event any such costs
and expenses exceed $10,000, the related Mortgage Loan Seller shall have the
option to either repurchase or substitute for the related Mortgage Loan as
provided above or pay such costs and expenses. Except as provided in the proviso
to the immediately preceding sentence, the related Mortgage Loan Seller shall
remit the amount of such costs and expenses and upon its making such remittance,
the related Mortgage Loan Seller shall be deemed to have cured such Breach in
all respects. To the extent any fees or expenses that are the subject of a cure
by the related Mortgage Loan Seller are subsequently obtained from the related
Mortgagor, the portion of the cure payment made by the related Mortgage Loan
Seller equal to such fees or expenses obtained from the Mortgagor shall be
returned to the related Mortgage Loan Seller pursuant to Section 2.03(f) below.
Monthly Payments due with respect to each Qualified Substitute Mortgage Loan (if
any) after the related Due Date in the month of substitution, and Monthly
Payments due with respect to each Mortgage Loan being repurchased or replaced
after the related Cut-off Date and received by the Master Servicer or the
Special Servicer on behalf of the Trust on or prior to the related date of
repurchase or substitution, shall be part of the Trust Fund. Monthly Payments
due with respect to each Qualified Substitute Mortgage Loan (if any) on or prior
to the related Due Date in the month of substitution, and Monthly Payments due
with respect to each Mortgage Loan being repurchased or replaced and received by
the Master Servicer or the Special Servicer on behalf of the Trust after the
related date of repurchase or substitution, shall not be part of the Trust Fund
and are to be remitted by the Master Servicer to the Mortgage Loan Seller
effecting the related repurchase or substitution promptly following receipt.
Any of the following will cause a document in the Mortgage File to
be deemed to have a "Defect" and to be conclusively presumed to materially and
adversely affect the interests of Certificateholders in a Mortgage Loan and to
be deemed to materially and adversely affect the interest of the
Certificateholders in and the value of a Mortgage Loan: (a) the absence from the
Mortgage File of the original signed Mortgage Note, unless the Mortgage File
contains a signed lost note affidavit and indemnity that appears to be regular
on its face; (b) the absence from the Mortgage File of the original signed
Mortgage that appears to be regular on its face, unless there is included in the
Mortgage File a certified copy of the Mortgage and a certificate stating that
the original signed Mortgage was sent for recordation; (c) the absence from the
Mortgage File of the item called for by paragraph (ix) of the definition of
Mortgage File; (d) the absence from the Mortgage File of any intervening
assignments required to create a complete chain of assignment to the Trustee on
behalf of the Trust, unless there is included in the Mortgage File a certified
copy of each such missing intervening assignment and a certificate stating that
the original intervening assignment was sent for recordation; (e) the absence
from the Mortgage File of any required letter of credit; or (f) with respect to
any leasehold mortgage loan, the absence from the related Mortgage File of a
copy (or an original, if available) of the related Ground Lease; provided,
however, that no Defect (except the Defects previously described clauses (a)
through (f)) shall be considered to materially and adversely affect the value of
the related Mortgage Loan, the related Mortgaged Property or the interests of
the Trustee or Certificateholders unless the document with respect to which the
Defect exists is required in connection with an imminent enforcement of the
mortgagee's rights or remedies under the related Mortgage Loan, defending any
claim asserted by any Mortgagor or third party with respect to the Mortgage
Loan, establishing the validity or priority of any lien on any collateral
securing the Mortgage Loan or for any immediate significant servicing
obligation. Notwithstanding the foregoing, the delivery of executed escrow
instructions or other commitment to issue a lender's title insurance policy, as
provided in clause (ix) of the definition of Mortgage File herein, in lieu of
the delivery of the actual policy of lender's title insurance, shall not be
considered a Defect or Breach with respect to any Mortgage File if such actual
policy is delivered to the Trustee or a Custodian on its behalf not later than
18 months following the Closing Date.
(c) In connection with any repurchase of, or substitution of a
Qualified Substitute Mortgage Loan for, a Mortgage Loan contemplated by this
Section 2.03, the Trustee, the Master Servicer and the Special Servicer shall
each tender to the applicable Mortgage Loan Seller, upon delivery to each of the
Trustee, the Master Servicer and the Special Servicer of a trust receipt
executed by the applicable Mortgage Loan Seller evidencing such repurchase or
substitution, all portions of the Mortgage File and other documents pertaining
to such Mortgage Loan possessed by each of the Trustee, the Master Servicer and
the Special Servicer, and each document that constitutes a part of the Mortgage
File that was endorsed or assigned to the Trustee shall be endorsed or assigned,
as the case may be, to the applicable Mortgage Loan Seller in the same manner as
provided in Section 6 of the related Mortgage Loan Purchase Agreement, so as to
vest in such Mortgage Loan Seller the legal and beneficial ownership of such
repurchased or substituted for Mortgage Loan (including property acquired in
respect thereof or proceeds of any insurance policy with respect thereto) and
the related Mortgage Loan documents.
(d) Section 6(e) of each of the Mortgage Loan Purchase Agreements
provides the sole remedy available to the Certificateholders (subject to the
limitations on the rights of the Certificateholders under this Agreement), or
the Trustee on behalf of the Certificateholders, with respect to any Defect in a
Mortgage File or any Breach of any representation or warranty with respect to a
Mortgage Loan set forth in or required to be made pursuant to Section 6 of any
of the Mortgage Loan Purchase Agreements.
(e) The Master Servicer or Special Servicer (in the case of
Specially Serviced Mortgage Loans) shall, for the benefit of the
Certificateholders and the Trustee (as holder of the Uncertificated Lower-Tier
Interests), enforce the obligations of the applicable Mortgage Loan Seller under
the applicable Mortgage Loan Purchase Agreement. Such enforcement, including,
without limitation, the legal prosecution of claims, if any shall be carried out
in such form, to such extent and at such time as the Master Servicer or the
Special Servicer, as the case may be, would require were it, in its individual
capacity, the owner of the affected Mortgage Loan(s). Any costs incurred by the
Master Servicer and the Special Servicer with respect to the enforcement of the
obligations of the applicable Mortgage Loan Seller under the applicable Mortgage
Loan Purchase Agreement shall be deemed to be Servicing Advances to the extent
not otherwise provided herein. The Master Servicer and the Special Servicer, as
the case may be, shall be reimbursed for the reasonable costs of such
enforcement: first, from a specific recovery, if any, of costs, expenses or
attorneys' fees against the applicable Mortgage Loan Seller; second, pursuant to
Section 3.05(a)(vii) herein out of the related Purchase Price, to the extent
that such expenses are a specific component thereof; and third, if at the
conclusion of such enforcement action it is determined that the amounts
described in clauses first and second are insufficient, then pursuant to Section
3.05(a)(viii) herein out of general collections on the Mortgage Loans on deposit
in the Certificate Account.
(f) If a Mortgage Loan Seller incurs any expense in connection with
the curing of a Breach, which also constitutes a default under the related
Mortgage Loan and is reimbursable thereunder, such Mortgage Loan Seller shall
have a right, and shall be subrogated to the rights of the Trustee and the Trust
Fund under the Mortgage Loan, to recover the amount of such expenses from the
related Mortgagor; provided, however, that such Mortgage Loan Seller's rights
pursuant to this Section 2.03(f) shall be junior, subject and subordinate to the
rights of the Trustee, the Paying Agent, the Trust Fund, the Master Servicer and
the Special Servicer to recover amounts owed by the related Mortgagor under the
terms of such Mortgage Loan, including, without limitation, the rights to
recover unreimbursed Advances, accrued and unpaid interest on Advances at the
Reimbursement Rate and unpaid or unreimbursed expenses of the Trustee, the
Paying Agent, the Trust Fund, the Master Servicer or the Special Servicer
allocable to such Mortgage Loan. The Master Servicer or, with respect to a
Specially Serviced Mortgage Loan, the Special Servicer, shall use reasonable
efforts to recover such expenses for such Mortgage Loan Seller to the extent
consistent with the Servicing Standard, but taking into account the subordinate
nature of the reimbursement to the Mortgage Loan Seller; provided, however, that
the Master Servicer or, with respect to a Specially Serviced Mortgage Loan, the
Special Servicer, determines in the exercise of its sole discretion consistent
with the Servicing Standard that such actions by it will not impair the Master
Servicer's and/or the Special Servicer's collection or recovery of principal,
interest and other sums due with respect to the related Mortgage Loan which
would otherwise be payable to the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificateholders pursuant to the terms of
this Agreement; provided, further, that the Master Servicer may waive the
collection of amounts due on behalf of the Mortgage Loan Seller in its sole
discretion in accordance with the Master Servicer Servicing Standard.
(g) If (i) any Mortgage Loan is required to be repurchased or
substituted for in the manner described in this Section, (ii) such Mortgage Loan
is a Crossed Loan, and (iii) the applicable Defect or Breach does not constitute
a Defect or Breach, as the case may be, as to any other Crossed Loan in such
Crossed Group (without regard to this paragraph), then the applicable Defect or
Breach, as the case may be, will be deemed to constitute a Defect or Breach, as
the case may be, as to any other Crossed Loan in the Crossed Group for purposes
of this paragraph, and the related Mortgage Loan Seller will be required to
repurchase or substitute for such other Crossed Loan(s) in the related Crossed
Group as provided in Section 2.03(b) unless such other Crossed Loans satisfy the
Crossed Loan Repurchase Criteria and satisfy all other criteria for substitution
and repurchase of Mortgage Loans set forth herein. In the event that the
remaining Crossed Loans in such Crossed Group satisfy the aforementioned
criteria, the applicable Mortgage Loan Seller may elect either to repurchase or
substitute for only the affected Crossed Loan as to which the related Breach or
Defect exists or to repurchase or substitute for all of the Crossed Loans in the
related Crossed Group. Any reserve or other cash collateral or letters of credit
securing the Crossed Loans shall be allocated between such Mortgage Loans in
accordance with the related Mortgage Loan documents. Except as provided in
Section 2.03(h), all other terms of the Mortgage Loans shall remain in full
force and effect without any modification thereof.
(h) With respect to any Crossed Loan, to the extent that the
applicable Mortgage Loan Seller is required to repurchase or substitute for such
Mortgage Loan in the manner prescribed in Section 2.03(g) while the Trustee
continues to hold any other Crossed Loans in the related Crossed Group, the
applicable Mortgage Loan Seller and the Depositor will, as set forth in the
related Mortgage Loan Purchase Agreement, forbear from enforcing any remedies
against the other's Primary Collateral but each will be permitted to exercise
remedies against the Primary Collateral securing its respective Mortgage Loans,
including with respect to the Trustee, the Primary Collateral securing Mortgage
Loans still held by the Trustee, so long as such exercise does not materially
impair the ability of the other party to exercise its remedies against its
Primary Collateral. If the exercise of the remedies by one party would
materially impair the ability of the other party to exercise its remedies with
respect to the Primary Collateral securing the Crossed Loans held by such party,
then both parties have agreed in the related Mortgage Loan Purchase Agreement to
forbear from exercising such remedies until the Mortgage Loan documents
evidencing and securing the relevant Mortgage Loans can be modified in a manner
that complies with the Mortgage Loan Purchase Agreement to remove the threat of
material impairment as a result of the exercise of remedies.
Section 2.04 Execution of Certificates; Issuance of Uncertificated
Lower-Tier Interests. The Trustee hereby acknowledges the assignment to it of
the Mortgage Loans and, subject to Sections 2.01 and 2.02, the delivery to it,
or a Custodian on its behalf, of the Mortgage Files and a fully executed
original counterpart of each of the Mortgage Loan Purchase Agreements, together
with the assignment to it of all of the other assets included in the Lower-Tier
REMIC. Concurrently with such assignment and delivery, and in exchange for the
Mortgage Loans (other than Excess Interest), receipt of which is hereby
acknowledged, the Trustee (i) acknowledges the issuance of the Uncertificated
Lower-Tier Interests by the Paying Agent to the Depositor and (ii) acknowledges
the authentication and delivery of the Class LR Certificates by the Paying Agent
to or upon the order of the Depositor, and (iii) immediately thereafter, the
Trustee acknowledges that it has caused the Certificate Registrar to execute and
caused the Authenticating Agent to authenticate and to deliver to or upon the
order of the Depositor, in exchange for the Uncertificated Lower-Tier Interests,
the Regular Certificates and the Class R Certificates, and the Depositor hereby
acknowledges the receipt by it or its designees, of such Certificates in
authorized Denominations evidencing the entire beneficial ownership of the
Upper-Tier REMIC.
Section 2.05 Grantor Trust Designations. In exchange for the Excess
Interest, the Trustee acknowledges that it has caused the Certificate Registrar
to execute and caused the Authenticating Agent to authenticate and to deliver to
or upon the order of the Depositor the Class S Certificates in authorized
denominations. The Class S Certificates are hereby designated as undivided
beneficial interests in the portion of the Trust Fund consisting of Excess
Interest and the Excess Interest Distribution Account, which portion shall be
treated as a grantor trust within the meaning of subpart E, Part I of subchapter
J of the Code.
[End of Article II]
ARTICLE III
ADMINISTRATION AND
SERVICING OF THE TRUST FUND
Section 3.01 Master Servicer to Act as Master Servicer; Special
Servicer to Act as Special Servicer; Administration of the Mortgage Loans.
(a)(i) The Master Servicer shall diligently service and administer the Mortgage
Loans and the Companion Loans it is obligated to service pursuant to this
Agreement as an independent contractor on behalf of the Trust and in the best
interests of and for the benefit of the Certificateholders and, in the case of
the Companion Loans, the Companion Holders and the Trustee (as holder of the
Uncertificated Lower-Tier Interests) as a collective whole, taking into account
the subordinate nature of the Companion Loans, as the case may be (as determined
by the Master Servicer in its reasonable judgment) in accordance with applicable
law, the terms of this Agreement (and with respect to each Loan Pair, the
related Intercreditor Agreement) and the terms of the respective Mortgage Loans
and, if applicable, the Companion Loans, and to the extent consistent with the
foregoing, in accordance with the higher of the following standards of care: (1)
with the same care, skill and diligence as is normal and usual in its mortgage
servicing activities on behalf of third-parties or on behalf of itself,
whichever is higher, with respect to mortgage loans that are comparable to the
Mortgage Loans, (2) with a view to the timely collection of all principal and
interest and other amounts due and payable under the Mortgage Loans or, if
applicable, the Companion Loans and the AB Mortgage Loan as a collective whole,
taking into account the subordination nature of the Companion Loans, as
applicable, and without regard to: (1) any relationship that the Master Servicer
or any Affiliate of the Master Servicer may have with any Mortgagor; (2) the
ownership of any Certificate or, if applicable, Companion Loan, by the Master
Servicer or any Affiliate of the Master Servicer; (3) the Master Servicer's
obligation to make Advances and (4) the adequacy of the Master Servicer's right
to receive compensation payable to it and reimbursement for its costs hereunder
or with respect to any particular transaction (the foregoing, collectively
referred to as the "Master Servicer Servicing Standards"). With respect to a
Loan Pair, in the event of a conflict between this Agreement and the related
Intercreditor Agreement, the Intercreditor Agreement shall control; provided, in
no event shall the Master Servicer or Special Servicer be required to violate
the REMIC Provisions or the Master Servicer Servicing Standard. Pursuant to the
terms of the Moorings at Mesa Cove Apartments Intercreditor Agreement, it is
contemplated that the Mortgagor under the Moorings at Mesa Cove Apartments AB
Mortgage Loan and its related Companion Loan will remit payments on the Moorings
at Mesa Cove Apartments AB Mortgage Loan to the Master Servicer hereunder, and
for the Companion Loan that has been securitized or if it is securitized in the
future, the related Mortgagor will remit payments on the related Companion Loan
directly to the servicer for such securitizations; provided, however, that under
the circumstances identified in the Moorings at Mesa Cove Apartments
Intercreditor Agreement, the Mortgagor under the Companion Loan (even after the
Companion Loan has been securitized) will be required to remit payments on such
Companion Loan directly to the Master Servicer under this Agreement.
(ii) The Special Servicer shall diligently service and administer
the Mortgage Loans and the Companion Loans it is obligated to service
pursuant to this Agreement on behalf of the Trust and in the best
interests of and for the benefit of the Certificateholders and, in the
case of the Companion Loans, the related Companion Holders and the Trustee
(as holder of the Uncertificated Lower-Tier Interests) (as determined by
the Special Servicer in its reasonable judgment) in accordance with
applicable law, the terms of this Agreement and, with respect to each Loan
Pair, the related Intercreditor Agreement) and the terms of the respective
Mortgage Loans, and, if applicable, the related Companion Loan, taking
into account the subordinate nature of the subject Companion Loan, as the
case may be. With respect to each Loan Pair, in the event of a conflict
between this Agreement and the related Intercreditor Agreement, the
related Intercreditor Agreement shall control; provided, in no event shall
the Special Servicer take any action or omit to take any action in
accordance with the terms of any Intercreditor Agreement that would cause
the Special Servicer to violate the Special Servicer Servicing Standard.
To the extent consistent with the foregoing, the Special Servicer shall
service the Mortgage Loans in accordance with the higher of the following
standards of care: (1) in the same manner in which, and with the same
care, skill, prudence and diligence with which the Special Servicer
services and administers similar mortgage loans for other third-party
portfolios and (2) the same care, skill, prudence and diligence with which
the Special Servicer services and administers similar mortgage loans owned
by the Special Servicer, in either case, with a view to the maximization
of recovery of principal and interest on a net present value basis on the
Mortgage Loans or Specially Serviced Mortgage Loans, as applicable, and
the best interests of the Trust and the Certificateholders (and in the
case of AB Mortgage Loans, the holder of the Regular Certificates or the
related Companion Holder, as applicable, taking into account the
subordinate nature of the subject Companion Loan) as determined by the
Special Servicer in its reasonable judgment, but without regard to: (i)
any relationship that the Special Servicer or any Affiliate of the Special
Servicer may have with any Mortgagor or any Affiliate of such Mortgagor,
any Mortgage Loan Seller, or any other parties to this Agreement; (ii) the
ownership of any Certificate or Companion Loan, if applicable, by the
Special Servicer or any Affiliate of the Special Servicer; (iii) the
Special Servicer's right to receive compensation for its services and
reimbursement for its costs hereunder or with respect to any particular
transaction; (iv) the ownership, servicing or management for others of any
other mortgage loans or mortgaged properties by the Special Servicer; and
(v) any other debt the Special Servicer or any of its Affiliates have
extended to any Mortgagor or any of its Affiliates (the foregoing,
collectively, referred to as the "Special Servicer Servicing Standards").
Without limiting the foregoing, subject to Section 3.21, the Special
Servicer shall be obligated to service and administer (i) any Mortgage Loans and
Companion Loans as to which a Servicing Transfer Event has occurred and is
continuing (the "Specially Serviced Mortgage Loans") and (ii) any REO
Properties; provided that the Master Servicer shall continue to receive payments
and make all calculations, and prepare, or cause to be prepared, all reports,
required hereunder with respect to the Specially Serviced Mortgage Loans, except
for the reports specified herein as prepared by the Special Servicer, as if no
Servicing Transfer Event had occurred and with respect to the REO Properties
(and the related REO Loans) as if no REO Acquisition had occurred, and to render
such services with respect to such Specially Serviced Mortgage Loans and REO
Properties as are specifically provided for herein; provided, further, however,
that the Master Servicer shall not be liable for failure to comply with such
duties insofar as such failure results from a failure of the Special Servicer to
provide sufficient information to the Master Servicer to comply with such duties
or failure by the Special Servicer to otherwise comply with its obligations
hereunder. Each Mortgage Loan or Companion Loan that becomes a Specially
Serviced Mortgage Loan shall continue as such until satisfaction of the
conditions specified in Section 3.21(a). Without limiting the foregoing, subject
to Section 3.21, the Master Servicer shall be obligated to service and
administer all Mortgage Loans and Companion Loans, which are not Specially
Serviced Mortgage Loans. The Special Servicer shall make the inspections, use
its reasonable efforts to collect the statements and forward to the Master
Servicer to prepare the reports in respect of the related Mortgaged Properties
with respect to Specially Serviced Mortgage Loans in accordance with Section
3.12. After notification to the Master Servicer, the Special Servicer may
contact the Mortgagor of any Non-Specially Serviced Mortgage Loan if efforts by
the Master Servicer to collect required financial information have been
unsuccessful or any other issues remain unresolved. Such contact shall be
coordinated through and with the cooperation of the Master Servicer. No
provision herein contained shall be construed as an express or implied guarantee
by the Master Servicer or the Special Servicer of the collectability or
recoverability of payments on the Mortgage Loans or shall be construed to impair
or adversely affect any rights or benefits provided by this Agreement to the
Master Servicer or the Special Servicer (including with respect to Servicing
Fees, Special Servicing Fees or the right to be reimbursed for Advances and
interest accrued thereon). Any provision in this Agreement for any Advance by
the Master Servicer or the Trustee is intended solely to provide liquidity for
the benefit of the Certificateholders and not as credit support or otherwise to
impose on any such Person the risk of loss with respect to one or more of the
Mortgage Loans. No provision hereof shall be construed to impose liability on
the Master Servicer or the Special Servicer for the reason that any recovery to
the Certificateholders in respect of a Mortgage Loan at any time after a
determination of present value recovery is less than the amount reflected in
such determination.
(b) Subject only to the Servicing Standards and the terms of this
Agreement and of the respective Mortgage Loans and, if applicable, the Companion
Loans, and any applicable Intercreditor Agreements (and intercreditor agreements
entered into after the Closing Date with respect to any Mortgage Loan in
connection with mezzanine debt permitted under the related Mortgage Loan
documents), and applicable law, the Master Servicer and the Special Servicer
each shall have full power and authority, acting alone or, in the case of the
Master Servicer, subject to Section 3.22, through one or more Sub-Servicers, to
do or cause to be done any and all things in connection with such servicing and
administration for which it is responsible which it may deem necessary or
desirable. Without limiting the generality of the foregoing, each of the Master
Servicer and the Special Servicer, in its own name (or in the name of the
Trustee and, if applicable, the Companion Holder), is hereby authorized and
empowered by the Trustee to execute and deliver, on behalf of the
Certificateholders and the Trustee or any of them, with respect to each Mortgage
Loan (and, with respect to a Companion Loan, the Companion Holder) it is
obligated to service under this Agreement: (i) any and all financing statements,
continuation statements and other documents or instruments necessary to maintain
the lien created by the related Mortgage or other security document in the
related Mortgage File on the related Mortgaged Property and related collateral;
(ii) subject to Sections 3.08 and 3.20, any and all modifications, waivers,
amendments or consents to, under or with respect to any documents contained in
the related Mortgage File; and (iii) any and all instruments of satisfaction or
cancellation, pledge agreements and other documents in connection with a
defeasance, or of partial or full release or discharge, and all other comparable
instruments. Subject to Section 3.10, the Trustee shall furnish, or cause to be
furnished, to the Master Servicer or the Special Servicer any powers of attorney
and other documents necessary or appropriate to enable the Master Servicer or
the Special Servicer, as the case may be, to carry out its servicing and
administrative duties hereunder; provided, however, that the Trustee shall not
be held liable for any negligence with respect to, or misuse of, any such power
of attorney by the Master Servicer or the Special Servicer. Notwithstanding
anything contained herein to the contrary, the Master Servicer or the Special
Servicer, as the case may be, shall not, without the Trustee's written consent:
(i) initiate any action, suit or proceeding solely under the Trustee's name
without indicating the Master Servicer's or the Special Servicer's, as the case
may be, representative capacity or (ii) take any action with the intent to
cause, and that actually causes, the Trustee to be required to be registered to
do business in any state.
(c) To the extent the Master Servicer is permitted pursuant to the
terms of the related Mortgage Loan documents or Companion Loan documents
(including the related Intercreditor Agreement) to exercise its discretion with
respect to any action which requires a confirmation of the Rating Agencies that
such action will not result in the downgrade, withdrawal or qualification of the
ratings of any Class of Certificates, the Master Servicer shall require the
costs of such written confirmation to be borne by the related Mortgagor. To the
extent the terms of the related Mortgage Loan documents or Companion Loan
documents require the Mortgagor to bear the costs of any confirmation of the
Rating Agencies that an action will not result in the downgrade, withdrawal or
qualification of the ratings of any Class of Certificates, the Master Servicer
shall not waive the requirement that such costs and expenses be borne by the
related Mortgagor. To the extent that the terms of the related Mortgage Loan
documents or Companion Loan documents are silent as to who bears the costs of
any confirmation of the Rating Agencies that an action will not result in the
downgrade, withdrawal or qualification of the ratings of any Class of
Certificates, the Master Servicer shall use reasonable efforts to have the
Mortgagor bear such costs and expenses. The Master Servicer shall not be
responsible for the payment of such costs and expenses out of pocket.
(d) The relationship of each of the Master Servicer and the Special
Servicer to the Trustee under this Agreement is intended by the parties to be
that of an independent contractor and not that of a joint venturer, partner or
agent.
(e) The Master Servicer shall, to the extent permitted by the
related Mortgage Loan documents and Companion Loan documents and consistent with
the Servicing Standards, permit Escrow Payments to be invested only in Permitted
Investments.
(f) Within 60 days (or such shorter time period as is required by
the terms of the applicable Mortgage Loan documents) after the later of (i) the
receipt thereof and (ii) the Closing Date, the Master Servicer shall notify, or
cause the applicable Mortgage Loan Seller to notify, each provider of a letter
of credit for each Mortgage Loan identified as having a letter of credit on the
Mortgage Loan Schedule, that the Trust (in care of the Master Servicer) for the
benefit of the Certificateholders shall be the beneficiary under each such
letter of credit and notify each lessor under a Ground Lease for each Mortgage
Loan identified as subject to a leasehold interest on the Mortgage Loan
Schedule, that the Master Servicer or the Special Servicer shall service such
Mortgage Loan for the benefit of the Certificateholders. If the Mortgage Loan
documents do not require the related Mortgagor to pay any costs and expenses
relating to any modifications to the related letter of credit, then the
applicable Mortgage Loan Seller shall pay such costs and expenses. If the
Mortgage Loan documents require the related Mortgagor to pay any costs and
expenses relating to any modifications to the related letter of credit, and such
Mortgagor fails to pay such costs and expenses after the Master Servicer has
exercised reasonable efforts to collect such costs and expenses from such
Mortgagor, then the Master Servicer shall give the applicable Mortgage Loan
Seller notice of such failure and the amount of costs and expenses, and such
Mortgage Loan Seller shall pay such costs and expenses. The costs and expenses
of any modifications to Ground Leases shall be paid by the related Mortgagor.
Neither the Master Servicer nor the Special Servicer shall have any liability
for the failure of any Mortgage Loan Seller to perform its obligations under the
related Mortgage Loan Purchase Agreement.
(g) Notwithstanding anything herein to the contrary, in no event
shall the Master Servicer (or the Trustee, as applicable) make a Servicing
Advance with respect to any Companion Loan to the extent the related AB Mortgage
Loan has been paid in full or is no longer included in the Trust Fund.
(h) Servicing and administration of each Companion Loan shall
continue hereunder for so long as the corresponding AB Mortgage Loan or any
related REO Property is part of the Trust Fund or for such longer period as any
amounts payable by the related Companion Holder to or for the benefit of the
Trust or any party hereto in accordance with the related Intercreditor Agreement
remain due and owing.
(i) The Master Servicer agrees that it shall pay the annual
surveillance fees to the Rating Agencies.
Section 3.02 Collection of Mortgage Loan Payments. (a) Each of the
Master Servicer and the Special Servicer shall make reasonable efforts to
collect all payments called for under the terms and provisions of the Mortgage
Loans it is obligated to service hereunder, and shall follow such collection
procedures as are consistent with this Agreement (including, without limitation,
the Servicing Standards), provided that with respect to the Mortgage Loans that
have Anticipated Repayment Dates, so long as the related Mortgagor is in
compliance with each provision of the related Mortgage Loan documents, the
Master Servicer and the Special Servicer, shall not take any enforcement action
with respect to the failure of the related Mortgagor to make any payment of
Excess Interest, other than requests for collection, until the maturity date of
the related Mortgage Loan or the outstanding principal balance of such Mortgage
Loan has been paid in full; provided that the Master Servicer or Special
Servicer, as the case may be, may take action to enforce the Trust Fund's right
to apply excess cash flow to principal in accordance with the terms of the
Mortgage Loan documents. The Master Servicer or the Special Servicer, as
applicable, may in its discretion waive any Penalty Charge in connection with
any delinquent payment on a Mortgage Loan or Companion Loan it is obligated to
service hereunder three times during any period of twenty-four consecutive
months with respect to any Mortgage Loan or Companion Loan. Any additional
waivers during such 24-month period with respect to such Mortgage Loan may be
made only after the Master Servicer or Special Servicer, as applicable, has
given notice of a proposed waiver to the Directing Certificateholder and, prior
to the 000 Xxxx Xxxxxx Xxxxx Control Appraisal Event, the 000 Xxxx Xxxxxx Xxxxx
X Note Representative, and the Directing Certificateholder and, prior to the 000
Xxxx Xxxxxx Xxxxx Control Appraisal Event, the 000 Xxxx Xxxxxx Xxxxx X Note
Representative has consented to such additional waiver (provided that if the
Master Servicer or Special Servicer, as applicable, fails to receive a response
to such notice from the Directing Certificateholder and, prior to the 000 Xxxx
Xxxxxx Xxxxx Control Appraisal Event, the 000 Xxxx Xxxxxx Xxxxx X Note
Representative in writing within five (5) days of giving such notice, then the
Directing Certificateholder and, prior to the 000 Xxxx Xxxxxx Xxxxx Control
Appraisal Event, the 000 Xxxx Xxxxxx Xxxxx X Note Representative shall be deemed
to have consented to such proposed waiver).
(b) All amounts collected on any Mortgage Loan or Companion Loan in
the form of payments from Mortgagors, Insurance and Condemnation Proceeds or
Liquidation Proceeds shall be applied to amounts due and owing under the related
Mortgage (including, without limitation, for principal and accrued and unpaid
interest) in accordance with the express provisions of the related Mortgage
(and, with respect to each Loan Pair, the related Intercreditor Agreement) and,
in the absence of such express provisions, such payments from Mortgagors,
Insurance and Condemnation Proceeds or Liquidation Proceeds shall be applied
(after reimbursement first to the Trustee and second to the Master Servicer for
any related Advances (including Workout Delayed Reimbursement Amounts that have
not been reimbursed to the Master Servicer) and interest thereon as provided
herein and unpaid servicing compensation, Liquidation Expenses and related
additional Trust Fund expenses): first, as a recovery of accrued and unpaid
interest on such Mortgage Loan or Companion Loan, as applicable, at the related
Mortgage Rate in effect from time to time to but not including the Due Date in
the Due Period of receipt; second, as a recovery of Unliquidated Advances, third
as a recovery of principal of such Mortgage Loan then due and owing, in each
case, that were paid from collections on the Mortgage Loans and resulted in
principal distributed to the Certificateholders being reduced as a result of the
first proviso in the definition of "Principal Distribution Amount", "Loan Group
1 Principal Distribution Amount" or "Loan Group 2 Principal Distribution
Amount"; fourth, as a recovery of Nonrecoverable Advances; fifth, in accordance
with the Servicing Standards, as a recovery of any other amounts due and owing
on such Mortgage Loan or Companion Loan, as applicable, including, without
limitation, Penalty Charges, Yield Maintenance Charges and Excess Interest; and
sixth, as a recovery of principal of such Mortgage Loan or Companion Loan, as
applicable, to the extent of its entire unpaid principal balance.
Notwithstanding the preceding, such provisions shall not be deemed to affect the
priority of distributions of payments. To the extent that such amounts are paid
by a party other than a Mortgagor, such amounts shall be deemed to have been
paid in respect of a purchase of all or part of the Mortgaged Property (in the
case of Insurance and Condemnation Proceeds or Liquidation Proceeds) and then
paid by the Mortgagor under the Mortgage Loan or Companion Loan, as applicable,
in accordance with the preceding sentence. Amounts collected on any REO Loan
shall be deemed to be applied in accordance with the definition thereof.
(c) To the extent consistent with the terms of the Mortgage Loans
(and, with respect to each Loan Pair, the related Companion Loan and
Intercreditor Agreement) and applicable law, the Master Servicer shall apply all
Insurance and Condemnation Proceeds it receives on a day other than the Due Date
to amounts due and owing under the related Mortgage Loan or Companion Loan as if
such Insurance and Condemnation Proceeds were received on the Due Date
immediately succeeding the month in which such Insurance and Condemnation
Proceeds were received.
(d) In the event that the Master Servicer or Special Servicer
receives Excess Interest prior to the Determination Date for any Due Period, or
receives notice from the related Mortgagor that the Master Servicer or Special
Servicer will be receiving Excess Interest prior to the Determination Date for
any Due Period, the Master Servicer or Special Servicer, as applicable, will
promptly notify the Paying Agent. None of the Master Servicer, the Special
Servicer or the Paying Agent shall be responsible for any failure of the related
Mortgagor to pay any such Excess Interest. The preceding statements shall not,
however, be construed to limit the provisions of Section 3.02(a).
(e) With respect to any Mortgage Loan in connection with which the
Mortgagor was required to escrow funds or to post a letter of credit related to
obtaining certain performance objectives described in the applicable Mortgage
Loan documents, the Master Servicer shall, to the extent consistent with the
Servicing Standards, hold such escrows, letters of credit and proceeds thereof
as additional collateral and not apply such items to reduce the principal
balance of such Mortgage Loan unless otherwise required to do so pursuant to the
applicable Mortgage Loan documents, applicable law or court order.
Section 3.03 Collection of Taxes, Assessments and Similar Items;
Servicing Accounts. (a) The Master Servicer shall establish and maintain one or
more accounts (the "Servicing Accounts"), into which all Escrow Payments shall
be deposited and retained, and shall administer such Servicing Accounts in
accordance with the Mortgage Loan documents and Companion Loan documents.
Amounts on deposit in Servicing Accounts may only be invested in accordance with
the terms of the related Mortgage Loan documents or in Permitted Investments in
accordance with the provisions of Section 3.06. Servicing Accounts shall be
Eligible Accounts to the extent permitted by the terms of the related Mortgage
Loan documents. Withdrawals of amounts so deposited from a Servicing Account may
be made only to: (i) effect payment of items for which Escrow Payments were
collected and comparable items; (ii) reimburse the Trustee, and then the Master
Servicer for any Servicing Advances; (iii) refund to Mortgagors any sums as may
be determined to be overages; (iv) pay interest to Mortgagors on balances in the
Servicing Account, if required by applicable law or the terms of the related
Mortgage Loan or Companion Loan and as described below or, if not so required,
to the Master Servicer; (v) after the occurrence of an event of default under
the related Mortgage Loan or Companion Loan, apply amounts to the indebtedness
under the applicable Mortgage Loan or Companion Loan; (vi) withdraw amounts
deposited in error, (vii) pay Penalty Charges to the extent permitted by the
related Mortgage Loan documents, or (viii) clear and terminate the Servicing
Account at the termination of this Agreement in accordance with Section 9.01. As
part of its servicing duties, the Master Servicer shall pay or cause to be paid
to the Mortgagors interest on funds in Servicing Accounts, to the extent
required by law or the terms of the related Mortgage Loan or Companion Loan;
provided, however, that in no event shall the Master Servicer be required to
remit to any Mortgagor any amounts in excess of actual net investment income or
funds in the related Servicing Account. If allowed by the related Mortgage Loan
documents and applicable law, the Master Servicer may charge the related
Mortgagor an administrative fee for maintenance of the Servicing Accounts.
(b) The Special Servicer, in the case of REO Loans, and the Master
Servicer, in the case of all other Mortgage Loans (and each Companion Loan),
shall maintain accurate records with respect to each 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. The Special Servicer, in the case
of REO Loans, and the Master Servicer, in the case of all other Mortgage Loans
and Companion Loans, shall use reasonable efforts consistent with the Servicing
Standards to obtain, from time to time, all bills for the payment of such items
(including renewal premiums) and shall effect payment thereof from the REO
Account or by the Master Servicer as Servicing Advances prior to the applicable
penalty or termination date and, in any event, prior to the institution of
foreclosure or similar proceedings with respect to the related Mortgaged
Property for nonpayment of such items, employing for such purpose Escrow
Payments (which shall be so applied by the Master Servicer at the written
direction of the Special Servicer in the case of REO Loans) as allowed under the
terms of the related Mortgage Loan or Companion Loan. The Master Servicer shall
service and administer any reserve accounts (including monitoring, maintaining
or changing the amounts of required escrows) in accordance with the terms of
such Mortgage Loan and the Servicing Standards. To the extent that a Mortgage
Loan (or a Companion Loan) does not require a Mortgagor to escrow for the
payment of real estate taxes, assessments, insurance premiums, ground rents (if
applicable) and similar items, the Special Servicer, in the case of REO Loans,
and the Master Servicer, in the case of all other Mortgage Loans and Companion
Loans, shall use reasonable efforts consistent with the Servicing Standards to
cause the Mortgagor to comply with its obligation to make payments in respect of
such items at the time they first become due and, in any event, prior to the
institution of foreclosure or similar proceedings with respect to the related
Mortgaged Property for nonpayment of such items.
(c) In accordance with the Servicing Standards and for all Mortgage
Loans and Loan Pairs, the Master Servicer shall advance all such funds as are
necessary for the purpose of effecting the payment of (i) real estate taxes,
assessments and other similar items that are or may become a lien thereon, (ii)
ground rents (if applicable) and (iii) premiums on Insurance Policies, in each
instance if and to the extent Escrow Payments collected from the related
Mortgagor (or related REO Revenues, if applicable) are insufficient to pay such
item when due and the related Mortgagor has failed to pay such item on a timely
basis, and provided, however, that the particular advance would not, if made,
constitute a Nonrecoverable Servicing Advance and provided, further, however,
that with respect to the payment of taxes and assessments, the Master Servicer
shall not be required to make such advance until the later of five Business Days
after the Master Servicer, the Special Servicer or the Trustee, as applicable,
has received confirmation that such item has not been paid or the date prior to
the date after which any penalty or interest would accrue in respect of such
taxes or assessments. The Special Servicer shall give the Master Servicer and
the Trustee no less than five Business Days' written (facsimile or electronic)
notice before the date on which the Master Servicer is requested to make any
Servicing Advance with respect to a given Specially Serviced Mortgage Loan or
REO Property; provided, however, that only two Business Days' written (facsimile
or electronic) notice shall be required in respect of Servicing Advances
required to be made on an emergency or urgent basis; provided, further, that the
Special Servicer shall not be entitled to make such a request (other than for
Servicing Advances required to be made on an urgent or emergency basis) more
frequently than once per calendar month (although such request may relate to
more than one Servicing Advance). The Master Servicer may pay the aggregate
amount of such Servicing Advances listed on a monthly request to the Special
Servicer, in which case the Special Servicer shall remit such Servicing Advances
to the ultimate payees. In addition, the Special Servicer shall provide the
Master Servicer and the Trustee with such information in its possession as the
Master Servicer or the Trustee, as applicable, may reasonably request to enable
the Master Servicer or the Trustee, as applicable, to determine whether a
requested Servicing Advance would constitute a Nonrecoverable Advance. Any
request by the Special Servicer that the Master Servicer make a Servicing
Advance shall be deemed to be a determination by the Special Servicer that such
requested Servicing Advance is not a Nonrecoverable Servicing Advance, and the
Master Servicer shall be entitled to conclusively rely on such determination,
provided that the determination shall not be binding on the Master Servicer or
Trustee. On the first Business Day after the Determination Date for the related
Distribution Date, the Special Servicer shall report to the Master Servicer if
the Special Servicer determines any Servicing Advance previously made by the
Master Servicer with respect to a Specially Serviced Mortgage Loan or REO Loan
is a Nonrecoverable Servicing Advance. The Master Servicer shall be entitled to
conclusively rely on such a determination, and such determination shall be
binding upon the Master Servicer, but shall no way limit the ability of the
Master Servicer in the absence of such determination to make its own
determination that any Advance is a Nonrecoverable Advance. All such Advances
shall be reimbursable in the first instance from related collections from the
Mortgagors and further as provided in Section 3.05. No costs incurred by the
Master Servicer or the Special Servicer in effecting the payment of real estate
taxes, assessments and, if applicable, ground rents on or in respect of the
Mortgaged Properties shall, for purposes hereof, including, without limitation,
the Paying Agent's calculation of monthly distributions to Certificateholders,
be added to the unpaid principal balances of the related Mortgage Loans or the
Companion Loans, notwithstanding that the terms of such Mortgage Loans or the
Companion Loans so permit. If the Master Servicer fails to make any required
Servicing Advance as and when due (including any applicable cure periods), to
the extent the Trustee has actual knowledge of such failure, the Trustee shall
make such Servicing Advance pursuant to Section 7.05. Notwithstanding anything
herein to the contrary, no Servicing Advance shall be required hereunder if such
Servicing Advance would, if made, constitute a Nonrecoverable Servicing Advance.
In addition, the Master Servicer shall consider Unliquidated Advances in respect
of prior Servicing Advances for purposes of nonrecoverability determinations.
The Special Servicer shall have no obligation under this Agreement to make any
Servicing Advances.
Notwithstanding anything to the contrary contained in this Section
3.03(c), the Master Servicer may in its good faith judgment elect (but shall not
be required unless directed by the Special Servicer with respect to Specially
Serviced Mortgage Loans and REO Loans) to make a payment from amounts on deposit
in the Certificate Account (which shall be deemed first made from amounts
distributable as principal and then from all other amounts comprising general
collections) to pay for certain expenses set forth below notwithstanding that
the Master Servicer (or Special Servicer, as applicable) has determined that a
Servicing Advance with respect to such expenditure would be a Nonrecoverable
Servicing Advance (unless, with respect to Specially Serviced Mortgage Loans or
REO Loans, the Special Servicer has notified the Master Servicer to not make
such expenditure), where making such expenditure would prevent (i) the related
Mortgaged Property from being uninsured or being sold at a tax sale or (ii) any
event that would cause a loss of the priority of the lien of the related
Mortgage, or the loss of any security for the related Mortgage Loan; provided
that in each instance, the Master Servicer or the Special Servicer, as
applicable, determines in accordance with the Servicing Standards (as evidenced
by an Officer's Certificate delivered to the Trustee) that making such
expenditure is in the best interest of the Certificateholders (and, if
applicable the Companion Holders), all as a collective whole. The Master
Servicer or Trustee may elect to obtain reimbursement of Nonrecoverable
Servicing Advances from the Trust Fund pursuant to the terms of 3.19(c).
(d) In connection with its recovery of any Servicing Advance out of
the Certificate Account pursuant to Section 3.05(a), the Trustee and then the
Master Servicer, as the case may be, shall be entitled to receive, out of any
amounts then on deposit in the Certificate Account interest at the Reimbursement
Rate in effect from time to time, accrued on the amount of such Servicing
Advance from the date made to, but not including, the date of reimbursement. The
Master Servicer shall reimburse itself or the Trustee, as the case may be, for
any outstanding Servicing Advance as soon as practically possible after funds
available for such purpose are deposited in the Certificate Account.
(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 Master
Servicer shall request from the Mortgagor 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 repairs,
capital improvements, actions or remediations are required to have been taken or
completed pursuant to the terms of the Mortgage Loan, the Master Servicer shall
request from the Mortgagor written confirmation of such actions 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 be or to have been taken or
completed. To the extent a Mortgagor shall fail to promptly respond to any
inquiry described in this Section 3.03(e), the Master Servicer shall report any
such failure to the Special Servicer within a reasonable time after June 15,
2005.
Section 3.04 The Certificate Account, the Lower-Tier and Upper-Tier
Distribution Accounts, the Companion Distribution Account, the Interest Reserve
Account, the Gain-on-Sale Reserve Account and the Excess Interest Distribution
Account. (a) The Master Servicer shall establish and maintain, or cause to be
established and maintained, a Certificate Account in which the Master Servicer
shall deposit or cause to be deposited on a daily basis and in no event later
than the Business Day following receipt of available funds (in the case of
payments by Mortgagors or other collections on the Mortgage Loans or Companion
Loans), except as otherwise specifically provided herein, the following payments
and collections received or made by or on behalf of it subsequent to the Cut-off
Date (other than in respect of principal and interest on the Mortgage Loans or
Companion Loans due and payable on or before the Cut-off Date, which payments
shall be delivered promptly to the appropriate Mortgage Loan Seller or its
designee and other than any amounts received from Mortgagors which are received
in connection with the purchase of defeasance collateral), or payments (other
than Principal Prepayments) received by it on or prior to the Cut-off Date but
allocable to a period subsequent thereto:
(i) all payments on account of principal, including Principal
Prepayments, on the Mortgage Loans or Companion Loans;
(ii) all payments on account of interest on the Mortgage Loans or
Companion Loans, including Excess Interest, Yield Maintenance Charges and
Default Interest;
(iii) late payment charges and other Penalty Charges to the extent
required to offset interest on Advances and additional Trust Fund expenses
(other than Special Servicing Fees, Workout Fees or Liquidation Fees) as
required by Section 3.11;
(iv) all Insurance and Condemnation Proceeds and Liquidation
Proceeds (other than Gain-on-Sale Proceeds) received in respect of any
Mortgage Loan, Companion Loan or REO Property (other than Liquidation
Proceeds that are received in connection with the purchase by the Master
Servicer, the Special Servicer, the Holders of the Controlling Class, or
the Holders of the Class LR Certificates of all the Mortgage Loans and any
REO Properties in the Trust Fund and that are to be deposited in the
Lower-Tier Distribution Account pursuant to Section 9.01) together with
any recovery of Unliquidated Advances in respect of the related Mortgage
Loans;
(v) any amounts required to be transferred from the REO Account
pursuant to Section 3.16(c);
(vi) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.06 in connection with losses incurred with respect
to Permitted Investments of funds held in the Certificate Account; and
(vii) any amounts required to be deposited by the Master Servicer or
the Special Servicer pursuant to Section 3.07(b) in connection with losses
resulting from a deductible clause in a blanket hazard or master single
interest policy.
Notwithstanding the foregoing requirements, the Master Servicer need
not deposit into the Certificate Account any amount that the Master Servicer
would be authorized to withdraw immediately from such account in accordance with
the terms of Section 3.05 and shall be entitled to instead immediately pay such
amount directly to the Person(s) entitled thereto; provided that such amounts
shall be applied in accordance with the terms hereof and shall be reported as if
deposited in the Certificate Account and then withdrawn.
The foregoing requirements for deposit in the Certificate Account
shall be exclusive, it being understood and agreed that, without limiting the
generality of the foregoing, actual payments from Mortgagors in the nature of
Escrow Payments, charges for beneficiary statements or demands, assumption fees,
modification fees, extension fees, defeasance fees, or amounts collected for
Mortgagor checks returned for insufficient funds need not be deposited by the
Master Servicer in the Certificate Account. If the Master Servicer shall deposit
in the Certificate Account any amount not required to be deposited therein, it
may at any time withdraw such amount from the Certificate Account, any provision
herein to the contrary notwithstanding. Assumption, extension and modification
fees actually received from Mortgagors on Specially Serviced Mortgage Loans
shall be promptly delivered to the Special Servicer as additional servicing
compensation.
Upon receipt of any of the foregoing amounts in clauses (i)-(iv)
above with respect to any Specially Serviced Mortgage Loans, the Special
Servicer shall remit within one (1) Business Day such amounts to the Master
Servicer for deposit into the Certificate Account, in accordance with this
Section 3.04(a). Any such amounts received by the Special Servicer with respect
to an REO Property shall be deposited by the Special Servicer into the REO
Account and remitted to the Master Servicer for deposit into the Certificate
Account, pursuant to Section 3.16(c). With respect to any such amounts paid by
check to the order of the Special Servicer, the Special Servicer shall endorse
without recourse or warranty such check to the order of the Master Servicer and
shall promptly deliver any such check to the Master Servicer by overnight
courier.
Funds in the Certificate Account may only be invested in Permitted
Investments in accordance with the provisions of Section 3.06. As of the Closing
Date, the Certificate Account shall be located at the offices of PNC Bank,
National Association. The Master Servicer shall give notice to the Trustee, the
Special Servicer, the Paying Agent and the Depositor of the new location of the
Certificate Account prior to any change thereof.
(b) The Paying Agent, on behalf of the Trustee, shall establish and
maintain the Lower-Tier Distribution Account, the Upper-Tier Distribution
Account, the Excess Interest Distribution Account, the Interest Reserve Account
and the Gain-on-Sale Reserve Account in trust for the benefit of the
Certificateholders (and the Trustee as holder of the Uncertificated Lower-Tier
Interests). With respect to the Companion Loans, the Companion Paying Agent
shall establish and maintain an account for distributions to each Companion
Holder (the "Companion Distribution Account") to be held for the benefit of the
related Companion Holder. The Master Servicer shall deliver to the Paying Agent
each month on or before the P&I Advance Date therein, for deposit in the
Lower-Tier Distribution Account, that portion of the Available Distribution
Amount attributable to the Mortgage Loans (in each case, calculated without
regard to clauses (a)(iv), (a)(viii) , (c) and (d) of the definition of
Available Distribution Amount) for the related Distribution Date then on deposit
in the Certificate Account after giving effect to withdrawals of funds pursuant
to Section 3.05(a)(ii)-(xviii).
The Lower-Tier Distribution Account, the Upper-Tier Distribution
Account, the Excess Interest Distribution Account, the Gain-on-Sale Reserve
Account, the Interest Reserve Account and the Companion Distribution Account may
be subaccounts of a single Eligible Account, which shall be maintained as a
segregated account separate from other accounts.
In addition to the amounts required to be deposited in the
Lower-Tier Distribution Account pursuant to the third preceding paragraph, the
Master Servicer shall, as and when required hereunder, deliver to the Paying
Agent for deposit in the Lower-Tier Distribution Account:
(i) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.19 as Compensating Interest Payments in connection
with Prepayment Interest Shortfalls;
(ii) any P&I Advances required to be made by the Master Servicer in
accordance with Section 4.03;
(iii) any Liquidation Proceeds paid by the Master Servicer, the
Special Servicer, the Holders of the Controlling Class or the Holders of
the Class LR Certificates in connection with the purchase of all of the
Mortgage Loans and any REO Properties in the Trust Fund pursuant to
Section 9.01 (exclusive of that portion thereof required to be deposited
in the Certificate Account pursuant to Section 9.01);
(iv) any Yield Maintenance Charges actually collected; and
(v) any other amounts required to be so delivered for deposit in the
Lower-Tier Distribution Account pursuant to any provision of this
Agreement.
If, as of the close of business (New York City time), on any P&I
Advance Date or on such other date as any amount referred to in the foregoing
clauses (i) through (v) are required to be delivered hereunder, the Master
Servicer shall not have delivered to the Paying Agent for deposit in the
Lower-Tier Distribution Account and the Excess Interest Distribution Account the
amounts required to be deposited therein pursuant to the provisions of this
Agreement (including any P&I Advance pursuant to Section 4.03(a) hereof), the
Master Servicer shall pay the Paying Agent interest on such late payment at the
Prime Rate from and including the date such payment was required to be made
(without regard to any grace period set forth in Section 7.01(a)(i)) until (but
not including) the date such late payment is received by the Paying Agent.
The Paying Agent shall, upon receipt, deposit in the Lower-Tier
Distribution Account or the Excess Interest Distribution Account any and all
amounts received by the Paying Agent that are required by the terms of this
Agreement to be deposited therein.
Promptly on each Distribution Date, the Paying Agent shall be deemed
to withdraw from the Lower-Tier Distribution Account and deposit in the
Upper-Tier Distribution Account an aggregate amount of immediately available
funds equal to the Lower-Tier Regular Distribution Amount and the amount of any
Yield Maintenance Charges for such Distribution Date allocated in payment of the
Uncertificated Lower-Tier Interests as specified in Sections 4.01(b) and
4.01(d), respectively.
Funds on deposit in the Gain-on-Sale Reserve Account, the Interest
Reserve Account, the Excess Interest Distribution Account, the Companion
Distribution Account, the Upper-Tier Distribution Account and the Lower-Tier
Distribution Account shall remain uninvested. As of the Closing Date, the
Interest Reserve Account, the Upper-Tier Distribution Account and the Lower-Tier
Distribution Account shall be located at the offices of the Paying Agent. The
Paying Agent shall give notice to the Trustee, the Master Servicer and the
Depositor of the location of the Interest Reserve Account, the Upper-Tier
Distribution Account, the Lower-Tier Distribution Account and, if established,
the Gain-on-Sale Reserve Account and the Excess Interest Distribution Account,
and of the new location of the Distribution Accounts, the Interest Reserve
Account and the Gain-on-Sale Reserve Account prior to any change thereof.
(c) Prior to any Determination Date for the first Due Period during
which Excess Interest is received on any Mortgage Loan, and upon notification
from the Master Servicer or Special Servicer pursuant to Section 3.02(d), the
Paying Agent, on behalf of the Certificateholders, shall establish and maintain
the Excess Interest Distribution Account in the name of the Paying Agent in
trust for the benefit of the Class S Certificateholders. The Excess Interest
Distribution Account shall be established and maintained as an Eligible Account
(or as a subaccount of an Eligible Account). Prior to the applicable
Distribution Date, the Master Servicer shall remit to the Paying Agent for
deposit in the Excess Interest Distribution Account an amount equal to the
Excess Interest received prior to the Determination Date for the applicable Due
Period.
Following the distribution of Excess Interest to Class S
Certificateholders on the first Distribution Date after which there are no
longer any Mortgage Loans outstanding which pursuant to their terms could pay
Excess Interest, the Paying Agent shall terminate the Excess Interest
Distribution Account.
(d) The Paying Agent shall establish (upon notice from the Special
Servicer of an event occurring that generates Gain-on-Sale Proceeds) and
maintain the Gain-on-Sale Reserve Account in trust for the benefit of the
Certificateholders. The Gain-on-Sale Reserve Account shall be maintained as an
Eligible Account (or as a subaccount of an Eligible Account), separate and apart
from trust funds for mortgage pass-through certificates of other series
administered by the Paying Agent. Funds in the Gain-on-Sale Reserve Account
shall be held uninvested.
Upon the disposition of any REO Property in accordance with Section
3.09 or Section 3.18, the Special Servicer will calculate the Gain-on-Sale
Proceeds, if any, realized in connection with such sale and remit such funds to
the Paying Agent for deposit into the Gain-on-Sale Reserve Account, other than
Gain-on-Sale Proceeds allocable to the Companion Loans, which shall be remitted
to the Companion Paying Agent for deposit into the Companion Distribution
Account.
Section 3.05 Permitted Withdrawals from the Certificate Account and
the Distribution Accounts and the Companion Distribution Account. (a) The Master
Servicer may, from time to time, make withdrawals from the Certificate Account
for any of the following purposes (without duplication):
(i) no later than 4:00 p.m. New York City time on each P&I Advance
Date, to remit to the Paying Agent for deposit in the Lower-Tier
Distribution Account and the Excess Interest Distribution Account the
amounts required to be remitted pursuant to the first paragraph of Section
3.04(b) and Section 3.04(c) or that may be applied to make P&I Advances
pursuant to Section 4.03(a); and pursuant to the second paragraph of
Section 3.04(b), to remit to the Companion Paying Agent for deposit in the
Companion Distribution Account the amounts required to be so deposited on
the date specified in the related Intercreditor Agreement with respect to
the Companion Loans;
(ii) (A) to pay itself unpaid Servicing Fees in respect of each
Mortgage Loan, Companion Loan, Specially Serviced Mortgage Loan and REO
Loan, as applicable, the Master Servicer's rights to payment of Servicing
Fees pursuant to this clause (ii)(A) with respect to any Mortgage Loan,
Companion Loan, Specially Serviced Mortgage Loan or REO Loan, as
applicable, being limited to amounts received on or in respect of such
Mortgage Loan or Companion Loan (whether in the form of payments,
Liquidation Proceeds or Insurance and Condemnation Proceeds) or such REO
Loan (whether in the form of REO Revenues, Liquidation Proceeds or
Insurance and Condemnation Proceeds), that are allocable as recovery of
interest thereon and (B) to pay the Special Servicer any unpaid Special
Servicing Fees, Liquidation Fees and Workout Fees in respect of each
Specially Serviced Mortgage Loan or REO Loan or Corrected Mortgage Loan,
as applicable, and any expense incurred by the Special Servicer in
connection with performing any inspections pursuant to Section 3.12(a),
remaining unpaid first, out of related REO Revenues, Liquidation Proceeds
and Insurance and Condemnation Proceeds, and then out of general
collections on the Mortgage Loans and REO Properties;
(iii) to reimburse the Trustee and itself, as applicable (in that
order), for xxxxxxxxxxxx X&X Advances, the Master Servicer's or the
Trustee's right to reimbursement pursuant to this clause (iii) being
limited to amounts received which represent Late Collections of interest
on and principal of the particular Mortgage Loans and REO Loans with
respect to which such P&I Advances were made; provided, however, that if
such P&I Advance becomes a Workout-Delayed Reimbursement Amount, then such
P&I Advance shall thereafter be reimbursed from the portion of general
collections and recoveries on or in respect of the Mortgage Loans and REO
Properties on deposit in the Certificate Account from time to time that
represent collections or recoveries of principal to the extent provided in
clause (v) below (to be allocated between the Loan Groups as set forth in
the last paragraph of Section 3.05 (a));
(iv) to reimburse the Trustee and itself, as applicable (in that
order), for unreimbursed Servicing Advances, the Master Servicer's or the
Trustee's respective rights to receive payment pursuant to this clause
(iv) with respect to any Mortgage Loan, Companion Loan or REO Property
being limited to, as applicable, related payments, Liquidation Proceeds,
Insurance and Condemnation Proceeds and REO Revenues (provided that, in
case of such reimbursement relating to an AB Mortgage Loan, such
reimbursements shall be made first, from amounts collected on the related
Companion Loan and then from the related Mortgage Loan in accordance with
the terms of the related Intercreditor Agreement); provided, however, that
if such Servicing Advance becomes a Workout Delayed Reimbursement Amount,
then such Servicing Advance shall thereafter be reimbursed from the
portion of general collections and recoveries on or in respect of the
Mortgage Loans and REO Properties on deposit in the Certificate Account
from time to time that represent collections or recoveries of principal to
the extent provided in clause (v) below (to be allocated between the Loan
Groups as set forth in the last paragraph of Section 3.05(a));
(v) to reimburse Trustee and itself, as applicable (in that order)
(1) for Nonrecoverable Advances first, out of REO Revenues, Liquidation
Proceeds and Insurance and Condemnation Proceeds received on the related
Mortgage Loan and Companion Loan then, out of the principal portion of
general collections on the Mortgage Loans and REO Properties (to be
allocated between the Loan Groups as set forth in the last paragraph of
Section 3.05 (a)), then, to the extent the principal portion of general
collections is insufficient and with respect to such excess only, subject
to any exercise of the sole option to defer reimbursement thereof pursuant
to Section 3.19(c), out of other collections on the Mortgage Loans and REO
Properties and, (2) with respect to the Workout-Delayed Reimbursement
Amounts, out of the principal portion of the general collections on the
Mortgage Loans and REO Properties (to be allocated between the Loan Groups
as set forth in the last paragraph of Section 3.05 (a)), net of such
amounts being reimbursed pursuant to (1) above (provided that, in case of
such reimbursement relating to an AB Mortgage Loan, such reimbursement
shall be made first, from amounts collected on the related Companion Loan
and then from the related Mortgage Loan in accordance with the terms of
the related Intercreditor Agreement) or to pay itself, with respect to any
Mortgage Loan and the Companion Loans, if applicable, or REO Property any
related earned Servicing Fee that remained unpaid in accordance with
clause (ii) above following a Final Recovery Determination made with
respect to such Mortgage Loan or REO Property and the deposit into the
Certificate Account of all amounts received in connection therewith;
(vi) at such time as it reimburses the Trustee and itself, as
applicable (in that order) for (a) any xxxxxxxxxxxx X&X Advance (including
any such P&I Advance that constitutes a Workout-Delayed Reimbursement
Amount) pursuant to clause (iii) above, to pay itself and/or the Trustee
or such other servicing party, as applicable, any interest accrued and
payable thereon in accordance with Sections 4.03(d) and 3.11(c), (b) any
unreimbursed Servicing Advances (including any such Servicing Advance that
constitutes a Workout-Delayed Reimbursement Amount) pursuant to clause
(iv) above, to pay itself or the Trustee, as the case may be, any interest
accrued and payable thereon in accordance with Sections 3.03(d) and
3.11(c) or (c) any Nonrecoverable Advances pursuant to clause (v) above,
to pay itself or the Trustee or such other servicing party, as the case
may be, any interest accrued and payable thereon;
(vii) to reimburse itself, the Special Servicer or the Trustee, as
the case may be, for any unreimbursed expenses reasonably incurred by such
Person in respect of any Breach or Defect giving rise to a repurchase or
substitution obligation of the applicable Mortgage Loan Seller under
Section 6 of the applicable Mortgage Loan Purchase Agreement, including,
without limitation, any expenses arising out of the enforcement of the
repurchase or substitution obligation, each such Person's right to
reimbursement pursuant to this clause (vii) with respect to any Mortgage
Loan or Companion Loan being limited to that portion of the Purchase Price
or Substitution Shortfall Amount paid with respect to such Mortgage Loan
or Companion Loan that represents such expense in accordance with clause
(iv) of the definition of Purchase Price;
(viii) in accordance with Section 2.03(e), to reimburse itself or
the Special Servicer, as the case may be, first, out of Liquidation
Proceeds, Insurance and Condemnation Proceeds, and then out of general
collections on the Mortgage Loans and REO Properties, for any unreimbursed
expense reasonably incurred by such Person in connection with the
enforcement of the applicable Mortgage Loan Seller's obligations under
Section 6 of the applicable Mortgage Loan Purchase Agreement, but only to
the extent that such expenses are not reimbursable pursuant to clause
(vii) above or otherwise (provided that, in case of such reimbursement
relating to an AB Mortgage Loan, such reimbursements shall be made first,
from amounts collected on the related Companion Loan and then from the
related Mortgage Loan in accordance with the terms of the related
Intercreditor Agreement);
(ix) to pay for costs and expenses incurred by the Trust Fund
pursuant to Section 3.09(c) first, out of REO Revenues, Liquidation
Proceeds, Insurance and Condemnation Proceeds, and then out of general
collections on the Mortgage Loans and REO Properties (provided that, in
case of such reimbursement relating to an AB Mortgage Loan, such
reimbursements shall be made first, from amounts collected on the related
Companion Loan and then from the related Mortgage Loan in accordance with
the terms of the related Intercreditor Agreement);
(x) to pay itself, as additional servicing compensation in
accordance with Section 3.11(a), (a) (A) interest and investment income
earned in respect of amounts relating to the Trust Fund held in the
Certificate Account as provided in Section 3.06(b) (but only to the extent
of the Net Investment Earnings with respect to the Certificate Account for
the period from the prior P&I Advance Date to the P&I Advance Date related
to such Distribution Date) and (B) Penalty Charges (other than Penalty
Charges collected while the related Mortgage Loan is a Specially Serviced
Mortgage Loan), but only to the extent collected from the related
Mortgagor and to the extent that all amounts then due and payable with
respect to the related Mortgage Loan have been paid and such Penalty
Charges are not needed to pay interest on Advances or costs and expenses
incurred by the Trust Fund (other than Special Servicing Fees) in
accordance with Section 3.11(d); and (b) to pay the Special Servicer, as
additional servicing compensation in accordance with the second paragraph
of Section 3.11(b), Penalty Charges collected on Specially Serviced
Mortgage Loans (but only to the extent collected from the related
Mortgagor and to the extent that all amounts then due and payable with
respect to the related Specially Serviced Mortgage Loan have been paid and
such Penalty Charges are not needed to pay interest on Advances or costs
and expenses incurred by the Trust Fund in accordance with Section
3.11(d));
(xi) to recoup any amounts deposited in the Certificate Account in
error;
(xii) to pay itself, the Special Servicer, the Depositor or any of
their respective directors, officers, members, managers, employees and
agents, as the case may be, out of general collections, any amounts
payable to any such Person pursuant to Section 6.03(a) or 6.03(b)
(provided that, in case of such payments relating to an AB Mortgage Loan,
such reimbursements shall be made first, from amounts collected on the
related Companion Loan and then from the related Mortgage Loan to the
extent in accordance with the terms of the related Intercreditor Agreement
prior to being payable out of general collections);
(xiii) to pay for (a) the cost of the Opinions of Counsel
contemplated by Sections 3.09(b), 3.16(a), 3.17(b), 3.20(a), 3.20(d) and
10.01(f) to the extent payable out of the Trust Fund, (b) the cost of any
Opinion of Counsel contemplated by Section 11.01(a) or 11.01(c) in
connection with an amendment to this Agreement requested by the Trustee or
the Master Servicer, which amendment is in furtherance of the rights and
interests of Certificateholders and (c) the cost of obtaining the REO
Extension contemplated by Section 3.16(a) (provided that, in case of such
payments relating to an AB Mortgage Loan, such reimbursements shall be
made first, from amounts collected on the related Companion Loan and then
from the related Mortgage Loan to the extent in accordance with the terms
of the related Intercreditor Agreement prior to being payable out of
general collections);
(xiv) to pay out of general collections on the Mortgage Loans and
REO Properties any and all federal, state and local taxes imposed on the
Upper-Tier REMIC, the Lower-Tier REMIC, or any of their assets or
transactions, together with all incidental costs and expenses, to the
extent that none of the Master Servicer, the Special Servicer, the Paying
Agent or the Trustee is liable therefor pursuant to Section 10.01(g);
(xv) to reimburse the Paying Agent out of general collections on the
Mortgage Loans and REO Properties for expenses incurred by and
reimbursable to it by the Trust Fund pursuant to Section 10.01(c);
(xvi) to pay itself, the Special Servicer or the applicable Mortgage
Loan Seller, as the case may be, with respect to each Mortgage Loan, if
any, previously purchased by such Person pursuant to this Agreement, all
amounts received thereon subsequent to the date of purchase relating to
periods after the date of purchase; or, in the case of the substitution
for a Mortgage Loan by a Mortgage Loan Seller pursuant to Section 2.03(b),
to pay such Mortgage Loan Seller with respect to the replaced Mortgage
Loan all amounts received thereon subsequent to the date of substitution,
and with respect to the related Qualified Substitute Mortgage Loan(s), all
Monthly Payments due thereon during or prior to the month of substitution,
in accordance with the last two sentences of the first paragraph of
Section 2.03(b);
(xvii) to remit to the Paying Agent for deposit in the Interest
Reserve Account the amounts required to be deposited in the Interest
Reserve Account pursuant to Section 3.26;
(xviii) to clear and terminate the Certificate Account at the
termination of this Agreement pursuant to Section 9.01; and
(xix) to pay for any expenditures to be borne by the Trust Fund
pursuant to the second paragraph of Section 3.03(c).
The Master Servicer shall keep and maintain separate accounting
records, on a loan by loan and property by property basis when appropriate, for
the purpose of justifying any withdrawal from the Certificate Account.
The Master Servicer shall pay to the Special Servicer or the Paying
Agent from the Certificate Account amounts permitted to be paid to it therefrom
monthly upon receipt of a certificate of a Servicing Officer of the Special
Servicer or a Responsible Officer of the Paying Agent describing the item and
amount to which the Special Servicer or the Paying Agent is entitled. The Master
Servicer may rely conclusively on any such certificate and shall have no duty to
re-calculate the amounts stated therein. The Special Servicer shall keep and
maintain separate accounting for each Specially Serviced Mortgage Loan and REO
Loan, on a loan-by-loan and property-by-property basis, for the purpose of
justifying any request for withdrawal from the Certificate Account. To the
extent a Nonrecoverable Advance or Workout Delayed Reimbursement Amount with
respect to a Mortgage Loan is required to be reimbursed from the principal
portion of the general collections on the Mortgage Loans pursuant to clauses
(iii), (iv) or (v) of this Section 3.05(a), such reimbursement shall be made
first, from the principal collection available on the Mortgage Loans included in
the same Loan Group as such Mortgage Loan and if the principal collections in
such Loan Group are not sufficient to make such reimbursement in full, then from
the principal collections available in the other Loan Group (after giving effect
to any reimbursement of Nonrecoverable Advances and Workout Delayed
Reimbursement Amounts related to such other Loan Group. To the extent a
Nonrecoverable Advance with respect to a Mortgage Loan is required to be
reimbursed from the interest portion of the general collections on the Mortgage
Loans pursuant to clauses (iii), (iv) or (v) of this Section 3.05(a), such
reimbursement shall be made first, from the interest collections available on
the Mortgage Loans included in the same Loan Group as such Mortgage Loan and if
the interest collections in such Loan Group are not sufficient to make such
reimbursement in full, then from the interest collections available in the other
Loan Group (after giving effect to any reimbursement of Nonrecoverable Advances
related to such other Loan Group).
(b) The Paying Agent, on behalf of the Trustee, may, from time to
time, make withdrawals from the Lower-Tier Distribution Account for any of the
following purposes:
(i) to make deposits of the Lower-Tier Regular Distribution Amount
pursuant to Section 4.01(b) and the amount of any Yield Maintenance
Charges distributable pursuant to Section 4.01(d) in the Upper-Tier
Distribution Account and to make distributions on the Class LR
Certificates pursuant to Section 4.01(b);
(ii) to pay to the Trustee and the Paying Agent or any of their
directors, officers, employees and agents, as the case may be, any amounts
payable or reimbursable to any such Person, with respect to the Mortgage
Loans, pursuant to Section 8.05(b);
(iii) to pay the Trustee, the Trustee Fee as contemplated by Section
8.05(a) hereof with respect to the Mortgage Loans;
(iv) to pay for the cost of the Opinions of Counsel sought by the
Trustee or the Paying Agent (A) as provided in clause (v) of the
definition of "Disqualified Organization," (B) as contemplated by Section
3.20(d), 8.02(ii) and 10.01(f), or (C) as contemplated by Section 11.01(a)
or 11.01(c) in connection with any amendment to this Agreement requested
by the Trustee or the Paying Agent, which amendment is in furtherance of
the rights and interests of Certificateholders, in each case, to the
extent not paid pursuant to Section 11.01(g);
(v) to pay any and all federal, state and local taxes imposed on
either the Lower-Tier REMIC or Upper-Tier REMIC or on the assets or
transactions of any such REMIC, together with all incidental costs and
expenses, to the extent none of the Trustee, the Paying Agent, the REMIC
Administrator, the Master Servicer or the Special Servicer is liable
therefor pursuant to Section 10.01(g);
(vi) to pay the REMIC Administrator any amounts reimbursable to it
pursuant to Section 10.01(e);
(vii) to pay to the Master Servicer any amounts deposited by the
Master Servicer in the Distribution Account not required to be deposited
therein; and
(viii) to clear and terminate the Lower-Tier Distribution Account at
the termination of this Agreement pursuant to Section 9.01.
(c) The Paying Agent shall, on any Distribution Date, make
withdrawals from the Excess Interest Distribution Account to the extent required
to make the distributions of Excess Interest required by Section 4.01(i).
(d) The Paying Agent on behalf of the Trustee may make withdrawals
from the Upper-Tier Distribution Account for any of the following purposes:
(i) to make distributions to Certificateholders (other than Holders
of the Class LR Certificates) on each Distribution Date pursuant to
Section 4.01 or 9.01, as applicable; and
(ii) to clear and terminate the Upper-Tier Distribution Account at
the termination of this Agreement pursuant to Section 9.01.
(e) Notwithstanding anything herein to the contrary, with respect to
any Mortgage Loan, (i) if amounts on deposit in the Certificate Account and the
Lower-Tier Distribution Account are not sufficient to pay the full amount of the
Servicing Fee listed in Section 3.05(a)(ii) and the Trustee Fee listed in
Section 3.05(b)(ii) and (iii), then the Trustee Fee shall be paid in full prior
to the payment of any Servicing Fees payable under Section 3.05(a)(ii) and in
the event that amounts on deposit in the Certificate Account and the Lower-Tier
Distribution Account are not sufficient to pay the full amount of such Trustee
Fee, the Trustee shall be paid based on the amount of such fees and (ii) if
amounts on deposit in the Certificate Account are not sufficient to reimburse
the full amount of Advances and interest thereon listed in Sections
3.05(a)(iii), (iv), (v) and (vi), then reimbursements shall be paid first to the
Trustee and second to the Master Servicer.
(f) The Companion Paying Agent may, from time to time, make
withdrawals from the Companion Distribution Account to make distributions
pursuant to Section 4.01(j).
Section 3.06 Investment of Funds in the Certificate Account and the
REO Account. (a) The Master Servicer may direct any depository institution
maintaining the Certificate Account, or any Servicing Account (for purposes of
this Section 3.06, an "Investment Account"), the Special Servicer may direct any
depository institution maintaining the REO Account (also for purposes of this
Section 3.06, an "Investment Account") to invest or if it is such depository
institution, may itself invest, the funds held therein, only in one or more
Permitted Investments bearing interest or sold at a discount, and maturing,
unless payable on demand, (i) 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, if a Person other than
the depository institution maintaining such account is the obligor thereon and
(ii) no later than the date on which such funds are required to be withdrawn
from such account pursuant to this Agreement, if the depository institution
maintaining such account is the obligor thereon. All such Permitted Investments
shall be held to maturity, unless payable on demand. Any investment of funds in
an Investment Account shall be made in the name of the Trustee (in its capacity
as such). The Master Servicer (in the case of the Certificate Account, or any
Servicing Account maintained by or for the Master Servicer) or the Special
Servicer (in the case of the REO Account or any Servicing Account maintained by
or for the Special Servicer), on behalf of the Trustee, shall maintain
continuous physical possession of any Permitted Investment of amounts in the
Certificate Account, the Servicing Accounts or REO Account, as applicable, that
is either (i) a "certificated security," as such term is defined in the UCC
(such that the Trustee shall have control pursuant to Section 8-106 of the UCC)
or (ii) other property in which a secured party may perfect its security
interest by physical possession under the UCC or any other applicable law. In
the case of any Permitted Investment held in the form of a "security
entitlement" (within the meaning of Section 8-102(a)(17) of the UCC), the Master
Servicer or the Special Servicer, as applicable, shall take or cause to be taken
such action as the Trustee deems reasonably necessary to cause the Trustee to
have control over such security entitlement. In the event amounts on deposit in
an Investment Account are at any time invested in a Permitted Investment payable
on demand, the Master Servicer (in the case of the Certificate Account, or any
Servicing Account maintained by or for the Master Servicer), the Special
Servicer (in the case of the REO Account or any Servicing Account maintained by
or for the Special Servicer) shall:
(i) consistent with any notice required to be given thereunder,
demand that payment thereon be made on the last day such Permitted
Investment may otherwise mature hereunder in an amount equal to the lesser
of (a) all amounts then payable thereunder and (b) the amount required to
be withdrawn on such date; and
(ii) demand payment of all amounts due thereunder promptly upon
determination by the Master Servicer, the Special Servicer or the Trustee,
as the case may be, that such Permitted Investment would not constitute a
Permitted Investment in respect of funds thereafter on deposit in the
Investment Account.
(b) Interest and investment income realized on funds deposited in
the Certificate Account, or any Servicing Account maintained by or for the
Master Servicer, to the extent of the Net Investment Earnings, if any, with
respect to such account for the period from the prior P&I Advance Date to the
P&I Advance Date related to such Distribution Date, shall be for the sole and
exclusive benefit of the Master Servicer to the extent (with respect to
Servicing Accounts) not required to be paid to the related Mortgagor and shall
be subject to its withdrawal, or withdrawal at its direction, in accordance with
Sections 3.03 or Section 3.05(a), as the case may be. Interest and investment
income realized on funds deposited in the REO Account or any Servicing Account
maintained by or for the Special Servicer, to the extent of the Net Investment
Earnings, if any, with respect to such account for each period from any P&I
Advance Date to the immediately succeeding P&I Advance Date, shall be for the
sole and exclusive benefit of the Special Servicer and shall be subject to its
withdrawal in accordance with Section 3.16(c). In the event that any loss shall
be incurred in respect of any Permitted Investment (as to which the Master
Servicer or Special Servicer, as applicable, would have been entitled to any Net
Investment Earnings hereunder) directed to be made by the Master Servicer or
Special Servicer, as applicable, and on deposit in any of the Certificate
Account, the Servicing Account or the REO Account, the Master Servicer (in the
case of the Certificate Account or any Servicing Account maintained by or for
the Master Servicer) and the Special Servicer (in the case of the REO Account or
any Servicing Account maintained by or for the Special Servicer) shall deposit
therein, no later than the P&I Advance Date, without right of reimbursement, the
amount of Net Investment Loss, if any, with respect to such account for the
period from the prior P&I Advance Date to the P&I Advance Date related to such
Distribution Date, provided that neither the Master Servicer nor the Special
Servicer shall be required to deposit any loss on an investment of funds in an
Investment Account if such loss is incurred solely as a result of the insolvency
of the federal or state chartered depository institution or trust company that
holds such Investment Account, so long as such depository institution or trust
company satisfied the qualifications set forth in the definition of Eligible
Account at the time such investment was made (and, with respect to the Master
Servicer, such federal or state chartered depository institution or trust
company is not an Affiliate of the Master Servicer unless such depository
institution or trust company satisfied the qualification set forth in the
definition of Eligible Account both (x) at the time the investment was made and
(y) 30 days prior to such insolvency).
(c) Except as otherwise expressly provided in this Agreement, if any
default occurs in the making of a payment due under any Permitted Investment, or
if a default occurs in any other performance required under any Permitted
Investment, the Master Servicer may and, upon the request of Holders of
Certificates entitled to a majority of the Voting Rights allocated to any Class
shall, take such action as may be appropriate to enforce such payment or
performance, including the institution and prosecution of appropriate
proceedings.
Section 3.07 Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage. (a) The Master Servicer (with respect to Mortgage Loans)
or the Special Servicer (with respect to Specially Serviced Mortgage Loans and
REO Properties) shall use its efforts consistent with the Servicing Standards to
cause the Mortgagor to maintain, to the extent required by the terms of the
related Mortgage Note all insurance coverage as is required under the related
Mortgage. If the Mortgagor does not so maintain such insurance coverage, the
Master Servicer (with respect to Mortgage Loans and at the direction of the
Special Servicer in the case of a Specially Serviced Mortgage Loan) or the
Special Servicer (with respect to REO Properties) shall maintain all insurance
coverage as is required under the related Mortgage, but only in the event the
Trustee has an insurable interest therein and such insurance is available to the
Master Servicer or the Special Servicer and, if available, can be obtained at
commercially reasonable rates, except to the extent that the failure of the
related Mortgagor to do so is an Acceptable Insurance Default; provided,
however, that if any Mortgage permits the holder thereof to dictate to the
Mortgagor the insurance coverage to be maintained on such Mortgaged Property,
the Master Servicer or the Special Servicer, as applicable, shall impose such
insurance requirements as are consistent with the Servicing Standards, provided
that, with respect to the immediately preceding proviso, the Master Servicer
will be obligated to maintain insurance against property damage resulting from
terrorist or similar acts unless the Mortgagor's failure is an Acceptable
Insurance Default and only in the event the Trustee has an insurable interest
therein and such insurance is available to the Master Servicer and, if
available, can be obtained at commercially reasonable rates. Subject to Section
3.17(a) and the costs of such insurance being reimbursed or paid to the Special
Servicer as provided in the last sentence of this paragraph, the Special
Servicer shall maintain for each REO Property no less insurance coverage than
was previously required of the Mortgagor under the related Mortgage Loan and
Companion Loan unless the Special Servicer, with Directing Certificateholder
consent, determines that such insurance is not available at commercially
reasonable rates. All Insurance Policies maintained by the Master Servicer or
the Special Servicer shall (i) contain a "standard" mortgagee clause, with loss
payable to the Master Servicer on behalf of the Trustee (in the case of
insurance maintained in respect of Mortgage Loans and Companion Loans other than
REO Properties) or to the Special Servicer on behalf of the Trustee (in the case
of insurance maintained in respect of REO Properties), (ii) be in the name of
the Trustee (in the case of insurance maintained in respect of REO Properties),
(iii) include coverage in an amount not less than the lesser of (x) the full
replacement cost of the improvements securing Mortgaged Property or the REO
Property, as applicable, or (y) the outstanding principal balance owing on the
related Mortgage Loan, Companion Loan or REO Loan, as applicable, and in any
event, the amount necessary to avoid the operation of any co-insurance
provisions, (iv) include a replacement cost endorsement providing no deduction
for depreciation (unless such endorsement is not permitted under the related
Mortgage Loan documents), (v) be noncancellable without 30 days prior written
notice to the insured party (except in the case of nonpayment, in which case
such policy shall not be cancelled without 10 days prior notice) and (vi) be
issued by a Qualified Insurer authorized under applicable law to issue such
Insurance Policies. Any amounts collected by the Master Servicer or the Special
Servicer under any such Insurance Policies (other than amounts to be applied to
the restoration or repair of the related Mortgaged Property or REO Property or
amounts to be released to the related Mortgagor, in each case in accordance with
the Servicing Standards and the provisions of the related Mortgage Loan and
Companion Loan) shall be deposited in the Certificate Account, subject to
withdrawal pursuant to Section 3.05(a). Any costs incurred by the Master
Servicer in maintaining any such Insurance Policies in respect of Mortgage Loans
and Companion Loans (other than REO Properties) (i) if the Mortgagor defaults on
its obligation to do so, shall be advanced by the Master Servicer as a Servicing
Advance and will be charged to the related Mortgagor and (ii) shall not, for
purposes of calculating monthly distributions to Certificateholders, be added to
the unpaid principal balance of the related Mortgage Loan and Companion Loan,
notwithstanding that the terms of such Mortgage Loan or Companion Loan so
permit. Any cost incurred by the Special Servicer in maintaining any such
Insurance Policies with respect to REO Properties shall be an expense of the
Trust payable out of the related REO Account pursuant to Section 3.16(c) or, if
the amount on deposit therein is insufficient therefor, advanced by the Master
Servicer as a Servicing Advance.
Notwithstanding the foregoing, with respect to the Mortgage Loans
that either (x) require the Mortgagor to maintain "all risk" property insurance
(and do not expressly permit an exclusion for terrorism) or (y) contain
provisions generally requiring the applicable Mortgagor to maintain insurance in
types and against such risks as the holder of such Mortgage Loan reasonably
requires from time to time in order to protect its interests, the Master
Servicer will be required to (A) actively monitor whether the insurance policies
for the related Mortgaged Property contain Additional Exclusions, (B) request
the Mortgagor to either purchase insurance against the risks specified in the
Additional Exclusions or provide an explanation as to its reasons for failing to
purchase such insurance and (C) notify the Special Servicer if any insurance
policy contains Additional Exclusions or if any borrower fails to purchase the
insurance requested to be purchased by the Master Servicer pursuant to clause
(B) above. If the Special Servicer determines in accordance with the related
Servicing Standard that such failure is not an Acceptable Insurance Default, the
Special Servicer shall notify the Master Servicer and the Master Servicer shall
cause such insurance to be maintained. Furthermore, the Special Servicer shall
inform the Rating Agencies as to such conclusions for those Mortgage Loans that
(i) have one of the ten (10) highest outstanding Stated Principal Balances of
all of the Mortgage Loans then included in the Trust or (ii) comprise more than
5% of the outstanding Stated Principal Balance of the Mortgage Loans then
included in the Trust. During the period that the Special Servicer is evaluating
the availability of such insurance, the Master Servicer will not be liable for
any loss related to its failure to require the Mortgagor to maintain such
insurance and will not be in default of its obligations as a result of such
failure and the Master Servicer will not itself maintain such insurance or cause
such insurance to be maintained.
(b) (i) If the Master Servicer or the Special Servicer shall obtain
and maintain a blanket Insurance Policy with a Qualified Insurer insuring
against fire and hazard losses on all of the Mortgage Loans or REO Properties,
as the case may be, required to be serviced and administered hereunder, then, to
the extent such Insurance Policy provides protection equivalent to the
individual policies otherwise required, the Master Servicer or the Special
Servicer shall conclusively be deemed to have satisfied its obligation to cause
fire and hazard insurance to be maintained on the related Mortgaged Properties
or REO Properties. Such Insurance Policy may contain a deductible clause, in
which case the Master Servicer or the Special Servicer shall, if there shall not
have been maintained on the related Mortgaged Property or REO Property a fire
and hazard Insurance Policy complying with the requirements of Section 3.07(a),
and there shall have been one or more losses which would have been covered by
such Insurance Policy, promptly deposit into the Certificate Account from its
own funds the amount of such loss or losses that would have been covered under
the individual policy but are not covered under the blanket Insurance Policy
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 such deductible limitation, the deductible limitation which is
consistent with the Servicing Standards. In connection with its activities as
administrator and Master Servicer of the Mortgage Loans, the Master Servicer
agrees to prepare and present, on behalf of itself, the Trustee and
Certificateholders, claims under any such blanket Insurance Policy in a timely
fashion in accordance with the terms of such policy. The Special Servicer, to
the extent consistent with the Servicing Standards, may maintain, earthquake
insurance on REO Properties, provided coverage is available at commercially
reasonable rates, the cost of which shall be a Servicing Advance.
(ii) If the Master Servicer or the Special Servicer shall cause any
Mortgaged Property or REO Property to be covered by a master single
interest or force-placed insurance policy with a Qualified Insurer naming
the Master Servicer or the Special Servicer on behalf of the Trustee as
the loss payee, then to the extent such Insurance Policy provides
protection equivalent to the individual policies otherwise required, the
Master Servicer or the Special Servicer shall conclusively be deemed to
have satisfied its obligation to cause such insurance to be maintained on
the related Mortgaged Properties and REO Properties. In the event the
Master Servicer or the Special Servicer shall cause any Mortgaged Property
or REO Property to be covered by such master single interest or
force-placed insurance policy, the incremental costs of such insurance
applicable to such Mortgaged Property or REO Property (i.e., other than
any minimum or standby premium payable for such policy whether or not any
Mortgaged Property or REO Property is covered thereby) shall be paid by
the Master Servicer as a Servicing Advance. Such master single interest or
force-placed policy may contain a deductible clause, in which case the
Master Servicer or the Special Servicer shall, in the event that there
shall not have been maintained on the related Mortgaged Property or REO
Property a policy otherwise complying with the provisions of Section
3.07(a), and there shall have been one or more losses which would have
been covered by such policy had it been maintained, deposit into the
Certificate Account from its own funds the amount not otherwise payable
under the master single or force-placed interest policy 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
which is consistent with the Servicing Standards.
(c) Each of the Master Servicer and the Special Servicer shall
obtain and maintain at its own expense and keep in full force and effect
throughout the term of this Agreement a blanket fidelity bond and an errors and
omissions Insurance Policy with a Qualified Insurer covering the Master
Servicer's and the Special Servicer's, as applicable, officers and employees
acting on behalf of the Master Servicer and the Special Servicer in connection
with its activities under this Agreement. Notwithstanding the foregoing, so long
as the long term debt or the deposit obligations or claims-paying ability of the
Master Servicer or the Special Servicer, as applicable, is rated at xxxxx "X0"
by Xxxxx'x and "A" by Fitch, the Master Servicer or the Special Servicer, as
applicable, shall be allowed to provide self-insurance with respect to a
fidelity bond and an Errors and Omissions Insurance Policy. Such amount of
coverage shall be, with respect to non-multifamily Mortgage Loans, in such form
and amount as are consistent with the Servicing Standards or, with respect to
multifamily Mortgage Loans, at least equal to the coverage that would be
required by Xxxxxx Xxx or Xxxxxxx Mac, whichever is greater, with respect to the
Master Servicer or the Special Servicer if the Master Servicer or the Special
Servicer, as applicable, were servicing and administering the Mortgage Loans or
Specially Serviced Mortgage Loans, as applicable, for Xxxxxx Mae or Xxxxxxx Mac.
Coverage of the Master Servicer or the Special Servicer under a policy or bond
obtained by an Affiliate of the Master Servicer or the Special Servicer and
providing the coverage required by this Section 3.07(c) shall satisfy the
requirements of this Section 3.07(c). The Special Servicer and the Master
Servicer will promptly report in writing to the Trustee any material changes
that may occur in their respective fidelity bonds, if any, and/or their
respective errors and omissions Insurance Policies, as the case may be, and will
furnish to the Trustee copies of all binders and policies or certificates
evidencing that such bonds, if any, and insurance policies are in full force and
effect. The Master Servicer and the Special Servicer shall each cause the
Trustee to be an additional loss payee on any policy currently in place or
procured pursuant to the requirements of this Section 3.07(c).
(d) At the time the Master Servicer determines in accordance with
the Servicing Standards that any Mortgaged Property is in a federally designated
special flood hazard area (and such flood insurance has been made available),
the Master Servicer will use efforts consistent with the Servicing Standards to
cause the related Mortgagor (in accordance with applicable law and the terms of
the Mortgage Loan documents) to maintain, and, if the related Mortgagor shall
default in its obligation to so maintain, shall itself maintain to the extent
available at commercially reasonable rates (as determined by the Master Servicer
in accordance with the Servicing Standards and to the extent the Trustee, as
mortgagee, has an insurable interest therein), flood insurance in respect
thereof, but only to the extent the related Mortgage Loan permits the mortgagee
to require such coverage and the maintenance of such coverage is consistent with
the Servicing Standards. Such flood insurance shall be in an amount equal to the
lesser of (i) the unpaid principal balance of the related Mortgage Loan, and
(ii) the maximum amount of insurance which is available under the National Flood
Insurance Act of 1968, as amended. If the cost of any insurance described above
is not borne by the Mortgagor, the Master Servicer shall promptly make a
Servicing Advance for such costs.
(e) During all such times as any REO Property shall be located in a
federally designated special flood hazard area, the Special Servicer will cause
to be maintained, to the extent available at commercially reasonable rates (as
determined by the Special Servicer in accordance with the Servicing Standards),
a flood insurance policy meeting the requirements of the current guidelines of
the Federal Insurance Administration in an amount representing coverage not less
than the maximum amount of insurance which is available under the National Flood
Insurance Act of 1968, as amended. The cost of any such flood insurance with
respect to an REO Property shall be an expense of the Trust payable out of the
related REO Account pursuant to Section 3.16(c) or, if the amount on deposit
therein is insufficient therefor, paid by the Master Servicer as a Servicing
Advance.
Section 3.08 Enforcement of Due-on-Sale Clauses; Assumption
Agreements. (a) As to each Mortgage Loan or Companion Loan which contains a
provision in the nature of a "due-on-sale" clause, which by its terms:
(i) provides that such Mortgage Loan or Companion Loan shall (or may
at the mortgagee's option) become due and payable upon the sale or other
transfer of an interest in the related Mortgaged Property; or
(ii) provides that such Mortgage Loan or Companion Loan may not be
assumed without the consent of the mortgagee in connection with any such
sale or other transfer,
then, for so long as such Mortgage Loan or Companion Loan is being serviced
under this Agreement, the Special Servicer or, with respect to all Non-Specially
Serviced Mortgage Loans, the Master Servicer, on behalf of the Trustee as the
mortgagee of record, shall exercise (or waive its right to exercise) the rights
of the lender in the Mortgage Loan Documents provided that, (i) with respect to
all Non-Specially Serviced Mortgage Loans, the Master Servicer has obtained the
prior written consent of the Special Servicer, which consent shall be deemed
given 15 Business Days after receipt by the Special Servicer from the Master
Servicer of the Master Servicer's analysis and recommendation with respect to
such waiver together with such other information reasonably required by the
Special Servicer, (ii) with respect to all Specially Serviced Mortgage Loans and
Non-Specially Serviced Mortgage Loans, the Special Servicer shall, prior to
consenting to such a proposed action of the Master Servicer, obtain, and, prior
to itself taking such an action, the Special Servicer shall obtain, the prior
written consent of the Directing Certificateholder, which consent shall be
deemed given 10 Business Days after receipt by the Directing Certificateholder
of the Master Servicer's or Special Servicer's, as applicable, analysis and
recommendation with respect to such waiver together with such other information
reasonably required by the Directing Certificateholder, and (iii) with respect
to any Mortgage Loan (x) with a Stated Principal Balance greater than or equal
to $20,000,000, (y) with a Stated Principal Balance greater than 5% of the
aggregate Stated Principal Balance of all the Mortgage Loans then outstanding or
(z) together with any other Mortgage Loans cross-collateralized with such
Mortgage Loan, or together with all other Mortgage Loans with the same or an
affiliated Mortgagor, is one of the ten largest of the then outstanding Mortgage
Loans, by Stated Principal Balance, the Master Servicer or the Special Servicer,
as applicable, shall not take such action unless it has obtained confirmation
from each Rating Agency stating that none of the then-current rating or ratings
of all outstanding Classes of the Certificates would be qualified, downgraded or
withdrawn by such Rating Agency, as a result of such waiver) any right it may
have with respect to such Mortgage Loan (x) to accelerate the payments thereon
or (y) to withhold its consent to the sale or transfer.
(b) As to each Mortgage Loan and Companion Loan which contains a
provision in the nature of a "due-on-encumbrance" clause, which by its terms:
(i) provides that such Mortgage Loan and Companion Loan shall (or
may at the mortgagee's option) become due and payable upon the creation of
any additional lien or other encumbrance on the related Mortgaged
Property; or
(ii) requires the consent of the mortgagee to the creation of any
such additional lien or other encumbrance on the related Mortgaged
Property;
then, for so long as such Mortgage Loan and Companion Loan is serviced under
this Agreement, the Special Servicer or, with respect to all Non-Specially
Serviced Mortgage Loans, the Master Servicer, on behalf of the Trustee as the
mortgagee of record, shall exercise (or waive its right to exercise), provided
that, (i) (a) with respect to all Non-Specially Serviced Mortgage Loans, the
Master Servicer has made a recommendation and obtained the prior written consent
of the Special Servicer, which consent shall be deemed given ten (10) Business
Days after receipt by the Special Servicer from the Master Servicer of the
Master Servicer's analysis and recommendation with respect to such waiver
together with such other information reasonably required by the Special Servicer
and (b) the Master Servicer or the Special Servicer, as the case may be, has
obtained (i) the prior written consent of the Directing Certificateholder, which
consent shall be deemed given 10 Business Days after receipt by the Directing
Certificateholder of the Master Servicer's and/or Special Servicer's, as
applicable, analysis and recommendation with respect to such waiver together
with such other information reasonably required by the Directing
Certificateholder, and (ii) from each Rating Agency a confirmation that such
waiver would not result in the downgrade, withdrawal or qualification of the
then-current ratings on any Class of outstanding Certificates if such Mortgage
Loan (1) has an outstanding principal balance (together with any Mortgage Loans
cross-collateralized with such Mortgage Loan) that is greater than or equal to
2% of the Stated Principal Balance of the outstanding Mortgage Loans or (2) has
an LTV Ratio (including existing and proposed debt) greater than 85% (including
any proposed debt) or (3) a Debt Service Coverage Ratio less than 1.20x (in each
case, determined based upon the aggregate of the Stated Principal Balance of the
Mortgage Loan and the principal amount of the proposed additional loan) or (4)
is one of the ten (10) largest Mortgage Loans (by Stated Principal Balance) or
(5) has a Stated Principal Balance over $20,000,000) any right it may have with
respect to such Mortgage Loan (x) to accelerate the payments thereon or (y) to
withhold its consent to the creation of any such additional lien or other
encumbrance, in a manner consistent with the Servicing Standards.
(c) Nothing in this Section 3.08 shall constitute a waiver of the
Trustee's right, as the mortgagee of record, to receive notice of any assumption
of a Mortgage Loan, any sale or other transfer of the related Mortgaged Property
or the creation of any additional lien or other encumbrance with respect to such
Mortgaged Property.
(d) Except as otherwise permitted by Sections 3.20 and 3.08(a), (b)
and (e), neither the Master Servicer nor the Special Servicer shall agree to
modify, waive or amend any term of any Mortgage Loan in connection with the
taking of, or the failure to take, any action pursuant to this Section 3.08. The
Master Servicer and the Special Servicer shall each provide copies of any
waivers it effects pursuant to Section 3.08(a) or (b) to the other and each
Rating Agency with respect to each Mortgage Loan. To the extent not previously
provided, the Master Servicer shall provide copies of any waivers it effects
pursuant to Section 3.08(a) or (b) to the Special Servicer and each Rating
Agency with respect to each Mortgage Loan.
(e) Notwithstanding any other provisions of this Section 3.08 or
Section 3.20, the Master Servicer may with respect to Non-Specially Serviced
Mortgage Loans, without any Directing Certificateholder approval, Rating Agency
confirmation or Special Servicer approval (provided the Master Servicer delivers
notice thereof to the Special Servicer and Directing Certificateholder, except
to the extent that the Special Servicer or the Directing Certificateholder, as
the case may be, notifies the Master Servicer that such party does not desire to
receive copies of such items), (i) grant waivers of non-material covenant
defaults (other than financial covenants), including late financial statements;
(ii) grant releases of non-material, non-income producing parcels of a Mortgaged
Property that do not materially affect the use or value of the Mortgaged
Property or the ability of the related Mortgagor to pay amounts due in respect
of the Mortgage Loan as and when due provided such releases are required by the
related Mortgage Loan documents; (iii) approve or consent to grants of easements
or right of way for utilities, access, parking, public improvements or another
purpose or subordinations of the lien of Mortgage Loans to easements that do not
materially affect the use or value of a Mortgaged Property or a Mortgagor's
ability to make any payments with respect to the related Mortgage Loan; (iv)
grant other routine approvals, including the granting of subordination,
non-disturbance and attornment agreements and leasing consents that affect less
than the lesser of (a) 25% of the net rentable area of the Mortgaged Property,
or (b) 30,000 square feet; (v) consents to actions related to condemnation of
non-material, non-income producing parcels of the Mortgaged Property that do not
materially affect the use or value of the Mortgaged Property or the ability of
the related Mortgagor to pay amounts due in respect of the Mortgage Loan or
Companion Loan as and when due; (vi) consents to a change in property management
relating to any Mortgage Loan or Companion Loan with respect to Mortgage Loans
or Companion Loans with an outstanding principal balance of less than
$5,000,000; and (vii) approve of annual operating budgets; provided that 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 or Companion Loan pursuant to Treasury Regulations Section
1.860G-2(b) and would not otherwise cause either the Upper-Tier REMIC or
Lower-Tier REMIC to fail to qualify as a REMIC or cause the Grantor Trust to
fail to qualify as a grantor trust under subpart E, Part I of subchapter J of
the Code for federal income tax purposes, (y) agreeing to such modification,
waiver or amendment would be consistent with the Servicing Standards, and (z)
agreeing to such modification, waiver or amendment shall not violate the terms,
provisions or limitations of this Agreement or any other document contemplated
hereby.
(f) Notwithstanding any other provision of this Agreement, the
Master Servicer may not waive its rights or grant its consent under any "due on
sale" or "due on encumbrance" clause without the consent of the Special Servicer
and the Special Servicer may not waive its rights or grant its consent under any
"due-on-sale" or "due-on-encumbrance" clause relating to a Non-Specially
Serviced Mortgage Loan having a Stated Principal Balance greater or equal to
$2,500,000 or relating to any Specially Serviced Mortgage Loan without the
consent of the Directing Certificateholder. The Directing Certificateholder
shall have 10 Business Days after receipt of notice along with the Master
Servicer's or Special Servicer's recommendation and analysis with respect to
such waiver and any additional information the Directing Certificateholder may
reasonably request from the Special Servicer of a proposed waiver or consent
under any "due on sale" or "due on encumbrance" clause in which to grant or
withhold its consent (provided that if the Special Servicer fails to receive a
response to such notice from the Directing Certificateholder in writing within
such period, then the Directing Certificateholder shall be deemed to have
consented to such proposed waiver or consent).
(g) Notwithstanding the foregoing, prior to the occurrence and
continuance of a 000 Xxxx Xxxxxx Xxxxx Control Appraisal Event, the rights set
forth in Sections 3.08(a) and 3.08(b) of the Directing Certificateholder shall
instead be exercised by the 000 Xxxx Xxxxxx Xxxxx Xxxx X Representative,
provided, that any direction or objection provided by a B Note Representative
shall not violate the Servicing Standard or the REMIC Provisions. In the event
that the 000 Xxxx Xxxxxx Xxxxx X Note Representative fails to respond within 30
days after receipt of a request for consent to any action, the Special Servicer
shall implement the action or inaction that it deems in accordance with the
Servicing Standards.
Section 3.09 Realization Upon Defaulted Mortgage Loans. (a) The
Special Servicer shall, subject to subsections (b) through (d) of this Section
3.09 and Section 3.30, exercise reasonable efforts, consistent with the
Servicing Standards, to foreclose upon or otherwise comparably convert (which
may include an REO Acquisition) the ownership of property securing such Mortgage
Loans or Companion Loans, as come into and continue in default as to which no
satisfactory arrangements can be made for collection of delinquent payments, and
which are not released from the Trust Fund pursuant to any other provision
hereof. The foregoing is subject to the provision that, in any case in which a
Mortgaged Property shall have suffered damage from an Uninsured Cause, the
Master Servicer or Special Servicer shall not be required to make a Servicing
Advance and expend funds toward the restoration of such property unless the
Special Servicer has determined in its reasonable discretion that such
restoration will increase the net proceeds of liquidation of such Mortgaged
Property to Certificateholders after reimbursement to the Master Servicer for
such Servicing Advance, and the Master Servicer or Special Servicer has not
determined that such Servicing Advance together with accrued and unpaid interest
thereon would constitute a Nonrecoverable Advance. The costs and expenses
incurred by the Special Servicer in any such proceedings shall be advanced by
the Master Servicer, provided that, in each case, such cost or expense would
not, if incurred, constitute a Nonrecoverable Servicing Advance. Nothing
contained in this Section 3.09 shall be construed so as to require the Master
Servicer or the 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 Master Servicer
or the Special Servicer in its reasonable judgment taking into account the
factors described in Section 3.18(b) and the results of any Appraisal obtained
pursuant to the following sentence, all such bids to be made in a manner
consistent with the Servicing Standards. If and when the Special Servicer or the
Master Servicer deems it necessary and prudent for purposes of establishing the
fair market value of any Mortgaged Property securing a Defaulted Mortgage Loan
or defaulted Companion Loan, whether for purposes of bidding at foreclosure or
otherwise, the Special Servicer or the Master Servicer, as the case may be, is
authorized to have an Appraisal performed with respect to such property by an
Independent MAI-designated appraiser the cost of which shall be paid by the
Master Servicer as a Servicing Advance.
(b) The Special Servicer shall not acquire any personal property
pursuant to this Section 3.09 unless either:
(i) such personal property is incidental to real property (within
the meaning of Section 856(e)(1) of the Code) so acquired by the Special
Servicer; or
(ii) the Special Servicer shall have obtained an Opinion of Counsel
(the cost of which shall be paid by the Master Servicer as a Servicing
Advance) to the effect that the holding of such personal property by the
Trust Fund (to the extent not allocable to a Companion Loan) will not
cause the imposition of a tax on the Upper-Tier REMIC or the Lower-Tier
REMIC under the REMIC Provisions or cause the Upper-Tier REMIC or the
Lower-Tier REMIC to fail to qualify as a REMIC at any time that any
Uncertificated Lower-Tier Interest or Certificate, or any security issued
by such a commercial mortgage securitization trust, is outstanding.
(c) Notwithstanding the foregoing provisions of this Section 3.09
and Section 3.30, neither the Special Servicer nor the Master Servicer shall, on
behalf of the Trustee, obtain title to a Mortgaged Property in lieu of
foreclosure or otherwise, or take any other action with respect to any Mortgaged
Property, if, as a result of any such action, the Trustee, on behalf of the
Certificateholders and/or any related Companion Holder(s), would be considered
to hold title to, to be a "mortgagee-in-possession" of, or to be an "owner" or
"operator" of such Mortgaged Property within the meaning of CERCLA or any
comparable law, unless (as evidenced by an Officer's Certificate to such effect
delivered to the Trustee) the Special Servicer has previously determined in
accordance with the Servicing Standards, based on an Environmental Assessment of
such Mortgaged Property performed by an Independent Person who regularly
conducts Environmental Assessments and performed within six months prior to any
such acquisition of title or other action, that:
(i) the Mortgaged Property is in compliance with applicable
environmental laws and regulations or, if not, that taking such actions as
are necessary to bring the Mortgaged Property in compliance therewith is
reasonably likely to produce a greater recovery on a net present value
basis than not taking such actions, for such purposes taking into account
any insurance coverage provided pursuant to any environmental insurance
polices in effect and obtained on behalf of the Mortgagee with respect to
the related Mortgaged Property; and
(ii) there are no circumstances or conditions present at the
Mortgaged Property relating to the use, management or disposal of
Hazardous Materials for which investigation, testing, monitoring,
containment, clean-up or remediation could be required under any
applicable environmental laws and regulations or, if such circumstances or
conditions are present for which any such action could be required, that
taking such actions with respect to such Mortgaged Property is reasonably
likely to produce a greater recovery on a net present value basis than not
taking such actions.
The cost of any such Environmental Assessment shall be paid by the
Master Servicer as a Servicing Advance and the cost of any remedial, corrective
or other further action contemplated by clause (i) and/or clause (ii) of the
preceding sentence shall be paid by the Master Servicer as a Servicing Advance,
unless it is a Nonrecoverable Servicing Advance (in which case it shall be an
expense of the Trust Fund and may be withdrawn by the Master Servicer from the
Certificate Account); and if any such Environmental Assessment so warrants, the
Special Servicer shall (except with respect to any Companion Loan and any
Environmental Assessment ordered after the related AB Mortgage Loan has been
paid in full), at the expense of the Trust Fund, perform such additional
environmental testing as it deems necessary and prudent to determine whether the
conditions described in clauses (i) and (ii) of the preceding sentence have been
satisfied. With respect to Non-Specially Serviced Mortgage Loans, the Master
Servicer and, with respect to Specially Serviced Mortgage Loans, the Special
Servicer shall review and be familiar with the terms and conditions relating to
enforcing claims and shall monitor the dates by which any claim or action must
be taken (including delivering any notices to the insurer and using reasonable
efforts to perform any actions required under such policy) under each
environmental insurance policy in effect and obtained on behalf of the mortgagee
to receive the maximum proceeds available under such policy for the benefit of
the Certificateholders and the Trustee (as holder of the Uncertificated
Lower-Tier Interests).
(d) If (i) the environmental testing contemplated by subsection (c)
above establishes that either of the conditions set forth in clauses (i) and
(ii) of the first sentence thereof has not been satisfied with respect to any
Mortgaged Property securing a Defaulted Mortgage Loan and any related Companion
Loan(s) and (ii) there has been no breach of any of the representations and
warranties set forth in or required to be made pursuant to Section 6 of each of
the Mortgage Loan Purchase Agreements for which the applicable Mortgage Loan
Seller could be required to repurchase such Defaulted Mortgage Loan pursuant to
Section 6 of the applicable Mortgage Loan Purchase Agreement, then the Special
Servicer shall take such action as it deems to be in the best economic interest
of the Trust Fund (other than proceeding to acquire title to the Mortgaged
Property) and is hereby authorized at such time as it deems appropriate to
release such Mortgaged Property from the lien of the related Mortgage, provided
that, if such Mortgage Loan has a then outstanding principal balance of greater
than $1,000,000, then prior to the release of the related Mortgaged Property
from the lien of the related Mortgage, (i) the Special Servicer shall have
notified the Rating Agencies, the Trustee, the Paying Agent, the Master Servicer
and the Directing Certificateholder in writing of its intention to so release
such Mortgaged Property and the bases for such intention, (ii) the Paying Agent
shall have notified the Certificateholders in writing of the Special Servicer's
intention to so release such Mortgaged Property, (iii) the Holders of
Certificates entitled to a majority of the Voting Rights shall have consented to
such release within 30 days of the Paying Agent's distributing such notice
(failure to respond by the end of such 30-day period being deemed consent), and
(iv) the Special Servicer shall have received written confirmation from each
Rating Agency that such release will not cause the downgrade, withdrawal or
qualification of any of the then-current ratings of any Class of Certificates.
To the extent any fee charged by each Rating Agency in connection with rendering
such written confirmation is not paid by the related Mortgagor, such fee is to
be an expense of the Trust; provided that the Master Servicer and the Special
Servicer, as applicable, shall use its reasonable efforts to collect such fee
from the Mortgagor to the extent permitted under the related Mortgage Loan
documents.
(e) The Special Servicer shall provide written reports and a copy of
any Environmental Assessments to the Trustee, the Paying Agent, the Directing
Certificateholder and the Master Servicer monthly regarding any actions taken by
the Special Servicer with respect to any Mortgaged Property securing a Defaulted
Mortgage Loan or defaulted Companion Loan as to which the environmental testing
contemplated in subsection (c) above has revealed that either of the conditions
set forth in clauses (i) and (ii) of the first sentence thereof has not been
satisfied, in each case until the earlier to occur of satisfaction of both such
conditions, repurchase of the related Mortgage Loan by the applicable Mortgage
Loan Seller or release of the lien of the related Mortgage on such Mortgaged
Property. The Paying Agent shall forward, or cause to be forwarded all such
reports to each Rating Agency and the Certificateholders upon request.
(f) The Special Servicer shall notify the Master Servicer of any
abandoned and/or foreclosed properties which require reporting to the Internal
Revenue Service and shall provide the Master Servicer with all information
regarding forgiveness of indebtedness and required to be reported with respect
to any Mortgage Loan or Companion Loan which is abandoned or foreclosed and the
Master Servicer shall report to the Internal Revenue Service and the related
Mortgagor, in the manner required by applicable law, such information and the
Master Servicer shall report, via Form 1099C (or any successor form), all
forgiveness of indebtedness to the extent such information has been provided to
the Master Servicer by the Special Servicer. Upon request, the Master Servicer
shall deliver a copy of any such report to the Trustee and the Paying Agent.
(g) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standards, the advisability of the maintenance of
an action to obtain a deficiency judgment if the state in which the Mortgaged
Property is located and the terms of the Mortgage Loan and applicable Companion
Loan permit such an action.
(h) The Special Servicer shall maintain accurate records, prepared
by one of its Servicing Officers, of each Final Recovery Determination in
respect of a Defaulted Mortgage Loan, defaulted Companion Loan or REO Property
and the basis thereof. Each Final Recovery Determination shall be evidenced by
an Officer's Certificate promptly delivered to the Trustee, the Paying Agent,
the Directing Certificateholder and the Master Servicer and in no event later
than the next succeeding P&I Advance Determination Date.
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 Master
Servicer or the Special Servicer, as the case may be, of a notification that
payment in full shall be escrowed in a manner customary for such purposes, the
Master Servicer or Special Servicer, as the case may be, will immediately notify
the Trustee and request delivery of the related Mortgage File. Any such notice
and request shall be in the form of a Request for Release signed by a Servicing
Officer and shall include a statement to the effect that all amounts received or
to be received in connection with such payment which are required to be
deposited in the Certificate Account pursuant to Section 3.04(a) or remitted to
the Master Servicer to enable such deposit, have been or will be so deposited.
Within seven Business Days (or within such shorter period as release can
reasonably be accomplished if the Master Servicer or the Special Servicer
notifies the Trustee of an exigency) of receipt of such notice and request, the
Trustee shall release, or cause any related Custodian to release, the related
Mortgage File to the Master Servicer or Special Servicer, as the case may be. No
expenses incurred in connection with any instrument of satisfaction or deed of
reconveyance shall be chargeable to the Certificate Account.
(b) From time to time as is appropriate for servicing or foreclosure
of any Mortgage Loan (and any related Companion Loan), the Master Servicer or
the Special Servicer shall deliver to the Trustee a Request for Release signed
by a Servicing Officer. Upon receipt of the foregoing, the Trustee shall deliver
or cause the related Custodian to deliver, the Mortgage File or any document
therein to the Master Servicer or the Special Servicer (or a designee), as the
case may be. Upon return of such Mortgage File or such document to the Trustee
or the related Custodian, or the delivery to the Trustee of a certificate of a
Servicing Officer of the Master Servicer or the Special Servicer, as the case
may be, stating that such Mortgage Loan was liquidated and that all amounts
received or to be received in connection with such liquidation which are
required to be deposited into the Certificate Account pursuant to Section
3.04(a) have been or will be so deposited, or that such Mortgage Loan has become
an REO Property, a copy of the Request for Release shall be released by the
Trustee to the Master Servicer or the Special Servicer (or a designee), as the
case may be, with the original being released upon termination of the Trust.
(c) Within seven Business Days (or within such shorter period as
delivery can reasonably be accomplished if the Special Servicer notifies the
Trustee of an exigency) of receipt thereof, the Trustee shall execute and
deliver to the Special Servicer any court pleadings, requests for trustee's sale
or other documents necessary to the foreclosure or trustee's sale in respect of
a Mortgaged Property or to any legal action brought to obtain judgment against
any Mortgagor on the Mortgage Note (including any note evidencing the related
Companion Loan) or Mortgage or to obtain a deficiency judgment, or to enforce
any other remedies or rights provided by the Mortgage Note or Mortgage or
otherwise available at law or in equity. The Special Servicer shall be
responsible for the preparation of all such documents and pleadings. When
submitted to the Trustee for signature, such documents or pleadings shall be
accompanied by a certificate of a Servicing Officer requesting that such
pleadings or documents be executed by the Trustee and certifying as to the
reason such documents or pleadings are required and that the execution and
delivery thereof by the Trustee will not invalidate or otherwise affect the lien
of the Mortgage, except for the termination of such a lien upon completion of
the foreclosure or trustee's sale.
Section 3.11 Servicing Compensation. (a) As compensation for its
activities hereunder, the Master Servicer shall be entitled to receive the
Servicing Fee with respect to each Mortgage Loan, each Companion Loan and REO
Loan (including Specially Serviced Mortgage Loans). As to each Mortgage Loan,
Companion Loan and REO Loan, the Servicing Fee shall accrue from time to time at
the Servicing Fee Rate and shall be computed on the basis of the Stated
Principal Balance of such Mortgage Loan or Companion Loan, as the case may be,
and in the same manner as interest is calculated on such Mortgage Loan or
Companion Loan, as the case may be, and, in connection with any partial month
interest payment, for the same period respecting which any related interest
payment due on such Mortgage Loan or Companion Loan or deemed to be due on such
REO Loan is computed. The Servicing Fee with respect to any Mortgage Loan,
Companion Loan or REO Loan shall cease to accrue if a Liquidation Event occurs
in respect thereof. The Servicing Fee shall be payable monthly, on a
loan-by-loan basis, from payments of interest on each Mortgage Loan, Companion
Loan and REO Revenues allocable as interest on each REO Loan, and as otherwise
provided by Section 3.05(a). The Master Servicer shall be entitled to recover
unpaid Servicing Fees in respect of any Mortgage Loan, Companion Loan or REO
Loan out of that portion of related payments, Insurance and Condemnation
Proceeds, Liquidation Proceeds and REO Revenues (in the case of an REO Loan)
allocable as recoveries of interest, to the extent permitted by Section 3.05(a).
Except as set forth in the third paragraph of this Section 3.11(b) and Section
7.01(c), the right to receive the Servicing Fee may not be transferred in whole
or in part.
The Master Servicer shall be entitled to retain, and shall not be
required to deposit in the Certificate Account pursuant to Section 3.04(a),
additional servicing compensation in the form of (i) 100% of modification,
waiver and consent fees pursuant to Section 3.08(e), provided the consent of the
Special Servicer is not required to take such action, (ii) 100% of all
defeasance fees and 50% of all application fees received on Non-Specially
Serviced Mortgage Loans and (iii) 50% of all assumption, waiver and consent fees
pursuant to Section 3.08(a) and 3.08(b) on the Non-Specially Serviced Mortgage
Loans, to the extent that such fees are paid by the Mortgagor and for which the
Special Servicer's consent or approval is required on the Non-Specially Serviced
Mortgage Loans and only to the extent that all amounts then due and payable with
respect to the related Mortgage Loan have been paid. In addition, the Master
Servicer shall be entitled to retain as additional servicing compensation any
charges for processing Mortgagor requests, beneficiary statements or demands,
reasonable and customary consent fees, fees in connection with defeasance, if
any, and other customary charges, and amounts collected for checks returned for
insufficient funds, in each case only to the extent actually paid by the related
Mortgagor and shall not be required to deposit such amounts in the Certificate
Account pursuant to Section 3.04(a). Subject to Section 3.11(d), the Master
Servicer shall also be entitled to additional servicing compensation in the form
of: (i) Penalty Charges to the extent provided in Section 3.11(d), (ii) interest
or other income earned on deposits relating to the Trust Fund in the Certificate
Account in accordance with Section 3.06(b) (but only to the extent of the Net
Investment Earnings, if any, with respect to such account for the period from
the prior P&I Advance Date to the P&I Advance Date related to such Distribution
Date), (iii) interest or other income earned on deposits in the Servicing
Account which are not required by applicable law or the related Mortgage Loan to
be paid to the Mortgagor and (iv) the difference, if positive, between
Prepayment Interest Excess and Prepayment Shortfalls collected on the Mortgage
Loans during the related Due Period to the extent not required to be paid as
Compensating Interest Payments. The Master Servicer shall be required to pay out
of its own funds all expenses incurred by it in connection with its servicing
activities hereunder (including, without limitation, payment of any amounts due
and owing to any of its Sub-Servicers and the premiums for any blanket Insurance
Policy insuring against hazard losses pursuant to Section 3.07), if and to the
extent such expenses are not payable directly out of the Certificate Account and
the Master Servicer shall not be entitled to reimbursement therefor except as
expressly provided in this Agreement.
Notwithstanding anything herein to the contrary, Midland may at its
option assign or pledge to any third party or retain for itself the Transferable
Servicing Interest; provided, however, that in the event of any resignation or
termination of the Master Servicer, all or any portion of the Transferable
Servicing Interest may be reduced by the Trustee to the extent reasonably
necessary (in the sole discretion of the Trustee) for the Trustee to obtain a
qualified successor Master Servicer (which successor may include the Trustee)
that meets the requirements of Section 6.04 and who requires market rate
servicing compensation that accrues at a per annum rate in excess of the
Retained Fee Rate, and any such assignment of the Transferable Servicing
Interest shall, by its terms be expressly subject to the terms of this Agreement
and such reduction. The Master Servicer shall pay the Transferable Servicing
Interest to the holder of the Transferable Servicing Interest (i.e., Midland or
any such third party) at such time and to the extent the Master Servicer is
entitled to receive payment of its Servicing Fees hereunder, notwithstanding any
resignation or termination of Midland hereunder (subject to reduction pursuant
to the preceding sentence).
(b) As compensation for its activities hereunder, the Special
Servicer shall be entitled to receive the Special Servicing Fee with respect to
each Specially Serviced Mortgage Loan and REO Loan. As to each Specially
Serviced Mortgage Loan and REO Loan, the Special Servicing Fee shall accrue from
time to time at the Special Servicing Fee Rate and shall be computed on the
basis of the Stated Principal Balance of such Specially Serviced Mortgage Loan
and in the same manner as interest is calculated on the Specially Serviced
Mortgage Loans and, in connection with any partial month interest payment, for
the same period respecting which any related interest payment due on such
Specially Serviced Mortgage Loan or deemed to be due on such REO Loan is
computed. The Special Servicing Fee with respect to any Specially Serviced
Mortgage Loan or REO Loan shall cease to accrue if a Liquidation Event occurs in
respect thereof. The Special Servicing Fee shall be payable monthly, on a
loan-by-loan basis, in accordance with the provisions of Section 3.05(a). The
right to receive the Special Servicing Fee may not be transferred in whole or in
part except in connection with the transfer of all of the Special Servicer's
responsibilities and obligations under this Agreement.
(c) Additional servicing compensation in the form of (i) 100% of all
fees with respect to application, assumption, extension, modification, waiver,
consent, earnout and defeasance fees, in each case, received on any Specially
Serviced Mortgage Loans to the extent such fees are paid by the Mortgagor, (ii)
50% of all application fees received on Non-Specially Serviced Mortgage Loans
and (iii) 50% of all assumption, waiver and consent fees pursuant to Section
3.08(a) and 3.08(b) or 3.20 received with respect to all Non-Specially Serviced
Mortgage Loans and for which the Special Servicer's consent or approval is
required, shall be promptly paid to the Special Servicer by the Master Servicer
to the extent such fees are paid by the Mortgagor and shall not be required to
be deposited in the Certificate Account pursuant to Section 3.04(a). The Special
Servicer shall also be entitled to additional servicing compensation in the form
of a Workout Fee with respect to each Corrected Mortgage Loan at the Workout Fee
Rate on such Mortgage Loan for so long as it remains a Corrected Mortgage Loan.
The Workout Fee with respect to any Corrected Mortgage Loan will cease to be
payable if such loan again becomes a Specially Serviced Mortgage Loan; provided
that a new Workout Fee will become payable if and when such Specially Serviced
Mortgage Loan again becomes a Corrected Mortgage Loan. If the Special Servicer
is terminated (other than for cause) or resigns, it shall retain the right to
receive any and all Workout Fees payable in respect of Mortgage Loans or
Companion Loans that became Corrected Mortgage Loans prior to the time of that
termination or resignation except the Workout Fees will no longer be payable if
the Mortgage Loan subsequently becomes a Specially Serviced Mortgage Loan. If
the Special Servicer resigns or is terminated (other than for cause), it will
receive any Workout Fees payable on Specially Serviced Mortgage Loans for which
the resigning or terminated Special Servicer had cured the event of default
through a modification, restructuring or workout negotiated by the Special
Servicer and evidenced by a signed writing with respect to which one (1)
scheduled payment has been made, but which had not as of the time the Special
Servicer resigned or was terminated become a Corrected Mortgage Loan solely
because the Mortgagor had not had sufficient time to make three consecutive
timely Monthly Payments and which subsequently becomes a Corrected Mortgage Loan
as a result of the Mortgagor making such three consecutive timely Monthly
Payments. The successor Special Servicer will not be entitled to any portion of
such Workout Fees. A Liquidation Fee will be payable with respect to each
Specially Serviced Mortgage Loan as to which the Special Servicer receives any
Liquidation Proceeds or Insurance and Condemnation Proceeds subject to the
exceptions set forth in the definition of Liquidation Fee (such Liquidation Fee
to be paid out of such Liquidation Proceeds, Insurance and Condemnation
Proceeds). Notwithstanding anything to the contrary described above, no
Liquidation Fee will be payable based on, or out of, Liquidation Proceeds
received in connection with the repurchase of any Mortgage Loan by a Mortgage
Loan Seller for a breach of representation or warranty or for defective or
deficient Mortgage Loan documentation so long as such repurchase is completed
within the 90-day period or such other additional period provided for such
repurchase in this Agreement and the Mortgage Loan Purchase Agreement, the
purchase of any Specially Serviced Mortgage Loan by the Majority Controlling
Class Certificateholder or the Special Servicer or the purchase of all of the
Mortgage Loans and REO Properties in connection with an optional termination of
the Trust Fund pursuant to Section 9.01. If, however, Liquidation Proceeds or
Insurance and Condemnation Proceeds are received with respect to any Corrected
Mortgage Loan and the Special Servicer is properly entitled to a Workout Fee,
such Workout Fee will be payable based on and out of the portion of such
Liquidation Proceeds and Insurance and Condemnation Proceeds that constitute
principal and/or interest on such Mortgage Loan. Notwithstanding anything herein
to the contrary, the Special Servicer shall only be entitled to receive a
Liquidation Fee or a Workout Fee, but not both, with respect to proceeds on any
Mortgage Loan. Subject to Section 3.11(d), the Special Servicer will also be
entitled to additional fees in the form of Penalty Charges to the extent
provided in subsection (d). The Special Servicer shall be required to pay out of
its own funds all expenses incurred by it in connection with its servicing
activities hereunder (including, without limitation, payment of any amounts,
other than management fees in respect of REO Properties, due and owing to any of
its Sub-Servicers and the premiums for any blanket Insurance Policy obtained by
it insuring against hazard losses pursuant to Section 3.07), if and to the
extent such expenses are not expressly payable directly out of the Certificate
Account or the REO Account, and the Special Servicer shall not be entitled to
reimbursement therefor except as expressly provided in this Agreement.
(d) In determining the compensation of the Master Servicer or
Special Servicer, as applicable, with respect to Penalty Charges, on any
Distribution Date, the aggregate Penalty Charges collected on any Mortgage Loan
since the prior Distribution Date shall be applied (in such order) to reimburse
(i) the Master Servicer or the Trustee for interest on Advances on such Mortgage
Loan due on such Distribution Date, (ii) the Trust Fund for all interest on
Advances previously paid to the Master Servicer or the Trustee pursuant to
Section 3.05(a)(vi) hereof with respect to such Mortgage Loan and (iii) the
Trust Fund for costs of all additional Trust Fund expenses (including Special
Servicing Fees, Workout Fees and Liquidation Fees), including without
limitation, inspections by the Special Servicer and all unpaid Advances incurred
since the Closing Date with respect to such Mortgage Loan; Penalty Charges
remaining thereafter shall be distributed to the Master Servicer, if and to the
extent collected while the Mortgage Loan was a Non-Specially Serviced Mortgage
Loan and to the Special Servicer if and to the extent actually collected on such
Mortgage Loan during the period such Mortgage Loan was a Specially Serviced
Mortgage Loan.
Section 3.12 Inspections; Collection of Financial Statements. (a)
The Master Servicer shall perform (at its own expense), or shall cause to be
performed (at its own expense), a physical inspection of each Mortgaged Property
securing a Mortgage Note with a stated Principal Balance of (i) $2,000,000 or
more at least once every 12 months and (ii) less than $2,000,000 at least once
every 24 months, in each case commencing in the calendar year 2005 (and each
Mortgaged Property shall be inspected on or prior to November 2005); provided,
however, that if a physical inspection has been performed by the Special
Servicer in the previous 12 months and the Master Servicer has no knowledge of a
material change in the Mortgaged Property since such physical inspection, the
Master Servicer will not be required to perform or cause to be performed, such
physical inspection; provided, further, that if any scheduled payment becomes
more than 60 days delinquent on the related Mortgage Loan, the Special Servicer
shall inspect the related Mortgaged Property as soon as practicable after such
Mortgage Loan becomes a Specially Serviced Mortgage Loan and annually thereafter
for so long as such Mortgage Loan remains a Specially Serviced Mortgage Loan.
The cost of such inspection by the Special Servicer shall be an expense of the
Trust Fund, and to the extent not paid by the related mortgagee reimbursed first
from Penalty Charges actually received from the related Mortgagor and then from
the Certificate Account pursuant to Section 3.05(a)(ii). The Special Servicer or
the Master Servicer, as applicable, shall prepare or cause to be prepared a
written report of each such inspection detailing the condition of the Mortgaged
Property and specifying the existence of (i) any vacancy in the Mortgaged
Property that the preparer of such report deems material, (ii) any sale,
transfer or abandonment of the Mortgaged Property of which it has knowledge,
(iii) any adverse change in the condition of the Mortgaged Property that the
preparer of such report deems material, (iv) any visible material waste
committed on the Mortgaged Property and (v) photographs of each inspected
Mortgaged Property. The Special Servicer and the Master Servicer shall deliver a
copy of each such report prepared by the Special Servicer and the Master
Servicer, respectively, to the other, to the Directing Certificateholder and,
upon request, to the Trustee, the Paying Agent and the Rating Agencies within
five (5) Business Days after request (or if such request is received before such
report is completed, within five (5) Business Days after completion of such
report). The Paying Agent shall deliver a copy of each such report to the
Controlling Class Certificateholder upon request and to each Holder of a Class
F, Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class P, Class
Q and Class NR Certificate, upon request (which such request may state that such
items be delivered until further notice).
(b) The Special Servicer, in the case of any Specially Serviced
Mortgage Loans, and the Master Servicer, in the case of any Non-Specially
Serviced Mortgage Loans, shall make reasonable efforts to collect promptly from
each Mortgagor annual operating statements and rent rolls of the related
Mortgaged Property, financial statements of such Mortgagor and any other reports
required to be delivered under the terms of the Mortgage Loans (and each
Companion Loan), if delivery of such items is required pursuant to the terms of
the related Mortgage.
(c) The Special Servicer, in the case of any Specially Serviced
Mortgage Loan, and the Master Servicer, in the case of any Non-Specially
Serviced Mortgage Loan shall make reasonable efforts to collect promptly from
each related Mortgagor quarterly and annual operating statements, budgets and
rent rolls of the related Mortgaged Property, and the quarterly and annual
financial statements of such Mortgagor, whether or not delivery of such items is
required pursuant to the terms of the related Mortgage. The Master Servicer
shall not be required to request such statements more than once if the related
Mortgagor is not required to deliver such statements pursuant to the terms of
the Mortgage Loan documents. In addition, the 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. The Special Servicer shall deliver
all such items to the Master Servicer within five (5) days of receipt and the
Master Servicer and the Special Servicer each shall deliver copies of all the
foregoing items so collected thereby to the Trustee, the Paying Agent, the
Directing Certificateholder and, upon request, to the Depositor and each other,
in each case within 60 days of its receipt thereof, but in no event, in the case
of annual statements, later than June 30 of each year commencing June 30, 2005.
The Paying Agent shall, upon request, deliver copies (in hard copy, electronic
format or make available on its Internet website) of the foregoing items to the
Underwriters, the Trustee, the Rating Agencies, the Controlling Class
Certificateholders, the Mortgage Loan Sellers or, to the extent the Certificate
Registrar has confirmed the Ownership Interest in Certificates held thereby, any
Certificate Owner, a copy (or image in suitable electronic media) of each such
report prepared by the Master Servicer or the Special Servicer.
Within 45 days after receipt by the Master Servicer, with respect to
Non-Specially Serviced Mortgage Loans, or the Special Servicer with respect to
Specially Serviced Mortgage Loans of any annual operating statements or rent
rolls with respect to any Mortgaged Property or REO Property, or if such date
would be after June 30 of any year, then within 30 days after receipt, the
Master Servicer shall, based upon such operating statements or rent rolls
received, prepare (or, if previously prepared, update) the analysis of
operations and the CMSA NOI Adjustment Worksheet and the CMSA Operating
Statement Analysis Report. Upon the occurrence and continuation of a Servicing
Transfer Event, the Master Servicer shall provide the Special Servicer with all
prior CMSA Operating Statement Analysis Reports and CMSA NOI Adjustment
Worksheets for the related Mortgage Loan (including underwritten figures), and
the Special Servicer's obligations hereunder shall be subject to its having
received all such reports. The Master Servicer and Special Servicer shall
forward to the other and the Directing Certificateholder electronically monthly
all operating statements and rent rolls received from any Mortgagor from the
prior month. All CMSA Operating Statement Analysis Reports and CMSA NOI
Adjustment Worksheets shall be maintained by the Master Servicer with respect to
each Mortgaged Property and REO Property, and the Master Servicer shall forward
copies (in hard copy, electronic format or make available on its Internet
website) thereof and the related operating statements or rent rolls (in each
case, promptly following the initial preparation and each material revision
thereof) to the Paying Agent (in electronic format only), the Directing
Certificateholder (and with respect to the 000 Xxxx Xxxxxx Xxxxx Whole Loan, the
000 Xxxx Xxxxxx Xxxxx X Note Representative) and, upon written request, the
Special Servicer. The Paying Agent shall, upon request and to the extent such
items have been delivered to the Paying Agent by the Master Servicer, deliver to
the Underwriters, the Rating Agencies, the Mortgage Loan Sellers, any
Certificateholder or, to the extent the Certificate Registrar has confirmed the
Ownership Interest in the Certificates held thereby, any Certificate Owner, a
copy of such CMSA Operating Statement Analysis Report (or update thereof) and
CMSA NOI Adjustment Worksheet (or update thereof), upon written request, and the
related operating statement or rent rolls. The Master Servicer shall maintain a
CMSA Operating Statement Analysis Report and a CMSA NOI Adjustment Worksheet
with respect to each Mortgaged Property and REO Property.
(d) At or before 12:00 p.m. (New York City time) on each
Determination Date, the Special Servicer shall prepare and deliver or cause to
be delivered to the Master Servicer and the Directing Certificateholder the CMSA
Special Servicer Loan File with respect to the Specially Serviced Mortgage Loans
and any REO Properties, providing the information required of the Special
Servicer in an electronic format, reasonably acceptable to the Master Servicer
as of such Determination Date, which CMSA Special Servicer Loan File shall
include data, to enable Master Servicer to produce the following CMSA
Supplemental Reports: (i) a CMSA Delinquent Loan Status Report, (ii) a CMSA
Historical Liquidation Report, (iii) a CMSA Historical Loan Modification and
Corrected Mortgage Loan Report, (iv) a CMSA REO Status Report, (v) a CMSA
Comparative Financial Status Report and (vi) a CMSA NOI Adjustment Worksheet and
a CMSA Operating Statement Analysis Report.
(e) Not later than 1:00 p.m. (New York City time) on the P&I Advance
Date beginning February 2005, the Master Servicer shall prepare (if and to the
extent necessary) and deliver or cause to be delivered in electronic format to
the Paying Agent the following reports and data files: (i) to the extent the
Master Servicer has received the CMSA Special Servicer Loan File at the time
required, the most recent CMSA Delinquent Loan Status Report, CMSA Historical
Liquidation Report, CMSA Historical Loan Modification and Corrected Mortgage
Loan Report, and CMSA REO Status Report, (ii) CMSA Loan Setup File (with respect
to the first Distribution Date), (iii) the most recent CMSA Property File, and
CMSA Comparative Financial Status Report (in each case incorporating the data
required to be included in the CMSA Special Servicer Loan File pursuant to
Section 3.12(d) by the Special Servicer and Master Servicer), (iv) a CMSA
Servicer Watch List with information that is current as of such Determination
Date, (v) CMSA Financial File, (vi) CMSA Loan Level Reserve LOC Report, (vii)
CMSA Reconciliation of Funds Report, (viii) the Realized Loss Report and (ix)
the Monthly Additional Report on Recoveries and Reimbursements. Not later than
2:00 p.m. (New York City time) two (2) Business Days prior to the Distribution
Date, the Master Servicer shall deliver or cause to be delivered to the Paying
Agent via electronic format the CMSA Loan Periodic Update File. In no event
shall any report described in this subsection be required to reflect information
that has not been collected by or delivered to the Master Servicer, or any
payments or collections not received by the Master Servicer, as of the Business
Day prior to the Business Day on which the report is due.
(f) The Special Servicer shall deliver to the Master Servicer the
reports required of the Special Servicer pursuant to Section 3.12(c) and Section
3.12(d), and the Master Servicer shall deliver to the Paying Agent the reports
and data files set forth in Section 3.12(e). The Master Servicer may, absent
manifest error, conclusively rely on the reports and/or data to be provided by
the Special Servicer pursuant to Section 3.12(c) and Section 3.12(d). The Paying
Agent may, absent manifest error, conclusively rely on the reports and/or data
to be provided by the Master Servicer pursuant to Section 3.12(e). In the case
of information or reports to be furnished by the Master Servicer to the Paying
Agent pursuant to Section 3.12(e), to the extent that such information or
reports are, in turn, based on information or reports to be provided by the
Special Servicer pursuant to Section 3.12(c) or Section 3.12(d) and to the
extent that such reports are to be prepared and delivered by the Special
Servicer pursuant to Section 3.12(c) or Section 3.12(d), the Master Servicer
shall have no obligation to provide such information or reports to the Paying
Agent until it has received the requisite information or reports from the
Special Servicer, and the Master Servicer shall not be in default hereunder due
to a delay in providing the reports required by Section 3.12(e) caused by the
Special Servicer's failure to timely provide any information or report required
under Section 3.12(c) or Section 3.12(d) of this Agreement.
(g) Notwithstanding the foregoing, however, the failure of the
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 the Master Servicer or Special Servicer so fails
because such disclosure, in the reasonable belief of the Master Servicer or the
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 Mortgaged Properties. The 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 and
the Servicing Standards. The Master Servicer or the 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).
(h) Unless otherwise specifically stated herein, if the Master
Servicer or the Special Servicer is required to deliver any statement, report or
information under any provisions of this Agreement, the Master Servicer or the
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) except with respect to information to be provided to the Paying
Agent and the Directing Certificateholder, making such statement, report or
information available on the Master Servicer's or the Special Servicer's
Internet website, unless this Agreement expressly specifies a particular method
of delivery.
Notwithstanding the foregoing, the Master Servicer and the Special
Servicer shall deliver any statements, reports or other information to the
Paying Agent in an electronic format mutually agreeable to the Paying Agent and
the Master Servicer, or the Special Servicer as the case may be. The Master
Servicer or the Special Servicer may physically deliver a paper copy of any such
statement, report or information as a temporary measure due to system problems.
The Master Servicer and the Paying Agent, as applicable, shall
prepare and deliver electronically or make available on its website or, with
respect to the Paying Agent, make available on its website, to the Directing
Certificateholder, the reports and information described in Exhibit M in the
forms and formats and within the timeframes set forth therein or in such other
format as agreed to by the Directing Certificateholder. None of the Master
Servicer, the Special Servicer or the Paying Agent shall have any liability for
disseminating information in accordance with the terms of this Agreement.
Section 3.13 Annual Statement as to Compliance. Each of the Master
Servicer and the Special Servicer will deliver to the Trustee, the Paying Agent
and the Rating Agencies, with a copy to the Depositor, on or before March 15th
of each year, beginning March 15, 2005, an Officer's Certificate stating, as to
each signer thereof, that (i) a review of the activities of the Master Servicer
or the Special Servicer, as the case may be, during the preceding calendar year
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,
the Master Servicer or the Special Servicer, as the case may be, has fulfilled
in all material respects its obligations under this Agreement throughout such
year, or, if there has been a material default in the fulfillment of any such
obligation, specifying each such default known to such officer and the nature
and status thereof and (iii) the Master Servicer or the Special Servicer, as the
case may be, has received no notice regarding qualification, or challenging the
status of the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC from the
Internal Revenue Service or any other governmental agency or body or, if it has
received any such notice, specifying the details thereof. A copy of such
Officer's Certificate may be obtained by Certificateholders upon written request
to the Paying Agent pursuant to Section 8.12 hereof. However, to the extent the
Securities and Exchange Commission promulgates new rules with respect to this
annual statement of compliance that are required to be implemented with respect
to this Agreement, the form of the compliance statement required by this Section
3.13 shall conform to the requirements of the Securities and Exchange
Commission. Promptly after receipt of such Officer's Certificates, the Depositor
shall review such Officer's Certificates and, if applicable, consult with the
Master Servicer or the Special Servicer, as applicable, as to the nature of any
defaults by the Master Servicer or the Special Servicer, as applicable, in the
fulfillment of any of the Master Servicer's or the Special Servicer's
obligations.
Section 3.14 Reports by Independent Public Accountants. Each of the
Master Servicer and the Special Servicer at their own expense shall cause a
nationally recognized firm of independent certified public accountants to
furnish to the Trustee, the Paying Agent and each Rating Agency, with a copy to
the Depositor on or before March 15th of each year, commencing with March 15,
2005, a report stating that (i) it has obtained from the Master Servicer or the
Special Servicer, as the case may be, a letter of representation regarding
certain matters from the management of the Master Servicer or the Special
Servicer, as the case may be, which includes an assertion that the Master
Servicer or the Special Servicer, as the case may be, has complied with certain
minimum mortgage loan servicing standards (to the extent applicable to
commercial and multifamily mortgage loans), identified in the Uniform Single
Attestation Program for Mortgage Bankers established by the Mortgage Bankers
Association of America, with respect to the Master Servicer's or the Special
Servicer's, as the case may be, servicing of commercial and multifamily mortgage
loans during the most recently completed calendar year and (ii) on the basis of
an examination conducted by such firm in accordance with standards established
by the American Institute of Certified Public Accountants, such assertion is
fairly stated in all material respects, subject to such exceptions and other
qualifications that, in the opinion of such firm, such standards require it to
report. In rendering its report such firm may rely, as to the matters relating
to the direct servicing of commercial and multifamily mortgage loans by
Sub-Servicers, upon comparable reports of firms of independent certified public
accountants rendered on the basis of examinations conducted in accordance with
the same standards (rendered with respect to such Sub-Servicer's previous fiscal
year) with respect to those Sub-Servicers. However, to the extent the Securities
and Exchange Commission promulgates new rules with respect to these reports by
firms of independent certified public accountants that are required to be
implemented with respect to this Agreement, the form of these reports required
by this Section 3.14 shall conform to the requirements of the Securities and
Exchange Commission. Promptly after receipt of such reports, the Depositor shall
review such reports and, if applicable, consult with the Master Servicer or the
Special Servicer, as applicable, as to the nature of any defaults by the Master
Servicer or the Special Servicer, as applicable, in the fulfillment of any of
the Master Servicer's or the Special Servicer's obligations.
Section 3.15 Access to Certain Information. Each of the Master
Servicer and the Special Servicer shall provide or cause to be provided to any
Certificateholder or Certificate Owner that is, or is affiliated with, a
federally insured financial institution, the Trustee, the Paying Agent, the
Depositor, each Mortgage Loan Seller, each Rating Agency, the Directing
Certificateholder to the Master Servicer, or to the Special Servicer, as
applicable, and to the OTS, the FDIC, the Federal Reserve Board and the
supervisory agents and examiners of such boards and such corporations, and any
other federal or state banking or insurance regulatory authority that may
exercise authority over any Certificateholder, and to each Holder of a Class F,
Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class P, Class Q
or Class NR Certificate, and to each Companion Holder (solely with respect to
the related AB Mortgage Loan) access to any documentation or information
regarding the Mortgage Loans and related Companion Loans and the Trust Fund
within its control which may be required by this Agreement or by applicable law.
At the election of the Master Servicer or the Special Servicer, such access may
be afforded to such Person identified above by the delivery of copies of
information as requested by such Person and the Master Servicer or the Special
Servicer shall be permitted to require payment (other than from the Directing
Certificateholder and with respect to the 000 Xxxx Xxxxxx Xxxxx Whole Loan, the
000 Xxxx Xxxxxx Xxxxx X Note Representative and the Trustee) of a sum sufficient
to cover the reasonable out-of-pocket costs incurred by it in making such
copies. Such access shall (except as described in the preceding sentence) be
afforded without charge but only upon reasonable prior written request and
during normal business hours at the offices of the Master Servicer or the
Special Servicer, as the case may be, designated by it; provided, however, that
Certificateholders and Certificate Owners shall be required to pay their own
photocopying costs and execute a reasonable and customary confidentiality
agreement with respect to such information. The failure of the Master Servicer
or the Special Servicer to provide access as provided in this Section 3.15 as a
result of a confidentiality obligation shall not constitute a breach of this
Section 3.15; provided that nothing in this paragraph shall provide a basis for
not providing to the Directing Certificateholder or, with respect to the 000
Xxxx Xxxxxx Xxxxx Whole Loan, the 000 Xxxx Xxxxxx Xxxxx X Note Representative
any information specifically required to be delivered to it under the terms of
this Agreement. The Master Servicer and the Special Servicer may each deny any
of the foregoing persons access to confidential information or any intellectual
property which the Master Servicer or the Special Servicer is restricted by
license or contract from disclosing. In connection with providing access to
information pursuant to this Section 3.15 to parties other than the Trustee or
the Paying Agent, the Master Servicer and the Special Servicer may each (i)
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); (ii) affix to any information provided by it a reasonable
statement regarding securities law restrictions on such information and/or
condition access to information on the execution of a reasonable confidentiality
agreement; (iii) withhold access to confidential information or any intellectual
property; and (iv) withhold access to items of information contained in the
Servicing File for any Mortgage Loan if the disclosure of such items is
prohibited by applicable law or the provisions of any related Mortgage Loan
documents or would constitute a waiver of the attorney-client privilege.
Notwithstanding any provision of this Agreement to the contrary, the failure of
the Master Servicer or the Special Servicer to disclose any information
otherwise required to be disclosed by it pursuant to this Agreement shall not
constitute a breach of this Agreement to the extent that the Master Servicer or
the Special Servicer, as the case may be, determines, in its reasonable good
faith judgment consistent with the applicable Servicing Standard, that such
disclosure would violate applicable law or any provision of a Mortgage Loan
document or Companion Loan document prohibiting disclosure of information with
respect to the Mortgage Loans or Companion Loans or the Mortgaged Properties,
constitute a waiver of the attorney-client privilege on behalf of the Trust or
the Trust Fund or otherwise materially harm the Trust or the Trust Fund.
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 a nominee thereof on behalf of the Certificateholders and, if
applicable, on behalf of the Companion Holders. The Special Servicer, on behalf
of the Trust Fund shall sell any REO Property prior to the close of the third
calendar year following the year in which the Trust Fund acquires ownership of
such REO Property, within the meaning of Treasury Regulations Section
1.856-6(b)(1), for purposes of Section 860G(a)(8) of the Code, unless the
Special Servicer either (i) is granted an extension of time (an "REO Extension")
by the Internal Revenue Service to sell such REO Property or (ii) obtains for
the Trustee, the Paying Agent and the Master Servicer an Opinion of Counsel,
addressed to the Trustee, the Paying Agent and the Master Servicer, to the
effect that the holding by the Trust Fund of such REO Property subsequent to the
close of the third calendar year following the year in which such acquisition
occurred will not cause the imposition of a tax on the Upper-Tier REMIC or the
Lower-Tier REMIC or cause the Upper-Tier REMIC or the Lower-Tier REMIC to fail
to qualify as a REMIC at any time that any Uncertificated Lower-Tier Interest or
Certificate is outstanding. If the Special Servicer is granted the REO Extension
contemplated by clause (i) of the immediately preceding sentence or obtains the
Opinion of Counsel contemplated by clause (ii) of the immediately preceding
sentence, the Special Servicer shall sell such REO Property within such longer
period as is permitted by such REO Extension or such Opinion of Counsel, as the
case may be. Any expense incurred by the Special Servicer in connection with its
being granted the REO Extension contemplated by clause (i) of the second
preceding sentence or its obtaining the Opinion of Counsel contemplated by
clause (ii) of the second preceding sentence, shall be an expense of the Trust
Fund payable out of the Certificate Account pursuant to Section 3.05(a).
(b) The Special Servicer shall segregate and hold all funds
collected and received in connection with any REO Property separate and apart
from its own funds and general assets. If an REO Acquisition shall occur, the
Special Servicer shall establish and maintain one or more REO Accounts, held on
behalf of the Trustee in trust for the benefit of the Certificateholders and, if
applicable, on behalf of the Companion Holder(s), as their interest shall
appear, and the Trustee (as holder of the Uncertificated Lower-Tier Interests),
for the retention of revenues and other proceeds derived from each REO Property.
The REO Account shall be an Eligible Account. The Special Servicer shall
deposit, or cause to be deposited, in the REO Account, within 1 Business Day
after receipt, all REO Revenues, Insurance and Condemnation Proceeds and
Liquidation Proceeds received in respect of an REO Property. Funds in the REO
Account may be invested in Permitted Investments in accordance with Section
3.06. The Special Servicer shall give notice to the Trustee and the Master
Servicer of the location of the REO Account when first established and of the
new location of the REO Account prior to any change thereof.
(c) The Special Servicer shall withdraw from the REO Account funds
necessary for the proper operation, management, insuring, leasing, maintenance
and disposition of any REO Property, but only to the extent of amounts on
deposit in the REO Account relating to such REO Property. On or prior to each
Determination Date, the Special Servicer shall withdraw from the REO Account and
remit to the Master Servicer, which shall deposit into the Certificate Account
(or such subaccount of the Certificate Account for each Companion Loan, as
applicable), the aggregate of all amounts received in respect of each REO
Property during the most recently ended Due Period, net of (i) any withdrawals
made out of such amounts pursuant to the preceding sentence and (ii) Net
Investment Earnings on amounts on deposit in the REO Account; provided, however,
that the Special Servicer may retain in such REO Account, in accordance with the
Servicing Standards, such portion of such balance as may be necessary to
maintain a reasonable reserve for repairs, replacements, leasing, management and
tenant improvements and other related expenses for the related REO Property. In
addition, on or prior to each Determination Date, the Special Servicer shall
provide the Master Servicer with a written accounting of amounts remitted to the
Master Servicer for deposit in the Certificate Account, as applicable, on such
date. The Master Servicer shall apply all such amounts as instructed by the
Special Servicer on the Determination Date for the related Distribution Date.
(d) The Special Servicer shall keep and maintain separate records,
on a property-by-property basis, for the purpose of accounting for all deposits
to, and withdrawals from, the REO Account pursuant to Section 3.16(b) or (c).
Section 3.17 Management of REO Property. (i) If title to any REO
Property is acquired, the Special Servicer shall manage, consent, protect,
operate and lease such REO Property for the benefit of the Certificateholders
and the Companion Holders, as applicable, and the Trustee (as holder of the
Uncertificated Lower-Tier Interests) solely for the purpose of its timely
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 result in the receipt by the Trust Fund of any "income from
non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code.
Subject to the foregoing, however, the Special Servicer shall have full power
and authority to do any and all things in connection therewith as are in the
best interests of and for the benefit of the Certificateholders (and, in the
case of each Loan Pair, the related Companion Holder(s)) and the Trustee (as
holder of the Uncertificated Lower-Tier Interests) all as a collective whole (as
determined by the Special Servicer in its reasonable judgment in accordance with
the Servicing Standards). Subject to this Section 3.17, the Special Servicer may
allow the Trust Fund to earn "net income from foreclosure property" within the
meaning of Section 860G(d) of the Code if it determines that earning such income
is in the best interests of Certificateholders and, if applicable, any related
Companion Holder(s) on a net after-tax basis as compared with net leasing such
REO Property or operating such REO Property on a different basis. In connection
therewith, the Special Servicer shall deposit or cause to be deposited on a
daily basis (and in no event later than 1 Business Day following receipt of such
funds) in the applicable REO Account all revenues received by it with respect to
each REO Property and the related REO Loan, and shall withdraw from the REO
Account, to the extent of amounts on deposit therein with respect to such REO
Property, funds necessary for the proper operation, management, leasing and
maintenance of such REO Property, including, without limitation:
(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, if
applicable; and
(iv) all costs and expenses necessary to maintain and lease such REO
Property.
To the extent that amounts on deposit in the REO Account in respect
of any REO Property are insufficient for the purposes set forth in clauses (i) -
(iv) above with respect to such REO Property, the Master Servicer (subject to
receiving notice from the Special Servicer in accordance with the procedures set
forth elsewhere in this Agreement) shall advance from its own funds such amount
as is necessary for such purposes unless (as evidenced by an Officer's
Certificate delivered to the Trustee, the Depositor, the Paying Agent and the
Directing Certificateholder) such advances would, if made, constitute
Nonrecoverable Servicing Advances.
(b) Without limiting the generality of the foregoing, the Special
Servicer shall not:
(i) permit the Trust Fund to enter into, renew or extend any New
Lease with respect to any REO Property, if the New Lease by its terms will
give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease
other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on any REO Property,
other than the completion of a building or other improvement thereon, and
then only if more than 10% of the construction of such building or other
improvement was completed before default on the related Mortgage Loan
became imminent, all within the meaning of Section 856(e)(4)(B) of the
Code; or
(iv) Directly Operate, or allow any other Person, other than an
Independent Contractor, to Directly Operate, any REO Property on any date
more than 90 days after its acquisition date;
unless, in any such case, the Special Servicer has obtained an Opinion of
Counsel (the cost of which shall be paid by the Master Servicer as a Servicing
Advance) to the effect that such action will not cause such REO Property to fail
to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code at any time that it is held for the benefit of the Trust Fund, in which
case the Special Servicer may take such actions as are specified in such Opinion
of Counsel.
(c) The Special Servicer shall contract with any Independent
Contractor for the operation and management of any REO Property within 90 days
of the acquisition date thereof, 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 an
expense of the Trust Fund) shall be reasonable and customary in light of
the nature and locality of the Mortgaged Property;
(iii) any such contract shall require, or shall be administered to
require, that the Independent Contractor (A) pay all costs and expenses
incurred in connection with the operation and management of such REO
Property, including, without limitation, those listed in subsection (a)
hereof, and (B) remit all related revenues collected (net of its fees and
such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(c) relating to any
such contract or to actions taken through any such Independent Contractor
shall be deemed to relieve the Special Servicer of any of its duties and
obligations hereunder with respect to the operation and management of any
such REO Property; and
(v) the Special Servicer shall be obligated to manage and supervise
such Independent Contractor in accordance with the Servicing Standards.
The Special Servicer shall be entitled to enter into any agreement
with any Independent Contractor performing services for it related to its duties
and obligations hereunder for indemnification of the Special Servicer by such
Independent Contractor, and nothing in this Agreement shall be deemed to limit
or modify such indemnification.
(d) When and as necessary, the Special Servicer shall send to the
Trustee, the Paying Agent and the Master Servicer a statement prepared by the
Special Servicer setting forth the amount of net income or net loss, as
determined for federal income tax purposes, resulting from the operation and
management of a trade or business on, the furnishing or rendering of a
non-customary service to the tenants of, or the receipt of any other amount not
constituting Rents from Real Property in respect of, any REO Property in
accordance with Sections 3.17(a) and 3.17(b).
Section 3.18 Sale of Defaulted Mortgage Loans and REO Properties.
(a) (i) Within thirty (30) days after a Mortgage Loan has become a
Specially Serviced Mortgage Loan with respect to any Defaulted Mortgage Loan,
the Special Servicer shall order an Appraisal (but shall not be required to be
received) and within thirty (30) days of receipt of the Appraisal shall
determine the fair value of such Defaulted Mortgage Loan in accordance with the
Special Servicer Servicing Standard; provided, however, that such determination
shall be made without taking into account any effect the restrictions on the
sale of such Mortgage Loan contained herein may have on the value of such
Defaulted Mortgage Loan; provided, further, that if the Special Servicer is then
in the process of obtaining an Appraisal with respect to the related Mortgaged
Property, the Special Servicer shall make its fair value determination as soon
as reasonably practicable (but in any event within thirty (30) days) after its
receipt of such an Appraisal. The Special Servicer may, from time to time,
adjust its fair value determination based upon changed circumstances, new
information and other relevant factors, in each instance in accordance with a
review of such circumstances and new information in accordance with the
Servicing Standards, conducted not less often than every 90 days. The Special
Servicer shall notify the Trustee, the Master Servicer, the Paying Agent and the
Certificateholder that owns the largest aggregate Certificate Balance of the
Controlling Class (the "Controlling Class Option Holder"), promptly upon its
making a fair value determination and any subsequent adjustment thereto. The
Special Servicer shall also deliver to the Master Servicer, the Rating Agencies
and the Controlling Class Option Holder (to the extent such parties have not
already received), the most recent Appraisal of the related Mortgaged Property
then in the Special Servicer's possession, together with such other third-party
reports and other information then in the Special Servicer's possession that the
Special Servicer reasonably believes to be relevant to the fair value
determination with respect to such Mortgage Loan (such materials are,
collectively, the "Determination Information"). If the Special Servicer will not
be determining whether the Option Price represents fair value of the Defaulted
Mortgage Loan, pursuant to the second to last paragraph of Section 3.18(a)(iv),
the Special Servicer shall also deliver the Determination Information to the
Trustee.
In determining the fair value of any Defaulted Mortgage Loan, the
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 Mortgaged Property is located, and the time and
expense associated with a purchaser's foreclosing on the related Mortgaged
Property. In addition, the Special Servicer shall refer to the Determination
Information and all other relevant information obtained by it or otherwise
contained in the Mortgage File; provided that the Special Servicer shall take
account of any change in circumstances regarding the related Mortgaged Property
known to the Special Servicer that has occurred subsequent to, and that would,
in the Special Servicer's reasonable judgment, materially affect the value of
the related Mortgaged Property reflected in, the most recent related Appraisal.
Furthermore, the Special Servicer shall consider all available objective
third-party information obtained from generally available sources, as well as
information obtained from vendors providing real estate services to the 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 Special Servicer may conclusively rely on the
opinion and reports of independent third parties in making such determination.
(ii) Subject to the terms and conditions of clauses (d), (e), (f)
and (g) of this Section 3.18, at the time a Mortgage Loan becomes a
Defaulted Mortgage Loan, the Special Servicer and Controlling Class Option
Holder (each, together with their assignees, an "Option Holder") will have
an assignable option (the "Purchase Option") to purchase such Defaulted
Mortgage Loan from the Trust Fund at a price (the "Option Price") equal to
(A) if the Special Servicer has not yet determined the fair value of such
Defaulted Mortgage Loan, the sum of (1) the Stated Principal Balance
thereof, together with all accrued and unpaid interest thereon at the
Mortgage Rate, (2) any related Yield Maintenance Charge or prepayment
premium then payable (except if the Purchase Option is exercised by the
Controlling Class Option Holder), (3) all related Advances for which the
Trust Fund or the related Master Servicer has not been reimbursed,
together with all accrued and unpaid interest thereon at the Reimbursement
Rate to the extent not included in (1) above, and (4) all accrued Special
Servicing Fees and additional Trust Fund expenses allocable to such
Defaulted Mortgage Loan whether recovered or unrecovered from the related
Mortgagor or (B) if the Special Servicer has determined the fair value of
such Defaulted Mortgage Loan pursuant to clause (i) above, an amount at
least equal to such fair value. Notwithstanding the foregoing, for a
period of sixty (60) days after it receives notice of the Special
Servicer's fair value determination (the "Controlling Class
Certificateholder's Option Period"), only the Purchase Option held by the
Controlling Class Option Holder may be exercised.
Any Option Holder may sell, transfer, assign or otherwise convey its
Purchase Option with respect to any Defaulted Mortgage Loan to any party
at any time after the related Mortgage Loan becomes a Defaulted Mortgage
Loan. The transferor of any Purchase Option shall notify the Trustee, the
Paying Agent and the Master Servicer of such transfer and such notice
shall include the transferee's name, address, telephone number, facsimile
number and appropriate contact person(s) and shall be acknowledged in
writing by the transferee.
Each Option Holder's Purchase Option with respect to any Defaulted
Mortgage Loan, if not exercised, will automatically terminate (A) once the
related Defaulted Mortgage Loan is no longer a Defaulted Mortgage Loan;
provided, however, that if such Mortgage Loan subsequently becomes a
Defaulted Mortgage Loan, the related Purchase Option shall again be
exercisable, (B) upon the acquisition, by or on behalf of the Trust Fund,
of title to the related Mortgaged Property through foreclosure or deed in
lieu of foreclosure, (C) upon the modification or pay-off, in full or at a
discount, of such Defaulted Mortgage Loan in connection with a workout or
(D) subject to the Master Servicer's determination set forth in clause
(iv) below, upon another Option Holder's exercise of its Purchase Option
with respect to the related Mortgage Loan becoming effective pursuant to
clause (iii) below.
(iii) Upon receipt of notice from the Special Servicer indicating
that a Mortgage Loan has become a Defaulted Mortgage Loan, and after the
expiration of the Controlling Class Certificateholder's Option Period,
each Option Holder (whether the original grantee of such option or any
subsequent transferee) may exercise its Purchase Option by providing the
Master Servicer, the Paying Agent and the Trustee written notice thereof
(the "Purchase Option Notice"), in the form of Exhibit J, which notice
shall identify the Person that, on its own or through an Affiliate, will
acquire the related Mortgage Loan upon closing and shall specify a cash
exercise price at least equal to the Option Price. The Purchase Option
Notice shall be delivered in the manner specified in Section 11.05.
Immediately upon receipt of such Purchase Option Notice, the Special
Servicer shall notify the remaining Option Holders that a Purchase Option
has been exercised. Within ten (10) days thereafter, each remaining Option
Holder may submit to the Special Servicer a Purchase Option Notice for the
related Defaulted Mortgage Loan. Upon the expiration of such ten (10) day
period, or such sooner time as all remaining Option Holders have submitted
Purchase Option Notices, the Special Servicer shall notify the Option
Holder whose Purchase Option Notice included the highest exercise price
that the exercise of its Purchase Option is effective. The Special
Servicer shall also notify the Trustee of such effective exercise. In the
event that more than one Option Holder exercises its Purchase Option at
the same price, the Purchase Option Notice first received by the Special
Servicer shall be effective. The exercise of any Purchase Option pursuant
to this clause (iii) shall be irrevocable; provided that the assignor of
the Purchase Option shall have no liability to the Trust or any other
party hereto for the failure of its third party assignee to close the sale
of the Defaulted Mortgage Loan after its exercise of the option, and upon
such failure, the Purchase Option shall revert to the Option Holder as
provided herein as if the Purchase Option had not been exercised, and the
Special Servicer shall pursue against such assignee whatever remedies it
may have against the assignee.
(iv) If the Special Servicer or any Controlling Class Option Holder,
or any of their respective Affiliates, is identified in the Purchase
Option Notice as the Person expected to acquire the related Mortgage Loan,
and the Option Price is based upon the Special Servicer's fair value
determination, the Master Servicer shall determine as soon as reasonably
practicable (and, in any event, within thirty (30) days) after the Master
Servicer has received the written notice and the Determination Information
to be provided to the Master Servicer by the Special Servicer under
Section 3.18(a)(i), whether the Option Price represents fair value for the
Defaulted Mortgage Loan; provided that, if the Special Servicer is then in
the process of obtaining a new Appraisal with respect to the related
Mortgaged Property, then the Master Servicer shall make its fair value
determination with respect to such Mortgage Loan as soon as reasonably
practicable (but in any event within thirty (30) days) after the Master
Servicer's receipt of such new Appraisal. Such fair value determination
shall be made in accordance with Servicing Standards. In determining the
fair value of any Defaulted Mortgage Loan, the Master 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 Mortgaged Property is located, and the time
and expense associated with a purchaser's foreclosing on the related
Mortgaged Property. In addition, the Master Servicer shall refer to the
Determination Information and all other relevant information delivered to
it by the Special Servicer or otherwise contained in the Mortgage File;
provided that the Master Servicer shall take account of any change in
circumstances regarding the related Mortgaged Property known to the Master
Servicer that has occurred subsequent to, and that would, in the Master
Servicer's reasonable judgment, materially affect the value of the related
Mortgaged Property reflected in, such appraisal. Furthermore, the Master
Servicer shall consider all available objective third-party information
obtained from generally available sources, as well as information obtained
from vendors providing real estate services to the Master 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 Master Servicer may conclusively rely
on the opinion and reports of independent third parties in making such
determination. The Master Servicer shall be entitled to receive out of the
Certificate Account as additional compensation a reasonable fee, not to
exceed $2,500 plus reasonable out-of-pocket costs and expenses, for each
determination made in accordance with this clause (iv), provided, however,
with respect to any Mortgage Loan, such fee shall be collectible once in
any six-month period. The reasonable cost of all third party consultants
and related reports, including but not limited to appraisals, inspection
reports and broker opinions of value, reasonably incurred by the Master
Servicer pursuant to this Section 3.18(a)(iv) shall constitute, and be
reimbursable as, Servicing Advances; provided that the Master Servicer may
rely on the most current Appraisal and property inspection report obtained
for the related Mortgaged Property pursuant to Section 3.12. The other
parties to this Agreement shall cooperate with all reasonable requests for
information.
Notwithstanding anything contained in this clause (iv) to the
contrary, if the Special Servicer or the Controlling Class Option Holder,
or any of their respective Affiliates, is identified in the Purchase
Option Notice as the Person expected to acquire the related Mortgage Loan,
and the Option Price is based upon the Special Servicer's fair value
determination, and the Master Servicer and the Special Servicer are
Affiliates, the Trustee, subject to the Directing Certificateholder's
reasonable prior written consent, which consent shall not be unreasonably
withheld, shall designate an independent third party, independent of the
Directing Certificateholder, to determine whether the Option Price
represents fair value for the Defaulted Mortgage Loan, in the manner and
within the time set forth in the first paragraph of this clause (iv). In
the event that the Trustee is called upon to designate such a third party
to make such determination, the Trustee will not assume any responsibility
for such third party's determination which determination the Trustee shall
be entitled to conclusively rely upon. The Trustee may pay such third
party a fee of up to $2,500. The reasonable costs of such independent
third party appraisals, all inspection reports and broker opinions of
value, reasonably incurred by the Trustee or any such third party pursuant
to this paragraph shall be advanced by the Master Servicer and shall
constitute, and be reimbursable as, Servicing Advances. In connection with
the Trustee's designating an independent third party, the Special Servicer
shall deliver to the Trustee for such independent third party's use the
Determination Information.
In the event the Master Servicer or any designated third party, as
applicable, determines that the Option Price is less than the fair value
of the Defaulted Mortgage Loan, such party shall provide its
determination, together with all information and reports it relied upon in
making such determination, to the Special Servicer, who may then adjust
its fair value determination and, consequently, the Option Price, pursuant
to Section 3.18(a)(i). The Special Servicer shall promptly provide written
notice of any adjustment of the Option Price to the Option Holder whose
Purchase Option has been declared effective pursuant to clause (iii)
above. Upon receipt of such notice, such Option Holder shall have three
(3) Business Days to (i) accept the Option Price as adjusted and proceed
in accordance with clause (v) below, or (ii) reject the Option Price as
adjusted, in which case such Option Holder shall not be obligated to close
the purchase of the Defaulted Mortgage Loan. Upon notice from such Option
Holder, or the Special Servicer, that such Option Holder rejects the
Option Price as adjusted, the Master Servicer and the Trustee shall
provide the notices described in the second paragraph of clause (v) below
and thereafter any Option Holder may exercise its purchase option in
accordance with Section 3.18(a), at the Option Price as adjusted.
(v) The Option Holder whose Purchase Option is declared effective
pursuant to clause (iii) above shall be required to pay the purchase price
specified in its Purchase Option Notice to the Master Servicer within ten
(10) Business Days of its receipt of the Special Servicer's notice
confirming that the exercise of its Purchase Option is effective. Upon
receipt of an Officer's Certificate from the Special Servicer specifying
the date for closing the purchase of the related Defaulted Mortgage Loan,
and the purchase price to be paid therefor, the Trustee shall deliver at
such closing for release to or at the direction of such Option Holder, the
related Mortgage File, and shall execute and deliver such instruments of
transfer or assignment, in each case without recourse, as shall be
provided to it by such Option Holder and are reasonably necessary to vest
in the purchaser or any designee thereof the ownership of such Mortgage
Loan on a servicing released basis. In connection with any such purchase
by any Person other than it, the Special Servicer shall deliver the
related Mortgage File to or at the direction of the purchaser. In any
case, the Master Servicer shall deposit the purchase price (except that
portion of any purchase price constituting Gain-on-Sale Proceeds which
shall be deposited in the Gain-on-Sale Reserve Account) into the
Certificate Account within one (1) Business Day following the closing of
the sale of the related Defaulted Mortgage Loan.
The Master Servicer shall immediately notify the Trustee and the
Special Servicer upon the holder of the effective Purchase Option's
failure to remit the purchase price specified in its Purchase Option
Notice pursuant to this clause (v). Thereafter, the Trustee shall notify
each Option Holder of such failure and any Option Holder may then exercise
its purchase option in accordance with this Section 3.18(a).
(vi) Unless and until the Purchase Option with respect to any
Defaulted Mortgage Loan is exercised or expires, the Special Servicer
shall pursue such other resolution strategies with respect to such
Defaulted Mortgage Loan, including, without limitation, workout and
foreclosure, as the Special Servicer may deem appropriate, consistent with
the Asset Status Report and Servicing Standards; provided, however, the
Special Servicer shall not sell any Defaulted Mortgage Loan (other than in
connection with exercise of a related Purchase Option or as otherwise
permitted in this Section 3.18).
(b) (i) The Special Servicer may purchase any REO Property (at the
Purchase Price therefor) (in the case of a Loan Pair, such purchase shall be a
purchase of the entire REO Property, including the portion relating to the
Companion Loans). The Special Servicer may also offer to sell to any Person any
REO Property (in the case of a Loan Pair, such sale shall be a sale of the
entire REO Property, including the portion relating to the Companion Loans), if
and when the Special Servicer determines, consistent with the Servicing
Standards, that such a sale would be in the best economic interests of the Trust
Fund and the Companion Holders. The Special Servicer shall give the Trustee, the
Master Servicer, the Paying Agent and the Directing Certificateholder not less
than five (5) Business Days' prior written notice of the Purchase Price and its
intention to (i) purchase any REO Property at the Purchase Price therefor or
(ii) sell any REO Property, in which case the Special Servicer shall accept the
highest offer received from any Person for any REO Property in an amount at
least equal to the Purchase Price therefor. To the extent permitted by
applicable law, and subject to the Servicing Standards, the Master Servicer, an
Affiliate of the Master Servicer, the Special Servicer or an Affiliate of the
Special Servicer, or an employee of either of them may act as broker in
connection with the sale of any REO Property and may retain from the proceeds of
such sale a brokerage commission that does not exceed the commission that would
have been earned by an independent broker pursuant to a brokerage agreement
entered into at arm's length.
In the absence of any such offer, the Special Servicer shall accept
the highest offer received from any Person that is determined by the
Special Servicer to be a fair price for such REO Property, if the highest
bidder is a Person other than an Interested Person, or if such price is
determined to be such a price by the Trustee, if the highest bidder is an
Interested Person. Notwithstanding anything to the contrary herein,
neither the Trustee, in its individual capacity, nor any of its Affiliates
may make an offer for or purchase any REO Property pursuant hereto.
The Special Servicer shall not be obligated by either of the
foregoing paragraphs or otherwise to accept the highest offer if the
Special Servicer determines, in accordance with Servicing Standards, that
rejection of such offer would be in the best interests of the
Certificateholders. In addition, the Special Servicer may accept a lower
offer if it determines, in accordance with the Servicing Standards, that
acceptance of such offer would be in the best interests of the
Certificateholders (for example, if the prospective buyer making the lower
offer is more likely to perform its obligations, or the terms offered by
the prospective buyer making the lower offer are more favorable).
In determining whether any offer received from an Interested Person
represents a fair price for any REO Property, the Trustee shall obtain and
may conclusively rely on the opinion of an Independent appraiser or other
Independent expert in real estate matters retained by the Trustee at the
expense of the Trust Fund. In determining whether any offer constitutes a
fair price for any REO Property, the Special Servicer or the Trustee (or,
if applicable, such appraiser) shall take into account, and any appraiser
or other expert in real estate matters shall be instructed to take into
account, as applicable, among other factors, the physical condition of
such REO Property, the state of the local economy and the Trust Fund's
obligation to comply with REMIC Provisions.
(ii) Subject to Servicing Standards, the Special Servicer shall act
on behalf of the Trust Fund and the Companion Holders in negotiating and
taking any other action necessary or appropriate in connection with the
sale of any REO Property, including the collection of all amounts payable
in connection therewith. A sale of any REO Property shall be without
recourse to, or representation or warranty by, the Trustee, the Depositor,
the Master Servicer, the Special Servicer, the Paying Agent or the Trust
Fund (except that any contract of sale and assignment and conveyance
documents may contain customary warranties of title, so long as the only
recourse for breach thereof is to the Trust Fund) and, if consummated in
accordance with the terms of this Agreement, none of the Master Servicer,
the Special Servicer, the Depositor, the Paying Agent nor the Trustee
shall have any liability to the Trust Fund or any Certificateholder or
Companion Holder with respect to the purchase price therefor accepted by
the Special Servicer or the Trustee.
(c) Any sale of a Defaulted Mortgage Loan or any REO Property shall
be for cash only (unless changes in the REMIC Provisions or authoritative
interpretations thereof made or issued subsequent to the Startup Day allow a
sale for other consideration).
(d) Notwithstanding anything in this Section 3.18 to the contrary,
pursuant to the terms of the related Intercreditor Agreement, the Companion
Holder will have the right to purchase the related AB Mortgage Loan, as
applicable, or related REO Property. With respect to each AB Mortgage Loan, such
right of the Companion Holder shall be given priority over any provision
described in this Section 3.18. If the AB Mortgage Loan or REO Property is
purchased by the Companion Holder, repurchased by the applicable Mortgage Loan
Seller or otherwise ceases to be subject to this Agreement, the related
Companion Loan will no longer be subject to this Agreement. None of the Trustee,
the Paying Agent, the Master Servicer nor the Trust Fund shall acquire the
Companion Loan.
(e) Notwithstanding anything in this Section 3.18 to the contrary,
any mezzanine lender will have the right to purchase the related Mortgage Loan
and cure defaults relating thereto as set forth in the related mezzanine
intercreditor agreement.
(f) In the event the Master Servicer or the Special Servicer has the
right to purchase any Companion Loan on behalf of the Trust pursuant to the
related Intercreditor Agreement, neither the Master Servicer nor the Special
Servicer shall exercise such right.
Section 3.19 Additional Obligations of Master Servicer and Special
Servicer. (a) The Master Servicer shall deliver all Compensating Interest
Payments to the Paying Agent for deposit in the Distribution Account on each P&I
Advance Date, without any right of reimbursement therefor.
(b) The Master Servicer shall provide to each Companion Holder any
reports or notices required to be delivered to such Companion Holder pursuant to
the related Intercreditor Agreement.
(c) Upon the determination that a previously made Advance is a
Nonrecoverable Advance, to the extent that the reimbursement thereof would
exceed the full amount of the principal portion of general collections on the
Mortgage Loans deposited in the Certificate Account and available for
distribution on the next Distribution Date, the Master Servicer or the Trustee,
each at its own option and in its sole discretion, as applicable, instead of
obtaining reimbursement for the remaining amount of such Nonrecoverable Advance
pursuant to Section 3.05(a)(v) immediately, as an accommodation may elect to
refrain from obtaining such reimbursement for such portion of the Nonrecoverable
Advance during the one month collection period ending on the then current
Determination Date, for successive one-month periods for a total period not to
exceed 12 months. If the Master Servicer (or the Trustee) makes such an election
at its sole option and in its sole discretion to defer reimbursement with
respect to all or a portion of a Nonrecoverable Advance (together with interest
thereon), then such Nonrecoverable Advance (together with interest thereon) or
portion thereof shall continue to be fully reimbursable in the subsequent
collection period (subject, again, to the same sole option to defer; it is
acknowledged that, in such a subsequent period, such Nonrecoverable Advance
shall again be payable first from principal collections as described above prior
to payment from other collections). In connection with a potential election by
the Master Servicer (or the Trustee) to refrain from the reimbursement of a
particular Nonrecoverable Advance or portion thereof during the one month
collection period ending on the related Determination Date for any Distribution
Date, the Master Servicer (or the Trustee) shall further be authorized to wait
for principal collections on the Mortgage Loans to be received before making its
determination of whether to refrain from the reimbursement of a particular
Nonrecoverable Advance or portion thereof) until the end of such collection
period; provided, however, if, at any time the Master Servicer or the Trustee,
as applicable, elects not to refrain from obtaining such reimbursement or
otherwise determines that the reimbursement of a Nonrecoverable Advance during a
one-month collection period will exceed the full amount of the principal portion
of general collections deposited in the Collection Account for such Distribution
Date, then the Master Servicer or the Trustee, as applicable, shall use its
reasonable efforts to give Moody's and Fitch 15 days' notice of such
determination, unless extraordinary circumstances make such notice impractical.
Nothing herein shall give the Master Servicer or the Trustee the right to defer
reimbursement of a Nonrecoverable Advance to the extent of any principal
collections then available in the Certificate Account pursuant to Section
3.05(a)(v).
The foregoing shall not, however, be construed to limit any
liability that may otherwise be imposed on such Person for any failure by such
Person to comply with the conditions to making such an election under this
section or to comply with the terms of this section and the other provisions of
this Agreement that apply once such an election, if any, has been made;
provided, however, that the fact that a decision to recover such Nonrecoverable
Advances over time, or not to do so, benefits some classes of Certificateholders
to the detriment of other classes shall not, with respect to the Master Servicer
or the Special Servicer, as applicable, constitute a violation of the Servicing
Standard and/or with respect to the Trustee, constitute a violation of any
fiduciary duty to Certificateholders or any contractual obligation hereunder. If
the Master Servicer or the Trustee, as applicable, determines, in its sole
discretion, that its ability to fully recover the Nonrecoverable Advances has
been compromised, then the Master Servicer or the Trustee, as applicable, shall
be entitled to immediate reimbursement of Nonrecoverable Advances with interest
thereon at the Reimbursement Rate from all amounts in the Certificate Account
for such Distribution Date (deemed first from principal and then interest). Any
such election by any such party to refrain from reimbursing itself or obtaining
reimbursement for any Nonrecoverable Advance or portion thereof with respect to
any one or more collection periods shall not limit the accrual of interest at
the Reimbursement Rate on such Nonrecoverable Advance for the period prior to
the actual reimbursement of such Nonrecoverable Advance. The Master Servicer's
or the Trustee's, as applicable, agreement to defer reimbursement of such
Nonrecoverable Advances as set forth above is an accommodation to the
Certificateholders and shall not be construed as an obligation on the part of
the Master Servicer or the Trustee, as applicable, or a right of the
Certificateholders. Nothing herein shall be deemed to create in the
Certificateholders a right to prior payment of distributions over the Master
Servicer's or the Trustee's, as applicable, right to reimbursement for Advances
(deferred or otherwise) and accrued interest thereon. In all events, the
decision to defer reimbursement or to seek immediate reimbursement of
Nonrecoverable Advances shall be deemed to be in accordance with the Servicing
Standard and none of the Master Servicer, the Trustee or the other parties to
this Agreement shall have any liability to one another or to any of the
Certificateholders or any of the Companion Holders for any such election that
such party makes as contemplated by this section or for any losses, damages or
other adverse economic or other effects that may arise from such an election.
(d) If, in connection with the proposed State Route 90 improvement
project with respect to the Mortgage Loan identified on the Mortgage Loan
Schedule as loan number 57 (Imperial Promenade), (i) there is a condemnation of
a portion of the Mortgaged Property, (ii) the award with respect to such
condemnation is less than $250,000, (iii) the condemnation has no impact on the
appraised value of the Mortgaged Property and (iv) the Trust's security in the
Mortgaged Property is not impaired, then the Mortgagor shall be entitled to
retain the condemnation award. In the event Insurance and Condemnation Proceeds
are received in connection with the proposed State Route 90 improvement project,
the Master Servicer will retain such condemnation award as additional collateral
and not apply such items to reduce the principal balance of such Mortgage Loan
unless otherwise required to do so pursuant to the applicable Mortgage Loan
documents, applicable law or court order.
(e) With respect to the three Mortgage Loans identified on the
Mortgage Loan Schedule as loan numbers 66, 84 and 134 (Bren Mar Apartments, 0
Xxxxxxxxxx Xxxxxx and 000 Xxxxx Xxxxx Xxxxx Xxxx, respectively) for which the
occurrence of a default or late fee under the applicable Mortgage Loan documents
may require notice by the Master Servicer, the Master Servicer shall deliver
such notice to each party requiring such notice as soon as reasonably practical
after the Master Servicer learns of such occurrence, but in no event later than
1 Business Day.
Section 3.20 Modifications, Waivers, Amendments and Consents. (a)
Except as set forth in Section 3.08(a), Section 3.08(b), Section 3.08(f),
Section 3.20(a), Section 3.20(d), and Section 3.20(i), but subject to any other
conditions set forth thereunder, and, with respect to an AB Mortgage Loan,
subject to the rights of the related Companion Holder to advise the Master
Servicer with respect to, or consent to, a modification, waiver or amendment
pursuant to the terms of the related Intercreditor Agreement, the Master
Servicer shall not modify, waive or amend a Mortgage Loan and/or a Companion
Loan without the prior written consent of the Special Servicer; provided that,
the Master Servicer shall forward to the Special Servicer requests to extend the
maturity date of a Mortgage Loan and/or Companion Loan that is not a Specially
Serviced Mortgage Loan, and the Special Servicer may approve such request,
provided, further, that except as provided in the following sentence, no such
extension entered into pursuant to this Section 3.20(a) shall extend the
Maturity Date beyond the earlier of (i) two years prior to the Rated Final
Distribution Date and (ii) in the case of a Mortgage Loan secured by a leasehold
estate and not also the related fee interest, the date twenty years or, to the
extent consistent with the Servicing Standards giving due consideration to the
remaining term of the ground lease, ten years, prior to the expiration of such
leasehold estate. If such extension would extend the Maturity Date of a Mortgage
Loan and/or Companion Loan for more than twelve months from and after the
original Maturity Date of such Mortgage Loan and/or Companion Loan and such
Mortgage Loan and/or Companion Loan is not in default or default with respect
thereto is not reasonably foreseeable, the Master Servicer must provide the
Trustee, the Special Servicer and the Directing Certificateholders with an
Opinion of Counsel (at the expense of the related Mortgagor to the extent
permitted under the Mortgage Loan documents and, if not required to be paid by
the Mortgagor, to be paid as a servicing expense and the Special Servicer shall
not consent to such extension without the consent of the Directing
Certificateholder) that such extension would not constitute a "significant
modification" of the Mortgage Loan and/or Companion Loan within the meaning of
Treasury Regulations Section 1.860G-2(b). Notwithstanding the foregoing, the
Master Servicer, without the consent of the Special Servicer, may modify or
amend the terms of any Mortgage Loan and/or Companion Loan in order to (i) cure
any ambiguity or mistake therein or (ii) correct or supplement any provisions
therein which may be inconsistent with any other provisions therein or correct
any error, provided that, if the Mortgage Loan and/or Companion Loan is not in
default or default with respect thereto is not reasonably foreseeable, such
modification or amendment would not be a "significant modification" of the
Mortgage Loan and/or Companion Loan within the meaning of Treasury Regulations
Section 1.860G-2(b).
Subject to applicable law and the Mortgage Loan documents, neither
the Master Servicer nor the Special Servicer shall permit the substitution of
any Mortgaged Property (or any portion thereof) for one or more other parcels of
real property at any time the Mortgage Loan is not in default pursuant to the
terms of the related Mortgage Loan documents or default with respect thereto is
not reasonably foreseeable unless (i) the Master Servicer or the Special
Servicer, as applicable, obtains from each Rating Agency (and delivers to the
Directing Certificateholder) a written confirmation that such substitution will
not cause a downgrade, qualification or withdrawal of the then current rating
assigned to any of the Certificates and (ii) either (a) such substitution is at
the unilateral option of the Mortgagor or otherwise occurs automatically
pursuant to the terms of the Mortgage Loan in effect on the Startup Day, within
the meaning of Treasury Regulations Section 1.1001-3, or (b) it has received an
Opinion of Counsel to the effect that such substitution would not be a
"significant modification" of the Mortgage Loan within the meaning of Treasury
Regulations Section 1.860G-2(b). Notwithstanding the foregoing, with respect to
the 000 Xxxx Xxxxxx Xxxxx Whole Loan, prior to the occurrence and continuance of
a 000 Xxxx Xxxxxx Xxxxx Control Appraisal Event, (i) the 000 Xxxx Xxxxxx Xxxxx X
Note Representative, in lieu of the Directing Certificateholder, shall be
entitled to take all actions under this Section, (ii) any references to the
Directing Certificateholder in this Section shall be deemed to also include
references to the 000 Xxxx Xxxxxx Xxxxx X Note Representative, and (iii) the
Master Servicer and the Special Servicer shall, with respect to the proposed
modification, follow the notice and approval procedures specified in Section
3.28. Following the occurrence and during the continuance of a 000 Xxxx Xxxxxx
Xxxxx Control Appraisal Event, the Directing Certificateholder shall exercise
such rights as set forth herein.
(b) If the Special Servicer determines that a modification, waiver
or amendment (including, without limitation, the forgiveness or deferral of
interest or principal or the substitution of collateral pursuant to the terms of
the Mortgage Loan or otherwise, the release of collateral or the pledge of
additional collateral) of the terms of a Specially Serviced Mortgage Loan with
respect to which a payment default or other material default has occurred or a
payment default or other material default is, in the Special Servicer's
judgment, reasonably foreseeable (as evidenced by an Officer's Certificate of
the Special Servicer), is reasonably likely to produce a greater recovery on a
net present value basis (the relevant discounting to be performed at the related
Mortgage Rate) to the Trust and, if applicable, the Companion Holders as the
holders of such Companion Loans than liquidation of such Specially Serviced
Mortgage Loan, then the Special Servicer may agree to a modification, waiver or
amendment of such Specially Serviced Mortgage Loan, subject to (x) the
provisions of this Section 3.20(b) and Section 3.20(c), (y) the approval of the
Directing Certificateholder as provided in Section 3.21 and (z) with respect to
an AB Mortgage Loan, the rights of the related Companion Holder to advise the
Special Servicer with respect to, or consent to, such modification, waiver or
amendment pursuant to the terms of the related Intercreditor Agreement.
The Special Servicer shall use its reasonable efforts to the extent
possible to cause each Specially Serviced Mortgage Loan to fully amortize prior
to the Rated Final Distribution Date and shall not agree to a modification,
waiver or amendment of any term of any Specially Serviced Mortgage Loan if such
modification, waiver or amendment would extend the maturity date of any such
Specially Serviced Mortgage Loan to a date occurring later than the earlier of
(a) two years prior to the Rated Final Distribution Date and (b) if such
Specially Serviced Mortgage Loan is secured by a leasehold estate and not also
the related fee interest, the date occurring twenty years or, to the extent
consistent with the Servicing Standards giving due consideration to the
remaining term of the ground lease, with the consent of the Directing
Certificateholder, ten years prior to the expiration of such leasehold estate.
(c) Any provision of this Section 3.20 to the contrary
notwithstanding, except when a Mortgage Loan and/or Companion Loan is in default
or default with respect thereto is reasonably foreseeable, no fee described in
this paragraph shall be collected by any Master Servicer or Special Servicer
from a Mortgagor (or on behalf of the Mortgagor) in conjunction with any consent
or any modification, waiver or amendment of a Mortgage Loan or Companion Loan,
as applicable (unless the amount thereof is specified in the related Mortgage
Note) if the collection of such fee would cause such consent, modification,
waiver or amendment to be a "significant modification" of the Mortgage Note
within the meaning of Treasury Regulations Section 1.860G-2(b).
(d) To the extent consistent with this Agreement, the Master
Servicer or the Special Servicer may agree to any waiver, modification or
amendment of a Mortgage Loan or Companion Loan that is not in default or as to
which default is not reasonably foreseeable only if it provides the Trustee with
an Opinion of Counsel (at the expense of the related Mortgagor or such other
Person requesting such modification or, if such expense cannot be collected from
the related Mortgagor or such other Person, to be paid by the Master Servicer or
Special Servicer as a Servicing Advance) to the effect that the contemplated
waiver, modification or amendment (i) will not be a "significant modification"
of the Mortgage Loan within the meaning of Treasury Regulations Section
1.860G-2(b) and (ii) will not cause (x) either the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC for purposes of the Code or (y)
either the Lower-Tier REMIC or the Upper-Tier REMIC to be subject to any tax
under the REMIC Provisions. Notwithstanding the foregoing, neither the Master
Servicer nor the Special Servicer may waive the payment of any Yield Maintenance
Charge or the requirement that any prepayment of a Mortgage Loan be made on a
Due Date, or if not made on a Due Date, be accompanied by all interest that
would be due on the next Due Date with respect to any Mortgage Loan or Companion
Loan that is not a Specially Serviced Mortgage Loan.
(e) In the event of a modification which creates Mortgage Deferred
Interest, such Mortgage Deferred Interest will be allocated to reduce the
Distributable Certificate Interest of the Class or Classes of Certificates
pursuant to Section 4.06.
(f) Subject to Section 3.20(c), the Master Servicer and the Special
Servicer each may, as a condition to its granting any request by a Mortgagor for
consent, modification (including extensions), waiver or indulgence or any other
matter or thing, the granting of which is within the Master Servicer's or the
Special Servicer's, as the case may be, discretion pursuant to the terms of the
instruments evidencing or securing the related Mortgage Loan or Companion Loan
and is permitted by the terms of this Agreement, require that such Mortgagor pay
to the Master Servicer or the Special Servicer, as the case may be, as
additional servicing compensation, a reasonable or customary fee, for the
additional services performed in connection with such request.
(g) All modifications (including extensions), waivers and amendments
of the Mortgage Loans and/or Companion Loans entered into pursuant to this
Section 3.20 shall be in writing, signed by the Master Servicer or the Special
Servicer, as the case may be, and the related Mortgagor (and by any guarantor of
the related Mortgage Loan, if such guarantor's signature is required by the
Special Servicer in accordance with the Servicing Standards).
(h) Each of the Master Servicer and the Special Servicer shall
notify the Rating Agencies, the Trustee, the Directing Certificateholder (or in
the case of the 000 Xxxx Xxxxxx Xxxxx Whole Loan, the 000 Xxxx Xxxxxx Xxxxx X
Note Representative and each other in writing of any modification, waiver or
amendment of any term of any Mortgage Loan or Companion Loan and the date
thereof, and shall deliver to the Trustee or the related Custodian with a copy
to the Master Servicer (if such notice is being delivered by the Special
Servicer) for deposit in the related Mortgage File, an original counterpart of
the agreement relating to such modification, waiver or amendment, promptly (and
in any event within 10 Business Days) following the execution thereof. Following
receipt of the Master Servicer's or the Special Servicer's, as applicable,
delivery of the aforesaid modification, waiver or amendment to the Paying Agent,
the Paying Agent shall forward a copy thereof to each Holder of a Class F, Class
G, Class H, Class J, Class K, Class L, Class M, Class N, Class P, Class Q and
Class NR Certificate upon request.
(i) Notwithstanding the foregoing, neither the Master Servicer nor
the Special Servicer shall permit the substitution of any Mortgaged Property
pursuant to the defeasance provisions of any Mortgage Loan unless such
defeasance complies with Treasury Regulations Section 1.860G-2(a)(8) and the
Master Servicer or the Special Servicer, as applicable, has received (i) a
certificate of an Independent certified public accountant to the effect that
such substituted property will provide cash flows sufficient to meet all
payments of interest and principal (including payments at maturity) on such
Mortgage Loan in compliance with the requirements of the terms of the related
Mortgage Loan documents and, if applicable, Companion Loan documents, (ii) one
or more Opinions of Counsel (at the expense of the related Mortgagor) to the
effect that the Trustee, on behalf of the Trust Fund, will have a first priority
perfected security interest in such substituted Mortgaged Property; provided,
however, that, to the extent consistent with the related Mortgage Loan documents
and, if applicable, Companion Loan documents, the related Mortgagor shall pay
the cost of any such opinion as a condition to granting such defeasance, (iii)
to the extent consistent with the related Mortgage Loan documents, the Mortgagor
shall establish a single purpose entity to act as a successor Mortgagor, if so
required by the Rating Agencies, (iv) to the extent permissible under the
related Mortgage Loan documents and, if applicable, Companion Loan documents,
the Master Servicer or Special Servicer, as applicable shall use its reasonable
efforts to require the related Mortgagor to pay all costs of such defeasance,
including but not limited to the cost of maintaining any successor Mortgagor and
(v) to the extent permissible under the Mortgage Loan documents and, if
applicable, Companion Loan documents, the Master Servicer or Special Servicer,
as applicable shall obtain, at the expense of the related Mortgagor, written
confirmation from the Rating Agencies that such defeasance will not cause the
downgrade, withdrawal or modification of the then current ratings of the
Certificates; provided, however, that (a) the Master Servicer or Special
Servicer, as applicable shall not be required to obtain such written
confirmation from Fitch unless such Mortgage Loan (or Mortgage Loans if the
single purpose entity established pursuant to clause (iii) above holds assets
for more than one Mortgagor) at the time of such defeasance is (A) one of the
ten largest Mortgage Loans by Stated Principal Balance, (B) a Mortgage Loan with
a Cut-off Date Principal Balance greater than $20,000,000 or (C) a Mortgage Loan
that represents 5% or more of the Cut-off Date Principal Balance of all Mortgage
Loans and (b) the Master Servicer or Special Servicer, as applicable shall not
be required to obtain the Xxxxx'x confirmation referenced in clause (v) above
with respect to any Mortgage Loan which has a Stated Principal Balance less than
$20,000,000 and represents less than 5% of the Stated Principal Balance of all
the Mortgage Loans, so long as such Mortgage Loan is not one of the ten largest
Mortgage Loans by Stated Principal Balance.
(j) Notwithstanding anything herein or in the related Mortgage Loan
documents and, if applicable, Companion Loan documents to the contrary, the
Master Servicer or the Special Servicer may permit the substitution of
"government securities," within the meaning of Section 2(a)(16) of the
Investment Company Act of 1940, that comply with Treasury Regulations Section
1.860G-2(a)(8) for any Mortgaged Property pursuant to the defeasance provisions
of any Mortgage Loan (or any portion thereof) in lieu of the defeasance
collateral specified in the related Mortgage Loan or Companion Loan documents;
provided that the Master Servicer or the Special Servicer reasonably determines
that allowing their use would not cause a default or event of default to become
reasonably foreseeable and the Master Servicer or the Special Servicer receives
an Opinion of Counsel (at the expense of the Mortgagor to the extent permitted
under the Mortgage Loan documents and, if applicable, Companion Loan documents)
to the effect that such use would not be and would not constitute a "significant
modification" of such Mortgage Loan or Companion Loan pursuant to Treasury
Regulations Section 1.860G-2(b) and would not otherwise constitute an Adverse
REMIC Event with respect to any REMIC and provided further that the requirements
set forth in Section 3.20(i) (including the ratings confirmations) are
satisfied; and further provided that such securities are backed by the full
faith and credit of the United States government, or the Master Servicer or the
Special Servicer shall obtain a written confirmation of each Rating Agency that
the use of such securities will not result in the downgrade, withdrawal or
qualification of the then current ratings of any Class of Certificates
outstanding.
(k) If required under the related Mortgage Loan or Companion Loan
documents or if otherwise consistent with the Servicing Standards, the Master
Servicer shall establish and maintain one or more accounts (the "Defeasance
Accounts"), which shall be Eligible Accounts, into which all payments received
by the Master Servicer from any defeasance collateral substituted for any
Mortgaged Property shall be deposited and retained, and shall administer such
Defeasance Accounts in accordance with the Mortgage Loan or Companion Loan
documents. Notwithstanding the foregoing, in no event shall the Master Servicer
permit such amounts to be maintained in the Defeasance Account for a period in
excess of 90 days, unless such amounts are reinvested by the Master Servicer in
"government securities," within the meaning of Section 2(a)(16) of the
Investment Company Act of 1940, that comply with Treasury Regulations Section
1.860G-2(a)(8). To the extent not required or permitted to be placed in a
separate account, the Master Servicer shall deposit all payments received by it
from defeasance collateral substituted for any Mortgaged Property into the
Certificate Account and treat any such payments as payments made on the Mortgage
Loan or Companion Loan in advance of its Due Date in accordance with clause
(a)(i) of the definition of Available Distribution Amount, and not as a
prepayment of the related Mortgage Loan or Companion Loan. Notwithstanding
anything herein to the contrary, in no event shall the Master Servicer permit
such amounts to be maintained in the Certificate Account for a period in excess
of 365 days (or 366 days in the case of a leap year).
Section 3.21 Transfer of Servicing Between Master Servicer and
Special Servicer; Recordkeeping; Asset Status Report. (a) Upon determining that
a Servicing Transfer Event has occurred with respect to any Mortgage Loan or
Companion Loan, the Master Servicer or the Special Servicer, as applicable,
shall promptly give notice to the Master Servicer or the Special Servicer, as
applicable, and the Directing Certificateholder thereof, and the Master Servicer
shall deliver the related Mortgage File and Servicing File to the Special
Servicer and shall use its reasonable efforts to provide the Special Servicer
with all information, documents and records (including records stored
electronically on computer tapes, magnetic discs and the like) relating to the
Mortgage Loan and, if applicable, the related Companion Loan, either in the
Master Servicer's possession or otherwise available to the Master Servicer
without undue burden or expense, and reasonably requested by the Special
Servicer to enable it to assume its functions hereunder with respect thereto.
The Master Servicer shall use its reasonable efforts to comply with the
preceding sentence within 5 Business Days of the occurrence of each related
Servicing Transfer Event and in any event shall continue to act as Master
Servicer and administrator of such Mortgage Loan and, if applicable, the related
Companion Loan(s) until the Special Servicer has commenced the servicing of such
Mortgage Loan and, if applicable, the related Companion Loan. The Master
Servicer shall deliver to the Trustee, the Paying Agent and the Directing
Certificateholder a copy of the notice of such Servicing Transfer Event provided
by the Master Servicer to the Special Servicer, or by the Special Servicer to
the Master Servicer, pursuant to this Section. The Paying Agent shall deliver to
each Controlling Class Certificateholder (and in the case of the 000 Xxxx Xxxxxx
Xxxxx Whole Loan, the 000 Xxxx Xxxxxx Xxxxx X Note Representative) a copy of the
notice of such Servicing Transfer Event provided by the Master Servicer pursuant
to this Section.
Upon determining that a Specially Serviced Mortgage Loan or
Companion Loan (other than an REO Loan) has become current and has remained
current for three consecutive Monthly Payments (provided that (i) no additional
Servicing Transfer Event is foreseeable in the reasonable judgment of the
Special Servicer, and (ii) for such purposes taking into account any
modification or amendment of such Mortgage Loan and, if applicable, the related
Companion Loan(s)), and that no other Servicing Transfer Event is continuing
with respect thereto, the Special Servicer shall immediately give notice thereof
to the Master Servicer and the Directing Certificateholder (and in the case of
the 000 Xxxx Xxxxxx Xxxxx Whole Loan, the 000 Xxxx Xxxxxx Xxxxx X Note
Representative), and shall return the related Mortgage File and Servicing File
to the Master Servicer (or copies thereof if copies only were delivered to the
Special Servicer) and upon giving such notice, and returning such Mortgage File
and Servicing File to the Master Servicer, the Special Servicer's obligation to
service such Corrected Mortgage Loan shall terminate and the obligations of the
Master Servicer to service and administer such Mortgage Loan and, if applicable,
the Companion Loan, shall recommence.
(b) In servicing any Specially Serviced Mortgage Loans and Companion
Loans, the Special Servicer will provide to the Trustee originals of documents
included within the definition of "Mortgage File" for inclusion in the related
Mortgage File (with a copy of each such original to the Master Servicer), and
provide the Master Servicer with copies of any additional related Mortgage Loan
or Companion Loan information including correspondence with the related
Mortgagor.
(c) Notwithstanding the provisions of Section 3.12(d), the Master
Servicer shall maintain ongoing payment records with respect to each of the
Specially Serviced Mortgage Loans and Companion Loans and REO Properties and
shall provide the Special Servicer with any information in its possession with
respect to such records to enable the Special Servicer to perform its duties
under this Agreement, provided that this statement shall not be construed to
require the Master Servicer to produce any additional reports.
(d) No later than 45 days after a Servicing Transfer Event for a
Mortgage Loan and, if applicable, the Companion Loan, the Special Servicer shall
deliver to the Master Servicer, each Rating Agency, the Trustee (upon request),
the Paying Agent and the Directing Certificateholder and the 000 Xxxx Xxxxxx
Xxxxx X Note Representative, if applicable, a report (the "Asset Status Report")
with respect to such Mortgage Loan or Companion Loan and the related Mortgaged
Property; provided, however, the Special Servicer shall not be required to
deliver an Asset Status Report to the Directing Certificateholder if they are
the same entity. Such Asset Status Report shall set forth the following
information to the extent reasonably determinable based on the information that
was delivered to the Special Servicer in connection with the transfer of
servicing pursuant to the Servicing Transfer Event:
(i) summary of the status of such Specially Serviced Mortgage Loan
and any negotiations with the related Mortgagor;
(ii) a discussion of the legal and environmental considerations
reasonably known to the Special Servicer, consistent with the Servicing
Standards, that are applicable to the exercise of remedies as aforesaid
and to the enforcement of any related guaranties or other collateral for
the related Mortgage Loan and whether outside legal counsel has been
retained;
(iii) the most current rent roll and income or operating statement
available for the related Mortgaged Property;
(iv) the Special Servicer's recommendations on how such Specially
Serviced Mortgage Loan might be returned to performing status and returned
to the Master Servicer for regular servicing or otherwise realized upon;
(v) a copy of the last obtained Appraisal of the Mortgaged Property;
and
(vi) such other information as the Special Servicer deems relevant
in light of the Servicing Standards.
If within ten Business Days of receiving an Asset Status Report, the
Directing Certificateholder and, prior to a 000 Xxxx Xxxxxx Xxxxx Control
Appraisal Event, the 000 Xxxx Xxxxxx Xxxxx X Note Representative, does not
disapprove such Asset Status Report in writing, the Special Servicer shall
implement the recommended action as outlined in such Asset Status Report;
provided, however, that the Special Servicer may not take any action that is
contrary to applicable law, the Servicing Standards or the terms of the
applicable Mortgage Loan documents. If the Directing Certificateholder
disapproves such Asset Status Report within 10 Business Days of receipt, the
Special Servicer will revise such Asset Status Report and deliver to the
Directing Certificateholder, the Rating Agencies, the Mortgage Loan Sellers, the
Trustee and the Master Servicer a new Asset Status Report as soon as
practicable, but in no event later than 30 days after such disapproval. The
Special Servicer shall revise such Asset Status Report as described above in
this Section 3.21(d) until the Directing Certificateholder shall fail to
disapprove such revised Asset Status Report in writing within ten (10) Business
Days of receiving such revised Asset Status Report or until the Special Servicer
makes one of the determinations described below. Notwithstanding the foregoing,
in the event the Directing Certificateholder and the Special Servicer have been
unable to agree upon an Asset Status Report with respect to a Specially Serviced
Mortgage Loan within 90 days, of the Directing Certificateholder's receipt of
the initial Asset Status Report, the Special Servicer, subject to the rights of
the related Companion Holder pursuant to the related Intercreditor Agreement, if
applicable, shall implement the actions described in the most recent Asset
Status Report submitted to the Directing Certificateholder by the Special
Servicer. The Special Servicer may, from time to time, modify any Asset Status
Report it has previously delivered and implement such report, provided such
report shall have been prepared, reviewed and not rejected pursuant to the terms
of this Section. Notwithstanding the foregoing, the Special Servicer (i) may,
following the occurrence of an extraordinary event with respect to the related
Mortgaged Property, take any action set forth in such Asset Status Report before
the expiration of a ten (10) Business Day period if the Special Servicer has
reasonably determined that failure to take such action would materially and
adversely affect the interests of the Certificateholders or, if a Loan Pair is
involved, the Companion Holder, and it has made a reasonable effort to contact
the Directing Certificateholder and (ii) in any case, shall determine whether
such affirmative disapproval is not in the best interest of all the
Certificateholders pursuant to the Servicing Standards. Notwithstanding the
foregoing, so long as the 000 Xxxx Xxxxxx Xxxxx X Note Representative is
entitled to exercise the approval rights with respect to recommended actions
pursuant to Section 6.07 hereof, the Directing Certificateholder shall not have
any of the rights set forth under this Section 3.21 with respect to the 000 Xxxx
Xxxxxx Xxxxx Whole Loan, and such rights shall be exercised by the 000 Xxxx
Xxxxxx Xxxxx X Note Representative, provided that all notices required to be
delivered to the 000 Xxxx Xxxxxx Xxxxx X Note Representative with respect to the
000 Xxxx Xxxxxx Xxxxx Whole Loan under this Section 3.21 shall also be provided
to the Directing Certificateholder. Following the occurrence and during the
continuance of an applicable Control Appraisal Event, the Directing
Certificateholder shall exercise such rights.
The Special Servicer shall have the authority to meet with the
Mortgagor for any Specially Serviced Mortgage Loan and take such actions
consistent with the Servicing Standards and the related Asset Status Report. The
Special Servicer shall not take any action inconsistent with the related Asset
Status Report, unless such action would be required in order to act in
accordance with the Servicing Standards.
No direction or disapproval of the Directing Certificateholder (or
with respect to the 000 Xxxx Xxxxxx Xxxxx Whole Loan, the 000 Xxxx Xxxxxx Xxxxx
X Note Representative) shall (a) require or cause the Special Servicer to
violate the terms of a Specially Serviced Mortgage Loan, applicable law or any
provision of this Agreement, including the Special Servicer's obligation to act
in accordance with the Servicing Standards and to maintain the REMIC status of
each of the Lower-Tier REMIC and the Upper-Tier REMIC or (b) result in the
imposition of a "prohibited transaction" or "prohibited contribution" tax under
the REMIC Provisions, or (c) expose the Master Servicer, the Special Servicer,
the Depositor, the Mortgage Loan Sellers, the Trust Fund, the Trustee, the
Paying Agent or their respective officers, directors, employees or agents to any
claim, suit or liability or (d) materially expand the scope of the Special
Servicer's, Trustee's or the Master Servicer's responsibilities under this
Agreement.
(e) Upon receiving notice of (i) the occurrence of the events
described in clause (iv) of the definition of Servicing Transfer Event (without
regard to the 60 day period set forth therein), or (ii) the request by a
Mortgagor for the amendment or modification of a Mortgage Loan or Companion Loan
which is not a Specially Serviced Mortgage Loan for which the Special Servicer
is responsible for such amendment or modification pursuant to Section 3.08 and
Section 3.20, the Master Servicer shall with reasonable promptness give notice
thereof, and shall use its reasonable efforts to provide the Special Servicer
with all information relating to the Mortgage Loan or Companion Loan and
reasonably requested by the Special Servicer to enable it to negotiate with the
related Mortgagor and prepare for any such proceedings. The Master Servicer
shall use its reasonable efforts to comply with the preceding sentence within 5
Business Days of the occurrence of each such event.
Section 3.22 Sub-Servicing Agreements. (a) The Master Servicer may
enter into Sub-Servicing Agreements to provide for the performance by third
parties of any or all of its respective obligations under Articles II, III, IV
and X hereof; provided that the Sub-Servicing Agreement as amended or modified:
(i) is consistent with this Agreement in all material respects and requires the
Sub-Servicer to comply with all of the applicable conditions of this Agreement;
(ii) provides that if the Master Servicer shall for any reason no longer act in
such capacity hereunder (including, without limitation, by reason of an Event of
Default), the Trustee or its designee shall thereupon assume all of the rights
and, except to the extent they arose prior to the date of assumption,
obligations of the Master Servicer under such agreement, or, alternatively, may
act in accordance with Section 7.02 hereof under the circumstances described
therein (subject to Section 3.22(g) hereof); (iii) provides that the Trustee for
the benefit of the Certificateholders, the related Companion Holder (if
applicable) and the Trustee (as holder of the Uncertificated Lower-Tier
Interests) shall be a third party beneficiary under such Sub-Servicing
Agreement, but that (except to the extent the Trustee or its designee assumes
the obligations of the Master Servicer thereunder as contemplated by the
immediately preceding clause (ii)) none of the Trust Fund, the Trustee, the
Paying Agent, the Special Servicer, any successor Master Servicer or any
Certificateholder (or the related Companion Holder, if applicable) shall have
any duties under such Sub-Servicing Agreement or any liabilities arising
therefrom; (iv) permits any purchaser of a Mortgage Loan pursuant to this
Agreement to terminate such Sub-Servicing Agreement with respect to such
purchased Mortgage Loan at its option and without penalty; provided, however,
that the Initial Sub-Servicing Agreements may only be terminated by the Trustee
or its designees as contemplated by Section 3.22(g) hereof and in such
additional manner as is provided in such Sub-Servicing Agreement; (v) does not
permit the Sub-Servicer any direct rights of indemnification that may be
satisfied out of assets of the Trust Fund and (vi) does not permit the
Sub-Servicer to modify any Mortgage Loan unless and to the extent the Master
Servicer is permitted hereunder to modify such Mortgage Loan. Any successor
Master Servicer hereunder shall, upon becoming successor Master Servicer, be
assigned and shall assume any Sub-Servicing Agreements from the predecessor
master servicer (subject to Section 3.22(g) hereof). In addition, each
Sub-Servicing Agreement entered into by the Master Servicer may but need not
provide that the obligations of the Sub-Servicer thereunder shall terminate with
respect to any Mortgage Loan serviced thereunder at the time such Mortgage Loan
becomes a Specially Serviced Mortgage Loan; provided, however, that the
Sub-Servicing Agreement may provide (if the Sub-Servicing Agreement provides for
Advances by the Sub-Servicer, although it need not so provide) that the
Sub-Servicer will continue to make all Advances and calculations and prepare all
reports required under the Sub-Servicing Agreement with respect to Specially
Serviced Mortgage Loans and continue to collect its Primary Servicing Fees as if
no Servicing Transfer Event had occurred and with respect to REO Properties (and
the related REO Loans) as if no REO Acquisition had occurred and to render such
incidental services with respect to such Specially Serviced Mortgage Loans and
REO Properties as are specifically provided for in such Sub-Servicing Agreement.
The Master 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 the Master Servicer include
actions taken or to be taken by a Sub-Servicer on behalf of the Master Servicer;
and, in connection therewith, all amounts advanced by any Sub-Servicer (if the
Sub-Servicing Agreement provides for Advances by the Sub-Servicer, although it
need not so provide) to satisfy the obligations of the Master Servicer hereunder
to make Advances shall be deemed to have been advanced by the Master Servicer
out of its own funds and, accordingly, in such event, 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 the Master Servicer, and, for so long as they are
outstanding, such Advances shall accrue interest in accordance with Section
3.03(d), such interest to be allocable between the Master Servicer and such
Sub-Servicer as may be provided (if at all) pursuant to the terms of the
Sub-Servicing Agreement. For purposes of this Agreement, the Master Servicer
shall be deemed to have received any payment when a Sub-Servicer retained by it
receives such payment. The Master Servicer shall notify the Special Servicer,
the Trustee and the Depositor in writing promptly of the appointment by it of
any Sub-Servicer, except that the Master Servicer need not provide such notice
as to the Initial Sub-Servicing Agreements.
(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 to the extent
necessary to ensure the enforceability of the related Mortgage Loans or the
compliance with its obligations under the Sub-Servicing Agreement and the Master
Servicer's obligations under this Agreement.
(c) As part of its servicing activities hereunder, the Master
Servicer for the benefit of the Trustee and the Certificateholders, shall (at no
expense to the Trustee, the Certificateholders or the Trust Fund) monitor the
performance and enforce the obligations of each Sub-Servicer under the related
Sub-Servicing Agreement. Such enforcement, including, without limitation, 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 is in accordance with the Servicing Standards. The Master Servicer shall
have the right to remove a Sub-Servicer retained by it in accordance with the
terms of the related Sub-Servicing Agreement.
(d) In the event the Trustee or its designee becomes successor
Master Servicer and assumes the rights and obligations of the Master Servicer
under any Sub-Servicing Agreement, the Master Servicer, at its expense, shall
deliver to the assuming party all documents and records relating to such
Sub-Servicing Agreement and the Mortgage Loans and, if applicable, Companion
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 the provisions of any Sub-Servicing Agreement
and this Section 3.22, the Master Servicer shall remain obligated and
responsible to the Trustee, the Special Servicer, holders of the Companion Loans
serviced hereunder and the Certificateholders for the performance of its
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 for which it is responsible,
and the Master Servicer shall pay the fees of any Sub-Servicer thereunder as and
when due from its own funds. In no event shall the Trust Fund bear any
termination fee required to be paid to any Sub-Servicer as a result of such
Sub-Servicer's termination under any Sub-Servicing Agreement.
(f) The Trustee shall furnish to any Sub-Servicer any powers of
attorney and other documents necessary or appropriate to enable such
Sub-Servicer to carry out its servicing and administrative duties under any
Sub-Servicing Agreement; provided, however, that the Trustee shall not be held
liable for any negligence, and shall be indemnified by the Sub-Servicer, with
respect to, or misuse of, any such power of attorney by a Sub-Servicer, and
provided further that the use of such power of attorney by a Sub-Servicer is
subject to the last sentence of Section 3.01(b).
(g) Each Sub-Servicing Agreement shall provide that, in the event
the Trustee or any other Person becomes successor Master Servicer, the Trustee
or such successor Master Servicer shall have the right to terminate such
Sub-Servicing Agreement with or without cause and without a fee. Notwithstanding
the foregoing or any other contrary provision in this Agreement, the Trustee and
any successor Master Servicer shall assume each Initial Sub-Servicing Agreement
and (i) the Initial Sub-Servicer's rights and obligations under the Initial
Sub-Servicing Agreement shall expressly survive a termination of the Master
Servicer's servicing rights under this Agreement; provided that the Initial
Sub-Servicing Agreement has not been terminated in accordance with its
provisions; (ii) any successor Master Servicer, including, without limitation,
the Trustee (if it assumes the servicing obligations of the Master Servicer)
shall be deemed to automatically assume and agree to the then-current Initial
Sub-Servicing Agreement without further action upon becoming the successor
Master Servicer and (iii) this Agreement may not be modified in any manner which
would increase the obligations or limit the rights of the Initial Sub-Servicer
hereunder and/or under the Initial Sub-Servicing Agreement, without the prior
written consent of the Initial Sub-Servicer (which consent shall not be
unreasonably withheld).
(h) With respect to Mortgage Loans subject to a Sub-Servicing
Agreement, the Special Servicer shall, to the extent required, remit amounts,
deliver reports and information, and afford access to facilities and information
to the related Sub-Servicer that would be required to be remitted, delivered or
afforded, as the case may be, to the Master Servicer pursuant to the terms
hereof (and within the same period of time required herein), within a sufficient
period of time to allow the Sub-Servicer to fulfill its obligations under such
Sub-Servicing Agreement and in no event later than 1 Business Day prior to the
applicable Determination Date (or such other date as specified herein).
(i) Notwithstanding any other provision of this Agreement, the
Special Servicer shall not enter into any Sub-Servicing Agreement which provides
for the performance by third parties of any or all of its obligations herein,
without the consent of the Directing Certificateholder.
Section 3.23 [RESERVED].
Section 3.24 Representations, Warranties and Covenants of the Master
Servicer. (a) The Master Servicer hereby represents and warrants to the Trustee,
for its own benefit and the benefit of the Certificateholders and to the
Depositor, the Paying Agent and the Special Servicer, as of the Closing Date,
that:
(i) The Master Servicer is a corporation, duly organized, validly
existing and in good standing under the laws of the State of Delaware, and
the Master Servicer is in compliance with the laws of each State in which
any Mortgaged Property is located to the extent necessary to perform its
obligations under this Agreement;
(ii) The execution and delivery of this Agreement by the Master
Servicer, and the performance and compliance with the terms of this
Agreement by the Master Servicer, does not (A) violate the Master
Servicer's organizational documents, (B) 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 or (C) violate any law, rule, regulation, order, judgment or
decree to which the Master Servicer or its property is subject, which, in
the case of either (B) or (C), is likely to materially and adversely
affect either the ability of the Master Servicer to perform its
obligations under this Agreement or its financial condition;
(iii) The Master Servicer has the full power and authority to enter
into and consummate all transactions to be performed by it contemplated by
this Agreement, has duly authorized the execution, delivery and
performance of this Agreement, and has duly executed and delivered this
Agreement;
(iv) This Agreement, assuming due authorization, execution and
delivery by the Trustee, the Special Servicer, the Paying Agent and the
Depositor, constitutes a valid, legal and binding obligation of the Master
Servicer, enforceable against the Master Servicer in accordance with the
terms hereof, subject to (A) applicable bankruptcy, insolvency,
reorganization, 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 Master Servicer is not in default with respect to any law,
any order or decree of any court, or any order, regulation or demand of
any federal, state, local or governmental agency, which default, in the
Master Servicer's reasonable judgment is likely to materially and
adversely affect the financial condition or operations of the Master
Servicer or its properties taken as a whole or its ability to perform its
duties and obligations hereunder;
(vi) No litigation is pending or, to the best of the Master
Servicer's knowledge, threatened against the Master Servicer which would
prohibit the Master Servicer from entering into this Agreement or, in the
Master Servicer's good faith and reasonable judgment, is likely to
materially and adversely affect either the ability of the Master Servicer
to perform its obligations under this Agreement or the financial condition
of the Master Servicer;
(vii) The Master Servicer has errors and omissions insurance
coverage which is in full force and effect and complies with the
requirements of Section 3.07 hereof;
(viii) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Master Servicer, or compliance by the Master Servicer
with, this Agreement or the consummation of the transactions of the Master
Servicer contemplated by this Agreement, except for any consent, approval,
authorization or order which has been obtained or can be obtained prior to
the actual performance by the Master Servicer of its obligations under
this Agreement, or which, if not obtained would not have a materially
adverse effect on the ability of the Master Servicer to perform its
obligations hereunder; and
(ix) The Master Servicer has full power and authority to enter into
and consummate all transactions to be performed by it contemplated by this
Agreement, has duly authorized the execution, delivery and performance of
this Agreement, and has duly executed and delivered this Agreement.
(b) The representations and warranties set forth in paragraph (a)
above shall survive the execution and delivery of the Agreement.
Section 3.25 Representations, Warranties and Covenants of the
Special Servicer. (a) The Special Servicer hereby represents, warrants and
covenants to the Trustee, for its own benefit and the benefit of the
Certificateholders, the Depositor, the Paying Agent and the Master Servicer, as
of the Closing Date, that:
(i) The Special Servicer is a corporation, duly organized, validly
existing and in good standing under the laws of the State of Virginia, and
the Special Servicer is in compliance with the laws of each State in which
any Mortgaged Property is located to the extent necessary to perform its
obligations under this Agreement;
(ii) The execution and delivery of this Agreement by the Special
Servicer, and the performance and compliance with the terms of this
Agreement by the Special Servicer, does not (A) violate the Special
Servicer's articles of incorporation and by-laws or (B) constitute a
default (or an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any material
agreement or other material instrument to which it is a party or which is
applicable to it or any of its assets, or (C) violate any law, rule,
regulation, order, judgment or decree to which the Special Servicer or its
property is subject, which, in the case of either (B) or (C), is likely to
materially and adversely affect either the ability of the Special Servicer
to perform its obligations under this Agreement or its financial
condition;
(iii) The Special Servicer has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement, has
duly authorized the execution, delivery and performance of this Agreement,
and has duly executed and delivered this Agreement;
(iv) This Agreement, assuming due authorization, execution and
delivery by the Trustee, the Master Servicer, the Paying Agent and the
Depositor, constitutes a valid, legal and binding obligation of the
Special Servicer, enforceable against the Special Servicer in accordance
with the terms hereof, subject to applicable bankruptcy, insolvency,
reorganization, receivership, moratorium and other laws affecting the
enforcement of creditors' rights generally, and general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law;
(v) The Special Servicer is not in default with respect to any law,
any order or decree of any court, or any order, regulation or demand of
any federal, state, municipal or governmental agency, which default, in
the Special Servicer's reasonable judgment is likely to materially and
adversely affect the financial condition or operations of the Special
Servicer or its properties taken as a whole or its ability to perform its
duties and obligations hereunder;
(vi) No litigation is pending or, to the best of the Special
Servicer's knowledge, threatened against the Special Servicer which would
prohibit the Special Servicer from entering into this Agreement or, in the
Special Servicer's good faith and reasonable judgment could reasonably be
expected to materially and adversely affect the ability of the Special
Servicer to perform its obligations under this Agreement;
(vii) Each officer, manager or employee of the Special Servicer that
has or, following the occurrence of a Servicing Transfer Event, would have
responsibilities concerning the servicing and administration of Mortgage
Loans is covered by errors and omissions insurance in the amounts and with
the coverage required by Section 3.07(c);
(viii) No consent, approval, authorization or order of any court or
governmental agency or body under federal or state law is required for the
execution, delivery and performance by the Special Servicer, or compliance
by the Special Servicer with, this Agreement or the consummation of the
transactions of the Special Servicer contemplated by this Agreement,
except for any consent, approval, authorization or order which has been
obtained or can be obtained prior to the actual performance by the Special
Servicer of its obligations under this Agreement, and which, if not
obtained would not have a materially adverse effect on the ability of the
Special Servicer to perform its obligations hereunder; and
(ix) The Special Servicer has full power and authority to enter into
and consummate all transactions to be performed by it contemplated by this
Agreement, has duly authorized the execution, delivery and performance by
it of this Agreement, and has duly executed and delivered this Agreement.
(b) The representations and warranties set forth in paragraph (a)
above shall survive the execution and delivery of the Agreement.
Section 3.26 Interest Reserve Account. (a) On each P&I Advance Date
relating to any Interest Accrual Period ending in any January and on any P&I
Advance Date which occurs in a year which is not a leap year relating to any
Interest Accrual Period ending in any December, the Paying Agent, in respect of
the Actual/360 Mortgage Loans, shall deposit into the Interest Reserve Account,
an amount equal to one day's interest on the Stated Principal Balance of the
Interest Reserve Loans as of the Due Date occurring in the month preceding the
month in which such P&I Advance Date occurs at the related Net Mortgage Rate, to
the extent a full Monthly Payment or P&I Advance is made in respect thereof (all
amounts so deposited in any consecutive February and January, "Withheld
Amounts").
(b) On each P&I Advance Date occurring in March, the Paying Agent
shall withdraw, from the Interest Reserve Account an amount equal to the
Withheld Amounts from the preceding January (if applicable) and February, if
any, and deposit such amount into the Lower-Tier Distribution Account.
Section 3.27 Excess Interest Distribution Account. Prior to the
applicable Distribution Date, the Master Servicer is required to remit to the
Paying Agent for deposit into the Excess Interest Distribution Account an amount
equal to the Excess Interest received during the related Due Period.
Section 3.28 Directing Certificateholder Contact with Master
Servicer. No less often than on a monthly basis, each of the Master Servicer and
the Special Servicer shall, without charge, make a knowledgeable Servicing
Officer via telephone available to verbally answer questions from the Directing
Certificateholder regarding the performance and servicing of the Mortgage Loans
and/or REO Properties for which the Master Servicer or the Special Servicer, as
the case may be, is responsible.
Section 3.29 Controlling Class Certificateholders and Directing
Certificateholder; Certain Rights and Powers of Directing Certificateholder. (a)
Each Controlling Class Certificateholder is hereby deemed to have agreed by
virtue of its purchase of a Certificate to provide its name and address to the
Paying Agent and to notify the Master Servicer, the Paying Agent and Special
Servicer of the transfer of any Certificate of a Controlling Class, the
selection of a Directing Certificateholder or the resignation or removal
thereof. The Directing Certificateholder is hereby deemed to have agreed by
virtue of its purchase of a Certificate to notify the Master Servicer, Special
Servicer and Paying Agent when such Certificateholder is appointed Directing
Certificateholder and when it is removed or resigns. To the extent there is only
one Controlling Class Certificateholder and it is also the Special Servicer, it
shall be the Directing Certificateholder.
(b) A "Controlling Class" as of any time of determination shall be
the Class outstanding with the most subordinate Class of Regular Certificates
having at least 25% of its initial Certificate Balance.
(c) Once a Directing Certificateholder has been selected, each of
the Master Servicer, the Special Servicer, the Depositor, the Trustee, the
Paying Agent and each other Certificateholder (or Certificate Owner, if
applicable) shall be entitled to rely on such selection unless a majority of the
Controlling Class Certificateholders, by Certificate Balance, or such Directing
Certificateholder shall have notified the Master Servicer, Special Servicer, the
Trustee, the Paying Agent and each other Controlling Class Certificateholder, in
writing, of the resignation of such Directing Certificateholder or the selection
of a new Directing Certificateholder. Upon the resignation of a Directing
Certificateholder, the Paying Agent shall request the Controlling Class
Certificateholders to select a new Directing Certificateholder.
(d) Until it receives notice to the contrary each of the Master
Servicer and the Trustee shall be entitled to rely on the most recent
notification with respect to the identity of the Controlling Class
Certificateholder, and the Directing Certificateholder.
(e) Upon request, the Paying Agent shall deliver to the Trustee, the
Special Servicer and the Master Servicer a list of each Controlling Class
Certificateholder and the Directing Certificateholder, including names and
addresses. In addition to the foregoing, within two (2) Business Days of
receiving notice of the selection of a new Directing Certificateholder or the
existence of a new Controlling Class Certificateholder, the Paying Agent shall
notify the Trustee, the Master Servicer and the Special Servicer.
Notwithstanding the foregoing, JER Investors Trust Inc. shall be the initial
Directing Certificateholder and shall remain so until a successor is appointed
pursuant to the terms of this Agreement.
Until it receives notice to the contrary, each of the Master
Servicer, the Special Servicer, the Paying Agent and the Trustee shall be
entitled to rely on the preceding sentence with respect to the identity of the
Directing Certificateholder.
(f) If at any time a Book-Entry Certificate belongs to a Controlling
Class, the Paying Agent shall notify the related Certificateholders (through the
Depository) of such event.
(g) Each Certificateholder acknowledges and agrees, by its
acceptance of its Certificates, that: (i) the Directing Certificateholder may
have special relationships and interests that conflict with those of Holders of
one or more Classes of Certificates; (ii) the Directing Certificateholder may
act solely in the interests of the Holders of the Controlling Class; (iii) the
Directing Certificateholder does not have any liability or duties to the Holders
of any Class of Certificates other than the Controlling Class; (iv) the
Directing Certificateholder 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 Directing Certificateholder shall have no
liability whatsoever for having so acted, and no Certificateholder may take any
action whatsoever against the Directing Certificateholder or any director,
officer, employee, agent or principal thereof for having so acted.
(h) Until it receives notice to the contrary, each of the Master
Servicer, the Special Servicer, the Paying Agent and the Trustee shall be
entitled to rely on the most recent notification with respect to the identity of
the Controlling Class Certificateholder and the Directing Certificateholder.
(i) All requirements of the Master Servicer and the Special Servicer
to provide notices, reports, statements or other information (including the
access to information on a website) provided to the Directing Certificateholder
contained in this Agreement shall also apply to each Companion Holder with
respect to information relating to the related AB Mortgage Loan. If a 000 Xxxx
Xxxxxx Xxxxx Control Appraisal Event has occurred and is continuing, then: (i)
the 000 Xxxx Xxxxxx Xxxxx X Note Representative shall not be authorized to
exercise any of its approval and consent rights in this Agreement with respect
to the 000 Xxxx Xxxxxx Xxxxx Whole Loan; and (ii) the Directing
Certificateholder shall exercise such rights; provided, however, that the 000
Xxxx Xxxxxx Xxxxx X Note Representative shall nevertheless retain the right to
receive distributions, notices and reports under this Agreement.
Section 3.30 Intercreditor Agreements. Each of the Master Servicer
and Special Servicer acknowledges and agrees that each Loan Pair being serviced
under this Agreement is subject to the terms and provisions of the related
Intercreditor Agreement and each agrees to service each such Loan Pair in
accordance with the related Intercreditor Agreement and this Agreement,
including, without limitation, effecting distributions and allocating
reimbursement of expenses in accordance with the related Intercreditor Agreement
and, in the event of any conflict, the related Intercreditor Agreement shall
govern. Notwithstanding anything contrary in this Agreement, each of the Master
Servicer and Special Servicer agrees not to take any action with respect to a
Loan Pair or the related Mortgaged Property without the prior consent of the
related Companion Holder to the extent that the related Intercreditor Agreement
provides that such Companion Holder is required to consent to such action. Each
of the Master Servicer and Special Servicer acknowledges and agrees that each
Companion Holder has the right to purchase the related AB Mortgage Loan in each
case pursuant to the terms and conditions of the related Intercreditor
Agreement.
Neither the Master Servicer nor the Special Servicer shall have any
liability for any cost, claim or damage that arises from any entitlement in
favor of a Companion Holder under the related Intercreditor Agreement or
conflict between the terms of this Agreement and the terms of such Intercreditor
Agreement. Notwithstanding any provision of any Intercreditor Agreement that may
otherwise require the Master Servicer or the Special Servicer to abide by any
instruction or direction of a Companion Holder, neither the Master Servicer nor
the Special Servicer shall be required to comply with any instruction or
direction the compliance with which requires an Advance that constitutes or
would constitute a Nonrecoverable Advance. In no event shall any expense arising
from compliance with an Intercreditor Agreement constitute an expense to be
borne by the Master Servicer or Special Servicer for its own account without
reimbursement. In no event shall the Master Servicer or the Special Servicer be
required to consult with or obtain the consent of any Companion Holder unless
such Companion Holder has delivered notice of its identity and contact
information to each of the parties to this Agreement (upon which notice each of
the parties to this Agreement shall be conclusively entitled to rely). As of the
Closing Date, the contact information for the Companion Holders is set forth in
Section 11.05 under this Agreement.
No direction or disapproval of the Companion Holders shall (a)
require or cause the Master Servicer or Special Servicer to violate the terms of
a Mortgage Loan, applicable law or any provision of this Agreement, including
the Master Servicer's or Special Servicer's obligation to act in accordance with
the Servicing Standards and to maintain the REMIC status of each of the
Lower-Tier REMIC and the Upper-Tier REMIC or (b) result in the imposition of a
"prohibited transaction" or "prohibited contribution" tax under the REMIC
Provisions, or (c) materially expand the scope of the Special Servicer's,
Trustee's or the Master Servicer's responsibilities under this Agreement.
Section 3.31 Companion Paying Agent. (a) The Paying Agent shall be
the Companion Paying Agent hereunder. The Companion Paying Agent undertakes to
perform such duties and only such duties as are specifically set forth herein.
(b) No provision of this Agreement shall be construed to relieve the
Companion Paying Agent from liability for its negligent failure to act, bad
faith or its own willful misfeasance; provided, however, that the duties and
obligations of the Companion Paying Agent shall be determined solely by the
express provisions of this Agreement. The Companion Paying Agent shall not be
liable except for the performance of such duties and obligations, no implied
covenants or obligations shall be read into this Agreement against the Companion
Paying Agent. In the absence of bad faith on the part of the Companion Paying
Agent, the Companion Paying Agent may conclusively rely, as to the truth and
correctness of the statements or conclusions expressed therein, upon any
resolutions, certificates, statements, opinions, reports, documents, orders or
other instrument furnished to the Companion Paying Agent by any Person and which
on their face do not contradict the requirements of this Agreement.
(c) Upon the resignation or removal of the Paying Agent pursuant to
Article VIII of this Agreement, the Companion Paying Agent shall be deemed
simultaneously to resign or be removed.
(d) This Section shall survive the termination of this Agreement or
the resignation or removal of the Companion Paying Agent, as regards rights
accrued prior to such resignation or removal.
Section 3.32 Companion Register. The Companion Paying Agent shall
maintain a register (the "Companion Register") on which it will record the names
and address of, and wire transfer instructions for, the Companion Holders from
time to time, to the extent such information is provided in writing to it by
each Companion Holder. The initial Companion Holders, along with their
respective name, address, wiring instructions and tax identification number, are
listed on Exhibit S hereto. In the event a Companion Holder transfers a
Companion Loan without notice to the Companion Paying Agent, the Companion
Paying Agent shall have no liability for any misdirected payment in the
Companion Loan and shall have no obligation to recover and redirect such
payment.
The Companion Paying Agent shall promptly provide the name and
address of the Companion Holder to any party hereto or any successor Companion
Holder upon written request and any such Person may, without further
investigation, conclusively rely upon such information. The Companion Paying
Agent shall have no liability to any Person for the provision of any such name
and address.
[End of Article III]
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
Section 4.01 Distributions. (a) On each Distribution Date, to the
extent of the Available Distribution Amount for such Distribution Date, the
Paying Agent shall be deemed to transfer the Lower-Tier Regular Distribution
Amount from the Lower-Tier Distribution Account to the Upper-Tier Distribution
Account in the amounts and priorities set forth in Section 4.01(b) with respect
to each Class of Uncertificated Lower-Tier Interests, and immediately
thereafter, shall make distributions thereof from the Upper-Tier Distribution
Account in the following order of priority, satisfying in full, to the extent
required and possible, each priority before making any distribution with respect
to any succeeding priority:
(i) first, concurrently (A) to the Holders of the Class A-1
Certificates, the Class A-2 Certificates, the Class A-3 Certificates, the
Class A-4 Certificates and the Class A-5 Certificates, pro rata, (based
upon their respective entitlements to interest for such Distribution
Date), in respect of interest, from the Loan Group 1 Available
Distribution Amount and up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Classes of Certificates for such
Distribution Date, (B) to the Holders of the Class A-1A Certificates, in
respect of interest, from the Loan Group 2 Available Distribution Amount
and up to an amount equal to the aggregate Interest Distribution Amount in
respect of such Class of Certificates for such Distribution Date and (C)
to the Holders of the Class X-1 and Class X-2 Certificates, in respect of
interest, up to an amount equal to the Interest Distribution Amount
payable in respect of such Classes of Certificates for such Distribution
Date; provided, however, that if the Loan Group 1 Available Distribution
Amount and/or the Loan Group 2 Available Distribution Amount is
insufficient to pay in full the Interest Distribution Amount provided
above, payable in respect of any Class A or Class X Certificates on such
Distribution Date, then the entire Available Distribution Amount shall be
applied to make distributions of interest to the Holders of the respective
Classes of the Class A and Class X Certificates, up to an amount equal to,
and pro rata as among such Classes in accordance with, the Interest
Distribution Amount in respect of each such Class of Certificates for such
Distribution Date;
(ii) second, to the Holders of the Class A-1 Certificates, the Class
A-2 Certificates, the Class A-3 Certificates, the Class A-4 Certificates,
the Class A-5 Certificates and the Class A-1A Certificates in reduction of
the Certificate Balances thereof: (A)(1) to the Holders of the Class A-1
Certificates, in an amount equal to the Loan Group 1 Principal
Distribution Amount and, after the outstanding Certificate Balance of the
Class A-1A Certificates has been reduced to zero, the Loan Group 2
Principal Distribution Amount remaining after payments to the Holders of
the Class A-1A Certificates have been made on such Distribution Date,
until the outstanding Certificate Balance of the Class A-1 Certificates
has been reduced to zero, (2) to the Holders of the Class A-2
Certificates, in an amount equal to the Loan Group 1 Principal
Distribution Amount remaining after distribution to the Class A-1
Certificates and, after the outstanding Certificate Balance of the Class
A-1A Certificates has been reduced to zero, the Loan Group 2 Principal
Distribution Amount remaining after payments to the Holders of the Class
A-1A and Class A-1 Certificates have been made on such Distribution Date,
until the outstanding Certificate Balance of the Class A-2 Certificates
has been reduced to zero, (3) to the Holders of the Class A-3
Certificates, in an amount equal to the Loan Group 1 Principal
Distribution Amount remaining after distribution to the Class A-1
Certificates and the Class A-2 Certificates and, after the outstanding
Certificate Balance of the Class A-1A Certificates has been reduced to
zero, the Loan Group 2 Principal Distribution Amount remaining after
payments to the Holders of the Class A-1A, Class A-1 and Class A-2
Certificates have been made on such Distribution Date, until the
outstanding Certificate Balance of the Class A-3 Certificates has been
reduced to zero, (4) to the Holders of the Class A-4 Certificates, in an
amount equal to the Loan Group 1 Principal Distribution Amount remaining
after distribution to the Class A-1 Certificates, the Class A-2
Certificates and the Class A-3 Certificates and, after the outstanding
Certificate Balance of the Class A-1A Certificates has been reduced to
zero, the Loan Group 2 Principal Distribution Amount remaining after
payments to the Holders of the Class A-1A, Class A-1, Class A-2 and Class
A-3 Certificates have been made on such Distribution Date, until the
outstanding Certificate Balance of the Class A-4 Certificates has been
reduced to zero, and then (5) to the Holders of the Class A-5
Certificates, in an amount equal to the Loan Group 1 Principal
Distribution Amount remaining after distribution to the Class A-1
Certificates, the Class A-2 Certificates, the Class A-3 Certificates and
the Class A-4 Certificates and, after the outstanding Certificate Balance
of the Class A-1A Certificates has been reduced to zero, the Loan Group 2
Principal Distribution Amount remaining after payments to the Holders of
the Class A-1A, Class A-1, Class A-2, Class A-3 and Class A-4 Certificates
have been made on such Distribution Date, until the outstanding
Certificate Balance of the Class A-5 Certificates has been reduced to
zero; and (B) to the Holders of the Class A-1A Certificates, in an amount
up to the Loan Group 2 Principal Distribution Amount and, after the
Certificate Balance of the Class A-5 Certificates has been reduced to
zero, the Loan Group 1 Principal Distribution Amount remaining after
payments to the Holders of the Class A-1, Class A-2, Class A-3, Class A-4
and Class A-5 Certificates have been made on such Distribution Date, until
the Certificate Balance of the Class A-1A Certificates has been reduced to
zero;
(iii) third, to the Holders of the Class A-1, Class A-2, , Class
A-3, Class A-4, Class A-5 and Class A-1A Certificates, pro rata (based
upon the aggregate unreimbursed Collateral Support Deficit allocated to
each such Class), until all amounts of Collateral Support Deficit
previously allocated to such Classes, but not previously reimbursed, have
been reimbursed in full;
(iv) fourth, to the Holders of the Class A-J Certificates, in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(v) fifth, after the Certificate Balances of the Class A
Certificates have been reduced to zero, to the Holders of the Class A-J
Certificates, in reduction of the Certificate Balance thereof, an amount
equal to the Principal Distribution Amount (or the portion thereof
remaining after any distributions in respect of the Class A Certificates
on such Distribution Date), until the outstanding Certificate Balance of
the Class A-J Certificates has been reduced to zero;
(vi) sixth, to the Holders of the Class A-J Certificates, until all
amounts of Collateral Support Deficit previously allocated to the Class
A-J Certificates, but not previously reimbursed, have been reimbursed in
full;
(vii) seventh, to the Holders of the Class B Certificates, in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(viii) eighth, after the Certificate Balances of the Class A
Certificates have been reduced to zero, to the Holders of the Class B
Certificates, in reduction of the Certificate Balance thereof, an amount
equal to the Principal Distribution Amount (or the portion thereof
remaining after any distributions in respect of the Class A Certificates
on such Distribution Date), until the outstanding Certificate Balance of
the Class B Certificates has been reduced to zero;
(ix) ninth, to the Holders of the Class B Certificates, until all
amounts of Collateral Support Deficit previously allocated to the Class B
Certificates, but not previously reimbursed, have been reimbursed in full;
(x) tenth, to the Holders of the Class C Certificates, in respect of
interest, up to an amount equal to the aggregate Interest Distribution
Amount in respect of such Class of Certificates for such Distribution
Date;
(xi) eleventh, after the Certificate Balances of the Class A and
Class B Certificates have been reduced to zero, to the Holders of the
Class C Certificates, in reduction of the Certificate Balance thereof, an
amount equal to the Principal Distribution Amount (or the portion thereof
remaining after any distributions in respect of the Class A and Class B
Certificates on such Distribution Date), until the outstanding Certificate
Balance of the Class C Certificates has been reduced to zero;
(xii) twelfth, to the Holders of the Class C Certificates, until all
amounts of Collateral Support Deficit previously allocated to the Class C
Certificates, but not previously reimbursed, have been reimbursed in full;
(xiii) thirteenth, to the Holders of the Class D Certificates, in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xiv) fourteenth, after the Certificate Balances of the Class A,
Class B and Class C Certificates have been reduced to zero, to the Holders
of the Class D Certificates, in reduction of the Certificate Balance
thereof, an amount equal to the Principal Distribution Amount (or the
portion thereof remaining after any distributions in respect of the Class
A, Class B and Class C Certificates on such Distribution Date), until the
outstanding Certificate Balance of the Class D Certificates has been
reduced to zero;
(xv) fifteenth, to the Holders of the Class D Certificates, until
all amounts of Collateral Support Deficit previously allocated to the
Class D Certificates, but not previously reimbursed, have been reimbursed
in full;
(xvi) sixteenth, to the Holders of the Class E Certificates, in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xvii) seventeenth, after the Certificate Balances of the Class A,
Class B, Class C and Class D Certificates have been reduced to zero, to
the Holders of the Class E Certificates, in reduction of the Certificate
Balance thereof, an amount equal to the Principal Distribution Amount (or
the portion thereof remaining after any distributions in respect of the
Class A, Class B, Class C and Class D Certificates on such Distribution
Date), until the outstanding Certificate Balance of the Class E
Certificates has been reduced to zero;
(xviii) eighteenth, to the Holders of the Class E Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class E Certificates, but not previously reimbursed, have been
reimbursed in full;
(xix) nineteenth, to the Holders of the Class F Certificates, in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xx) twentieth, after the Certificate Balances of the Class A, Class
B, Class C, Class D and Class E Certificates have been reduced to zero, to
the Holders of the Class F Certificates, in reduction of the Certificate
Balance thereof, an amount equal to the Principal Distribution Amount (or
the portion thereof remaining after any distributions in respect of the
Class A, Class B, Class C, Class D and Class E Certificates on such
Distribution Date), until the outstanding Certificate Balance of the Class
F Certificates has been reduced to zero;
(xxi) twenty-first, to the Holders of the Class F Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class F Certificates, but not previously reimbursed, have been
reimbursed in full;
(xxii) twenty-second, to the Holders of the Class G Certificates in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xxiii) twenty-third, after the Certificate Balances of the Class A,
Class B, Class C, Class D, Class E and Class F Certificates have been
reduced to zero, to the Holders of the Class G Certificates, in reduction
of the Certificate Balance thereof, an amount equal to the Principal
Distribution Amount (or the portion thereof remaining after any
distributions in respect of the Class A, Class B, Class C, Class D, Class
E and Class F Certificates on such Distribution Date), until the
outstanding Certificate Balance of the Class G Certificates has been
reduced to zero;
(xxiv) twenty-fourth, to the Holders of the Class G Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class G Certificates, but not previously reimbursed, have been
reimbursed in full;
(xxv) twenty-fifth, to the Holders of the Class H Certificates in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xxvi) twenty-sixth, after the Certificate Balances of the Class A,
Class B, Class C, Class D, Class E, Class F and Class G Certificates have
been reduced to zero, to the Holders of the Class H Certificates, in
reduction of the Certificate Balance thereof, an amount equal to the
Principal Distribution Amount (or the portion thereof remaining after any
distributions in respect of the Class A, Class B, Class C, Class D, Class
E, Class F and Class G Certificates on such Distribution Date), until the
outstanding Certificate Balance of the Class H Certificates has been
reduced to zero;
(xxvii) twenty-seventh, to the Holders of the Class H Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class H Certificates, but not previously reimbursed, have been
reimbursed in full;
(xxviii) twenty-eighth, to the Holders of the Class J Certificates
in respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xxix) twenty-ninth, after the Certificate Balances of the Class A,
Class B, Class C, Class D, Class E, Class F, Class G and Class H
Certificates have been reduced to zero, to the Holders of the Class J
Certificates, in reduction of the Certificate Balance thereof, an amount
equal to the Principal Distribution Amount (or the portion thereof
remaining after any distributions in respect of the Class A, Class B,
Class C, Class D, Class E, Class F, Class G and Class H Certificates on
such Distribution Date), until the outstanding Certificate Balance of the
Class J Certificates has been reduced to zero;
(xxx) thirtieth, to the Holders of the Class J Certificates, until
all amounts of Collateral Support Deficit previously allocated to the
Class J Certificates, but not previously reimbursed, have been reimbursed
in full;
(xxxi) thirty-first, to the Holders of the Class K Certificates in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xxxii) thirty-second, after the Certificate Balances of the Class
A, Class B, Class C, Class D, Class E, Class F, Class G, Class H and Class
J Certificates have been reduced to zero, to the Holders of the Class K
Certificates, in reduction of the Certificate Balance thereof, an amount
equal to the Principal Distribution Amount (or the portion thereof
remaining after any distributions in respect of the Class A, Class B,
Class C, Class D, Class E, Class F, Class G, Class H and Class J
Certificates on such Distribution Date), until the outstanding Certificate
Balance of the Class K Certificates has been reduced to zero;
(xxxiii) thirty-third, to the Holders of the Class K Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class K Certificates, but not previously reimbursed, have been
reimbursed in full;
(xxxiv) thirty-fourth, to the Holders of the Class L Certificates in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xxxv) thirty-fifth, after the Certificate Balances of the Class A,
Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J and
Class K Certificates have been reduced to zero, to the Holders of the
Class L Certificates, in reduction of the Certificate Balance thereof, an
amount equal to the Principal Distribution Amount (or the portion thereof
remaining after any distributions in respect of the Class A, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J and Class K
Certificates on such Distribution Date), until the outstanding Certificate
Balance of the Class L Certificates has been reduced to zero;
(xxxvi) thirty-sixth, to the Holders of the Class L Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class L Certificates, but not previously reimbursed, have been
reimbursed in full;
(xxxvii) thirty-seventh, to the Holders of the Class M Certificates
in respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xxxviii) thirty-eighth, after the Certificate Balances of the Class
A, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J,
Class K and Class L Certificates have been reduced to zero, to the Holders
of the Class M Certificates, in reduction of the Certificate Balance
thereof, an amount equal to the Principal Distribution Amount (or the
portion thereof remaining after any distributions in respect of the Class
A, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J,
Class K and Class L Certificates on such Distribution Date), until the
outstanding Certificate Balance of the Class M Certificates has been
reduced to zero;
(xxxix) thirty-ninth, to the Holders of the Class M Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class M Certificates, but not previously reimbursed, have been
reimbursed in full;
(xl) fortieth, to the Holders of the Class N Certificates in respect
of interest, up to an amount equal to the aggregate Interest Distribution
Amount in respect of such Class of Certificates for such Distribution
Date;
(xli) forty-first, after the Certificate Balances of the Class A,
Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J,
Class K, Class L and Class M Certificates have been reduced to zero, to
the Holders of the Class N Certificates, in reduction of the Certificate
Balance thereof, an amount equal to the Principal Distribution Amount (or
the portion thereof remaining after any distributions in respect of the
Class A, Class B, Class C, Class D, Class E, Class F, Class G, Class H,
Class J, Class K, Class L and Class M Certificates on such Distribution
Date), until the outstanding Certificate Balance of the Class N
Certificates has been reduced to zero;
(xlii) forty-second, to the Holders of the Class N Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class N Certificates, but not previously reimbursed, have been
reimbursed in full;
(xliii) forty-third, to the Holders of the Class P Certificates in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xliv) forty-fourth, after the Certificate Balances of the Class A,
Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J,
Class K, Class L, Class M and Class N Certificates have been reduced to
zero, to the Holders of the Class P Certificates, in reduction of the
Certificate Balance thereof, an amount equal to the Principal Distribution
Amount (or the portion thereof remaining after any distributions in
respect of the Class A, Class B, Class C, Class D, Class E, Class F, Class
G, Class H, Class J, Class K, Class L, Class M and Class N Certificates on
such Distribution Date), until the outstanding Certificate Balance of the
Class P Certificates has been reduced to zero;
(xlv) forty-fifth, to the Holders of the Class P Certificates, until
all amounts of Collateral Support Deficit previously allocated to the
Class P Certificates, but not previously reimbursed, have been reimbursed
in full;
(xlvi) forty-sixth, to the Holders of the Class Q Certificates in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xlvii) forty-seventh, after the Certificate Balances of the Class
A, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J,
Class K, Class L, Class M, Class N and Class P Certificates have been
reduced to zero, to the Holders of the Class Q Certificates, in reduction
of the Certificate Balance thereof, an amount equal to the Principal
Distribution Amount (or the portion thereof remaining after any
distributions in respect of the Class A, Class B, Class C, Class D, Class
E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N
and Class P Certificates on such Distribution Date), until the outstanding
Certificate Balance of the Class Q Certificates has been reduced to zero;
(xlviii) forty-eighth, to the Holders of the Class Q Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class Q Certificates, but not previously reimbursed, have been
reimbursed in full;
(xlix) forty-ninth, to the Holders of the Class NR Certificates in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(l) fiftieth, after the Certificate Balances of the Class A, 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 P and Class Q Certificates have been
reduced to zero, to the Holders of the Class NR Certificates, in reduction
of the Certificate Balance thereof, an amount equal to the Principal
Distribution Amount (or the portion thereof remaining after any
distributions in respect of the Class A, 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 P and Class Q Certificates on such Distribution Date), until the
outstanding Certificate Balance of the Class NR Certificates has been
reduced to zero;
(li) fifty-first, to the Holders of the Class NR Certificates, until
all amounts of Collateral Support Deficit previously allocated to the
Class NR Certificates, but not previously reimbursed, have been reimbursed
in full; and
(lii) fifty-second, to the Holders of the Class R Certificates, the
amount, if any, of the Available Distribution Amount remaining in the
Upper-Tier Distribution Account with respect to such Distribution Date.
If, in connection with any Distribution Date, the Paying Agent has
reported the amount of an anticipated distribution to DTC based on the receipt
of payments as of the Determination Date and additional Monthly Payments,
balloon payments or unscheduled principal payments are subsequently received by
the Master Servicer and required to be part of the Available Distribution Amount
for such Distribution Date, the Master Servicer shall promptly notify the Paying
Agent and the Paying Agent will use commercially reasonable efforts to cause DTC
to make the revised distribution on a timely basis on such Distribution Date.
None of the Master Servicer, the Special Servicer or the Paying Agent shall be
liable or held responsible for any resulting delay in the making of such
distribution to Certificateholders solely on the basis of the actions described
in the preceding sentence.
(b) On each Distribution Date, each Uncertificated Lower-Tier
Interest shall be deemed to receive distributions in respect of principal or
reimbursement of Collateral Support Deficit in an amount equal to the amount of
principal or reimbursement of Collateral Support Deficit actually distributable
to its respective Related Certificates as provided in Sections 4.01(a) and
4.01(c) and (d) (in the case of (i) the Class A-1 Certificates, first to the
Class LA-1-1 Uncertificated Interest, second, to the Class LA-1-2 Uncertificated
Interest, third, to the Class LA-1-3 Uncertificated Interest, and fourth, to the
Class LA-1-4 Uncertificated Interest, in each case, until reduced to zero, (ii)
the Class A-1A Certificates, first to the Class LA-1A-1 Uncertificated Interest,
second, to the Class LA-1A-2 Uncertificated Interest, third, to the Class
LA-1A-3 Uncertificated Interest, fourth, to the Class LA-1A-4 Uncertificated
Interest, fifth, to the Class LA-1A-5 Uncertificated Interest, sixth, to the
Class LA-1A-6 Uncertificated Interest, seventh, to the Class LA-1A-7
Uncertificated Interest, eighth, to the Class LA-1A-8, ninth, to the Class
LA-1A-9 Uncertificated Interest, tenth, to the Class LA-1A-10 Uncertificated
Interest, eleventh, to the Class LA-1A-11 Uncertificated Interest, twelfth, to
the Class LA-1A-12 Uncertificated Interest, thirteenth, to the Class LA-1A-13
Uncertificated Interest, fourteenth, to the Class LA-1A-14 Uncertificated
Interest, and fifteenth, to the Class LA-1A-15 Uncertificated Interest, in each
case, until reduced to zero, (iii) the Class A-2 Certificates, first to the
Class LA-2-1 Uncertificated Interest, and second to the Class LA-2-2
Uncertificated Interest, in each case, until reduced to zero, (iv) the Class A-3
Certificates, first to the Class LA-3-1 Uncertificated Interest, second to the
Class LA-3-2 Uncertificated Interest, third to the Class LA-3-3 Uncertificated
Interest, fourth to the Class LA-3-4 Uncertificated Interest, fifth to the Class
LA-3-5 Uncertificated Interest, and sixth to the Class LA-3-6 Uncertificated
Interest, in each case, until reduced to zero, (v) the Class A-4 Certificates,
first to the Class LA-4-1 Uncertificated Interest, second to the Class LA-4-2
Uncertificated Interest, third to the Class LA-4-3 Uncertificated Interest, and
fourth to the Class LA-4-4 Uncertificated Interest, in each case, until reduced
to zero, (vi) the Class A-5 Certificates, first to the Class LA-5-1
Uncertificated Interest, second to the Class LA-5-2 Uncertificated Interest, and
third to the Class LA-5-3 Uncertificated Interest, in each case, until reduced
to zero, (vii) the Class F Certificates, first to the Class LF-1 Uncertificated
Interest and second to the Class LF-2 Uncertificated Interest, in each case,
until reduced to zero, (viii) the Class G Certificates, first to the Class LG-1
Uncertificated Interest, second to the Class LG-2 Uncertificated Interest, third
to the Class LG-3 Uncertificated Interest, and fourth to the Class LG-4
Uncertificated Interest, in each case, until reduced to zero, (ix) the Class H
Certificates, first to the Class LH-1 Uncertificated Interest and second to the
Class LH-2 Uncertificated Interest, in each case, until reduced to zero, (x) the
Class J Certificates, first to the Class LJ-1 Uncertificated Interest, second to
the Class LJ-2 Uncertificated Interest and third to the Class LJ-3
Uncertificated Interest, in each case, until reduced to zero), and (xi) the
Class L Certificates, first to the Class LL-1 Uncertificated Interest and second
to the Class LL-2 Uncertificated Interest, in each case, until reduced to zero).
On each Distribution Date, each Uncertificated Lower-Tier Interest shall be
deemed to receive distributions in respect of interest in an amount equal to the
Interest Distribution Amount in respect of its Related Certificates (in the case
of each of (i) the Class LA-1-1, Class LA-1-2, Class LA-1-3 and Class LA-1-4
Uncertificated Interests, (ii) the Class LA-1A-1, Class LA-1A-2, Class LA-1A-3,
Class LA-1A-4, Class LA-1A-5, Class LA-1A-6, Class LA-1A-7, Class LA-1A-8, Class
LA-1A-9, Class LA-1A-10, Class LA-1A-11, Class LA-1A-12, Class LA-1A-13, Class
LA-1A-14 and Class LA-1A-15 Uncertificated Interests (iii) the Class LA-2-1 and
Class LA-2-2 Uncertified Interests, (iv) the Class LA-3-1, Class LA-3-2, Class
LA-3-3, Class LA-3-4, Class LA-3-5 and Class LA-3-6 Uncertificated Interests,
(v) the Class LA-4-1, Class LA-4-2, Class LA-4-3 and Class LA-4-4 Uncertificated
Interests, (vi) the Class LA-5-1, Class LA-5-2 and Class LA-5-3 Uncertificated
Interests, (vii) the Class LF-1 and Class LF-2 Uncertificated Interests, (viii)
the Class LG-1, Class LG-2, Class LG-3 and Class LG-4 Uncertificated Interests,
(ix) the Class LH-1 and Class LH-2 Uncertificated Interests, (x) the Class LJ-1,
Class LJ-2 and Class LJ-3 Uncertificated Interests, and (xi) the Class LL-1 and
LL-2 Uncertificated Interests, pro rata, based on their respective Certificate
Balances) and its related Component of the Class X-1 Certificates and Class X-2
Certificates, in each case to the extent actually distributable thereon as
provided in Section 4.01(a). For this purpose, interest distributed on the Class
X-1 Certificates and Class X-2 Certificates shall be treated as having been paid
to their respective Components pro rata, based on the interest accrued with
respect thereto at its Class X-1 Strip Rate or Class X-2 Strip Rate. Such
amounts distributed to the Uncertificated Lower-Tier Interests in respect of
principal and interest with respect to any Distribution Date are referred to
herein collectively as the "Lower-Tier Regular Distribution Amount," and shall
be made by the Paying Agent by deeming such Lower-Tier Regular Distribution
Amount to be deposited in the Upper-Tier Distribution Account.
As of any date, the principal balance of each Uncertificated
Lower-Tier Interest equals the Certificate Balance of the Related Certificates
with respect thereto (in the case of the aggregate of (i) the Class LA-1-1,
Class LA-1-2, Class LA-1-3 and Class LA-1-4 Uncertificated Interests, the Class
A-1 Certificates, (ii) the Class LA-1A-1, Class LA-1A-2, Class LA-1A-3, Class
LA-1A-4, Class LA-1A-5, Class LA-1A-6, Class LA-1A-7 and Class LA-1A-8, Class
LA-1A-9, Class LA-1A-10, Class LA-1A-11, Class LA-1A-12, Class LA-1A-13, Class
LA-1A-14 and Class LA-1A-15 Uncertificated Interests, the Class A-1A
Certificates, (iii) the Class LA-2-1 and Class LA-2-2 Uncertified Interests, the
Class A-2 Certificates, (iv) the Class LA-3-1, Class LA-3-2, Class LA-3-3, Class
LA-3-4, Class LA-3-5 and Class LA-3-6 Uncertificated Interests, the Class A-3
Certificates, (v) the Class LA-4-1, Class LA-4-2, Class LA-4-3 and Class LA-4-4
Uncertificated Interests, the Class A-4 Certificates, (vi) the Class LA-5-1,
Class LA-5-2 and Class LA-5-3 Uncertificated Interests, the Class A-5
Certificates, (vii) the Class LF-1 and Class LF-2 Uncertificated Interests, the
Class F Certificates, (viii) the Class LG-1, Class LG-2, Class LG-3 and Class
LG-4 Uncertificated Interests, the Class G Certificates, (ix) the Class LH-1 and
Class LH-2 Uncertificated Interests, the Class H Certificates, (x) the Class
LJ-1, Class LJ-2 and Class LJ-3 Uncertificated Interests, the Class J
Certificates, and (xi) the Class LL-1 and LL-2 Uncertificated Interests, the
Class L Certificates), as adjusted for the allocation of Collateral Support
Deficits, as provided in Sections 4.04(b) and 4.04(c) and of Certificate
Deferred Interest as provided in Section 4.06. The initial principal balance of
each Uncertificated Lower-Tier Interest equals the respective Original
Lower-Tier Principal Amount. The pass-through rate with respect to each
Uncertificated Lower-Tier Interest will be the rate per annum set forth in the
Preliminary Statement hereto.
Any amount that remains in the Lower-Tier Distribution Account on
each Distribution Date after distribution of the Lower-Tier Regular Distribution
Amount and distribution of Yield Maintenance Charges pursuant to Section
4.01(d)(iii) shall be distributed to the Holders of the Class LR Certificates
(but only to the extent of the Available Distribution Amount for such
Distribution Date remaining in the Lower-Tier Distribution Account, if any).
(c) Notwithstanding the priorities set forth in clause (a) above, on
and after the Distribution Date on which the Certificate Balances of the
Subordinate Certificates have all been reduced to zero, the Principal
Distribution Amount will be distributed, pro rata, among the Class A-1, Class
A-1A, Class A-2, Class A-3, Class A-4 and Class A-5 Certificates without regard
to Loan Group, based on their respective Certificate Balances immediately prior
to such Distribution Date, in reduction of their respective Certificate
Balances, until the Certificate Balance of each such Class is reduced to zero,
and any amounts representing reimbursements of Collateral Support Deficits
previously allocated to such Classes, if available, will be distributed pro rata
based on their respective Certificate Balances, without regard to Loan Group.
(d) (i) On each Distribution Date, Yield Maintenance Charges
calculated by reference to a U.S. treasury rate collected during the related Due
Period will be distributed by the Paying Agent to the following Classes: to the
Class A-1 Certificates, Class A-2 Certificates, Class A-3 Certificates, Class
A-4 Certificates, Class A-5 Certificates, , Class A-1A Certificates, Class A-J
Certificates, Class B Certificates, Class C Certificates, Class D Certificates,
Class E Certificates, Class F Certificates, Class G Certificates, Class H
Certificates and Class J Certificates, with respect to the related Loan Group on
each Distribution Date, in an amount equal to the product of (a) a fraction
whose numerator is the amount distributed as principal to such Class on such
Distribution Date, and whose denominator is the total amount distributed as
principal to the Class A-1 Certificates, Class A-2 Certificates, Class A-3
Certificates, Class A-4 Certificates, Class A-5 Certificates, Class A-1A
Certificates, Class A-J Certificates, Class B Certificates, Class C
Certificates, Class D Certificates, Class E Certificates, Class F Certificates,
Class G Certificates, Class H Certificates, Class J Certificates, Class K
Certificates, Class L Certificates, Class M Certificates, Class N Certificates,
Class P Certificates, Class Q Certificates and Class NR Certificates on such
Distribution Date, (b) the Base Interest Fraction for the related principal
payment on such Class of Certificates, and (c) the aggregate amount of Yield
Maintenance Charges calculated by reference to a U.S. treasury rate collected on
such principal prepayments during the related Due Period. If more than one such
Class of Certificates is entitled to distributions of principal with respect to
the related Loan Group on any particular Distribution Date on which Yield
Maintenance Charges are distributable, the aggregate amount of such Yield
Maintenance Charges will be allocated among all such Classes up to, and on a pro
rata basis in accordance with, their respective entitlements thereto in
accordance with this Section 4.01(d)(i). Any Yield Maintenance Charge collected
during the related Due Period remaining after such distributions will be
distributed to the holders of the Class X-1 Certificates.
(ii) No Yield Maintenance Charge will be distributed to the holders
of the Class K, Class L, Class M, Class N, Class P, Class Q, Class NR,
Class S or Residual Certificates. After the Certificate Balances of the
Class A-1 Certificates, Class A-2 Certificates, Class A-3 Certificates,
Class A-4 Certificates, Class A-5 Certificates, Class A-1A Certificates,
Class A-J Certificates, Class B Certificates, Class C Certificates, Class
D Certificates, Class E Certificates, Class F Certificates, Class G
Certificates, Class H Certificates and Class J Certificates have been
reduced to zero, all Yield Maintenance Charges with respect to the
Mortgage Loans shall be distributed to the holders of the Class X-1
Certificates.
(iii) All distributions of Yield Maintenance Charges made in respect
of the respective Classes of Regular Certificates on each Distribution
Date pursuant to Section 4.01(d)(i) shall first be deemed to be
distributed from the Lower-Tier REMIC to the Upper-Tier REMIC in respect
of the Uncertificated Lower-Tier Interests, pro rata based upon the amount
of principal distributed in respect of each such Class of Uncertificated
Lower-Tier Interests for such Distribution Date pursuant to Section
4.01(b) above.
(e) On each Distribution Date, the Paying Agent shall withdraw
amounts from the Gain-on-Sale Reserve Account and shall distribute such amounts
to reimburse the Holders of the Regular Certificates (in order of alphabetical
Class designation) (first deeming such amounts to be distributed with respect to
the Related Uncertified Lower-Tier Interests) up to an amount equal to all
Collateral Support Deficits, if any, previously deemed allocated to them and
unreimbursed after application of the Available Distribution Amount for such
Distribution Date. Amounts paid from the Gain-on-Sale Reserve Account will not
reduce the Certificate Balances of the Classes receiving such distributions. Any
amounts remaining in the Gain-on-Sale Reserve Account after such distributions
shall be applied to offset future Collateral Support Deficits and related
Collateral Support Deficits and upon termination of the Trust Fund, any amounts
remaining in the Gain-on-Sale Reserve Account shall be distributed to the Class
LR Certificateholders.
(f) All distributions made with respect to each Class of
Certificates on each Distribution Date shall be allocated pro rata among the
outstanding Certificates in such Class based on their respective Percentage
Interests. Except as otherwise specifically provided in Sections 4.01(g),
4.01(h) and 9.01, all such distributions with respect to each Class on each
Distribution Date shall be made to the Certificateholders of the respective
Class of record at the close of business on the related Record Date and shall be
made by wire transfer of immediately available funds to the account of any such
Certificateholder at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Paying Agent with
wiring instructions no less than five Business Days prior to the related Record
Date (which wiring instructions may be in the form of a standing order
applicable to all subsequent Distribution Dates), or otherwise by check mailed
to such Certificateholder at its address in the Certificate Registrar. The final
distribution on each Certificate (determined without regard to any possible
future reimbursement of Collateral Support Deficit previously allocated 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.
Each distribution with respect to a Book-Entry Certificate shall be
paid to the Depository, as Holder thereof, and the Depository shall be
responsible for crediting the amount of such distribution to the accounts of its
Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution to
the Certificate Owners that it represents and to each indirect participating
brokerage firm (a "brokerage firm" or "indirect participating firm") for which
it acts as agent. Each brokerage firm shall be responsible for disbursing funds
to the Certificate Owners that it represents. None of the Trustee, the Paying
Agent, the Certificate Registrar, the Depositor, the Master Servicer, the
Special Servicer or the Underwriters shall have any responsibility therefor
except as otherwise provided by this Agreement or applicable law.
(g) Except as otherwise provided in Section 9.01, whenever the
Paying Agent expects that the final distribution with respect to any Class of
Certificates (determined without regard to any possible future reimbursement of
any amount of Collateral Support Deficit previously allocated to such Class of
Certificates) will be made on the next Distribution Date, the Paying Agent
shall, no later than the related P&I Advance Determination Date, mail to each
Holder on such date of such Class of Certificates a notice to the effect that:
(i) the Paying Agent 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
offices of the Certificate Registrar or such other location therein
specified; and
(ii) no interest shall accrue on such Certificates from and after
such Distribution Date.
Any funds not distributed to any Holder or Holders of Certificates of such Class
on such Distribution Date because of the failure of such Holder or Holders to
tender their Certificates shall, on such date, be set aside and held uninvested
in trust and credited to the account or accounts of the appropriate
non-tendering Holder or Holders. If any Certificates as to which notice has been
given pursuant to this Section 4.01(g) shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent 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 Paying Agent, 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 Certificateholder on any
amount held in trust hereunder by the Paying Agent as a result of such
Certificateholder's failure to surrender its Certificate(s) for final payment
thereof in accordance with this Section 4.01(g).
(h) Distributions in reimbursement of Collateral Support Deficit
previously allocated to the Regular Certificates shall be made in the amounts
and manner specified in Section 4.01(a) or Section 4.01(e), as applicable, to
the Holders of the respective Class otherwise entitled to distributions of
interest and principal on such Class on the relevant Distribution Date; provided
that all distributions in reimbursement of Collateral Support Deficit previously
allocated to a Class of Certificates which has since been retired shall be to
the prior Holders that surrendered the Certificates of such Class upon
retirement thereof and shall be made by check mailed to the address of each such
prior Holder last shown in the Certificate Register. Notice of any such
distribution to a prior Holder shall be made in accordance with Section 11.05 at
such last address. The amount of the distribution to each such prior Holder
shall be based upon the aggregate Percentage Interest evidenced by the
Certificates surrendered thereby. If the check mailed to any such prior Holder
is returned uncashed, then the amount thereof shall be set aside and held
uninvested in trust for the benefit of such prior Holder, and the Paying Agent
shall attempt to contact such prior Holder in the manner contemplated by Section
4.01(g) as if such Holder had failed to surrender its Certificates.
(i) On each Distribution Date, any Excess Interest received during
the related Due Period with respect to the Mortgage Loans shall be distributed
to the holders of the Class S Certificates from the Excess Interest Distribution
Account.
(j) On the date as specified in the related Intercreditor Agreement,
with respect to the Companion Loans, the Companion Paying Agent shall make
withdrawals and payments from the Companion Distribution Account for each
Companion Loan in the following order of priority:
(i) to pay the Trustee or the Paying Agent or any of their
directors, officers, employees and agents, as the case may be, any amounts
payable or reimbursable to any such Person pursuant to Section 8.05, to
the extent any such amounts relate solely to the Loan Pair related to such
Companion Loan, and such amounts are to be paid by the related Companion
Holder pursuant to the related Intercreditor Agreement;
(ii) to pay to the Master Servicer any amounts deposited by the
Master Servicer in the Companion Distribution Account not required to be
deposited therein;
(iii) to pay all amounts remaining in the Companion Distribution
Account related to such Companion Loan to the related Companion Holder, in
accordance with the related Intercreditor Agreement; and
(iv) to clear and terminate the Companion Distribution Account at
the termination of this Agreement pursuant to Section 9.01.
All distributions from the Companion Distribution Account required
hereunder shall be made by the Companion Paying Agent to the Companion Holder by
wire transfer in immediately available funds to the account of such Companion
Holder or an agent therefor appearing on the Companion Register on the related
Record Date (or, if no such account so appears or information relating thereto
is not provided at least five Business Days prior to the related Record Date, by
check sent by first class mail to the address of such Companion Holder or its
agent appearing on the Companion Register). Any such account shall be located at
a commercial bank in the United States.
Section 4.02 Statements to Certificateholders; CMSA Investor
Reporting Package (IRP)s. (a) On each Distribution Date, the Paying Agent shall
make available to the general public a statement (substantially in the form set
forth as Exhibit G hereto and based on the information supplied to the Paying
Agent in the related CMSA Investor Reporting Package (IRP) in accordance with
CMSA guidelines) as to the distributions made on such Distribution Date (each, a
"Statement to Certificateholders") which shall include:
(i) the amount of the distribution on such Distribution Date to the
Holders of each Class of Certificates in reduction of the Certificate
Balance thereof;
(ii) the amount of the distribution on such Distribution Date to the
Holders of each Class of Certificates allocable to Distributable
Certificate Interest;
(iii) the aggregate amount of Advances made, with respect to the
pool of Mortgage Loans and with respect to each Loan Group, during the
period from but not including the previous Distribution Date to and
including such Distribution Date and details of P&I Advances as of the P&I
Advance Date;
(iv) the aggregate amount of compensation paid to the Trustee and
the Paying Agent and servicing compensation paid to the Master Servicer
and the Special Servicer with respect to the Due Period for such
Determination Date together with detailed calculations of servicing
compensation paid to Master Servicer and Special Servicer;
(v) the aggregate Stated Principal Balance of the Mortgage Loans and
any REO Loans, with respect to the pool of Mortgage Loans and with respect
to each Loan Group, outstanding immediately before and immediately after
such Distribution Date;
(vi) the number of loans, their aggregate principal balance,
weighted average remaining term to maturity and weighted average Mortgage
Rate of the Mortgage Loans, with respect to the pool of Mortgage Loans and
with respect to each Loan Group, as of the end of the related Due Period
for such Distribution Date;
(vii) the number and aggregate principal balance of Mortgage Loans
(A) delinquent 30-59 days, (B) delinquent 60-89 days, (C) delinquent 90
days or more, (D) current but specially serviced or in foreclosure but not
REO Property and (E) for which the related Mortgagor is subject to
oversight by a bankruptcy court;
(viii) the value of any REO Property included in the Trust Fund as
of the end of the related Determination Date for such Distribution Date,
based on the most recent Appraisal or valuation;
(ix) the Available Distribution Amount for such Distribution Date;
(x) the Accrued Certificate Interest in respect of such Class of
Certificates for such Distribution Date, separately identifying any
Certificate Deferred Interest for such Distribution Date allocated to such
Class of Certificates;
(xi) the amount of the distribution on such Distribution Date to the
Holders of such Class of Certificates allocable to (A) Yield Maintenance
Charges and (B) Excess Interest;
(xii) the Pass-Through Rate for such Class of Certificates for such
Distribution Date and the next succeeding Distribution Date;
(xiii) the Scheduled Principal Distribution Amount and the
Unscheduled Principal Distribution Amount for such Distribution Date, with
respect to the pool of Mortgage Loans and with respect to each Loan Group;
(xiv) the Certificate Balance or Notional Amount, as the case may
be, of each Class of Certificates immediately before and immediately after
such Distribution Date, separately identifying any reduction therein as a
result of the allocation of any Collateral Support Deficit on such
Distribution Date and the aggregate amount of all reductions as a result
of allocations of Collateral Support Deficits to date;
(xv) the Certificate Factor for each Class of Regular Certificates
immediately following such Distribution Date;
(xvi) the amount of any Appraisal Reductions effected in connection
with such Distribution Date on a loan-by-loan basis and the total
Appraisal Reduction effected in connection with such Distribution Date,
together with a detailed worksheet showing the calculation of each
Appraisal Reduction on a current and cumulative basis;
(xvii) the number and related Stated Principal Balance of any
Mortgage Loans extended or modified since the previous Determination Date
(or in the case of the first Distribution Date, as of the Cut-off Date) on
a loan-by-loan basis;
(xviii) the amount of any remaining Class Unpaid Interest Shortfall
for such Class as of such Distribution Date;
(xix) a loan-by-loan listing of each Mortgage Loan which was the
subject of a Principal Prepayment since the previous Determination Date
(or in the case of the first Distribution Date, as of the Cut-off Date)
and the amount and the type of Principal Prepayment occurring;
(xx) a loan-by-loan listing of each Mortgage Loan which was defeased
since the previous Determination Date (or in the case of the first
Distribution Date, as of the Cut-off Date);
(xxi) all deposits into, withdrawals from, and the balance of the
Interest Reserve Account on the P&I Advance Date;
(xxii) in the case of the Residual Certificates, the amount of any
distributions on such Certificates pursuant to Sections 4.01(a), (b) and
(d);
(xxiii) the amount of the distribution on such Distribution Date to
the Holders of such Class of Certificates in reimbursement of previously
allocated Collateral Support Deficit;
(xxiv) the aggregate unpaid principal balance of the Mortgage Loans
outstanding as of the close of business on the related Determination Date,
with respect to the pool of Mortgage Loans and with respect to each Loan
Group;
(xxv) with respect to any Mortgage Loan as to which a Liquidation
Event occurred since the previous Determination Date (or in the case of
the first Distribution Date, as of the Cut-off Date) or prior to the
related Determination Date (other than a payment in full), (A) the loan
number thereof, (B) the aggregate of all Liquidation Proceeds and other
amounts received in connection with such Liquidation Event (separately
identifying the portion thereof allocable to distributions on the
Certificates), and (C) the amount of any Collateral Support Deficit in
connection with such Liquidation Event;
(xxvi) with respect to any REO Property included in the Trust Fund
as to which a Final Recovery Determination was made during the related Due
Period or prior to the Determination Date, (A) the loan number of the
related Mortgage Loan, (B) the aggregate of all Liquidation Proceeds and
other amounts received in connection with such Final Recovery
Determination (separately identifying the portion thereof allocable to
distributions on the Certificates), and (C) the amount of any Collateral
Support Deficit in respect of the related REO Loan in connection with such
Final Recovery Determination;
(xxvii) the aggregate amount of interest on P&I Advances paid to the
Master Servicer and the Trustee since the previous Determination Date (or
in the case of the first Distribution Date, as of the Cut-off Date), with
respect to the pool of Mortgage Loans and with respect to each Loan Group;
(xxviii) the aggregate amount of interest on Servicing Advances paid
to the Master Servicer and the Trustee since the previous Determination
Date (or in the case of the first Distribution Date, as of the Cut-off
Date);
(xxix) the original and then current credit support levels for each
Class of Certificates;
(xxx) the original and then current ratings for each Class of
Regular Certificates;
(xxxi) the amount of the distribution on the Distribution Date to
the Holders of the Residual Certificates; and
(xxxii) the aggregate amount of Yield Maintenance Charges collected
since the previous Determination Date (or in the case of the first
Distribution Date, as of the Cut-off Date).
In the case of information furnished pursuant to clauses (i), (ii),
(xi), (xvi) and (xviii) above, the amounts shall be expressed as a dollar amount
in the aggregate for all Certificates of each applicable Class and per
Definitive Certificate.
Within a reasonable period of time after the end of each calendar
year, the Paying Agent shall furnish to each Person who at any time during the
calendar year was a Holder of a Certificate, a statement containing the
information set forth in clauses (i), (ii) and (xi) above as to the applicable
Class, aggregated for such calendar year or applicable portion thereof during
which such person was a Certificateholder, together with such other information
as the Paying Agent deems necessary or desirable, or that a Certificateholder or
Certificate Owner reasonably requests, to enable Certificateholders to prepare
their tax returns for such calendar year. Such obligation of the Paying Agent
shall be deemed to have been satisfied to the extent that substantially
comparable information shall be provided by the Paying Agent pursuant to any
requirements of the Code as from time to time are in force.
On each Distribution Date, the Paying Agent shall make available to
the general public via its website initially located at "xxx.xxxxxxxx.xxx/xxx"
(i) the related Statement to Certificateholders, (ii) the CMSA Loan Periodic
Update File, the CMSA Loan Setup File, the CMSA Bond Level File, the CMSA
Collateral Summary File, the CMSA Property File and (iii) as a convenience to
the general public (and not in furtherance of the distribution thereof under the
securities laws), the prospectus supplement, the prospectus, and this Agreement.
The Paying Agent shall make available the Statement to
Certificateholders through its home page on the Internet. The Paying Agent
hereby acknowledges and agrees that its home page as of the date hereof is
located at "xxx.xxxxxxxx.xxx/xxx" on the world wide web. In addition, if the
Depositor so directs the Paying Agent, and on terms acceptable to the Paying
Agent, the Paying Agent shall make certain other information and reports related
to the Mortgage Loans available through its internet website.
The Paying Agent shall make available to the Companion Holders all
reports via its Internet Website that the Paying Agent has made available to
Certificateholders under this Agreement.
In addition, on each Distribution Date, the Paying Agent shall make
available, to any Privileged Person via its website, each of the "surveillance
reports" identified as such in the definition of "CMSA Investor Reporting
Package" (the cost of the annual surveillance fees to the Rating Agencies shall
be paid by the Master Servicer pursuant to Section 3.01(i) hereof), eight
supplemental reports and the CMSA Operating Statement Analysis Report and CMSA
NOI Adjusted Worksheets and seven CMSA data files, the Realized Loss Report and
the Monthly Additional Report on Recoveries and Reimbursements to the extent
delivered by the Master Servicer pursuant to this Agreement and the Trustee's
Exception Report as updated from time to time to the extent delivered to the
Paying Agent.
The Paying Agent makes no representations or warranties as to the
accuracy or completeness of any report, document or other information made
available on its Internet website and assumes no responsibility therefor. In
addition, the Paying Agent may disclaim responsibility for any information
distributed by it for which it is not the original source.
In connection with providing access to the Paying Agent's Internet
website, the Paying Agent may require registration and the acceptance of a
disclaimer. The Paying Agent shall not be liable for the dissemination of
information in accordance herewith. Questions regarding the Paying Agent's
Internet website can be directed to the Paying Agent's CMBS customer service
desk at (000) 000-0000.
The Master Servicer may, at its sole cost and expense, make
available by electronic media, bulletin board service or Internet website (in
addition to making information available as provided herein) any reports or
other information the Master Servicer is required or permitted to provide to any
party to this Agreement, the Rating Agencies or any Certificateholder or
prospective Certificateholder to the extent such action does not conflict with
the terms of this Agreement, the terms of the Mortgage Loans or applicable law.
Notwithstanding this paragraph, the availability of such information or reports
on the Internet or similar electronic media shall not be deemed to satisfy any
specific delivery requirements in this Agreement except as set forth herein. In
connection with providing access to the Master Servicer's Internet website, the
Master Servicer shall take reasonable measures to ensure that only such parties
listed above may access such information including, without limitation,
requiring registration, a confidentiality agreement and acceptance of a
disclaimer. The Master Servicer shall not be liable for dissemination of this
information in accordance with this Agreement, provided that such information
otherwise meets the requirements set forth herein with respect to the form and
substance of such information or reports. The Master Servicer shall be entitled
to attach to any report provided pursuant to this subsection, any reasonable
disclaimer with respect to information provided, or any assumptions required to
be made by such report. Notwithstanding anything herein to the contrary, the
Master Servicer may, at its sole cost and expense, make available by electronic
media, bulletin board service or Internet website (with respect to Midland:
xxx.xxxxxxxxx.xxx) any reports or other information the Master Servicer is
required or permitted to provide to any Mortgagor with respect to such
Mortgagor's Mortgage Loan to the extent such action does not conflict with the
terms of this Agreement, the terms of the Mortgage Loans or applicable law.
(b) The Special Servicer shall from time to time (and, in any event,
as may be reasonably required by the Master Servicer) provide the Master
Servicer with such information in its possession regarding the Specially
Serviced Mortgage Loans and REO Properties as may be necessary for the Master
Servicer to prepare each report and any supplemental information to be provided
by the Master Servicer to the Paying Agent. Neither the Paying Agent nor the
Depositor shall have any obligation to recompute, verify or recalculate the
information provided thereto by the Master Servicer. Unless the Paying Agent has
actual knowledge that any report or file received from the Master Servicer
contains erroneous information, the Paying Agent is authorized to rely thereon
in calculating and making distributions to Certificateholders in accordance with
Section 4.01, preparing the statements to Certificateholders required by Section
4.02(a) and allocating Collateral Support Deficit to the Certificates in
accordance with Section 4.04.
Notwithstanding the foregoing, the failure of the Master Servicer or
Special Servicer to disclose any information otherwise required to be disclosed
pursuant to this Section 4.02(b) or Section 4.02(c) shall not constitute a
breach of this Section 4.02(b) or of Section 4.02(c) to the extent the Master
Servicer or the Special Servicer so fails because such disclosure, in the
reasonable belief of the Master Servicer or the 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. The Master Servicer or the 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) As soon as reasonably practicable, upon the written request of
and at the expense of any Certificateholder, the Paying Agent shall provide the
requesting Certificateholder with such information that is in the Paying Agent's
possession or can reasonably be obtained by the Paying Agent as is requested by
such Certificateholder, for purposes of satisfying applicable reporting
requirements under Rule 144A under the Securities Act. Neither the Certificate
Registrar, the Paying Agent nor the Trustee shall have any responsibility for
the sufficiency under Rule 144A or any other securities laws of any available
information so furnished to any person including any prospective purchaser of a
Certificate or any interest therein, nor for the content or accuracy of any
information so furnished which was prepared or delivered to them by another.
(d) The information to which any Certificateholder is entitled is
limited to the information gathered and provided to the Certificateholder by the
parties hereto pursuant to this Agreement and by acceptance of any Certificate,
each Certificateholder agrees that except as specifically provided herein, no
Certificateholder shall contact any Mortgagor directly with respect to any
Mortgage Loan.
(e) (i) The Paying Agent, the Master Servicer and the Special
Servicer shall reasonably cooperate with the Depositor in connection with the
Trust's satisfying the reporting requirements under the Exchange Act. The Paying
Agent shall prepare on behalf of the Trust any Forms 8-K and 10-K customary for
similar securities as required by the Exchange Act and the Rules and Regulations
of the Securities and Exchange Commission thereunder, and the Paying Agent shall
sign and file (via the Securities and Exchange Commission's Electronic Data
Gathering and Retrieval System) such Forms on behalf of the Depositor. The
Depositor hereby grants to the Paying Agent a limited power of attorney to
execute and file each such documents on behalf of the Depositor. Such power of
attorney shall continue until the earlier of either (i) receipt by the Paying
Agent from the Depositor of written termination of such power of attorney and
(ii) the termination of the Trust. Notwithstanding the foregoing, in the event
that the Securities and Exchange Commission does not accept a certification
signed by the Depositor where the related Form 10-K is signed by the Paying
Agent on behalf of the Depositor, the Paying Agent should prepare such Form 10-K
to be signed by the Depositor and the Depositor shall sign such form.
(ii) Each Form 8-K shall be filed by the Paying Agent within 15 days
after each Distribution Date, including a copy of the Statement to the
Certificateholders for such Distribution Date as an exhibit thereto. Prior
to March 30th of each year (or such earlier date as may be required by the
Exchange Act and the Rules and Regulations of the Securities and Exchange
Commission), the Paying Agent shall file a Form 10-K, in substance as
required by applicable law or applicable Securities and Exchange
Commission staff's interpretations. Such Form 10-K shall include as
exhibits the Master Servicer's and the Special Servicer's annual statement
of compliance described under Section 3.13 and the accountant's report
described under Section 3.14. If they are not timely delivered, the Paying
Agent shall file an amended Form 10-K including such documents as exhibits
reasonably promptly after they are delivered to the Paying Agent. The
Paying Agent shall have no liability with respect to any failure to
properly prepare or file such periodic reports resulting from or relating
to the Paying Agent's inability or failure to obtain any information not
resulting from its own negligence, willful misconduct or bad faith. The
Form 10-K shall also include a certification in the form attached hereto
as Exhibit Q (the "Certification") (or in such other form as required by
the Rules and Regulations of the Securities and Exchange Commission),
which shall be signed by the senior officer of the Depositor in charge of
securitization.
(iii) The Paying Agent shall sign a certification (in the form
attached hereto as Exhibit R-1 or in such other form as may be appropriate
or necessary and as may be agreed upon by the Paying Agent and Depositor
as a result of changes promulgated by the Securities and Exchange
Commission in the Certification required to be filed with the Form 10-K,
which are applicable to the Trust) for the benefit of the Depositor and
its officers, directors and Affiliates (provided, however, that the Paying
Agent shall not undertake an analysis of the accountant's report attached
as an exhibit to the Form 10-K), the Master Servicer shall sign a
certification (in the form attached hereto as Exhibit R-2 or in such other
form as may be appropriate or necessary and as may be agreed upon by the
Master Servicer and Depositor as a result of changes promulgated by the
Securities and Exchange Commission in the Certification required to be
filed with the Form 10-K, which are applicable to the Trust) and the
Special Servicer shall sign a certification (in the form attached hereto
as Exhibit R-3 or in such other form as may be appropriate or necessary
and as may be agreed upon by the Special Servicer and Depositor as a
result of changes promulgated by the Securities and Exchange Commission in
the Certification required to be filed with the Form 10-K, which are
applicable to the Trust), in each case, for the benefit of the Depositor,
the Paying Agent and their officers, directors and Affiliates by March
15th of each year (or if not a Business Day, the immediately preceding
Business Day). The Certification attached hereto as Exhibit Q shall be
delivered by the Depositor to the Paying Agent for filing by March 20th of
each year (or if not a Business Day, the immediately preceding Business
Day). In addition, (i) the Paying Agent shall indemnify and hold harmless
the Depositor and its officers, directors and Affiliates from and against
any losses, damages, penalties, fines, forfeitures, reasonable and
necessary legal fees and related costs, judgments and other costs and
expenses arising out of or based upon a breach of the Paying Agent's
obligations under this Section 4.02(e) or the Paying Agent's negligence,
bad faith or willful misconduct in connection therewith, and (ii) the
Master Servicer and Special Servicer shall each severally and not jointly
indemnify and hold harmless the Depositor, the Paying Agent and their
respective officers, directors and Affiliates from and against any losses,
damages, penalties, fines, forfeitures, reasonable and necessary legal
fees and related costs, judgments and other costs and expenses arising out
of or based upon a breach of the Master Servicer's or Special Servicer's
obligations of the Master Servicer or the Special Servicer, as the case
may be, under this Section 4.02(e) or the negligence, bad faith or willful
misconduct of the Master Servicer or the Special Servicer, as the case may
be, in connection therewith. If the indemnification provided for herein is
unavailable or insufficient to hold harmless the Depositor, then (i) the
Paying Agent agrees that it shall contribute to the amount paid or payable
to the Depositor as a result of the losses, claims, damages or liabilities
of the Depositor in such proportion as is appropriate to reflect the
relative fault of the Depositor on the one hand and the Paying Agent on
the other in connection with a breach of the Paying Agent's obligations
under this Section 4.02(e) or the Paying Agent's negligence, bad faith or
willful misconduct in connection therewith, (ii) the Master Servicer
agrees that it shall contribute to the amount paid or payable by the
Depositor as a result of the losses, claims, damages or liabilities of the
Depositor in such proportion as is appropriate to reflect the relative
fault of the Depositor on the one hand and the Master Servicer on the
other in connection with a breach of the Master Servicer's obligations
under this Section 4.02(e) or the Master Servicer's negligence, bad faith
or willful misconduct in connection therewith and (iii) the Special
Servicer agrees that it shall contribute to the amount paid or payable by
the Depositor as a result of the losses, claims, damages or liabilities of
the Depositor in such proportion as is appropriate to reflect the relative
fault of the Depositor on the one hand and the Special Servicer on the
other in connection with a breach of the Special Servicer's obligations
under this Section 4.02(e) or the Special Servicer's negligence, bad faith
or willful misconduct in connection therewith.
(iv) Upon any filing with the Securities and Exchange Commission,
the Paying Agent shall promptly deliver to the Depositor a copy of any
such executed report, statement or information and shall provide notice of
such filing to the Master Servicer and Special Servicer.
(v) Prior to January 30 of the first year in which the Paying Agent
is able to do so under applicable law, the Paying Agent shall file a Form
15 Suspension Notification with respect to the Trust after which time no
Form 8-K or Form 10-K will be filed unless otherwise required by the
Exchange Act.
Section 4.03 P&I Advances. (a) On or before 4:00 p.m., New York City
time, on each P&I Advance Date, the Master Servicer shall either (i) remit to
the Paying Agent for deposit into the Lower-Tier Distribution Account from its
own funds an amount equal to the aggregate amount of P&I Advances, if any, to be
made in respect of the related Distribution Date, (ii) apply amounts held in the
Certificate 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. Any amounts held in the Certificate
Account for future distribution and so used to make P&I Advances shall be
appropriately reflected in the Master Servicer's records and replaced by the
Master Servicer by deposit in the Certificate Account on or before the next
succeeding P&I Advance Date (to the extent not previously replaced through the
deposit of Late Collections of the delinquent principal and/or interest in
respect of which such P&I Advances were made). The Master Servicer shall notify
the Paying Agent of (i) the aggregate amount of P&I Advances for a Distribution
Date and (ii) the amount of any Nonrecoverable P&I Advances for such
Distribution Date, on or before 2 Business Days prior to such Distribution Date.
If the Master Servicer fails to make a required P&I Advance by 4:00 p.m., New
York City time, on any P&I Advance Date, the Trustee shall make such P&I Advance
pursuant to Section 7.05 by noon, New York City time, on the related
Distribution Date, in each case unless the Master Servicer shall have cured such
failure (and provided written notice of such cure to the Trustee and the Paying
Agent) by 11:00 a.m. on such Distribution Date. In the event that the Master
Servicer fails to make a required P&I Advance hereunder, the Paying Agent shall
notify the Trustee of such circumstances by 4:30 p.m. (New York City time) on
the related P&I Advance Date.
(b) Subject to Sections 4.03(c) and (e) below, the amount of P&I
Advances to be made by the Master Servicer with respect to any Distribution Date
and each Mortgage Loan shall be equal to: (i) the Monthly Payments (net of
related Servicing Fees) other than Balloon Payments, that were due during the
related Due Period and delinquent as of the close of business on the Business
Day preceding the related P&I Advance Date and (ii) with respect to each
Mortgage Loan as to which the related Balloon Payment was due during or prior to
the related Due Period and was delinquent as of the end of the related Due
Period (including any REO Loan as to which the Balloon Payment would have been
past due), an amount equal to the Assumed Scheduled Payment therefor. Subject to
subsection (c) below, the obligation of the Master Servicer to make such P&I
Advances is mandatory, and with respect to any Mortgage Loan or REO Loan, shall
continue until the Distribution Date on which the proceeds, if any, received in
connection with a Liquidation Event or the disposition of the REO Property, as
the case may be, with respect thereto are to be distributed. No P&I Advances
shall be made with respect to a Companion Loan.
(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.
(d) In connection with the recovery of any P&I Advance out of the
Certificate Account, pursuant to Section 3.05(a), the Master Servicer shall be
entitled to pay the Trustee and itself (in that order of priority) as the case
may be out of any amounts then on deposit in the Certificate Account, interest
at the Reimbursement Rate in effect from time to time, accrued on the amount of
such P&I Advance from the date made to but not including the date of
reimbursement; provided, however, that no interest will accrue on any P&I
Advance (i) made with respect to a Mortgage Loan until after the related Due
Date has passed and any applicable grace period has expired or (ii) if the
related Monthly Payment is received after the Determination Date but on or prior
to the related P&I Advance Date. The Master Servicer shall reimburse itself
and/or the Trustee, as the case may be, for any outstanding P&I Advance, subject
to Section 3.19 of this Agreement, as soon as practicably possible after funds
available for such purpose are deposited in the Certificate Account.
(e) Notwithstanding the foregoing, (i) neither the Master Servicer
nor the Trustee shall make an advance for Excess Interest, Yield Maintenance
Charges, Default Interest or Penalty Charges and (ii) if an Appraisal Reduction
has been made with respect to any Mortgage Loan then in the event of subsequent
delinquencies thereon, the interest portion of the P&I Advance in respect of
such Mortgage Loan for the related Distribution Date shall be reduced (it being
herein acknowledged that there shall be no reduction in the principal portion of
such P&I Advance) to equal the product of (x) the amount of the interest portion
of such P&I Advance for such Mortgage Loan for such Distribution Date without
regard to this subsection (ii), and (y) a fraction, expressed as a percentage,
the numerator of which is equal to the Stated Principal Balance of such Mortgage
Loan immediately prior to such Distribution Date, net of the related Appraisal
Reduction, if any, and the denominator of which is equal to the Stated Principal
Balance of such Mortgage Loan immediately prior to such Distribution Date. For
purposes of the immediately preceding sentence, the Monthly Payment due on the
Maturity Date for a Balloon Mortgage Loan will be the Assumed Scheduled Payment
for the related Distribution Date.
(f) In no event shall either the Master Servicer or the Trustee be
required to make a P&I Advance with respect to any Companion Loan.
Section 4.04 Allocation of Collateral Support Deficit. (a) On each
Distribution Date, immediately following the distributions to be made on such
date pursuant to Section 4.01 and the allocation of Certificate Deferred
Interest pursuant to Section 4.06, the Paying Agent shall calculate the amount,
if any, by which (i) the aggregate Stated Principal Balance (for purposes of
this calculation only, not giving effect to any reductions of the Stated
Principal Balance for payments of principal collected on the Mortgage Loans that
were used to reimburse any Workout-Delayed Reimbursement Amounts pursuant to
Section 3.05(a)(v) to the extent such Workout-Delayed Reimbursement Amounts are
not otherwise determined to be Nonrecoverable Advances) of the Mortgage Loans
and any REO Loans, expected to be outstanding immediately following such
Distribution Date, is less than (ii) the then aggregate Certificate Balance of
the Regular Certificates after giving effect to distributions of principal on
such Distribution Date and the allocation of Certificate Deferred Interest
pursuant to Section 4.06 (any such deficit, the "Collateral Support Deficit").
Any allocation of Collateral Support Deficit to a Class of Regular Certificates
shall be made by reducing the Certificate Balance thereof by the amount so
allocated. Any Collateral Support Deficit allocated to a Class of Regular
Certificates shall be allocated among the respective Certificates of such Class
in proportion to the Percentage Interests evidenced thereby. The allocation of
Collateral Support Deficit shall constitute an allocation of losses and other
shortfalls experienced by the Trust Fund. Reimbursement of previously allocated
Collateral Support Deficit will not constitute distributions of principal for
any purpose and will not result in an additional reduction in the Certificate
Balance of the Class of Certificates in respect of which any such reimbursement
is made. To the extent any Nonrecoverable Advances (plus interest thereon) that
were reimbursed from principal collections on the Mortgage Loans and previously
resulted in a reduction of the Principal Distribution Amount, Loan Group 1
Principal Distribution Amount or Loan Group 2 Principal Distribution Amount are
subsequently recovered on the related Mortgage Loan, the amount of such recovery
will be added to the Certificate Balance of the Class or Classes of Certificates
that previously were allocated Collateral Support Deficit, in sequential order,
in each case up to the amount of the unreimbursed Collateral Support Deficit
allocated to such Class. If the Certificate Balance of any Class is so
increased, the amount of unreimbursed Collateral Support Deficit of such Class
shall be decreased by such amount.
(b) On each Distribution Date, the Certificate Balances of the
Regular Certificates will be reduced without distribution, as a write-off to the
extent of any Collateral Support Deficit, if any, allocable to such Certificates
with respect to such Distribution date. Any such write-off shall be allocated
first to the Class NR Certificates; second to the Class Q Certificates; third to
the Class P Certificates; fourth to the Class N Certificates; fifth to the Class
M Certificates; sixth to the Class L Certificates; seventh to the Class K
Certificates; eighth to the Class J Certificates; ninth to the Class H
Certificates; tenth to the Class G Certificates; eleventh to the Class F
Certificates; twelfth to the Class E Certificates, thirteenth to the Class D
Certificates, fourteenth to the Class C Certificates, fifteenth to the Class B
Certificates, sixteenth to the Class A-J Certificates and seventeenth to the
Class A-1 Certificates, Class A-2 Certificates, Class A-3 Certificates, Class
A-4 Certificates, Class A-5 Certificates and the Class A-1A Certificates, pro
rata (based upon their respective Certificate Balances), until the remaining
Certificate Balances of such Classes of Certificates have been reduced to zero.
(c) With respect to any Distribution Date, any Collateral Support
Deficit allocated to a Class of Certificates pursuant to Section 4.04(b) with
respect to such Distribution Date shall reduce the Lower-Tier Principal Amount
of the Related Uncertificated Lower-Tier Interest with respect thereto as a
write-off (in the case of (i) the Class A-1 Certificates, first to the Class
LA-1-1 Uncertificated Interest, second, to the Class LA-1-2 Uncertificated
Interest, third, to the Class LA-1-3 Uncertificated Interest, and fourth, to the
Class LA-1-4 Uncertificated Interest, in each case, until reduced to zero, (ii)
the Class A-1A Certificates, first to the Class LA-1A-1 Uncertificated Interest,
second, to the Class LA-1A-2 Uncertificated Interest, third, to the Class
LA-1A-3 Uncertificated Interest, fourth, to the Class LA-1A-4 Uncertificated
Interest, fifth, to the Class LA-1A-5 Uncertificated Interest, sixth, to the
Class LA-1A-6 Uncertificated Interest, seventh, to the Class LA-1A-7
Uncertificated Interest, eighth, to the Class LA-1A-8, ninth, to the Class
LA-1A-9 Uncertificated Interest, tenth, to the Class LA-1A-10 Uncertificated
Interest, eleventh, to the Class LA-1A-11 Uncertificated Interest, twelfth, to
the Class LA-1A-12 Uncertificated Interest, thirteenth, to the Class LA-1A-13
Uncertificated Interest, fourteenth, to the Class LA-1A-14 Uncertificated
Interest, and fifteenth, to the Class LA-1A-15 Uncertificated Interest, in each
case, until reduced to zero, (iii) the Class A-2 Certificates, first to the
Class LA-2-1 Uncertificated Interest, and second to the Class LA-2-2
Uncertificated Interest, in each case, until reduced to zero, (iv) the Class A-3
Certificates, first to the Class LA-3-1 Uncertificated Interest, second to the
Class LA-3-2 Uncertificated Interest, third to the Class LA-3-3 Uncertificated
Interest, fourth to the Class LA-3-4 Uncertificated Interest, fifth to the Class
LA-3-4 Uncertificated Interest, and sixth to the Class LA-3-6 Uncertificated
Interest, in each case, until reduced to zero, (v) the Class A-4 Certificates,
first to the Class LA-4-1 Uncertificated Interest, second to the Class LA-4-2
Uncertificated Interest, third to the Class LA-4-3 Uncertificated Interest, and
fourth to the Class LA-4-4 Uncertificated Interest, in each case, until reduced
to zero, (vi) the Class A-5 Certificates, first to the Class LA-5-1
Uncertificated Interest, second to the Class LA-5-2 Uncertificated Interest, and
third to the Class LA-5-3 Uncertificated Interest, in each case, until reduced
to zero, (vii) the Class F Certificates, first to the Class LF-1 Uncertificated
Interest and second to the Class LF-2 Uncertificated Interest, in each case,
until reduced to zero, (viii) the Class G Certificates, first to the Class LG-1
Uncertificated Interest, second to the Class LG-2 Uncertificated Interest, third
to the Class LG-3 Uncertificated Interest, and fourth to the Class LG-4
Uncertificated Interest, in each case, until reduced to zero, (ix) the Class H
Certificates, first to the Class LH-1 Uncertificated Interest and second to the
Class LH-2 Uncertificated Interest, in each case, until reduced to zero, (x) the
Class J Certificates, first to the Class LJ-1 Uncertificated Interest, second to
the Class LJ-2 Uncertificated Interest and third to the Class LJ-3
Uncertificated Interest, in each case, until reduced to zero), and (xi) the
Class L Certificates, first to the Class LL-1 Uncertificated Interest and second
to the Class LL-2 Uncertificated Interest, in each case, until reduced to zero).
Section 4.05 Appraisal Reductions. The aggregate Appraisal Reduction
will be allocated by the Paying Agent on each Distribution Date, only for
purposes of determining the amount of P&I Advances with respect to the related
Mortgage Loan, to the Certificate Balance of the Class NR, Class Q, Class P,
Class N, Class M, Class L, Class K, Class J, Class H, Class G, Class F, Class E,
Class D, Class C, Class B and Class A-J Certificates, in that order, up to the
amount of their respective Certificate Balances. On any Distribution Date, an
Appraisal Reduction that otherwise would be allocated to a Class of Certificates
will be allocated to the next most subordinate Class to the extent that the
Certificate Balance on such Distribution Date for such Class of Certificates
(prior to taking the Appraisal Reduction into account) is less than the
Appraisal Reduction for such Distribution Date.
With respect to any AB Mortgage Loan, Appraisal Reductions will be
calculated based on the aggregate outstanding principal balance of such AB
Mortgage Loan and the related Companion Loan. Any resulting Appraisal Reductions
will be allocated to the related Companion Loan up to the principal amount of
such Companion Loan prior to being allocated to the AB Mortgage Loan.
Section 4.06 Certificate Deferred Interest. (a) On each Distribution
Date, the amount of interest distributable to a Class of Certificates (other
than the Class X Certificates) shall be reduced by an amount equal to the amount
of Mortgage Deferred Interest for all Mortgage Loans for the Due Dates occurring
in the related Due Period allocated to such Class of Certificates, such Mortgage
Deferred Interest to be allocated first to the Class NR Certificates; second to
the Class Q Certificates; third to the Class P Certificates; fourth to the Class
N Certificates; fifth to the Class M Certificates; sixth to the Class L
Certificates; seventh to the Class K Certificates; eighth to the Class J
Certificates; ninth to the Class H Certificates; tenth to the Class G
Certificates; eleventh to the Class F Certificates; twelfth to the Class E
Certificates, thirteenth to the Class D Certificates, fourteenth to the Class C
Certificates, fifteenth to the Class B Certificates, sixteenth to the Class A-J
Certificates, and then seventeenth pro rata (based upon Accrued Certificate
Interest), to the Class A-1, Class A-1A, Class A-2, Class A-3, Class A-4 and
Class A-5 Certificates, in each case up to the respective Accrued Certificate
Interest for each such Class of Certificates for such Distribution Date.
(b) On each Distribution Date, the Certificate Balances of the Class
A-1, Class A-2, Class A-3, Class A-4, Class A-5, Class A-1A, Class A-J, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L,
Class M, Class N, Class P, Class Q and Class NR Certificates, shall be increased
by the amount of the Certificate Deferred Interest allocated to such Class of
Certificates on such Distribution Date pursuant to Section 4.06(a) above. On
each Distribution Date the Certificate Deferred Interest allocated to the
Related Uncertificated Lower-Tier Interest (in the case of (i) the Class A-1
Certificates will be allocated to the Class LA-1-1 Uncertificated Interest, the
Class LA-1-2 Uncertificated Interest, Class LA-1-3 Uncertificated Interest and
Class LA-1-4 Uncertificated Interest, (ii) the Class A-1A Certificates will be
allocated to the Class LA-1A-1 Uncertificated Interest, the Class LA-1A-2
Uncertificated Interest, the Class LA-1A-3 Uncertificated Interest, the Class
LA-1A-4 Uncertificated Interest, the Class LA-1A-5 Uncertificated Interest, the
Class LA-1A-6 Uncertificated Interest, the Class LA-1A-7 Uncertificated
Interest, the Class LA-1A-8 Uncertificated Interest, the Class LA-1A-9
Uncertificated Interest, the Class LA-1A-10 Uncertificated Interest, the Class
LA-1A-11 Uncertificated Interest, the Class LA-1A-12 Uncertificated Interest,
the Class LA-1A-13 Uncertificated Interest, the Class LA-1A-14 Uncertificated
Interest and the Class LA-1A-15 Uncertificated Interest, (iii) the Class A-2
Certificates will be allocated to the Class LA-2-1 Uncertificated Interest and
the Class LA-2-2 Uncertificated Interest, (iii) the Class A-2 Certificates will
be allocated to the Class LA-2-1 Uncertificated Interest and the Class LA-2-2
Uncertificated Interest, (iv) the Class A-3 Certificates will be allocated to
the Class LA-3-1 Uncertificated Interest, the Class LA-3-2 Uncertificated
Interest, the Class LA-3-3 Uncertificated Interest, the Class LA-3-4
Uncertificated Interest, the Class LA-3-5 Uncertificated Interest and the Class
LA-3-6 Uncertificated Interest, (v) the Class A-4 Certificates will be allocated
to the Class LA-4-1 Uncertificated Interest, the Class LA-4-2 Uncertificated
Interest, the Class LA-4-3 Uncertificated Interest and the Class LA-4-4
Uncertificated Interest, (vi) the Class A-5 Certificates will be allocated to
the Class LA-5-1 Uncertificated Interest, the Class LA-5-2 Uncertificated
Interest and the Class LA-5-3 Uncertificated Interest, (vii) the Class F
Certificates will be allocated to the Class LF-1 Uncertificated Interest and the
Class LF-2 Uncertificated Interest, (viii) the Class G Certificates will be
allocated to the Class LG-1 Uncertificated Interest, the Class LG-2
Uncertificated Interest, the Class LG-3 Uncertificated Interest and the Class
LG-4 Uncertificated Interest, (ix) the Class H Certificates will be allocated to
the Class LH-1 Uncertificated Interest and the Class LH-2 Uncertificated
Interest, (x) the Class J Certificates will be allocated to the Class LJ-1
Uncertificated Interest, the Class LJ-2 Uncertificated Interest and the Class
LJ-3 Uncertificated Interest, and (xi) the Class L Certificates will be
allocated to the LL-1 Uncertificated Interest and the Class LL-2 Uncertificated
Interest, in each case pro rata, based upon the Certificate Balance of such
Uncertificated Lower-Tier Interests immediately prior to such Distribution
Date).
(c) With respect to any Distribution Date, any Certificate Deferred
Interest with respect to such Distribution Date allocated pursuant to Section
4.06(a) to a Class of Certificates shall be allocated in reduction of the amount
of interest distributable to the Related Uncertificated Lower-Tier Interest with
respect thereto (in the case of (i) the Class A-1 Certificates will be allocated
to the Class LA-1-1 Uncertificated Interest, the Class LA-1-2 Uncertificated
Interest, the Class LA-1-3 Uncertificated Interest and the Class LA-1-4
Uncertificated Interest Uncertificated Interest, (ii) the Class A-1A
Certificates will be allocated to the Class LA-1A-1 Uncertificated Interest, the
Class LA-1A-2 Uncertificated Interest, the Class LA-1A-3 Uncertificated
Interest, the Class LA-1A-4 Uncertificated Interest, the Class LA-1A-5
Uncertificated Interest, the Class LA-1A-6 Uncertificated Interest, the Class
LA-1A-7 Uncertificated Interest, the Class LA-1A-8 Uncertificated Interest, the
Class LA-1A-9 Uncertificated Interest, the Class LA-1A-10 Uncertificated
Interest, the Class LA-1A-11 Uncertificated Interest, the Class LA-1A-12
Uncertificated Interest, the Class LA-1A-13 Uncertificated Interest, the Class
LA-1A-14 Uncertificated Interest and the Class LA-1A-15 Uncertificated Interest,
(iii) the Class A-2 Certificates will be allocated to the Class LA-2-1
Uncertificated Interest and the Class LA-2-2 Uncertificated Interest, (iv) the
Class A-3 Certificates will be allocated to the Class LA-3-1 Uncertificated
Interest, the Class LA-3-2 Uncertificated Interest, the Class LA-3-3
Uncertificated Interest, the Class LA-3-4 Uncertificated Interest, the Class
LA-3-5 Uncertificated Interest and the Class LA-3-6 Uncertificated Interest (v)
the Class A-4 Certificates will be allocated to the Class LA-4-1 Uncertificated
Interest, the Class LA-4-2 Uncertificated Interest, the Class LA-4-3
Uncertificated Interest and the Class LA-4-4 Uncertificated Interest, (vi) the
Class A-5 Certificates will be allocated to the Class LA-5-1 Uncertificated
Interest, the Class LA-5-2 Uncertificated Interest and the Class LA-5-3
Uncertificated Interest, (vii) the Class F Certificates will be allocated to the
Class LF-1 Uncertificated Interest and the Class LF-2 Uncertificated Interest,
(viii) the Class G Certificates will be allocated to the Class LG-1
Uncertificated Interest, the Class LG-2 Uncertificated Interest, the Class LG-3
Uncertificated Interest and the Class LG-4 Uncertificated Interest (ix) the
Class H Certificates will be allocated to the Class LH-1 Uncertificated Interest
and the Class LH-2 Uncertificated Interest, (x) the Class J Certificates will be
allocated to the Class LJ-1 Uncertificated Interest, the Class LJ-2
Uncertificated Interest, the Class LJ-3 Uncertificated Interest and (viii) the
Class L Certificates will be allocated to the LL-1 Uncertificated Interest and
the Class LL-2 Uncertificated Interest, in each case, pro rata, based on
interest accrued at the Pass-Through Rate for the Related Certificates;
provided, that no such allocation shall be made in respect of the portion of
such interest representing the related Class X-1 Strip Rate or Class X-2 Strip
Rate). On each Distribution Date, to the extent provided in Section 4.06(b) with
respect to the Related Certificates, Certificate Deferred Interest will be added
to the Lower-Tier Principal Amount of the Uncertificated Lower-Tier Interests in
the same manner as the interest thereon was reduced pursuant to the preceding
sentence.
Section 4.07 Grantor Trust Reporting. The parties intend that the
portion of the Trust Fund constituting the Grantor Trust, consisting of the
Excess Interest allocable to the Mortgage Loans, proceeds thereof held in the
Certificate Account pertaining to the Excess Interest allocable to the Mortgage
Loans and the Excess Interest Distribution Account shall constitute, and that
the affairs of the Trust Fund (exclusive of the Lower-Tier REMIC and the
Upper-Tier REMIC) shall be conducted so as to qualify such portion as a "grantor
trust" under subpart E, Part I of subchapter J of the Code, and the provisions
hereof shall be interpreted consistently with this intention. In furtherance of
such intention, the Paying Agent shall file or cause to be filed with the
Internal Revenue Service together with Form 1041 or such other form as may be
applicable and shall furnish or cause to be furnished, to the Class S
Certificateholders, the amount of Excess Interest allocable to the Mortgage
Loans received, in the time or times and in the manner required by the Code.
[End of Article IV]
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates. The Certificates will be
substantially in the respective forms annexed hereto as Exhibits A-1 through and
including A-27. The Certificates will be issuable in registered form only;
provided, however, that in accordance with Section 5.03 beneficial ownership
interests in the Regular Certificates shall initially be held and transferred
through the book-entry facilities of the Depository. The Class S, Class R and
Class LR Certificates will each be issuable in one or more registered,
definitive physical certificates (each, a "Definitive Certificate")
substantially in the form of Certificates of each Class and with such applicable
legends as are set forth in the Exhibits hereto corresponding to such Class.
Each Certificate will share ratably in all rights of the related Class. The
Class X Certificates will be issuable only in minimum Denominations of
authorized initial Notional Amount of not less than $1,000,000 and in integral
multiples of $1.00 in excess thereof. The Offered Certificates (other than the
Class X Certificates) will be issuable only in minimum Denominations of
authorized initial Certificate Balance of not less than $10,000, and in integral
multiples of $1.00 in excess thereof. The Non-Registered Certificates (other
than the Class S and the Residual Certificates) will be issuable in minimum
Denominations of authorized initial Certificate Balance of not less than
$250,000, and in integral multiples of $1.00 in excess thereof. If the Original
Certificate Balance or initial Notional Amount, as applicable, of any Class does
not equal an integral multiple of $1.00, then a single additional Certificate of
such Class may be issued in a minimum denomination of authorized initial
Certificate Balance or initial Notional Amount, as applicable, that includes the
excess of (i) the Original Certificate Balance or initial Notional Amount, as
applicable, of such Class over (ii) the largest integral multiple of $1.00 that
does not exceed such amount. The Class S, Class R and Class LR Certificates will
be issuable only in one or more Definitive Certificates in denominations
representing Percentage Interests of not less than 20%. With respect to any
Certificate or any beneficial interest in a Certificate, the "Denomination"
thereof shall be (i) the amount (a) set forth on the face thereof or, (b) set
forth on a schedule attached thereto or (c) in the case of any beneficial
interest in a Book-Entry Certificate, the interest of the related Certificate
Owner in the applicable Class of Certificates as reflected on the books and
records of the Depository or related Participants, as applicable, (ii) expressed
in terms of initial Certificate Balance or initial Notional Amount, as
applicable, and (iii) be in an authorized denomination, as set forth above. The
Book-Entry Certificates will be issued as one or more certificates registered in
the name of a nominee designated by the Depository, and Certificate Owners will
hold interests in the Book-Entry Certificates through the book-entry facilities
of the Depository in the minimum Denominations and aggregate Denominations as
set forth in the above. No Certificate Owner of a Book-Entry Certificate of any
Class thereof will be entitled to receive a Definitive Certificate representing
its interest in such Class, except as provided in Section 5.03 herein. Unless
and until Definitive Certificates are issued in respect of a Class of Book-Entry
Certificates, beneficial ownership interests in such Class of Certificates will
be maintained and transferred on the book-entry records of the Depository and
Depository Participants, and all references to actions by Holders of such Class
of Certificates will refer to action taken by the Depository upon instructions
received from the related registered Holders of Certificates through the
Depository Participants in accordance with the Depository's procedures and,
except as otherwise set forth herein, all references herein to payments,
notices, reports and statements to Holders of such Class of Certificates will
refer to payments, notices, reports and statements to the Depository or its
nominee as the registered Holder thereof, for distribution to the related
registered Holders of Certificates through the Depository Participants in
accordance with the Depository's procedures.
(a) The Certificates shall be executed by manual or facsimile
signature on behalf of the Certificate Registrar by an authorized signatory.
Certificates bearing the manual or facsimile signatures of individuals who were
at any time the authorized signatories of the Certificate Registrar shall be
entitled to all benefits under this Agreement, subject to the following
sentence, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Certificates
or did not hold such offices at the date of such Certificates. No Certificate
shall be entitled to any benefit under this Agreement, or be valid for any
purpose, however, unless there appears on such Certificate a certificate of
authentication substantially in the form provided for herein executed by the
Authenticating Agent by manual signature, and such certificate of authentication
upon any Certificate shall be conclusive evidence, and the only evidence, that
such Certificate has been duly authenticated and delivered hereunder. All
Certificates shall be dated the date of their authentication. JPMorgan Chase
Bank, National Association, located at 0 Xxx Xxxx Xxxxx, 0xx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000, is hereby initially appointed Authenticating Agent with power to
act on the Trustee's behalf in the authentication and delivery of the
Certificates in connection with transfers and exchanges as herein provided. If
JPMorgan Chase Bank, National Association, located at 0 Xxx Xxxx Xxxxx, 0xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, is removed as Paying Agent, then JPMorgan Chase
Bank, National Association shall be terminated as Authenticating Agent. If the
Authenticating Agent is terminated, the Trustee shall appoint a successor
authenticating agent, which may be the Trustee or an Affiliate thereof.
(b) Xxxxx Fargo maintains an office and conducts certificate
transfer services at Xxxxx Xxxxx Xxxxxx, Xxxxx xxx Xxxxxxxxx, Xxxxxxxxxxx,
Xxxxxxxxx 00000-0000. Xxxxx Fargo otherwise conducts trustee and securities
administration services at its offices in Columbia, Maryland. Its address there
is 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000-0000.
(c) 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.
Section 5.02 Registration of Transfer and Exchange of Certificates.
(a) At all times during the term of this Agreement, there shall be maintained at
the office of the Certificate Registrar a Certificate Register in which, subject
to such reasonable regulations as the Certificate Registrar may prescribe, the
Certificate Registrar shall provide for the registration of Certificates and of
transfers and exchanges of Certificates as herein provided. JPMorgan Chase Bank,
National Association, located at 0000 Xxxxx Xxxxxx, Xxxxxx, Xxxxx 00000, is
hereby initially appointed Certificate Registrar for the purpose of registering
Certificates and transfers and exchanges of Certificates as herein provided. The
Certificate Registrar may appoint, by a written instrument delivered to the
Depositor, the Trustee, the Paying Agent, the Special Servicer and the Master
Servicer, any other bank or trust company to act as Certificate Registrar under
such conditions as the predecessor certificate registrar may prescribe, provided
that the predecessor certificate registrar shall not be relieved of any of its
duties or responsibilities hereunder by reason of such appointment. If JPMorgan
Chase Bank, National Association resigns or is removed as Paying Agent, the
Trustee shall immediately succeed to its predecessor's duties as Certificate
Registrar. The Depositor, the Trustee, the Master Servicer and the Special
Servicer shall have the right to inspect the Certificate Register or to obtain a
copy thereof at all reasonable times, and to rely conclusively upon a
certificate of the Certificate Registrar as to the information set forth in the
Certificate Register. The names and addresses of all Certificateholders and the
names and addresses of the transferees of any Certificates shall be registered
in the Certificate Register; provided, however, in no event shall the
Certificate Registrar be required to maintain in the Certificate Register the
names of Certificate Owners. The Person in whose name any Certificate is so
registered shall be deemed and treated as the sole owner and Holder thereof for
all purposes of this Agreement and the Certificate Registrar, the Master
Servicer, the Paying Agent, the Trustee, the Special Servicer and any agent of
any of them shall not be affected by any notice or knowledge to the contrary. A
Definitive Certificate is transferable or exchangeable only upon the surrender
of such Certificate to the Certificate Registrar at its office maintained at
JPMorgan Chase Bank, National Association, as Certificate Registrar, 0000 Xxxxx
Xxxxxx, Xxxxxx, Xxxxx 00000, Attention: Global Debt JPMorgan 2004-C3 (the
"Registrar Office") together with an assignment and transfer (executed by the
Holder or his duly authorized attorney). Subject to the requirements of Sections
5.02(b), (c) and (d), the Certificate Registrar shall execute and the
Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in Denominations of a
like aggregate Denomination as the Definitive Certificate being surrendered.
Such Certificates shall be delivered by the Certificate Registrar in accordance
with Section 5.02(e). Each Certificate surrendered for registration of transfer
shall be canceled, and the Certificate Registrar shall hold such canceled
Certificates in accordance with its standard procedures.
(b) No transfer of any Non-Registered Certificate shall be made
unless that transfer is made pursuant to an effective registration statement
under the Securities Act, and effective registration or qualification under
applicable state securities laws, or is made in a transaction which does not
require such registration or qualification. If a transfer (other than one by the
Depositor to an Affiliate thereof or by the Initial Purchasers to JER Investors
Trust Inc.) is to be made in reliance upon an exemption from the Securities Act,
and under the applicable state securities laws, then either:
(i) Rule 144A Book-Entry Certificate to Regulation S Book-Entry
Certificate During the Restricted Period. If, during the Restricted
Period, a Certificate Owner of an interest in a Rule 144A Book-Entry
Certificate wishes at any time to transfer its beneficial interest in such
Rule 144A Book-Entry Certificate to a Person who wishes to take delivery
thereof in the form of a beneficial interest in a Regulation S Book-Entry
Certificate, such Certificate Owner may, in addition to complying with all
applicable rules and procedures of the Depository and Clearstream or
Euroclear applicable to transfers by their respective participants (the
"Applicable Procedures"), transfer or cause the transfer of such
beneficial interest for an equivalent beneficial interest in the
Regulation S Book-Entry Certificate only upon compliance with the
provisions of this Section 5.02(b)(i). Upon receipt by the Certificate
Registrar at its Registrar Office of (1) written instructions given in
accordance with the Applicable Procedures from a Depository Participant
directing the Certificate Registrar to credit or cause to be credited to
another specified Depository Participant's account a beneficial interest
in the Regulation S Book-Entry Certificate in an amount equal to the
Denomination of the beneficial interest in the Rule 144A Book-Entry
Certificate to be transferred, (2) a written order given in accordance
with the Applicable Procedures containing information regarding the
account of the Depository Participant (and the Euroclear or Clearstream
account, as the case may be) to be credited with, and the account of the
Depository Participant to be debited for, such beneficial interest, and
(3) a certificate in the form of Exhibit K hereto given by the Certificate
Owner that is transferring such interest, the Certificate Registrar, as
custodian of the Book-Entry Certificates shall reduce the Denomination of
the Rule 144A Book-Entry Certificate by the Denomination of the beneficial
interest in the Rule 144A Book-Entry Certificate to be so transferred and,
concurrently with such reduction, increase the Denomination of the
Regulation S Book-Entry Certificate by the Denomination of the beneficial
interest in the Rule 144A Book-Entry Certificate to be so transferred, and
credit or cause to be credited to the account of the Person specified in
such instructions (who shall be a Depository Participant acting for or on
behalf of Euroclear or Clearstream, or both, as the case may be) a
beneficial interest in the Regulation S Book-Entry Certificate having a
Denomination equal to the amount by which the Denomination of the Rule
144A Book-Entry Certificate was reduced upon such transfer.
(ii) Rule 144A Book-Entry Certificate to Regulation S Book-Entry
Certificate After the Restricted Period. If, after the Restricted Period,
a Certificate Owner of an interest in a Rule 144A Book-Entry Certificate
wishes at any time to transfer its beneficial interest in such Rule 144A
Book-Entry Certificate to a Person who wishes to take delivery thereof in
the form of a beneficial interest in a Regulation S Book-Entry
Certificate, such holder may, in addition to complying with all Applicable
Procedures, transfer or cause the transfer of such beneficial interest for
an equivalent beneficial interest in a Regulation S Book-Entry Certificate
only upon compliance with the provisions of this Section 5.02(b)(ii). Upon
receipt by the Certificate Registrar at its Registrar Office of (1)
written instructions given in accordance with the Applicable Procedures
from a Depository Participant directing the Certificate Registrar to
credit or cause to be credited to another specified Depository
Participant's account a beneficial interest in the Regulation S Book-Entry
Certificate in an amount equal to the Denomination of the beneficial
interest in the Rule 144A Book-Entry Certificate to be transferred, (2) a
written order given in accordance with the Applicable Procedures
containing information regarding the account of the Depository Participant
(and, in the case of a transfer pursuant to and in accordance with
Regulation S, the Euroclear or Clearstream account, as the case may be) to
be credited with, and the account of the Depository Participant to be
debited for, such beneficial interest, and (3) a certificate in the form
of Exhibit N hereto given by the Certificate Owner that is transferring
such interest, the Certificate Registrar as custodian of the Book-Entry
Certificates shall reduce the Denomination of the Rule 144A Book-Entry
Certificate by the aggregate Denomination of the beneficial interest in
the Rule 144A Book-Entry Certificate to be so transferred and,
concurrently with such reduction, increase the Denomination of the
Regulation S Book-Entry Certificate by the aggregate Denomination of the
beneficial interest in the Rule 144A Book-Entry Certificate to be so
transferred, and credit or cause to be credited to the account of the
Person specified in such instructions (who shall be a Depository
Participant acting for or on behalf of Euroclear or Clearstream, or both,
as the case may be) a beneficial interest in the Regulation S Book-Entry
Certificate having a Denomination equal to the amount by which the
Denomination of the Rule 144A Book-Entry Certificate was reduced upon such
transfer.
(iii) Regulation S Book-Entry Certificate to Rule 144A Book-Entry
Certificate. If the Certificate Owner of an interest in a Regulation S
Book-Entry Certificate wishes at any time to transfer its beneficial
interest in such Regulation S Book-Entry Certificate to a Person who
wishes to take delivery thereof in the form of a beneficial interest in
the Rule 144A Book-Entry Certificate, such holder may, in addition to
complying with all Applicable Procedures, transfer or cause the transfer
of such beneficial interest for an equivalent beneficial interest in the
Rule 144A Book-Entry Certificate only upon compliance with the provisions
of this Section 5.2(b)(iii). Upon receipt by the Certificate Registrar at
its Registrar Office of (1) written instructions given in accordance with
the Applicable Procedures from a Depository Participant directing the
Certificate Registrar to credit or cause to be credited to another
specified Depository Participant's account a beneficial interest in the
Rule 144A Book-Entry Certificate in an amount equal to the Denomination of
the beneficial interest in the Regulation S Book-Entry Certificate to be
transferred, (2) a written order given in accordance with the Applicable
Procedures containing information regarding the account of the Depository
Participant to be credited with, and the account of the Depository
Participant (or, if such account is held for Euroclear or Clearstream, the
Euroclear or Clearstream account, as the case may be) to be debited for
such beneficial interest, and (3) with respect to a transfer of a
beneficial interest in the Regulation S Book-Entry Certificate for a
beneficial interest in the related Rule 144A Book-Entry Certificate (i)
during the Restricted Period, a certificate in the form of Exhibit O
hereto given by the Certificate Owner, or (ii) after the Restricted
Period, an Investment Representation Letter in the form of Exhibit C
attached hereto from the transferee to the effect that such transferee is
a Qualified Institutional Buyer (an "Investment Representation Letter"),
the Certificate Registrar, as custodian of the Book-Entry Certificates,
shall reduce the Denomination of the Regulation S Book-Entry Certificate
by the Denomination of the beneficial interest in the Regulation S
Book-Entry Certificate to be transferred, and, concurrently with such
reduction, increase the Denomination of the Rule 144A Book-Entry
Certificate by the aggregate Denomination of the beneficial interest in
the Regulation S Book-Entry Certificate to be so transferred, and credit
or cause to be credited to the account of the Person specified in such
instructions (who shall be a Depository Participant acting for or on
behalf of Euroclear or Clearstream, or both, as the case may be) a
beneficial interest in the Rule 144A Book-Entry Certificate having a
Denomination equal to the amount by which the Denomination of the
Regulation S Book-Entry Certificate was reduced upon such transfer.
(iv) Transfers Within Regulation S Book-Entry Certificates During
Restricted Period. If, during the Restricted Period, the Certificate Owner
of an interest in a Regulation S Book-Entry Certificate wishes at any time
to transfer its beneficial interest in such Certificate to a Person who
wishes to take delivery thereof in the form of a Regulation S Book-Entry
Certificate, such Certificate Owner may transfer or cause the transfer of
such beneficial interest for an equivalent beneficial interest in such
Regulation S Book-Entry Certificate only upon compliance with the
provisions of this Section 5.02(b)(iv) and all Applicable Procedures. Upon
receipt by the Certificate Registrar at its Registrar Office of (1)
written instructions given in accordance with the Applicable Procedures
from a Depository Participant directing the Certificate Registrar to
credit or cause to be credited to another specified Depository
Participant's account a beneficial interest in such Regulation S
Book-Entry Certificate in an amount equal to the Denomination of the
beneficial interest to be transferred, (2) a written order given in
accordance with the Applicable Procedures containing information regarding
the account of the Depository Participant to be credited with, and the
account of the Depository Participant (or, if such account is held for
Euroclear or Clearstream, the Euroclear or Clearstream account, as the
case may be) to be debited for, such beneficial interest and (3) a
certificate in the form of Exhibit P hereto given by the transferee, the
Certificate Registrar, as custodian of the Book-Entry Certificates, shall
debit the account of the transferring Regulation S Certificateholder and
credit or cause to be credited to the account of the Person specified in
such instructions (who shall be a Depository Participant acting for or on
behalf of Euroclear or Clearstream, or both, as the case may be) a
beneficial interest in the Regulation S Book-Entry Certificate having a
Denomination equal to the amount specified in such instructions by which
the account to be debited was reduced upon such transfer.
(v) Transfers of Book-Entry Certificates to Definitive Certificates.
Any and all transfers from a Book-Entry Certificate to a transferee
wishing to take delivery in the form of a Definitive Certificate will
require the transferee to take delivery subject to the restrictions on the
transfer of such Definitive Certificate described on the face of such
Certificate, and such transferee agrees that it will transfer such
Definitive Certificate only as provided therein and herein. No such
transfer shall be made and the Certificate Registrar shall not register
any such transfer unless such transfer is made in accordance with this
Section 5.02(b)(v).
(A) Transfers of a beneficial interest in a Book-Entry
Certificate to an Institutional Accredited Investor will require
delivery of such Certificate to the transferee in the form of a
Definitive Certificate and the Certificate Registrar shall register
such transfer only if prior to the transfer (i) two years have
expired after the later of the Closing Date or the last date on
which the Depositor or any Affiliate thereof held such Certificate,
or (ii) such transferee furnishes to the Certificate Registrar (1)
an Investment Representation Letter in the form of Exhibit C
attached hereto to the effect that the transfer is being made to an
Institutional Accredited Investor in accordance with an applicable
exemption under the Act, and (2) if required by the Certificate
Registrar, an opinion of counsel acceptable to the Certificate
Registrar that such transfer is in compliance with the Act.
(B) Transfers of a beneficial interest in a Book-Entry
Certificate to a Regulation S Investor wishing to take delivery in
the form of a Definitive Certificate will be registered by the
Certificate Registrar only if the transferor has provided the
Certificate Registrar with a certificate in the form of Exhibit P
attached hereto. Transfers of a beneficial interest in a Book-Entry
Certificate to a Qualified Institutional Buyer wishing to take
delivery in the form of a Definitive Certificate will be registered
by the Certificate Registrar only if such transferee furnishes to
the Certificate Registrar an Investment Representation Letter in the
form of Exhibit C attached hereto to the effect that the transfer is
being made to a Qualified Institutional Buyer in accordance with
Rule 144A under the Act.
(C) Notwithstanding the foregoing, no transfer of a beneficial
interest in a Regulation S Book-Entry Certificate to a Definitive
Certificate pursuant to subparagraph (B) above shall be made prior
to the expiration of the Restricted Period. Upon acceptance for
exchange or transfer of a beneficial interest in a Book-Entry
Certificate for a Definitive Certificate, as provided herein, the
Certificate Registrar shall endorse on the schedule affixed to the
related Book-Entry Certificate (or on a continuation of such
schedule affixed to such Book-Entry Certificate and made a part
thereof) an appropriate notation evidencing the date of such
exchange or transfer and a decrease in the Denomination of such
Book-Entry Certificate equal to the Denomination of such Definitive
Certificate issued in exchange therefor or upon transfer thereof.
(vi) Transfers of Definitive Certificates to the Book-Entry
Certificates. If a Holder of a Definitive Certificate (other than a Class
S Certificate) wishes at any time to transfer such Certificate to a Person
who wishes to take delivery thereof in the form of a beneficial interest
in the related Regulation S Book-Entry Certificate or the related Rule
144A Book-Entry Certificate, such transfer may be effected only in
accordance with the Applicable Procedures, and this Section 5.02(b)(vi).
Upon receipt by the Certificate Registrar at the Registrar Office of (1)
the Definitive Certificate to be transferred with an assignment and
transfer pursuant to Section 5.02(d), (2) written instructions given in
accordance with the Applicable Procedures from a Depository Participant
directing the Certificate Registrar to credit or cause to be credited to
another specified Depository Participant's account a beneficial interest
in such Regulation S Book-Entry Certificate or such Rule 144A Book-Entry
Certificate, as the case may be, in an amount equal to the Denomination of
the Definitive Certificate to be so transferred, (3) a written order given
in accordance with the Applicable Procedures containing information
regarding the account of the Depository Participant (and, in the case of
any transfer pursuant to Regulation S, the Euroclear or Clearstream
account, as the case may be) to be credited with such beneficial interest,
and (4) (x) if delivery is to be taken in the form of a beneficial
interest in the Regulation S Book-Entry Certificate, a Regulation S
Transfer Certificate from the transferor or (y) an Investment
Representation Letter from the transferee to the effect that such
transferee is a Qualified Institutional Buyer, if delivery is to be taken
in the form of a beneficial interest in the Rule 144A Book-Entry
Certificate, the Certificate Registrar shall cancel such Definitive
Certificate, execute and deliver a new Definitive Certificate for the
Denomination of the Definitive Certificate not so transferred, registered
in the name of the Holder, and the Certificate Registrar, as custodian of
the Book-Entry Certificates, shall increase the Denomination of the
Regulation S Book-Entry Certificate or the Rule 144A Book-Entry
Certificate, as the case may be, by the Denomination of the Definitive
Certificate to be so transferred, and credit or cause to be credited to
the account of the Person specified in such instructions (who, in the case
of any increase in the Regulation S Book-Entry Certificate during the
Restricted Period, shall be a Depository Participant acting for or on
behalf of Euroclear or Clearstream, or both, as the case may be) a
corresponding Denomination of the Rule 144A Book-Entry Certificate or the
Regulation S Book-Entry Certificate, as the case may be.
It is the intent of the foregoing that under no circumstances may an
Institutional Accredited Investor that is not a Qualified Institutional Buyer
take delivery in the form of a beneficial interest in a Book-Entry Certificate.
(vii) Transfers of Definitive Certificates to Definitive
Certificates. Any and all transfers from a Definitive Certificate to a
transferee wishing to take delivery in the form of a Definitive
Certificate will require the transferee to take delivery subject to the
restrictions on the transfer of such Definitive Certificate described on
the face of such Certificate, and such transferee agrees that it will
transfer such Definitive Certificate only as provided therein and herein.
No such transfer shall be made and the Certificate Registrar shall not
register any such transfer unless such transfer is made in accordance with
procedures substantially consistent with those set forth in Section
5.02(b)(v), provided, however, that any such transfer of a Class S
Certificate shall be made only to a transferee that is a Qualified
Institutional Buyer.
(viii) An exchange of a beneficial interest in a Book-Entry
Certificate for a Definitive Certificate or Certificates, an exchange of a
Definitive Certificate or Certificates for a beneficial interest in the
Book-Entry Certificate and an exchange of a Definitive Certificate or
Certificates for another Definitive Certificate or Certificates (in each
case, whether or not such exchange is made in anticipation of subsequent
transfer, and in the case of the Book-Entry Certificates, so long as the
Book-Entry Certificates remain outstanding and are held by or on behalf of
the Depository), may be made only in accordance with this Section 5.02 and
in accordance with the rules of the Depository and Applicable Procedures.
Any purported or attempted transfer of a Non-Registered Certificate
in violation of the provisions of this Section 5.02(b) shall be null and void ab
initio and shall vest no rights in any purported transferee.
Unless the Non-Registered Certificates have been registered under
the Securities Act, each of the Non-Registered Certificates shall bear a legend
substantially to the following effect:
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES
LAWS. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT
TO OFFER, SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN
ACCORDANCE WITH ALL APPLICABLE STATE SECURITIES LAWS AND (A)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS THIS
CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY
BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE
144A IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (C)
(OTHER THAN WITH RESPECT TO A CLASS S CERTIFICATE OR A RESIDUAL
CERTIFICATE) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE
MEANING OF RULE 501 (a)(1), (2), (3) OR (7) OF REGULATION D UNDER
THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, (d) (OTHER THAN WITH RESPECT
TO A CLASS S CERTIFICATE OR A RESIDUAL CERTIFICATE) IN AN OFFSHORE
TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR RULE 904 OF
REGULATION S UNDER THE SECURITIES ACT OR (E) (OTHER THAN WITH
RESPECT TO A CLASS S CERTIFICATE OR A RESIDUAL CERTIFICATE) PURSUANT
TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE
COMPLETION AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE
REGISTRAR OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE
LAST PAGE OF THIS CERTIFICATE.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT
PURCHASER OF THIS CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN
INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO COMPLY WITH CERTAIN
TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN INVESTMENT
REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT IF SUCH TRANSFEREE IS A QUALIFIED
INSTITUTIONAL BUYER OR (OTHER THAN WITH RESPECT TO A CLASS S
CERTIFICATE OR A RESIDUAL CERTIFICATE) AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL
IF SUCH TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE
MEANING OF RULE 144A.
(c) With respect to the ERISA Restricted Certificates and the Class
S Certificates, no sale, transfer, pledge or other disposition of any such
Certificate shall be made unless the Certificate Registrar shall have received
either (i) a representation letter from the proposed purchaser or transferee of
such Certificate substantially in the form of Exhibit F attached hereto, to the
effect that such proposed purchaser or transferee is not (a) an employee benefit
plan subject to the fiduciary responsibility provisions of ERISA or Section 4975
of the Code, or a governmental plan (as defined in Section 3(32) of ERISA) or a
church plan (as defined in Section 3(33) of ERISA) for which no election has
been made under Section 410(d) of the Code subject to any federal, state or
local law ("Similar Law") which is, to a material extent, similar to the
foregoing provisions of ERISA or the Code (each, a "Plan") or (b) a person
acting on behalf of or using the assets of any such Plan (including an entity
whose underlying assets include Plan assets by reason of investment in the
entity by such Plan and the application of Department of Labor Regulation ss.
2510.3-101), other than, except in the case of the Class S Certificates, an
insurance company using the assets of its general account under circumstances
whereby the purchase and holding of such Certificates by such insurance company
would be exempt from the prohibited transaction provisions of ERISA and the Code
under Sections I and III of Prohibited Transaction Class Exemption 95-60 or (ii)
if such Certificate, other than a Class S Certificate, which may be held only by
a person not described in (a) or (b) above, is presented for registration in the
name of a purchaser or transferee that is any of the foregoing, an Opinion of
Counsel in form and substance satisfactory to the Certificate Registrar and the
Depositor to the effect that the acquisition and holding of such Certificate by
such purchaser or transferee will not constitute or result in a non-exempt
"prohibited transaction" within the meaning of ERISA, Section 4975 of the Code
or any Similar Law, and will not subject the Trustee, the Paying Agent, the
Certificate Registrar, the Master Servicer, the Special Servicer, the
Underwriters, the Initial Purchasers or the Depositor to any obligation or
liability (including obligations or liabilities under ERISA, Section 4975 of the
Code or any such Similar Law) in addition to those set forth in the Agreement.
The Certificate Registrar shall not register the sale, transfer, pledge or other
disposition of any ERISA Restricted Certificate or Class S Certificate unless
the Certificate Registrar has received either the representation letter
described in clause (i) above or in the case of an ERISA Restricted Certificate,
the Opinion of Counsel described in clause (ii) above. The costs of any of the
foregoing representation letters or Opinions of Counsel shall not be borne by
any of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Underwriters, the Initial Purchasers, the Certificate
Registrar or the Trust Fund. Each Certificate Owner of an ERISA Restricted
Certificate or Class S Certificate shall be deemed to represent that it is not a
Person specified in clauses (a) or (b) above. Any transfer, sale, pledge or
other disposition of any ERISA Restricted Certificates or Class S Certificates
that would constitute or result in a prohibited transaction under ERISA, Section
4975 of the Code or any Similar Law, or would otherwise violate the provisions
of this Section 5.02(c) shall be deemed absolutely null and void ab initio, to
the extent permitted under applicable law.
So long as any of the Class of Certificates remains outstanding, the
Master Servicer or the Special Servicer, as applicable, will make available, or
cause to be made available, upon request, to any Holder and any Person to whom
any such Certificate of any such Class of Certificates may be offered or sold,
transferred, pledged or otherwise disposed of by such Holder, information with
respect to the Master Servicer, the Special Servicer or the Mortgage Loans
necessary to the provision of an Opinion of Counsel described in this Section
5.02(c).
(i) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of
such Ownership Interest to have agreed to be bound by the following
provisions and to have irrevocably authorized the Paying Agent under
clause (ii) below to deliver payments to a Person other than such Person.
The rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(A) (i) No Person holding or acquiring any Ownership Interest
in a Residual Certificate shall be a Disqualified Organization or
agent thereof (including a nominee, middleman or similar person) (an
"Agent"), a Plan or a Person acting on behalf of or investing the
assets of a Plan, including any entity whose underlying assets
include Plan assets by reason of investment in the entity by such
Plan and the application of Department of Labor Regulations ss.
2510.3-101 (such Plan or Person, an "ERISA Prohibited Holder") or a
Non-U.S. Person and (ii) each Person holding or acquiring any
Ownership Interest in a Residual Certificate shall be a Permitted
Transferee and in each case shall promptly notify the Master
Servicer, the Trustee and the Certificate Registrar of any change or
impending change to such status;
(B) In connection with any proposed Transfer of any Ownership
Interest in a Residual Certificate, the Certificate Registrar shall
require delivery to it, and no Transfer of any Residual Certificate
shall be registered until the Certificate Registrar receives, an
affidavit substantially in the form attached hereto as Exhibit D-1
(a "Transfer Affidavit") from the proposed Transferee, in form and
substance satisfactory to the Certificate Registrar, representing
and warranting, among other things, that such Transferee is a
Permitted Transferee and is not a Disqualified Organization or Agent
thereof, an ERISA Prohibited Holder or a Non-U.S. Person, and that
it has reviewed the provisions of this Section 5.02(c) and agrees to
be bound by them;
(C) Notwithstanding the delivery of a Transfer Affidavit by a
proposed Transferee under clause (b) above, if the Certificate
Registrar has actual knowledge that the proposed Transferee is a
Disqualified Organization or Agent thereof, an ERISA Prohibited
Holder or a Non-U.S. Person or is not a Permitted Transferee, no
Transfer of an Ownership Interest in a Residual Certificate to such
proposed Transferee shall be effected; and
(D) Each Person holding or acquiring any Ownership Interest in
a Residual Certificate shall agree (1) to require a Transfer
Affidavit from any prospective Transferee to whom such Person
attempts to transfer its Ownership Interest in such Residual
Certificate and (2) not to transfer its Ownership Interest in such
Residual Certificate unless it provides to the Certificate Registrar
a letter substantially in the form attached hereto as Exhibit D-2 (a
"Transferor Letter") certifying that, among other things, it has no
actual knowledge that such prospective Transferee is a Disqualified
Organization or Agent thereof, an ERISA Prohibited Holder or a
Non-U.S. Person.
(ii) If any purported Transferee shall become a Holder of a Residual
Certificate in violation of the provisions of this Section 5.02(c), then
the last preceding Holder of such Residual Certificate that was in
compliance with the provisions of this Section 5.02(c) shall be restored,
to the extent permitted by law, to all rights as Holder thereof
retroactive to the date of registration of such Transfer of such Residual
Certificate. None of the Trustee, the Master Servicer, the Authenticating
Agent and the Certificate Registrar shall be under any liability to any
Person for any registration of Transfer of a Residual Certificate that is
in fact not permitted by this Section 5.02(c) 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;
provided, however, that the Certificate Registrar shall be under such
liability for a registration of Transfer of a Residual Certificate if it
has actual knowledge that the proposed Transferee is a Disqualified
Organization or Agent thereof, an ERISA Prohibited Holder or a Non-U.S.
Person in violation of Section 5.02(c)(i)(C) above or is not a Permitted
Transferee.
(iii) The Paying Agent shall make available to the Internal Revenue
Service and those Persons specified by the REMIC Provisions all
information in its possession and necessary to compute any tax imposed as
a result of the Transfer of an Ownership Interest in a Residual
Certificate to any Person who is a Disqualified Organization or Agent
thereof, including the information described in Treasury Regulations
Sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess
inclusions" of such Residual Certificate.
(d) Subject to the restrictions on transfer and exchange set forth
in this Section 5.02, the Holder of any Definitive Certificate may transfer or
exchange the same in whole or in part (with a Denomination equal to any
authorized denomination) by surrendering such Certificate at the Registrar
Office or at the office of any successor certificate registrar or transfer agent
appointed by the Certificate Registrar, together with an instrument of
assignment or transfer (executed by the Holder or its duly authorized attorney),
in the case of transfer, and a written request for exchange in the case of
exchange. Subject to the restrictions on transfer set forth in this Section 5.02
and Applicable Procedures, any Certificate Owner owning a beneficial interest in
a Non-Registered Certificate may cause the Certificate Registrar to request that
the Depository exchange such Certificate Owner's beneficial interest in a
Book-Entry for a Definitive Certificate or Certificates. Following a proper
request for transfer or exchange, the Certificate Registrar shall, within 5
Business Days of such request if made at such Registrar Office, or within 10
Business Days if made at the office of a transfer agent (other than the
Certificate Registrar), execute and deliver at such Registrar Office or at the
office of such transfer agent, as the case may be, to the transferee (in the
case of transfer) or Holder (in the case of exchange) or send by first class
mail (at the risk of the transferee in the case of transfer or Holder in the
case of exchange) to such address as the transferee or Holder, as applicable,
may request, a Definitive Certificate or Certificates, as the case may require,
for a like aggregate Denomination and in such Denomination or Denominations as
may be requested. The presentation for transfer or exchange of any Definitive
Certificate shall not be valid unless made at the Registrar Office or at the
office of a transfer agent by the registered Holder in person, or by a duly
authorized attorney-in-fact. The Certificate Registrar may decline to accept any
request for an exchange or registration of transfer of any Certificate during
the period of 15 days preceding any Distribution Date.
(e) In the event a Responsible Officer of the Certificate Registrar
becomes aware that a Definitive Certificate (other than a Definitive Certificate
issued in exchange for a Certificate representing an interest in the Class A-1,
Class A-2, Class A-3, Class A-4, Class A-5, Class A-J, Class B, Class C, Class
D, Class E or Class X-2 Certificates) or a beneficial interest in a Book-Entry
Certificate representing a Non-Registered Certificate is being held by or for
the benefit of a Person who is not an Eligible Investor, or that such holding is
unlawful under the laws of a relevant jurisdiction, then the Certificate
Registrar shall have the right to void such transfer, if permitted under
applicable law, or to require the investor to sell such Definitive Certificate
or beneficial interest in such Book-Entry Certificate to an Eligible Investor
within 14 days after notice of such determination and each Certificateholder by
its acceptance of a Certificate authorizes the Certificate Registrar to take
such action.
(f) The Certificate Registrar shall provide an updated copy of the
Certificate Register to the Trustee (upon written request), the Master Servicer,
the Special Servicer, the Paying Agent and the Depositor of each transfer of a
Certificate on its books and records and to provide each such Person with an
updated copy of the Certificate Register on or about January 1st and July 1st of
each year, commencing January 1, 2005.
(g) No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in this Section 5.02 except as provided below. In
connection with any transfer to an Institutional Accredited Investor, the
transferor shall reimburse the Trust Fund for any costs (including the cost of
the Certificate Registrar's counsel's review of the documents and any legal
opinions, submitted by the transferor or transferee to the Certificate Registrar
as provided herein) incurred by the Certificate Registrar in connection with
such transfer. With respect to any transfer or exchange of any Certificate, the
Certificate Registrar may require payment by each transferor of a sum sufficient
to cover any tax, expense or other governmental charge payable in connection
with any such transfer or exchange.
(h) All Certificates surrendered for transfer and exchange shall be
physically canceled by the Certificate Registrar, and the Certificate Registrar
shall hold such canceled Certificates in accordance with its standard
procedures.
Section 5.03 Book-Entry Certificates. (a) The Regular Certificates
shall initially be issued as one or more Certificates registered in the name of
the Depository or its nominee and, except as provided in subsection (c) below,
transfer of such Certificates may not be registered by the Certificate Registrar
unless such transfer is to a successor depository that agrees to hold such
Certificates for the respective Certificate Owners with Ownership Interests
therein. Such Certificate Owners shall hold and transfer their respective
Ownership Interests in and to such Certificates through the book-entry
facilities of the Depository and, except as provided in Section 5.02(d) above or
subsection (c) below, shall not be entitled to Definitive Certificates in
respect of such Ownership Interests. All transfers by Certificate Owners of
their respective Ownership Interests in the Book-Entry Certificates shall be
made in accordance with the procedures established by the Depository Participant
or brokerage firm representing such Certificate Owner. Each Depository
Participant shall only transfer the Ownership Interests in the Book-Entry
Certificates of Certificate Owners it represents or of brokerage firms for which
it acts as agent in accordance with the Depository's normal procedures.
(b) The Trustee, the Paying Agent, the Master Servicer, the Special
Servicer, the Depositor and the Certificate Registrar may for all purposes,
including the making of payments due on the Book-Entry Certificates, deal with
the Depository as the authorized representative of the Certificate Owners with
respect to such Certificates for the purposes of exercising the rights of
Certificateholders hereunder. The rights of Certificate Owners with respect to
the Book-Entry Certificates shall be limited to those established by law and
agreements between such Certificate Owners and the Depository Participants and
brokerage firms representing such Certificate Owners. Multiple requests and
directions from, and votes of, the Depository as Holder of the Book-Entry
Certificates with respect to any particular matter shall not be deemed
inconsistent if they are made with respect to different Certificate Owners. The
Paying Agent may establish a reasonable record date in connection with
solicitations of consents from or voting by Certificateholders and shall give
notice to the Depository of such record date.
(c) If (i)(A) the Depositor advises the Trustee, the Paying Agent
and the Certificate Registrar in writing that the Depository is no longer
willing or able to properly discharge its responsibilities with respect to the
Book-Entry Certificates and (B) the Depositor is unable to locate a qualified
successor, or (ii) the Depositor at its option advises the Trustee, the Paying
Agent and the Certificate Registrar in writing that it elects to terminate the
book-entry system through the Depository, the Paying Agent shall notify the
affected Certificate Owners, through the Depository with respect to all, any
Class or any portion of any Class of the Certificates or (iii) the Certificate
Registrar determines that Definitive Certificates are required in accordance
with the provisions of Section 5.03(e), of the occurrence of any such event and
of the availability of Definitive Certificates to Certificate Owners requesting
the same. Upon surrender to the Certificate Registrar of the Book-Entry
Certificates by the Depository or any custodian acting on behalf of the
Depository, accompanied by registration instructions from the Depository for
registration of transfer, the Certificate Registrar shall execute, and the
Authenticating Agent shall authenticate and deliver, within 5 Business Days of
such request if made at the Registrar Office, or within 10 Business Days if made
at the office of a transfer agent (other than the Certificate Registrar), the
Definitive Certificates to the Certificate Owners identified in such
instructions. None of the Depositor, the Master Servicer, the Trustee, the
Paying Agent, the Special Servicer, the Authenticating Agent and 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 Class of Certificates, the registered Holders of such
Definitive Certificates shall be recognized as Certificateholders hereunder and,
accordingly, shall be entitled directly to receive payments on, to exercise
Voting Rights with respect to, and to transfer and exchange such Definitive
Certificates.
(d) The Book-Entry Certificates (i) shall be delivered by the
Certificate Registrar to the Depository, or pursuant to the Depository's
instructions, and shall be registered in the name of Cede & Co. and (ii) shall
bear a legend substantially to the following effect:
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to
the Certificate Registrar 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.
The Book-Entry Certificates may be deposited with such other
Depository as the Certificate Registrar may from time to time designate, and
shall bear such legend as may be appropriate.
(e) If the Trustee has instituted or if the Special Servicer or the
Master Servicer, on the Trustee's behalf, has been directed to institute any
judicial proceeding in a court to enforce the rights of the Certificateholders
under the Certificates, and the Trustee has been advised by counsel that in
connection with such proceeding it is necessary or appropriate for the Trustee
to obtain possession of all or any portion of the Certificates evidenced by
Book-Entry Certificates, the Trustee may in its sole discretion determine that
such Certificates shall no longer be represented by such Book-Entry
Certificates. In such event, the Certificate Registrar will execute, the
Authenticating Agent will authenticate and the Certificate Registrar will
deliver, in exchange for such Book-Entry Certificates, Definitive Certificates
in a Denomination equal to the aggregate Denomination of such Book-Entry
Certificates to the party so requesting such Definitive Certificates. In such
event, the Certificate Registrar shall notify the affected Certificate Owners
and make appropriate arrangements for the effectuation of the purpose of this
clause.
(f) Upon acceptance for exchange or transfer of a beneficial
interest in a Book-Entry Certificate for a Definitive Certificate, as provided
herein, the Certificate Registrar shall endorse on a schedule affixed to the
related Book-Entry Certificate (or on a continuation of such schedule affixed to
such Book-Entry Certificate and made a part thereof) an appropriate notation
evidencing the date of such exchange or transfer and a decrease in the
Denomination of such Book-Entry Certificate equal to the Denomination of such
Definitive Certificate issued in exchange therefor or upon transfer thereof.
(g) If a Holder of a Definitive Certificate (other than a Definitive
Certificate that is a Class S Certificate) wishes at any time to transfer such
Certificate to a Person who wishes to take delivery thereof in the form of a
beneficial interest in the Book-Entry Certificate, such transfer may be effected
only in accordance with Applicable Procedures, Section 5.02(b) and this Section
5.03(g). Upon receipt by the Certificate Registrar at the Registrar Office of
(i) the Definitive Certificate to be transferred with an assignment and transfer
pursuant to Section 5.02(a), and all required items pursuant to Section
5.02(b)(v), the Certificate Registrar shall cancel such Definitive Certificate,
execute and deliver a new Definitive Certificate for the Denomination of the
Definitive Certificate not so transferred, registered in the name of the Holder
or the Holder's transferee (as instructed by the Holder), and the Certificate
Registrar as custodian of the Book-Entry Certificates shall increase the
Denomination of the related Book-Entry Certificate by the Denomination of the
Definitive Certificate to be so transferred, and credit or cause to be credited
to the account of the Person specified in such instructions a corresponding
Denomination of such Book-Entry Certificate.
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
required by them to save each of them harmless, then, in the absence of actual
notice to the Trustee or the Certificate Registrar that such Certificate has
been acquired by a bona fide purchaser, the Certificate Registrar shall execute,
and the Authenticating Agent shall authenticate and deliver, in exchange for or
in lieu of any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate of the same Class and of like Percentage Interest. Upon the issuance
of any new Certificate under this Section, the Trustee and the Certificate
Registrar may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee and the Certificate
Registrar) connected therewith. Any replacement Certificate issued pursuant to
this Section shall constitute complete and indefeasible evidence of ownership in
the Trust Fund, as if originally issued, whether or not the lost, stolen or
destroyed Certificate shall be found at any time.
Section 5.05 Persons Deemed Owners. Prior to due presentation of a
Certificate for registration of transfer, the Depositor, the Master Servicer,
the Special Servicer, the Paying Agent, the Trustee, the Certificate Registrar
and any agents of any of them may treat the person in whose name such
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, except as and to the extent provided in the definition of
"Certificateholder," and none of the Depositor, the Master Servicer, the Special
Servicer, the Paying Agent, the Trustee, the Certificate Registrar and any agent
of any of them shall be affected by notice to the contrary except as provided in
Section 5.02(d).
Section 5.06 Certificate Ownership Certification. To the extent that
under the terms of this Agreement, it is necessary to determine whether any
Person is a Certificate Owner, the Paying Agent shall make such determination
based on a certificate of such Person which shall be addressed to the Paying
Agent and shall specify, in reasonable detail satisfactory to the Paying Agent,
such Person's name and address, the Class and Certificate Balance or Notional
Amount of the Regular Certificate beneficially owned, and any intermediaries
through which such Person's interest in such Regular Certificate is held (any
such certification, other than one which the Paying Agent shall refuse to
recognize pursuant to the following procedures, a "Certificate Ownership
Certification"); provided, however, that the Paying Agent shall not knowingly
recognize such Person as a Certificate Owner if such Person, to the actual
knowledge of a Responsible Officer of such party, acquired its interest in a
Regular Certificate in violation of the transfer restrictions herein, or if such
Person's certification that it is a Certificate Owner is in direct conflict with
information obtained by the Paying Agent from the Depository or any Depository
Participant with respect to the identity of a Certificate Owner; provided,
however, that to the extent the Paying Agent is required to obtain such
Certificate Owner information from the Depository or any Depository Participant,
the Paying Agent shall be reimbursed for any cost or expense in obtaining such
information from the Distribution Account. The Paying Agent may conclusively
rely on such Certificate Ownership Certification. The Master Servicer will only
be required to acknowledge the status of any Person as a Certificateholder or
Certificate Owner to the extent that the Paying Agent, at the request of the
Master Servicer, identifies such Person as a Certificateholder or Certificate
Owner.
Section 5.07 Appointment of Paying Agent.
(a) JPMorgan Chase Bank, National Association, located at 0 Xxx Xxxx
Xxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, is hereby initially appointed Paying
Agent to act on the Trustee's behalf in accordance with the terms of this
Agreement. If the Paying Agent resigns or is terminated, the Trustee shall
appoint a successor Paying Agent which may be the Trustee or an Affiliate
thereof to fulfill the obligations of the Paying Agent hereunder which must be
(i) a corporation, national bank, national banking association or a trust
company, organized and doing business under the laws of any state or the United
States of America, authorized under such laws to exercise corporate trust powers
under this Agreement, having a combined capital and surplus of at least
$100,000,000 and subject to supervision or examination by federal or state
authority (ii) an institution insured by the Federal Deposit Insurance
Corporation and (iii) an institution whose long-term senior unsecured debt is
rated "A" by Xxxxx'x and "A" by Fitch (or such entity as would not, as evidenced
in writing by such Rating Agency, result in the qualification, downgrading or
withdrawal of any of the ratings then assigned thereby to the Certificates).
(b) The Paying Agent may rely upon and shall be protected in acting
or refraining from acting upon any resolution, Officer's Certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, Appraisal, bond or other paper
or document reasonably believed by it to be genuine and to have been signed or
presented by the proper party or parties.
(c) [Reserved]
(d) The Paying Agent shall not be personally liable for any action
reasonably taken, suffered or omitted by it in good faith and believed by it to
be authorized or within the discretion or rights or powers conferred upon it by
this Agreement.
(e) The Paying Agent may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys; provided, however, that the appointment of such agents or
attorneys shall not relieve the Paying Agent of its duties or obligations
hereunder.
(f) The Paying Agent shall not be responsible for any act or
omission of the Trustee, the Master Servicer or the Special Servicer or of the
Depositor.
[End of Article V]
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER,
THE SPECIAL SERVICER AND
THE DIRECTING CERTIFICATEHOLDER
Section 6.01 Liability of the Depositor, the Master Servicer and the
Special Servicer. The Depositor, the Master Servicer and the Special Servicer
shall be liable in accordance herewith only to the extent of the respective
obligations specifically imposed upon and undertaken by the Depositor, the
Master Servicer and the Special Servicer herein.
Section 6.02 Merger, Consolidation or Conversion of the Depositor,
the Master Servicer or the Special Servicer. (a) Subject to subsection (b)
below, the Depositor, the Master Servicer and the Special Servicer each will
keep in full effect its existence, rights and franchises as a corporation under
the laws of the jurisdiction of its incorporation or organization, and each will
obtain and preserve its qualification to do business as a foreign corporation in
each jurisdiction in which such qualification is or shall be necessary to
protect the validity and enforceability of this Agreement, the Certificates or
any of the Mortgage Loans and to perform its respective duties under this
Agreement.
(b) The Depositor, the Master Servicer and the Special Servicer each
may be merged or consolidated with or into any Person, or transfer all or
substantially all of its assets (which may be limited to all or substantially
all of its assets related to commercial mortgage loan servicing) to any Person,
in which case any Person resulting from any merger or consolidation to which the
Depositor, the Master Servicer or the Special Servicer shall be a party, or any
Person succeeding to the business of the Depositor, the Master Servicer or the
Special Servicer, shall be the successor of the Depositor, the Master Servicer
and the Special Servicer, as the case may be, hereunder, without the execution
or filing of any paper (other than an assumption agreement wherein the successor
shall agree to perform the obligations of and serve as the Depositor, the Master
Servicer or the Special Servicer, as the case may be, in accordance with the
terms of this Agreement) or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding; provided, however, that
such merger, consolidation or succession will not result in a withdrawal,
downgrading or qualification of the then-current ratings of the Classes of
Certificates that have been so rated (as evidenced by a letter to such effect
from each Rating Agency).
Section 6.03 Limitation on Liability of the Depositor, the Master
Servicer, the Special Servicer and Others. (a) None of the Depositor, the Master
Servicer, the Special Servicer and their respective Affiliates or any of the
directors, officers, employees or agents of any of the foregoing shall be under
any liability to the Trust or the Certificateholders or the Companion Holders
for any action taken or for refraining from the taking of any action in good
faith pursuant to this Agreement, or for errors in judgment; provided, however,
that (i) this provision shall not protect the Depositor, the Master Servicer,
the Special Servicer and their respective Affiliates or any such Person against
any breach of warranties or representations made herein or any liability which
would otherwise be imposed by reason of willful misfeasance, bad faith or
negligence in the performance of duties or by reason of negligent disregard of
obligations and duties hereunder. The Depositor, the Master Servicer and the
Special Servicer and their respective Affiliates and any director, officer,
member, manager, employee or agent of the Depositor, the Master Servicer or the
Special Servicer or their respective Affiliates may rely on any document of any
kind which, prima facie, is properly executed and submitted by any Person
respecting any matters arising hereunder. The Depositor, the Master Servicer,
the Special Servicer and their respective Affiliates and any director, officer,
employee or agent of any of the foregoing shall be indemnified and held harmless
by the Trust against any and all claims, losses, penalties, fines, forfeitures,
reasonable legal fees and related costs, judgments, and any other costs,
liabilities, fees and expenses incurred in connection with any legal action
(whether in equity or at law) or claim relating to this Agreement, the Mortgage
Loans, the Companion Loans or the Certificates, other than any loss, liability
or expense: (i) specifically required to be borne thereby pursuant to the terms
hereof; (ii) incurred in connection with any breach of a representation or
warranty made by it herein; (iii) incurred by reason of bad faith, willful
misconduct or negligence in the performance of its obligations or duties
hereunder, or by reason of negligent disregard of such obligations or duties; or
(iv) in the case of the Depositor and any of its directors, officers, employees
and agents, incurred in connection with any violation by any of them of any
state or federal securities law. Each of the Master Servicer and the Special
Servicer may rely, and shall be protected in acting or refraining from acting
upon, any resolution, officer's certificate, certificate of auditors or any
other certificate, statement, instrument, opinion, report, notice, request,
consent, order, financial statement, agreement, appraisal, bond or other
document (in electronic or paper format) as contemplated by and in accordance
with this Agreement and reasonably believed or in good faith believed by the
Master Servicer or the Special Servicer to be genuine and to have been signed or
presented by the proper party or parties and each of them may consult with
counsel, in which case any written advice of counsel or Opinion of Counsel shall
be full and complete authorization and protection with respect to any action
taken or suffered or omitted by it hereunder in good faith and in accordance
with such advice or Opinion of Counsel.
(b) None of the Depositor, the Master Servicer and the Special
Servicer shall be under any obligation to appear in, prosecute or defend any
legal or administrative action (whether in equity or at law), proceeding,
hearing or examination that is not incidental to its respective duties under
this Agreement or which in its opinion may involve it in any expense or
liability not recoverable from the Trust Fund; provided, however, that the
Depositor, the Master Servicer or the Special Servicer may in its discretion
undertake any such action, proceeding, hearing or examination that it may deem
necessary or desirable in respect to this Agreement and 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, proceeding, hearing or
examination and any liability resulting therefrom shall be expenses, costs and
liabilities of the Trust Fund, and the Depositor, the Master Servicer and the
Special Servicer shall be entitled to be reimbursed therefor out of amounts
attributable to the Mortgage Loans and Companion Loans on deposit in the
Certificate Account, as provided by Section 3.05(a).
(c) Each of the Master Servicer and the Special Servicer agrees to
indemnify the Depositor, the Trustee, the Paying Agent and the Trust and any
director, officer, employee or agent thereof, and hold them harmless, from and
against any and all claims, losses, penalties, fines, forfeitures, reasonable
legal fees and related costs, judgments, and any other costs, liabilities, fees
and expenses that any of them may sustain arising from or as a result of any
willful misfeasance, bad faith or negligence of the Master Servicer or the
Special Servicer, as the case may be, in the performance of its obligations and
duties under this Agreement or by reason of negligent disregard by the Master
Servicer or the Special Servicer, as the case may be, of its duties and
obligations hereunder or by reason of breach of any representations or
warranties made herein; provided that such indemnity shall not cover indirect or
consequential damages. The Trustee, the Paying Agent or the Depositor, as the
case may be, shall immediately notify the Master Servicer or the Special
Servicer, as applicable, if a claim is made by a third party with respect to
this Agreement or the Mortgage Loans entitling the Trust to indemnification
hereunder, whereupon the Master Servicer or the Special Servicer, as the case
may be, shall assume the defense of such claim (with counsel reasonably
satisfactory to the Trustee, the Paying Agent or the Depositor) and pay all
expenses in connection therewith, including counsel fees, and promptly pay,
discharge and satisfy any judgment or decree which may be entered against it or
them in respect of such claim. Any failure to so notify the Master Servicer or
the Special Servicer, as the case may be, shall not affect any rights any of the
foregoing Persons may have to indemnification under this Agreement or otherwise,
unless the Master Servicer's, or the Special Servicer's, as the case may be,
defense of such claim is materially prejudiced thereby.
(d) Each of the Trustee and the Paying Agent, respectively (and not
jointly and severally) agrees to indemnify the Master Servicer and the Special
Servicer and any director, officer, employee or agent thereof, and hold them
harmless, from and against any and all claims, losses, penalties, fines,
forfeitures, reasonable legal fees and related costs, judgments, and any other
costs, liabilities, fees and expenses that any of them may sustain arising from
or as a result of any willful misfeasance, bad faith or negligence of the
Trustee or the Paying Agent, respectively, in the performance of its obligations
and duties under this Agreement or by reason of negligent disregard by the
Trustee or the Paying Agent, respectively, of its duties and obligations
hereunder or by reason of breach of any representations or warranties made
herein; provided, that such indemnity shall not cover indirect or consequential
damages. The Master Servicer or the Special Servicer, as the case may be, shall
immediately notify the Trustee and the Paying Agent, respectively, if a claim is
made by a third party with respect to this Agreement, whereupon the Trustee or
the Paying Agent shall assume the defense of such claim (with counsel reasonably
satisfactory to the Master Servicer or the Special Servicer) and pay all
expenses in connection therewith, including counsel fees, and promptly pay,
discharge and satisfy any judgment or decree which may be entered against it or
them in respect of such claim. Any failure to so notify the Trustee or the
Paying Agent shall not affect any rights any of the foregoing Persons may have
to indemnification under this Agreement or otherwise, unless the Trustee's or
the Paying Agent's defense of such claim is materially prejudiced thereby.
(e) The Depositor agrees to indemnify the Master Servicer and the
Special Servicer and any director, officer, employee or agent thereof, and hold
them harmless, from and against any and all claims, losses, penalties, fines,
forfeitures, reasonable legal fees and related costs, judgments, and any other
costs, liabilities, fees and expenses that any of them may sustain arising from
or as a result of any willful misfeasance, bad faith or negligence of the
Depositor, in the performance of its obligations and duties under this Agreement
or by reason of negligent disregard by the Depositor of its duties and
obligations hereunder or by reason of breach of any representations or
warranties made herein; provided, that such indemnity shall not cover indirect
or consequential damages. The Master Servicer or the Special Servicer, as the
case may be, shall immediately notify the Depositor if a claim is made by a
third party with respect to this Agreement, whereupon the Depositor shall assume
the defense of such claim (with counsel reasonably satisfactory to the Master
Servicer or the Special Servicer) and pay all expenses in connection therewith,
including counsel fees, and promptly pay, discharge and satisfy any judgment or
decree which may be entered against it or them in respect of such claim. Any
failure to so notify the Depositor shall not affect any rights any of the
foregoing Persons may have to indemnification under this Agreement or otherwise,
unless the Depositor's defense of such claim is materially prejudiced thereby.
The indemnification provided herein shall survive the termination of
this Agreement and the termination or resignation of the Master Servicer, the
Trustee, the Paying Agent and the Special Servicer.
Section 6.04 Depositor, Master Servicer and Special Servicer Not to
Resign. Subject to the provisions of Section 6.02, neither the Master Servicer
nor the Special Servicer shall resign from their respective obligations and
duties hereby imposed on each of them except upon (a) determination that such
party's duties hereunder are no longer permissible under applicable law or (b)
in the case of the Master Servicer, upon the appointment of, and the acceptance
of such appointment by, a successor Master Servicer and receipt by the Trustee
of written confirmation from each applicable Rating Agency that such resignation
and appointment will not cause such Rating Agency to downgrade, withdraw or
qualify any of the then current ratings assigned by such Rating Agency to any
Class of Certificates. Only the Master Servicer shall be permitted to resign
pursuant to clause (b) above. Any such determination permitting the resignation
of the Master Servicer or the Special Servicer pursuant to clause (a) above
shall be evidenced by an Opinion of Counsel (at the expense of the resigning
party) to such effect delivered to the Trustee and the Directing
Certificateholder. No such resignation by the Master Servicer or the Special
Servicer shall become effective until the Trustee or a successor Master Servicer
shall have assumed the Master Servicer's or Special Servicer's, as applicable,
responsibilities and obligations in accordance with Section 7.02. Upon any
termination or resignation of the Master Servicer hereunder, the Master Servicer
shall have the right and opportunity to appoint any successor Master Servicer
with respect to this Section 6.04, provided that such successor Master Servicer
is approved by the Directing Certificateholder, such approval not to be
unreasonably withheld.
Section 6.05 Rights of the Depositor in Respect of the Master
Servicer and the Special Servicer. The Depositor may, but is not obligated to,
enforce the obligations of the Master Servicer and the Special Servicer
hereunder and may, but is not obligated to, perform, or cause a designee to
perform, any defaulted obligation of the Master Servicer and the Special
Servicer hereunder or exercise the rights of the Master Servicer or Special
Servicer, as applicable, hereunder; provided, however, that the Master Servicer
and the Special Servicer shall not be relieved of any of their respective
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 the Master Servicer or the Special Servicer and is
not obligated to supervise the performance of the Master Servicer or the Special
Servicer under this Agreement or otherwise.
Section 6.06 The Master Servicer and the Special Servicer as
Certificate Owner. The Master Servicer, the Special Servicer or any 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 the Master Servicer, the Special Servicer or an Affiliate thereof.
Section 6.07 The Directing Certificateholder and the 000 Xxxx Xxxxxx
Xxxxx X Note Representative. The Directing Certificateholder (or, prior to the
occurrence and continuance of a 000 Xxxx Xxxxxx Xxxxx Control Appraisal Event
with respect to 000 Xxxx Xxxxxx Xxxxx Whole Loan, the 000 Xxxx Xxxxxx Xxxxx X
Note Representative) shall be entitled to advise (1) the Special Servicer with
respect to all Specially Serviced Mortgage Loans, (2) the Special Servicer and
the Master Servicer with respect to Non-Specially Serviced Mortgage Loans as to
which the Master Servicer must obtain the consent or deemed consent of the
Special Servicer, and (3) the Special Servicer with respect to all Mortgage
Loans for which an extension of maturity is being considered by the Special
Servicer or by the Master Servicer subject to consent or deemed consent of the
Special Servicer, and notwithstanding anything herein to the contrary, except as
set forth in, and in any event subject to, Section 3.08(f) and the second
paragraph of this Section 6.07, the Master Servicer or Special Servicer, as
applicable, shall not be permitted to take any of the following actions as to
which the Directing Certificateholder has objected in writing within ten (10)
Business Days (or, prior to the occurrence and continuance of a 000 Xxxx Xxxxxx
Xxxxx Control Appraisal Event with respect to the 000 Xxxx Xxxxxx Xxxxx Whole
Loan, thirty (30) days) of being notified thereof (provided that if such written
objection has not been received by the Master Servicer or the Special Servicer,
as applicable, within such ten (10) Business Day period (or, prior to the
occurrence and continuance of a 000 Xxxx Xxxxxx Xxxxx Control Appraisal Event
with respect to the 000 Xxxx Xxxxxx Xxxxx Whole Loan, ten (10) day period), then
the Directing Certificateholder (or, the 000 Xxxx Xxxxxx Xxxxx X Note
Representative) will be deemed to have waived its right to object):
(i) any proposed or actual foreclosure upon or comparable conversion
(which may include acquisitions of an REO Property) of the ownership of
properties securing such of the Mortgage Loans as come into and continue
in default;
(ii) any modification, consent to a modification or waiver of a
monetary term or material non-monetary term (including, without
limitation, the timing of payments and acceptance of discounted payoffs
but excluding waiver of Default Interest or late payment charges) of a
Mortgage Loan or any extension of the maturity date of any Mortgage Loan;
(iii) any sale of a Defaulted Mortgage Loan or REO Property (other
than in connection with the termination of the Trust Fund) for less than
the applicable Purchase Price;
(iv) any determination to bring an REO Property into compliance with
applicable environmental laws or to otherwise address Hazardous Materials
located at an REO Property;
(v) any release of collateral or any acceptance of substitute or
additional collateral for a Mortgage Loan, or any consent to either of the
foregoing, other than required pursuant to the specific terms of the
related Mortgage Loan;
(vi) any waiver of a "due-on-sale" or "due-on-encumbrance" clause
with respect to a Mortgage Loan or any consent to such waiver or consent
to a transfer of the Mortgaged Property or interests in the borrower or
consent to the incurrence of additional debt, other than any such transfer
or incurrence of debt as may be effected without the consent of the lender
under the related loan agreement;
(vii) any property management company changes or franchise changes
with respect to a Mortgage Loan for which the Master Servicer is required
to consent or approve;
(viii) releases of any escrows, reserve accounts or letters of
credit held as performance escrows or reserves, other than those required
pursuant to the specific terms of the Mortgage Loans with no material
lender discretion;
(ix) any acceptance of an assumption agreement releasing a Mortgagor
from liability under a Mortgage Loan other than pursuant to the specific
terms of such Mortgage Loan; and
(x) any determination of an Acceptable Insurance Default;
provided that, in the event that the Special Servicer or Master Servicer (in the
event the Master Servicer is otherwise authorized by this Agreement to take such
action), as applicable, determines that immediate action is necessary to protect
the interests of the Certificateholders (as a collective whole), the Special
Servicer or Master Servicer, as applicable may take any such action without
waiting for the Directing Certificateholder's or the 000 Xxxx Xxxxxx Xxxxx X
Note Representative's response.
In addition, the Directing Certificateholder may direct the Special
Servicer to take, or to refrain from taking, such other actions with respect to
a Mortgage Loan, as the Directing Certificateholder may deem advisable or as to
which provision is otherwise made herein; provided that notwithstanding anything
herein to the contrary, no such direction, and no objection contemplated by the
preceding paragraph, may require or cause the Special Servicer to violate any
provision of any Mortgage Loan, applicable law, this Agreement or the REMIC
Provisions, including without limitation the Special Servicer's obligation to
act in accordance with the Servicing Standards, or expose the Master Servicer,
the Special Servicer, the Paying Agent, the Trust Fund or the Trustee to
liability, or materially expand the scope of the Special Servicer's
responsibilities hereunder or cause the Special Servicer to act, or fail to act,
in a manner which in the reasonable judgment of the Special Servicer is not in
the best interests of the Certificateholders.
With respect to the 000 Xxxx Xxxxxx Xxxxx Whole Loan, to the extent
a 000 Xxxx Xxxxxx Xxxxx Control Appraisal Event has not occurred or, if
occurring, is no longer continuing, the 000 Xxxx Xxxxxx Xxxxx X Note
Representative, instead of the Directing Certificateholder, will have the rights
of the Directing Certificateholder described in the two preceding paragraphs
above insofar as it relates solely to the 000 Xxxx Xxxxxx Xxxxx Whole Loan.
In the event the Special Servicer or Master Servicer, as applicable,
determines that a refusal to consent by the Directing Certificateholder or 000
Xxxx Xxxxxx X Note Representative or any advice from the Directing
Certificateholder or the 000 Xxxx Xxxxxx Xxxxx X Note Representative would
otherwise cause the Special Servicer or Master Servicer, as applicable, to
violate the terms of any Mortgage Loan, applicable law, this Agreement,
including without limitation, the Servicing Standards, the Special Servicer or
Master Servicer, as applicable, shall disregard such refusal to consent or
advise and notify the other servicer, the Directing Certificateholder (and with
respect to the 000 Xxxx Xxxxxx Xxxxx Whole Loan, the 000 Xxxx Xxxxxx Xxxxx X
Note Representative), the Trustee and the Rating Agencies of its determination,
including a reasonably detailed explanation of the basis therefor.
The Directing Certificateholder (and prior to the occurrence and
continuance of the applicable Control Appraisal Event, with respect to the 000
Xxxx Xxxxxx Xxxxx Whole Loan, the 000 Xxxx Xxxxxx Xxxxx X Note Representative)
shall have no liability to the Trust Fund or the Certificateholders for any
action taken, or for refraining from the taking of any action, or for errors in
judgment; provided, however, that the Directing Certificateholder (and prior to
the occurrence and continuance of the applicable Control Appraisal Event, with
respect to the 000 Xxxx Xxxxxx Xxxxx Whole Loan, the 000 Xxxx Xxxxxx Xxxxx X
Note Representative) shall not be protected against any liability to the
Controlling Class Certificateholder that would otherwise be imposed by reason of
willful misfeasance, bad faith or negligence in the performance of duties or by
reason of reckless disregard of obligations or duties. By its acceptance of a
Certificate, each Certificateholder acknowledges and agrees that the Directing
Certificateholder (and prior to the occurrence and continuance of the applicable
Control Appraisal Event, with respect to the 000 Xxxx Xxxxxx Xxxxx Whole Loan,
the 000 Xxxx Xxxxxx Xxxxx X Note Representative) may take actions that favor the
interests of one or more Classes of the Certificates including the Holders of
the Controlling Class (or with respect to the 000 Xxxx Xxxxxx Xxxxx X Note
Representative, the interests of the 000 Xxxx Xxxxxx Xxxxx Companion Loan) over
other Classes of the Certificates, and that the Directing Certificateholder (and
prior to the occurrence and continuance of the applicable Control Appraisal
Event, with respect to the 000 Xxxx Xxxxxx Xxxxx Whole Loan, the 000 Xxxx Xxxxxx
Xxxxx X Note Representative) may have special relationships and interests that
conflict with those of Holders of some Classes of the Certificates, that the
Directing Certificateholder (and prior to the occurrence and continuance of the
applicable Control Appraisal Event, with respect to the 000 Xxxx Xxxxxx Xxxxx
Whole Loan, the 000 Xxxx Xxxxxx Xxxxx X Note Representative) may act solely in
the interests of the Holders of the Controlling Class including the Holders of
the Controlling Class (or with respect to the 000 Xxxx Xxxxxx Xxxxx X Note
Representative), that the Directing Certificateholder does not have any duties
or liability to the Holders of any Class of Certificates other than the
Controlling Class, that the 000 Xxxx Xxxxxx Xxxxx X Note Representative does not
have any duties or liability to the Holders of any Class of Certificates, that
the Directing Certificateholder (and prior to the occurrence and continuance of
the applicable Control Appraisal Event, with respect to the 000 Xxxx Xxxxxx
Xxxxx Whole Loan, the 000 Xxxx Xxxxxx Xxxxx X Note Representative) shall not be
liable to any Certificateholder, by reason of its having acted solely in the
interests of the Holders of the Controlling Class including the Holders of the
Controlling Class (or with respect to the 000 Xxxx Xxxxxx Xxxxx X Note
Representative, the interests of the 000 Xxxx Xxxxxx Xxxxx Companion Loan), and
that the Directing Certificateholder (and prior to the occurrence and
continuance of the applicable Control Appraisal Event, with respect to the 000
Xxxx Xxxxxx Xxxxx Whole Loan, the 000 Xxxx Xxxxxx Xxxxx X Note Representative)
shall have no liability whatsoever for having so acted, and no Certificateholder
may take any action whatsoever against the Directing Certificateholder (and
prior to the occurrence and continuance of the applicable Control Appraisal
Event, with respect to the 000 Xxxx Xxxxxx Xxxxx Whole Loan, the 000 Xxxx Xxxxxx
Xxxxx X Note Representative) or any director, officer, employee, agent or
principal thereof for having so acted.
[End of Article VI]
ARTICLE VII
DEFAULT
Section 7.01 Events of Default; Master Servicer and Special Servicer
Termination. (a) "Event of Default," wherever used herein, means any one of the
following events:
(i) (A) any failure by the Master Servicer to make any deposit
required to be made by the Master Servicer to the Certificate Account on
the day and by the time such deposit is required to be made under the
terms of this Agreement, which failure is not remedied within one Business
Day or (B) any failure by the Master Servicer to deposit into, or remit to
the Paying Agent for deposit into, any Distribution Account any amount
required to be so deposited or remitted, which failure is not remedied by
11:00 a.m. (New York City time) on the relevant Distribution Date; or
(ii) any failure by the Special Servicer to deposit into the REO
Account, within one Business Day after such deposit is required to be made
or to remit to the Master Servicer for deposit into the Certificate
Account or to deposit into, or to remit to the Paying Agent for deposit
into, the Lower-Tier Distribution Account any amount required to be so
deposited or remitted by the Special Servicer pursuant to, and at the time
specified by, the terms of this Agreement; or
(iii) any failure on the part of the Master Servicer or the Special
Servicer duly to observe or perform in any material respect any of its
other covenants or obligations contained in this Agreement which continues
unremedied for a period of 30 days (6 days for the year 2005 and 5 days
for each year thereafter in the case of the Master Servicer's or Special
Servicer's, as applicable, obligations contemplated by Sections 3.13, 3.14
and 4.02(e) hereof, 15 days in the case of the Master Servicer's failure
to make a Servicing Advance or 15 days in the case of a failure to pay the
premium for any insurance policy required to be maintained hereunder)
after the date on which written notice of such failure, requiring the same
to be remedied, shall have been given (A) to the Master Servicer or the
Special Servicer, as the case may be, by any other party hereto, or (B) to
the Master Servicer or the Special Servicer, as the case may be, with a
copy to each other party to this Agreement, by the Holders of Certificates
evidencing Percentage Interests aggregating not less than 25%; provided,
however, if such failure is capable of being cured and the Master Servicer
or Special Servicer, as applicable, is diligently pursuing such cure, such
30-day period will be extended an additional 30 days; or
(iv) any breach on the part of the Master Servicer or the Special
Servicer of any representation or warranty contained in Section 3.24 or
Section 3.25, as applicable, which materially and adversely affects the
interests of any Class of Certificateholders and which continues
unremedied for a period of 30 days after the date on which notice of such
breach, requiring the same to be remedied, shall have been given to the
Master Servicer or the Special Servicer, as the case may be, by the
Depositor, the Paying Agent or the Trustee, or to the Master Servicer, the
Special Servicer, the Depositor, the Paying Agent and the Trustee by the
Holders of Certificates evidencing Percentage Interests aggregating not
less than 25%; provided, however, if such breach is capable of being cured
and the Master Servicer or Special Servicer, as applicable, is diligently
pursuing such cure, such 30-day period will be extended an additional 30
days; or
(v) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law
for the appointment of a conservator, receiver, liquidator, trustee or
similar official in any bankruptcy, insolvency, readjustment of debt,
marshaling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against
the Master Servicer or the Special Servicer and such decree or order shall
have remained in force undischarged, undismissed or unstayed for a period
of 60 days; or
(vi) the Master Servicer or the Special Servicer shall consent to
the appointment of a conservator, receiver, liquidator, trustee or similar
official in any bankruptcy, insolvency, readjustment of debt, marshaling
of assets and liabilities or similar proceedings of or relating to the
Master Servicer or the Special Servicer or of or relating to all or
substantially all of its property; or
(vii) the Master Servicer or the Special Servicer shall admit in
writing its inability to pay its debts generally as they become due, file
a petition to take advantage of any applicable bankruptcy, insolvency or
reorganization statute, make an assignment for the benefit of its
creditors, voluntarily suspend payment of its obligations or take any
corporate action in furtherance of the foregoing; or
(viii) Moody's places its ratings of any Class of Certificates on a
"watch" status in contemplation of a ratings downgrade or withdrawal,
citing servicing or special servicing concerns, as applicable, as the sole
or a material factor in such rating action and such "watch" status is not
rescinded within 90 days (or such longer period as would not, as confirmed
by Moody's in writing, result in a qualification, downgrade or withdrawal
of one or more ratings assigned by such Rating Agency to the
Certificates); or
(ix) Moody's downgrades the then current ratings of any Class of
Certificates, citing servicing or special servicing concerns, as
applicable, as the sole or a material factor in such downgrade; or
(x) the Trustee has received a written notice from Fitch (which the
Trustee is required to promptly forward to the Master Servicer or the
Special Servicer, as applicable), to the effect that if the Master
Servicer or the Special Servicer, as applicable, continues to act in such
capacity, the rating or ratings on one or more Classes of Certificates
will be downgraded or withdrawn, citing servicing concerns relating to the
Master Servicer or the Special Servicer, as the case may be, as the sole
or material factor in such action; provided, such Master Servicer or the
Special Servicer, as applicable, shall have ninety (90) days to resolve
such matters to the satisfaction of Fitch (or such longer time period as
may be agreed in writing by Fitch) prior to the replacement of the Master
Servicer or the Special Servicer or the downgrade of any Class of
Certificates; or
(xi) the Master Servicer or Special Servicer is removed from the S&P
approved master servicer list or approved special servicer list, as
applicable, and is not reinstated to the approved master servicer or
special servicer list, as applicable, within 30 days of such removal.
(b) If any Event of Default with respect to the Master Servicer or
the 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 such Event of Default shall not have been remedied, the
Trustee or the Depositor may, and at the written direction of the Directing
Certificateholder or the Holders of Certificates entitled to at least 51% of the
Voting Rights, the Trustee shall, terminate, by notice in writing to the
Defaulting Party, with a copy of such notice to the Depositor, all of the rights
(subject to Section 3.11 and Section 6.03) and obligations of the Defaulting
Party under this Agreement and in and to the Mortgage Loans and the proceeds
thereof (other than as a Certificateholder or Companion Holder, if applicable);
provided, however, that the Defaulting Party shall be entitled to the payment of
accrued and unpaid compensation and reimbursement through the date of such
termination as provided for under this Agreement for services rendered and
expenses incurred. From and after the receipt by the Defaulting Party of such
written notice except as otherwise provided in this Article VII, 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 with respect to a
termination of the Master Servicer or the Special Servicer pursuant to and under
this Section, and, without limitation, the Trustee is hereby authorized and
empowered to execute and deliver, on behalf of and at the expense of the
Defaulting Party, as attorney-in-fact or otherwise, any and all documents and
other instruments, and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement or assignment of the Mortgage Loans and
related documents, or otherwise. The Master Servicer and Special Servicer each
agree that if it is terminated pursuant to this Section 7.01(b), it shall
promptly (and in any event no later than 20 Business Days subsequent to its
receipt of the notice of termination) provide the Trustee with all documents and
records requested by it to enable it to assume the Master Servicer's or the
Special Servicer's, as the case may be, functions hereunder, and shall cooperate
with the Trustee in effecting the termination of the Master Servicer's or the
Special Servicer's, as the case may be, responsibilities and rights (subject to
Section 3.11 and Section 6.03) hereunder, including, without limitation, the
transfer within 5 Business Days to the Trustee or the Master Servicer, as
applicable, for administration by it of all cash amounts which shall at the time
be or should have been credited by the Master Servicer to the Certificate
Account or any Servicing Account (if it is the Defaulting Party) or by the
Special Servicer to the REO Account (if it is the Defaulting Party) or
thereafter be received with respect to the Mortgage Loans or any REO Property
(provided, however, that the Master Servicer and the Special Servicer each
shall, if terminated pursuant to this Section 7.01(b), continue to be entitled
to receive all amounts accrued or owing to it under this Agreement on or prior
to the date of such termination, whether in respect of Advances (in the case of
the Special Servicer or the Master Servicer) or otherwise, and it and its
Affiliates and the directors, managers, officers, members, employees and agents
of it and its Affiliates shall continue to be entitled to the benefits of
Section 3.11 and Section 6.03 notwithstanding any such termination).
(c) If the Master Servicer receives notice of termination solely due
to an Event of Default under Section 7.01(b) solely due to an Event of Default
under Section 7.01(a)(viii) through (x) and if the Master Servicer to be
terminated pursuant to Section 7.01(b) provides the Trustee with the appropriate
"request for proposal" materials within five (5) Business Days following such
termination notice, then the Master Servicer shall continue to service as Master
Servicer hereunder until a successor Master Servicer is selected in accordance
with this Section 7.01(c). Upon receipt of the "request for proposal" materials,
Trustee shall promptly thereafter (using such "request for proposal" materials
provided by the Master Servicer pursuant to Section 7.01(b)) solicit good faith
bids for the rights to service the Mortgage Loans and Companion Loans under this
Agreement from at least three (3) Persons qualified to act as Master Servicer
hereunder in accordance with Sections 6.02 and 7.02 (any such Person so
qualified, a "Qualified Bidder") or, if three (3) Qualified Bidders cannot be
located, then from as many persons as the Trustee can determine are Qualified
Bidders; provided that, at the Trustee's request, the Master Servicer shall
supply the Trustee with the names of Persons from whom to solicit such bids; and
provided, further, that the Trustee shall not be responsible if less than three
(3) or no Qualified Bidders submit bids for the right to service the Mortgage
Loans and Companion Loans under this Agreement. The bid proposal shall require
any Successful Bidder (as defined below), as a condition of such bid, to enter
into this Agreement as successor Master Servicer, and to agree to be bound by
the terms hereof, within 45 days after the notice of termination of the Master
Servicer. The materials provided to the Trustee shall provide for soliciting
bids: (i) on the basis of such successor Master Servicer retaining all
Sub-Servicers to continue the primary servicing of the Mortgage Loans and
Companion Loans pursuant to the terms of the respective Sub-Servicing Agreements
(each, a "Servicing-Retained Bid"); and (ii) on the basis of terminating each
Sub-Servicing Agreement and Sub-Servicer that it is permitted to terminate in
accordance with Section 3.22 (each, a "Servicing-Released Bid"). The Trustee
shall select the Qualified Bidder with the highest cash Servicing-Retained Bid
(or, if none, the highest cash Servicing-Released Bid) (the "Successful Bidder")
to act as successor Master Servicer hereunder; provided, however, that if the
Trustee does not receive confirmation in writing by each Rating Agency that the
appointment of such Successful Bidder as successor Master Servicer will not
result in the withdrawal, downgrade, or qualification of the rating assigned by
the Rating Agency to any class of Certificates within 10 days after the
selection of such Successful Bidder, then the Trustee shall repeat the bid
process described above (but subject to the above-described 45-day time period)
until such confirmation is obtained. The Trustee shall direct the Successful
Bidder to enter into this Agreement as successor Master Servicer pursuant to the
terms hereof no later than 45 days after notice of the termination of the Master
Servicer.
Upon the assignment and acceptance of master servicing rights
hereunder (subject to the terms of Section 3.11) to and by the Successful
Bidder, the Trustee shall remit or cause to be remitted (i) if the successful
bid was a Servicing-Retained Bid, to the Master Servicer to be terminated
pursuant to Section 7.01(b), the amount of such cash bid received from the
Successful Bidder (net of "out-of-pocket" expenses incurred in connection with
obtaining such bid and transferring servicing) and (ii) if the successful bid
was a Servicing-Released Bid, to the Master Servicer and each terminated
Sub-Servicer its respective Bid Allocation.
The Master Servicer to be terminated pursuant to Section 7.01(b)
shall be responsible for all out-of-pocket expenses incurred in connection with
the attempt to sell its rights to service the Mortgage Loans, which expenses are
not reimbursed to the party that incurred such expenses pursuant to the
preceding paragraph.
If the Successful Bidder has not entered into this Agreement as
successor Master Servicer within the above-described time period or no
Successful Bidder was identified within the above-described time period, the
Master Servicer to be terminated pursuant to Section 7.01(b) shall reimburse the
Trustee for all reasonable "out-of-pocket" expenses incurred by the Trustee in
connection with such bid process and the Trustee shall have no further
obligations under this Section 7.01(c). The Trustee thereafter may act or may
select a successor to act as Master Servicer hereunder in accordance with
Section 7.02.
(d) The Directing Certificateholder shall be entitled to terminate
the rights (subject to Section 3.11 and Section 6.03(d)) and obligations of the
Special Servicer under this Agreement, with or without cause, upon ten (10)
Business Days' notice to the Special Servicer, the Master Servicer, the Paying
Agent and the Trustee; such termination to be effective upon the appointment of
a successor Special Servicer meeting the requirements of this Section 7.01(d).
Upon a termination or resignation of such Special Servicer, the Directing
Certificateholder shall appoint a successor Special Servicer; provided, however,
that (i) such successor will meet the requirements set forth in Section 7.02 and
(ii) as evidenced in writing by each of the Rating Agencies, the proposed
successor of such Special Servicer will not, in and of itself, result in a
downgrading, withdrawal or qualification of the then-current ratings provided by
the Rating Agencies in respect to any Class of then outstanding Certificates
that is rated.
(e) No penalty or fee shall be payable to the terminated Special
Servicer with respect to any termination pursuant to this Section 7.01(d). All
costs and expenses of any such termination made without cause shall be paid by
the Holders of the Controlling Class.
Section 7.02 Trustee to Act; Appointment of Successor. On and after
the time the Master Servicer or the Special Servicer, as the case may be, either
resigns pursuant to Subsection (a) of the first sentence of Section 6.04 or
receives a notice of termination for cause pursuant to Section 7.01(b), and
provided that no acceptable successor has been appointed within the time period
specified in Section 7.01(c), the Trustee shall be the successor to the Master
Servicer or the Special Servicer, until such successor is appointed by the
Directing Certificateholder as provided in Section 7.01(c), as applicable, in
all respects in its capacity as Master Servicer or Special Servicer under this
Agreement and the transactions set forth or provided for herein and shall be
subject to, and have the benefit of, all of the rights, (subject to Section 3.11
and Section 6.03) benefits, responsibilities, duties, liabilities and
limitations on liability relating thereto and that arise thereafter placed on or
for the benefit of the Master Servicer or Special Servicer by the terms and
provisions hereof; provided, however, that any failure to perform such duties or
responsibilities caused by the terminated party's failure under Section 7.01 to
provide information or moneys required hereunder shall not be considered a
default by such successor hereunder. The appointment of a successor Master
Servicer shall not affect any liability of the predecessor Master Servicer which
may have arisen prior to its termination as Master Servicer, and the appointment
of a successor Special Servicer shall not affect any liability of the
predecessor Special Servicer which may have arisen prior to its termination as
Special Servicer. The Trustee in its capacity as successor to the Master
Servicer or the Special Servicer, as the case may be, shall not be liable for
any of the representations and warranties of the Master Servicer or the Special
Servicer, respectively, herein or in any related document or agreement, for any
acts or omissions of the predecessor Master Servicer or Special Servicer or for
any losses incurred by the Master Servicer pursuant to Section 3.06 hereunder,
nor shall the Trustee be required to purchase any Mortgage Loan hereunder solely
as a result of its obligations as successor Master Servicer or Special Servicer,
as the case may be. Subject to Section 3.11, as compensation therefor, the
Trustee as successor Master Servicer shall be entitled to the Servicing Fees and
all fees relating to the Mortgage Loans which the Master Servicer would have
been entitled to if the Master Servicer had continued to act hereunder,
including but not limited to any income or other benefit from any Permitted
Investment pursuant to Section 3.06, and subject to Section 3.11, the Trustee as
successor to the Special Servicer shall be entitled to the Special Servicing
Fees to which the Special Servicer would have been entitled if the Special
Servicer had continued to act hereunder. Should the Trustee succeed to the
capacity of the Master Servicer or the Special Servicer, as the case may be, the
Trustee shall be afforded the same standard of care and liability as the Master
Servicer or the Special Servicer, as applicable, hereunder notwithstanding
anything in Section 8.01 to the contrary, but only with respect to actions taken
by it in its role as successor Master Servicer or successor Special Servicer, as
the case may be, and not with respect to its role as Trustee hereunder.
Notwithstanding the above, the Trustee may, if it shall be unwilling to act as
successor to the Master Servicer or Special Servicer, or shall, if it is unable
to so act, or if the Trustee is not approved as a servicer by each Rating
Agency, or if the Directing Certificateholder or the Holders of Certificates
entitled to at least 51% of the Voting Rights so request in writing to the
Trustee, promptly appoint, or petition a court of competent jurisdiction to
appoint, any established mortgage loan servicing institution which meets the
criteria set forth in Section 6.04 and otherwise herein, as the successor to the
Master Servicer or the Special Servicer, as applicable, hereunder in the
assumption of all or any part of the responsibilities, duties or liabilities of
the Master Servicer or Special Servicer hereunder. No appointment of a successor
to the Master Servicer or the Special Servicer hereunder shall be effective
until the assumption in writing by the successor to the Master Servicer or the
Special Servicer of all its responsibilities, duties and liabilities hereunder
that arise thereafter and upon Rating Agency confirmation, and which appointment
has been approved by the Directing Certificateholder, such approval not to be
unreasonably withheld. Pending appointment of a successor to the Master Servicer
or the Special Servicer hereunder, unless the Trustee shall be prohibited by law
from so acting, the Trustee shall act in such capacity as herein above provided.
In connection with such appointment and assumption of a successor to the Master
Servicer or Special Servicer as described herein, the Trustee or the Master
Servicer, as applicable, may make such arrangements for the compensation of such
successor out of payments on Mortgage Loans as it and such successor shall
agree; provided, however, that no such compensation with respect to a successor
Master Servicer or successor Special Servicer, as the case may be, shall be in
excess of that permitted the terminated Master Servicer or Special Servicer, as
the case may be, hereunder. The Trustee, the Master Servicer or the Special
Servicer (whichever is not the terminated party) and such successor shall take
such action, consistent with this Agreement, as shall be necessary to effectuate
any such succession. Any costs and expenses associated with the transfer of the
servicing function (other than with respect to a termination without cause)
under this Agreement shall be borne by the predecessor servicer.
Section 7.03 Notification to Certificateholders. (a) Upon any
resignation of the Master Servicer or the Special Servicer pursuant to Section
6.04, any termination of the Master Servicer or the Special Servicer pursuant to
Section 7.01 or any appointment of a successor to the Master Servicer or the
Special Servicer pursuant to Section 7.02, the Paying Agent 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 (5) days after the Paying Agent
would be deemed to have notice of the occurrence of such an event in accordance
with Section 8.02(vii), the Paying Agent 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 within 20 days of the receipt of notice from the Paying
Agent of the occurrence of such Event of Default; provided, however, that an
Event of Default under clause (i) 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, such Event of Default shall cease to exist and shall be deemed
to have been remedied for every purpose hereunder. Upon any such waiver of an
Event of Default by Certificateholders, the Trustee shall be entitled to recover
all costs and expenses incurred by it in connection with enforcement action
taken with respect to such Event of Default prior to such waiver from the Trust
Fund. 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 any other Person held such Certificates.
Section 7.05 Trustee as Maker of Advances. In the event that the
Master Servicer fails to fulfill its obligations hereunder to make any Advances
and such failure remains uncured, the Trustee shall perform such obligations (x)
within five Business Days following such failure by the Master Servicer with
respect to Servicing Advances resulting in an Event of Default under Section
7.01(a)(iii) hereof to the extent a Responsible Officer of the Trustee has
actual knowledge of such failure with respect to such Servicing Advances and (y)
by noon, New York City time, on the related Distribution Date with respect to
P&I Advances pursuant to the Paying Agent's notice of failure pursuant to
Section 4.03(a) unless such failure has been cured. With respect to any such
Advance made by the Trustee, the Trustee shall succeed to all of the Master
Servicer's rights with respect to Advances hereunder, including, without
limitation, the Master Servicer's rights of reimbursement and interest on each
Advance at the Reimbursement Rate, and rights to determine that a proposed
Advance is a Nonrecoverable P&I Advance or Servicing Advance, as the case may
be, (without regard to any impairment of any such rights of reimbursement caused
by such Master Servicer's default in its obligations hereunder); provided,
however, that if Advances made by the Trustee and the Master Servicer shall at
any time be outstanding, or any interest on any Advance shall be accrued and
unpaid, all amounts available to repay such Advances and the interest thereon
hereunder shall be applied entirely to the Advances outstanding to the Trustee,
until such Advances shall have been repaid in full, together with all interest
accrued thereon, prior to reimbursement of the Master Servicer for such
Advances. The Trustee shall be entitled to conclusively rely on any notice given
with respect to a Nonrecoverable Advance hereunder.
[End of Article VII]
ARTICLE VIII
CONCERNING THE TRUSTEE AND THE PAYING AGENT
Section 8.01 Duties of the Trustee and the Paying Agent. (a) The
Trustee and the Paying Agent, prior to the occurrence of an Event of Default and
after the curing or waiving 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 person would exercise or use under the circumstances in the conduct of
his own affairs. Any permissive right of the Trustee and the Paying Agent
contained in this Agreement shall not be construed as a duty.
(b) The Trustee or the Paying Agent, upon receipt of all
resolutions, certificates, statements, opinions, reports, documents, orders or
other instruments furnished to the Trustee or the Paying Agent which are
specifically required to be furnished pursuant to any provision of this
Agreement (other than the Mortgage Files, the review of which is specifically
governed by the terms of Article II), shall examine them to determine whether
they conform to the requirements of this Agreement. If any such instrument is
found not to conform to the requirements of this Agreement in a material manner,
the Trustee or the Paying Agent shall notify the party providing such instrument
and requesting the correction thereof. The Trustee or the Paying Agent shall not
be responsible for the accuracy or content of any resolution, certificate,
statement, opinion, report, document, order or other instrument furnished by the
Depositor, the Master Servicer or the Special Servicer or another Person, and
accepted by the Trustee or the Paying Agent in good faith, pursuant to this
Agreement.
(c) No provision of this Agreement shall be construed to relieve the
Trustee or the Paying Agent from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct or bad faith; provided,
however, that:
(i) Prior to the occurrence of an Event of Default, and after the
curing of all such Events of Default which may have occurred, the duties
and obligations of the Trustee shall be determined solely by the express
provisions of this Agreement, the Trustee shall not be liable except for
the performance of such duties and obligations as are specifically set
forth in this Agreement, no implied covenants or obligations shall be read
into this Agreement against the Trustee and, in the absence of bad faith
on the part of the Trustee, the Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Trustee and
conforming to the requirements of this Agreement;
(ii) Neither the Trustee nor the Paying Agent shall be liable for an
error of judgment made in good faith by a Responsible Officer or
Responsible Officers of the Trustee or the Paying Agent, respectively,
unless it shall be proved that the Trustee or the Paying Agent,
respectively, was negligent in ascertaining the pertinent facts; and
(iii) The Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it in good faith in accordance
with the direction of Holders of Certificates entitled to at least 25% of
the Voting Rights relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee, under this Agreement (unless a
higher percentage of Voting Rights is required for such action).
(d) The Paying Agent shall promptly make available via its internet
website to the Companion Holders all reports that the Paying Agent has made
available to Certificateholders under this Agreement to the extent such reports
relate to the Companion Loans.
Section 8.02 Certain Matters Affecting the Trustee and the Paying
Agent. Except as otherwise provided in Section 8.01:
(i) The Trustee and the Paying Agent may rely upon and shall be
protected in acting or refraining from acting upon any resolution,
Officer's Certificate, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent, order,
Appraisal, bond or other paper or document reasonably believed by it to be
genuine and to have been signed or presented by the proper party or
parties;
(ii) The Trustee and the Paying Agent may consult with counsel and
the written advice of such counsel or any Opinion of Counsel shall be full
and complete authorization and protection in respect of any action taken
or suffered or omitted by it hereunder in good faith and in accordance
therewith;
(iii) Neither the Trustee nor the Paying Agent shall be under any
obligation to exercise any of the trusts or powers vested in it by this
Agreement or to make any investigation of matters arising hereunder or to
institute, conduct or defend any litigation hereunder or in relation
hereto at the request, order or direction of any of the
Certificateholders, pursuant to the provisions of this Agreement, unless
such Certificateholders shall have offered to the Trustee or the Paying
Agent, as applicable, reasonable security or indemnity against the costs,
expenses and liabilities which may be incurred therein or thereby; neither
the Trustee nor the Paying Agent shall be required to expend or risk its
own funds or otherwise incur any financial liability in the performance of
any of its duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that repayment
of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it; nothing contained herein shall, however, relieve
the Trustee of the obligation, upon the occurrence of an Event of Default
which has not been cured, to exercise such of the rights and powers vested
in it by this Agreement, and to use the same degree of care and skill in
their exercise as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs;
(iv) Neither the Trustee nor the Paying Agent shall be liable for
any action reasonably taken, suffered or omitted by it in good faith and
believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Agreement;
(v) Prior to the occurrence of an Event of Default hereunder and
after the curing of all Events of Default which may have occurred, neither
the Trustee nor the Paying Agent 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 50% of the Voting Rights; provided, however, that if the payment
within a reasonable time to the Trustee or the Paying Agent 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 or the Paying Agent,
respectively, not reasonably assured to the Trustee or the Paying Agent by
the security afforded to it by the terms of this Agreement, the Trustee or
the Paying Agent, respectively, may require reasonable indemnity from such
requesting Holders against such expense or liability as a condition to
taking any such action. The reasonable expense of every such reasonable
examination shall be paid by the requesting Holders;
(vi) The Trustee or the Paying Agent may execute any of the trusts
or powers hereunder or perform any duties hereunder either directly or by
or through agents or attorneys; provided, however, that the appointment of
such agents or attorneys shall not relieve the Trustee or the Paying Agent
of its duties or obligations hereunder;
(vii) For all purposes under this Agreement, the Trustee shall not
be deemed to have notice of any Event of Default unless a Responsible
Officer of the Trustee has actual knowledge thereof or unless written
notice of any event which is in fact such a default is received by the
Trustee at the Corporate Trust Office, and such notice references the
Certificates or this Agreement; and
(viii) Neither the Trustee nor the Paying Agent shall be responsible
for any act or omission of the Master Servicer or the Special Servicer
(unless the Trustee is acting as Master Servicer or Special Servicer, as
the case may be in which case the Trustee shall only be responsible for
its own actions as Master Servicer or Special Servicer) or of the
Depositor.
Section 8.03 Trustee and Paying Agent Not Liable for Validity or
Sufficiency of Certificates or Mortgage Loans. The recitals contained herein and
in the Certificates, other than the acknowledgments of the Trustee or the Paying
Agent in Sections 2.02 and 2.05 and the signature, if any, of the Certificate
Registrar and Authenticating Agent set forth on any outstanding Certificate,
shall be taken as the statements of the Depositor, the Master Servicer or the
Special Servicer, as the case may be, and the Trustee or the Paying Agent assume
no responsibility for their correctness. Neither the Trustee nor the Paying
Agent makes any representations as to the validity or sufficiency of this
Agreement or of any Certificate (other than as to the signature, if any, of the
Trustee or the Paying Agent set forth thereon) or of any Mortgage Loan or
related document. Neither the Trustee nor the Paying 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 Fund, or any funds deposited in or withdrawn from the Certificate
Account or any other account by or on behalf of the Depositor, the Master
Servicer, the Special Servicer or in the case of the Trustee, the Paying Agent
(unless the Trustee is acting as Paying Agent). The Trustee and the Paying Agent
shall not be responsible for the accuracy or content of any resolution,
certificate, statement, opinion, report, document, order or other instrument
furnished by the Depositor, the Master Servicer or the Special Servicer and
accepted by the Trustee or the Paying Agent, in good faith, pursuant to this
Agreement.
Section 8.04 Trustee or Paying Agent May Own Certificates. The
Trustee or the Paying Agent each in its individual capacity, not as Trustee or
the Paying Agent, may become the owner or pledgee of Certificates, and may deal
with the Depositor, the Master Servicer, the Special Servicer, the Initial
Purchasers and the Underwriters in banking transactions, with the same rights it
would have if it were not Trustee or Paying Agent.
Section 8.05 Fees and Expenses of Trustee and Paying Agent;
Indemnification of Trustee and Paying Agent. (a) As compensation for the
performance of their respective duties hereunder, the Trustee will be paid the
Trustee Fee equal to the Trustee's portion of one month's interest at the
Trustee Fee Rate, which shall cover recurring and otherwise reasonably
anticipated expenses of the Trustee. The Trustee Fee shall be paid monthly on a
Mortgage Loan-by-Mortgage Loan basis. As to each Mortgage Loan and REO Loan, the
Trustee Fee shall accrue from time to time at the Trustee's portion of Trustee
Fee Rate and shall be computed on the basis of the Stated Principal Balance of
such Mortgage Loan and a 360-day year consisting of twelve 30-day months. The
Trustee Fee (which shall not be limited to any provision of law in regard to the
compensation of a trustee of an express trust) shall constitute the Trustee's
sole form of compensation for all services rendered by it in the execution of
the trusts hereby created and in the exercise and performance of any of the
powers and duties of the Trustee hereunder. No Trustee Fee shall be payable with
respect to the Companion Loans.
(b) The Trustee, the Paying Agent and any director, officer,
employee or agent of the Trustee and the Paying Agent, respectively, shall be
entitled to be indemnified and held harmless by the Trust Fund (to the extent of
amounts on deposit in the Certificate Account or Lower-Tier Distribution Account
from time to time) against any loss, liability or expense (including, without
limitation, costs and expenses of litigation, and of investigation, counsel
fees, damages, judgments and amounts paid in settlement, and expenses incurred
in becoming successor Master Servicer or successor Special Servicer, to the
extent not otherwise paid hereunder) arising out of, or incurred in connection
with, any act or omission of the Trustee or the Paying Agent, respectively,
relating to the exercise and performance of any of the powers and duties of the
Trustee or the Paying Agent, respectively, hereunder; provided, however, that
none of the Trustee, the Paying Agent nor any of the other above specified
Persons shall be entitled to indemnification pursuant to this Section 8.05(b)
for (i) allocable overhead, (ii) expenses or disbursements incurred or made by
or on behalf of the Trustee or the Paying Agent, respectively, in the normal
course of the Trustee or the Paying Agent, respectively, performing its duties
in accordance with any of the provisions hereof, which are not "unanticipated
expenses of the REMIC" within the meaning of Treasury Regulations Section
1.860G-1(b)(3)(ii), (iii) any expense or liability specifically required to be
borne thereby pursuant to the terms hereof or (iv) any loss, liability or
expense incurred by reason of willful misfeasance, bad faith or negligence in
the performance of the Trustee's or the Paying Agent's, respectively,
obligations and duties hereunder, or by reason of negligent disregard of such
obligations or duties, or as may arise from a breach of any representation,
warranty or covenant of the Trustee or the Paying Agent, respectively, made
herein. The provisions of this Section 8.05(b) shall survive the termination of
this Agreement and any resignation or removal of the Trustee or the Paying
Agent, respectively, and appointment of a successor thereto. The foregoing
indemnity shall also apply to the Paying Agent in its capacities of Certificate
Registrar and Authenticating Agent.
Section 8.06 Eligibility Requirements for Trustee and the Paying
Agent. The Trustee and the Paying Agent hereunder shall at all times be, and
will be required to resign if it fails to be, (i) a corporation, national bank,
national banking association or a trust company, organized and doing business
under the laws of any state or the United States of America, authorized under
such laws to exercise corporate trust powers and to accept the trust conferred
under this Agreement, having a combined capital and surplus of at least
$100,000,000 and subject to supervision or examination by federal or state
authority and shall not be an Affiliate of the Master Servicer or the Special
Servicer (except during any period when the Trustee is acting as, or has become
successor to, the Master Servicer or the Special Servicer, as the case may be,
pursuant to Section 7.02), (ii) an institution insured by the Federal Deposit
Insurance Corporation and (iii) with respect to the Trustee only, an institution
whose long-term senior unsecured debt is rated "Aa3" by Xxxxx'x and "AA" by
Fitch (or such entity as would not, as evidenced in writing by such Rating
Agency, result in the qualification, downgrading or withdrawal of any of the
ratings then assigned thereby to the Certificates.
If such corporation, national bank or national banking association
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section the combined capital and surplus of such corporation,
national bank or national banking association shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. In the event the place of business from which the Paying Agent
administers the Upper-Tier REMIC and the Lower-Tier REMIC or in which the
Trustee's office is located is in a state or local jurisdiction that imposes a
tax on the Trust Fund on the net income of a REMIC (other than a tax
corresponding to a tax imposed under the REMIC Provisions), the Paying Agent or
the Trustee, as applicable shall elect either to (i) resign immediately in the
manner and with the effect specified in Section 8.07, (ii) pay such tax at no
expense to the Trust or (iii) administer the Upper-Tier REMIC and the Lower-Tier
REMIC from a state and local jurisdiction that does not impose such a tax.
Section 8.07 Resignation and Removal of the Trustee and Paying
Agent. (a) The Trustee and the Paying Agent may at any time resign and be
discharged from the trusts hereby created by giving written notice thereof to
the Depositor, the Master Servicer and the Special Servicer and to all
Certificateholders. Upon receiving such notice of resignation, the Depositor
shall promptly appoint a successor Trustee or paying agent acceptable to the
Master Servicer and the Directing Certificateholder by written instrument, in
duplicate, which instrument shall be delivered to the resigning Trustee or
Paying Agent and to the successor Trustee or paying agent. A copy of such
instrument shall be delivered to the Master Servicer, the Special Servicer, the
Certificateholders and the Trustee or Paying Agent, as applicable, by the
Depositor. If no successor Trustee or paying agent shall have been so appointed
and have accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Trustee or Paying Agent may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(b) If at any time the Trustee or Paying Agent 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 the Master Servicer,
or if at any time the Trustee or Paying Agent shall become incapable of acting,
or shall be adjudged bankrupt or insolvent, or a receiver of the Trustee or the
Paying Agent or of its property shall be appointed, or any public officer shall
take charge or control of the Trustee or Paying Agent or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, or if
the Trustee or Paying Agent (if different than the Trustee) shall fail (other
than by reason of the failure of either the Master Servicer or the Special
Servicer to timely perform its obligations hereunder or as a result of other
circumstances beyond the Trustee's or Paying Agent's, as applicable, reasonable
control), to timely publish any report to be delivered, published or otherwise
made available by the Trustee or Paying Agent pursuant to Section 4.02 and such
failure shall continue unremedied for a period of five days, or if the Trustee
or Paying Agent fails to make distributions required pursuant to Sections
3.05(c), 4.01 or 9.01, then the Depositor may remove the Trustee or Paying
Agent, as applicable, and appoint a successor Trustee or paying agent acceptable
to the Master Servicer or paying agent acceptable to the Trustee or Paying
Agent, as applicable, by written instrument, in duplicate, which instrument
shall be delivered to the Trustee or Paying Agent so removed and to the
successor Trustee or paying agent in the case of the removal of the Trustee or
Paying Agent. A copy of such instrument shall be delivered to the Master
Servicer, the Special Servicer and the Certificateholders by the Depositor.
(c) The Holders of Certificates entitled to at least 51% of the
Voting Rights may at any time remove the Trustee or Paying Agent and appoint a
successor Trustee or paying agent by written instrument or instruments, in
triplicate, signed by such Holders or their attorneys-in-fact duly authorized,
one complete set of which instruments shall be delivered to the Master Servicer,
one complete set to the Trustee or Paying Agent so removed and one complete set
to the successor so appointed. A copy of such instrument shall be delivered to
the Depositor, the Special Servicer and the remaining Certificateholders by the
Master Servicer.
(d) Any resignation or removal of the Trustee or Paying Agent and
appointment of a successor Trustee or Paying Agent pursuant to any of the
provisions of this Section 8.07 shall not become effective until acceptance of
appointment by the successor Trustee or Paying Agent as provided in Section
8.08.
Upon any succession of the Trustee or Paying Agent under this
Agreement, the predecessor Trustee or paying agent shall be entitled to the
payment of accrued and unpaid compensation and reimbursement as provided for
under this Agreement for services rendered and expenses incurred (including
without limitation, unreimbursed Advances). No Trustee or Paying Agent shall be
personally liable for any action or omission of any successor Trustee or Paying
Agent.
Section 8.08 Successor Trustee or Paying Agent. (a) Any successor
Trustee or Paying Agent appointed as provided in Section 8.07 shall execute,
acknowledge and deliver to the Depositor, the Master Servicer, the Special
Servicer and to its predecessor Trustee or Paying Agent an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor Trustee or Paying Agent shall become effective and such successor
Trustee or Paying Agent 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 or
Paying Agent 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, at Custodian's option shall become the agent of the
successor Trustee), and the Depositor, the Master Servicer, the Special Servicer
and the predecessor Trustee shall execute and deliver such instruments and do
such other things as may reasonably be required to more fully and certainly vest
and confirm in the successor Trustee all such rights, powers, duties and
obligations, and to enable the successor Trustee to perform its obligations
hereunder.
(b) No successor Trustee or successor Paying Agent shall, as
applicable, accept appointment as provided in this Section 8.08 unless at the
time of such acceptance such successor Trustee or successor Paying Agent, as
applicable, shall be eligible under the provisions of Section 8.06.
(c) Upon acceptance of appointment by a successor Trustee or
successor Paying Agent as provided in this Section 8.08, the Master Servicer
shall mail notice of the succession of such trustee or paying agent, as
applicable, to the Depositor and the Certificateholders. If the Master Servicer
fails to mail such notice within 10 days after acceptance of appointment by the
successor Trustee or successor Paying Agent, as applicable, such successor
Trustee or successor Paying Agent shall cause such notice to be mailed at the
expense of the Master Servicer.
Section 8.09 Merger or Consolidation of Trustee or Paying Agent. Any
Person into which the Trustee or the Paying Agent may be merged or converted or
with which it may be consolidated or any Person resulting from any merger,
conversion or consolidation to which the Trustee or the Paying Agent shall be a
party, or any Person succeeding to all or substantially all of the corporate
trust business of the Trustee or the Paying Agent shall be the successor of the
Trustee or the Paying Agent, as applicable, hereunder; provided, that, in the
case of the Trustee, such successor Person 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. The Trustee or the Paying Agent, as applicable, will
provide notice of such event to the Master Servicer, the Special Servicer, the
Depositor and the Rating Agencies.
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 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 Master Servicer
and the Trustee may consider necessary or desirable. If the Master Servicer
shall not have joined in such appointment within 15 days after the receipt by it
of a request to do so, or in case an Event of Default shall have occurred and be
continuing, the Trustee alone shall have the power to make such appointment. No
co-trustee or separate trustee hereunder shall be required to meet the terms of
eligibility as a successor Trustee under Section 8.06 hereunder and no notice to
Holders of Certificates of the appointment of co-trustee(s) or separate
trustee(s) shall be required under Section 8.08 hereof. All co-trustee fees
shall be payable out of the Trust Fund.
(b) In the case of any appointment of a co-trustee or separate
trustee pursuant to this Section 8.10, all rights, powers, duties and
obligations conferred or imposed upon the Trustee shall be conferred or imposed
upon and exercised or performed by the Trustee and such separate trustee or
co-trustee jointly, except to the extent that under any law of any jurisdiction
in which any particular act or acts are to be performed (whether as Trustee
hereunder or as successor to the Master Servicer or the Special Servicer
hereunder), the Trustee shall be incompetent or unqualified to perform such act
or acts, in which event such rights, powers, duties and obligations (including
the holding of title to the Trust Fund or any portion thereof in any such
jurisdiction) shall be exercised and performed by such separate trustee or
co-trustee at the direction of the Trustee.
(c) Any notice, request or other writing given to the Trustee shall
be deemed to have been given to each of the then-separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article VIII. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Trustee. Every such instrument shall be filed with the Trustee.
(d) Any separate trustee or co-trustee may, at any time, constitute
the Trustee, its agent or attorney-in-fact, with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts 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, with the
consent of the Master Servicer, appoint one or more Custodians to hold all or a
portion of the Mortgage Files as agent for the Trustee. Each Custodian shall be
a depository institution subject to supervision by federal or state authority,
shall have combined capital and surplus of at least $15,000,000 and shall be
qualified to do business in the jurisdiction in which it holds any Mortgage File
and shall not be the Depositor or any Affiliate of the Depositor. Each Custodian
shall be subject to the same obligations and standard of care as would be
imposed on 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. Any
Custodian appointed hereunder must maintain a fidelity bond and errors and
omissions policy in an amount customary for Custodians which serve in such
capacity in commercial mortgage loan securitization transactions.
Section 8.12 Access to Certain Information. (a) On or prior to the
date of the first sale of any Non-Registered Certificate to an independent third
party, the Depositor shall provide to the Paying Agent and the Trustee three
copies of any private placement memorandum or other disclosure document used by
the Depositor or its Affiliate in connection with the offer and sale of the
Class of Certificates to which such Non-Registered Certificate relates. In
addition, if any such private placement memorandum or disclosure document is
revised, amended or supplemented at any time following the delivery thereof to
the Trustee and the Paying Agent, the Depositor promptly shall inform the
Trustee of such event and shall deliver to the Paying Agent and the Trustee a
copy of the private placement memorandum or disclosure document, as revised,
amended or supplemented. The Paying Agent (or with respect to item (ii)(j)
below, the Trustee) shall maintain at its offices primarily responsible for
administering the Trust Fund and shall, upon reasonable advance notice, make
available during normal business hours for review by any Holder of a
Certificate, the Depositor, the Master Servicer, the Special Servicer, any
Rating Agency or any other Person to whom the Paying Agent (or the Trustee, if
applicable) believes such disclosure is appropriate, originals or copies of the
following items: (i) in the case of a Holder or prospective transferee of a
Non-Registered Certificate, any private placement memorandum or other disclosure
document relating to the Class of Certificates to which such Non-Registered
Certificate belongs, in the form most recently provided to the Paying Agent and
(ii) in all cases (a) this Agreement and any amendments hereto entered into
pursuant to Section 11.01, (b) all statements required to be delivered to
Certificateholders of the relevant Class pursuant to Section 4.02 since the
Closing Date, (c) all Officer's Certificates delivered to the Paying Agent and
the Trustee since the Closing Date pursuant to Section 3.13, (d) all
accountants' reports delivered to the Trustee and the Paying Agent since the
Closing Date pursuant to Section 3.14, (e) any inspection report prepared by the
Master Servicer, Sub-Servicer or Special Servicer, as applicable, and delivered
to the Trustee and the Paying Agent and Master Servicer in respect of each
Mortgaged Property pursuant to Section 3.12(a), (f) as to each Mortgage Loan and
Companion Loan pursuant to which the related Mortgagor is required to deliver
such items or the Special Servicer has otherwise acquired such items, the most
recent annual operating statement and rent roll of the related Mortgaged
Property and financial statements of the related Mortgagor and any other reports
of the Mortgagor collected by the Master Servicer, Sub-Servicer or Special
Servicer, as applicable, and delivered to the Paying Agent pursuant to Section
3.12(c), together with the accompanying written reports to be prepared by the
Special Servicer and delivered to the Paying Agent pursuant to Section 3.12(b),
(g) any and all notices, reports and Environmental Assessments delivered to the
Paying Agent with respect to any Mortgaged Property securing a Defaulted
Mortgage Loan and Companion Loan as to which the environmental testing
contemplated by Section 3.09(c) revealed that either of the conditions set forth
in clauses (i) and (ii) of the first sentence thereof was not satisfied (but
only for so long as such Mortgaged Property or the related Mortgage Loan are
part of the Trust Fund), (h) any and all modifications, waivers and amendments
of the terms of a Mortgage Loan and Companion Loan entered into by the Master
Servicer or the Special Servicer and delivered to the Paying Agent pursuant to
Section 3.20 (but only for so long as the affected Mortgage Loan and Companion
Loan is part of the Trust Fund), (i) any and all Officer's Certificates
delivered to the Paying Agent to support the Master Servicer's determination
that any P&I Advance or Servicing Advance was or, if made, would be a
Nonrecoverable P&I Advance or Nonrecoverable Servicing Advance, as the case may
be, (j) any and all of the Mortgage Loan and Companion Loan documents contained
in the Mortgage File, (k) any and all Appraisals obtained pursuant to the
definition of "Appraisal Reduction" herein, (l) information regarding the
occurrence of Servicing Transfer Events as to the Mortgage Loans and (m) any and
all Sub-Servicing Agreements and any amendments thereto and modifications
thereof. Copies of any and all of the foregoing items will be available from the
Paying Agent upon request; provided, however, that the Paying Agent (or the
Trustee, if applicable) shall be permitted to require payment of a sum
sufficient to cover the reasonable costs and expenses of providing such copies,
except in the case of copies provided to the Directing Certificateholder or the
Rating Agencies, which shall be free of charge (except for extraordinary or
duplicate requests). In addition, without limiting the generality of the
foregoing, any Class J, Class K, Class L, Class M, Class N, Class P, Class Q and
Class NR Certificateholder may upon request from the Paying Agent obtain a copy
of any factual report (other than the Asset Status Report) delivered to the
Rating Agencies under this Agreement. Nothing contained in this Section 8.12(a)
shall be construed to limit the reports and information described on Exhibit M
attached hereto and required to be delivered to the Directing Certificateholder
without charge.
(b) The Paying Agent shall make available to certain financial
market publishers, which initially shall be Bloomberg, L.P., Xxxxx, LLC and
Intex Solutions LLC on a monthly basis all CMSA reports and any other reports
required to be delivered by the Paying Agent pursuant to Article IV hereof. If
any such information is provided on or before December 30, 2004, the Paying
Agent shall make the Prospectus available to Bloomberg, L.P., Xxxxx, LLC and
Intex.
(c) Notwithstanding anything to the contrary herein, in addition to
the reports and information made available and distributed pursuant to the terms
of this Agreement (including the information set forth in Section 8.12(a)), the
Paying Agent shall, in accordance with such reasonable rules and procedures as
each may adopt (which may include the requirement that an agreement that
provides that such information shall be used solely for purposes of evaluating
the investment characteristics of the Certificates be executed), also provide
the reports available to Certificateholders pursuant to Section 4.02, as well as
certain additional information received by the Paying Agent, to any
Certificateholder, the Underwriters, the Placement Agents, any Certificate Owner
or any prospective investor identified as such by a Certificate Owner or
Underwriter, that requests such reports or information; provided that the Paying
Agent, as the case may be, shall be permitted to require payment of a sum
sufficient to cover the reasonable costs and expenses of providing copies of
such reports or information.
(d) With respect to any information furnished by the Paying Agent
pursuant to this Section 8.12, the Paying Agent shall be entitled to indicate
the source of such information and the Paying Agent may affix thereto any
disclaimer it deems appropriate in its discretion. The Paying Agent shall notify
Certificateholders of the availability of any such information in any manner as
it, in its sole discretion, may determine. In connection with providing access
to or copies of the items described in the preceding paragraph, the Paying Agent
may require (a) in the case of Certificate Owners, a confirmation executed by
the requesting Person substantially in form and substance reasonably acceptable
to the Paying Agent, as applicable, generally to the effect that such Person is
a beneficial holder of Certificates, is requesting the information solely for
use in evaluating such Person's investment in the Certificates and will
otherwise keep such information confidential and (b) in the case of a
prospective purchaser, confirmation executed by the requesting Person in form
and substance reasonably acceptable to the Paying Agent, generally to the effect
that such Person is a prospective purchaser of a Certificate or an interest
therein, is requesting the information solely for use in evaluating a possible
investment in Certificates and will otherwise keep such information
confidential. The Paying Agent shall not be liable for the dissemination of
information in accordance with this Agreement.
Section 8.13 Representations and Warranties of the Trustee. (a) The
Trustee hereby represents and warrants to the Depositor, the Master Servicer,
the Special Servicer and the Paying Agent and for the benefit of the
Certificateholders, as of the Closing Date, that:
(i) The Trustee is a national banking association duly organized
under the laws of the United States, duly organized, validly existing and
in good standing under the laws thereof;
(ii) The execution and delivery of this Agreement by the Trustee,
and the performance and compliance with the terms of this Agreement by the
Trustee, will not violate the Trustee's charter and by-laws or constitute
a default (or an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any material
agreement or other instrument to which it is a party or which is
applicable to it or any of its assets;
(iii) The 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, moratorium and other laws affecting the
enforcement of creditors' rights generally and the rights of creditors of
national banking associations specifically and (b) general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law;
(v) The Trustee is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Trustee's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the Trustee to perform its obligations under this Agreement or the
financial condition of the Trustee; and
(vi) No litigation is pending or, to the best of the Trustee's
knowledge, threatened against the Trustee which would prohibit the Trustee
from entering into this Agreement or, in the Trustee's good faith 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.
(b) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Trustee, or compliance by the Trustee with, this Agreement or
the consummation of the transactions contemplated by this Agreement, except for
any consent, approval, authorization or order which has not been obtained or
cannot be obtained prior to the actual performance by the Trustee of its
obligations under this Agreement, and which, if not obtained would not have a
materially adverse effect on the ability of the Trustee to perform its
obligations hereunder.
Section 8.14 Representations and Warranties of the Paying Agent.
(a) The Paying Agent hereby represents and warrants to the
Depositor, the Master Servicer, the Special Servicer and the Trustee and for the
benefit of the Certificateholders, as of the Closing Date, that:
(i) The Paying Agent is a national banking association duly
organized under the laws of the United States, duly organized, validly
existing and in good standing under the laws thereof;
(ii) The execution and delivery of this Agreement by the Paying
Agent, and the performance and compliance with the terms of this Agreement
by the Paying Agent, will not violate the Paying Agent's charter and
by-laws or constitute a default (or an event which, with notice or lapse
of time, or both, would constitute a default) under, or result in the
breach of, any material agreement or other instrument to which it is a
party or which is applicable to it or any of its assets;
(iii) The Paying Agent has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement, has
duly authorized the execution, delivery and performance of this Agreement,
and has duly executed and delivered this Agreement;
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Paying Agent, enforceable against the Paying
Agent in accordance with the terms hereof, subject to (a) applicable
bankruptcy, insolvency, reorganization, moratorium and other laws
affecting the enforcement of creditors' rights generally and the rights of
creditors of national banking associations specifically and (b) general
principles of equity, regardless of whether such enforcement is considered
in a proceeding in equity or at law;
(v) The Paying Agent is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Paying Agent's good faith and
reasonable judgment, is likely to affect materially and adversely either
the ability of the Paying Agent to perform its obligations under this
Agreement or the financial condition of the Paying Agent; and
(vi) No litigation is pending or, to the best of the Paying Agent's
knowledge, threatened against the Paying Agent which would prohibit the
Paying Agent from entering into this Agreement or, in the Paying Agent's
good faith and reasonable judgment, is likely to materially and adversely
affect either the ability of the Paying Agent to perform its obligations
under this Agreement or the financial condition of the Paying Agent.
(b) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Paying Agent, or compliance by the Paying Agent with, this
Agreement or the consummation of the transactions contemplated by this
Agreement, except for any consent, approval, authorization or order which has
not been obtained or cannot be obtained prior to the actual performance by the
Paying Agent of its obligations under this Agreement, and which, if not obtained
would not have a materially adverse effect on the ability of the Paying Agent to
perform its obligations hereunder.
[End of Article VIII]
ARTICLE IX
TERMINATION
Section 9.01 Termination upon Repurchase or Liquidation of All
Mortgage Loans. Subject to Section 9.02, the Trust Fund and the respective
obligations and responsibilities under this Agreement of the Paying Agent, the
Depositor, the Master Servicer, the Special Servicer and the Trustee (other than
the obligations of the Paying Agent 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 the
Paying Agent and required hereunder to be so paid on the Distribution Date
following the earlier to occur of (i) the final payment (or related Advance) or
other liquidation of the last Mortgage Loan or REO Property subject thereto or
(ii) the purchase or other liquidation by the Holders of the majority of the
Controlling Class, the Special Servicer, the Master Servicer or the Holders of
the Class LR Certificates, in that order of priority, of all the Mortgage Loans
and the Trust Fund's portion of each REO Property remaining in the Trust Fund at
a price equal to (a) the sum of (1) the aggregate Purchase Price of all the
Mortgage Loans (exclusive of REO Loans) included in the Trust Fund, (2) the
Appraised Value of the Trust Fund's portion of each REO Property, if any,
included in the Trust Fund (such Appraisals in clause (a)(2) to be conducted by
an Independent MAI-designated appraiser selected and mutually agreed upon by the
Master Servicer and the Trustee, and approved by more than 50% of the Voting
Rights of the Classes of Certificates then outstanding (other than the
Controlling Class unless the Controlling Class is the only Class of Certificates
then outstanding)) (which approval shall be deemed given unless more than 50% of
such Certificateholders object within 20 days of receipt of notice thereof) and
(3) the reasonable out-of-pocket expenses of the Master Servicer with respect to
such termination, unless the Master Servicer is the purchaser of such Mortgage
Loans, minus (b) solely in the case where the Master Servicer is effecting such
purchase, the aggregate amount of unreimbursed Advances, together with any
interest accrued and payable to the Master Servicer in respect of such Advances
in accordance with Sections 3.03(d) and 4.03(d) and any unpaid Servicing Fees,
remaining outstanding (which items shall be deemed to have been paid or
reimbursed to the Master Servicer in connection with such purchase) and (iii)
exchange by the Sole Certificateholder pursuant to the terms of the immediately
succeeding paragraph, 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 created hereby
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants of Xxxxxx X. Xxxxxxx, the late ambassador of the United
States to the Court of St. James's, living on the date hereof.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder shall have the right to exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and the Trust Fund's portion of each REO Property remaining in the Trust
Fund as contemplated by clause (iii) of the first paragraph of this Section 9.01
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 elects to exchange all of its Certificates (other than the
Class S and the Residual Certificates) for all of the Mortgage Loans and the
Trust Fund's portion of each REO Property remaining in the Trust in accordance
with the preceding sentence, such Sole Certificateholder, not later than the
Distribution Date on which the final distribution on the Certificates is to
occur, shall deposit in the Certificate Account an amount in immediately
available funds equal to all amounts due and owing to the Depositor, the Master
Servicer, the Special Servicer, the Trustee and the Paying Agent hereunder
through the date of the liquidation of the Trust Fund that may be withdrawn from
the Certificate Account, or an escrow account acceptable to the respective
parties hereto, pursuant to Section 3.05(a) or that may be withdrawn from the
Distribution Account pursuant to Section 3.05(a), but only to the extent that
such amounts are not already on deposit in the Certificate Account. In addition,
the Master Servicer shall transfer all amounts required to be transferred to the
Lower-Tier Distribution Account on the P&I Advance Date related to such
Distribution Date in which the final distribution on the Certificates is to
occur from the Certificate 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 its Certificates (other than the Class S and the Residual
Certificates) on the final Distribution Date, the Trustee shall, upon receipt of
a Request for Release from the Master Servicer, release or cause to be released
to the Sole Certificateholder or any designee thereof, the Mortgage Files for
the remaining Mortgage Loans and shall execute all assignments, endorsements and
other instruments furnished to it by the Sole Certificateholder as shall be
necessary to effectuate transfer of the Mortgage Loans and REO Properties
remaining in the Trust Fund, and the Trust Fund shall be liquidated in
accordance with Section 9.02. Such transfers shall be subject to any rights of
any Sub-Servicers to service or perform select servicing functions with respect
to the Mortgage Loans. Solely for federal income tax purposes, the Sole
Certificateholder shall be deemed to have purchased the assets of the Lower-Tier
REMIC for an amount equal to the remaining Certificate Balance of its
Certificates (other than the Class S and the Residual Certificates), plus
accrued, unpaid interest with respect thereto, and the Trustee shall credit such
amounts against amounts distributable in respect of such Certificates and
Related Uncertificated Lower-Tier Interests.
The obligations and responsibilities under this Agreement of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent and the Companion Paying Agent shall terminate with respect to any
Companion Loan to the extent (i) its related AB Mortgage Loan has been paid in
full or is no longer part of the Trust Fund and (ii) no amounts payable by the
related Companion Holder to or for the benefit of the Trust or any party hereto
in accordance with the related Intercreditor Agreement remain due and owing.
The Holders of the majority of the Controlling Class, the Special
Servicer, the Master Servicer or the Holders of the Class LR Certificates, in
that order of priority, may, at their option, elect to purchase all of the
Mortgage Loans (and all property acquired through exercise of remedies in
respect of any Mortgage Loan) and the Trust Fund's portion of each REO Property
remaining in the Trust Fund as contemplated by clause (i) of the preceding
paragraph by giving written notice to the Trustee, the Paying Agent and the
other parties hereto no later than 60 days prior to the anticipated date of
purchase; provided, however, that the Master Servicer, the Special Servicer, the
Holders of the Controlling Class or the Holders of the Class LR Certificates may
so elect to purchase all of the Mortgage Loans and the Trust Fund's portion of
each REO Property remaining in the Trust Fund only on or after the first
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and the Trust Fund's portion of any REO Loans remaining in the
Trust Fund is less than 1% of the aggregate Cut-off Date Principal Balance of
the Mortgage Loans set forth in the Preliminary Statement. In the event that the
Master Servicer, the Special Servicer, the Holders of the Controlling Class or
the Holders of the Class LR Certificates purchases all of the Mortgage Loans and
the Trust Fund's portion of each REO Property remaining in the Trust Fund in
accordance with the preceding sentence, the Master Servicer, the Special
Servicer, the Holders of the Controlling Class or the Holders of the Class LR
Certificates, as applicable, shall deposit in the Lower-Tier Distribution
Account not later than the P&I Advance Date relating to the Distribution Date on
which the final distribution on the Certificates is to occur, an amount in
immediately available funds equal to the above-described purchase price
(exclusive of any portion thereof payable to any Person other than the
Certificateholders pursuant to Section 3.05(a), which portion shall be deposited
in the Certificate Account). In addition, the Master Servicer shall transfer to
the Lower-Tier Distribution Account all amounts required to be transferred
thereto on such P&I Advance Date from the Certificate Account pursuant to the
first paragraph of Section 3.04(b), together with any other amounts on deposit
in the Certificate Account that would otherwise be held for future distribution.
Upon confirmation that such final deposits have been made, the Trustee shall
release or cause to be released to the Master Servicer, the Special Servicer,
the Holders of the Controlling Class or the Holders of the Class LR
Certificates, as applicable, the Mortgage Files for the remaining Mortgage Loans
and shall execute all assignments, endorsements and other instruments furnished
to it by the Master Servicer, the Special Servicer, the Holders of the
Controlling Class or the Holders of the Class LR Certificates, as applicable, as
shall be necessary to effectuate transfer of the Mortgage Loans and REO
Properties remaining in the Trust Fund.
For purposes of this Section 9.01, the Holders of the majority of
the Controlling Class shall have the first option to terminate the Trust Fund,
then the Special Servicer, then the Master Servicer, and then the Holders of the
Class LR Certificates. For purposes of this Section 9.01, the Directing
Certificateholder, with the consent of the Holders of the Controlling Class,
shall act on behalf of the Holders of the Controlling Class in purchasing the
assets of the Trust Fund and terminating the Trust.
Notice of any termination pursuant to this Section 9.01 shall be
given promptly by the Paying Agent by letter to Certificateholders and each
Rating Agency and, if not previously notified pursuant to this Section 9.01, to
the other parties hereto mailed (a) in the event such notice is given in
connection with the purchase of all of the Mortgage Loans and each REO Property
remaining in the Trust Fund, not earlier than the 15th day and not later than
the 25th day of the month next preceding the month of the final distribution on
the Certificates, or (b) otherwise during the month of such final distribution
on or before the P&I Advance Determination Date in such month, in each case
specifying (i) the Distribution Date upon which the Trust Fund will terminate
and final payment of the Certificates will be made, (ii) the amount of any such
final payment and (iii) that the Record Date otherwise applicable to such
Distribution Date is not applicable, payments being made only upon presentation
and surrender of the Certificates at the offices of the Certificate Registrar or
such other location therein designated.
After transferring the Lower-Tier Distribution Amount and the amount
of any Yield Maintenance Charges distributable pursuant to Section 4.01(d) to
the Upper-Tier Distribution Account, in each case pursuant to Section 3.04(b),
and upon presentation and surrender of the Certificates by the
Certificateholders on the final Distribution Date, the Paying Agent shall
distribute to each Certificateholder so presenting and surrendering its
Certificates such Certificateholder's Percentage Interest of that portion of the
amounts then on deposit in the Upper-Tier Distribution Account that are
allocable to payments on the Class of Certificates so presented and surrendered
and to the Holders of the Class S Certificates any amounts remaining on deposit
in the Excess Interest Distribution Account. Amounts transferred from the
Lower-Tier Distribution Account to the Upper-Tier Distribution Account as of the
final Distribution Date (exclusive of any portion of such amounts payable or
reimbursable to any Person pursuant to clause (ii) of Section 3.05(e)) shall be
allocated for these purposes, in the amounts and in accordance with the priority
set forth in Sections 4.01(b), 4.01(d) and 4.01(e) and shall be distributed in
termination and liquidation of the Uncertificated Lower-Tier Interests and the
Class LR Certificates in accordance with Sections 4.01(b), 4.01(d) and 4.01(e).
Any funds not distributed on such Distribution Date shall be set aside and held
uninvested in trust for the benefit of the Certificateholders not presenting and
surrendering their Certificates in the aforesaid manner and shall be disposed of
in accordance with this Section 9.01 and Section 4.01(g).
Section 9.02 Additional Termination Requirements. In the event the
Master Servicer, the Special Servicer, the Holders of the Controlling Class or
the Holders of the Class LR Certificates purchases all of the Mortgage Loans and
the Trust Fund's portion of each REO Property remaining in the Trust Fund as
provided in Section 9.01, the Trust Fund shall be terminated in accordance with
the following additional requirements, which meet the definition of a "qualified
liquidation" in Section 860F(a)(4) of the Code:
(i) the Paying Agent shall specify the date of adoption of the plan
of complete liquidation (which shall be the date of mailing of the notice
specified in Section 9.01) in a statement attached to each of the
Upper-Tier REMIC's and the Lower-Tier REMIC's final Tax Return pursuant to
Treasury Regulations Section 1.860F-1;
(ii) during the 90-day liquidation period and at or prior to the
time of the making of the final payment on the Certificates, the Paying
Agent on behalf of the Trustee shall sell all of the assets of the Trust
Fund to the Master Servicer, the Special Servicer, the Holders of the
Controlling Class or the Holders of the Class LR Certificates, as
applicable, for cash; and
(iii) within such 90 day liquidation period and immediately
following the making of the final payment on the Uncertificated Lower-Tier
Interests and the Certificates, the Paying Agent shall distribute or
credit, or cause to be distributed or credited, to the Holders of the
Class LR Certificates (in the case of the Lower-Tier REMIC) and the Class
R Certificates (in the case of the Upper-Tier REMIC) all cash on hand
(other than cash retained to meet claims), and the Trust Fund and each of
the Lower-Tier REMIC and the Upper-Tier REMIC shall terminate at that
time.
[End of Article IX]
ARTICLE X
ADDITIONAL REMIC PROVISIONS
Section 10.01 REMIC Administration. (a) The Paying Agent shall make
elections or cause elections to be made to treat each of the Lower-Tier REMIC
and the Upper-Tier REMIC as a REMIC under the Code and, if necessary, under
Applicable State and Local Tax Law. Each such election will be made on Form 1066
or other appropriate federal tax return for the taxable year ending on the last
day of the calendar year in which the Uncertificated Lower-Tier Interests and
the Certificates are issued. For the purposes of the REMIC election in respect
of the Upper-Tier REMIC, each Class of the Regular Certificates shall be
designated as the "regular interests" and the Class R Certificates shall be
designated as the sole class of "residual interests" in the Upper-Tier REMIC.
For purposes of the REMIC election in respect of the Lower-Tier REMIC, each
Class of Uncertificated Lower-Tier Interests shall be designated as the "regular
interests" and the Class LR Certificates shall be designated as the sole class
of "residual interests" in the Lower-Tier REMIC. None of the Special Servicer,
the Master Servicer nor the Trustee shall permit the creation of any "interests"
(within the meaning of Section 860G of the Code) in the Lower-Tier REMIC or the
Upper-Tier REMIC other than the foregoing interests.
(b) The Closing Date is hereby designated as the "startup day" of
each of the Lower-Tier REMIC and the Upper-Tier REMIC within the meaning of
Section 860G(a)(9) of the Code.
(c) The Paying Agent shall act on behalf of each REMIC in relation
to any tax matter or controversy involving any REMIC and shall represent each
REMIC in any administrative or judicial proceeding relating to an examination or
audit by any governmental taxing authority with respect thereto. The legal
expenses, including without limitation attorneys' or accountants' fees, and
costs of any such proceeding and any liability resulting therefrom shall be
expenses of the Trust Fund and the Paying Agent shall be entitled to
reimbursement therefor out of amounts attributable to the Mortgage Loans and any
REO Properties on deposit in the Certificate Account as provided by Section
3.05(a) unless such legal expenses and costs are incurred by reason of the
Paying Agent's willful misfeasance, bad faith or gross negligence. The Holder of
the largest Percentage Interest in each of the (i) Class R and (ii) Class LR
Certificates shall be designated, in the manner provided under Treasury
Regulations Section 1.860F-4(d) and temporary Treasury Regulations Section
301.6231(a)(7)-1T, as the "tax matters person" of the (i) Upper-Tier REMIC and
(ii) the Lower-Tier REMIC, respectively. By their acceptance thereof, the
Holders of the largest Percentage Interest in each of the (i) Class R and (ii)
Class LR Certificates hereby agrees to irrevocably appoint the Paying Agent as
their agent to perform all of the duties of the "tax matters person" for the (i)
Upper-Tier REMIC and (ii) the Lower-Tier REMIC, respectively.
(d) The Paying Agent shall prepare or cause to be prepared and shall
file, or cause to be filed, all of the Tax Returns that it determines are
required with respect to each of the Lower-Tier REMIC and the Upper-Tier REMIC
created hereunder, and shall cause the Trustee to sign such Tax Returns in a
timely manner. The ordinary expenses of preparing such returns shall be borne by
the Trustee without any right of reimbursement therefor. The Paying Agent agrees
to indemnify and hold harmless the Trustee with respect to any tax or liability
arising from the Trustee's signing of Tax Returns that contain errors or
omissions, if such errors or omissions are caused by the negligence, bad faith
or willful misconduct of the Paying Agent.
(e) The Paying Agent shall provide or cause to be provided (i) to
any Transferor of a Class R Certificate or Class LR Certificate such information
as is necessary for the application of any tax relating to the transfer of such
Class R Certificate or Class LR Certificate to any Person who is a Disqualified
Organization, or in the case of a Transfer to an Agent thereof, to such Agent,
(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) and (iii) to the Internal Revenue Service on Form 8811, within 30
days after the Closing Date, the name, title, address and telephone number of
the "tax matters person" who will serve as the representative of each of the
Lower-Tier REMIC and the Upper-Tier REMIC created hereunder.
(f) The Paying Agent shall take such actions and shall cause the
Trust Fund to take such actions as are reasonably within the Paying Agent's
control and the scope of its duties more specifically set forth herein as shall
be necessary to maintain the status of each of the Lower-Tier REMIC and the
Upper-Tier REMIC as a REMIC under the REMIC Provisions and the Trustee shall
assist the Paying Agent to the extent reasonably requested by the Paying Agent
to do so. Neither the Master Servicer nor the Special Servicer shall knowingly
or intentionally take any action, cause the Trust Fund to take any action or
fail to take (or fail to cause to be taken) any action reasonably within its
control and the scope of duties more specifically set forth herein, that, under
the REMIC Provisions, if taken or not taken, as the case may be, could (i)
endanger the status of the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC
or (ii) result in the imposition of a tax upon the Lower-Tier REMIC or the
Upper-Tier REMIC or the Trust Fund (including but not limited to the tax on
"prohibited transactions" as defined in Section 860F(a)(2) of the Code and the
tax on contributions to a REMIC set forth in Section 860G(d) of the Code, but
not including the tax on "net income from foreclosure property") (either such
event an "Adverse REMIC Event") unless the Paying Agent receives an Opinion of
Counsel (at the expense of the party seeking to take such action or, if such
party fails to pay such expense, and the Paying Agent determines that taking
such action is in the best interest of the Trust Fund and the
Certificateholders, at the expense of the Trust Fund, but in no event at the
expense of the Paying Agent or the Trustee) to the effect that the contemplated
action will not, with respect to the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC created hereunder, endanger such status or, unless the Paying
Agent determines in its sole discretion to indemnify the Trust Fund against such
tax, result in the imposition of such a tax (not including a tax on "net income
from foreclosure property"). The Trustee shall not take or fail to take any
action (whether or not authorized hereunder) as to which the Paying Agent has
advised it in writing that it has received an Opinion of Counsel to the effect
that an Adverse REMIC Event could occur with respect to such action. In
addition, prior to taking any action with respect to the Trust Fund, the
Lower-Tier REMIC or the Upper-Tier REMIC or any of their respective assets, or
causing the Trust Fund, the Lower-Tier REMIC or the Upper-Tier REMIC to take any
action, which is not expressly permitted under the terms of this Agreement, the
Trustee will consult with the Paying Agent or its designee, in writing, with
respect to whether such action could cause an Adverse REMIC Event to occur with
respect to the Trust Fund, the Lower-Tier REMIC or the Upper-Tier REMIC and the
Trustee shall not take any such action or cause the Trust Fund, the Lower-Tier
REMIC or the Upper-Tier REMIC to take any such action as to which the Paying
Agent has advised it in writing that an Adverse REMIC Event could occur. The
Paying Agent 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 expressly
permitted by this Agreement, but in no event at the expense of the Paying Agent
or the Trustee. At all times as may be required by the Code, the Paying Agent
will to the extent within its control and the scope of its duties more
specifically set forth herein, maintain substantially all of the assets of each
of the Lower-Tier REMIC and the Upper-Tier REMIC as "qualified mortgages" as
defined in Section 860G(a)(3) of the Code and "permitted investments" as defined
in Section 860G(a)(5) of the Code.
(g) In the event that any applicable federal, state or local tax,
including interest, penalties or assessments, additional amounts or additions to
tax, is imposed on the Lower-Tier REMIC or the Upper-Tier REMIC, such tax shall
be charged against amounts otherwise distributable to the Holders of the
Certificates, except as provided in the last sentence of this Section 10.01(g);
provided that with respect to the estimated amount of tax imposed on any "net
income from foreclosure property" pursuant to Section 860G(c) of the Code or any
similar tax imposed by a state or local tax authority, the Special Servicer
shall retain in the related REO Account a reserve for the payment of such taxes
in such amounts and at such times as it shall deem appropriate (or as advised by
the Paying Agent in writing), and shall remit to the Master Servicer such
reserved amounts as the Master Servicer shall request in order to pay such
taxes. Except as provided in the preceding sentence, the Master Servicer shall
withdraw from the Certificate Account sufficient funds to pay or provide for the
payment of, and to actually pay, such tax as is estimated to be legally owed by
the Lower-Tier REMIC or the Upper-Tier REMIC (but such authorization shall not
prevent the Paying Agent from contesting, at the expense of the Trust Fund
(other than as a consequence of a breach of its obligations under this
Agreement), any such tax in appropriate proceedings, and withholding payment of
such tax, if permitted by law, pending the outcome of such proceedings). The
Paying Agent is hereby authorized to and shall segregate, into a separate
non-interest bearing account, the net income from any "prohibited transaction"
under Section 860F(a) of the Code or the amount of any taxable contribution to
the Lower-Tier REMIC or the Upper-Tier REMIC after the Startup Day that is
subject to tax under Section 860G(d) of the Code and use such income or amount,
to the extent necessary, to pay such prohibited transactions tax. To the extent
that any such tax (other than any such tax paid in respect of "net income from
foreclosure property") is paid to the Internal Revenue Service or applicable
state or local tax authorities, the Paying Agent shall retain an equal amount
from future amounts otherwise distributable to the Holders of Residual
Certificates (as applicable) and shall distribute such retained amounts, (x) in
the case of the Uncertificated Lower-Tier REMIC Interests, to the Upper-Tier
REMIC to the extent they are fully reimbursed for any Collateral Support Deficit
arising therefrom and then to the Holders of the Class LR Certificates in the
manner specified in Section 4.01(b) and (y) in the case of the Upper-Tier REMIC,
to the Holders of Class A, Class A-J, Class B, Class C, Class D, Class E, Class
F, Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class P, Class
Q, Class NR, Class X-1 and Class X-2 Certificates, as applicable, in the manner
specified in Section 4.01(a), to the extent they are fully reimbursed for any
Collateral Support Deficit, arising therefrom and then to the Holders of the
Class R Certificates. None of the Trustee, the Paying Agent, the Master Servicer
or the Special Servicer shall be responsible for any taxes imposed on the
Lower-Tier REMIC or the Upper-Tier REMIC except to the extent such taxes arise
as a consequence of a breach of their respective obligations under this
Agreement which breach constitutes willful misfeasance, bad faith, or negligence
by such party.
(h) The Paying Agent shall, for federal income tax purposes,
maintain or cause to be maintained books and records with respect to each of the
Lower-Tier REMIC and the Upper-Tier REMIC on a calendar year and on an accrual
basis or as otherwise may be required by the REMIC Provisions.
(i) Following the Startup Day, neither the Paying Agent nor the
Trustee shall accept any contributions of assets to the Lower-Tier REMIC and the
Upper-Tier REMIC unless the Paying Agent and the Trustee shall have received an
Opinion of Counsel (at the expense of the party seeking to make such
contribution) to the effect that the inclusion of such assets in the Lower-Tier
REMIC or the Upper-Tier REMIC will not (i) cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC at any time that any
Uncertificated Lower-Tier Interests or Certificates are outstanding or (ii)
subject any of the Trust Fund or the Lower-Tier REMIC or the Upper-Tier REMIC to
any tax under the REMIC Provisions or other applicable provisions of federal,
state and local law or ordinances.
(j) Neither the Paying Agent nor the Trustee shall enter into any
arrangement by which the Trust Fund or the Lower-Tier REMIC or the Upper-Tier
REMIC will receive a fee or other compensation for services nor permit the Trust
Fund or the Lower-Tier REMIC or the Upper-Tier REMIC 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.
(k) Solely for the purposes of Treasury Regulations Section
1.860G-1(a)(4)(iii), the "latest possible maturity date" by which the
Certificate Balance or Notional Amount of each Class of Certificates (other than
the Class X-2 Certificates) representing a "regular interest" in the Upper-Tier
REMIC and by which the Lower-Tier Principal Amount of each Class of
Uncertificated Lower-Tier Interests representing a "regular interest" in the
Lower-Tier REMIC would be reduced to zero is the Rated Final Distribution Date.
The "latest possible maturity date" of the Class X-2 Certificates is the Class
X-2 Termination Date.
(l) None of the Trustee, the Paying Agent, the Master Servicer or
the Special Servicer, as applicable, shall sell, dispose of or substitute for
any of the Mortgage Loans (except in connection with (i) the default, imminent
default or foreclosure of a Mortgage Loan, including but not limited to, the
acquisition or sale of a Mortgaged Property acquired by foreclosure or deed in
lieu of foreclosure, (ii) the bankruptcy of the Trust Fund, (iii) the
termination of the Trust Fund pursuant to Article IX of this Agreement or (iv) a
purchase of Mortgage Loans pursuant to Article II or III of this Agreement) or
acquire any assets for the Trust Fund or the Lower-Tier REMIC or the Upper-Tier
REMIC or sell or dispose of any investments in the Certificate Account or the
REO Account for gain unless it has received an Opinion of Counsel that such
sale, disposition or substitution will not (a) affect adversely the status of
the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC or (b) unless the
Trustee, the Paying Agent, the Master Servicer or the Special Servicer, as
applicable, has determined in its sole discretion to indemnify the Trust Fund
against such tax, cause the Trust Fund or the Lower-Tier REMIC or the Upper-Tier
REMIC to be subject to a tax on "prohibited transactions" pursuant to the REMIC
Provisions.
Section 10.02 Use of Agents. (a) The Trustee shall execute all of
its obligations and duties under this Article X through its Corporate Trust
Office. The Trustee may execute any of its obligations and duties under this
Article X either directly or by or through agents or attorneys. The Trustee
shall not be relieved of any of its duties or obligations under this Article X
by virtue of the appointment of any such agents or attorneys.
(b) The Paying Agent may execute any of its obligations and duties
under this Article X either directly or by or through agents or attorneys. The
Paying Agent shall not be relieved of any of its duties or obligations under
this Article X by virtue of the appointment of any such agents or attorneys.
Section 10.03 Depositor, Master Servicer and Special Servicer to
Cooperate with Paying Agent. (a) The Depositor shall provide or cause to be
provided to the Paying Agent within ten (10) days after the Depositor receives a
request from the Paying Agent, all information or data that the Paying Agent
reasonably determines to be relevant for tax purposes as to the valuations and
issue prices of the Certificates, including, without limitation, the price,
yield, Prepayment Assumptions and projected cash flow of the Certificates.
(b) The Master Servicer and the Special Servicer shall each furnish
such reports, certifications and information, and upon reasonable notice and
during normal business hours, 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 Paying Agent in order to enable it to perform its
duties hereunder.
Section 10.04 Appointment of REMIC Administrators. (a) The Paying
Agent may appoint at the Paying Agent's expense, one or more REMIC
Administrators, which shall be authorized to act on behalf of the Paying Agent
in performing the functions set forth in Section 10.01 herein. The Paying Agent
shall cause any such REMIC Administrator to execute and deliver to the Paying
Agent an instrument in which such REMIC Administrator shall agree to act in such
capacity, with the obligations and responsibilities herein. The appointment of a
REMIC Administrator shall not relieve the Paying Agent from any of its
obligations hereunder, and the Paying Agent shall remain responsible and liable
for all acts and omissions of the REMIC Administrator. Each REMIC Administrator
must be acceptable to the Paying Agent and must be organized and doing business
under the laws of the United States of America or of any State and be subject to
supervision or examination by federal or state authorities. In the absence of
any other Person appointed in accordance herewith acting as REMIC Administrator,
the Paying Agent hereby agrees to act in such capacity in accordance with the
terms hereof. If JPMorgan Chase Bank, National Association is removed as Paying
Agent, then JPMorgan Chase Bank, National Association shall be terminated as
REMIC Administrator.
(b) Any Person into which any REMIC Administrator may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion, or consolidation to which any REMIC Administrator shall be a
party, or any Person succeeding to the corporate agency business of any REMIC
Administrator, shall continue to be the REMIC Administrator without the
execution or filing of any paper or any further act on the part of the Paying
Agent or the REMIC Administrator.
(c) Any REMIC Administrator may at any time resign by giving at
least 30 days' advance written notice of resignation to the Trustee, the
Certificate Registrar, the Paying Agent, the Master Servicer, the Special
Servicer and the Depositor. The Paying Agent may at any time terminate the
agency of any REMIC Administrator by giving written notice of termination to
such REMIC Administrator, the Master Servicer, the Certificate Registrar and the
Depositor. Upon receiving a notice of resignation or upon such a termination, or
in case at any time any REMIC Administrator shall cease to be eligible in
accordance with the provisions of this Section 10.04, the Paying Agent may
appoint a successor REMIC administrator, in which case the Paying Agent shall
given written notice of such appointment to the Master Servicer and the
Depositor and shall mail notice of such appointment to all Certificateholders;
provided, however, that no successor REMIC administrator shall be appointed
unless eligible under the provisions of this Section 10.04. Any successor REMIC
administrator upon acceptance of its appointment hereunder shall become vested
with all the rights, powers, duties and responsibilities of its predecessor
hereunder, with like effect as if originally named as REMIC Administrator. No
REMIC Administrator shall have responsibility or liability for any action taken
by it as such at the direction of the Paying Agent.
[End of Article X]
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment. (a) This Agreement may be amended from time
to time by the parties hereto, without the consent of any of the
Certificateholders or the Companion Holders:
(i) to cure any ambiguity to the extent that it does not materially
and adversely affect any Certificateholder or Companion Holder;
(ii) to cause the provisions in this Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus
with respect to the Certificates, the Trust or this Agreement or to
correct or supplement any of its provisions which may be inconsistent with
any other provisions therein or to correct any error to the extent, in
each case, it does not materially and adversely affect the interests of
any Certificateholder or Companion Holder;
(iii) to modify, eliminate or add to any of its provisions to such
extent as shall be necessary to maintain the qualification of the Trust
Fund or either of the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC,
or the Grantor Trust as a grantor trust at all times that any Certificate
is outstanding or to avoid or minimize the risk of the imposition of any
tax on the Trust Fund or either of the Lower-Tier REMIC or the Upper-Tier
REMIC pursuant to the Code that would be a claim against the Trust Fund or
either of the Lower-Tier REMIC or the Upper-Tier REMIC, provided that the
Trustee has received an Opinion of Counsel (at the expense of the party
requesting such amendment) to the effect that (a) such action is necessary
or desirable to maintain such qualification or to avoid or minimize the
risk of the imposition of any such tax and (b) such action will not
adversely affect in any material respect the interests of any
Certificateholder or any Companion Holder;
(iv) to change the timing and/or nature of deposits into the
Certificate Account, any Distribution Accounts or REO Account, provided
that (a) the P&I Advance Date shall in no event be later than the Business
Day prior to related Distribution Date, (b) such change shall not, as
evidenced by an Opinion of Counsel (at the expense of the party requesting
such amendment or at the expense of the Trust Fund if the requesting party
is the Trustee or the Paying Agent), adversely affect in any material
respect the interests of any Certificateholder or any Companion Holder and
(c) such change shall not result in the withdrawal, downgrade or
qualification of the then-current rating assigned to any Class of
Certificates as evidenced by a letter from each Rating Agency to such
effect;
(v) to modify, eliminate or add to the provisions of Section 5.02(c)
or any other provision hereof restricting transfer of the Residual
Certificates by virtue of their being the REMIC "residual interests,"
provided that such change shall not, as evidenced by an Opinion of
Counsel, cause the Trust Fund, the Lower-Tier REMIC, the Upper-Tier REMIC
or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person;
(vi) to make any other provisions with respect to matters or
questions arising under this Agreement which shall not be materially
inconsistent with the provisions of this Agreement, provided that such
action shall not, (x) as evidenced by an Opinion of Counsel, adversely
affect in any material respect the interests of any Certificateholder or
Companion Holder not consenting thereto (y) result in the downgrade,
withdrawal or qualification of the then-current rating assigned to any
Class of Certificates, as evidenced by a letter from each Rating Agency;
(vii) to amend or supplement any provision hereof to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, provided that such change shall not
result in the downgrade, withdrawal or qualification of the then-current
rating assigned to any Class of Certificates, as evidenced by a letter
from each Rating Agency to such effect;
(viii) to modify the provisions of Sections 3.05 and 3.19 (with
respect to reimbursement of Nonrecoverable Advances and Workout-Delayed
Reimbursement Amounts) if (a) the Depositor, the Master Servicer, the
Trustee and the Directing Certificateholder determine that the commercial
mortgage backed securities industry standard for such provisions has
changed, in order to conform to such industry standard, (b) such
modification does not adversely affect the status of the Upper-Tier REMIC
or the Lower-Tier REMIC as a REMIC, as evidenced by an opinion of counsel
and (c) each Rating Agency has delivered written confirmation that such
modification would not result in the downgrade, withdrawal or
qualification of any of the then current ratings of any Class of
Certificates; and
(ix) to implement the modifications to this Agreement contemplated
in Section 7.01(a);
provided that no such amendment changes in any manner the obligations of any
Mortgage Loan Seller under a Mortgage Loan Purchase Agreement without the
consent of such Mortgage Loan Seller.
(b) This Agreement may also be amended from time to time by the
parties hereto with the consent of the Holders of Certificates evidencing in the
aggregate not less than 66 2/3% of the Percentage Interests of each Class of
Certificates affected thereby 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 of such
Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
(c) Notwithstanding the foregoing, none of the Trustee, the Paying
Agent, the Depositor, the Master Servicer nor the Special Servicer will be
required to consent to any amendment hereto without having first received an
Opinion of Counsel (at the Trust Fund's expense) to the effect that such
amendment is permitted hereunder and that such amendment or the exercise of any
power granted to the Master Servicer, the Depositor, the Special Servicer, the
Trustee, the Paying Agent or any other specified person in accordance with such
amendment will not result in the imposition of a tax on any portion of the Trust
Fund, the Lower-Tier REMIC, the Upper-Tier REMIC or the Grantor Trust, cause the
Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC or cause
the Grantor Trust to fail to qualify as a grantor trust.
(d) Promptly after the execution of any such amendment, the Paying
Agent shall furnish a statement describing the amendment to each
Certificateholder and the Trustee and shall furnish a copy of such amendment 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 of the execution thereof by Certificateholders shall be subject to
such reasonable regulations as the Paying Agent may prescribe.
(f) The Trustee shall not be obligated to enter into any amendment
pursuant to this Section that affects its rights, duties and immunities under
this Agreement or otherwise.
(g) The cost of any Opinion of Counsel to be delivered pursuant to
Section 11.01(a) or (c) shall be borne by the Person seeking the related
amendment, except that if the Master Servicer or the Trustee requests any
amendment of this Agreement 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
Certificate Account.
(h) The Servicing Standards shall not be amended unless each Rating
Agency provides a written confirmation that such amendment would not cause a
downgrading, qualification or withdrawal of the then current ratings assigned to
any of the Certificates.
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 Depositor on direction by the Special Servicer and with the consent of the
Depositor (which may not be unreasonably withheld), but only upon direction
accompanied by an Opinion of Counsel (the cost of which shall be paid by the
Depositor) to the effect that such recordation materially and beneficially
affects the interests of the Certificateholders.
(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.
(c) The Trustee shall make any filings required under the laws of
the state of its place of business required solely by virtue of the fact of the
location of the Trustee's place of business, the costs of which, if any, to be
at the Trustee's expense.
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 Fund, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of the Trust Fund, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
(b) No Certificateholder shall have any right to vote (except as
expressly provided for herein) or in any manner otherwise control the operation
and management of the Trust Fund, or the obligations of the parties hereto, nor
shall anything herein set forth, or contained in the terms of the Certificates,
be construed so as to constitute the Certificateholders from time to time as
partners or members of an association; nor shall any Certificateholder be under
any liability to any third party by reason of any action taken by the parties to
this Agreement pursuant to any provision hereof.
(c) No Certificateholder shall have any right by virtue of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement or any Mortgage
Loan, unless, with respect to any suit, action or proceeding upon or under or
with respect to this Agreement, such Holder previously shall have given to the
Trustee and the Paying Agent a written notice of default hereunder, and of the
continuance thereof, as herein before provided, and unless also (except in the
case of a default by the Trustee) the Holders of Certificates of any Class
evidencing not less than 25% of the related Percentage Interests in such Class
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. The
Trustee shall be under no obligation to exercise any of the trusts or powers
vested in it hereunder or to institute, conduct or defend any litigation
hereunder or in relation hereto at the request, order or direction of any of the
Holders of Certificates unless such Holders have offered to the Trustee
reasonable security against the costs, expenses and liabilities which may be
incurred therein or hereby. It is understood and intended, and expressly
covenanted by each Certificateholder with every other Certificateholder and the
Trustee, that no one or more Holders of Certificates shall have any right in any
manner whatsoever by virtue of any provision of this Agreement to affect,
disturb or prejudice the rights of the Holders of any other of such
Certificates, or to obtain or seek to obtain priority over or preference to any
other such Holder, which priority or preference is not otherwise provided for
herein, or to enforce any right under this Agreement, except in the manner
herein provided and for the equal, ratable and common benefit of all
Certificateholders. For the protection and enforcement of the provisions of this
Section 11.03(c), 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 internal laws of the State of New York
applicable to agreements made and to be performed in said State, and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with such laws.
Section 11.05 Notices. Any communications provided for or permitted
hereunder shall be in writing and, unless otherwise expressly provided herein,
shall be deemed to have been duly given if personally delivered at or couriered,
sent by facsimile transmission or mailed by registered mail, postage prepaid
(except for notices to the Trustee which shall be deemed to have been duly given
only when received), to: (i) in the case of the Depositor, X.X. Xxxxxx Xxxxx
Commercial Mortgage Securities Corp., 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx
00000, Attention: Xxxxxx Xxxxx, Vice President, telecopy number: (000) 000-0000;
(ii) in the case of the Master Servicer, Midland Loan Services, Inc., 00000
Xxxxxx, Xxxxx 000, Xxxxxxxx Xxxx, Xxxxxx 00000, Attention: President, Re: X.X.
Xxxxxx Chase Commercial Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 2004-C3, telecopy number: (000) 000-0000;
(iii) in the case of the Special Servicer, X.X. Xxxxxx Company, Inc., 0000
Xxxxxx Xxxx., Xxxxx 0000, XxXxxx, Xxxxxxxx 00000, Attention: Xxxxx X. Xxxxxxx,
telecopy number: (000) 000-0000, with a copy to X.X. Xxxxxx Company, Inc., 00000
Xxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000, Attention: Xxxxx X. Xxxxxx,
telecopy number: (000) 000-0000; (iv) in the case of the initial Directing
Certificateholder, JER Investor Trust Inc. c/o X.X. Xxxxxx Company, Inc., 0000
Xxxxxx Xxxx., Xxxxx 0000, XxXxxx, Xxxxxxxx 00000, Attention: Xxxxx X. Xxxxxxx,
telecopy number: (000) 000-0000, with a copy to X.X. Xxxxxx Company, Inc., 00000
Xxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000, Attention: Xxxxx X. Xxxxxx,
telecopy number: (000) 000-0000; (v) in the case of the Trustee, Xxxxx Fargo
Bank, N.A., 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000-0000; Attention:
Corporate Trust (CMBS), X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.,
Series 2004-C3, telecopy number: (000) 000-0000; (vi) in the case of the Rating
Agencies, (a) Xxxxx'x Investors Services, Inc., 00 Xxxxxx Xxxxxx, 0xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Commercial Mortgage Surveillance Group,
telecopy number: (000) 000-0000 and (b) Fitch, Inc., Xxx Xxxxx Xxxxxx Xxxxx, Xxx
Xxxx, Xxx Xxxx, Attention: Commercial Mortgage-Backed Securities Group, telecopy
number: (000) 000-0000; (vii) in the case of the initial Paying Agent, the
initial Certificate Registrar and the initial Authenticating Agent, JPMorgan
Chase Bank, National Association, 0 Xxx Xxxx Xxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: JPMorgan 2004-C3 telecopy number (000) 000-0000; and
(viii) in the case of the Mortgage Loan Sellers, (a) JPMorgan Chase Bank,
National Association, 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxxx: Xxxxxx Xxxxx, Vice
President, telecopy number: (000) 000-0000; (b) Nomura Credit & Capital, Inc., 2
World Xxxxxxxxx Xxxxxx, Xxxxxxxx X, Xxx Xxxx, Xxx Xxxx 00000-0000, Attention: N.
Xxxxx XxXxxxx, telecopy number: (000) 000-0000; and (c) PNC Bank, National
Association, 00000 Xxxxxx, Xxxxx 000, Xxxxxxxx Xxxx, Xxxxxx 00000 (for
deliveries or courier), and X.X. Xxx-00000, Xxxxxxx Xxxxxxx, Xxxxxx 00000-0000
(xxx Xxxxxx Xxxxxx mail), Attention: Xxxxx Xxxx, telecopy number (000) 000-0000,
with a copy to it at One PNC Plaza, 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxxxx,
Xxxxxxxxxxxx-00000 Attention: Xxxxxxxx Xxxxxx Xxxxx, telecopy number (412)
762-4334; or as to each such Person such other address as may hereafter be
furnished by such Person to the parties hereto in writing. Any communication
required or permitted to be delivered to a Certificateholder shall be deemed to
have been duly given when mailed first class, postage prepaid, to the address of
such Holder as shown in the Certificate Register. Any notice so mailed within
the time prescribed in this Agreement shall be conclusively presumed to have
been duly given, whether or not the Certificateholder receives such notice.
Section 11.06 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the Holders thereof.
Section 11.07 Grant of a Security Interest. The Depositor intends
that the conveyance of the Depositor's right, title and interest in and to the
Mortgage Loans pursuant to this Agreement shall constitute a sale and not a
pledge of security for a loan. If such conveyance is deemed to be a pledge of
security for a loan, however, the Depositor intends that the rights and
obligations of the parties to such loan shall be established pursuant to the
terms of this Agreement. The Depositor also intends and agrees that, in such
event, (i) the Depositor shall be deemed to have granted to the Trustee (in such
capacity) a first priority security interest in the Depositor's entire right,
title and interest in and to the assets comprising the Trust Fund, including
without limitation, the Mortgage Loans, all principal and interest received or
receivable with respect to the Mortgage Loans (other than principal and interest
payments due and payable prior to the Cut-off Date and Principal Prepayments
received prior to the Cut-off Date), all amounts held from time to time in the
Certificate Account, the Distribution Accounts, the Excess Interest Distribution
Account, the Gain-on-Sale Reserve Account, the Interest Reserve Account and, if
established, the REO Account, and all reinvestment earnings on such amounts, and
all of the Depositor's right, title and interest in and to the proceeds of any
title, hazard or other Insurance Policies related to such Mortgage Loans and
(ii) this Agreement shall constitute a security agreement under applicable law.
This Section 11.07 shall constitute notice to the Trustee pursuant to any of the
requirements of the applicable UCC.
Section 11.08 Successors and Assigns; Beneficiaries. The provisions
of this Agreement shall be binding upon and inure to the benefit of the
respective successors and assigns of the parties hereto, and all such provisions
shall inure to the benefit of the Certificateholders. Each Mortgage Loan Seller
and the Companion Holders (and their agents) is an intended third-party
beneficiary in respect of the respective rights afforded it hereunder. No other
person, including, without limitation, any Mortgagor, shall be entitled to any
benefit or equitable right, remedy or claim under this Agreement.
Section 11.09 Article and Section Headings. The article and section
headings herein are for convenience of reference only, and shall not limit or
otherwise affect the meaning hereof.
Section 11.10 Notices to the Rating Agencies. (a) The Trustee shall
use reasonable efforts promptly to provide notice to each Rating Agency with
respect to each of the following of which it has actual knowledge:
(i) any material change or amendment to this Agreement;
(ii) the occurrence of any Event of Default that has not been cured;
(iii) the resignation or termination of the Paying Agent, the Master
Servicer or the Special Servicer; and
(iv) the repurchase or substitution of Mortgage Loans by a Mortgage
Loan Seller pursuant to Section 6 of the Mortgage Loan Purchase Agreement.
(b) The Master Servicer shall use reasonable efforts promptly to
provide notice to each Rating Agency with respect to each of the following of
which it has actual knowledge:
(i) the resignation or removal of the Trustee;
(ii) any change in the location of the Certificate Account;
(iii) any event that would result in the voluntary or involuntary
termination of any insurance of the accounts of the Trustee;
(iv) any change in the lien priority of any Mortgage Loan with
respect to an assumption of the Mortgage Loan or additional encumbrance
described in Section 3.08;
(v) any additional lease to an anchor tenant or termination of any
existing lease to an anchor tenant at retail properties for any Mortgage
Loan with a Stated Principal Balance that is equal to or greater than the
lesser of (1) an amount greater than 5% of the then aggregate outstanding
principal balances of the Mortgage Loans or (2) $35,000,000;
(vi) any material damage to any Mortgaged Property;
(vii) any assumption with respect to a Mortgage Loan; and
(viii) any release or substitution of any Mortgaged Property.
(c) Upon written request, each of the Master Servicer and the
Special Servicer shall promptly furnish to each Rating Agency copies of
inspection reports and other items delivered to each of the Master Servicer and
Special Servicer pursuant to Sections 3.12(a) and 3.12(b).
(d) The Paying Agent shall promptly furnish notice to the Rating
Agencies of (i) any change in the location of the Distribution Accounts and (ii)
the final payment to any Class of Certificateholders.
(e) The Trustee, the Paying Agent, the Master Servicer and the
Special Servicer, as applicable, shall furnish to each Rating Agency with
respect to each Mortgage Loan such information as the Rating Agency shall
reasonably request and which the Trustee, the Paying Agent, the Master Servicer
or Special Servicer, can reasonably provide in accordance with applicable law
and without waiving any attorney-client privilege relating to such information
or violating the terms of this Agreement or any Mortgage Loan documents. The
Trustee, the Master Servicer and Special Servicer, as applicable, may include
any reasonable disclaimer it deems appropriate with respect to such information.
Notwithstanding anything to the contrary herein, nothing in this Section 11.10
shall require a party to provide duplicative notices or copies to the Rating
Agencies with respect to any of the above listed items.
[End of Article XI]
[SIGNATURES COMMENCE ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective officers thereunto duly authorized, in each
case as of the day and year first above written.
X.X. XXXXXX XXXXX COMMERCIAL
MORTGAGE SECURITIES CORP.,
Depositor
By: /s/ Xxxxxxx X. Xxx
------------------------------------
Name: Xxxxxxx X. Xxx
Title: Vice President
MIDLAND LOAN SERVICES, INC.,
Master Servicer
By: /s/ Xxxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Sr. Vice President
X.X. XXXXXX COMPANY, INC.,
Special Servicer
By: /s/ Xxxxx Xxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxx
Title: Managing Director
XXXXX FARGO BANK, N.A.,
Trustee
By: /s/ Xxxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION,
Paying Agent
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 20th day of December, 2004, before me, a notary public in and
for said State, personally appeared Xxxxxxx X. Xxx known to me to be Vice
President of X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., one of the
corporations that executed the within instrument, and also known to me to be the
person who executed it on behalf of such corporation, and acknowledged to me
that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxx Xxxxxxxx (Xxxxxx)
----------------------------------------
Notary Public
XXXXX XXXXXXXX
Notary Public, State of New York
No. 00-0000000
Qualified in Richmond County
Certificate Filed in New York County
Commission Expires March 20, 2006
My commission expires:
March 20, 0000
XXXXX XX XXXXXX )
) ss.:
COUNTY OF XXXXXXX )
On the 17th day of December, 2004, before me, a notary public in
and for said State, personally appeared Xxxxxxxx X. Xxxxxx known to me to be a
Sr. Vice President of Midland Loan Services, Inc., that executed the within
instrument, and also known to me to be the person who executed it on behalf of
such corporation, and acknowledged to me that such corporation executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxx Xxxx
----------------------------------------
Notary Public
XXXXX XXXX
NOTARY PUBLIC - State of Kansas
My Appt. Exp. 6/11/06
My commission expires:
STATE OF VIRGINIA )
) ss.:
COUNTY OF FAIRFAX )
On the 22nd day of December, 2004, before me, a notary public in and
for said State, personally appeared Xxxxx Xxxxxxx known to me to be a Managing
Director of X.X. Xxxxxx Company, Inc., that executed the within instrument, and
also known to me to be the person who executed it on behalf of such corporation,
and acknowledged to me that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxx X. Xxxxxx
----------------------------------------
Notary Public
XXXXX X. XXXXXX
COMMONWEALTH
OF
VIRGINIA
NOTARY PUBLIC
[SEAL]
My commission expires: December 31, 0000
XXXXX XX XXXXX XXXXXXXX)
) ss.:
COUNTY OF MECKLENBURG )
On the 29th day of December, 2004, before me, a notary public in and
for said State, personally appeared Xxxxxxx Xxxxxxx known to me to be a VP of
Xxxxx Fargo Bank, N.A., that executed the within instrument, and also known to
me to be the person who executed it on behalf of such national banking
association, and acknowledged to me that such national banking association
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxxxxx X. XxxXxxx
----------------------------------------
Notary Public
XXXXXXXX X. XXXXXXX
NOTARY PUBLIC
MECKLENBURG COUNTY, N.C.
[SEAL]
My commission expires: May 3, 0000
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK)
On the 29 day of December, 2004, before me, a notary public in and
for said State, personally appeared Xxxxx X. Xxxxxxx known to me to be a VP of
JPMorgan Chase Bank, National Association, that executed the within instrument,
and also known to me to be the person who executed it on behalf of such national
banking association, and acknowledged to me that such national banking
association executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxxxxx X. Xxxxx
----------------------------------------
Notary Public
XXXXXXXX X. XXXXX
Notary Public, State of New York
No. 00-0000000
Qualified in Kings County
Commission Expires April 22, 2007
[SEAL]
My commission expires:
EXHIBIT A-1
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2004-C3, CLASS A-1
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar 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.
PASS-THROUGH RATE: 3.7650% SERVICER: MIDLAND LOAN SERVICES, INC.
DENOMINATION: $56,228,000 SPECIAL SERVICER: X.X. XXXXXX COMPANY,
INC.
DATE OF POOLING AND SERVICING TRUSTEE: XXXXX FARGO BANK, N.A.
AGREEMENT: AS OF DECEMBER 1, 2004
PAYING AGENT: JPMORGAN CHASE BANK,
CUT-OFF DATE: AS SET FORTH IN THE NATIONAL ASSOCIATION
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN) CUSIP NO.: 46625Y EU 3
CLOSING DATE: DECEMBER 29, 2004 ISIN NO.: US46625YEU38
FIRST DISTRIBUTION DATE: COMMON CODE NO.: 020927089
JANUARY 18, 2005
CERTIFICATE NO.: A-1-[--]
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS A-1 CERTIFICATES
AS OF THE CLOSING DATE: $56,228,000
CLASS A-1 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Excess Interest Distribution Account, the
Gain-on-Sale Reserve Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class A-1 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2004 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Paying Agent. A summary of certain of the
pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-1 Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2004-C3 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-1 Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the Certificate Account) or the Paying Agent
(with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Offered Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer, the Paying Agent
and the Trustee, without the consent of any of the Certificateholders or
Companion Holders, to cure any ambiguity to the extent it does not materially
and adversely affect the interests of any Certificateholder or Companion Holder;
to cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicer, the Trustee, the Paying Agent and the Directing Certificateholder
determine that the commercial mortgage backed securities industry standard for
such provisions has changed, in order to conform to such industry standard, such
modification does not adversely affect the status of the Upper-Tier REMIC or the
Lower-Tier REMIC as a REMIC, as evidenced by an opinion of counsel and each
Rating Agency has delivered written confirmation that such modification would
not result in the downgrade, withdrawal or qualification of any of the then
current ratings of any Class of Certificates; and to implement the modifications
to the Pooling and Servicing Agreement contemplated in Section 7.01(a); provided
further, that no such amendment changes in any manner the obligations of any
Mortgage Loan Seller without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicer, the Special Servicer, the Paying
Agent and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standard.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement 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.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION, not in its individual
capacity but solely as Certificate
Registrar under the Pooling and
Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: December 29, 2004
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-1 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated: _________________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-2
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2004-C3, CLASS A-2
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar 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.
PASS-THROUGH RATE: 4.2230% SERVICER: MIDLAND LOAN SERVICES, INC.
DENOMINATION: $154,670,000 SPECIAL SERVICER: X.X. XXXXXX COMPANY,
INC.
DATE OF POOLING AND SERVICING TRUSTEE: XXXXX FARGO BANK, N.A.
AGREEMENT: AS OF DECEMBER 1, 2004
PAYING AGENT: JPMORGAN CHASE BANK,
CUT-OFF DATE: AS SET FORTH IN THE NATIONAL ASSOCIATION
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN) CUSIP NO.: 46625Y EV 1
CLOSING DATE: DECEMBER 29, 2004 ISIN NO.: US46625YEV11
FIRST DISTRIBUTION DATE: COMMON CODE NO.: 020927143
JANUARY 18, 2005
CERTIFICATE NO.: A-2-[--]
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS A-2 CERTIFICATES
AS OF THE CLOSING DATE: $154,670,000
EXHIBIT A-2
CLASS A-2 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Excess Interest Distribution Account, the
Gain-on-Sale Reserve Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class A-2 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2004 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Paying Agent. A summary of certain of the
pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-2 Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2004-C3 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-2 Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the Certificate Account) or the Paying Agent
(with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Offered Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer, the Paying Agent
and the Trustee, without the consent of any of the Certificateholders or
Companion Holders, to cure any ambiguity to the extent it does not materially
and adversely affect the interests of any Certificateholder or Companion Holder;
to cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicer, the Trustee, the Paying Agent and the Directing Certificateholder
determine that the commercial mortgage backed securities industry standard for
such provisions has changed, in order to conform to such industry standard, such
modification does not adversely affect the status of the Upper-Tier REMIC or the
Lower-Tier REMIC as a REMIC, as evidenced by an opinion of counsel and each
Rating Agency has delivered written confirmation that such modification would
not result in the downgrade, withdrawal or qualification of any of the then
current ratings of any Class of Certificates; and to implement the modifications
to the Pooling and Servicing Agreement contemplated in Section 7.01(a); provided
further, that no such amendment changes in any manner the obligations of any
Mortgage Loan Seller without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicer, the Special Servicer, the Paying
Agent and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standard.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement 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.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION, not in its individual
capacity but solely as Certificate
Registrar under the Pooling and
Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: December 29, 2004
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-2 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated: _________________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-3
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2004-C3, CLASS A-3
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar 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.
PASS-THROUGH RATE: 4.5450% SERVICER: MIDLAND LOAN SERVICES, INC.
DENOMINATION: $235,827,000 SPECIAL SERVICER: X.X. XXXXXX COMPANY,
INC.
DATE OF POOLING AND SERVICING TRUSTEE: XXXXX FARGO BANK, N.A.
AGREEMENT: AS OF DECEMBER 1, 2004
PAYING AGENT: JPMORGAN CHASE BANK,
CUT-OFF DATE: AS SET FORTH IN THE NATIONAL ASSOCIATION
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN) CUSIP NO.: 46625Y EW 9
CLOSING DATE: DECEMBER 29, 2004 ISIN NO.: US46625YEW93
FIRST DISTRIBUTION DATE: COMMON CODE NO.: 020927194
JANUARY 18, 2005
CERTIFICATE NO.: A-3-[--]
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS A-3 CERTIFICATES
AS OF THE CLOSING DATE: $235,827,000
CLASS A-3 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Excess Interest Distribution Account, the
Gain-on-Sale Reserve Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class A-3 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2004 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Paying Agent. A summary of certain of the
pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-3 Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2004-C3 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-3 Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the Certificate Account) or the Paying Agent
(with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Offered Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer, the Paying Agent
and the Trustee, without the consent of any of the Certificateholders or
Companion Holders, to cure any ambiguity to the extent it does not materially
and adversely affect the interests of any Certificateholder or Companion Holder;
to cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicer, the Trustee, the Paying Agent and the Directing Certificateholder
determine that the commercial mortgage backed securities industry standard for
such provisions has changed, in order to conform to such industry standard, such
modification does not adversely affect the status of the Upper-Tier REMIC or the
Lower-Tier REMIC as a REMIC, as evidenced by an opinion of counsel and each
Rating Agency has delivered written confirmation that such modification would
not result in the downgrade, withdrawal or qualification of any of the then
current ratings of any Class of Certificates; and to implement the modifications
to the Pooling and Servicing Agreement contemplated in Section 7.01(a); provided
further, that no such amendment changes in any manner the obligations of any
Mortgage Loan Seller without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicer, the Special Servicer, the Paying
Agent and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standard.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement 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.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION, not in its individual
capacity but solely as Certificate
Registrar under the Pooling and
Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: December 29, 2004
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-3 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated: _________________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-4
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2004-C3, CLASS A-4
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar 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.
PASS-THROUGH RATE: 4.6570% SERVICER: MIDLAND LOAN SERVICES, INC.
DENOMINATION: $166,135,000 SPECIAL SERVICER: X.X. XXXXXX COMPANY,
INC.
DATE OF POOLING AND SERVICING TRUSTEE: XXXXX FARGO BANK, N.A.
AGREEMENT: AS OF DECEMBER 1, 2004
PAYING AGENT: JPMORGAN CHASE BANK,
CUT-OFF DATE: AS SET FORTH IN THE NATIONAL ASSOCIATION
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN) CUSIP NO.: 46625Y EX 7
CLOSING DATE: DECEMBER 29, 2004 ISIN NO.: US46625YEX76
FIRST DISTRIBUTION DATE: COMMON CODE NO.: 020927275
JANUARY 18, 2005
CERTIFICATE NO.: A-4-[--]
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS A-4 CERTIFICATES
AS OF THE CLOSING DATE: $166,135,000
CLASS A-4 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Excess Interest Distribution Account, the
Gain-on-Sale Reserve Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class A-4 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2004 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Paying Agent. A summary of certain of the
pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-4 Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2004-C3 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-4 Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the Certificate Account) or the Paying Agent
(with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Offered Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer, the Paying Agent
and the Trustee, without the consent of any of the Certificateholders or
Companion Holders, to cure any ambiguity to the extent it does not materially
and adversely affect the interests of any Certificateholder or Companion Holder;
to cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicer, the Trustee, the Paying Agent and the Directing Certificateholder
determine that the commercial mortgage backed securities industry standard for
such provisions has changed, in order to conform to such industry standard, such
modification does not adversely affect the status of the Upper-Tier REMIC or the
Lower-Tier REMIC as a REMIC, as evidenced by an opinion of counsel and each
Rating Agency has delivered written confirmation that such modification would
not result in the downgrade, withdrawal or qualification of any of the then
current ratings of any Class of Certificates; and to implement the modifications
to the Pooling and Servicing Agreement contemplated in Section 7.01(a); provided
further, that no such amendment changes in any manner the obligations of any
Mortgage Loan Seller without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicer, the Special Servicer, the Paying
Agent and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standard.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement 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.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION, not in its individual
capacity but solely as Certificate
Registrar under the Pooling and
Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: December 29, 2004
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-4 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated: _________________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-5
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2004-C3, CLASS A-5
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar 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.
PASS-THROUGH RATE: 4.8780% SERVICER: MIDLAND LOAN SERVICES, INC.
DENOMINATION: $421,433,000 SPECIAL SERVICER: X.X. XXXXXX COMPANY,
INC.
DATE OF POOLING AND SERVICING TRUSTEE: XXXXX FARGO BANK, N.A.
AGREEMENT: AS OF DECEMBER 1, 2004
PAYING AGENT: JPMORGAN CHASE BANK,
CUT-OFF DATE: AS SET FORTH IN THE NATIONAL ASSOCIATION
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN) CUSIP NO.: 46625Y EY 5
CLOSING DATE: DECEMBER 29, 2004 ISIN NO.: US46625YEY59
FIRST DISTRIBUTION DATE: COMMON CODE NO.: 020927321
JANUARY 18, 2005
CERTIFICATE NO.: A-5-[--]
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS A-5 CERTIFICATES
AS OF THE CLOSING DATE: $421,433,000
CLASS A-5 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Excess Interest Distribution Account, the
Gain-on-Sale Reserve Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class A-5 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2004 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Paying Agent. A summary of certain of the
pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-5 Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2004-C3 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-5 Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the Certificate Account) or the Paying Agent
(with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Offered Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer, the Paying Agent
and the Trustee, without the consent of any of the Certificateholders or
Companion Holders, to cure any ambiguity to the extent it does not materially
and adversely affect the interests of any Certificateholder or Companion Holder;
to cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicer, the Trustee, the Paying Agent and the Directing Certificateholder
determine that the commercial mortgage backed securities industry standard for
such provisions has changed, in order to conform to such industry standard, such
modification does not adversely affect the status of the Upper-Tier REMIC or the
Lower-Tier REMIC as a REMIC, as evidenced by an opinion of counsel and each
Rating Agency has delivered written confirmation that such modification would
not result in the downgrade, withdrawal or qualification of any of the then
current ratings of any Class of Certificates; and to implement the modifications
to the Pooling and Servicing Agreement contemplated in Section 7.01(a); provided
further, that no such amendment changes in any manner the obligations of any
Mortgage Loan Seller without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicer, the Special Servicer, the Paying
Agent and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standard.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement 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.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION, not in its individual
capacity but solely as Certificate
Registrar under the Pooling and
Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: December 29, 2004
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-5 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated: _________________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-6
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2004-C3, CLASS A-1A
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar 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.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.](1)
PASS-THROUGH RATE: 4.8180% SERVICER: MIDLAND LOAN SERVICES, INC.
DENOMINATION: $179,635,000 SPECIAL SERVICER: X.X. XXXXXX COMPANY,
INC.
DATE OF POOLING AND SERVICING TRUSTEE: XXXXX FARGO BANK, N.A.
AGREEMENT: AS OF DECEMBER 1, 2004
PAYING AGENT: JPMORGAN CHASE BANK,
CUT-OFF DATE: AS SET FORTH IN THE NATIONAL ASSOCIATION
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN)
CUSIP NO.: [U48138 UP 1](1), [46625Y FG
3](2), [46625Y FV 0](3)
CLOSING DATE: DECEMBER 29, 2004
ISIN NO.: [USU48138UP12](1),
FIRST DISTRIBUTION DATE: [US46625YFG35](2), [US46625YFV02](3)
JANUARY 18, 2005
COMMON CODE NO.: [020926678](1)
[020926643](2)
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE CERTIFICATE NO.: A-1A-[--]
OF THE CLASS A-1A CERTIFICATES
AS OF THE CLOSING DATE: $179,635,000
-------------------
(1) For Book-Entry Regulation S Certificates Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS A-1A CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Excess Interest Distribution Account, the
Gain-on-Sale Reserve Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class A-1A Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2004 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Paying Agent. A summary of certain of the
pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-1A Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2004-C3 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-1A Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the Certificate Account) or the Paying Agent
(with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Offered Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer, the Paying Agent
and the Trustee, without the consent of any of the Certificateholders or
Companion Holders, to cure any ambiguity to the extent it does not materially
and adversely affect the interests of any Certificateholder or Companion Holder;
to cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicer, the Trustee, the Paying Agent and the Directing Certificateholder
determine that the commercial mortgage backed securities industry standard for
such provisions has changed, in order to conform to such industry standard, such
modification does not adversely affect the status of the Upper-Tier REMIC or the
Lower-Tier REMIC as a REMIC, as evidenced by an opinion of counsel and each
Rating Agency has delivered written confirmation that such modification would
not result in the downgrade, withdrawal or qualification of any of the then
current ratings of any Class of Certificates; and to implement the modifications
to the Pooling and Servicing Agreement contemplated in Section 7.01(a); provided
further, that no such amendment changes in any manner the obligations of any
Mortgage Loan Seller without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicer, the Special Servicer, the Paying
Agent and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standard.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement 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.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION, not in its individual
capacity but solely as Certificate
Registrar under the Pooling and
Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: December 29, 2004
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-1A CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of Definitive
Certificates exchanged or transferred
for, or issued in exchange for or upon Remaining Certificate
transfer of, an interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated: _________________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-7
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2004-C3, CLASS X-1
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS X-1 CERTIFICATE HAS NO PRINCIPAL BALANCE AND WILL NOT RECEIVE ANY
DISTRIBUTION OF PRINCIPAL.
THE NOTIONAL AMOUNT ON WHICH THE INTEREST PAYABLE TO THE HOLDERS OF THE CLASS
X-1 CERTIFICATES IS BASED WILL BE REDUCED AS A RESULT OF PRINCIPAL PAYMENTS AND
LOSSES ON THE MORTGAGE LOANS. ACCORDINGLY, THE INTEREST PAYABLE PURSUANT TO THIS
CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. THIS CERTIFICATE CONSTITUTES
A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar 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.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.](1)
PASS-THROUGH RATE: VARIABLE IN SERVICER: MIDLAND LOAN SERVICES, INC.
ACCORDANCE WITH THE POOLING AND
SERVICING AGREEMENT SPECIAL SERVICER: X.X. XXXXXX COMPANY,
INC.
DENOMINATION: [$500,000,000],
[$500,000,000], [$500,000,000]
[$17,410,464] TRUSTEE: XXXXX FARGO BANK, N.A.
PAYING AGENT: JPMORGAN CHASE BANK,
DATE OF POOLING AND SERVICING NATIONAL ASSOCIATION
AGREEMENT: AS OF DECEMBER 1, 2004
CUSIP NO.:[U48138 UN 6](1),
CUT-OFF DATE: AS DEFINED IN THE [46625Y FF 5](2), [46625Y FU 2](3)
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN) ISIN NO.: [USU48138UN63](1),
[US46625YFF51](2), [US46625YFU29](3)
CLOSING DATE: DECEMBER 29, 2004
COMMON CODE: [020925426](1)
[020925370](2)
FIRST DISTRIBUTION DATE:
JANUARY 18, 2005 CERTIFICATE NO.: X-1-[--]
APPROXIMATE AGGREGATE NOTIONAL AMOUNT
OF THE CLASS X-1 CERTIFICATES AS OF THE
CLOSING DATE: $1,517,410,464
-------------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS X-1 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Excess Interest Distribution Account, the
Gain-on-Sale Reserve Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class X-1 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2004 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Special
Servicer and the Master Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the percentage interest in the Class
of Certificates specified on the face hereof. The Certificates are designated as
the X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage
Pass-Through Certificates, Series 2004-C3 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of interest then distributable, if any,
allocable to the Class of Certificates of the same Class as this Certificate for
such Distribution Date, all as more fully described in the Pooling and Servicing
Agreement. Holders of this Certificate will not be entitled to distributions in
respect of principal. Holders of this Certificate may be entitled to Yield
Maintenance Charges as provided in the Pooling and Servicing Agreement. All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
This Class X-1 Certificate has no principal balance and will not
receive any distribution of principal.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date Class X-1 Pass-Through Rate
specified above on the Notional Amount of this Certificate immediately prior to
such Distribution Date, as specified above. Interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the Certificate Account) or the Paying Agent
(with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class X-1 Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of not less than $1,000,000 initial Notional Amount and
in integral multiples of $1 in excess thereof, with one Certificate of such
Class evidencing an additional amount equal to the remainder of the initial
Notional Amount of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer, the Paying Agent
and the Trustee, without the consent of any of the Certificateholders or
Companion Holders, to cure any ambiguity to the extent it does not materially
and adversely affect the interests of any Certificateholder or Companion Holder;
to cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicer, the Trustee, the Paying Agent and the Directing Certificateholder
determine that the commercial mortgage backed securities industry standard for
such provisions has changed, in order to conform to such industry standard, such
modification does not adversely affect the status of the Upper-Tier REMIC or the
Lower-Tier REMIC as a REMIC, as evidenced by an opinion of counsel and each
Rating Agency has delivered written confirmation that such modification would
not result in the downgrade, withdrawal or qualification of any of the then
current ratings of any Class of Certificates; and to implement the modifications
to the Pooling and Servicing Agreement contemplated in Section 7.01(a); provided
further, that no such amendment changes in any manner the obligations of any
Mortgage Loan Seller without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicer, the Special Servicer, the Paying
Agent and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standard.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement 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.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION, not in its individual
capacity but solely as Certificate
Registrar under the Pooling and
Servicing Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: December 29, 2004
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS X-1 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Notional Amount of Definitive
Certificates exchanged or transferred
for, or issued in exchange for or upon
transfer of, an interest in this Remaining Notional Amount of Notation
Date Book-Entry Certificate Book-Entry Certificate Made By
-------------- ------------------------------------------ ------------------------------- -----------------
-------------- ------------------------------------------ ------------------------------- -----------------
-------------- ------------------------------------------ ------------------------------- -----------------
-------------- ------------------------------------------ ------------------------------- -----------------
-------------- ------------------------------------------ ------------------------------- -----------------
-------------- ------------------------------------------ ------------------------------- -----------------
-------------- ------------------------------------------ ------------------------------- -----------------
-------------- ------------------------------------------ ------------------------------- -----------------
-------------- ------------------------------------------ ------------------------------- -----------------
-------------- ------------------------------------------ ------------------------------- -----------------
-------------- ------------------------------------------ ------------------------------- -----------------
-------------- ------------------------------------------ ------------------------------- -----------------
-------------- ------------------------------------------ ------------------------------- -----------------
-------------- ------------------------------------------ ------------------------------- -----------------
-------------- ------------------------------------------ ------------------------------- -----------------
-------------- ------------------------------------------ ------------------------------- -----------------
-------------- ------------------------------------------ ------------------------------- -----------------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated: _________________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-8
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2004-C3, CLASS X-2
THIS CLASS X-2 CERTIFICATE HAS NO PRINCIPAL BALANCE AND WILL NOT RECEIVE ANY
DISTRIBUTION OF PRINCIPAL.
THE NOTIONAL AMOUNT ON WHICH THE INTEREST PAYABLE TO THE HOLDERS OF THE CLASS
X-2 CERTIFICATES IS BASED WILL BE REDUCED AS A RESULT OF PRINCIPAL PAYMENTS AND
LOSSES ON THE MORTGAGE LOANS. ACCORDINGLY, THE INTEREST PAYABLE PURSUANT TO THIS
CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. THIS CERTIFICATE CONSTITUTES
A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar 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.
PASS-THROUGH RATE: VARIABLE IN SERVICER: MIDLAND LOAN SERVICES, INC.
ACCORDANCE WITH THE POOLING AND
SERVICING AGREEMENT SPECIAL SERVICER: X.X. XXXXXX COMPANY,
INC.
DENOMINATION: [$500,000,000], TRUSTEE: XXXXX FARGO BANK, N.A.
[$500,000,000], [$475,976,000]
PAYING AGENT: JPMORGAN CHASE BANK,
DATE OF POOLING AND SERVICING NATIONAL ASSOCIATION
AGREEMENT: AS OF DECEMBER 1, 2004
CUSIP NO.: 46625Y FA 6
CUT-OFF DATE: AS DEFINED IN THE
POOLING AND SERVICING AGREEMENT (AS ISIN NO.: US46625YFA64
DEFINED HEREIN)
COMMON CODE: 020927704
CLOSING DATE: DECEMBER 29, 2004
CERTIFICATE NO.: X-2-[--]
FIRST DISTRIBUTION DATE:
JANUARY 18, 2005
APPROXIMATE AGGREGATE NOTIONAL AMOUNT
OF THE CLASS X-2 CERTIFICATES AS OF THE
CLOSING DATE: $1,475,976,000
CLASS X-2 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Excess Interest Distribution Account, the
Gain-on-Sale Reserve Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class X-2 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2004 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Special
Servicer and the Master Servicer. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the percentage interest in the Class
of Certificates specified on the face hereof. The Certificates are designated as
the X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage
Pass-Through Certificates, Series 2004-C3 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of interest then distributable, if any,
allocable to the Class of Certificates of the same Class as this Certificate for
such Distribution Date, all as more fully described in the Pooling and Servicing
Agreement. Holders of this Certificate will not be entitled to distributions in
respect of principal. Holders of this Certificate may be entitled to Yield
Maintenance Charges as provided in the Pooling and Servicing Agreement. All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
This Class X-2 Certificate has no principal balance and will not
receive any distribution of principal.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date Class X-2 Pass-Through Rate
specified above on the Notional Amount of this Certificate immediately prior to
such Distribution Date, as specified above. Interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the Certificate Account) or the Paying Agent
(with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class X-2 Certificates will be issued in book-entry form through the facilities
of DTC in Denominations of not less than $1,000,000 initial Notional Amount and
in integral multiples of $1 in excess thereof, with one Certificate of such
Class evidencing an additional amount equal to the remainder of the initial
Notional Amount of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer, the Paying Agent
and the Trustee, without the consent of any of the Certificateholders or
Companion Holders, to cure any ambiguity to the extent it does not materially
and adversely affect the interests of any Certificateholder or Companion Holder;
to cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicer, the Trustee, the Paying Agent and the Directing Certificateholder
determine that the commercial mortgage backed securities industry standard for
such provisions has changed, in order to conform to such industry standard, such
modification does not adversely affect the status of the Upper-Tier REMIC or the
Lower-Tier REMIC as a REMIC, as evidenced by an opinion of counsel and each
Rating Agency has delivered written confirmation that such modification would
not result in the downgrade, withdrawal or qualification of any of the then
current ratings of any Class of Certificates; and to implement the modifications
to the Pooling and Servicing Agreement contemplated in Section 7.01(a); provided
further, that no such amendment changes in any manner the obligations of any
Mortgage Loan Seller without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicer, the Special Servicer, the Paying
Agent and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standard.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement 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.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:
---------------------------------
AUTHORIZED SIGNATORY
Dated: December 29, 2004
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS X-2 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION,
Authenticating Agent
By:
---------------------------------
AUTHORIZED SIGNATORY
SCHEDULE A
Notional Amount of Definitive
Certificates exchanged or transferred
for, or issued in exchange for or upon
transfer of, an interest in this Remaining Notional Amount of Notation
Date Book-Entry Certificate Book-Entry Certificate Made By
-------------- ------------------------------------------ ------------------------------- -----------------
-------------- ------------------------------------------ ------------------------------- -----------------
-------------- ------------------------------------------ ------------------------------- -----------------
-------------- ------------------------------------------ ------------------------------- -----------------
-------------- ------------------------------------------ ------------------------------- -----------------
-------------- ------------------------------------------ ------------------------------- -----------------
-------------- ------------------------------------------ ------------------------------- -----------------
-------------- ------------------------------------------ ------------------------------- -----------------
-------------- ------------------------------------------ ------------------------------- -----------------
-------------- ------------------------------------------ ------------------------------- -----------------
-------------- ------------------------------------------ ------------------------------- -----------------
-------------- ------------------------------------------ ------------------------------- -----------------
-------------- ------------------------------------------ ------------------------------- -----------------
-------------- ------------------------------------------ ------------------------------- -----------------
-------------- ------------------------------------------ ------------------------------- -----------------
-------------- ------------------------------------------ ------------------------------- -----------------
-------------- ------------------------------------------ ------------------------------- -----------------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated: _________________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-9
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2004-C3, CLASS A-J
THIS CLASS A-J CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar 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.
PASS-THROUGH RATE: 4.9220% SUBJECT TO SERVICER: MIDLAND LOAN SERVICES, INC.
A MAXIMUM RATE AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT SPECIAL SERVICER: X.X. XXXXXX COMPANY,
INC.
DENOMINATION: $87,251,000 TRUSTEE: XXXXX FARGO BANK, N.A.
DATE OF POOLING AND SERVICING PAYING AGENT: JPMORGAN CHASE BANK,
AGREEMENT: AS OF DECEMBER 1, 2004 NATIONAL ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE CUSIP NO.: 46625Y EZ 2
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN) ISIN NO.: US46625YEZ25
CLOSING DATE: DECEMBER 29, 2004 COMMON CODE NO.: 020927364
FIRST DISTRIBUTION DATE: CERTIFICATE NO.: A-J-[--]
JANUARY 18, 2005
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS A-J CERTIFICATES
AS OF THE CLOSING DATE: $87,251,000
CLASS A-J CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Excess Interest Distribution Account, the
Gain-on-Sale Reserve Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class A-J Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2004 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Paying Agent. A summary of certain of the
pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-J Certificates. The Certificates are designated as the X.X. XXXXXX XXXXX
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2004-C3 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-J Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the Certificate Account) or the Paying Agent
(with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Offered Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer, the Paying Agent
and the Trustee, without the consent of any of the Certificateholders or
Companion Holders, to cure any ambiguity to the extent it does not materially
and adversely affect the interests of any Certificateholder or Companion Holder;
to cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicer, the Trustee, the Paying Agent and the Directing Certificateholder
determine that the commercial mortgage backed securities industry standard for
such provisions has changed, in order to conform to such industry standard, such
modification does not adversely affect the status of the Upper-Tier REMIC or the
Lower-Tier REMIC as a REMIC, as evidenced by an opinion of counsel and each
Rating Agency has delivered written confirmation that such modification would
not result in the downgrade, withdrawal or qualification of any of the then
current ratings of any Class of Certificates; and to implement the modifications
to the Pooling and Servicing Agreement contemplated in Section 7.01(a); provided
further, that no such amendment changes in any manner the obligations of any
Mortgage Loan Seller without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicer, the Special Servicer, the Paying
Agent and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standard.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement 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.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:
---------------------------------
AUTHORIZED SIGNATORY
Dated: December 29, 2004
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-J CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION,
Authenticating Agent
By:
---------------------------------
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated: _________________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-10
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2004-C3, CLASS B
THIS CLASS B CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar 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.
PASS-THROUGH RATE: 4.9610% SUBJECT TO A SERVICER: MIDLAND LOAN SERVICES, INC.
MAXIMUM RATE AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT SPECIAL SERVICER: X.X. XXXXXX COMPANY,
INC.
DENOMINATION: $43,626,000 TRUSTEE: XXXXX FARGO BANK, N.A.
DATE OF POOLING AND SERVICING PAYING AGENT: JPMORGAN CHASE BANK,
AGREEMENT: AS OF DECEMBER 1, 2004 NATIONAL ASSOCIATION
CUT-OFF DATE: AS DEFINED IN THE CUSIP NO.: 46625Y FB 4
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN) ISIN NO.: US46625YFB48
CLOSING DATE: DECEMBER 29, 2004 COMMON CODE NO.: 020927429
FIRST DISTRIBUTION DATE: CERTIFICATE NO.: B-[--]
JANUARY 18, 2005
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS B CERTIFICATES
AS OF THE CLOSING DATE: $43,626,000
CLASS B CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Excess Interest Distribution Account, the
Gain-on-Sale Reserve Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class B Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2004 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Paying Agent. A summary of certain of the
pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class B
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2004-C3 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class B Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the Certificate Account) or the Paying Agent
(with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Offered Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer, the Paying Agent
and the Trustee, without the consent of any of the Certificateholders or
Companion Holders, to cure any ambiguity to the extent it does not materially
and adversely affect the interests of any Certificateholder or Companion Holder;
to cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicer, the Trustee, the Paying Agent and the Directing Certificateholder
determine that the commercial mortgage backed securities industry standard for
such provisions has changed, in order to conform to such industry standard, such
modification does not adversely affect the status of the Upper-Tier REMIC or the
Lower-Tier REMIC as a REMIC, as evidenced by an opinion of counsel and each
Rating Agency has delivered written confirmation that such modification would
not result in the downgrade, withdrawal or qualification of any of the then
current ratings of any Class of Certificates; and to implement the modifications
to the Pooling and Servicing Agreement contemplated in Section 7.01(a); provided
further, that no such amendment changes in any manner the obligations of any
Mortgage Loan Seller without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicer, the Special Servicer, the Paying
Agent and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standard.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement 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.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:
---------------------------------
AUTHORIZED SIGNATORY
Dated: December 29, 2004
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS B CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION,
Authenticating Agent
By:
---------------------------------
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated: _________________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-11
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2004-C3, CLASS C
THIS CLASS C CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar 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.
PASS-THROUGH RATE: 4.9810% SUBJECT TO A SERVICER: MIDLAND LOAN SERVICES, INC.
MAXIMUM RATE AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT SPECIAL SERVICER: X.X. XXXXXX COMPANY,
INC.
DENOMINATION: $13,277,000 TRUSTEE: XXXXX FARGO BANK, N.A.
DATE OF POOLING AND SERVICING PAYING AGENT: JPMORGAN CHASE BANK,
AGREEMENT: AS OF DECEMBER 1, 2004 NATIONAL ASSOCIATION
CUT-OFF DATE: AS DEFINED IN THE CUSIP NO.: 46625Y FC 2
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN) ISIN NO.: US46625YFC21
CLOSING DATE: DECEMBER 29, 2004 COMMON CODE NO.: 020927593
FIRST DISTRIBUTION DATE: CERTIFICATE NO.: C-[--]
JANUARY 18, 2005
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS C CERTIFICATES
AS OF THE CLOSING DATE: $13,277,000
CLASS C CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Excess Interest Distribution Account, the
Gain-on-Sale Reserve Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class C Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2004 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Paying Agent. A summary of certain of the
pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class C
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2004-C3 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class C Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the Certificate Account) or the Paying Agent
(with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Offered Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer, the Paying Agent
and the Trustee, without the consent of any of the Certificateholders or
Companion Holders, to cure any ambiguity to the extent it does not materially
and adversely affect the interests of any Certificateholder or Companion Holder;
to cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicer, the Trustee, the Paying Agent and the Directing Certificateholder
determine that the commercial mortgage backed securities industry standard for
such provisions has changed, in order to conform to such industry standard, such
modification does not adversely affect the status of the Upper-Tier REMIC or the
Lower-Tier REMIC as a REMIC, as evidenced by an opinion of counsel and each
Rating Agency has delivered written confirmation that such modification would
not result in the downgrade, withdrawal or qualification of any of the then
current ratings of any Class of Certificates; and to implement the modifications
to the Pooling and Servicing Agreement contemplated in Section 7.01(a); provided
further, that no such amendment changes in any manner the obligations of any
Mortgage Loan Seller without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicer, the Special Servicer, the Paying
Agent and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standard.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement 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.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:
---------------------------------
AUTHORIZED SIGNATORY
Dated: December 29, 2004
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS C CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION,
Authenticating Agent
By:
---------------------------------
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated: _________________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-12
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2004-C3, CLASS D
THIS CLASS D CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar 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.
PASS-THROUGH RATE: 5.0110% SUBJECT TO A SERVICER: MIDLAND LOAN SERVICES, INC.
MAXIMUM RATE AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT SPECIAL SERVICER: X.X. XXXXXX COMPANY,
INC.
DENOMINATION: $13,277,000 TRUSTEE: XXXXX FARGO BANK, N.A.
DATE OF POOLING AND SERVICING PAYING AGENT: JPMORGAN CHASE BANK,
AGREEMENT: AS OF DECEMBER 1, 2004 NATIONAL ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE CUSIP NO.: 46625Y FD 0
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN) ISIN NO.: US46625YFD04
CLOSING DATE: DECEMBER 29, 2004 COMMON CODE NO.: 020927631
FIRST DISTRIBUTION DATE: CERTIFICATE NO.: D-[--]
JANUARY 18, 2005
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS D CERTIFICATES
AS OF THE CLOSING DATE: $13,277,000
CLASS D CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Excess Interest Distribution Account, the
Gain-on-Sale Reserve Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class D Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2004 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Paying Agent. A summary of certain of the
pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class D
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2004-C3 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class D Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the Certificate Account) or the Paying Agent
(with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Offered Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer, the Paying Agent
and the Trustee, without the consent of any of the Certificateholders or
Companion Holders, to cure any ambiguity to the extent it does not materially
and adversely affect the interests of any Certificateholder or Companion Holder;
to cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicer, the Trustee, the Paying Agent and the Directing Certificateholder
determine that the commercial mortgage backed securities industry standard for
such provisions has changed, in order to conform to such industry standard, such
modification does not adversely affect the status of the Upper-Tier REMIC or the
Lower-Tier REMIC as a REMIC, as evidenced by an opinion of counsel and each
Rating Agency has delivered written confirmation that such modification would
not result in the downgrade, withdrawal or qualification of any of the then
current ratings of any Class of Certificates; and to implement the modifications
to the Pooling and Servicing Agreement contemplated in Section 7.01(a); provided
further, that no such amendment changes in any manner the obligations of any
Mortgage Loan Seller without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicer, the Special Servicer, the Paying
Agent and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standard.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement 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.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:
---------------------------------
AUTHORIZED SIGNATORY
Dated: December 29, 2004
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS D CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION,
Authenticating Agent
By:
---------------------------------
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated: _________________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-13
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2004-C3, CLASS E
THIS CLASS E CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar 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.
PASS-THROUGH RATE: 5.0440% SUBJECT TO A SERVICER: MIDLAND LOAN SERVICES, INC.
MAXIMUM RATE AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT SPECIAL SERVICER: X.X. XXXXXX COMPANY,
INC.
DENOMINATION: $15,174,000 TRUSTEE: XXXXX FARGO BANK, N.A.
DATE OF POOLING AND SERVICING PAYING AGENT: JPMORGAN CHASE BANK,
AGREEMENT: AS OF DECEMBER 1, 2004 NATIONAL ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE CUSIP NO.: 46625Y FE 8
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN) ISIN NO.: US46625YFE86
CLOSING DATE: DECEMBER 29, 2004 COMMON CODE NO.: 020927658
FIRST DISTRIBUTION DATE: CERTIFICATE NO.: E-[--]
JANUARY 18, 2005
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS E CERTIFICATES
AS OF THE CLOSING DATE: $15,174,000
CLASS E CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Excess Interest Distribution Account, the
Gain-on-Sale Reserve Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class E Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2004 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Paying Agent. A summary of certain of the
pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class E
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2004-C3 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class E Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the Certificate Account) or the Paying Agent
(with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Offered Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer, the Paying Agent
and the Trustee, without the consent of any of the Certificateholders or
Companion Holders, to cure any ambiguity to the extent it does not materially
and adversely affect the interests of any Certificateholder or Companion Holder;
to cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicer, the Trustee, the Paying Agent and the Directing Certificateholder
determine that the commercial mortgage backed securities industry standard for
such provisions has changed, in order to conform to such industry standard, such
modification does not adversely affect the status of the Upper-Tier REMIC or the
Lower-Tier REMIC as a REMIC, as evidenced by an opinion of counsel and each
Rating Agency has delivered written confirmation that such modification would
not result in the downgrade, withdrawal or qualification of any of the then
current ratings of any Class of Certificates; and to implement the modifications
to the Pooling and Servicing Agreement contemplated in Section 7.01(a); provided
further, that no such amendment changes in any manner the obligations of any
Mortgage Loan Seller without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicer, the Special Servicer, the Paying
Agent and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standard.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement 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.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:
---------------------------------
AUTHORIZED SIGNATORY
Dated: December 29, 2004
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS E CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION,
Authenticating Agent
By:
---------------------------------
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated: _________________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-14
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2004-C3, CLASS F
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS F CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar 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.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.(1)
PASS-THROUGH RATE: VARIABLE IN SERVICER: MIDLAND LOAN SERVICES, INC.
ACCORDANCE WITH THE POOLING AND
SERVICING AGREEMENT SPECIAL SERVICER: X.X. XXXXXX COMPANY,
INC.
DENOMINATION: $15,174,000 TRUSTEE: XXXXX FARGO BANK, N.A.
DATE OF POOLING AND SERVICING PAYING AGENT: JPMORGAN CHASE BANK,
AGREEMENT: AS OF DECEMBER 1, 2004 NATIONAL ASSOCIATION
CUT-OFF DATE: AS DEFINED IN THE CUSIP NO.: [U48138 UQ 9](1)
POOLING AND SERVICING AGREEMENT (AS [46625Y FH1](2), [46625Y FW 8](3)
DEFINED HEREIN)
ISIN NO.: [USU48138UQ94](1)
CLOSING DATE: DECEMBER 29, 2004 [US46625YFH18](2) [US46625YFW84](3)
FIRST DISTRIBUTION DATE: COMMON CODE NO.: [020925566](1)
JANUARY 18, 2005 [020925442](2)
APPROXIMATE AGGREGATE CERTIFICATE NO.: F-[--]
CERTIFICATE BALANCE
OF THE CLASS F CERTIFICATES
AS OF THE CLOSING DATE: $15,174,000
-------------------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS F CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Excess Interest Distribution Account, the
Gain-on-Sale Reserve Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class F Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2004 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Paying Agent. A summary of certain of the
pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class F
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2004-C3 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class F Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the Certificate Account) or the Paying Agent
(with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Non-Registered Certificates (other than the Class S and the Residual
Certificates) will be issued in book-entry form through the facilities of DTC in
Denominations of $250,000 initial Certificate Balance, and in integral multiples
of $1 in excess thereof, with one Certificate of each such Class evidencing an
additional amount equal to the remainder of the initial Certificate Balance of
such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer, the Paying Agent
and the Trustee, without the consent of any of the Certificateholders or
Companion Holders, to cure any ambiguity to the extent it does not materially
and adversely affect the interests of any Certificateholder or Companion Holder;
to cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicer, the Trustee, the Paying Agent and the Directing Certificateholder
determine that the commercial mortgage backed securities industry standard for
such provisions has changed, in order to conform to such industry standard, such
modification does not adversely affect the status of the Upper-Tier REMIC or the
Lower-Tier REMIC as a REMIC, as evidenced by an opinion of counsel and each
Rating Agency has delivered written confirmation that such modification would
not result in the downgrade, withdrawal or qualification of any of the then
current ratings of any Class of Certificates; and to implement the modifications
to the Pooling and Servicing Agreement contemplated in Section 7.01(a); provided
further, that no such amendment changes in any manner the obligations of any
Mortgage Loan Seller without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicer, the Special Servicer, the Paying
Agent and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standard.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement 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.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:
---------------------------------
AUTHORIZED SIGNATORY
Dated: December 29, 2004
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS F CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION,
Authenticating Agent
By:
---------------------------------
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of Definitive
Certificates exchanged or transferred
for, or issued in exchange for or upon Remaining Certificate
transfer of, an interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated: _________________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-15
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2004-C3, CLASS G
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS G CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar 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.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.(1)
PASS-THROUGH RATE: VARIABLE IN SERVICER: MIDLAND LOAN SERVICES, INC.
ACCORDANCE WITH THE POOLING AND
SERVICING AGREEMENT SPECIAL SERVICER: X.X. XXXXXX COMPANY,
INC.
DENOMINATION: $18,968,000 TRUSTEE: XXXXX FARGO BANK, N.A.
DATE OF POOLING AND SERVICING PAYING AGENT: JPMORGAN CHASE BANK,
AGREEMENT: AS OF DECEMBER 1, 2004 NATIONAL ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE CUSIP NO.: [U48138 RU 7](1)
POOLING AND SERVICING AGREEMENT (AS [46625Y FJ 7](2) [46625Y FX 6](3)
DEFINED HEREIN)
ISIN NO.: [USU48138UR77](1)
CLOSING DATE: DECEMBER 29, 2004 [US46625YFJ73](2) [US46625YFX67](3)
FIRST DISTRIBUTION DATE: COMMON CODE NO.: [020925701](1)
JANUARY 18, 2005 [020925647](2)
APPROXIMATE AGGREGATE CERTIFICATE NO.: G-[--]
CERTIFICATE BALANCE
OF THE CLASS G CERTIFICATES
AS OF THE CLOSING DATE: $18,968,000
-------------------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS G CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Excess Interest Distribution Account, the
Gain-on-Sale Reserve Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class G Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2004 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Paying Agent. A summary of certain of the
pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class G
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2004-C3 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class G Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the Certificate Account) or the Paying Agent
(with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Non-Registered Certificates (other than the Class S and the Residual
Certificates) will be issued in book-entry form through the facilities of DTC in
Denominations of $250,000 initial Certificate Balance, and in integral multiples
of $1 in excess thereof, with one Certificate of each such Class evidencing an
additional amount equal to the remainder of the initial Certificate Balance of
such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer, the Paying Agent
and the Trustee, without the consent of any of the Certificateholders or
Companion Holders, to cure any ambiguity to the extent it does not materially
and adversely affect the interests of any Certificateholder or Companion Holder;
to cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicer, the Trustee, the Paying Agent and the Directing Certificateholder
determine that the commercial mortgage backed securities industry standard for
such provisions has changed, in order to conform to such industry standard, such
modification does not adversely affect the status of the Upper-Tier REMIC or the
Lower-Tier REMIC as a REMIC, as evidenced by an opinion of counsel and each
Rating Agency has delivered written confirmation that such modification would
not result in the downgrade, withdrawal or qualification of any of the then
current ratings of any Class of Certificates; and to implement the modifications
to the Pooling and Servicing Agreement contemplated in Section 7.01(a); provided
further, that no such amendment changes in any manner the obligations of any
Mortgage Loan Seller without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicer, the Special Servicer, the Paying
Agent and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standard.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement 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.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE pooling and servicing agreement SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:
---------------------------------
AUTHORIZED SIGNATORY
Dated: December 29, 2004
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS G CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION,
Authenticating Agent
By:
---------------------------------
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of Definitive
Certificates exchanged or transferred
for, or issued in exchange for or upon Remaining Certificate
transfer of, an interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated: _________________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-16
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2004-C3, CLASS H
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS H CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar 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.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.(1)
PASS-THROUGH RATE: VARIABLE IN SERVICER: MIDLAND LOAN SERVICES, INC.
ACCORDANCE WITH THE POOLING AND
SERVICING AGREEMENT SPECIAL SERVICER: X.X. XXXXXX COMPANY,
INC.
DENOMINATION: $15,174,000 TRUSTEE: XXXXX FARGO BANK, N.A.
DATE OF POOLING AND SERVICING PAYING AGENT: JPMORGAN CHASE BANK,
AGREEMENT: AS OF DECEMBER 1, 2004 NATIONAL ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE CUSIP NO.: [U48138 US 5](1)
POOLING AND SERVICING AGREEMENT (AS [46625Y FK 4](2) [46625Y FY 4](3)
DEFINED HEREIN)
ISIN NO.: [USU48138US50](1)
CLOSING DATE: DECEMBER 29, 2004 [US46625YFK47](2) [US46625YFY41](3)
FIRST DISTRIBUTION DATE: COMMON CODE NO.: [020925744](1)
JANUARY 18, 2005 [020925710](2)
APPROXIMATE AGGREGATE CERTIFICATE NO.: H-[--]
CERTIFICATE BALANCE
OF THE CLASS H CERTIFICATES
AS OF THE CLOSING DATE: $15,174,000
-------------------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS H CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Excess Interest Distribution Account, the
Gain-on-Sale Reserve Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class H Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2004 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Paying Agent. A summary of certain of the
pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class H
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2004-C3 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class H Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the Certificate Account) or the Paying Agent
(with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Non-Registered Certificates (other than the Class S and the Residual
Certificates) will be issued in book-entry form through the facilities of DTC in
Denominations of $250,000 initial Certificate Balance, and in integral multiples
of $1 in excess thereof, with one Certificate of each such Class evidencing an
additional amount equal to the remainder of the initial Certificate Balance of
such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer, the Paying Agent
and the Trustee, without the consent of any of the Certificateholders or
Companion Holders, to cure any ambiguity to the extent it does not materially
and adversely affect the interests of any Certificateholder or Companion Holder;
to cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicer, the Trustee, the Paying Agent and the Directing Certificateholder
determine that the commercial mortgage backed securities industry standard for
such provisions has changed, in order to conform to such industry standard, such
modification does not adversely affect the status of the Upper-Tier REMIC or the
Lower-Tier REMIC as a REMIC, as evidenced by an opinion of counsel and each
Rating Agency has delivered written confirmation that such modification would
not result in the downgrade, withdrawal or qualification of any of the then
current ratings of any Class of Certificates; and to implement the modifications
to the Pooling and Servicing Agreement contemplated in Section 7.01(a); provided
further, that no such amendment changes in any manner the obligations of any
Mortgage Loan Seller without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicer, the Special Servicer, the Paying
Agent and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standard.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement 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.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:
---------------------------------
AUTHORIZED SIGNATORY
Dated: December 29, 2004
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS H CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION,
Authenticating Agent
By:
---------------------------------
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of Definitive
Certificates exchanged or transferred
for, or issued in exchange for or upon Remaining Certificate
transfer of, an interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated: _________________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-17
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2004-C3, CLASS J
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS J CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar 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.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.(1)
PASS-THROUGH RATE: VARIABLE IN SERVICER: MIDLAND LOAN SERVICES, INC.
ACCORDANCE WITH THE POOLING AND
SERVICING AGREEMENT SPECIAL SERVICER: X.X. XXXXXX COMPANY,
INC.
DENOMINATION: $20,865,000 TRUSTEE: XXXXX FARGO BANK, N.A.
DATE OF POOLING AND SERVICING PAYING AGENT: JPMORGAN CHASE BANK,
AGREEMENT: AS OF DECEMBER 1, 2004 NATIONAL ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE CUSIP NO.: [U48138 UT 3](1)
POOLING AND SERVICING AGREEMENT (AS [46625Y FL 2](2) [46625Y FZ 1](3)
DEFINED HEREIN)
ISIN NO.: [USU48138UT34](1)
CLOSING DATE: DECEMBER 29, 2004 [US46625YFL20](2) [US46625YFZ16](3)
FIRST DISTRIBUTION DATE: COMMON CODE NO.: [020925892](1)
JANUARY 18, 2005 [020925817](2)
APPROXIMATE AGGREGATE CERTIFICATE NO.: J-[--]
CERTIFICATE BALANCE
OF THE CLASS J CERTIFICATES
AS OF THE CLOSING DATE: $20,865,000
-------------------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS J CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Excess Interest Distribution Account, the
Gain-on-Sale Reserve Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class J Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2004 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Paying Agent. A summary of certain of the
pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class J
Certificates. The Certificates are designated as the X.X. XXXXXX XXXXX
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2004-C3 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class J Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the Certificate Account) or the Paying Agent
(with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Non-Registered Certificates (other than the Class S and the Residual
Certificates) will be issued in book-entry form through the facilities of DTC in
Denominations of $250,000 initial Certificate Balance, and in integral multiples
of $1 in excess thereof, with one Certificate of each such Class evidencing an
additional amount equal to the remainder of the initial Certificate Balance of
such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer, the Paying Agent
and the Trustee, without the consent of any of the Certificateholders or
Companion Holders, to cure any ambiguity to the extent it does not materially
and adversely affect the interests of any Certificateholder or Companion Holder;
to cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicer, the Trustee, the Paying Agent and the Directing Certificateholder
determine that the commercial mortgage backed securities industry standard for
such provisions has changed, in order to conform to such industry standard, such
modification does not adversely affect the status of the Upper-Tier REMIC or the
Lower-Tier REMIC as a REMIC, as evidenced by an opinion of counsel and each
Rating Agency has delivered written confirmation that such modification would
not result in the downgrade, withdrawal or qualification of any of the then
current ratings of any Class of Certificates; and to implement the modifications
to the Pooling and Servicing Agreement contemplated in Section 7.01(a); provided
further, that no such amendment changes in any manner the obligations of any
Mortgage Loan Seller without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicer, the Special Servicer, the Paying
Agent and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standard.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement 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.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:
---------------------------------
AUTHORIZED SIGNATORY
Dated: December 29, 2004
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS J CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION,
Authenticating Agent
By:
---------------------------------
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of Definitive
Certificates exchanged or transferred
for, or issued in exchange for or upon Remaining Certificate
transfer of, an interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated: _________________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-18
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2004-C3, CLASS K
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS K CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar 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 MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS
DEFINED IN SECTION 3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER
SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR
LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH, A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING
THE ASSETS OF ANY SUCH A PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS
INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR
PLANS AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3 101),
OTHER THAN, EXCEPT IN THE CASE OF THE CLASS S CERTIFICATES, AN INSURANCE COMPANY
USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE
AND HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE
EXEMPT FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER
SECTIONS I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95 60 OR (B) IF
SUCH CERTIFICATE (OTHER THAN A CLASS S CERTIFICATE) IS PRESENTED FOR
REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE
REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF
SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR
RESULT IN A NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA,
SECTION 4975 OF THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE,
THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE PAYING
AGENT, THE INITIAL PURCHASERS OR THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY
(INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR
ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AND
SERVICING AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE
THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A
PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.(1)
PASS-THROUGH RATE: 4.6800% SUBJECT TO A SERVICER: MIDLAND LOAN SERVICES, INC.
MAXIMUM RATE AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT SPECIAL SERVICER: X.X. XXXXXX COMPANY,
INC.
DENOMINATION: $7,587,000 TRUSTEE: XXXXX FARGO BANK, N.A.
DATE OF POOLING AND SERVICING PAYING AGENT: JPMORGAN CHASE BANK,
AGREEMENT: AS OF DECEMBER 1, 2004 NATIONAL ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE CUSIP NO.: [U48138 UU 0](1)
POOLING AND SERVICING AGREEMENT (AS [46625Y FM 0](2) [46625Y GA 5](3)
DEFINED HEREIN)
ISIN NO.: [USU48138UU07](1)
CLOSING DATE: DECEMBER 29, 2004 [US46625YFM03](2) [US46625YGA55](3)
FIRST DISTRIBUTION DATE: COMMON CODE NO.: [020926112](1)
JANUARY 18, 2005 [020925990](2)
APPROXIMATE AGGREGATE CERTIFICATE NO.: K-[--]
CERTIFICATE BALANCE
OF THE CLASS K CERTIFICATES
AS OF THE CLOSING DATE: $7,587,000
-------------------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS K CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Excess Interest Distribution Account, the
Gain-on-Sale Reserve Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class K Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2004 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Paying Agent. A summary of certain of the
pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class K
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2004-C3 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class K Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the Certificate Account) or the Paying Agent
(with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Non-Registered Certificates (other than the Class S and the Residual
Certificates) will be issued in book-entry form through the facilities of DTC in
Denominations of $250,000 initial Certificate Balance, and in integral multiples
of $1 in excess thereof, with one Certificate of each such Class evidencing an
additional amount equal to the remainder of the initial Certificate Balance of
such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer, the Paying Agent
and the Trustee, without the consent of any of the Certificateholders or
Companion Holders, to cure any ambiguity to the extent it does not materially
and adversely affect the interests of any Certificateholder or Companion Holder;
to cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicer, the Trustee, the Paying Agent and the Directing Certificateholder
determine that the commercial mortgage backed securities industry standard for
such provisions has changed, in order to conform to such industry standard, such
modification does not adversely affect the status of the Upper-Tier REMIC or the
Lower-Tier REMIC as a REMIC, as evidenced by an opinion of counsel and each
Rating Agency has delivered written confirmation that such modification would
not result in the downgrade, withdrawal or qualification of any of the then
current ratings of any Class of Certificates; and to implement the modifications
to the Pooling and Servicing Agreement contemplated in Section 7.01(a); provided
further, that no such amendment changes in any manner the obligations of any
Mortgage Loan Seller without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicer, the Special Servicer, the Paying
Agent and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standard.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement 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.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:
---------------------------------
AUTHORIZED SIGNATORY
Dated: December 29, 2004
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS K CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION,
Authenticating Agent
By:
---------------------------------
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of Definitive
Certificates exchanged or transferred
for, or issued in exchange for or upon Remaining Certificate
transfer of, an interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated: _________________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-19
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2004-C3, CLASS L
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS L CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar 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 MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS
DEFINED IN SECTION 3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER
SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR
LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH, A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING
THE ASSETS OF ANY SUCH A PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS
INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR
PLANS AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3 101),
OTHER THAN, EXCEPT IN THE CASE OF THE CLASS S CERTIFICATES, AN INSURANCE COMPANY
USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE
AND HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE
EXEMPT FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER
SECTIONS I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95 60 OR (B) IF
SUCH CERTIFICATE (OTHER THAN A CLASS S CERTIFICATE) IS PRESENTED FOR
REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE
REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF
SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR
RESULT IN A NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA,
SECTION 4975 OF THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE,
THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE PAYING
AGENT, THE INITIAL PURCHASERS OR THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY
(INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR
ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AND
SERVICING AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE
THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A
PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.(1)
PASS-THROUGH RATE: 4.6800% SUBJECT TO A SERVICER: MIDLAND LOAN SERVICES, INC.
MAXIMUM RATE AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT SPECIAL SERVICER: X.X. XXXXXX COMPANY,
INC.
DENOMINATION: $5,690,000 TRUSTEE: XXXXX FARGO BANK, N.A.
DATE OF POOLING AND SERVICING PAYING AGENT: JPMORGAN CHASE BANK,
AGREEMENT: AS OF DECEMBER 1, 2004 NATIONAL ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE CUSIP NO.: [U48138 UV 8](1)
POOLING AND SERVICING AGREEMENT (AS [46625Y FN 8](2) [46625Y GB 3](3)
DEFINED HEREIN)
ISIN NO.: [USU48138UV89](1)
CLOSING DATE: DECEMBER 29, 2004 [US46625YFN85](2) [US46625YGB39](3)
FIRST DISTRIBUTION DATE: COMMON CODE NO.: [020926295](1)
JANUARY 18, 2005 [020926201](2)
APPROXIMATE AGGREGATE CERTIFICATE NO.: L-[--]
CERTIFICATE BALANCE
OF THE CLASS L CERTIFICATES
AS OF THE CLOSING DATE: $5,690,000
-------------------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS L CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account the Excess Interest Distribution Account, the
Gain-on-Sale Reserve Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class L Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2004 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Paying Agent. A summary of certain of the
pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class L
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2004-C3 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class L Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the Certificate Account) or the Paying Agent
(with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Non-Registered Certificates (other than the Class S and the Residual
Certificates) will be issued in book-entry form through the facilities of DTC in
Denominations of $250,000 initial Certificate Balance, and in integral multiples
of $1 in excess thereof, with one Certificate of each such Class evidencing an
additional amount equal to the remainder of the initial Certificate Balance of
such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer, the Paying Agent
and the Trustee, without the consent of any of the Certificateholders or
Companion Holders, to cure any ambiguity to the extent it does not materially
and adversely affect the interests of any Certificateholder or Companion Holder;
to cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicer, the Trustee, the Paying Agent and the Directing Certificateholder
determine that the commercial mortgage backed securities industry standard for
such provisions has changed, in order to conform to such industry standard, such
modification does not adversely affect the status of the Upper-Tier REMIC or the
Lower-Tier REMIC as a REMIC, as evidenced by an opinion of counsel and each
Rating Agency has delivered written confirmation that such modification would
not result in the downgrade, withdrawal or qualification of any of the then
current ratings of any Class of Certificates; and to implement the modifications
to the Pooling and Servicing Agreement contemplated in Section 7.01(a); provided
further, that no such amendment changes in any manner the obligations of any
Mortgage Loan Seller without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicer, the Special Servicer, the Paying
Agent and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standard.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement 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.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:
---------------------------------
AUTHORIZED SIGNATORY
Dated: December 29, 2004
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS L CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION,
Authenticating Agent
By:
---------------------------------
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of Definitive
Certificates exchanged or transferred
for, or issued in exchange for or upon Remaining Certificate
transfer of, an interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated: _________________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-20
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2004-C3, CLASS M
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS M CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar 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 MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS
DEFINED IN SECTION 3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER
SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR
LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH, A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING
THE ASSETS OF ANY SUCH A PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS
INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR
PLANS AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3 101),
OTHER THAN, EXCEPT IN THE CASE OF THE CLASS S CERTIFICATES, AN INSURANCE COMPANY
USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE
AND HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE
EXEMPT FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER
SECTIONS I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95 60 OR (B) IF
SUCH CERTIFICATE (OTHER THAN A CLASS S CERTIFICATE) IS PRESENTED FOR
REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE
REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF
SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR
RESULT IN A NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA,
SECTION 4975 OF THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE,
THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE PAYING
AGENT, THE INITIAL PURCHASERS OR THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY
(INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR
ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AND
SERVICING AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE
THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A
PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.(1)
PASS-THROUGH RATE: 4.6800% SUBJECT TO A SERVICER: MIDLAND LOAN SERVICES, INC.
MAXIMUM RATE AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT SPECIAL SERVICER: X.X. XXXXXX COMPANY,
INC.
DENOMINATION: $9,484,000 TRUSTEE: XXXXX FARGO BANK, N.A.
DATE OF POOLING AND SERVICING PAYING AGENT: JPMORGAN CHASE BANK,
AGREEMENT: AS OF DECEMBER 1, 2004 NATIONAL ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE CUSIP NO.: [U48138 UW 6](1)
POOLING AND SERVICING AGREEMENT (AS [46625Y FP 3](2) [46625Y GC 1](3)
DEFINED HEREIN)
CLOSING DATE: DECEMBER 29, 2004 ISIN NO.: [USU48138UW62](1)
[US46625YFP34](2) [US46625YGC12](3)
FIRST DISTRIBUTION DATE: COMMON CODE NO.: [020926414](1)
JANUARY 18, 2005 [020926392](2)
APPROXIMATE AGGREGATE CERTIFICATE NO.: M-[--]
CERTIFICATE BALANCE
OF THE CLASS M CERTIFICATES
AS OF THE CLOSING DATE: $9,484,000
-------------------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS M CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Excess Interest Distribution Account, the
Gain-on-Sale Reserve Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class M Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2004 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Paying Agent. A summary of certain of the
pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class M
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2004-C3 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class M Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the Certificate Account) or the Paying Agent
(with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Non-Registered Certificates (other than the Class S and the Residual
Certificates) will be issued in book-entry form through the facilities of DTC in
Denominations of $250,000 initial Certificate Balance, and in integral multiples
of $1 in excess thereof, with one Certificate of each such Class evidencing an
additional amount equal to the remainder of the initial Certificate Balance of
such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer, the Paying Agent
and the Trustee, without the consent of any of the Certificateholders or
Companion Holders, to cure any ambiguity to the extent it does not materially
and adversely affect the interests of any Certificateholder or Companion Holder;
to cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicer, the Trustee, the Paying Agent and the Directing Certificateholder
determine that the commercial mortgage backed securities industry standard for
such provisions has changed, in order to conform to such industry standard, such
modification does not adversely affect the status of the Upper-Tier REMIC or the
Lower-Tier REMIC as a REMIC, as evidenced by an opinion of counsel and each
Rating Agency has delivered written confirmation that such modification would
not result in the downgrade, withdrawal or qualification of any of the then
current ratings of any Class of Certificates; and to implement the modifications
to the Pooling and Servicing Agreement contemplated in Section 7.01(a); provided
further, that no such amendment changes in any manner the obligations of any
Mortgage Loan Seller without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicer, the Special Servicer, the Paying
Agent and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standard.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement 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.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:
---------------------------------
AUTHORIZED SIGNATORY
Dated: December 29, 2004
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS M CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION,
Authenticating Agent
By:
---------------------------------
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of Definitive
Certificates exchanged or transferred
for, or issued in exchange for or upon Remaining Certificate
transfer of, an interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated: _________________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-21
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2004-C3, CLASS N
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS N CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar 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 MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS
DEFINED IN SECTION 3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER
SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR
LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH, A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING
THE ASSETS OF ANY SUCH A PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS
INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR
PLANS AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3 101),
OTHER THAN, EXCEPT IN THE CASE OF THE CLASS S CERTIFICATES, AN INSURANCE COMPANY
USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE
AND HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE
EXEMPT FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER
SECTIONS I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95 60 OR (B) IF
SUCH CERTIFICATE (OTHER THAN A CLASS S CERTIFICATE) IS PRESENTED FOR
REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE
REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF
SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR
RESULT IN A NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA,
SECTION 4975 OF THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE,
THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE PAYING
AGENT, THE INITIAL PURCHASERS OR THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY
(INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR
ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AND
SERVICING AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE
THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A
PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.(1)
PASS-THROUGH RATE: 4.6800% SUBJECT TO A SERVICER: MIDLAND LOAN SERVICES, INC.
MAXIMUM RATE AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT SPECIAL SERVICER: X.X. XXXXXX COMPANY,
INC.
DENOMINATION: $3,793,000 TRUSTEE: XXXXX FARGO BANK, N.A.
DATE OF POOLING AND SERVICING PAYING AGENT: JPMORGAN CHASE BANK,
AGREEMENT: AS OF DECEMBER 1, 2004 NATIONAL ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE CUSIP NO.: [U48138 UX 4](1)
POOLING AND SERVICING AGREEMENT (AS [46625Y FQ 1](2) [46625Y GD 9](3)
DEFINED HEREIN)
ISIN NO.: [USU48138UX46](1)
CLOSING DATE: DECEMBER 29, 2004 [US46625YFQ17](2) [US46625YGD94](3)
FIRST DISTRIBUTION DATE: COMMON CODE NO.: [020926465](1)
JANUARY 18, 2005 [020926457](2)
APPROXIMATE AGGREGATE CERTIFICATE NO.: N-[--]
CERTIFICATE BALANCE
OF THE CLASS N CERTIFICATES
AS OF THE CLOSING DATE: $3,793,000
-------------------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS N CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Excess Interest Distribution Account, the
Gain-on-Sale Reserve Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class N Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2004 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Paying Agent. A summary of certain of the
pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class M
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2004-C3 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class N Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the Certificate Account) or the Paying Agent
(with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Non-Registered Certificates (other than the Class S and the Residual
Certificates) will be issued in book-entry form through the facilities of DTC in
Denominations of $250,000 initial Certificate Balance, and in integral multiples
of $1 in excess thereof, with one Certificate of each such Class evidencing an
additional amount equal to the remainder of the initial Certificate Balance of
such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer, the Paying Agent
and the Trustee, without the consent of any of the Certificateholders or
Companion Holders, to cure any ambiguity to the extent it does not materially
and adversely affect the interests of any Certificateholder or Companion Holder;
to cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicer, the Trustee, the Paying Agent and the Directing Certificateholder
determine that the commercial mortgage backed securities industry standard for
such provisions has changed, in order to conform to such industry standard, such
modification does not adversely affect the status of the Upper-Tier REMIC or the
Lower-Tier REMIC as a REMIC, as evidenced by an opinion of counsel and each
Rating Agency has delivered written confirmation that such modification would
not result in the downgrade, withdrawal or qualification of any of the then
current ratings of any Class of Certificates; and to implement the modifications
to the Pooling and Servicing Agreement contemplated in Section 7.01(a); provided
further, that no such amendment changes in any manner the obligations of any
Mortgage Loan Seller without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicer, the Special Servicer, the Paying
Agent and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standard.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement 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.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:
---------------------------------
AUTHORIZED SIGNATORY
Dated: December 29, 2004
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS N CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION,
Authenticating Agent
By:
---------------------------------
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of Definitive
Certificates exchanged or transferred
for, or issued in exchange for or upon Remaining Certificate
transfer of, an interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated: _________________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-22
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2004-C3, CLASS P
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS P CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar 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 MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS
DEFINED IN SECTION 3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER
SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR
LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH, A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING
THE ASSETS OF ANY SUCH A PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS
INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR
PLANS AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3 101),
OTHER THAN, EXCEPT IN THE CASE OF THE CLASS S CERTIFICATES, AN INSURANCE COMPANY
USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE
AND HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE
EXEMPT FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER
SECTIONS I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95 60 OR (B) IF
SUCH CERTIFICATE (OTHER THAN A CLASS S CERTIFICATE) IS PRESENTED FOR
REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE
REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF
SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR
RESULT IN A NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA,
SECTION 4975 OF THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE,
THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE PAYING
AGENT, THE INITIAL PURCHASERS OR THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY
(INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR
ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AND
SERVICING AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE
THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A
PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.(1)
PASS-THROUGH RATE: 4.6800% SUBJECT TO A SERVICER: MIDLAND LOAN SERVICES, INC.
MAXIMUM RATE AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT SPECIAL SERVICER: X.X. XXXXXX COMPANY,
INC.
DENOMINATION: $5,691,000 TRUSTEE: XXXXX FARGO BANK, N.A.
DATE OF POOLING AND SERVICING PAYING AGENT: JPMORGAN CHASE BANK,
AGREEMENT: AS OF DECEMBER 1, 2004 NATIONAL ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE CUSIP NO.: [U48138 UY 2](1)
POOLING AND SERVICING AGREEMENT (AS [46625Y FR 9](2) [46625Y GE 7](3)
DEFINED HEREIN)
ISIN NO.: [USU48138UY29](1)
CLOSING DATE: DECEMBER 29, 2004 [US46625YFR99](2) [US46625YGE77](3)
FIRST DISTRIBUTION DATE: COMMON CODE NO.: [020926481](1)
JANUARY 18, 2005 [020926473](2)
APPROXIMATE AGGREGATE CERTIFICATE NO.: P-[--]
CERTIFICATE BALANCE
OF THE CLASS P CERTIFICATES
AS OF THE CLOSING DATE: $5,691,000
-------------------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS P CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Excess Interest Distribution Account, the
Gain-on-Sale Reserve Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class P Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2004 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Paying Agent. A summary of certain of the
pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class P
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2004-C3 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class P Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the Certificate Account) or the Paying Agent
(with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Non-Registered Certificates (other than the Class S and the Residual
Certificates) will be issued in book-entry form through the facilities of DTC in
Denominations of $250,000 initial Certificate Balance, and in integral multiples
of $1 in excess thereof, with one Certificate of each such Class evidencing an
additional amount equal to the remainder of the initial Certificate Balance of
such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer, the Paying Agent
and the Trustee, without the consent of any of the Certificateholders or
Companion Holders, to cure any ambiguity to the extent it does not materially
and adversely affect the interests of any Certificateholder or Companion Holder;
to cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicer, the Trustee, the Paying Agent and the Directing Certificateholder
determine that the commercial mortgage backed securities industry standard for
such provisions has changed, in order to conform to such industry standard, such
modification does not adversely affect the status of the Upper-Tier REMIC or the
Lower-Tier REMIC as a REMIC, as evidenced by an opinion of counsel and each
Rating Agency has delivered written confirmation that such modification would
not result in the downgrade, withdrawal or qualification of any of the then
current ratings of any Class of Certificates; and to implement the modifications
to the Pooling and Servicing Agreement contemplated in Section 7.01(a); provided
further, that no such amendment changes in any manner the obligations of any
Mortgage Loan Seller without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicer, the Special Servicer, the Paying
Agent and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standard.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement 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.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:
---------------------------------
AUTHORIZED SIGNATORY
Dated: December 29, 2004
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS P CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION,
Authenticating Agent
By:
---------------------------------
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of Definitive
Certificates exchanged or transferred
for, or issued in exchange for or upon Remaining Certificate
transfer of, an interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated: _________________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-23
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2004-C3, CLASS Q
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (a)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, (D) IN AN OFFSHORE TRANSACTION MEETING
THE REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES
ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.
THIS CLASS Q CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE REPRESENTS A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar 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 MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS
DEFINED IN SECTION 3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER
SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR
LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH, A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING
THE ASSETS OF ANY SUCH A PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS
INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR
PLANS AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3 101),
OTHER THAN, EXCEPT IN THE CASE OF THE CLASS S CERTIFICATES, AN INSURANCE COMPANY
USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE
AND HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE
EXEMPT FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER
SECTIONS I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95 60 OR (B) IF
SUCH CERTIFICATE (OTHER THAN A CLASS S CERTIFICATE) IS PRESENTED FOR
REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE
REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF
SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR
RESULT IN A NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA,
SECTION 4975 OF THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE,
THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE PAYING
AGENT, THE INITIAL PURCHASERS OR THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY
(INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR
ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AND
SERVICING AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE
THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A
PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.(1)
PASS-THROUGH RATE: 4.6800% SUBJECT TO A SERVICER: MIDLAND LOAN SERVICES, INC.
MAXIMUM RATE AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT SPECIAL SERVICER: X.X. XXXXXX COMPANY,
INC.
DENOMINATION: $5,690,000 TRUSTEE: XXXXX FARGO BANK, N.A.
DATE OF POOLING AND SERVICING PAYING AGENT: JPMORGAN CHASE BANK,
AGREEMENT: AS OF DECEMBER 1, 2004 NATIONAL ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE CUSIP NO.: [U48138 UZ 9](1)
POOLING AND SERVICING AGREEMENT (AS [46625Y FS 7](2) [46625Y GF 4](3)
DEFINED HEREIN)
ISIN NO.: [USU48138UZ93](1)
CLOSING DATE: DECEMBER 29, 2004 [US46625YFS72](2) [US46625YGF43](3)
FIRST DISTRIBUTION DATE: COMMON CODE NO.: [020926503](1)
JANUARY 18, 2005 [020926490](2)
APPROXIMATE AGGREGATE CERTIFICATE NO.: Q-[--]
CERTIFICATE BALANCE
OF THE CLASS Q CERTIFICATES
AS OF THE CLOSING DATE: $5,690,000
-------------------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS Q CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Excess Interest Distribution Account, the Gain on
Sale Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class Q Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2004 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Paying Agent. A summary of certain of the
pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class Q
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2004-C3 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate represents a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended
(the "Code"). Each Holder of this Certificate, by acceptance hereof, agrees to
treat, and take no action inconsistent with the treatment of, this Certificate
in accordance with the preceding sentence for purposes of federal income taxes,
state and local income and franchise taxes and other taxes imposed on or
measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class Q Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the Certificate Account) or the Paying Agent
(with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Non-Registered Certificates (other than the Class S and the Residual
Certificates) will be issued in book-entry form through the facilities of DTC in
Denominations of $250,000 initial Certificate Balance, and in integral multiples
of $1 in excess thereof, with one Certificate of each such Class evidencing an
additional amount equal to the remainder of the initial Certificate Balance of
such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer, the Paying Agent
and the Trustee, without the consent of any of the Certificateholders or
Companion Holders, to cure any ambiguity to the extent it does not materially
and adversely affect the interests of any Certificateholder or Companion Holder;
to cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of NoQecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicer, the Trustee, the Paying Agent and the Directing Certificateholder
determine that the commercial mortgage backed securities industry standard for
such provisions has changed, in order to conform to such industry standard, such
modification does not adversely affect the status of the Upper-Tier REMIC or the
Lower-Tier REMIC as a REMIC, as evidenced by an opinion of counsel and each
Rating Agency has delivered written confirmation that such modification would
not result in the downgrade, withdrawal or qualification of any of the then
current ratings of any Class of Certificates; and to implement the modifications
to the Pooling and Servicing Agreement contemplated in Section 7.01(a); provided
further, that no such amendment changes in any manner the obligations of any
Mortgage Loan Seller without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicer, the Special Servicer, the Paying
Agent and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standard.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement 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.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:
---------------------------------
AUTHORIZED SIGNATORY
Dated: December 29, 2004
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS Q CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION,
Authenticating Agent
By:
---------------------------------
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of Definitive
Certificates exchanged or transferred
for, or issued in exchange for or upon Remaining Certificate
transfer of, an interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated: _________________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-24
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2004-C3, CLASS NR
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (a)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, (D) IN AN OFFSHORE TRANSACTION MEETING
THE REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES
ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.
THIS CLASS NR CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE REPRESENTS A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar 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 MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A
GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS
DEFINED IN SECTION 3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER
SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR
LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH, A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING
THE ASSETS OF ANY SUCH A PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS
INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR
PLANS AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3 101),
OTHER THAN, EXCEPT IN THE CASE OF THE CLASS S CERTIFICATES, AN INSURANCE COMPANY
USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE
AND HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE
EXEMPT FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER
SECTIONS I AND III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95 60 OR (B) IF
SUCH CERTIFICATE (OTHER THAN A CLASS S CERTIFICATE) IS PRESENTED FOR
REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE
REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND HOLDING OF
SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR
RESULT IN A NON-EXEMPT "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA,
SECTION 4975 OF THE CODE OR ANY SIMILAR LAW AND WILL NOT SUBJECT THE TRUSTEE,
THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE PAYING
AGENT, THE INITIAL PURCHASERS OR THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY
(INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR
ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AND
SERVICING AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE
THAT IS A BOOK ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A
PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE
THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.(1)
PASS-THROUGH RATE: 4.6800% SUBJECT TO A SERVICER: MIDLAND LOAN SERVICES, INC.
MAXIMUM RATE AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT SPECIAL SERVICER: X.X. XXXXXX COMPANY,
INC.
DENOMINATION: $22,761,464 TRUSTEE: XXXXX FARGO BANK, N.A.
DATE OF POOLING AND SERVICING PAYING AGENT: JPMORGAN CHASE BANK,
AGREEMENT: AS OF DECEMBER 1, 2004 NATIONAL ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE CUSIP NO.: [U48138 VA 3](1)
POOLING AND SERVICING AGREEMENT (AS [46625Y FT 5](2) [46625Y GG 2](3)
DEFINED HEREIN)
ISIN NO.: [USU48138VA34](1)
CLOSING DATE: DECEMBER 29, 2004 [US46625YFT55](2) [US46625YGG26](3)
FIRST DISTRIBUTION DATE: COMMON CODE NO.: [020926589](1)
JANUARY 18, 2005 [020926554](2)
APPROXIMATE AGGREGATE CERTIFICATE NO.: NR-[--]
CERTIFICATE BALANCE
OF THE CLASS NR CERTIFICATES
AS OF THE CLOSING DATE: $22,761,464
-------------------
(1) For Book-Entry Regulation S Investors Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS NR CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Excess Interest Distribution Account, the Gain on
Sale Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class NR Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2004 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Paying Agent. A summary of certain of the
pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class NR
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2004-C3 and are issued in the classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate represents a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended
(the "Code"). Each Holder of this Certificate, by acceptance hereof, agrees to
treat, and take no action inconsistent with the treatment of, this Certificate
in accordance with the preceding sentence for purposes of federal income taxes,
state and local income and franchise taxes and other taxes imposed on or
measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class NR Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the Certificate Account) or the Paying Agent
(with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Non-Registered Certificates (other than the Class S and the Residual
Certificates) will be issued in book-entry form through the facilities of DTC in
Denominations of $250,000 initial Certificate Balance, and in integral multiples
of $1 in excess thereof, with one Certificate of each such Class evidencing an
additional amount equal to the remainder of the initial Certificate Balance of
such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer, the Paying Agent
and the Trustee, without the consent of any of the Certificateholders or
Companion Holders, to cure any ambiguity to the extent it does not materially
and adversely affect the interests of any Certificateholder or Companion Holder;
to cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicer, the Trustee, the Paying Agent and the Directing Certificateholder
determine that the commercial mortgage backed securities industry standard for
such provisions has changed, in order to conform to such industry standard, such
modification does not adversely affect the status of the Upper-Tier REMIC or the
Lower-Tier REMIC as a REMIC, as evidenced by an opinion of counsel and each
Rating Agency has delivered written confirmation that such modification would
not result in the downgrade, withdrawal or qualification of any of the then
current ratings of any Class of Certificates; and to implement the modifications
to the Pooling and Servicing Agreement contemplated in Section 7.01(a); provided
further, that no such amendment changes in any manner the obligations of any
Mortgage Loan Seller without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicer, the Special Servicer, the Paying
Agent and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standard.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement 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.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:
---------------------------------
AUTHORIZED SIGNATORY
Dated: December 29, 2004
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS NR CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION,
Authenticating Agent
By:
---------------------------------
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of Definitive
Certificates exchanged or transferred
for, or issued in exchange for or upon Remaining Certificate
transfer of, an interest in this Balance of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
----------- -------------------------------------- ----------------------------- ---------------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated: _________________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-25
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2004-C3, CLASS S
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (a)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, (D) IN AN OFFSHORE TRANSACTION MEETING
THE REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES
ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.
THIS CERTIFICATE REPRESENTS AN INTEREST IN A GRANTOR TRUST UNDER THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED AN INVESTMENT REPRESENTATION LETTER FROM THE
PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND SUBSTANCE
SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE EFFECT THAT
SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT PLAN
SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS DEFINED IN SECTION
3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER SECTION 410(d) OF THE
CODE, SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A
MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH,
A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH
PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON
OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR PLANS AND THE APPLICATION OF
DEPARTMENT OF LABOR REGULATION ss. 2510.3-101).
EACH PURCHASER OF THIS CERTIFICATE SHALL BE REQUIRED TO DELIVER AN INVESTMENT
REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE POOLING AND
SERVICING AGREEMENT IF SUCH TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN
INSTITUTIONAL ACCREDITED INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN
OPINION OF COUNSEL IF SUCH TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER
WITHIN THE MEANING OF RULE 144A.
PERCENTAGE INTEREST EVIDENCED BY THIS SERVICER: MIDLAND LOAN SERVICES, INC.
CERTIFICATE: 100%
SPECIAL SERVICER: X.X. XXXXXX COMPANY,
INC.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF DECEMBER 1, 2004 TRUSTEE: XXXXX FARGO BANK, N.A.
CUT-OFF DATE: AS SET FORTH IN THE PAYING AGENT: JPMORGAN CHASE BANK,
POOLING AND SERVICING AGREEMENT (AS NATIONAL ASSOCIATION
DEFINED HEREIN)
CERTIFICATE NO.: S-[--]
CLOSING DATE: DECEMBER 29, 2004
FIRST DISTRIBUTION DATE:
JANUARY 18, 2005
CLASS S PERCENTAGE INTEREST: 100%
CLASS S CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Excess Interest Distribution Account, the
Gain-on-Sale Reserve Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT JER INVESTORS TRUST INC.
is the registered owner of the interest evidenced by this Certificate in the
Class S Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2004 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Paying Agent. A summary of certain of the
pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the percentage interest in the Class
of Certificates specified on the face hereof. The Certificates are designated as
the X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage
Pass-Through Certificates, Series 2004-C3 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Certificate represents a beneficial interest in a grantor trust
under subpart E, Part I of subchapter J of the Internal Revenue Code of 1986, as
amended, with respect to the Excess Interest. Each Holder of this Certificate,
by acceptance hereof, agrees to treat, and take no action inconsistent with the
treatment of, this Certificate in accordance with the preceding sentence for
purposes of federal income taxes, state and local income and franchise taxes and
other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
the Excess Interest then distributable, if any, allocable to the Class S
Certificates for such Distribution Date, all as more fully described in the
Pooling and Servicing Agreement. All sums distributable on this Certificate are
payable in the coin or currency of the United States of America as at the time
of payment is legal tender for the payment of public and private debts.
The Certificates are limited in right of payment to Excess Interest
collected on the Mortgage Loans, all as more specifically set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, the Certificate Account and the Distribution Accounts will be held on
behalf of the Trustee on behalf of the Holders of Certificates specified in the
Pooling and Servicing Agreement and the Master Servicer (with respect to the
Certificate Account) or the Paying Agent (with respect to the Distribution
Accounts) will be authorized to make withdrawals therefrom. Amounts on deposit
in such accounts may be invested in Permitted Investments. Interest or other
income earned on funds in the Certificate Account will be paid to the Master
Servicer as set forth in the Pooling and Servicing Agreement. As provided in the
Pooling and Servicing Agreement, withdrawals from the Certificate Account shall
be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(f) of
the Pooling and Servicing Agreement 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 to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(f) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
The Class S Certificates will be issued in fully registered,
certificated form, in Denominations representing Percentage Interests of not
less than 20%.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer of this Certificate,
the Transferor shall reimburse the Trust for any costs (including the cost of
the Certificate Registrar's counsel's review of the documents and any legal
opinions, submitted by the transferor or transferee to the Certificate Registrar
as provided in Section 5.02 of the Pooling and Servicing Agreement) incurred by
the Certificate Registrar in connection with such transfer. The Certificate
Registrar may require payment by each transferor of a sum sufficient to cover
any tax, expense or other governmental charge payable in connection with any
such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer, the Paying Agent
and the Trustee, without the consent of any of the Certificateholders or
Companion Holders, to cure any ambiguity to the extent it does not materially
and adversely affect the interests of any Certificateholder or Companion Holder;
to cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicer, the Trustee, the Paying Agent and the Directing Certificateholder
determine that the commercial mortgage backed securities industry standard for
such provisions has changed, in order to conform to such industry standard, such
modification does not adversely affect the status of the Upper-Tier REMIC or the
Lower-Tier REMIC as a REMIC, as evidenced by an opinion of counsel and each
Rating Agency has delivered written confirmation that such modification would
not result in the downgrade, withdrawal or qualification of any of the then
current ratings of any Class of Certificates; and to implement the modifications
to the Pooling and Servicing Agreement contemplated in Section 7.01(a); provided
further, that no such amendment changes in any manner the obligations of any
Mortgage Loan Seller without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicer, the Special Servicer, the Paying
Agent and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standard.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement 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.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:
---------------------------------
AUTHORIZED SIGNATORY
Dated: December 29, 2004
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS S CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION,
Authenticating Agent
By:
---------------------------------
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated: _________________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-26
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2004-C3, CLASS R
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OR (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN
INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT IF SUCH TRANSFEREE IS A QUALIFIED INSTITUTIONAL
BUYER OR AN INSTITUTIONAL ACCREDITED INVESTOR, AND MAY ALSO BE REQUIRED TO
DELIVER AN OPINION OF COUNSEL IF SUCH TRANSFEREE IS NOT A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY PERSON WHICH IS
AN EMPLOYEE BENEFIT PLAN SUBJECT TO SECTION 406 OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION
4975 OF THE CODE. OR A GOVERNMENTAL PLAN, AS DEFINED IN SECTION 3(32) OF ERISA,
OR A CHURCH PLAN, AS DEFINED IN SECTION 3(33) OF ERISA, FOR WHICH NO ELECTION
HAS BEEN MADE UNDER SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR
LOCAL LAW WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH A "PLAN"), OR ANY PERSON ACTING ON BEHALF OF OR
INVESTING THE ASSETS OF A PLAN.
THIS CERTIFICATE IS A "RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(2) AND
860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. EACH TRANSFEREE OF THIS
CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE ACCEPTED THIS CERTIFICATE
SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFERABILITY TO DISQUALIFIED
ORGANIZATIONS, NON-U.S. PERSONS OR AGENTS OF EITHER, AS SET FORTH IN SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT AND SHALL BE REQUIRED TO FURNISH AN
AFFIDAVIT TO THE TRANSFEROR AND THE TRUSTEE TO THE EFFECT THAT, AMONG OTHER
THINGS, (A) IT IS NOT A DISQUALIFIED ORGANIZATION, AS SUCH TERM IS DEFINED IN
CODE SECTION 860E(e)(5), OR AN AGENT (INCLUDING A BROKER, NOMINEE OR OTHER
MIDDLEMAN) FOR SUCH DISQUALIFIED ORGANIZATION AND IS OTHERWISE A PERMITTED
TRANSFEREE, (B) IT HAS HISTORICALLY PAID ITS DEBTS AS THEY HAVE COME DUE AND
INTENDS TO PAY ITS DEBTS AS THEY COME DUE IN THE FUTURE, (C) IT UNDERSTANDS THAT
IT MAY INCUR TAX LIABILITIES WITH RESPECT TO THIS CERTIFICATE IN EXCESS OF CASH
FLOWS GENERATED HEREBY, (D) IT INTENDS TO PAY ANY TAXES ASSOCIATED WITH HOLDING
THIS CERTIFICATE AS THEY BECOME DUE, (E) IT WILL NOT CAUSE INCOME WITH RESPECT
TO THIS CERTIFICATE TO BE ATTRIBUTABLE TO A FOREIGN PERMANENT ESTABLISHMENT OR
FIXED BASE, WITHIN THE MEANING OF AN APPLICABLE INCOME TAX TREATY OF SUCH PERSON
OR ANY OTHER U.S. PERSON AND (F) IT WILL NOT TRANSFER THIS CERTIFICATE TO ANY
PERSON OR ENTITY THAT DOES NOT PROVIDE A SIMILAR AFFIDAVIT. ANY PURPORTED
TRANSFER TO A DISQUALIFIED ORGANIZATION OR OTHER PERSON THAT IS NOT A PERMITTED
TRANSFEREE OR OTHERWISE IN VIOLATION OF THESE RESTRICTIONS SHALL BE ABSOLUTELY
NULL AND VOID AND SHALL VEST NO RIGHTS IN ANY PURPORTED TRANSFEREE. THIS
CERTIFICATE REPRESENTS A "NON-ECONOMIC RESIDUAL INTEREST," AS DEFINED IN
TREASURY REGULATIONS SECTION 1.860E-l(c), AND THEREFORE, TRANSFERS OF THIS
CERTIFICATE MAY BE DISREGARDED FOR FEDERAL INCOME TAX PURPOSES. IN ORDER TO
SATISFY A REGULATORY SAFE HARBOR UNDER WHICH SUCH TRANSFERS WILL NOT BE
DISREGARDED, THE TRANSFEROR MAY BE REQUIRED, AMONG OTHER THINGS, TO SATISFY
ITSELF AS TO THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE AND EITHER TO
TRANSFER AT A MINIMUM PRICE OR TO AN ELIGIBLE TRANSFEREE AS SPECIFIED IN
TREASURY REGULATIONS.
PERCENTAGE INTEREST EVIDENCED BY THIS SERVICER: MIDLAND LOAN SERVICES, INC.
CERTIFICATE: 100%
SPECIAL SERVICER: X.X. XXXXXX COMPANY,
DATE OF POOLING AND SERVICING INC.
AGREEMENT: AS OF DECEMBER 1, 2004 TRUSTEE: XXXXX FARGO BANK, N.A.
CUT-OFF DATE: AS SET FORTH IN THE PAYING AGENT: JPMORGAN CHASE BANK,
POOLING AND SERVICING AGREEMENT (AS NATIONAL ASSOCIATION
DEFINED HEREIN)
CUSIP NO.: 46625Y GH 0
CLOSING DATE: DECEMBER 29, 2004
ISIN NO.: US46625YGH09
FIRST DISTRIBUTION DATE:
JANUARY 18, 2005 CERTIFICATE NO.: R-[--]
CLASS R PERCENTAGE INTEREST: 100%
CLASS R CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Excess Interest Distribution Account, the
Gain-on-Sale Reserve Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT JPMORGAN CHASE BANK, NATIONAL ASSOCIATION
is the registered owner of the interest evidenced by this Certificate in the
Class R Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2004 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Paying Agent. A summary of certain of the
pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the percentage interest in the Class
of Certificates specified on the face hereof. The Certificates are designated as
the X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage
Pass-Through Certificates, Series 2004-C3 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Class R Certificate is a "residual interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take
no action inconsistent with the treatment of, this Certificate in accordance
with the preceding sentence for purposes of federal income taxes, state and
local income and franchise taxes and other taxes imposed on or measured by
income. The Holder of the largest Percentage Interest in the Class R
Certificates shall be the "tax matters person" for the Upper-Tier REMIC pursuant
to Treasury Regulations Section 1.860F-4(d), and the Master Servicer is hereby
irrevocably designated and shall serve as attorney-in-fact and agent for any
such Person that is the "tax matters person".
Pursuant to the terms of the Pooling and Servicing Agreement,
distributions, if any, on this Certificate shall be made by the Paying Agent in
an amount equal to such Person's pro rata share (based on the Percentage
Interest represented by this Certificate) and to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the
Distribution Date to the Person in whose name this Certificate is registered as
of the related Record Date. All sums distributable on this Certificate are
payable in the coin or currency of the United States of America as at the time
of payment is legal tender for the payment of public and private debts.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the Certificate Account) or the Paying Agent
(with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Each Person who has or who 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 Section 5.02(d) of the Pooling and
Servicing Agreement to deliver payments to a Person other than such Person. The
rights of each Person acquiring any Ownership Interest in a Class R Certificate
are expressly subject to the following provisions: (A) No Person holding or
acquiring any Ownership Interest in a Class R Certificate shall be a
Disqualified Organization or agent thereof (including a nominee, middleman or
similar person) (an "Agent"), a Plan or a Person acting on behalf of or
investing the assets of a Plan (such Plan or Person, an "ERISA Prohibited
Holder") or a Non-U.S. Person and shall promptly notify the Master Servicer, the
Trustee and the Certificate Registrar of any change or impending change to such
status; (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 no Transfer of any Class R Certificate shall be registered until the
Certificate Registrar receives, an affidavit substantially in the form attached
to the Pooling and Servicing Agreement as Exhibit D-1 (a "Transfer Affidavit")
from the proposed Transferee, in form and substance satisfactory to the
Certificate Registrar, representing and warranting, among other things, that
such Transferee is not a Disqualified Organization or Agent thereof, an ERISA
Prohibited Holder or a Non-U.S. Person, and that it has reviewed the provisions
of Section 5.02(d) of the Pooling and Servicing Agreement and agrees to be bound
by them; (C) Notwithstanding the delivery of a Transfer Affidavit by a proposed
Transferee under clause (B) above, if the Certificate Registrar has actual
knowledge that the proposed Transferee is a Disqualified Organization or Agent
thereof, an ERISA Prohibited Holder or a Non-U.S. Person, no Transfer of an
Ownership Interest in a Class R Certificate to such proposed Transferee shall be
effected; and (D) Each Person holding or acquiring any Ownership Interest in a
Class R Certificate shall agree (1) to require a Transfer Affidavit 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 a letter substantially in the form attached to the Pooling and
Servicing Agreement as Exhibit D-2 (a "Transferor Letter") certifying that,
among other things, it has no actual knowledge that such prospective Transferee
is a Disqualified Organization, an Agent thereof, an ERISA Prohibited Holder or
a Non-U.S. Person.
The Class R and Class LR Certificates will be issued in fully
registered, certificated form, in Denominations representing Percentage
Interests of not less than 20%.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer, the Paying Agent
and the Trustee, without the consent of any of the Certificateholders or
Companion Holders, to cure any ambiguity to the extent it does not materially
and adversely affect the interests of any Certificateholder or Companion Holder;
to cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicer, the Trustee, the Paying Agent and the Directing Certificateholder
determine that the commercial mortgage backed securities industry standard for
such provisions has changed, in order to conform to such industry standard, such
modification does not adversely affect the status of the Upper-Tier REMIC or the
Lower-Tier REMIC as a REMIC, as evidenced by an opinion of counsel and each
Rating Agency has delivered written confirmation that such modification would
not result in the downgrade, withdrawal or qualification of any of the then
current ratings of any Class of Certificates; and to implement the modifications
to the Pooling and Servicing Agreement contemplated in Section 7.01(a); provided
further, that no such amendment changes in any manner the obligations of any
Mortgage Loan Seller without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicer, the Special Servicer, the Paying
Agent and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standard.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement 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.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:
---------------------------------
AUTHORIZED SIGNATORY
Dated: December 29, 2004
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS R CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION,
Authenticating Agent
By:
---------------------------------
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated: _________________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-27
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2004-C3, CLASS LR
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OR (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN
INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT IF SUCH TRANSFEREE IS A QUALIFIED INSTITUTIONAL
BUYER OR AN INSTITUTIONAL ACCREDITED INVESTOR, AND MAY ALSO BE REQUIRED TO
DELIVER AN OPINION OF COUNSEL IF SUCH TRANSFEREE IS NOT A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY PERSON WHICH IS
AN EMPLOYEE BENEFIT PLAN SUBJECT TO SECTION 406 OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION
4975 OF THE CODE. OR A GOVERNMENTAL PLAN, AS DEFINED IN SECTION 3(32) OF ERISA,
OR A CHURCH PLAN, AS DEFINED IN SECTION 3(33) OF ERISA, FOR WHICH NO ELECTION
HAS BEEN MADE UNDER SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR
LOCAL LAW WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA OR THE CODE (EACH A "PLAN"), OR ANY PERSON ACTING ON BEHALF OF OR
INVESTING THE ASSETS OF A PLAN.
THIS CERTIFICATE IS A "RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(2) AND
860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. EACH TRANSFEREE OF THIS
CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE ACCEPTED THIS CERTIFICATE
SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFERABILITY TO DISQUALIFIED
ORGANIZATIONS, NON-U.S. PERSONS OR AGENTS OF EITHER, AS SET FORTH IN SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT AND SHALL BE REQUIRED TO FURNISH AN
AFFIDAVIT TO THE TRANSFEROR AND THE TRUSTEE TO THE EFFECT THAT, AMONG OTHER
THINGS, (A) IT IS NOT A DISQUALIFIED ORGANIZATION, AS SUCH TERM IS DEFINED IN
CODE SECTION 860E(e)(5), OR AN AGENT (INCLUDING A BROKER, NOMINEE OR OTHER
MIDDLEMAN) FOR SUCH DISQUALIFIED ORGANIZATION AND IS OTHERWISE A PERMITTED
TRANSFEREE, (B) IT HAS HISTORICALLY PAID ITS DEBTS AS THEY HAVE COME DUE AND
INTENDS TO PAY ITS DEBTS AS THEY COME DUE IN THE FUTURE, (C) IT UNDERSTANDS THAT
IT MAY INCUR TAX LIABILITIES WITH RESPECT TO THIS CERTIFICATE IN EXCESS OF CASH
FLOWS GENERATED HEREBY, (D) IT INTENDS TO PAY ANY TAXES ASSOCIATED WITH HOLDING
THIS CERTIFICATE AS THEY BECOME DUE, (E) IT WILL NOT CAUSE INCOME WITH RESPECT
TO THIS CERTIFICATE TO BE ATTRIBUTABLE TO A FOREIGN PERMANENT ESTABLISHMENT OR
FIXED BASE, WITHIN THE MEANING OF AN APPLICABLE INCOME TAX TREATY OF SUCH PERSON
OR ANY OTHER U.S. PERSON AND (F) IT WILL NOT TRANSFER THIS CERTIFICATE TO ANY
PERSON OR ENTITY THAT DOES NOT PROVIDE A SIMILAR AFFIDAVIT. ANY PURPORTED
TRANSFER TO A DISQUALIFIED ORGANIZATION OR OTHER PERSON THAT IS NOT A PERMITTED
TRANSFEREE OR OTHERWISE IN VIOLATION OF THESE RESTRICTIONS SHALL BE ABSOLUTELY
NULL AND VOID AND SHALL VEST NO RIGHTS IN ANY PURPORTED TRANSFEREE. THIS
CERTIFICATE REPRESENTS A "NON-ECONOMIC RESIDUAL INTEREST," AS DEFINED IN
TREASURY REGULATIONS SECTION 1.860E-l(c), AND THEREFORE, TRANSFERS OF THIS
CERTIFICATE MAY BE DISREGARDED FOR FEDERAL INCOME TAX PURPOSES. IN ORDER TO
SATISFY A REGULATORY SAFE HARBOR UNDER WHICH SUCH TRANSFERS WILL NOT BE
DISREGARDED, THE TRANSFEROR MAY BE REQUIRED, AMONG OTHER THINGS, TO SATISFY
ITSELF AS TO THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE AND EITHER TO
TRANSFER AT A MINIMUM PRICE OR TO AN ELIGIBLE TRANSFEREE AS SPECIFIED IN
TREASURY REGULATIONS.
PERCENTAGE INTEREST EVIDENCED BY THIS SERVICER: MIDLAND LOAN SERVICES, INC.
CERTIFICATE: 100%
SPECIAL SERVICER: X.X. XXXXXX COMPANY,
DATE OF POOLING AND SERVICING INC.
AGREEMENT: AS OF DECEMBER 1, 2004 TRUSTEE: XXXXX FARGO BANK, N.A.
CUT-OFF DATE: AS SET FORTH IN THE PAYING AGENT: JPMORGAN CHASE BANK,
POOLING AND SERVICING AGREEMENT (AS NATIONAL ASSOCIATION
DEFINED HEREIN)
CUSIP NO.: 46625Y GJ 6
CLOSING DATE: DECEMBER 29, 2004
ISIN NO.: US46625YGJ64
FIRST DISTRIBUTION DATE:
JANUARY 18, 2005 CERTIFICATE NO.: LR-[--]
CLASS LR PERCENTAGE INTEREST: 100%
CLASS LR CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans (the "Mortgage Loans"), all payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date, all REO Properties and revenues
received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Excess Interest Distribution Account, the
Gain-on-Sale Reserve Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE MASTER SERVICER, THE SPECIAL
SERVICER, THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT JPMORGAN CHASE BANK, NATIONAL ASSOCIATION
is the registered owner of the interest evidenced by this Certificate in the
Class LR Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2004 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Master
Servicer, the Special Servicer and the Paying Agent. A summary of certain of the
pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the percentage interest in the Class
of Certificates specified on the face hereof. The Certificates are designated as
the X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage
Pass-Through Certificates, Series 2004-C3 and are issued in the classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
This Class LR Certificate is a "residual interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take
no action inconsistent with the treatment of, this Certificate in accordance
with the preceding sentence for purposes of federal income taxes, state and
local income and franchise taxes and other taxes imposed on or measured by
income. The Holder of the largest Percentage Interest in the Class LR
Certificates shall be the "tax matters person" for the Lower-Tier REMIC pursuant
to Treasury Regulations Section 1.860F-4(d), and the Master Servicer is hereby
irrevocably designated and shall serve as attorney-in-fact and agent for any
such Person that is the "tax matters person".
Pursuant to the terms of the Pooling and Servicing Agreement,
distributions, if any, on this Certificate shall be made by the Paying Agent in
an amount equal to such Person's pro rata share (based on the Percentage
Interest represented by this Certificate) and to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the
Distribution Date to the Person in whose name this Certificate is registered as
of the related Record Date. All sums distributable on this Certificate are
payable in the coin or currency of the United States of America as at the time
of payment is legal tender for the payment of public and private debts.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Master Servicer (with respect to the Certificate Account) or the Paying Agent
(with respect to the Distribution Accounts) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Master Servicer as set forth in the
Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(g) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Each Person who has or who acquires any Ownership Interest in a
Class LR 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 Section 5.02(b) of the Pooling and
Servicing Agreement to deliver payments to a Person other than such Person. The
rights of each Person acquiring any Ownership Interest in a Class LR Certificate
are expressly subject to the following provisions: (A) No Person holding or
acquiring any Ownership Interest in a Class LR Certificate shall be a
Disqualified Organization or agent thereof (including a nominee, middleman or
similar person) (an "Agent"), a Plan or a Person acting on behalf of or
investing the assets of a Plan (such Plan or Person, an "ERISA Prohibited
Holder") or a Non-U.S. Person and shall promptly notify the Master Servicer, the
Trustee and the Certificate Registrar of any change or impending change to such
status; (B) In connection with any proposed Transfer of any Ownership Interest
in a Class LR Certificate, the Certificate Registrar shall require delivery to
it, and no Transfer of any Class LR Certificate shall be registered until the
Certificate Registrar receives, an affidavit substantially in the form attached
to the Pooling and Servicing Agreement as Exhibit D-1 (a "Transfer Affidavit")
from the proposed Transferee, in form and substance satisfactory to the
Certificate Registrar, representing and warranting, among other things, that
such Transferee is not a Disqualified Organization or Agent thereof, an ERISA
Prohibited Holder or a Non-U.S. Person, and that it has reviewed the provisions
of Section 5.02(d) of the Pooling and Servicing Agreement and agrees to be bound
by them; (C) Notwithstanding the delivery of a Transfer Affidavit by a proposed
Transferee under clause (B) above, if the Certificate Registrar has actual
knowledge that the proposed Transferee is a Disqualified Organization or an
Agent thereof, an ERISA Prohibited Holder or a Non-U.S. Person, no Transfer of
an Ownership Interest in a Class LR Certificate to such proposed Transferee
shall be effected; and (D) Each Person holding or acquiring any Ownership
Interest in a Class LR Certificate shall agree (1) to require a Transfer
Affidavit from any prospective Transferee to whom such Person attempts to
transfer its Ownership Interest in such Class LR Certificate and (2) not to
transfer its Ownership Interest in such Class LR Certificate unless it provides
to the Certificate Registrar a letter substantially in the form attached to the
Pooling and Servicing Agreement as Exhibit D-2 (a "Transferor Letter")
certifying that, among other things, it has no actual knowledge that such
prospective Transferee is a Disqualified Organization, an Agent thereof, an
ERISA Prohibited Holder or a Non-U.S. Person.
The Class R and Class LR Certificates will be issued in fully
registered, certificated form, in Denominations representing Percentage
Interests of not less than 20%.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Master Servicer, the Special
Servicer, the Paying Agent and the Certificate Registrar and any of their agents
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and neither the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent, the Certificate Registrar nor
any such agents shall be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Master Servicer, the Special Servicer, the Paying Agent
and the Trustee, without the consent of any of the Certificateholders or
Companion Holders, to cure any ambiguity to the extent it does not materially
and adversely affect the interests of any Certificateholder or Companion Holder;
to cause the provisions of the Pooling and Servicing Agreement to conform or be
consistent with or in furtherance of the statements made in the Prospectus with
respect to the Certificates, the Trust or the Pooling and Servicing Agreement or
to correct or supplement any provisions that may be inconsistent with any other
provisions in the Pooling and Servicing Agreement or to correct any error to the
extent, in each case, it does not materially and adversely affect the interests
of any Certificateholder or Companion Holder; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of the
Trust Fund or either the Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the risk of the imposition of any tax on the Trust Fund
or either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that
would be a claim against any of the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC, provided, however, an Opinion of Counsel is obtained to the
effect that such action shall not adversely affect in any material respect the
interest of any Certificateholder and such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk of imposition of
any such tax and such action will not adversely affect in any material respect
the interests of any Certificateholder or any Companion Holder; to change the
timing and/or nature of deposits into the Certificate Account or any
Distribution Accounts or REO Account, provided, however, that the P&I Advance
Date shall not be later than the Business Day prior to the related Distribution
Date, an Opinion of Counsel is obtained to the effect that such action shall not
adversely affect in any material respect the interests of any Certificateholder
or any Companion Holder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any Class of
Certificates by any Rating Agency, as evidenced by a letter from such Rating
Agency to such effect; to modify, eliminate or add to the provisions of Section
5.02(c) of the Pooling and Servicing Agreement or any other provision thereof
restricting transfer of the Residual Certificates by virtue of their being the
REMIC "residual interests," and such change shall not, as evidenced by an
Opinion of Counsel, cause the Trust Fund, the Upper-Tier REMIC, the Lower-Tier
REMIC or any of the Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person; to make any other provisions with respect to
matters or questions arising under the Pooling and Servicing Agreement which
shall not be materially inconsistent with the provisions of the Pooling and
Servicing Agreement, provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interest
of any Certificateholder not consenting thereto; provided further, that such
action shall not result in the downgrade, withdrawal or qualification of the
then current rating assigned to any Class of Certificates by any Rating Agency,
as evidenced by a letter from each Rating Agency to such effect; to amend or
supplement any provision of the Pooling and Servicing Agreement to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency, as evidenced by a letter from each Rating
Agency to such effect; provided that such change shall not result in the
downgrade, withdrawal or qualification of the then current rating assigned to
any Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect; to modify the provisions of Section 3.05 and 3.19 (with respect to
reimbursement of Nonrecoverable Advances and Workout-Delayed Reimbursement
Amounts) in the Pooling and Servicing Agreement if the Depositor, the Master
Servicer, the Trustee, the Paying Agent and the Directing Certificateholder
determine that the commercial mortgage backed securities industry standard for
such provisions has changed, in order to conform to such industry standard, such
modification does not adversely affect the status of the Upper-Tier REMIC or the
Lower-Tier REMIC as a REMIC, as evidenced by an opinion of counsel and each
Rating Agency has delivered written confirmation that such modification would
not result in the downgrade, withdrawal or qualification of any of the then
current ratings of any Class of Certificates; and to implement the modifications
to the Pooling and Servicing Agreement contemplated in Section 7.01(a); provided
further, that no such amendment changes in any manner the obligations of any
Mortgage Loan Seller without the consent of such Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Master Servicer, the Special Servicer, the Paying
Agent and the Trustee with the consent of the Holders of Certificates
representing not less than 66 2/3% of the aggregate Percentage Interests of each
Class of Certificates affected by the amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Pooling and Servicing Agreement or of modifying in any manner the rights of
the Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standard.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC or result in the imposition of a tax on either the Upper-Tier
REMIC or the Lower-Tier REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust.
The Master Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee, the
Paying Agent and each of the other parties to the Pooling and Servicing
Agreement, purchase all, but not less than all, of the Mortgage Loans and all
property acquired in respect of any Mortgage Loan remaining in the Trust Fund,
and thereby effect termination of the Trust Fund and early retirement of the
then outstanding Certificates, on any Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is reduced to less than 1% of the aggregate Cut-off Date
Principal Balance of all the Mortgage Loans.
Following the date on which the Offered Certificates retire, the
Sole Certificateholder may, at its option exchange all of its Certificates
(other than the Class S and the Residual Certificates) for all of the Mortgage
Loans and each REO Property remaining in the Trust Fund pursuant to the terms of
the Pooling and Servicing Agreement.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement 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.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:
---------------------------------
AUTHORIZED SIGNATORY
Dated: December 29, 2004
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS LR CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION,
Authenticating Agent
By:
---------------------------------
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
(Cust)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
________________________________________
Dated: _________________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT B
MORTGAGE LOAN SCHEDULE
JPMCC 2004-C3
Mortgage Loan Schedule (Combined)
Loan # Mortgagor Name
------------------------------------------------------------------------------------------------------------------------------------
DDR Panorama Plaza LLC, DDR Xxxxxx Ridge LLC, DDR Orchard Park LLC, DDR Union Road LLC, DDR Xxxxxxxx Stop LLC, DDR
Jamestown Plaza LLC, DDR Chillicothe LLC, DDR Midway Plaza LLC, DDR Ontario Plaza LLC, DDR Warsaw Plaza LLC,
DDR Northcreek Commons LLC, DDR Xxxxx Plaza LLC, DDR Oxford Place LLC
1 DDR Panorama Plaza LLC
2 DDR Xxxxxx Ridge LLC
0 XXX Xxxxxxx Xxxx LLC
0 XXX Xxxxx Xxxx LLC
5 DDR Jamestown Plaza LLC
6 DDR Xxxxxxxx Stop LLC
7 DDR Chillicothe LLC
8 DDR Midway Plaza LLC
9 DDR Ontario Plaza LLC
10 DDR Warsaw Plaza LLC
11 DDR Northcreek Commons LLC
12 DDR Xxxxx Plaza LLC
13 DDR Oxford Place LLC
14 ELO Associates II, Ltd.
15 345 Pas Owner, LLC
16 Crossroads II, LLC and Crossroads Joint Venture, LLC
17 Walnut Equity Partners, LLC, Turnpike Equity Partners, LLC, Mill Equity Partners,
LLC, Great Equity Partners, LLC, Northwoods Equity Partners, LLC
17.1
17.2
17.3
17.4
17.5
18 WFJ Property, LLC, Sunset Coast Property, LLC, BMP Property, LLC, & JFW Property, LLC
19 CSC 1, Limited Partnership
20 HRA Egypt Lake, Inc., Carlton Arms MWT, LLC, Carlton Arms EG, LLC, and Carlton Arms LWC, LLC
21 Xxxxxxx Champaign LLC
22 IMT Moorings LLC
00 Xxxxx Xxxxxx Shopping Center, L.P.
24 MBS - Indian Hollow, Ltd.
25 Aslan LaValencia, Ltd.
26 University Development Co., LLC
27 IMT Del Coronado LLC
28 SKB-SLC Time Square, LLC and Xxxxx-SLC Time Square, LLC
29 Woodcliff North Associates, LLC
30 Inland Western Oswego Xxxxxxxx, L.L.C.
00 Xxxx Xxxxxx Hotels, LLC
32 Surrey Sawmill Acquisition, LLC
00 Xxxxxxxx Xxxxxxx, XX
00 XXX Xxxxxx Xxxxxxxx LLC
35 SKB-SLC Commerce Park, LLC and Xxxxx-SLC Commerce Park, LLC
36 Xxxxxxxxx Willowbrook Three, L.P.
37 Mink Associates I, LLC and Mink Associates II, LLC
38 Student Village Limited Partnership
39 Timbers Associates, L.P.
40 2401 Mall Drive LLC
41 SKB-SLC Pioneer Square, LLC and Xxxxx-SLC Pioneer Square, LLC
00 Xxxxxxx Xxxxx Improvements, Limited Partnership
43 Cotton Exchange Hotel, LLC
44 Century National Properties, Inc.
45 Guardian Fund II - Largo 95, LLC
00 X.X. Xxxxx, X.X.
00 College Court, Ltd.
48 Tarzana Medical Office Building Partnership
49 Pinecrest Acquisitions, LLC
50 Jemal's 411, L.L.C.
51 Southwoods Manor Associates, LLC
00 Xxxxxxx Xxxx Associates, LLC
53 The Villas at Xxxxxx Ranch Limited Partnership
54 Acquiport Lenexa LLC
55 C-L Livonia Associates II, LLC
56 MBS - The Grove, Ltd.
57 Bayport Imperial Promenade Associates, L.P.
58 CAP Investors LV, LLC
59 Urdang/Cadence-Hawaiian Gardens, LLC
60 The Magnon Group
61 JMWM-Xxxxxxxx, LLC
62 A-S-K 41 Xxxxxxxx - X. Xxxxxx York, L.P.
00 Xxx Xxxxxxxxx Associates, L.P.
64 Pittsburgh USCIS-GBT Business Trust
65 Stonybrook Apartments, L.L.C.
66 The Bren Mar Limited Partnership
67 Xxxx Self-Storage Mahwah, LLC
68 South Xxxxxx Limited Partnership
00 Xxxxxxx Xxxxxxx Xxxxxx, L.L.C.
00 Xxxxxx Xxxxxx Xxxxxxxxxx, X.X.X.
71 The Rancho Shops, LLC
72 0000 Xxxxxx Xxxxxxxx Xxxxx LLC
73 Crossmark Partners I, Ltd.
74 Xxxxxxxxxx Crossing, LLC and Wyoming Crossing, LLC
75 LMR Silverlake CCU, Ltd.
76 A-S 46 Hwy 290 - Spring Cypress, L.P.
77 Xxxxx-Beechmont Associates, Ltd.
78 SW Service Center 1, L.P.
79 Parkside Village, LLC
80 Whitestone Retail, Ltd.
81 Ply-Ink Associates and EJA Redford, LLC
82 Lakeshore Real Estate Associates, L.L.C.
83 Capstone Cornell Partners LLC
84 Sphos, Inc.
85 Sandalwood Mobile Home Park, LLC
86 11211 Katy Freeway, L.P.
87 All Storage WPK, Ltd.
88 Inland Western Knoxville Harvest, L.L.C.
89 All Storage Carrollton, L.P.
00 X. Xxx Xxxxxxx Xxxxxx Associates, LLC
91 Beaumont Crossroads, Ltd.
92 Commercial Properties, LLC
00 Xxxxxx Xxxxxx Apartments, LP
94 Zagara State Street, LLC
95 Xxxxx Creek Center LLC
96 Bristol Sterling Limited Partnership
97 Xxxxxxxxx Partners, LLC
98 CJS Corporate Center, LLC
99 DMD Greenridge GP, Inc.
100 Xxxxxxxxx Properties, LLC
101 369 Chatham, LLC
102 XXXX Self-Storage Hackettstown, LLC
103 Inland Western Wilmington College, L.L.C.
104 2800 South Shore, Ltd.
000 Xxxx Xxxxxxx, X.X.
000 Xxxx Xxxx Self Storage
107 MBS - The Trails, Ltd.
108 Skyline Partners, L.P.
000 Xxxx-Xxxx Xxxxxxxxxx Xxxx
110 Vegaverdes, LLC
111 1110 NASA Rd., L.P.
112 Marne Associates, LLC
113 EMAK Holding LLC
114 Xxxxxx Xxxxxx Medical LLC
115 HHD Family Trust & HSD Living Trust
116 Valencia Estates Apopka, LLC
117 D.B.S. Real Estate, L.P.
117.1 D.B.S. Real Estate, L.P.
117.2 D.B.S. Real Estate, L.P.
117.3 D.B.S. Real Estate, L.P.
117.4 D.B.S. Real Estate, L.P.
118 Romark Center, LLC
119 Storage, LLC
000 Xxxxxx Xxx Development Company, Inc.
121 Rock Hill 1031, L.L.C.
122 Orion Development RA XLV, LLC
123 Power AZ, LLC (d/b/a Baseline & Power AZ, LLC)
000 Xxxxx Xxxxxxxx Investments, LLC
125 Clearwater Storage Company, LLC
126 DK Enterprises, L.L.C.
127 Triboro Industrial Realty Corp.
128 202 Realty Associates, L.L.C.
000 Xxxxxxxx Xxxxxx Xxxxxxxx, LLC
130 Xxxxx Xxxxxx and Xxxxxxx Xxxxxx
131 Apple Village of Edmond, L.L.C.
132 Aina Holdings, LLC
133 Branhaven Properties, LLC
134 Stonybrook Medical Associates, L.P.
000 Xxxxxxxxx Xxxxxxxxxx, LLC
136 Lubbock Studios, L.P.
000 Xxxxxxx Xxxx Xxxxxxx Manufactured Housing Community, L.L.C.
138 Xxxxxx Capital Investments, LLC
139 JCDE Associates LLC
140 SH-YO Enterprises, L.P.
141 Grayrock Village, LLC
142 Regency Apartments, LLC
143 Xxxxx Xxxx LLC
000 Xxx Xxxx Xxxxxxx Xxxxxxxxxxx
000 Xxxxx Shopping Center, Ltd.
146 Valley View (Unit 4), LLC
000 Xxxxx Xxxxxxx Associates, L.P.
000 Xxxxxx Xxxxxx, Ltd.
149 Xxxxx Mobile Home Park LP
Loan # Property Address
------------------------------------------------------------------------------------------------------------------------------------
Various
1 0000 Xxxxxxxx Xxxx
2 0000 Xxxx Xxxxx Xxxx
3 0000 Xxxxxxxxxxxx Xxxxxxxxx
4 0000 Xxxxx Xxxx
5 0000 Xxxxxxxxxx Xxxxxx
6 0000 Xxxxxxx Xxxxx Xxxxxxxxx
7 000 Xxxxx Xxxxxx Xxxxxx
8 910 Athens Highway
9 0000-0000 Xxxxxxx Xxxx
00 0000 Xxxxx Xxxxxxx 19
11 101-139 Northcreek Boulevard
12 000 Xxxx Xxxx Xxxxxx
13 0000 Xxxxxxxxxx Xxxxxx
14 350 & 000 Xxxx Xxx Xxxx Xxxxxxxxx
15 000 Xxxx Xxxxxx Xxxxx
16 000 Xxxxxxxxx Xxxx - Xxxxx 000
17 Various
17.1 220 & 222 Mill Steet & 00 Xxxxxxxxxx Xxx
17.2 99 and 000 Xxxxxxxx Xxxxx
17.3 101 and 000-000 Xxxxxx Xxxxxxx
17.4 000 Xxxxxxxx Xxxx
17.5 000 Xxxxx Xxxx
00 000-000 Xxxxx Xxxxxxxx
19 112 Silo Court
20 0000 Xxxxxxx Xxxxx
21 1802, 1806, 1906, 2001, 2004, 2110, 2131-2231, 2202 & 0000 Xxx Xxxxx; 201 Knollwood; 2107 South Xxxx
22 0000 Xxxxx Xxxx Xxxxx
23 0000 Xxxxx Xxxxxxx Xxxx
24 00000 Xxxx Xxxxxx
25 10106 Technology Xxxxxxxxx Xxxx
00 0000 & 0000 Xxxxxxxxx Xxxxx
27 000 Xxxxx Xxxxxxxx Xxxxxx
28 335, 360, and 000 Xxxxxxx Xxxxx; 000 Xxxx Xxxxxxx Xxxxxx; 310, 331, 345, 415, 434, 445, 466, and 000 Xxxxxxx Xxxxx
29 00000 Xxxxxx Xxxxx
00 0000 Xxxxx 00
00 0000 Xxxx Xxxxxx
32 0000-0000 Xxxxxxx Xxxxx Xxxxxxxxx
33 000 Xxxxxx Xxxxx
34 0000 Xxxxx Xxxxxx Xxxx
35 2323 South 0000 Xxxx Xxxxxx, 0000 Xxxx 0000 Xxxxx Xxxxxx, 0000 Xxxx Technology Drive, 3600 West 0000 Xxxxx Xxxxxx
00 00000 Xxxxx Xxxxxxx 249
37 533 East Crystal Lake Drive
38 2000 Xxxxxxx Xxxxx Xxxxx
00 0000 Xxxxxx Xxxxxxxxx
00 2401 Mall Drive
41 2235, 2295, 2266, 2290 & 0000 Xxxx Xxxxxx Xxxx; 0000 Xxxx 0000 Xxxxx Xxxxxx; 1765 & 0000 Xxxxxxx Xxxxx;
0000 Xxxxxxx Xxxx
42 0000 Xxxxxxxxxxxxx Xxxx
43 221 and 000 Xxxxxxxxxx Xxxxxx
44 23901 Xxxxxxxxx Xxxx
00 0000 & 0000 Xxxxxxxxxx Xxxx
46 0000 Xxxx Xxxxxxxx Xxxxxxx 83
47 5610 Graduate Circle
48 18370 Xxxxxxx Xxxxxxxxx
00 00000 Xxxx 000xx Xxxxxx
50 000 X. Xxxxxxxx Xxxx
00 0000 Xxxxxxx Drive
52 000 Xxxxxxx Xxxxxxx Xxxxx
53 8751 North 97th Xxxx Xxxxxx
00 0000 Xxxxxx Xxxxxxxxx
55 12001 Tech Center Drive
56 0000 Xxxxx Xxxxxx Xxxx
00 0000-0000 Xxxx Xx Palma Avenue
58 9901-9915 Xxxxxxx Xxxxxx
00 00000-00000 Xxxxxx Xxxxxx
60 2001, 2041, & 0000 Xxxx Xxxxxx
61 7320 Broad Xxxxx Xxxx
00 0000 Xxxxx Xxxxxxxx Parkway
63 0000 XxxXxxx Xxxxxxxxx
64 0000 Xxxxxx Xxxxxx
65 1555 Xxxxxx Xxxxxx Xxxx Xx. Xxxxxxxxx
00 0000 Xxxxx Road
67 000 Xxxxx Xxxx
68 000 Xxxxxx Xxxxxx
00 0000-0000 Call Xxxxx Xxxx
00 000 Xxxx Xxxxx Xxxxx
71 10437-10455 Foothill Boulevard, 8140-8160 Xxxxx Xxxxxx
00 0000-0000 Xxxxxx Xxxxxxxx Xxxxx
00 0000 Xxxxx Xxxxxxx Xxxx
74 4400-4420 North Wyoming Boulevard Northeast
75 3137 Silverlake Xxxxxxx Xxxxx
00 00000 Xxxxxx-Xxxxxxx Xxxx
77 0000 Xxxxxxxxx Xxxxxx
78 6101 and 0000 Xxxxxxxxx Xxxxx, 0000 Xxxx Xxxx Drive, and 6202 and 0000 Xxxxxxxx Xxxxx
79 000 Xxxxxxxxx Xxxxx
80 202 Xxxxxx Way
81 00000 Xxxxxxxx Xxxx
82 000 Xxxx 0xx Xxxxxx
83 2056-2064 Xxxxxxxxx Xxxxxx Xxxxxx
00 0 Xxxxxxxxxx Xxxxxx
85 000 Xxxxx Xxxxxx Xxxxxx
86 11211 Katy Freeway
87 5800 Wall Price Xxxxxx Xxxx
00 0000 Xxxxx Xxxxxxxx Xxxxxx
89 0000 Xxxx Xxxx Xxxx
90 416-424 South Los Angeles Xxxxxx
00 0000 Xxxxxx Xxxx
92 0000-0000 Xxxx Xxxxxx X
00 0000 Xxxx Xxxx
94 0000-0000 Xxxxx Xxxxxx
95 1610-1620 Xxxxx Creek Xxxx
00 00000 Xxxxxxxx Xxxxxxx
97 0000 Xxxxxxxxx Xxxxx
00 0000 Xxxxxxx 00
00 6135 Xxxxxxxxxx Xxxx
000 000 Xxxx Xxxxxx Avenue
101 000 Xxxxxxx Xxxxx
000 000 Xxxxx 517
103 820 South College Road
104 2800 Marina Xxx Xxxxx
000 0000 XxXxxx Xxxx
106 13634 U.S. Xxxxxxx 000 & 000 Xxxx Xxxx Xxxx
107 0000 Xxxx Xxxxxxxxxx Xxxxxx
108 000 Xxxxxxx Xxxxxx
109 1201-1291 Xxxxxxx Xxx
000 0000-0000 Xxxxxxxxx Xxxx
111 0000 XXXX Xxxxxxx
112 0000 Xxxxx Xxxxxxx
113 17 Xxxxxx Way, 18 and 00 Xxxxx Xxxx
114 126 and 000 Xxxx Xxxx Xxxxxx
115 605-669 Arrow Xxxxxxx
000 000 Xxxxx Xxxxx
117 Various
117.1 0000 Xxxxxx Xxxxxx
117.2 0000 Xxxxxx Xxxxx
117.3 0000 Xxxxxx Xxxxxx
117.4 0000 Xxxxxxx Xxx
118 0000 Xxxx Xxxxxxx Xxxxxxxx
119 0000 Xxxxxxxxxxx Xxxx
120 000-000 Xxxxxxx Xxxxxx
121 0000 Xxxxxxxxxxx Xxxxx
122 000 Xxxxxxxxx Xxxxxx
123 0000 Xxxx Xxxxxxxx Xxxx
124 12123 Xxx Xxxxxx Xxxx
000 000 Xxxxx Xxxxxx Xxxxxx
126 0000 Xxxxxx Xxxx Xxxx
127 000 Xxxx 000xx Xxxxxx
128 000 Xxxx Xxxx Xxxxxx
000 0000 Xx Xxxxxx Parkway
130 0000 Xxx Xxxx Xxxxxx Xxxx
131 000 Xxxx Xxxxxx Xxxxxx
132 0000 Xxxx Xxx Xxxx
133 00 Xxxx Xxxxxx Xxxxx
000 000 Xxxxx Xxxxx Xxxxx Road
135 0000 Xxxxxxxxx Xxxxxx
136 0000 Xxxxx Xxxxxx
137 000 Xxxxxx Xxxx Xxxx
138 000 Xxxxx Xxxxxxxxx Xxxxxx
139 0 Xxxxxx Xxx and 00X Xxxxxx Xxx
000 0000 Xxxxx Xxxxx Boulevard
141 0000 Xxxxx 00 Xxxxx
142 0000 Xxxx Xxxxxxx Xxxxxx
143 00 Xxxx 00xx Xxxxxx
144 0000 Xxxxxxx Xxxxx
145 7580,7588,7596 Parkway Drive
146 3763-3773 Xxxxxxxxx Xxxx
000 0000 Xxxxx Xxxxxxxxx Drive
148 000 Xxxx Xxxxxx Xxxx
149 0000 Xxxxx Xxxxxxxxxx Xxxxxxx 45
Loan # City State Zip Code County Property Name
------------------------------------------------------------------------------------------------------------------------------------
Various Various Various Various DDR Portfolio
1 Xxxxxxxxx XX 00000 Monroe Xxxxxxxx Xxxxx
0 Xxxxxxxxxxx XX 00000 Xxxxxx Xxxxxx Xxxxx Xxxxx
0 Xxxxxxx Xxxx XX 00000 Xxxx Xxxxxxxxxx Xxxxxx
0 Xxxxxxxxxxx XX 00000 Erie Tops Plaza - Union Road
5 Xxxxxxxxx XX 00000 Chautauqua Tops Plaza - Jamestown
6 Xxxxxxx XX 00000 Erie Tops Xxxxx - Xxxxxxxx Xxxx
0 Xxxxxxxxxxx XX 00000 Xxxx Chillicothe Place
8 Xxxxxxxxxx XX 00000 Gwinnett Xxxxxx Xxxxx
0 Xxxxxxx XX 00000 Xxxxx Tops Plaza - Ontario
10 Xxxxxx XX 00000 Wyoming Tops Plaza - Warsaw
11 Xxxxxxxxxxxxxx XX 00000 Davidson Xxxxxxxxxx Xxxxxxx
00 Xx Xxx XX 00000 Genesee Tops Plaza - Le Xxx
13 Xxxxxx XX 00000 Lafayette Oxford Place
14 Ft. Lauderdale FL 33301 Broward Las Olas Centre
15 Xxx Xxxx XX 00000 New York 000 Xxxx Xxxxxx Xxxxx
00 Xxxxx Xxxxxx XX 00000 Westchester Crossroads Shopping Center
17 Various Various Various Various Everest Portfolio
17.1 Xxxxxxxxxx XX 00000 Middlesex Everest - Chelmsford Flex R&D
17.2 Xxxxxxx XX 00000 Essex Everest - Northwoods Business Park
17.3 Xxxxxxxxx XX 00000 Middlesex Everest - Watertown Technology Park
17.4 Xxxxxxxxxxxx XX 00000 Worcester Everest - Xxxxxxxxxxxx Xxxxxx Xxxx
00.0 Xxxxx XX 00000 Middlesex Everest - Xxxxx Xxxxxx
00 Xxxxxx XX 00000 Denver Xxxxxxxx Xxxxxxxxxxx
00 Xxxxxxxx XX 00000 Richland College Suites Stadium
20 Tampa FL 33614 Hillsborough Xxxxxxxxx Xxxx Xxxxxxxxxx
00 Xxxxxxxxx XX 00000 Champaign Xxxxxxxxx Xxxxxx & Xxxxxx
00 Xxxx XX 00000 Maricopa Moorings at Xxxx Xxxx Xxxxxxxxxx
00 Xxxxxxxxxx XX 00000 Dauphin Xxxxx Xxxxxx Xxxxxxxx Xxxxxx
00 Xxx Xxxxxxx XX 00000 Bexar Xxxxxx Xxxxxx Xxxxxxxxxx
00 Xxxxxx XX 00000 Xxxxxx Xxxxxxxxx at Xx Xxxxxxxx Xxxxxxxxxx
00 Xxxxxx Xxxxx XX 00000 Oakland Cambridge Court Phase I & II
27 Mesa AZ 85202 Maricopa Xxx Xxxxxxxx Xxxxxxxxxx
00 Xxxx Xxxx Xxxx XX 00000 Xxxx Xxxx Xxxx Xxxxxx
00 Xxxxxxx XX 00000 Jefferson Xxxxxxxxx Xxxxxxxxx Xxxxxxxxx
00 Xxxxxx XX 00000 Kendall Oswego Commons
31 Xxxxxx XX 00000 Orange Residence Inn Soup Plantation
32 Xxxxxxxx XX 00000 Xxxxxxxx Xxxxx xx Xxxxxxx
00 Xxx Xxxx Xxxxxx XX 00000 San Xxxx Obispo Valencia Apartments
34 Xxxxx XX 00000 Maricopa Xxxxxx Xxxxxxxx Xxxxxxxxxx
00 Xxxx Xxxxxx Xxxx XX 00000 Xxxx Xxxx Xxxxxxxx Xxxx
00 Xxxxxxx XX 00000 Xxxxxx Xxxxxxxxxxx Xxxxx Xxxxxx
00 Xxxx Xxxx FL 33825 Highlands Xxxxxxx Xxxx Xxxx XXX
00 Xxxxxxx XX 00000 Xxxx Xxxxxxx Xxxxx Xxxxxxxxxx
00 Xxxx Xxxxxx XX 00000 Los Angeles Xxxxxxxxxx Xxxxxxx Xxxxxxxxxx
00 Xxxxx Xxxxxxxxxx XX 00000 Charleston Verizon Wireless Xxxx Xxxxxx
00 Xxxx Xxxx Xxxx XX 00000 Xxxx Xxxx Xxxx Xxxxxxx Xxxxxx
00 Xxxxxxxxx XX 00000 Fayette Xxxxxxx Xxxxx Xxxxxxxx Xxxxxx
00 Xxx Xxxxxxx XX 00000 Orleans Holiday Inn Express/Cotton Exchange Hotel
44 Xxxxxxxxx XX 00000 Los Angeles Calabasas Business Park II
45 Largo MD 20774 Prince Georges Xxxxx 00
00 XxXxxxx XX 00000 Xxxxxxx Xxxxxxx Xxxxx XXX Xxxxxx
00 Xxxxx XX 00000 Hillsborough Xxxxxxx Xxxxx Xxxxxxxxxx
00 Xxxxxxx XX 00000 Los Angeles Xxxxxxx Xxxxxxx Xxxxxx Xxxxxxxx
00 Xxxxxx XX 00000 Xxxxxxx Pinecrest Townhomes
50 Xxxxxxxx XX 00000 Richmond 000 X. Xxxxxxxx Xxxxxxxx
00 Xxxxxxxxx XX 00000 Anchorage Xxxxxxxxx Xxxxx
00 Xxxxxxxxx XX 00000 Anchorage Xxxxxxx MHP
53 Owasso OK 74055 Tulsa Villas at Xxxxxx Ranch
54 Lenexa KS 66216 Xxxxxxx T-Mobile - Lenexa KS
55 Livonia MI 48150 Xxxxx TRW Automotive - Tech 4
56 Xxxxxxx XX 00000 Orange Xxx Xxxxx Xxxxxxxxxx
00 Xxxxxxx XX 00000 Orange Imperial Promenade
58 Xxxxxxxxx XX 00000 Xxxxx Eastern Crossing
59 Xxxxxxxx Xxxxxxx XX 00000 Los Angeles Xxxxxxxx Xxxxxxx Xxxx Xxxxxx
00 Xxxxxxxxx XX 00000 Riverside Xxxxxx Xxxx Xxxxxx Xxxxx
00 Xxxx XX 00000 Richland Xxxxxxxx Crossing
62 Houston TX 77041 Xxxxxx Xxxxxxxx Xxxxx Xxxx Xxxxxx
00 Xxxxxxx XX 00000 Delaware Woodlyn Shopping Center
64 Xxxxxxxxxx XX 00000 Allegheny INS Xxxxxxxx
00 Xxxxxxx Xxxxx XX 00000 Xxxx Xxxxx Xxxxxxxxxx Xxxxxxxxxx
00 Xxxxxxxxxx XX 00000 Fairfax Bren Mar Apartments
67 Xxxxxx XX 00000 Bergen Raia Self Storage - Mahwah
00 Xxxxx Xxxxxx XX 00000 Xxxxxxxxx Xxxxx Xxxxxx Shopping Center
69 Witcha Falls TX 76308 Wichita Xxxxxxx Xxxxxx Xxxxxxxx Xxxxxx
00 Xxxxxx XX 00000 Xxxxxxx B&M - Grande Pointe
71 Xxxxxx Xxxxxxxxx XX 00000 San Bernardino Shops at Rancho Cucamonga Xxxxx Xxxxxx
00 Xxxxxxxx XX 00000 Xxxxxx S.A.I.C. Building
73 Allen TX 75002 Collin Xxxxxxxx Xxxxxxx Xxxxxxxxxx
00 Xxxxxxxxxxx XX 00000 Bernallio Xxxxxxxxxx Crossing
75 Pearland TX 77584 Brazoria Xxxxxxxxxx Xxxxxxx Xxxxxxxx Xxxxxx-Xxx
Xxxx Xxxx.
00 Xxxxxxx TX 77429 Xxxxxx XX-Xxxx Xxxx Xxxxxx
00 Xxxxxxxxxx XX 00000 Xxxxxxxx Xxxxxxxxx Xxxxxx
00 Xxxxxxx XX 00000 Xxxxxx Xxxxxxxxxx Xxxx
00 Xxxxx XX 00000 Tuscarawas Xxxxxxxx Xxxxxxx Xxxxxxxxxx
00 Xxxxx Xxxx XX 00000 Xxxxxxxxxx Shops at Whitestone
81 Xxxxxxx XX 00000 Xxxxx Xxxxxxx Xxxxx
00 Xxxxx Xxx XX 00000 Oakland 000 X 0xx Xxxxxx
00 Xxxxxxxxx XX 00000 Xxxxxxxxxx Xxxxxxx Xxxxxxx
00 Xxxxxx XX 00000 Norfolk 0 Xxxxxxxxxx Xxxxxx
00 Xxxxx Xxx XX 00000 Orange Sandalwood MHP
86 Houston TX 77027 Xxxxxx 00000 Xxxx Xxxxxxx
00 Xxxxxx XX 00000 Tarrant Wall-Price Xxxxxx Self Storage
88 Knoxville TN 37918 Xxxx Xxxxxxx Xxxxx Xxxxxx
00 Xxxxxxxxxx XX 00000 Dallas Carrollton All Storage
90 Xxx Xxxxxxx XX 00000 Los Angeles 000-000 XX Xxxxxx
00 Xxxxxxxx XX 00000 Xxxxxxxxx Xxxxxxxx Crossroads
92 Xxxxxxxxx XX 00000 Los Angeles Xxxx Xxxxxxxxx Xxxxx
00 Xxxxxx XX 00000 Dallas Xxxxxx Xxxxxx Xxxxxxxxxx
00 Xxx Xxxxx XX 00000 San Diego 0000 Xxxxx Xxxxxx
00 Xxxxxx Xxxx XX 00000 Xxxxxxxxx Xxxxx Xxxxx Xxxxxx
00 Xxxxxxxx XX 00000 Loudoun Sterling Self Storage
97 Xxxxxxxxx XX 00000 Kalamazoo Xxxxxxxxx Xxxxx
00 Xxxx XX 00000 Monmouth CJS Xxxxxxxxx Xxxxxx
00 Xxxxxxx XX 00000 Harris Xxxxxxxxxx Xxxxxx
000 Xxxxxxxx XX 00000 Xxxx Walgreen's-Palatine
101 Xxxxxxx Xxxx XX 00000 Newport News City Linens 'N Things
102 Xxxxxxxxxxxx XX 00000 Xxxxxx XXXX Self Storage
103 Xxxxxxxxxxx XX 00000 New Hanover Xxxxxx Xxxxxx
104 League City TX 77573 Galveston Centre at Xxxxx Xxxxx Xxxxxxx X
000 Xxxxxxxx XX 00000 Xxxxx Xxxxxxxxx Xxxx Xxxxxxxxxx
000 Xxxx Xxxx XX 00000 Sumter, Lake Fort Xxxx Self Storage
107 Xxxx Xxxxx XX 00000 Tarrant Xxx Xxxxxx Xxxxxxxxxx
000 Xxxxx Xxxxxxx XX 00000 Dallas Skyline Apartments
109 Escondido CA 92029 San Diego Xxxxxxxxxx Xxxxxxxx Xxxxx
000 Xxxxx Xx XX 00000 Xxxxx Xx Xxxxxx Xxxxxxx
000 Xxxxxxx XX 00000 Xxxxxx 0000 XXXX Xxxx
112 Mount Laurel NJ 8054 Burlington Marne Associates Shopping Center
113 Colonie NY 12205 Albany Xxxxx Industrial I
114 Payson AZ 85541 Xxxx Xxxxxx Xxxxxxx Xxxxxxxx
000 Xxxxx XX 00000 Los Angeles Xxx Xxxx Xxxxxx
000 Xxxxxx XX 00000 Orange Valencia Estates
117 Dallas TX Various Dallas Highland Park Apartment Portfolio
117.1 Xxxxxx XX 00000 Dallas Image Gardens Apartments
117.2 Xxxxxx XX 00000 Dallas Image Arms Apartments
117.3 Xxxxxx XX 00000 Dallas The Avon Building Apartments
117.4 Xxxxxx XX 00000 Dallas Xxxxxxxx Xxxxx Xxxxxxxxxx
000 Xxxx Xxxxxxxxxx XX 00000 Broward Romark Center
000 Xxxxxxxxxx XX 00000 Jefferson Storage, LLC
000 Xxxxx Xxxxxxx XX 00000 Centre Xxxxxxxxxx Xxxxx Xxxxxxxxxx
000 Xxxx Xxxx XX 00000 York Best Buy - Rock Hill
122 Xxxxxxx XX 00000 Steuben Eckerd - Corning
123 Xxxx XX 00000 Maricopa Baseline Power Shops
124 Xxxxxxxxxxxx XX 00000 Xxxxx Xxx Xxxxxx Xxxxx
000 Xxxxxxxxxx XX 00000 Pinellas Xxxxxx Xxxxxx Xxxxxxx
000 Xxxxxx XX 00000 Houston Xxxxxx Xxxx Xxxxx
000 Xxxxx XX 00000 Bronx 000 Xxxx 000xx Xxxxxx
000 Xxxxxxxxxx XX 00000 Suffolk 000 Xxxx Xxxx Xxxxxx
000 XxXxxxxx XX 00000 Collin Xxxxxx Xxxxxxxx
000 Xxxxxx Xxxx XX 00000 Chatham Savannah Pines
131 Edmond OK 73003 Xxxxxxxx Xxxxx Xxxxxxx XXX
000 Xxxxxxxx XX 00000 Maricopa The Annex at Xxxxxxxx Commons
133 Woodbury CT 6798 Xxxxxxxxxx Xxxxx Xxxxx Xxxxxxxxxx
000 Xxxx Xxxxxxxx XX 00000 Suffolk 000 Xxxxx Xxxxx Xxxxx Xxxx
000 Xxx Xxxxxxx XX 00000 Los Angeles Kittyhawk Apartments
136 Lubbock TX 79401 Lubbock Xxxx Xxxxxx Xxxxxxxxxx
000 Xxxxx Xxxxxxx XX 00000 Xxxxxxx Xxxxxxx Xxxx Xxxxxxx
000 Xxxxxxxxx XX 00000 Xxxxx Xxxxxxxxx Plaza
139 Colonie NY 12205 Albany Xxxxx Industrial II
140 Xxxxxx XX 00000 Xxxxxx Xxxxxxxxxxx Xxxxx
000 Xxxxxxx XX 00000 Hunterdon Xxxxxxxx Xxxxxxx
000 Xxxxxxx XX 00000 Spalding Regency Apartments
000 Xxx Xxxx XX 00000 Xxx Xxxx 00 X. 00xx Xxxxxx
000 Xxxxxxxx XX 00000 Potter Amarillo Ranch
145 Leeds AL 35094 Jefferson Leeds Shopping Center
000 Xxxxxxxxxx Xxxxxxxx/
Xxxxxxxxx XX 00000 Washtenaw Xxxxxx Xxxx Xxxxxx
000 Xxxxxxxx Xxxx XX 00000 Oklahoma Xxxxx Xxxxxxx Xxxxxxxxxx
000 Xxxxxxxxx XX 00000 Tarrant 000 Xxxx Xxxxxx
000 Xxxxx XX 00000 Xxxxx Xxxxx MHP
Interest Net Mortgage
Loan # Rate (%) Interest Rate Original Balance Cutoff Balance Term Rem. Term Maturity/ARD Date
------------------------------------------------------------------------------------------------------------------------------------
5.1470 5.1056 150,480,000 150,480,000 84 83 11/11/11
1 5.1470 5.1056 31,000,000 31,000,000 84 83 11/11/11
2 5.1470 5.1056 22,500,000 22,500,000 84 83 11/11/11
3 5.1470 5.1056 18,200,000 18,200,000 84 83 11/11/11
4 5.1470 5.1056 14,500,000 14,500,000 84 83 11/11/11
5 5.1470 5.1056 10,750,000 10,750,000 84 83 11/11/11
6 5.1470 5.1056 10,420,000 10,420,000 84 83 11/11/11
7 5.1470 5.1056 9,000,000 9,000,000 84 83 11/11/11
8 5.1470 5.1056 8,900,000 8,900,000 84 83 11/11/11
9 5.1470 5.1056 6,370,000 6,370,000 84 83 11/11/11
10 5.1470 5.1056 5,740,000 5,740,000 84 83 11/11/11
11 5.1470 5.1056 5,700,000 5,700,000 84 83 11/11/11
12 5.1470 5.1056 5,100,000 5,100,000 84 83 11/11/11
13 5.1470 5.1056 2,300,000 2,300,000 84 83 11/11/11
14 5.3200 5.2786 98,980,000 98,980,000 120 120 12/11/14
15 5.2001 5.1587 75,000,000 75,000,000 120 120 01/01/15
16 5.3700 5.3286 64,000,000 64,000,000 120 120 12/01/14
17 5.2400 5.1786 62,500,000 62,500,000 60 60 01/01/10
17.1 5.2400 17,710,957 17,710,957 60 60 01/01/10
17.2 5.2400 17,002,519 17,002,519 60 60 01/01/10
17.3 5.2400 11,807,305 11,807,305 60 60 01/01/10
17.4 5.2400 10,390,428 10,390,428 60 60 01/01/10
17.5 5.2400 5,588,791 5,588,791 60 60 01/01/10
18 5.3860 5.3446 42,000,000 42,000,000 120 120 12/01/14
19 5.5700 5.5286 28,000,000 28,000,000 120 120 12/11/14
20 5.4500 5.4086 28,000,000 28,000,000 120 118 10/11/14
21 5.3800 5.3386 26,000,000 26,000,000 84 82 10/11/11
22 5.1070 5.0656 22,500,000 22,500,000 84 84 12/01/11
23 5.3500 5.3086 22,000,000 22,000,000 120 120 12/01/14
24 5.4400 5.3786 21,975,000 21,975,000 120 119 11/01/14
25 4.7000 4.6286 21,831,000 21,831,000 60 58 10/11/09
26 5.1400 5.0986 21,500,000 21,500,000 120 120 12/01/14
27 4.8230 4.7816 20,600,000 20,600,000 60 60 12/01/09
28 5.1000 5.0586 20,400,000 20,400,000 84 83 11/11/11
29 5.4000 5.3086 20,000,000 20,000,000 120 120 12/01/14
30 4.7500 4.7086 19,262,100 19,262,100 84 84 12/11/11
31 5.7900 5.7186 19,000,000 19,000,000 120 120 12/01/14
32 5.2200 5.1786 16,000,000 16,000,000 120 118 10/11/14
33 5.3400 5.2686 15,800,000 15,800,000 120 120 12/01/14
34 4.8230 4.7816 15,650,000 15,650,000 60 60 12/01/09
35 5.1000 5.0586 15,600,000 15,600,000 84 83 11/11/11
36 5.5800 5.5386 15,500,000 15,500,000 120 120 12/01/14
37 5.4600 5.4186 15,300,000 15,300,000 120 120 12/01/14
38 5.4500 5.4086 15,100,000 15,066,853 120 118 10/01/14
39 5.3700 5.2986 15,000,000 15,000,000 108 108 12/01/13
40 5.3500 5.3086 14,600,000 14,600,000 120 120 12/01/14
41 5.1000 5.0586 14,500,000 14,500,000 84 83 11/11/11
42 5.2800 5.2386 14,400,000 14,400,000 120 118 10/01/14
43 6.2000 6.1086 14,100,000 14,100,000 120 120 12/01/14
44 5.3100 5.2386 14,062,500 14,062,500 120 119 11/01/14
45 5.5000 5.4586 14,000,000 14,000,000 120 120 12/11/14
46 5.5500 5.5086 12,000,000 12,000,000 180 180 12/01/19
47 5.4500 5.4086 11,800,000 11,775,660 120 118 10/11/14
48 5.3500 5.3086 11,700,000 11,700,000 120 120 12/01/14
49 5.6800 5.6386 11,400,000 11,400,000 84 83 11/01/11
50 5.0900 5.0486 11,088,000 11,088,000 120 119 11/01/14
51 5.4000 5.3586 10,985,000 10,985,000 84 83 11/11/11
52 5.4000 5.3586 10,820,000 10,820,000 84 83 11/11/11
53 4.8600 4.7986 10,500,000 10,500,000 108 101 05/01/13
54 6.2700 6.2286 10,460,000 10,460,000 180 180 12/01/19
55 5.9300 5.7886 10,400,000 10,400,000 120 120 12/01/14
56 5.1300 5.0386 10,400,000 10,387,801 120 119 11/01/14
57 5.1500 5.1086 10,000,000 10,000,000 120 120 12/01/14
58 5.9900 5.9486 9,240,000 9,240,000 120 118 10/11/14
59 5.1500 5.1086 9,100,000 9,100,000 60 59 11/11/09
60 5.7900 5.7186 9,000,000 9,000,000 120 120 12/01/14
61 5.2600 5.2186 8,250,000 8,250,000 120 120 12/01/14
62 4.8800 4.7886 8,100,000 8,100,000 120 120 12/01/14
63 6.3800 6.3386 8,100,000 8,100,000 120 120 01/01/15
64 5.1300 5.0886 8,000,000 8,000,000 84 84 12/11/11
65 5.4400 5.3986 8,000,000 7,991,144 120 119 11/11/14
66 5.1200 5.0286 7,500,000 7,500,000 120 120 12/01/14
67 5.1900 5.1486 7,500,000 7,500,000 120 120 12/01/14
68 5.3500 5.3086 7,500,000 7,500,000 120 119 11/11/14
69 5.4400 5.3186 7,350,000 7,350,000 120 120 12/01/14
70 4.9800 4.9386 7,125,000 7,125,000 60 59 11/11/09
71 6.2200 6.1486 6,817,000 6,798,564 120 117 09/01/14
72 5.2600 5.1686 6,600,000 6,600,000 120 120 12/01/14
73 5.3500 5.3086 6,600,000 6,600,000 120 120 12/01/14
74 5.4200 5.3286 6,400,000 6,392,889 120 119 11/01/14
75 5.5000 5.4086 6,300,000 6,300,000 120 120 01/01/15
76 4.8300 4.7386 6,125,000 6,125,000 120 120 12/01/14
77 5.4000 5.3586 6,000,000 6,000,000 120 120 12/01/14
78 5.5500 5.5086 6,000,000 6,000,000 120 120 01/01/15
79 5.1000 5.0286 5,950,000 5,950,000 120 119 11/01/14
80 5.7200 5.5986 5,725,000 5,725,000 240 240 01/01/25
81 5.5500 5.5086 5,600,000 5,588,695 120 118 10/11/14
82 5.5300 5.4886 5,300,000 5,294,232 120 119 11/11/14
83 5.1600 5.0386 5,250,000 5,250,000 120 120 12/01/14
84 5.2800 5.2386 5,200,000 5,191,627 120 119 11/01/14
85 5.6500 5.5586 5,150,000 5,137,449 229 228 12/06/23
86 5.5300 5.4886 5,100,000 5,094,449 120 119 11/11/14
87 5.4300 5.3886 5,050,000 5,050,000 180 180 12/01/19
88 4.9350 4.8936 5,005,000 5,005,000 60 60 12/11/09
89 5.2800 5.2386 5,000,000 5,000,000 216 216 12/01/22
90 6.5500 6.5086 5,000,000 4,962,464 120 114 06/11/14
91 5.5400 5.4986 4,900,000 4,900,000 120 120 01/01/15
92 5.2400 5.1986 4,900,000 4,900,000 120 120 12/01/14
93 5.6250 5.5836 4,500,000 4,495,189 120 119 11/11/14
94 5.3400 5.2986 4,450,000 4,450,000 120 119 11/01/14
95 5.8900 5.8486 4,400,000 4,400,000 120 120 12/01/14
96 5.2200 5.1786 4,050,000 4,050,000 120 120 01/01/15
97 5.4500 5.4086 4,040,000 4,031,667 120 118 10/11/14
98 5.4100 5.3686 4,000,000 4,000,000 84 84 01/01/12
99 5.3500 5.2586 4,000,000 4,000,000 120 120 12/01/14
100 5.9400 5.8986 4,000,000 4,000,000 120 120 12/11/14
101 5.4800 5.4386 4,000,000 3,995,605 120 119 11/01/14
102 5.5200 5.4786 4,000,000 3,993,789 120 119 11/01/14
103 4.9150 4.8736 3,960,000 3,960,000 60 59 11/11/09
104 5.5300 5.4886 3,950,000 3,950,000 120 120 01/01/15
105 5.2800 5.2386 3,900,000 3,900,000 84 84 12/01/11
106 5.5400 5.4386 3,800,000 3,800,000 120 120 12/01/14
107 5.3700 5.3286 3,795,000 3,790,744 120 119 11/01/14
108 5.4700 5.4286 3,650,000 3,633,345 120 117 09/11/14
109 5.0800 5.0386 3,600,000 3,600,000 120 120 12/01/14
110 5.6900 5.6186 3,500,000 3,500,000 120 120 12/01/14
111 5.6700 5.6286 3,500,000 3,496,290 120 119 11/11/14
112 6.3300 6.2886 3,400,000 3,396,823 120 119 11/01/14
113 6.0900 6.0486 3,376,000 3,376,000 120 120 12/11/14
114 5.4900 5.4486 3,300,000 3,300,000 120 120 01/01/15
115 5.7400 5.6986 3,100,000 3,100,000 120 120 01/01/15
116 5.6300 5.5886 3,060,000 3,060,000 120 120 12/11/14
117 5.7200 5.6286 3,000,000 3,000,000 120 120 12/01/14
117.1 5.7200 1,006,250 1,006,250 120 120 12/01/14
117.2 5.7200 762,500 762,500 120 120 12/01/14
117.3 5.7200 718,750 718,750 120 120 12/01/14
117.4 5.7200 512,500 512,500 120 120 12/01/14
118 5.6800 5.6386 3,000,000 3,000,000 120 120 01/01/15
119 5.5600 5.5186 3,000,000 2,993,162 120 119 11/01/14
120 5.3600 5.3186 2,975,000 2,975,000 120 120 01/01/15
121 5.6700 5.6286 2,871,000 2,871,000 84 83 11/11/11
122 6.6500 6.6086 2,825,000 2,825,000 120 120 12/11/14
123 5.4000 5.3586 2,720,000 2,716,966 120 119 11/11/14
124 5.3300 5.2886 2,672,000 2,672,000 120 120 01/01/15
125 5.8100 5.7686 2,630,000 2,630,000 120 120 01/01/15
126 5.6700 5.6286 2,580,000 2,580,000 120 120 12/01/14
127 5.1700 5.1286 2,500,000 2,500,000 120 120 12/01/14
128 5.7200 5.6786 2,400,000 2,400,000 120 120 12/01/14
129 5.6000 5.5586 2,250,000 2,247,583 120 119 11/01/14
130 5.4000 5.3586 2,230,000 2,227,513 60 59 11/11/09
131 5.5800 5.5386 2,220,000 2,217,606 120 119 11/11/14
132 5.4100 5.3186 2,181,000 2,178,572 120 119 11/01/14
133 5.6200 5.5286 2,160,000 2,117,885 120 107 11/11/13
134 5.0400 4.9986 2,100,000 2,100,000 60 60 01/01/10
135 4.9300 4.8886 2,050,000 2,050,000 84 84 12/01/11
136 5.5400 5.4486 2,020,000 2,020,000 120 120 12/01/14
137 5.5500 5.5086 2,000,000 2,000,000 120 120 12/01/14
138 5.6000 5.5586 1,950,000 1,947,905 84 83 11/01/11
139 6.0900 6.0486 1,900,000 1,900,000 120 120 12/11/14
140 6.2300 6.1886 1,800,000 1,800,000 240 240 12/01/24
141 5.6200 5.5786 1,800,000 1,800,000 120 120 12/01/14
142 5.3600 5.3186 1,800,000 1,794,529 120 118 10/11/14
143 5.1900 5.1486 1,750,000 1,750,000 120 120 12/01/14
144 6.1000 6.0586 1,750,000 1,746,871 120 118 10/11/14
145 5.5600 5.4686 1,700,000 1,700,000 120 120 01/01/15
146 6.0400 5.9986 1,600,000 1,600,000 120 120 12/01/14
147 6.0500 5.9086 1,600,000 1,600,000 120 120 01/01/15
148 5.9100 5.8686 1,450,000 1,450,000 120 120 12/01/14
149 5.8000 5.7586 975,000 973,992 120 119 11/11/14
Monthly Debt Servicing
Loan # Amort. Term Rem. Amort. Service Fee Rate Accrual Type ARD Date
--------------------------------------------------------------------------------------------------------------------------------
0 0 654,398.16 0.04145 Actual/360 11/11/11
1 0 0 134,810.89 0.04145 Actual/360 11/11/11
2 0 0 97,846.61 0.04145 Actual/360 11/11/11
3 0 0 79,147.04 0.04145 Actual/360 11/11/11
4 0 0 63,056.71 0.04145 Actual/360 11/11/11
5 0 0 46,748.94 0.04145 Actual/360 11/11/11
6 0 0 45,313.85 0.04145 Actual/360 11/11/11
7 0 0 39,138.65 0.04145 Actual/360 11/11/11
8 0 0 38,703.77 0.04145 Actual/360 11/11/11
9 0 0 27,701.46 0.04145 Actual/360 11/11/11
10 0 0 24,961.76 0.04145 Actual/360 11/11/11
11 0 0 24,787.81 0.04145 Actual/360 11/11/11
12 0 0 22,178.57 0.04145 Actual/360 11/11/11
13 0 0 10,002.10 0.04145 Actual/360 11/11/11
14 0 0 444,905.94 0.04145 Actual/360
15 360 360 411,837.79 0.04145 Actual/360
16 360 360 358,182.12 0.04145 Actual/360
17 360 360 344,740.30 0.06145 Actual/360
17.1 360 360 Actual/360
17.2 360 360 Actual/360
17.3 360 360 Actual/360
17.4 360 360 Actual/360
17.5 360 360 Actual/360
18 300 300 255,065.23 0.04145 Actual/360
19 360 360 160,212.83 0.04145 Actual/360
20 360 360 158,103.65 0.04145 Actual/360
21 360 360 143,503.81 0.04145 Actual/360
22 360 360 122,260.50 0.04145 Actual/360
23 360 360 122,851.01 0.04145 Actual/360
24 360 360 123,945.65 0.06145 Actual/360
25 0 0 86,692.32 0.07145 Actual/360
26 360 360 117,263.21 0.04145 Actual/360
27 0 0 83,944.76 0.04145 Actual/360
28 360 360 110,761.75 0.04145 Actual/360
29 360 360 112,306.16 0.09145 Actual/360
30 0 0 76,245.81 0.04145 30/360
31 300 300 119,989.91 0.07145 Actual/360
32 360 360 88,055.53 0.04145 Actual/360
33 360 360 88,131.02 0.07145 Actual/360
34 0 0 63,773.57 0.04145 Actual/360
35 360 360 84,700.16 0.04145 Actual/360
36 360 360 88,786.86 0.04145 Actual/360
37 360 360 86,488.13 0.04145 Actual/360
38 360 358 85,263.04 0.04145 Actual/360
39 360 360 83,948.94 0.07145 Actual/360
40 300 300 88,353.64 0.04145 Actual/360 12/01/14
41 360 360 78,727.72 0.04145 Actual/360
42 360 360 79,785.12 0.04145 Actual/360
43 300 300 92,578.08 0.09145 Actual/360
44 360 360 78,177.07 0.07145 Actual/360
45 360 360 79,490.46 0.04145 Actual/360
46 180 180 98,368.70 0.04145 Actual/360
47 360 358 66,629.40 0.04145 Actual/360
48 360 360 65,334.40 0.04145 Actual/360
49 360 360 66,021.23 0.04145 Actual/360
50 360 360 60,134.16 0.04145 Actual/360
51 336 336 63,474.09 0.04145 Actual/360
52 336 336 62,520.68 0.04145 Actual/360
53 360 360 55,471.30 0.06145 Actual/360
54 360 360 64,540.14 0.04145 Actual/360 12/01/19
55 360 360 61,885.98 0.14145 Actual/360
56 360 359 56,658.64 0.09145 Actual/360
57 360 360 54,602.62 0.04145 Actual/360
58 360 360 55,339.08 0.04145 Actual/360
59 0 0 39,596.59 0.04145 Actual/360
60 360 360 52,750.47 0.07145 Actual/360
61 360 360 45,607.92 0.04145 Actual/360
62 180 180 63,549.09 0.09145 Actual/360
63 300 300 54,085.97 0.04145 Actual/360
64 300 300 47,375.13 0.04145 Actual/360
65 360 359 45,122.42 0.04145 Actual/360
66 360 360 40,813.45 0.09145 Actual/360
67 300 300 44,678.49 0.04145 Actual/360
68 0 0 33,901.91 0.04145 Actual/360
69 360 360 41,456.22 0.12145 Actual/360
70 0 0 29,979.43 0.04145 Actual/360
71 360 357 41,840.52 0.07145 Actual/360
72 300 300 39,589.30 0.09145 Actual/360
73 360 360 36,855.30 0.04145 Actual/360
74 360 359 36,017.91 0.09145 Actual/360
75 360 360 35,770.71 0.09145 Actual/360
76 180 180 47,895.44 0.09145 Actual/360
77 300 300 36,487.80 0.04145 Actual/360
78 360 360 34,255.80 0.04145 Actual/360
79 360 360 32,305.51 0.07145 Actual/360
80 240 240 40,096.29 0.12145 30/360
81 360 358 31,972.08 0.04145 Actual/360
82 360 359 30,192.65 0.04145 Actual/360
83 360 360 28,698.73 0.12145 Actual/360
84 300 299 31,252.98 0.04145 Actual/360
85 229 228 36,798.73 0.09145 Actual/360
86 360 359 29,053.31 0.04145 Actual/360
87 180 180 41,075.37 0.04145 Actual/360
88 0 0 20,583.06 0.04145 30/360
89 216 216 35,912.10 0.04145 Actual/360
90 300 294 33,916.74 0.04145 Actual/360
91 360 360 27,944.76 0.04145 Actual/360
92 360 360 27,027.64 0.04145 Actual/360
93 360 359 25,904.54 0.04145 Actual/360
94 360 360 24,821.71 0.04145 Actual/360
95 360 360 26,069.86 0.04145 Actual/360
96 300 300 24,197.90 0.04145 Actual/360
97 360 358 22,812.10 0.04145 Actual/360
98 360 360 22,486.21 0.04145 Actual/360
99 300 300 24,206.48 0.09145 Actual/360
100 360 360 23,827.94 0.04145 Actual/360
101 360 359 22,661.39 0.04145 Actual/360
102 300 299 24,611.30 0.04145 Actual/360
103 0 0 16,219.50 0.04145 30/360
104 360 360 22,502.07 0.04145 Actual/360
105 360 360 21,608.47 0.04145 Actual/360
106 300 300 23,426.19 0.10145 Actual/360
107 360 359 21,239.08 0.04145 Actual/360
108 300 297 22,348.85 0.04145 Actual/360
109 360 360 19,501.97 0.04145 Actual/360
110 360 360 20,291.84 0.07145 Actual/360
111 360 359 20,247.52 0.04145 Actual/360
112 360 359 21,111.61 0.04145 Actual/360
113 360 360 20,436.58 0.04145 Actual/360
114 360 360 18,716.34 0.04145 Actual/360
115 360 360 18,071.07 0.04145 Actual/360
116 360 360 17,624.75 0.04145 Actual/360
117 300 300 18,818.84 0.09145 Actual/360
117.1 300 300 Actual/360
117.2 300 300 Actual/360
117.3 300 300 Actual/360
117.4 300 300 Actual/360
118 360 360 17,374.01 0.04145 Actual/360
119 240 239 20,738.42 0.04145 Actual/360
120 360 360 16,631.34 0.04145 Actual/360
121 0 0 13,565.48 0.04145 30/360
122 300 300 19,340.23 0.04145 Actual/360
123 360 359 15,273.64 0.04145 Actual/360
124 360 360 14,887.56 0.04145 Actual/360
125 300 300 16,640.99 0.04145 Actual/360
126 360 360 14,925.32 0.04145 Actual/360
127 240 240 16,734.57 0.04145 Actual/360
128 300 300 15,055.07 0.04145 Actual/360
129 360 359 12,916.78 0.04145 Actual/360
130 360 359 12,522.14 0.04145 Actual/360
131 360 359 12,716.57 0.04145 Actual/360
132 360 359 12,260.60 0.09145 Actual/360
133 300 287 13,419.53 0.09145 Actual/360
134 240 240 13,905.52 0.04145 Actual/360
135 360 360 10,917.31 0.04145 Actual/360
136 300 300 12,452.87 0.09145 Actual/360
137 300 300 12,341.54 0.04145 Actual/360
138 360 359 11,194.54 0.04145 Actual/360
139 360 360 11,501.63 0.04145 Actual/360
140 240 240 13,135.73 0.04145 30/360
141 300 300 11,182.94 0.04145 Actual/360
142 300 298 10,903.59 0.04145 Actual/360
143 360 360 9,598.63 0.04145 Actual/360
144 360 358 10,604.91 0.04145 Actual/360
145 360 360 9,716.51 0.09145 Actual/360
146 360 360 9,633.99 0.04145 Actual/360
147 360 360 9,644.30 0.14145 Actual/360
148 360 360 8,609.76 0.04145 Actual/360
149 360 359 5,720.84 0.04145 Actual/360
Loan # ARD Step Up (%) Title Type
-------------------------------------------------------------------------------------------------
Initial Rate + 2.0% Fee
1 Initial Rate + 2.0% Fee
2 Initial Rate + 2.0% Fee
3 Initial Rate + 2.0% Fee
4 Initial Rate + 2.0% Fee
5 Initial Rate + 2.0% Fee
6 Initial Rate + 2.0% Fee
7 Initial Rate + 2.0% Fee
8 Initial Rate + 2.0% Fee
9 Initial Rate + 2.0% Fee
10 Initial Rate + 2.0% Fee
11 Initial Rate + 2.0% Fee
12 Initial Rate + 2.0% Fee
13 Initial Rate + 2.0% Fee
14 Fee
15 Fee
16 Fee
17 Fee
17.1 Fee
17.2 Fee
17.3 Fee
17.4 Fee
17.5 Fee
18 Fee
19 Fee
20 Fee
21 Fee
22 Fee
23 Fee
24 Fee
25 Leasehold
26 Fee
27 Fee
28 Fee/Leasehold
29 Fee
30 Fee
31 Fee
32 Fee
33 Fee
34 Fee
35 Fee
36 Fee
37 Fee
38 Fee
39 Fee
40 Greater of (i) Interest Rate + 2% or (ii) Treasury Index + 3.15% Fee
41 Fee
42 Fee
43 Fee
44 Fee
45 Fee
46 Fee
47 Fee
48 Fee
49 Fee
50 Fee
51 Fee
52 Fee
53 Fee
54 Greater of (i) Interest Rate + 2% or (ii) Treasury Index + 3.6% Fee
55 Fee
56 Fee
57 Fee
58 Fee
59 Fee
60 Fee
61 Fee
62 Fee
63 Fee
64 Fee
65 Fee
66 Fee
67 Fee
68 Fee
69 Fee
70 Fee
71 Fee
72 Fee
73 Fee
74 Fee
75 Fee
76 Fee
77 Fee
78 Fee
79 Fee
80 Fee
81 Fee
82 Fee
83 Fee
84 Fee
85 Fee
86 Fee
87 Fee
88 Fee
89 Fee
90 Fee
91 Fee
92 Fee
93 Fee
94 Fee
95 Fee
96 Fee
97 Fee
98 Fee
99 Fee
100 Fee
101 Fee
102 Fee
103 Fee
104 Fee
105 Fee
106 Fee
107 Fee
108 Fee
109 Fee
110 Fee
111 Fee
112 Fee
113 Fee
114 Fee
115 Fee
116 Fee
117 Fee
117.1 Fee
117.2 Fee
117.3 Fee
117.4 Leasehold
118 Fee
119 Fee
120 Fee
121 Fee
122 Fee
123 Fee
124 Fee
125 Fee
126 Fee
127 Fee
128 Leasehold
129 Fee
130 Fee
131 Fee
132 Fee
133 Fee
134 Fee
135 Fee
136 Fee
137 Fee
138 Fee
139 Fee
140 Fee
141 Fee
142 Fee
143 Fee
144 Fee
145 Fee
146 Fee
147 Fee
148 Fee
149 Fee
Originator/Loan
Loan # Crossed Loan Seller Guarantor
-----------------------------------------------------------------------------------------------------------------
Yes NCCI DDR Markaz II LLC
1 1 NCCI DDR Markaz II LLC
2 1 NCCI DDR Markaz II LLC
3 1 NCCI DDR Markaz II LLC
4 1 NCCI DDR Markaz II LLC
5 1 NCCI DDR Markaz II LLC
6 1 NCCI DDR Markaz II LLC
7 1 NCCI DDR Markaz II LLC
8 1 NCCI DDR Markaz II LLC
9 1 NCCI DDR Markaz II LLC
10 1 NCCI DDR Markaz II LLC
11 1 NCCI DDR Markaz II LLC
12 1 NCCI DDR Markaz II LLC
13 1 NCCI DDR Markaz II LLC
14 NCCI CRT Properties, Inc.
15 JPMCB Xxx X. Xxxxx & Xxxxxxx Xxxxx
16 JPMCB Westport Holdings, LLC
17 PNC Xxxxxx Xxxxxxxx, Xxxxxxxxxxx X. Xxxxxxxx
17.1 PNC
17.2 PNC
17.3 PNC
17.4 PNC
17.5 PNC
18 JPMCB Xxxxx X. Xxxxx and Xxxxxx X. Xxxxx
19 NCCI Xxxxx X. Xxxxxx & Xxxxxxx X. Xxxxxxx
20 NCCI Xxxxxx X. Xxxxxx, Xxxxxx Xxxxx and Xxxxxxx X. Xxxxxx
21 NCCI Xxxxxx X. Xxxxxxx
22 JPMCB Xxxx Xxxxxx, Xxxx X. Xxxxxxxxx & Xxxxx Xxxxx
23 JPMCB Xxxxxx X. Xxxxxx, Xxxxxx X. Xxxxxxx, and Xxxxxx X. Xxxxxxx
24 PNC Xxxxxxx X. Xxxxx
25 NCCI Xxxxxxx X. Xxxxx and Aslan Development, LLC
26 JPMCB University Development Co., LLC
27 JPMCB Xxxx Xxxxxx, Xxxx X. Xxxxxxxxx & Xxxxx Xxxxx
28 NCCI Xxxxxx Xxxxxxx, N. Xxxxxx Xxxx, Xx.
29 JPMCB Xxxxxxx X. Xxxxxxxx, Xxxxx Xxxx, Spoleta Family Associates, L.P.
& Xxxxxx Enterprises, L.P.
30 NCCI Inland Western Retail Real Estate Trust, Inc.
31 PNC Xxxxxx X. Xxxxx
32 NCCI Xxxx Xxxxxxx, Xxxxxx Xxxxxxx, and Xxxxx Xxxxxxx
33 PNC Xxxxxxx X. Xxxxx, Xxxx X. Xxxxxxxxx
34 JPMCB Xxxx Xxxxxx, Xxxx X. Xxxxxxxxx & Xxxxx Xxxxx
35 NCCI Xxxxxx Xxxxxxx, N. Xxxxxx Xxxx, Xx.
36 JPMCB Xxxxxx X. Xxxx
37 JPMCB Xxxxxx X. Xxxx
38 NCCI Xxxxx Xxxx, Xxxxxxx X. Xxxxx and Xxxxxxxx Xxxxxxxx
39 JPMCB Xxxxxxx X. Xxxxxx
40 JPMCB Xxxx X. Xxxxx, Xx.
41 NCCI Xxxxxx Xxxxxxx, X. Xxxxxxx Xxxx, Jr.
42 JPMCB DLC Management Corporation & Delphi Commercial Properties, Inc.
43 PNC Decatur Hotels, LLC
44 PNC Century National Properties
45 NCCI Guardian Realty Fund II Business Trust
46 JPMCB Xxxxx Xxxxxx
47 NCCI Xxxxx Xxxx, Xxxxxxx X. Xxxxx and Xxxxxxxx Xxxxxxxx
48 PNC FTTWK Investments, Inc., Flake & Xxxxx Management, Inc.
49 PNC Xxxxxxx X. Xxxxxx, Xxxx X. XxXxxxxx
50 PNC Xxxxxxx Xxxxx
51 NCCI Xxxxxxx Xxxxxx Nodel and Xxxxxx Xxxxx Xxxxx
52 NCCI Xxxxxxx Xxxxxx Nodel and Xxxxxx Xxxxx Xxxxx
53 PNC The Villas at Xxxxxx Ranch Limited Partnership
54 JPMCB Lexington Acquiport Company II LLC
55 PNC C-L Livonia Associates II, LLC
56 PNC Xxxxxxx X. Xxxxx
57 JPMCB Xxxxx X. Xxxxxxxxxx
58 NCCI Xxxxxx Xxxxxxxxx, Xxxxxxxxxxx Xxxxxxxxx and The Xxxxxx and Xxxx
Xxxxxxxxx Family Trust
59 NCCI Xxxxxxx X. Xxxxxxxxx
60 PNC Xxxxxxx Xxxxxx
61 JPMCB Xxxxx Xxxxxx & Xxxx Xxxxx
62 JPMCB Xxxxxx X. Xxxxx & Xxx X. Xxxxx
63 JPMCB Xxxxxxx X. XxXxxxxx and Xxxxxx X. XxXxxxxx
64 NCCI Government Properties Trust, Inc.
65 NCCI W. Xxxxxx Xxxxxx, Jr.
66 JPMCB Xxxxxx X. Xxxxxxx
67 JPMCB Xxxxxx X. Xxxx, Xxxxxxxx X. Xxxx, and Xxxxxx X. Xxxx
68 NCCI Xxxxx X. Xxxxx
69 JPMCB Xxxxxxx X. Xxxxxxx
70 NCCI Xxxxxx Xxxxxx and Xxxx Xxxxxxxxx
71 PNC Xxxxx Xxx Xxx, Xxx Xxxx Xxx, Xxxx Ran Xxx, Xxx Soon Xxx
72 JPMCB Xxxxx Xxxxxxx Xxxxxx, Xxxxxxx Azrael, and Xxxxxx X. Xxxxxxx
73 JPMCB Xxxxx X. Xxxxx
74 PNC Mehran Xxx Xxxxxxx
75 JPMCB Xxxxx X. Xxxxxxxx
76 JPMCB Xxxxxx X. Xxxxx & Xxx X. Xxxxx
77 PNC Xxxxx X. Xxxxx, Xxxxxx X. Xxxxx, Xxxxxx X. Xxxxx
78 JPMCB SWP 1, Inc. and Xxxx X. Xxxxxx
79 JPMCB Xxxxxxx Xxxxx and Xxxx Xxxxxxxx
80 JPMCB Whitestone Retail, Ltd.
81 NCCI Xxxxxx X. Xxxx and Xxxxxx Xxxx
82 NCCI Xxxxxxx Xxxxxx
83 JPMCB Xxxx Xxxxxxx and Xxxxx Xxxxxx
84 JPMCB Xxxx Xxxxxxx
85 NCCI Xxxxxx X. Xxxx, Xxxxxxx X. Xxxx, and Xxxxx Xxxx Xxxxx
86 NCCI Xxxxxx Xxxxx
87 JPMCB Xxxx Xxxxxxxxxx
88 NCCI Inland Western Retail Real Estate Trust, Inc.
89 JPMCB Xxxx Xxxxxxxxxx
90 NCCI Saeed Farkhondehpour and Xxxxx Xxxxx
91 JPMCB Xxxx X. Xxxxxxx III
92 JPMCB Xxx Xxxxxx
93 NCCI Xxxxx Xxxxxxxxx, Xxxxxxx Xxxxxxxxx, and Xxxxxx Xxxxxxxxx
94 PNC Xxxx Xxxxxx, Xxxxxx Xxxxxx, Xxxxxxx Xxxxxx
95 JPMCB Critchell X. Xxxxxx, Xxxxxxx X. Xxxxxxxx, Xxxxxx X. Xxxxxxxx
96 JPMCB Xxxxx X. Xxxxxx
97 NCCI Xxxxxxxx Xxxxx, Xxxxxx Xxxxx
98 JPMCB Xxxxx X. Xxxxxx & Xxxx X. Xxxxxx
99 JPMCB Xxxx X. Xxxxxx
100 NCCI Xxxx X. XxXxxxxxx, Xxxxx XxXxxxxxx
101 PNC Xxxxxxx X. Xxxxxxxxxxx
102 JPMCB Xxxxxx X. Xxxx and Xxxxxxxx X. Xxxx
103 NCCI Inland Western Retail Real Estate Trust, Inc.
104 JPMCB Xxxxxx Xxxxxx & Xxxx X. Xxxxxx
105 JPMCB Xxxxxx X. Xxxx, Xx. & Xxxx X. Xxxx
106 JPMCB Xxxxxxx X. Xxxxx, Xx., F. Xxxxxx Xxxxx, and Xxxxx X. Xxxx
107 PNC Xxxxxxx X. Xxxxx, Xxxxx X. Xxxxx
108 NCCI Xxxxx Xxxxxxxxx
109 JPMCB Xxxx X. Xxxx
110 PNC Xxxxxxx X. Xxxxxx, Xxxxx X. Xxxxxx
111 NCCI Xxxxxx Xxxxx
112 JPMCB Xxxxxx Xxxx, Xxxxxxx Orleans
113 NCCI Xxxxxx X. Xxxxx and Xxxxx X. Xxxxx
114 JPMCB Xxxxxx Xxxxxx & Xxxx X. Xxxxxx
115 JPMCB H. Xxxx Xxxxxx and Xxxx X. Xxxxxx
116 NCCI Xxxxx X. Xxxx and Xxxx Xxxx
117 JPMCB Xxxxxx X. Xxxxxx, Xx.
117.1 JPMCB Xxxxxx X. Xxxxxx, Xx.
117.2 JPMCB Xxxxxx X. Xxxxxx, Xx.
117.3 JPMCB Xxxxxx X. Xxxxxx, Xx.
117.4 JPMCB Xxxxxx X. Xxxxxx, Xx.
118 JPMCB Xxxxxx Xxxxxxxx, Xxxxx Xxxxxx, and Xxxxxx Xxxx
119 JPMCB Xxxxxxx X. Xxxxxxx, Xxxx X. Xxxxxxx
120 PNC Xxxxxx X. Xxxxxx
121 NCCI Inland Real Estate Exchange Corporation
122 NCCI Xxxxxxxx Xxxxx, Xxxxxx Xxxxxxxx
123 NCCI Xxxxx Xxxxxxx, Xxxxxxx Xxxx Xxxxxxx, and Xxxxxxx X. Xxxxxxx
124 JPMCB Xxxxxx Xxxxx, Xxxxx Xxxxx
125 JPMCB Xxxxxxx Xxxxxxx
126 JPMCB Xxxxxx Xxxxxx Xxxxxxx, Xxxxxx Xxxx Xxxxxxx
127 JPMCB Xxxxxx Xxxxxxx
128 JPMCB Xxxxxx Xxxxxx & Xxxxxx X. Xxxxxxxxxxxxx
129 JPMCB Xxxxxxx X. Xxxxxxxx
130 NCCI Roger Mandel
131 NCCI Ray K. Farris, II
132 PNC John Webster Reid, Mark McDonald, Brooke McDonald
133 NCCI Thomas W. Briggs
134 JPMCB SMA Associates, LP
135 JPMCB Babak Nehoray & Mohamad S. Tabrizi
136 JPMCB Devin H. Stoddard
137 JPMCB Jeffrey P. Ossen
138 JPMCB Ebrahim Zaman & Fereydoun Zaman
139 NCCI Joseph M. Clark and David H. Ernst
140 JPMCB Kerry S. Yom
141 PNC Marianne Unger
142 NCCI W. Daniel Hughes, Jr.
143 JPMCB Peter Coan
144 NCCI Jim Williams, Jr. and Melvin B. Shuler, Jr.
145 PNC Michael H. Weisser
146 PNC 34975 Corporation
147 PNC John A. Wiegman, Julia E. Wiegman, Charles R. Wiegman, Katherine
J. Schuitemaker
148 JPMCB John Mathes & Melinda Mathes
149 NCCI Melvin B. Shuler, Jr.
UPFRONT ESCROW
--------------------------------------------------------------------------------------------------------------
Upfront
Letter of CapEx Upfront Eng. Upfront Envir. Upfront TI/LC Upfront RE Tax Upfront Ins. Upfront Other
Loan # Credit Reserve Reserve Reserve Reserve Reserve Reserve Reserve
-----------------------------------------------------------------------------------------------------------------------------------
0 0 266,250 0 0 0 0 0
1 0 0 0 0 0 0 0 0
2 0 0 0 0 0 0 0 0
3 0 0 12,500 0 0 0 0 0
4 0 0 73,750 0 0 0 0 0
5 0 0 13,750 0 0 0 0 0
6 0 0 46,250 0 0 0 0 0
7 0 0 118,750 0 0 0 0 0
8 0 0 0 0 0 0 0 0
9 0 0 0 0 0 0 0 0
10 0 0 1,250 0 0 0 0 0
11 0 0 0 0 0 0 0 0
12 0 0 0 0 0 0 0 0
13 0 0 0 0 0 0 0 0
14 0 0 132,625 0 0 0 0 0
15 6,000,000 0 16,781 2,000 0 257,499 65,654 228,900
16 0 0 6,094 0 0 1,065,558 0 0
17 1,261,573 0 0 1,500 1,000,000 0 0 51,695
17.1
17.2
17.3
17.4
17.5
18 0 0 0 0 0 402,209 34,232 0
19 0 0 0 0 0 0 52,000 0
20 0 0 12,500 0 0 363,000 0 0
21 0 0 6,250 0 0 40,396 5,417 0
22 0 0 79,875 0 0 30,368 0 0
23 0 0 0 0 0 195,369 36,400 249,000
24 0 400,000 0 0 0 0 0 0
25 0 0 0 0 0 606,516 39,875 0
26 0 0 0 0 0 0 0 0
27 0 0 20,313 0 0 31,713 0 0
28 0 331,000 24,750 0 0 19,257 32,223 0
29 0 0 0 0 0 270,429 9,557 0
30 0 0 0 0 0 0 0 0
31 0 0 0 0 0 0 0 0
32 0 0 0 0 0 46,282 3,855 0
33 0 25,000 0 0 0 0 0 0
34 0 0 45,875 0 0 25,557 0 0
35 0 60,000 32,500 0 0 17,523 40,739 0
36 0 0 0 0 0 29,386 5,646 3,000,000
37 0 0 83,031 0 0 48,441 17,812 0
38 0 0 0 0 0 23,633 4,935 0
39 0 0 16,096 0 0 27,644 29,152 0
40 144,475 0 0 0 0 0 0 0
41 0 340,000 37,750 0 0 19,045 50,707 0
42 0 0 699,288 0 0 132,578 0 266,500
43 0 0 0 0 0 0 0 0
44 0 0 0 0 0 0 0 0
45 0 115,000 11,750 0 250,000 57,667.74 4,793 472,298
46 0 0 0 0 1,000,000 56,770 29,236 187,500
47 0 0 0 0 0 127,857 4,756 0
48 0 0 0 0 0 0 0 0
49 0 0 0 0 700,000 0 0 0
50 0 0 0 0 46,784 0 0 60,000
51 0 0 0 0 0 40,972 6,034 0
52 0 0 0 0 0 37,204 6,034 0
53 0 0 0 0 0 0 0 0
54 0 0 0 0 0 0 0 0
55 0 17,150 0 0 0 0 0 36,524
56 0 0 257,000 1,000 0 0 0 0
57 0 0 0 0 0 0 0 0
58 0 0 0 0 0 12,061 9,366 0
59 0 0 2,500 0 0 34,318 15,216 0
60 0 0 23,913 0 0 0 0 0
61 0 0 0 0 0 75,950 7,028 0
62 0 0 0 0 0 187,417 4,828 12,350
63 0 0 65,250 0 400,000 54,496 7,214 0
64 0 0 0 0 335,000 0 0 0
65 0 0 0 0 0 10,280 46,790 0
66 0 0 3,125 0 0 0 0 0
67 0 0 0 0 0 43,269 0 0
68 0 0 26,250 162,500 0 15,238 21,181 0
69 0 0 10,063 0 0 6,979 8,470 0
70 0 0 65,000 0 0 9,047 0 0
71 0 0 0 0 300,000 0 0 0
72 250,000 0 0 0 0 15,283 2,243 0
73 0 0 0 0 0 16,552 38,468 0
74 0 0 0 0 0 0 0 0
75 0 0 0 0 0 24,336 8,766 0
76 0 0 0 0 0 140,833 6,185 29,400
77 0 0 0 0 100,000 0 0 0
78 0 0 0 0 0 18,159 29,958 0
79 0 0 0 38,400 0 25,279 1,545 0
80 0 0 0 0 0 20,649 13,530 200,000
81 0 0 0 0 0 53,852 27,520 0
82 0 0 0 0 0 31,079 6,520 25,000
83 0 0 0 0 0 4,234 4,975 51,781
84 0 0 8,316 0 0 62,844 0 0
85 0 0 0 0 0 18,122 9,789 0
86 0 0 5,000 0 0 86,099 1,311 0
87 0 0 0 0 0 15,037 3,738 0
88 0 0 0 0 0 0 0 0
89 0 0 0 0 0 12,000 2,633 0
90 0 0 1,875 0 0 38,020 19,555 50,000
91 0 0 43,750 0 0 22,167 19,267 300,000
92 0 0 0 0 0 13,207 31,625 500,000
93 0 0 221,780 0 0 102,011 48,135 27,125
94 0 0 0 1,000 61,320 0 0 0
95 0 0 0 0 0 11,931 3,136 78,053
96 0 0 13,681 0 0 13,893 1,850 0
97 0 0 51,250 0 0 11,774 3,324 0
98 0 0 0 0 26,000 11,825 4,325 0
99 0 0 0 0 99,760 6,891 0 0
100 0 0 0 0 0 0 0 0
101 0 0 0 0 0 0 0 0
102 0 0 0 0 0 29,022 0 12,000
103 0 0 0 0 0 0 0 0
104 0 0 0 0 0 24,663 4,669 0
105 0 0 0 0 0 7,333 7,850 0
106 0 0 0 0 0 17,190 7,419 0
107 0 0 76,000 0 0 0 0 0
108 0 0 0 0 0 52,889 30,575 30,069
109 0 0 9,000 0 0 0 0 37,164
110 40,000 0 0 0 0 0 0 0
111 0 0 15,000 0 0 55,838 989 0
112 0 0 0 0 0 14,238 4,722 200,000
113 0 0 4,375 2,500 0 106,109 968 0
114 0 0 0 0 0 15,186 5,125 311,994
115 0 9,070 0 0 0 18,576 1,690 0
116 0 0 141,250 0 0 5,182 1,361 1,856
117 0 0 0 0 0 7,689 36,421 0
117.1
117.2
117.3
117.4
118 0 0 0 0 100,000 6,841 4,585 0
119 300,000 0 0 0 0 25,365 3,379 0
120 0 0 0 0 0 0 0 0
121 0 0 0 0 0 0 0 0
122 0 0 0 0 0 0 0 0
123 0 0 0 0 0 10,256 675 0
124 0 0 0 0 0 13,803 2,646 0
125 0 0 0 0 0 27,315 3,435 0
126 0 0 0 0 0 1,583 1,112 12,906
127 0 0 0 0 0 37,572 10,743 0
128 0 0 7,500 0 0 53,706 14,037 0
129 0 0 1,250 0 30,000 14,973 846 0
130 0 0 39,375 0 0 0 2,126 0
131 0 0 52,514 0 0 22,942 12,659 0
132 0 0 0 0 252,788 0 0 0
133 0 0 61,250 0 0 19,508 10,790 0
134 0 0 186,000 0 0 16,662 5,780 0
135 0 0 0 0 0 6,141 3,558 0
136 0 0 1,500 0 0 2,437 4,365 0
137 0 0 0 0 0 17,259 3,867 10,000
138 0 0 0 0 0 4,161 1,409 0
139 0 0 2,500 0 0 53,099 3,750 0
140 0 0 0 0 0 5,369 3,506 0
141 0 0 0 0 0 0 0 0
142 0 0 0 0 0 25,071 12,310 0
143 0 0 25,000 0 0 0 0 0
144 0 0 10,000 0 0 13,203 6,108 0
145 0 0 0 0 0 0 0 0
146 0 0 0 0 0 0 0 0
147 0 0 0 0 0 0 0 0
148 0 0 0 0 0 4,023 1,129 7,740
149 0 0 0 0 0 8,918 1,052 10,400
MONTHLY ESCROW
------------------------------------------------------------------------------------------------------
Monthly Monthly Monthly Monthly Monthly
Envir. TI/LC RE Tax Ins. Other
Loan # Monthly Capex Reserve Reserve Reserve Reserve Reserve Reserve
-----------------------------------------------------------------------------------------------------------------
0 0 0 0 0 0
1 0 0 0 0 0 0
2 0.00 0 0 0.00 0 0
3 0 0 0 0 0 0
4 0 0 0 0 0 0
5 0 0 0 0 0 0
6 0 0 0 0 0 0
7 0 0 0 0 0 0
8 0 0 0 0 0 0
9 0 0 0 0 0 0
10 0 0 0 0 0 0
11 0 0 0 0 0 0
12 0 0 0 0 0 0
13 0 0 0 0 0 0
14 11,721 0 39,070 0 0 0
15 4,539 0 0 128,750 8,207 0
16 3,883 0 12,944 125,281 0 0
17 8,456 0 0 69,101 6,291 0
17.1
17.2
17.3
17.4
17.5
18 2,447 0 0 50,276 4,890.25 0
19 4,400 0 0 25,733 6,483 0
20 13,542 0 0 33,000 0.00 0
21 1,981 0 19,815 40,396 5,416.67 0
22 7,644 0 0 15,184 0 0
23 6,017 0 4,167 32,562 4,550 0
24 7,000 0 0 42,652 7,019 0
25 8,000 0 0 55,138 7,975 0
26 0 0 0 0 0.00 0
27 8,299 0 0 15,857 0 0
28 4,893.67 0 11,666.67 19,256.92 4,027.83 0
29 0 0 0 28,619 4,778 0
30 0 0 0 0 0.00 0
31 4% of Gross Income. 0 0.00 0.00 0 0
32 3,140 0 16,667 23,141 3,855 0
33 4,000 0 0 0 0 0
34 4,966 0 0 12,778 0 0
35 3,274 0 9,167 17,523 5,092 0
36 1,053 0 0 29,386 2,823 0
37 3,245 0 0 16,147 3,562 0
38 2,600 0 0 11,817 4,935 0
39 0 0 0 0 0 0
40 0 0 0 0 0 0
41 4,296 0 10,417 19,045 6,338 0
42 1,455 0 5,000 11,048 0 0
43 21,121 0 0 3,972 9,134 0
44 1,668 0 2,917 7,622 0 0
45 1,884 0 6,279 14,417 1,598 0
46 700 0 37,500 28,385 7,309 0
47 1,533 0 0 11,623 4,756 0
48 1,085.50 0 8,333 8,160.50 4,232.33 0
49 3,000 0 0 10,920 4,213 0
50 2,970 0 6,667 14,406 483 0
51 0 0 0 10,243 1,006 0
52 0 0 0 9,301 1,006 0
53 5,250 0 0 11,823 4,476 0
54 0 0 0 0 0 0
55 1,442 0 4,167 0 0 0
56 4,872 0 0 10,682 3,385.25 0
57 0 0 0 0 0 0
58 382 0 1,911 4,020 1,561 0
59 5,254 0 4,926 8,580 2,536 0
60 2,924 0 2,500 8,907 1,577 0
61 535 0 1,067 16,667 638.92 0
62 0 0 0 14,417 966 0
63 613 0 0 6,618 1,182 0
64 558 0 0 0 0.00 0
65 4,500 0 0 10,280 6684.305833 0
66 3070.83 0 0 0.00 0.00 0
67 0.00 0 0 14,422.97 0.00 0
68 1,151 0 0 7,619 2,353 0
69 1,530 0 0 6,979 1,694.08 0
70 3,750 0 0 4,523 3,322 0
71 248 0 2,500 8,888 1,174 0
72 0 0 0 2,183 561 0
73 4,040 0 0 16,552 5,495 0
74 1,161 0 2,000 3,422 1,595 0
75 372 0 833 12,168 1,252 0
76 0 0 0 10,833 1,237 0
77 1,791 0 4,167 13,339 0 0
78 650 0 0 9,079 4,993 0
79 3,136 0 0 5,056 1,545 0
80 600 0 2,500 10,324 1,041 0
81 1,436 0 3,350 10,770 3,058 0
82 411.25 0 4,110.42 6,216 652 0
83 0 0 0 0 0 0
84 1,311 0 0 7,856 0 0
85 763 0 0 6,041 2,615 0
86 1,311 0 6,557 7,827 656 0
87 0 0 0 15,037 0 0
88 0 0 0 0 0 0
89 0 0 0 12,000 0 0
90 600 0 3,180 4,753 1629.62 0
91 1,341 0 4,692 11,083 5,535 0
92 1,355 0 4,000 4,402 2,875 0
93 4,167 0 0 9,274 6,016.88 0
94 467 0 1,250 4,952 401 0
95 473 0 1,250 1,988 1,045 0
96 948 0 0 4,631 462.58 0
97 2916.666667 0 0 3,924.77 1,661.75 0
98 375 0 2,500 2,956 541 0
99 0 0 0 6,891 0 0
100 0 0 0 0 0 0
101 426 0 0 3,103 0 0
102 0 0 0 5,804 0 0
103 0 0 0 0 0 0
104 351 0 2,457 12,331 584 0
105 3,720 0 0 7,333 3,925 0
106 532 0 0 5,730 674 0
107 3,167 0 0 6,646 2,416 0
108 3,083 0 0 5,877 4,368 0
109 0 0 0 0 0 0
110 175 0 1,000 1,655 900 0
111 989 0 4,944 5,076 494 0
112 383 0 2,100 7,119 1,574 0
113 1,083 0 1,625 8,842 968 0
114 455 0 2,846 3,037 641 0
115 0 0 0 4,644 1,690 0
116 0 0 0 2,591 680 0
117 2,583 0 0 7,689 3,606 0
117.1
117.2
117.3
117.4
118 479 0 0 2,280 1,528 0
119 1,003 0 0 2,114 845 0
120 833 0 0 4,038 698 0
121 0 0 0 0 0 0
122 173 0 575 0 0 0
123 151 0 0 2,564 337.5833333 0
124 125 0 1,024 3,451 882 0
125 765 0 0 6,829 687 0
126 317 0 1,583 792 556 0
127 434 0 1,300 5,367 1,790 0
128 517 0 569 6,713 1,080 0
129 168 0 1,466 4,991 423 0
130 0 0 0 3,103 1,063 0
131 0 0 0 2,085.67 1406.5 0
132 160.00 0 834 2,339.82 153.58 0
133 800 0 0 2,787 1,079 0
134 0 0 0 5,554 482 0
135 263 0 0 3,070 508 0
136 875 0 0 2,437 1,091 0
137 144 0 0 2,466 483 0
138 124 0 500 1,040 470 0
139 575 0 864 6,637 417 0
140 258 0 1,704 5,369 1,169 0
141 191 0 208 3,574 1,264 0
142 1,667 0 0 2,279 2,052 0
143 0 0 0 0 0 0
144 0 0 0 1,100 764 0
145 548 0 1,667 1,673 741 0
146 214 0 1,000 1,871 375 0
147 2,000 0 0 987 2,166 0
148 95 0 912 0 0 0
149 0 0 0 743 351 0
Lockbox Property Defeasance Interest Accrual
Loan # Grace Period In-place Type Permitted Period Loan Group
-----------------------------------------------------------------------------------------------------------------------
0 Yes Retail No 11th to 10th 0
1 0 Yes Retail No 11th to 10th 1
2 0 Yes Retail No 11th to 10th 1
3 0 Yes Retail No 11th to 10th 1
4 0 Yes Retail No 11th to 10th 1
5 0 Yes Retail No 11th to 10th 1
6 0 Yes Retail No 11th to 10th 1
7 0 Yes Retail No 11th to 10th 1
8 0 Yes Retail No 11th to 10th 1
9 0 Yes Retail No 11th to 10th 1
10 0 Yes Retail No 11th to 10th 1
11 0 Yes Retail No 11th to 10th 1
12 0 Yes Retail No 11th to 10th 1
13 0 Yes Retail No 11th to 10th 1
14 0 Yes Office Yes 11th to 10th 1
15 0 Yes Office Yes 1st to 31st 1
16 0 Yes Retail Yes 1st to 31st 1
17 5 No Various Yes 1st to 31st 1
17.1 5 Industrial Yes 1st to 31st 1
17.2 5 Office Yes 1st to 31st 1
17.3 5 Office Yes 1st to 31st 1
17.4 5 Office Yes 1st to 31st 1
17.5 5 Office Yes 1st to 31st 1
18 5 Yes Retail Yes 1st to 31st 1
19 0 No Multifamily Yes 11th to 10th 1
20 0 Yes Multifamily Yes 11th to 10th 2
21 0 Yes Mixed Use Yes 11th to 10th 1
22 10 No Multifamily Yes 1st to 31st 1
23 7 Yes Retail Yes 1st to 31st 1
24 5 No Multifamily No 1st to 31st 1
25 0 No Multifamily Yes 11th to 10th 1
26 10 No Office Yes 1st to 31st 1
27 10 No Multifamily Yes 1st to 31st 1
28 0 Yes Industrial Yes 11th to 10th 1
29 10 Yes Multifamily Yes 1st to 31st 2
30 0 No Retail No 11th to 10th 1
31 5 No Hotel Yes 1st to 31st 1
32 0 Yes Retail Yes 11th to 10th 1
33 5 No Multifamily No 1st to 31st 2
34 10 No Multifamily Yes 1st to 31st 1
35 0 Yes Industrial Yes 11th to 10th 1
36 7 No Retail Yes 1st to 31st 1
37 7 No Manufactured Housing Yes 1st to 31st 2
38 15 No Multifamily Yes 1st to 31st 2
39 10 No Multifamily Yes 1st to 31st 1
40 7 Yes Office Yes 1st to 31st 1
41 0 Yes Industrial Yes 11th to 10th 1
42 7 No Retail Yes 1st to 31st 1
43 5 No Hotel Yes 1st to 31st 1
44 5 No Office No 1st to 31st 1
45 0 Yes Industrial Yes 11th to 10th 1
46 7 No Office Yes 1st to 31st 1
47 0 No Multifamily Yes 11th to 10th 1
48 5 No Office Yes 1st to 31st 1
49 5 No Multifamily Yes 1st to 31st 1
50 5 No Office Yes 1st to 31st 1
51 0 No Manufactured Housing Yes 11th to 10th 1
52 0 No Manufactured Housing Yes 11th to 10th 1
53 5 No Multifamily No 1st to 31st 2
54 7 Yes Office Yes 1st to 31st 1
55 5 Yes Office Yes 1st to 31st 1
56 5 No Multifamily No 1st to 31st 2
57 10 No Retail Yes 1st to 31st 1
58 0 No Retail Yes 11th to 10th 1
59 0 No Retail Yes 11th to 10th 1
60 5 No Office Yes 1st to 31st 1
61 7 Yes Retail Yes 1st to 31st 1
62 7 No Retail Yes 1st to 31st 1
63 7 No Retail Yes 1st to 31st 1
64 0 No Office Yes 11th to 10th 1
65 0 No Multifamily Yes 11th to 10th 2
66 7 No Multifamily Yes 1st to 31st 2
67 7 No Self Storage Yes 1st to 31st 1
68 0 Yes Retail Yes 11th to 10th 1
69 7 Yes Retail Yes 1st to 31st 1
70 0 No Multifamily Yes 11th to 10th 1
71 5 No Retail Yes 1st to 31st 1
72 10 Yes Office Yes 1st to 31st 1
73 7 No Multifamily No 1st to 31st 2
74 5 No Retail Yes 1st to 31st 1
75 7 Yes Retail Yes 1st to 31st 1
76 7 No Retail Yes 1st to 31st 1
77 5 No Retail Yes 1st to 31st 1
78 7 No Industrial Yes 1st to 31st 1
79 7 No Multifamily Yes 1st to 31st 2
80 7 No Retail No 1st to 31st 1
81 0 Yes Retail Yes 11th to 10th 1
82 0 No Office Yes 11th to 10th 1
83 7 No Retail Yes 1st to 31st 1
84 7 Yes Industrial Yes 1st to 31st 1
85 0 No Manufactured Housing Yes 6th to 5th 2
86 0 Yes Office Yes 11th to 10th 1
87 7 No Self Storage Yes 1st to 31st 1
88 0 No Retail No 11th to 10th 1
89 7 No Self Storage Yes 1st to 31st 1
90 7 No Mixed Use Yes 11th to 10th 1
91 7 No Retail Yes 1st to 31st 1
92 7 No Retail Yes 1st to 31st 1
93 0 No Multifamily Yes 11th to 10th 2
94 5 No Office Yes 1st to 31st 1
95 7 No Retail Yes 1st to 31st 1
96 7 No Self Storage Yes 1st to 31st 1
97 0 No Multifamily Yes 11th to 10th 2
98 7 Yes Office Yes 1st to 31st 1
99 7 No Retail Yes 1st to 31st 1
100 0 Yes Retail Yes 11th to 10th 1
101 5 No Retail Yes 1st to 31st 1
102 7 No Self Storage Yes 1st to 31st 1
103 0 No Retail No 11th to 10th 1
104 7 No Retail Yes 1st to 31st 1
105 7 Yes Multifamily Yes 1st to 31st 1
106 7 No Self Storage Yes 1st to 31st 1
107 5 No Multifamily No 1st to 31st 2
108 0 No Multifamily Yes 11th to 10th 2
109 7 No Industrial Yes 1st to 31st 1
110 5 No Retail Yes 1st to 31st 1
111 0 Yes Office Yes 11th to 10th 1
112 7 No Retail Yes 1st to 31st 1
113 0 No Industrial Yes 11th to 10th 1
114 7 No Office Yes 1st to 31st 1
115 7 No Retail Yes 1st to 31st 1
116 0 No Manufactured Housing Yes 11th to 10th 1
117 7 No Multifamily Yes 1st to 31st 2
117.1 7 Multifamily Yes 1st to 31st 2
117.2 7 Multifamily Yes 1st to 31st 2
117.3 7 Multifamily Yes 1st to 31st 2
117.4 7 Multifamily Yes 1st to 31st 2
118 7 No Office Yes 1st to 31st 1
119 7 No Self Storage Yes 1st to 31st 1
120 5 No Multifamily Yes 1st to 31st 1
121 0 No Retail No 11th to 10th 1
122 0 Yes Retail Yes 11th to 10th 1
123 0 No Retail Yes 11th to 10th 1
124 7 No Retail Yes 1st to 31st 1
125 7 No Self Storage Yes 1st to 31st 1
126 7 No Retail Yes 1st to 31st 1
127 7 Yes Industrial Yes 1st to 31st 1
128 7 No Office Yes 1st to 31st 1
129 7 No Retail Yes 1st to 31st 1
130 0 No Manufactured Housing Yes 11th to 10th 1
131 0 No Manufactured Housing Yes 11th to 10th 2
132 5 No Retail No 1st to 31st 1
133 0 No Multifamily Yes 11th to 10th 2
134 7 Yes Office Yes 1st to 31st 1
135 7 No Multifamily Yes 1st to 31st 1
136 7 No Multifamily Yes 1st to 31st 1
137 7 No Manufactured Housing Yes 1st to 31st 2
138 7 No Retail Yes 1st to 31st 1
139 0 No Industrial Yes 11th to 10th 1
140 7 No Retail No 1st to 31st 1
141 5 No Retail No 1st to 31st 1
142 0 No Multifamily Yes 11th to 10th 2
143 7 No Office Yes 1st to 31st 1
144 0 No Manufactured Housing Yes 11th to 10th 2
145 5 No Retail Yes 1st to 31st 1
146 5 No Retail Yes 1st to 31st 1
147 5 No Multifamily Yes 1st to 31st 2
148 7 No Retail Yes 1st to 31st 1
149 0 No Manufactured Housing Yes 11th to 10th 2
EXHIBIT C
FORM OF INVESTMENT REPRESENTATION LETTER
JPMorgan Chase Bank, National Association
as Certificate Registrar
2001 Bryan Street
Dallas, Texas 75201
Attention: Global Debt - JPMorgan 2004-C3
J.P. Morgan Chase Commercial Mortgage Securities Corp.
270 Park Avenue, 10th Floor
New York, New York 10017
Attention: Real Estate Structured Finance - Securitization Group
Re: Transfer of J.P. Morgan Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2004-C3
Ladies and Gentlemen:
This letter is delivered pursuant to Section 5.02 of the Pooling and
Servicing Agreement, dated as of December 1, 2004 (the "Pooling and Servicing
Agreement"), by and among J.P. Morgan Chase Commercial Mortgage Securities
Corp., as Depositor, Midland Loan Services, Inc., as Master Servicer, J.E.
Robert Company, Inc., as Special Servicer, Wells Fargo Bank, N.A., as Trustee,
and JPMorgan Chase Bank, National Association, as Paying Agent, on behalf of the
holders of J.P. Morgan Chase Commercial Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2004-C3 (the "Certificates") in
connection with the transfer by _________________ (the "Seller") to the
undersigned (the "Purchaser") of $_______________ aggregate Certificate Balance
of Class ___ Certificates (the "Certificate"). Capitalized terms used and not
otherwise defined herein shall have the respective meanings ascribed to such
terms in the Pooling and Servicing Agreement.
In connection with such transfer, the Purchaser hereby represents
and warrants to you and the addressees hereof as follows:
1. Check one of the following:*
[ ] The Purchaser is not purchasing a Class S, Class R or Class LR
Certificate and the Purchaser is an institutional "accredited
investor" (an entity meeting the requirements of Rule 501(a)(1),
(2), (3) or (7) of Regulation D under the Securities Act of 1933, as
amended (the "Securities Act")) and has such knowledge and
experience in financial and business matters as to be capable of
evaluating the merits and risks of its investment in the
Certificates, and the Purchaser and any accounts for which it is
acting are each able to bear the economic risk of the Purchaser's or
such account's investment. The Purchaser is acquiring the
Certificates purchased by it for its own account or for one or more
accounts (each of which is an "institutional accredited investor")
as to each of which the Purchaser exercises sole investment
discretion. The Purchaser hereby undertakes to reimburse the Trust
Fund for any costs incurred by it in connection with this transfer.
--------
* Purchaser must include one of the following two certifications.
[ ] The Purchaser is a "qualified institutional buyer" within the
meaning of Rule 144A ("Rule 144A") promulgated under the Securities
Act of 1933, as amended (the "Securities Act"). The Purchaser is
aware that the transfer is being made in reliance on Rule 144A, and
the Purchaser has had the opportunity to obtain the information
required to be provided pursuant to paragraph (d)(4)(i) of Rule
144A.
2. The Purchaser's intention is to acquire the Certificate (a) for
investment for the Purchaser's own account or (b) for resale (i) to "qualified
institutional buyers" in transactions under Rule 144A, and not in any event with
the view to, or for resale in connection with, any distribution thereof, (ii)
(other than with respect to a Class S Certificate or a Residual Certificate) to
institutional "accredited investors" meeting the requirements of Rule 501(a)(1),
(2), (3) or (7) of Regulation D promulgated under the Securities Act or (iii)
(other than with respect to a Class S Certificate or a Residual Certificate)
pursuant to any other exemption from the registration requirements of the
Securities Act, subject in the case of clauses (ii) and (iii) above to (w) the
receipt by the Certificate Registrar of a letter substantially in the form
hereof, (x) the receipt by the Certificate Registrar of an opinion of counsel
acceptable to the Certificate Registrar that such reoffer, resale, pledge or
transfer is in compliance with the Securities Act, (y) the receipt by the
Certificate Registrar of such other evidence acceptable to the Certificate
Registrar that such reoffer, resale, pledge or transfer is in compliance with
the Securities Act and other applicable laws and (z) a written undertaking to
reimburse the Trust for any costs incurred by it in connection with the proposed
transfer. The Purchaser understands that the Certificate (and any subsequent
Certificate) has not been registered under the Securities Act, by reason of a
specified exemption from the registration provisions of the Securities Act which
depends upon, among other things, the bona fide nature of the Purchaser's
investment intent (or intent to resell to only certain investors in certain
exempted transactions) as expressed herein.
3. The Purchaser has reviewed the Private Placement Memorandum
relating to the Certificates (the "Private Placement Memorandum") and the
agreements and other materials referred to therein and has had the opportunity
to ask questions and receive answers concerning the terms and conditions of the
transactions contemplated by the Private Placement Memorandum.
4. The Purchaser acknowledges that the Certificate (and any
Certificate issued on transfer or exchange thereof) has not been registered or
qualified under the Securities Act or the securities laws of any State or any
other jurisdiction, and that the Certificate cannot be resold unless it is
registered or qualified thereunder or unless an exemption from such registration
or qualification is available.
5. The Purchaser hereby undertakes to be bound by the terms and
conditions of the Pooling and Servicing Agreement in its capacity as an owner of
a Certificate or Certificates, as the case may be (each, a "Certificateholder"),
in all respects as if it were a signatory thereto. This undertaking is made for
the benefit of the Trust, the Certificate Registrar and all Certificateholders
present and future.
6. The Purchaser will not sell or otherwise transfer any portion of
the Certificate or Certificates, except in compliance with Section 5.02 of the
Pooling and Servicing Agreement.
7. Check one of the following:**
[ ] The Purchaser is a U.S. Person (as defined below) and it has
attached hereto an Internal Revenue Service ("IRS") Form W-9 (or
successor form).
[ ] The Purchaser is not a U.S. Person and under applicable law in
effect on the date hereof, no taxes will be required to be withheld
by the Paying Agent (or its agent) with respect to distributions to
be made on the Certificate. The Purchaser has attached hereto [(i) a
duly executed IRS Form W-8BEN (or successor form), which identifies
such Purchaser as the beneficial owner of the Certificate and states
that such Purchaser is not a U.S. Person, (ii) IRS Form W-8IMY (with
all appropriate attachments) or (iii)]*** two duly executed copies
of IRS Form W-8ECI (or successor form), which identify such
Purchaser as the beneficial owner of the Certificate and state that
interest and original issue discount on the Certificate and
Permitted Investments is, or is expected to be, effectively
connected with a U.S. trade or business. The Purchaser agrees to
provide to the Certificate Registrar updated [IRS Form W-8BEN, IRS
Form W-8IMY or]*** IRS Form W-8ECI, [as the case may be,]*** any
applicable successor IRS forms, or such other certifications as the
Certificate Registrar may reasonably request, on or before the date
that any such IRS form or certification expires or becomes obsolete,
or promptly after the occurrence of any event requiring a change in
the most recent IRS form of certification furnished by it to the
Certificate Registrar.
For this purpose, "U.S. Person" means a citizen or resident of the United
States, a corporation or partnership (except to the extent provided in
applicable Treasury Regulations) or other entity created or organized in, or
under the laws of, the United States, any State thereof or the District of
Columbia, including any entity treated as a corporation or partnership for
federal income tax purposes, an estate whose income is subject to United States
federal income tax regardless of its source or a trust if a court within the
United States is able to exercise primary supervision over the administration of
such trust, and one or more such U.S. Persons have the authority to control all
substantial decisions of such trust (or, to the extent provided in applicable
Treasury Regulations, certain trusts in existence on August 20, 1996 which are
eligible to elect to be treated as U.S. Persons).
--------
** Each Purchaser must include one of the two alternative certifications.
*** Does not apply to a transfer of Class R or Class LR Certificates.
8. Please make all payments due on the Certificates:****
[ ] (a) by wire transfer to the following account at a bank or entity
in New York, New York, having appropriate facilities therefor:
Bank:_________________________________________________
ABA #:________________________________________________
Account #:____________________________________________
Attention:____________________________________________
[ ] (b) by mailing a check or draft to the following address:
____________________________________________________________
____________________________________________________________
____________________________________________________________
9. If the Purchaser is purchasing a Class R or Class LR Certificate,
the Purchaser is not a partnership (including any entity treated as a
partnership for U.S. federal income tax purposes), any interest in which is
owned, directly or indirectly, through one or more partnerships, trusts or other
pass-through entities by a non-U.S. Person.
Very truly yours,
________________________________________
[The Purchaser]
By:_____________________________________
Name:
Title:
Dated:
--------
**** Only to be filled out by Purchasers of Definitive Certificates. Please
select (a) or (b). For holders of Definitive Certificates, wire transfers are
only available if such holder's Definitive Certificates have an aggregate
Certificate Balance or Notional Amount, as applicable, of at least U.S.
$5,000,000.
EXHIBIT D-1
FORM OF TRANSFER AFFIDAVIT
AFFIDAVIT PURSUANT TO
SECTION 860E(e)(4) OF THE
INTERNAL REVENUE CODE OF
1986, AS AMENDED
STATE OF )
) ss:
COUNTY OF )
[NAME OF OFFICER], being first duly sworn, deposes and says:
1. That [he] [she] is [Title of Officer] of [Name of Transferee]
(the "Transferee"), a [description of type of entity] duly organized and
existing under the laws of the [State of __________] [United States], on behalf
of which [he/she] makes this affidavit.
2. That the Transferee's Taxpayer Identification Number is
[ ].
3. That the Transferee of a J.P. Morgan Chase Commercial Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates, Series 2004-C3,
Class [R] [LR] Certificate (the "Class [R] [LR] Certificate") is not a
Disqualified Organization (as defined below) or an agent thereof (including
nominee, middleman or other similar person) (an "Agent"), or an ERISA Prohibited
Holder or a Non-U.S. Person (as defined below). For these purposes, a
"Disqualified Organization" means any of (i) the United States, any State or
political subdivision thereof, any possession of the United States, 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, majority
of its board of directors is not selected by such governmental unit), (ii) a
foreign government, any 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 (including the tax imposed
by Section 511 of the Code on unrelated business taxable income), (iv) rural
electric and telephone cooperatives described in Section 1381(a)(2)(C) of the
Code and (v) any other Person so designated by the Master Servicer based upon an
Opinion of Counsel that the holding of an Ownership Interest in a Residual
Certificate by such Person may cause any of the [Upper-Tier REMIC], [the
Lower-Tier REMIC] to fail to qualify as a REMIC, or any Person having an
Ownership Interest in any Class of Certificates (other than such Person) to
incur a liability for any federal tax imposed under the Code that would not
otherwise be imposed but for the Transfer of an Ownership Interest in a Residual
Certificate to such Person. The terms "United States," "State" and
"international organization" shall have the meanings set forth in Section 7701
of the Code or successor provisions. For these purposes, "ERISA Prohibited
Holder" means an employee benefit plan subject to Section 406 of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), or Section 4975 of
the Code or a governmental plan (as defined in Section 3(32) of ERISA) or a
church plan (as defined in Section 3(33) of ERISA) for which no election has
been made under Section 410(d) of the Code subject to any federal, state or
local law which is, to a material extent, similar to the foregoing provisions of
ERISA or the Code (each a "Plan") or a person acting on behalf of or investing
the assets of such a Plan. For these purposes, "Non-U.S. Person" means any
person other than a U.S. Person (within the meaning of Section 7701(a)(30) of
the Code), unless, with respect to the Transfer of a Residual Certificate, (i)
such person holds such Residual Certificate in connection with the conduct of a
trade or business within the United States and furnishes the Transferor and the
Certificate Registrar with an effective Internal Revenue Service Form W-8ECI or
(ii) the Transferee delivers to both the Transferor and the Certificate
Registrar an opinion of a nationally recognized tax counsel to the effect that
such Transfer is in accordance with the requirements of the Code and the
regulations promulgated thereunder and that such Transfer of the Residual
Certificate will not be disregarded for federal income tax purposes; provided,
that a partnership shall be considered a Non-U.S. Person (and clause (i) of this
sentence shall not apply) if any of its interests are owned, directly or
indirectly, through any partnership, trust or other pass-through entity, by any
person that is a Non-U.S. Person.
4. That the Transferee historically has paid its debts as they
have come due and intends to pay its debts as they come due in the future and
the Transferee intends to pay taxes associated with holding the Class [R] [LR]
Certificate as they become due.
5. That the Transferee understands that it may incur tax
liabilities with respect to the Class [R] [LR] Certificate in excess of any cash
flow generated by the Class [R] [LR] Certificate.
6. That the Transferee agrees not to transfer the Class [R] [LR]
Certificate to any Person or entity unless (a) the Transferee has received from
such Person or entity an affidavit substantially in the form of this Transfer
Affidavit and (b) the Transferee provides to the Certificate Registrar a letter
substantially in the form of Exhibit D-2 to the Pooling and Servicing Agreement
certifying that it has no actual knowledge that such Person or entity is a
Disqualified Organization, or an Agent thereof, an ERISA Prohibited Holder or a
Non-U.S. Person and that it has no reason to know that such Person or entity
does not satisfy the requirements set forth in paragraph 4 hereof.
7. That the Transferee agrees to such amendments of the Pooling
and Servicing Agreement, dated December 1, 2004, by and among J.P. Morgan Chase
Commercial Mortgage Securities Corp., as Depositor, Midland Loan Services, Inc.,
as Master Servicer, J.E. Robert Company, Inc., as Special Servicer, Wells Fargo
Bank, N.A., as Trustee, and JPMorgan Chase Bank, National Association, as Paying
Agent (the "Pooling and Servicing Agreement") as may be required to further
effectuate the restrictions on transfer of the Class [R] [LR] Certificate to
such a Disqualified Organization, or an Agent thereof, an ERISA Prohibited
Holder or a Non-U.S. Person. To the extent not defined herein, the capitalized
terms used herein shall have the meanings assigned thereto in the Pooling and
Servicing Agreement.
8. That, if a "tax matters person" is required to be designated
with respect to [the Upper-Tier REMIC], [the Lower-Tier REMIC], the Transferee
agrees to act as "tax matters person" and to perform the functions of "tax
matters person" of [the Upper-Tier REMIC] [the Lower-Tier REMIC] pursuant to
Section 10.01(c) of the Pooling and Servicing Agreement, and, in such event,
agrees to the irrevocable designation of the Trustee as the Transferee's agent
in performing the function of "tax matters person."
9. That the Transferee has reviewed, and agrees to be bound by
and to abide by, the provisions of Section 5.02(c) of the Pooling and Servicing
Agreement concerning registration of the transfer and exchange of the Class [R]
[LR] Certificate.
10. That the Transferee will not cause income from the Class
[R][LR] Certificate to be attributable to, a foreign permanent establishment or
fixed base, within the meaning of an applicable income tax treaty, of the
Transferee or any other U.S. person.
11. Check one of the following:
[ ] That the present value of the anticipated tax liabilities
associated with holding the Class [R] [LR] Certificate does not exceed the sum
of:
(i) the present value of any consideration given to the Transferee
to acquire such Class [R][LR] Certificate;
(ii) the present value of the expected future distributions on such
Class [R] [LR] Certificate; and
(iii) the present value of the anticipated tax savings associated
with holding such Class [R] [LR] Certificate as the related REMIC generates
losses.
For purposes of this calculation, (i) the Transferee is assumed to
pay tax at the highest rate currently specified in Section 11(b) of the Code
(but the tax rate in Section 55(b)(1)(B) of the Code may be used in lieu of the
highest rate specified in Section 11(b) of the Code if the Transferee has been
subject to the alternative minimum tax under Section 55 of the Code in the
preceding two years and will compute its taxable income in the current taxable
year using the alternative minimum tax rate) and (ii) present values are
computed using a discount rate equal to the short-term Federal rate prescribed
by Section 1274(d) of the Code for the month of the transfer and the compounding
period used by the Transferee.
[ ] That the transfer of the Class [R] [LR] Certificate complies
with U.S. Treasury Regulations Sections 1.860G-1(c)(5) and (6) and, accordingly,
(i) the Transferee is an "eligible corporation," as defined in
U.S. Treasury Regulations Sections 1.860E-1(c)(6)(i), as to
which income from Class [R] [LR] Certificate will only be
taxed in the United States;
(ii) at the time of the transfer, and at the close of the
Transferee's two fiscal years preceding the year of the
transfer, the Transferee had gross assets for financial
reporting purposes (excluding any obligation of a person
related to the Transferee within the meaning of U.S. Treasury
Regulation Section 1.860E-1(c)(6)(ii)) in excess of $100
million and net assets in excess of $10 million;
(iii) the Transferee will transfer the Class [R] [LR] Certificate
only to another "eligible corporation," as defined in U.S.
Treasury Regulations Section 1.860E-1(c)(6)(i), in a
transaction that satisfies the requirements of U.S. Treasury
Regulations Sections 1.860G-1(c)(4)(i), (ii) and (iii) and
1.860E-1(c)(5); and
(iv) the Transferee determined the consideration paid to it to
acquire the Class [R] [LR] Certificate based on reasonable
market assumptions (including, but not limited to, borrowing
and investment rates, prepayment and loss assumptions, expense
and reinvestment assumptions, tax rates and other factors
specific to the Transferee) that it has determined in good
faith.
[ ] None of the above.
IN WITNESS WHEREOF, the Transferee has caused this instrument to
be executed on its behalf, by its [Title of Officer] this _____ day of
__________, 20__.
[NAME OF TRANSFEREE]
By:____________________________________
[Name of Officer]
[Title of Officer]
By:____________________________________
[Name of Officer]
[Title of Officer]
Personally appeared before me the above-named [Name of Officer],
known or proved to me to be the same person who executed the foregoing
instrument and to be the [Title of Officer] of the 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 __________, 20__.
_______________________________________
NOTARY PUBLIC
COUNTY OF _____________________________
STATE OF ______________________________
My commission expires the ___ day of __________, 20__.
EXHIBIT D-2
FORM OF TRANSFEROR LETTER
[Date]
JPMorgan Chase Bank, National Association
as Certificate Registrar
2001 Bryan Street
Dallas, Texas 75201
Attention: Global Debt - JPMorgan 2004-C3
Re: J.P. Morgan Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates,
Series 2004-C3
Ladies and Gentlemen:
[Transferor] has reviewed the attached affidavit of [Transferee],
and has no actual knowledge that such affidavit is not true and has no reason to
know that the requirements set forth in paragraphs 3, 4 and 10 thereof are not
satisfied or, after conducting a reasonable investigation of the financial
condition of the transferee, that the information contained in paragraphs 3, 4
and 10 thereof is not true.
Very truly yours,
[Transferor]
_________________
EXHIBIT E
FORM OF REQUEST FOR RELEASE
__________[Date]
Wells Fargo Bank, N.A.
9062 Old Annapolis Road
Columbia, Maryland 21045
Attention: J.P. Morgan Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2004-C3
Re: J.P. Chase Commercial Mortgage Securities Corp,
Commercial Mortgage Pass-Through Certificates,
Series 2004-C3,
REQUEST FOR RELEASE
______________________________________________________
Dear _______________________,
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 December 1, 2004 (the "Pooling and Servicing Agreement"), by and among
J.P. Morgan Chase Commercial Mortgage Securities Corp., as Depositor, Midland
Loan Services, Inc., as Master Servicer, J.E. Robert Company, Inc., as Special
Servicer, you, as Trustee, and JPMorgan Chase Bank, National Association, as
Paying Agent, the undersigned hereby requests a release of the Mortgage File (or
the portion thereof specified below) held by or on behalf of you as Trustee with
respect to the following described Mortgage Loan for the reason indicated below.
Mortgagor's Name:
Address:
Loan No.:
If only particular documents in the Mortgage File are requested, please specify
which:
Reason for requesting file (or portion thereof):
______1. Mortgage Loan paid in full. The [Master Servicer]
[Special Servicer] hereby certifies that all amounts
received in connection with the Mortgage Loan have been
or will be credited to the Certificate Account pursuant
to the Pooling and Servicing Agreement.
______ 2. The Mortgage Loan is being foreclosed.
______ 3. Other. (Describe)
The undersigned acknowledges that the above Mortgage File (or
requested portion thereof) will be held by the undersigned in accordance with
the provisions of the Pooling and Servicing Agreement and will be returned to
you or your designee within ten (10) days of our receipt thereof, unless the
Mortgage Loan has been paid in full, in which case the Mortgage File (or such
portion thereof) will be retained by us permanently, or unless the Mortgage Loan
is being foreclosed, in which case the Mortgage File (or such portion thereof)
will be returned when no longer required by us for such purpose.
Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Pooling and Servicing Agreement.
[MASTER SERVICER] [SPECIAL SERVICER]
By:____________________________________
Name:_______________________________
Title:______________________________
EXHIBIT F
FORM OF ERISA REPRESENTATION LETTER
JPMorgan Chase Bank, National Association
as Certificate Registrar
2001 Bryan Street
Dallas, Texas 75201
Attention: Global Debt - JPMorgan 2004-C3
J.P. Morgan Chase Commercial Mortgage Securities Corp.
270 Park Avenue, 10th Floor
New York, New York 10017
Attention: Real Estate Structured Finance - Securitization Group
Re: Transfer of J.P. Morgan Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2004-C3
Ladies and Gentlemen:
The undersigned (the "Purchaser") proposes to purchase $____________
initial Certificate Balance of J.P. Morgan Chase Commercial Mortgage Securities
Corp., Commercial Mortgage Pass-Through Certificates, Series 2004-C3, Class __
(the "Certificate") issued pursuant to that certain Pooling and Servicing
Agreement, dated December 1, 2004 (the "Pooling and Servicing Agreement"), by
and among J.P. Morgan Chase Commercial Mortgage Securities Corp., as depositor
("Depositor"), Midland Loan Services, Inc., as master servicer ("Master
Servicer"), J.E. Robert Company, Inc., as special servicer ("Special Servicer"),
Wells Fargo Bank, N.A., as trustee ("Trustee"), and JPMorgan Chase Bank,
National Association, as paying agent ("Paying Agent"). Capitalized terms used
and not otherwise defined herein have the respective meanings ascribed to such
terms in the Pooling and Servicing Agreement.
In connection with such transfer, the undersigned hereby represents
and warrants to you as follows:
1. The Purchaser is not (a) an employee benefit plan subject to the
fiduciary responsibility provisions of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), or Section 4975 of the Internal Revenue Code
of 1986, as amended (the "Code"), or a governmental plan (as defined in Section
3(32) of ERISA) or a church plan (as defined in Section 3(33) of ERISA) for
which no election has been made under Section 410(d) of the Code, subject to any
federal, state or local law ("Similar Law") which is, to a material extent,
similar to the foregoing provisions of ERISA or the Code (each a "Plan") or (b)
a person acting on behalf of or using the assets of any such Plan (including an
entity whose underlying assets include Plan assets by reason of investment in
the entity by such a Plan or Plans and the application of Department of Labor
Regulation ss. 2510.3-101), other than an insurance company using the assets of
its "insurance company general account" (as such term is defined in Section V(e)
of Prohibited Transaction Class Exemption ("PTCE") 95-60) under circumstances
whereby the purchase and holding of Offered Private Certificates by such
insurance company would be exempt from the prohibited transaction provisions of
ERISA and the Code under Sections I and III of PTCE 95-60.
2. The Purchaser understands that if the Purchaser is a Person
referred to in 1(a) or (b) above, such Purchaser is required to provide to the
Certificate Registrar an Opinion of Counsel in form and substance satisfactory
to the Certificate Registrar and the Depositor to the effect that the
acquisition and holding of such Certificate by such purchaser or transferee will
not constitute or result in a "prohibited transaction" within the meaning of
ERISA, Section 4975 of the Code or any Similar Law, and will not subject the
Paying Agent, the Certificate Registrar, the Master Servicer, the Special
Servicer, the Dealers or the Depositor to any obligation or liability (including
obligations or liabilities under ERISA, Section 4975 of the Code or any such
Similar Law) in addition to those set forth in the Pooling and Servicing
Agreement, which Opinion of Counsel shall not be at the expense of the
Depositor, the Master Servicer, the Special Servicer, the Paying Agent, the
Dealers, the Certificate Registrar or the Trust Fund.
IN WITNESS WHEREOF, the Purchaser hereby executes this ERISA
Representation Letter on the ___ day of _____________, 20__.
Very truly yours,
Re:
________________________________________
[The Purchaser]
By:_____________________________________
Name:
Title:
EXHIBIT G
FORM OF STATEMENT TO CERTIFICATEHOLDERS
[See Annex D to the Prospectus Supplement]
EXHIBIT H
FORM OF OMNIBUS ASSIGNMENT
[NAME OF CURRENT ASSIGNOR] having an address at [ADDRESS OF CURRENT
ASSIGNOR] (the "Assignor") for good and valuable consideration, the receipt and
sufficiency of which are acknowledged, hereby sells, transfers, assigns,
delivers, sets over and conveys, without recourse, representation or warranty,
express or implied, unto "Wells Fargo Bank, N.A., as Trustee for the registered
holders of J.P. Morgan Chase Commercial Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2004-C3" (the "Assignee"), having an
office at 9062 Old Annapolis Road, Columbia, Maryland 21045-1951, Attn:
Corporate Trust (CMBS), J.P. Morgan Commercial Mortgage Securities Corp., Series
2004-C3, its successors and assigns, all right, title and interest of the
Assignor in and to:
That certain mortgage and security agreement, deed of trust and
security agreement, deed to secure debt and security agreement, or similar
security instrument (the "Security Instrument"), and that certain Promissory
Note (the "Note"), for each of the Mortgage Loans shown on the Mortgage Loan
Schedule attached hereto as Exhibit B, and that certain assignment of leases and
rents given in connection therewith and all of the Assignor's right, title and
interest in any claims, collateral, insurance policies, certificates of deposit,
letters of credit, escrow accounts, performance bonds, demands, causes of action
and any other collateral arising out of and/or executed and/or delivered in or
to or with respect to the Security Instrument and the Note, together with any
other documents or instruments executed and/or delivered in connection with or
otherwise related to the Security Instrument and the Note.
IN WITNESS WHEREOF, the Assignor has executed this instrument under
seal to be effective as of the [__] day of [_____________], 200[__].
[NAME OF CURRENT ASSIGNOR]
By:_____________________________________
Name:
Title:
EXHIBIT I-1
FORM OF REGULATION S TRANSFER CERTIFICATE
DURING RESTRICTED PERIOD
JPMorgan Chase Bank, National Association
as Certificate Registrar
2001 Bryan Street
Dallas, Texas 75201
Attention: Global Debt - JPMorgan 2004-C3
J.P. Morgan Chase Commercial Mortgage Securities Corp.
270 Park Avenue, 10th Floor
New York, New York 10017
Attention: Real Estate Structured Finance - Securitization Group
Re: Transfer of J.P. Morgan Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2004-C3
Class [__]
Ladies and Gentlemen:
This certificate is delivered pursuant to Section 5.02(b) of the
Pooling and Servicing Agreement, dated December 1, 2004 (the "Pooling and
Servicing Agreement"), by and among J.P. Morgan Chase Commercial Mortgage
Securities Corp., as Depositor, Midland Loan Services, Inc., as Master Servicer,
J.E. Robert Company, Inc., as Special Servicer, Wells Fargo Bank, N.A., as
Trustee, and JPMorgan Chase Bank, National Association, as Paying Agent, on
behalf of the holders of J.P. Morgan Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2004-C3, Class __ (the
"Certificates") in connection with the transfer by the undersigned (the
"Transferor") to _________________ (the "Transferee") of $__________________
[Certificate Balance] [Notional Amount]of Certificates, in fully registered form
(each, an "Definitive Certificate"), or a beneficial interest of such aggregate
[Certificate Balance] [Notional Amount] in the Regulation S Book-Entry
Certificate (the "Book-Entry Certificate") maintained by The Depository Trust
Company or its successor as Depositary under the Pooling and Servicing Agreement
(such transferred interest, in either form, being the "Transferred Interest").
In connection with such transfer, the Transferor does hereby certify
that such transfer has been effected in accordance with the transfer
restrictions set forth in the Pooling and Servicing Agreement and the
Certificates and (i) with respect to transfers made in accordance with
Regulation S ("Regulation S") promulgated under the Securities Act of 1933, as
amended (the "Securities Act"), the Transferor does hereby certify that:
(1) the offer of the Transferred Interest was not made to a person
in the United States;
(2) [at the time the buy order was originated, the Transferee was
outside the United States or the Transferor and any person acting on
its behalf reasonably believed that the Transferee was outside the
United States] [the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither
the undersigned nor any person acting on its behalf knows that the
transaction was pre-arranged with a buyer in the United States];*
(3) the transferee is not a U.S. Person within the meaning of Rule
902(o) of Regulation S nor a person acting for the account or
benefit of a U.S. Person, and upon completion of the transaction,
the Transferred Interest will be held with the Depository through
[Euroclear] [Clearstream];**
(4) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as
applicable; and
(5) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Paying Agent,
the Master Servicer and the Special Servicer.
[Name of Transferor]
By:____________________________________
Name:
Title:
Dated:
--------
* Insert one of these two provisions, which come from the definition of
"off-shore transaction" in Regulation S.
** Select appropriate depository.
EXHIBIT I-2
FORM OF REGULATION S TRANSFER CERTIFICATE
AFTER RESTRICTED PERIOD
JPMorgan Chase Bank, National Association
as Certificate Registrar
2001 Bryan Street
Dallas, Texas 75201
Attention: Global Debt - JPMorgan 2004-C3
J.P. Morgan Chase Commercial Mortgage Securities Corp.
270 Park Avenue, 10th Floor
New York, New York 10017
Attention: Real Estate Structured Finance - Securitization Group
Re: Transfer of J.P. Morgan Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2004-C3
Class [__]
Ladies and Gentlemen:
This certificate is delivered pursuant to Section 5.02(b) the
Pooling and Servicing Agreement, dated December 1, 2004 (the "Pooling and
Servicing Agreement"), by and among J.P. Morgan Chase Commercial Mortgage
Securities Corp., as Depositor, Midland Loan Services, Inc., as Master Servicer,
J.E. Robert Company, Inc., as Special Servicer, Wells Fargo Bank, N.A., as
Trustee, and JPMorgan Chase Bank, National Association, as Paying Agent, on
behalf of the holders of J.P. Morgan Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2004-C3, Class __ (the
"Certificates") in connection with the transfer by the undersigned (the
"Transferor") to _________________ (the "Transferee") of $__________________
[Certificate Balance][Notional Amount] of Certificates, in fully registered form
(each, an "Definitive Certificate"), or a beneficial interest of such aggregate
[Certificate Balance][Notional Amount] in the Regulation S Book-Entry
Certificate (the "Book-Entry Certificate") maintained by The Depository Trust
Company or its successor as Depositary under the Pooling and Servicing Agreement
(such transferred interest, in either form, being the "Transferred Interest").
In connection with such transfer, the Transferor does hereby certify
that such transfer has been effected in accordance with the transfer
restrictions set forth in the Pooling and Servicing Agreement and the
Certificates and (i) with respect to transfers made in accordance with
Regulation S ("Regulation S") promulgated under the Securities Act of 1933, as
amended (the "Securities Act"), the Transferor does hereby certify that:
(1) the offer of the Transferred Interest was not made to
a person in the United States;
(2) [at the time the buy order was originated, the
Transferee was outside the United States or the Transferor
and any person acting on its behalf reasonably believed
that the Transferee was outside the United States] [the
transaction was executed in, on or through the facilities
of a designated offshore securities market and neither the
undersigned nor any person acting on its behalf knows that
the transaction was pre-arranged with a buyer in the
United States];*
(3) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or Rule
904(b) of Regulation S, as applicable; and
(4) the transaction is not part of a plan or scheme to
evade the registration requirements of the Securities Act,
or (ii) with respect to transfers made in reliance on Rule 144 under the
Securities Act, the Transferor does hereby certify that the Certificates that
are being transferred are not "restricted securities" as defined in Rule 144
under the Securities Act.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Paying Agent,
the Master Servicer and the Special Servicer.
[Name of Transferor]
By:____________________________________
Name:
Title:
Dated:
--------
* Insert one of these two provisions, which come from the definition of
"off-shore transaction" in Regulation S.
EXHIBIT J
FORM OF PURCHASE OPTION NOTICE
Wells Fargo Bank, N.A.
9062 Old Annapolis Road
Columbia, Maryland 21045
Attention: J.P. Morgan Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2004-C3
Midland Loan Services, Inc.
10851 Mastin, Suite 700
Overland Park, Kansas 66210
Attention: J.P. Morgan Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2004-C3
JPMorgan Chase Bank, National Association
as Paying Agent
4 New York Plaza, 6th Floor
New York, New York 10004
Attention: JPMorgan 2004-C3
Re: J.P. Morgan Chase Commercial Mortgage Corporation
Commercial Mortgage Pass-Through Certificates, Series
2004-C3
Ladies and Gentlemen:
The undersigned hereby acknowledges that it is the holder of an
assignable option (the "Purchase Option") to purchase Mortgage Loan number ____
from the Trust Fund, pursuant to Section 3.18 of the pooling and servicing
agreement, dated December 1, 2004 (the "Pooling and Servicing Agreement"), by
and among J.P. Morgan Chase Commercial Mortgage Securities Corp., as depositor
("Depositor"), Midland Loan Services, Inc., as Master Servicer ("Master
Servicer"), J.E. Robert Company, Inc., as special servicer ("Special Servicer"),
Wells Fargo Bank, N.A., as Trustee ("Trustee"), and JPMorgan Chase Bank,
National Association, as Paying Agent ("Paying Agent"). Capitalized terms used
herein and not otherwise defined shall have the meaning set forth in the Pooling
and Servicing Agreement.
The undersigned, holder of the Purchase Option (the "Option
Holder"), [is the Controlling Class Certificateholder] [acquired its Purchase
Option from the Controlling Class Certificateholder on ___________] [is the
Special Servicer] [acquired its Purchase Option from the Special Servicer].
The undersigned Option Holder is exercising its Purchase Option at
the cash price of $______________, which amount equals or exceeds the Option
Price, as defined in Section 3.18(a)(ii) of the Pooling and Servicing Agreement.
Within ten (10) Business Days of its receipt of the Master Servicer's notice
confirming that the exercise of its Purchase Option is effective, [the
undersigned Option Holder] [______________, an Affiliate of the undersigned
Option Holder] will deliver the Option Price to or at the direction of the
Master Servicer in exchange for the release of the Mortgage Loan, the related
Mortgaged Property and delivery of the related Mortgage File.
The undersigned Option Holder agrees that it shall prepare and
provide the Master Servicer with such instruments of transfer or assignment, in
each case without recourse, as shall be reasonably necessary to vest in it or
its designee the ownership of Mortgage Loan [__], together with such other
documents or instruments as the Master Servicer shall reasonably require to
consummate the purchase contemplated hereby.
The undersigned Option Holder acknowledges and agrees that its
exercise of its Purchase Option Notice may not be revoked and, further, that
upon receipt of the Master Servicer's notice confirming that the exercise of its
Purchase Option is effective, the undersigned Option Holder, or its designee,
shall be obligated to close its purchase of Mortgage Loan ___ in accordance with
the terms and conditions of this letter and of the Pooling and Servicing
Agreement.
Very truly yours,
[Option Holder]
By:
Name:
Title:
[By signing this letter in the space provided below, the
[Controlling Class Certificateholder] [Special Servicer] hereby acknowledges
and affirms that it transferred its Purchase Option to the Option Holder
identified above on [_________].
[_______________________]
By:______________________
Name:
Title:]
EXHIBIT K
FORM OF TRANSFER CERTIFICATE FOR
RULE 144A BOOK-ENTRY CERTIFICATE TO REGULATION S
BOOK-ENTRY CERTIFICATE DURING THE RESTRICTED PERIOD
(Pursuant to Section 5.02(b) of the Pooling and Servicing Agreement)
JPMorgan Chase Bank, National Association
as Certificate Registrar
2001 Bryan Street
Dallas, Texas 75201
Attention: Global Debt - JPMorgan 2004-C3
J.P. Morgan Chase Commercial Mortgage Securities Corp.
270 Park Avenue, 10th Floor
New York, New York 10017
Attention: Real Estate Structured Finance - Securitization Group
Re: Transfer of J.P. Morgan Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2004-C3
Class [__]
Ladies and Gentlemen:
Reference is hereby made to the Pooling and Servicing Agreement,
dated December 1, 2004 (the "Pooling and Servicing Agreement"), by and among
J.P. Morgan Chase Commercial Mortgage Securities Corp., as Depositor, Midland
Loan Services, Inc., as Master Servicer, J.E. Robert Company, Inc., as Special
Servicer, Wells Fargo Bank, N.A., as Trustee, and JPMorgan Chase Bank, National
Association, as Paying Agent, on behalf of the holders of J.P. Morgan Chase
Commercial Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2004-C3. Capitalized terms used but not defined herein
shall have the meanings given to them in the Pooling and Servicing Agreement.
This letter relates to US $[_______] aggregate [Certificate
Balance][Notional Amount] of Certificates (the "Certificates") which are held in
the form of the Rule 144A Book-Entry Certificate (CUSIP No. _________) with the
Depository in the name of [insert name of transferor] (the "Transferor"). The
Transferor has requested a transfer of such beneficial interest for an interest
in the Regulation S Book-Entry Certificate (CUSIP No. __________) to be held
with [Euroclear] [CEDEL]* (Common Code No.____________) through the Depositary.
In connection with such request and in respect of such Certificates,
the Transferor does hereby certify that such transfer has been effected in
accordance with the transfer restrictions set forth in the Pooling and Servicing
Agreement and pursuant to and in accordance with Regulation S under the
Securities Act of 1933, as amended (the "Securities Act"), and accordingly the
Transferor does hereby certify that:
--------
* Select appropriate depository.
(1) the offer of the Certificates was not made to a person in the
United States,
(2) [at the time the buy order was originated, the transferee was
outside the United States or the Transferor and any person acting on
its behalf reasonably believed that the transferee was outside the
United States] [the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither
the transferor nor any person acting on its behalf knows that the
transaction was pre-arranged with a buyer in the United States],*
(3) the transferee is not a U.S. Person within the meaning of Rule
902(o) of Regulation S nor a Person acting for the account or
benefit of a U.S. Person,
(4) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as
applicable,
(5) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act, and
(6) upon completion of the transaction, the beneficial interest
being transferred as described above will be held with the
Depository through [Euroclear] [Clearstream].**
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Paying Agent,
the Master Servicer and the Special Servicer.
[Insert Name of Transferor]
By:____________________________________
Name:
Title:
Dated:
--------
* Insert one of these two provisions, which come from the definition of
"off-shore transaction" in Regulation S.
** Select appropriate depository.
EXHIBIT L
CLASS X REFERENCE RATES
Distribution Reference Distribution Reference
Date Rate Date Rate
--------------- --------- -------------- ---------
January 2005 5.26295% July 2008 5.26033%
February 2005 5.26291% August 2008 5.43232%
March 2005 5.26307% September 2008 5.43226%
April 2005 5.43494% October 2008 5.26014%
May 2005 5.26272% November 2008 5.43212%
June 2005 5.43481% December 2008 5.26001%
July 2005 5.26260% January 2009 5.25994%
August 2005 5.43469% February 2009 5.25987%
September 2005 5.43463% March 2009 5.26034%
October 2005 5.26242% April 2009 5.43174%
November 2005 5.43451% May 2009 5.25965%
December 2005 5.26230% June 2009 5.43159%
January 2006 5.26224% July 2009 5.25951%
February 2006 5.26218% August 2009 5.43144%
March 2006 5.26240% September 2009 5.43137%
April 2006 5.43419% October 2009 5.25930%
May 2006 5.26199% November 2009 5.44159%
June 2006 5.43406% December 2009 5.27345%
July 2006 5.26187% January 2010 5.28879%
August 2006 5.43394% February 2010 5.29553%
September 2006 5.43388% March 2010 5.29612%
October 2006 5.26169% April 2010 5.46925%
November 2006 5.43375% May 2010 5.29537%
December 2006 5.26156% June 2010 5.46913%
January 2007 5.26150% July 2010 5.29526%
February 2007 5.26144% August 2010 5.46902%
March 2007 5.26178% September 2010 5.46897%
April 2007 5.43341% October 2010 5.29510%
May 2007 5.26124% November 2010 5.46885%
June 2007 5.43328% December 2010 5.29499%
July 2007 5.26112% January 2011 5.29493%
August 2007 5.43315% February 2011 5.29487%
September 2007 5.43308% March 2011 5.29551%
October 2007 5.26092% April 2011 5.46853%
November 2007 5.43294% May 2011 5.29469%
December 2007 5.26079% June 2011 5.46841%
January 2008 5.43280% July 2011 5.29457%
February 2008 5.26066% August 2011 5.46828%
March 2008 5.26076% September 2011 5.46822%
April 2008 5.43259% October 2011 5.29439%
May 2008 5.26046% November 2011 5.46773%
June 2008 5.43246% December 2011 5.33377%
EXHIBIT M
Controlling Class Certificateholder's Reports Checklist
Information Format Frequency
------------------------ --------- ---------------------
Property Operating
Statement (Master
Servicer)* Actual PDF/TIF As received/Quarterly
Property Rent Roll Actual PDF/TIF As received/Quarterly
(Master Servicer)*
Other Financials as
required by loan
documents (Master Actual PDF/TIF As received
Servicer)
Property Inspection Actual PDF/TIF As received/Quarterly
(Master Servicer)*
Payments Received After
Determination Date
Report (Master Monthly Excel P&I Advance Date
Servicer)(1)
Mortgage Loans
Delinquent Report Monthly Excel 30th of each month
(Master Servicer)(2)
Interest on Advance
Reconciliation (Master Monthly Excel Distribution Date
Servicer)
CMSA Setup File
(Issuer/Master CMSA IRP Access/Excel Monthly/Distribution
Servicer) Date
CMSA Property File CMSA IRP Access/Excel Monthly/Distribution
(Master Servicer) Date
CMSA Loan Periodic
Update File (Master CMSA IRP Access/Excel Monthly/Distribution
Servicer) Date
CMSA Financial File CMSA IRP Access/Excel Monthly/Distribution
(Master Servicer) Date
Distribution Statement Monthly Excel/PDF Monthly/Distribution
(Paying Agent) Date
CMSA Bond File (Paying CMSA IRP Access/Excel Monthly/Distribution
Agent) Date
CMSA Collateral File CMSA IRP Access/Excel Monthly/Distribution
(Trustee) Date
CMSA Supplemental
Reports (Master CMSA IRP Access/Excel Monthly/Distribution
Servicer) Date
Operating Statement
Analysis Report CMSA IRP Access/Excel Monthly/Distribution
(Master Servicer)* Date
NOI Adjustment Worksheet CMSA IRP Access/Excel Monthly/Distribution
(Master Servicer)* Date
Documentation Exceptions Quarterly Access/Excel Monthly/Distribution
Report (Trustee) Date
* Submit electronically with ARCap Naming Convention.
Footnotes:
(1) On the P&I Advance Date following the Determination Date for the related
Bond Certificateholder Distribution, a list of all mortgage loans which
are delinquent as to the applicable Distribution Period on the P&I Advance
Date. This list should represent all delinquent loans that required a P&I
Advance be made.
(2) On the last day of the month (30th), for all delinquencies reported in #1
above, a list of a) all mortgage loans which remain delinquent for such
Distribution period (along with the number of days delinquent) accompanied
with any reason, in the Master Servicer's opinion, for the mortgage loans
continued delinquency, along with an explanation of the Master Servicer's
attempts to cure.
(3) [_____], Inc. requests that the above information be organized in
ascending Prospectus Loan I.D. order and forwarded on each of the above
listed dates via E-Mail to the following address. CMSA reports and data
files shall be available via the Master Servicer's or Paying Agent's
Website. [_____] [_____]
EXHIBIT N
FORM OF TRANSFER CERTIFICATE FOR
RULE 144A BOOK-ENTRY CERTIFICATE TO REGULATION S
BOOK-ENTRY CERTIFICATE AFTER RESTRICTED PERIOD
(Pursuant to Section 5.02(b) of the Pooling and Servicing Agreement)
JPMorgan Chase Bank, National Association
as Certificate Registrar
0000 Xxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: Global Debt - JPMorgan 2004-C3
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Real Estate Structured Finance - Securitization Group
Re: Transfer of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2004-C3,
Class [__]
Ladies and Gentlemen:
Reference is hereby made to the Pooling and Servicing Agreement,
dated December 1, 2004 (the "Pooling and Servicing Agreement"), by and among
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., as Depositor, Midland
Loan Services, Inc., as Master Servicer, X.X. Xxxxxx Company, Inc., as Special
Servicer, Xxxxx Fargo Bank, N.A., as Trustee, and JPMorgan Chase Bank, National
Association, as Paying Agent, on behalf of the holders of X.X. Xxxxxx Xxxxx
Commercial Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2004-C3. Capitalized terms used but not defined herein
shall have the meanings given to them in the Pooling and Servicing Agreement.
This letter relates to US $[________] aggregate [Certificate
Balance] [Notional Amount] of Certificates (the "Certificates") which are held
in the form of the Rule 144A Book-Entry Certificate (CUSIP No. ________) with
the Depository in the name of [insert name of transferor] (the "Transferor").
The Transferor has requested a transfer of such beneficial interest in the
Certificates for an interest in the Regulation S Book-Entry Certificate (Common
Code No. _____).
In connection with such request, and in respect of such
Certificates, the Transferor does hereby certify that such transfer has been
effected in accordance with the transfer restrictions set forth in the Pooling
and Servicing Agreement and, (i) with respect to transfers made in reliance on
Regulation S under the Securities Act of 1933, as amended (the "Securities
Act"), the Transferor does hereby certify that:
(1) the offer of the Certificates was not made to a person in the
United States;
(2) [at the time the buy order was originated, the transferee was
outside the United States or the Transferor and any person acting on
its behalf reasonably believed that the transferee was outside the
United States] [the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither
the Transferor nor any person acting on its behalf knows that the
transaction was pre-arranged with a buyer in the United States];*
(3) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as
applicable; and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act,
or (ii) with respect to transfers made in reliance on Rule 144 under the
Securities Act, the Transferor does hereby certify that the Certificates that
are being transferred are not "restricted securities" as defined in Rule 144
under the Securities Act.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Paying Agent,
the Master Servicer and the Special Servicer.
[Insert Name of Transferor]
By:____________________________________
Name:
Title:
Dated:
--------
* Insert one of these two provisions, which come from the definition of
"off-shore transaction" in Regulation S.
EXHIBIT O
FORM OF TRANSFER CERTIFICATE OF
FROM REGULATION S BOOK-ENTRY CERTIFICATE
TO RULE 144A GLOBAL BOOK-ENTRY CERTIFICATE
DURING RESTRICTED PERIOD
(Pursuant to Section 5.02(b) of the Pooling and Servicing Agreement)
JPMorgan Chase Bank, National Association
as Certificate Registrar
0000 Xxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: Global Debt - JPMorgan 2004-C3
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Real Estate Structured Finance - Securitization Group
Re: Transfer of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2004-C3,
Class[__]
Ladies and Gentlemen:
Reference is hereby made to the Pooling and Servicing Agreement,
dated December 1, 2004 (the "Pooling and Servicing Agreement"), by and among
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., as Depositor, Midland
Loan Services, Inc., as Master Servicer, X.X. Xxxxxx Company, Inc., as Special
Servicer, Xxxxx Fargo Bank, N.A., as Trustee, and JPMorgan Chase Bank, National
Association, as Paying Agent, on behalf of the holders of X.X. Xxxxxx Xxxxx
Commercial Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2004-C3. Capitalized terms used but not defined herein
shall have the meanings given to them in the Pooling and Servicing Agreement.
This letter relates to US $[________] aggregate [Certificate
Balance] [Notional Amount] of Certificates (the "Certificates") which are held
in the form of the Regulation S Book-Entry Certificate (CUSIP No. _______) with
[Euroclear] [Clearstream]* (Common Code No.__________) through the Depository in
the name of [insert name of transferor] (the "Transferor"). The Transferor has
requested a transfer of such beneficial interest in the Certificates for an
interest in the Regulation 144A Book-Entry Certificate (CUSIP No.____________).
In connection with such request, and in respect of such
Certificates, the Transferor does hereby certify that such Certificates are
being transferred in accordance with (i) the transfer restrictions set forth in
the Pooling and Servicing Agreement and (ii) Rule 144A under the Securities Act
to a transferee that the Transferor reasonably believes is purchasing the
Certificates for its own account with respect to which the transferee exercises
sole investment discretion and the transferee and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A, in each case in
a transaction meeting the requirements of Rule 144A and in accordance with any
applicable securities laws of any state of the United States or any
jurisdiction.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Paying Agent,
the Master Servicer, the Special Servicer and Initial Purchasers of the offering
of the Certificates.
* Select appropriate depository.
[Insert Name of Transferor]
By:____________________________________
Name:
Title:
Dated:
EXHIBIT P
FORM OF TRANSFER CERTIFICATE FOR REGULATION S
BOOK-ENTRY CERTIFICATE DURING RESTRICTED PERIOD
JPMorgan Chase Bank, National Association
as Certificate Registrar
0000 Xxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: Global Debt - JPMorgan 2004-C3
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Real Estate Structured Finance - Securitization Group
Re: Transfer of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2004-C3,
Class_[__]
Ladies and Gentlemen:
This certificate is delivered pursuant to Section 5.02(b) of the
Pooling and Servicing Agreement, dated December 1, 2004 (the "Pooling and
Servicing Agreement"), by and among X.X. Xxxxxx Chase Commercial Mortgage
Securities Corp., as Depositor, Midland Loan Services, Inc., as Master Servicer,
X.X. Xxxxxx Company, Inc., as Special Servicer, Xxxxx Fargo Bank, N.A., as
Trustee, and JPMorgan Chase Bank, National Association, as Paying Agent, on
behalf of the holders of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2004-C3 in connection with
the transfer by _______________ of a beneficial interest of $___________
[Certificate Balance] [Notional Amount] in a Book-Entry Certificate during the
Restricted Period to the undersigned (the "Transferee"). The Transferee desires
to beneficially own such transferred interest in the form of the Regulation S
Book-Entry Certificate. Capitalized terms used but not defined herein shall have
the meanings given to them in the Pooling and Servicing Agreement.
In connection with such transfer, the Transferee does hereby certify
that it is not a "U.S. Person" (within the meaning of Rule 902 Regulation S
under the Securities Act of 1933, as amended). This certificate and the
statements contained herein are made for your benefit and the benefit of the
Depositor, the Trustee, the Paying Agent, the Master Servicer and the Special
Servicer.
[Insert Name of Transferor]
By:____________________________________
Name:
Title:
Dated:
EXHIBIT Q
FORM CERTIFICATION TO BE
PROVIDED WITH FORM 10-K
CERTIFICATION
X.X.Xxxxxx Chase Commercial Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates
Series 2004-C3 (the "Trust")
I, [_____________], the President and Chief Executive Officer of
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp., the depositor into
the above-referenced Trust, certify that:
1. I have reviewed this annual report on Form 10-K, and all reports on Form
8-K containing distribution or servicing reports filed in respect of
periods included in the year covered by this annual report, of the Trust;
2. Based on my knowledge, the information in these reports, taken as a whole,
does not contain any untrue statement of a material fact or omit to state
a material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading as of
the last day of the period covered by this annual report;
3. Based on my knowledge, the distribution or servicing information required
to be provided to the paying agent by the master servicer and the special
servicer under the pooling and servicing agreement for inclusion in these
reports is included in these reports;
4. Based on my knowledge and upon the annual compliance statement included in
this annual report and required to be delivered to the paying agent in
accordance with the terms of the pooling and servicing agreement, and
except as disclosed in this annual report, the master servicer and the
special servicer have fulfilled their obligations under the pooling and
servicing agreement; and
5. This annual report discloses all significant deficiencies relating to the
master servicer's or special servicer's compliance with the minimum
servicing standards based upon the report provided by an independent
public accountant, after conducting a review in compliance with the
Uniform Single Attestation Program for Mortgage Bankers or similar
procedure, as set forth in the pooling and servicing agreement, that is
included in this annual report.
In giving the certifications above, I have reasonably relied on information
provided to me by the following unaffiliated parties: [_____].
Date: _________________________
_________________________________________
President and Chief Executive Officer
X.X. Xxxxxx Chase Commercial Mortgage
Securities Corp.
EXHIBIT R-1
FORM OF CERTIFICATION TO BE
PROVIDED TO DEPOSITOR BY PAYING AGENT
CERTIFICATION
X.X.Xxxxxx Xxxxx Commercial Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates
Series 2004-C3 (the "Trust")
I, [identify the certifying individual], a [title] of JPMorgan Chase
Bank, National Association, certify to X.X. Xxxxxx Xxxxx Commercial Mortgage
Securities Corp. and its officers, directors and affiliates, and with the
knowledge and intent that they will rely upon this certification, that:
1. I have reviewed the annual report on Form 10-K for the fiscal year 2004,
and all reports on Form 8-K containing distribution or servicing reports
filed in respect of periods included in the year covered by that annual
report, of the Trust;
2. Based on my knowledge, the distribution information in these reports,
taken as a whole, does not contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements made, in
light of the circumstances under which such statements were made, not
misleading as of the last day of the period covered by that annual report;
and
3. Based on my knowledge, the distribution or servicing information provided
to the paying agent by the master servicer under the pooling and servicing
agreement for inclusion in these reports is included in these reports.
Date: _________________________
___________________________________
[Title]
JPMorgan Chase Bank, National
Association
EXHIBIT R-2
FORM OF CERTIFICATION TO BE PROVIDED TO DEPOSITOR
BY THE MASTER SERVICER
CERTIFICATION
Re: X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp, Commercial
Mortgage Pass-Through Certificates, Series 2004-C3 (the "Trust"),
issued pursuant to that certain Pooling and Servicing Agreement,
dated as of December 1, 2004 (the "Pooling and Servicing
Agreement"), by and among X.X. Xxxxxx Chase Commercial Mortgage
Securities Corp, as depositor (the "Depositor"), Midland Loan
Services, Inc., as master servicer (the "Master Servicer"), X.X.
Xxxxxx Company, Inc. and as special servicer (the "Special
Servicer"), Xxxxx Fargo Bank N.A., as trustee (the "Trustee") and
JPMorgan Chase Bank, National Association as paying agent (the
"Paying Agent")
I, [identify the certifying individual], a [title] of Midland
Loan Services, Inc., on behalf of Midland Loan Services, Inc., certify to
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp. and its officers,
directors and affiliates, and with the knowledge and intent that they will
rely upon this certification, that:
1. Based on my knowledge and the statements made in the
corresponding certificate of the Special Servicer pursuant to Section 4.02(e) of
the Pooling and Servicing Agreement, a copy of which is attached hereto as
Exhibit "A", all reports required to be submitted by the Master Servicer to the
Trustee and the Paying Agent under the Pooling and Servicing Agreement (the
"Servicing Reports") for inclusion in the annual report on Form 10-K for the
fiscal year 20__ of the Trust and all reports on Form 8-K containing
distribution or servicing reports filed in respect of periods included in the
year covered by such annual report have been submitted to the Trustee and the
Paying Agent;
2. Based on my knowledge and the statements made in the
corresponding certificate of the Special Servicer pursuant to Section 4.02(e) of
the Pooling and Servicing Agreement, a copy of which is attached hereto as
Exhibit "A", the information contained in the Servicing Reports, taken as a
whole, does not contain any untrue statement of a material facts or omit to
state a material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading as of
December 31, 20__;
3. I am responsible for reviewing the activities performed by the
Master Servicer under the Pooling and Servicing Agreement and based upon my
knowledge and the annual compliance review required under Section 3.13 of the
Pooling and Servicing Agreement with respect to the Master Servicer, and except
as disclosed in the annual officer's certificate required under Section 3.13 of
the Pooling and Servicing Agreement, the Master Servicer has fulfilled its
obligations under the Pooling and Servicing Agreement; and
4. The report of the Master Servicer's certified public
accountants required under Section 3.14 of the Pooling and Servicing Agreement
discloses all significant deficiencies relating to the compliance of the Master
Servicer with the minimum servicing standards in accordance with a review
conducted in compliance with the Uniform Single Attestation Program for Mortgage
Bankers or similar standard as set forth in the Pooling and Servicing Agreement.
Date: _________________________
MIDLAND LOAN SERVICES, INC.
By:____________________________
[Name]
[Title]
EXHIBIT R-3
FORM OF CERTIFICATION TO BE
PROVIDED TO DEPOSITOR BY SPECIAL SERVICER
CERTIFICATION
X.X.Xxxxxx Chase Commercial Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates
Series 2004-C3 (the "Certificates")
I, [identify the certifying individual], a [title] of X.X. Xxxxxx
Company, Inc., certify to X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.
and their officers, directors and affiliates, and with the knowledge and intent
that they will rely upon this certification in delivering the Certification
required by the pooling and servicing agreement relating to the Certificates
(capitalized terms used herein without definition shall have the meanings
assigned to such terms in the pooling and servicing agreement), that:
1. I have reviewed the servicing reports or information relating to the trust
fund delivered by the Special Servicer to the Master Servicer covering the
fiscal year 2004;
2. Based on my knowledge, the servicing information in these reports
delivered by the Special Servicer, taken as a whole, does not contain any
untrue statement of a material fact or omit to state a material fact
necessary to make the statements made, in light of the circumstances under
which such statements were made, not misleading as of the last day of the
period covered by these servicing reports;
3. Based on my knowledge, the servicing information required to be provided
to the Master Servicer by the Special Servicer under the pooling and
servicing agreement for inclusion in the reports to be filed by the Paying
Agent is included in the servicing reports delivered by the Special
Servicer to the Master Servicer;
4. I am responsible for reviewing the activities performed by the Special
Servicer under the pooling and servicing agreement and based upon my
knowledge and the annual compliance review required under Section 3.13 of
the pooling and servicing agreement with respect to the Special Servicer,
and except as disclosed in the compliance certificate delivered by the
Special Servicer under Section 3.13 of the pooling and servicing
agreement, the Special Servicer has fulfilled its obligations under the
pooling and servicing agreement in all material respects in the year to
which such review applies; and
5. The accountant's statement delivered pursuant to Section 3.14 of the
pooling and servicing agreement discloses all significant deficiencies
relating to the Special Servicer's compliance with the minimum servicing
standards based upon the report provided by an independent public
accountant, after conducting a review in compliance with the Uniform
Single Attestation Program for Mortgage Bankers or similar procedure, as
set forth in the pooling and servicing agreement.
Date: _________________________
________________________________________
[Title]
X.X. Xxxxxx Company, Inc.
EXHIBIT S
INITIAL COMPANION HOLDERS
JPMorgan Chase Bank, National Association shall be the initial Companion Holder
for the 000 Xxxx Xxxxxx Xxxxx Companion Loan. CBA Mezzanine Capital Finance, LLC
shall be the initial Companion Holder for the Moorings at Mesa Cove Apartments
Companion Loan.
EXHIBIT T
FORM OF
NOTICE AND CERTIFICATION
REGARDING DEFEASANCE OF MORTGAGE LOAN
To: Standard & Poor's Ratings Services
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Commercial Mortgage Surveillance
From: Midland Loan Services, Inc., in its capacity as Master
Servicer (the "Master Servicer") under the Pooling and
Servicing Agreement dated as of December 1, 2004 (the
"Pooling and Servicing Agreement"), among the Master
Servicer, Xxxxx Fargo Bank, N.A., as Trustee, and others.
Date: _________, 20___
Re: X.X. Xxxxxx Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series
2004-C3
Mortgage Loan (the "Mortgage Loan") identified by loan
number _____ on the Mortgage Loan Schedule attached to the
Pooling and Servicing Agreement and heretofore secured by
the Mortgaged Properties identified on the Mortgage Loan
Schedule by the following names:____________________
____________________
Reference is made to the Pooling and Servicing Agreement described
above. Capitalized terms used but not defined herein have the meanings assigned
to such terms in the Pooling and Servicing Agreement.
As Master Servicer under the Pooling and Servicing Agreement, we
hereby: (a) 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 entire principal balance of the
Mortgage Loan; or
____ a partial defeasance of a portion of the principal balance of
the Mortgage Loan that represents and, an allocated loan amount of
$____________ or _______% of the entire principal balance of the
Mortgage Loan;
(b) Certify that each of the following is true, subject to those
exceptions set forth with explanatory notes on Exhibit A hereto, which
exceptions the Master Servicer has determined, consistent with the Servicing
Standards, will have no material adverse effect on the Mortgage Loan or the
defeasance transaction:
(i) 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.
(ii) The defeasance was consummated on __________, 20__.
(iii) 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 S&P, (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.
(iv) The Master Servicer received an opinion of counsel (from
counsel approved by the Master Servicer in accordance with the Servicing
Standard) that the defeasance will not result in an Adverse REMIC Event.
(v) The Master Servicer determined that the defeasance collateral
will be owned by an entity (the "Defeasance Obligor") that is 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.
(vi) The Master Servicer received written confirmation of the
crediting 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 a securities intermediary and has
been pledged to the Trustee.
(vii) The agreements executed in connection with the defeasance (i)
grant control of the pledged securities account to Trustee, (ii) require
the securities intermediary to make the scheduled payments on the Mortgage
Loan from the proceeds of the defeasance collateral directly to the Master
Servicer's collection account in the amounts and on the dates specified in
the Mortgage Loan documents or, in a partial defeasance, the portion of
such scheduled payments attributed to the allocated loan amount for the
real property defeased, increased by any defeasance premium specified in
the Mortgage Loan documents (the "Scheduled Payments"), (iii) permit
reinvestment of proceeds of the defeasance collateral only in Permitted
Investments (as defined in the S&P Criteria), (iv) permit release of
surplus defeasance collateral and earnings on reinvestment from the
pledged securities account only after the Mortgage Loan has been paid in
full, if any such release is permitted, (v) prohibit transfers by the
Defeasance Obligor of the defeasance collateral and subordinate liens
against the defeasance collateral, and (vi) provide for payment from
sources other than the defeasance collateral or other assets of the
Defeasance Obligor of all fees and expenses of the securities intermediary
for administering the defeasance and the securities account and all fees
and expenses of maintaining the existence of the Defeasance Obligor.
(viii) The Master Servicer received written confirmation from a firm
of independent certified public accountants, who were approved by the
Master Servicer in accordance with the Servicing Standard stating that (i)
revenues from 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.
(ix) The Mortgage Loan is not among the ten (10) largest loans in
the pool. The entire principal balance of the Mortgage Loan as of the date
of defeasance was less than both $[______] and five percent of pool
balance, which is less than [__]% of the aggregate Certificate Balance of
the Certificates as of the date of the most recent Trustee's Distribution
Date Statement received by us (the "Current Report").
(x) [The Master Servicer has received opinions of counsel stating
that the Trustee possesses a valid, perfected first priority security
interest in the defeasance collateral and that the documents executed in
connection with the defeasance are enforceable in accordance with their
respective terms.]
(xi) 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.
(c) 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.
(d) Certify that the individual under whose hand the Master Servicer
has caused this Notice and Certification to be executed did constitute a
Servicing Officer as of the date of the defeasance described above.
(e) Agree to provide copies of all items listed in Exhibit B to you
upon request.
IN WITNESS WHEREOF, the Master Servicer has caused this Notice and
Certification to be executed as of the date captioned above.
MIDLAND LOAN SERVICES, INC.
By: __________________________________
Name:
Title:
EXHIBIT U
INFORMATION REQUEST FROM CERTIFICATEHOLDER, BENEFICIAL OWNER OR
PROSPECTIVE PURCHASER
[Date]
JPMorgan Chase Bank, National Association
as Paying Agent
0 Xxx Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: JPMorgan 2004-C3
Re: X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2004-C3
Pursuant to the Pooling and Servicing Agreement, dated as of
December 1, 2004 (the "Agreement"), by and among X.X. Xxxxxx Chase Commercial
Mortgage Securities Corp., as Depositor, Midland Loan Services, Inc., as Master
Servicer, X.X. Xxxxxx Company, Inc., as Special Servicer, Xxxxx Fargo Bank,
N.A., as Trustee, and JPMorgan Chase Bank, National Association, as Paying
Agent, with respect to the X.X. Xxxxxx Xxxxx Commercial Mortgage Securities
Corp., Commercial Mortgage Pass-Through Certificates, Series 2004-C3 (the
"Certificates"), the undersigned hereby certifies and agrees as follows:
1. The undersigned is a [Holder] [Certificate Owner] [prospective
purchaser] of $___________ aggregate [Certificate Balance/Notional Amount] of
the Class ____ Certificates.
2. The undersigned is requesting access to the information (the
"Information") on the Paying Agent's Internet Website pursuant to Section 4.02
of the Agreement.
3. In consideration of the Paying Agent'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 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 is
contemplating the purchase of any Certificate, but only if such person or entity
confirms in writing such 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 Certificate pursuant
to Section 5 of the Securities Act or under any other applicable law.
Capitalized terms not defined herein shall have the same meaning
ascribed to them in the Agreement.
IN WITNESS WHEREOF, the undersigned has caused its name to be signed
hereto by its duly authorized officer, as of the day and year written above.
[HOLDER] [CERTIFICATE OWNER]
[PROSPECTIVE PURCHASER]
By:____________________________________
Name:
Title:
Telephone No.:
EXHIBIT V
TRUSTEE CERTIFICATION/EXCEPTION REPORT
[DATE]
To the Persons Listed on the attached Schedule A
Re: X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2004-C3
Ladies and Gentlemen:
In accordance with Section 2.02 of the Pooling Servicing Agreement,
dated as of December 1, 2004 (the "Agreement"), by and among X.X. Xxxxxx Xxxxx
Commercial Mortgage Securities Corp., as Depositor, Midland Loan Services, Inc.,
as Master Servicer, X.X. Xxxxxx Company, Inc., as Special Servicer, Xxxxx Fargo
Bank, N.A., as Trustee, and JPMorgan Chase Bank, National Association, as Paying
Agent, the undersigned, as Trustee, hereby certifies that, except as noted on
the attached Trustee Exception Report, as to each Mortgage Loan listed in the
Mortgage Loan Schedule (other than any Mortgage Loan paid in full or for which a
Liquidation Event has occurred) the Trustee has, subject to Section 2.02(e) of
the Pooling and Servicing Agreement, reviewed the documents delivered to it
pursuant to Section 2.01 of the Pooling and Servicing Agreement and has
determined that (i) all documents specified in clauses (i) through (v), (ix)
through (xii) and (xvi) (or, with respect to clause (xvi), a copy of such letter
of credit and the required officer's certificate), if any, of the definition of
"Mortgage File," as applicable, are in its possession, (ii) the foregoing
documents delivered or caused to be delivered by the Mortgage Loan Sellers have
been reviewed by it or by a Custodian on its behalf and appear regular on their
face and appear to be executed and to relate to such Mortgage Loan, and (iii)
based on such examination and only as to the foregoing documents, the
information set forth in the Mortgage Loan Schedule with respect to the items
specified in clauses (iv), (vi) and (viii)(c) in the definition of "Mortgage
Loan Schedule" is correct.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the above-captioned Pooling and Servicing
Agreement.
XXXXX FARGO BANK, N.A.,
as Trustee
By:_____________________________
Name:
Title:
TRUSTEE EXCEPTION REPORT
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.
December 29, 2004 Commercial Mortgage Pass-Through Certificates, Series 2004-C3 Exception Report for Close
Investor
Collateral ID Property Name Pool ID ID Loan Amount DocType Exception
-----------------------------------------------------------------------------------------------------------------------------------
152004C3 000 Xxxx Xxxxxx Xxxxx 0000X0 XXXXX 75,000,000.00 MORT 20
152004C3 000 Xxxx Xxxxxx Xxxxx 0000X0 XXXXX 75,000,000.00 MORT 20
162004C3 Crossroads Shopping Center 2004C3 JPMCB 64,000,000.00 MORT 20
182004C3 Broadway Marketplace 2004C3 JPMCB 42,000,000.00 MORT 20
222004C3 Moorings at Mesa Cove Apartments 2004C3 JPMCB 22,500,000.00 MORT 20
232004C3 Union Square Shopping Center 2004C3 JPMCB 22,000,000.00 MORT 20
262004C3 Cambridge Court Phase I & II 2004C3 JPMCB 21,500,000.00 MORT 20
272004C3 Del Coronado Apartments 2004C3 JPMCB 20,600,000.00 MORT 20
292004C3 Woodcliff Community Townhomes 2004C3 JPMCB 20,000,000.00 MORT 20
342004C3 Xxxxxx Xxxxxxxx Xxxxxxxxxx 0000X0 XXXXX 15,650,000.00 MORT 20
362004C3 Willowbrook Power Center 2004C3 JPMCB 15,500,000.00 MORT 20
392004C3 California Village Apartments 2004C3 JPMCB 15,000,000.00 MORT 20
402004C3 Verizon Wireless Call Center 2004C3 JPMCB 14,600,000.00 MORT 20
422004C3 Fayette Place Shopping Center 2004C3 JPMCB 14,400,000.00 MORT 20
462004C3 Xxxxxxx Tower GSA Office 2004C3 JPMCB 12,000,000.00 MORT 20
542004C3 T-Mobile - Xxxxxx XX 0000X0 JPMCB 10,460,000.00 MORT 20
612004C3 Xxxxxxxx Crossing 2004C3 JPMCB 8,250,000.00 MORT 20
622004C3 Xxxxxxxx Lakes Town Center 2004C3 JPMCB 8,100,000.00 MORT 20
632004C3 Woodlyn Shopping Center 2004C3 JPMCB 8,100,000.00 MORT 20
662004C3 Bren Mar Apartments 2004C3 JPMCB 7,500,000.00 MORT 20
672004C3 Xxxx Self Storage - Mahwah 2004C3 JPMCB 7,500,000.00 MORT 20
692004C3 Wichita Square Shopping Center 2004C3 JPMCB 7,350,000.00 MORT 20
722004C3 S.A.I.C. Building 2004C3 JPMCB 6,600,000.00 MORT 20
732004C3 Wildwood Village Apartments 2004C3 JPMCB 6,600,000.00 MORT 20
752004C3 Xxxxxxxxxx Xxxxxxx Xxxxxxxx Xxxxxx-Xxx Xxxx Xxxx. 0000X0 JPMCB 6,300,000.00 MORT 20
762004C3 CY-Fair Town Center 2004C3 JPMCB 6,125,000.00 MORT 20
772004C3 Enterprise Park 2004C3 JPMCB 6,000,000.00 MORT 20
792004C3 Xxxxxxxx Xxxxxxx Xxxxxxxxxx 0000X0 XXXXX 5,950,000.00 MORT 20
802004C3 Shops at Whitestone 2004C3 JPMCB 5,725,000.00 MORT 20
832004C3 Cornell Corners 2004C3 JPMCB 5,250,000.00 MORT 20
842004C3 0 Xxxxxxxxxx Xxxxxx 0000X0 XXXXX 5,200,000.00 MORT 20
872004C3 Wall-Price Keller Self Storage 2004C3 JPMCB 5,050,000.00 MORT 20
892004C3 Carrollton All Storage 2004C3 JPMCB 5,000,000.00 MORT 20
912004C3 Beaumont Crossroads 2004C3 JPMCB 4,900,000.00 MORT 20
922004C3 Xxxx Xxxxxxxxx Xxxxx 0000X0 XXXXX 4,900,000.00 MORT 20
952004C3 Xxxxx Creek Center 2004C3 JPMCB 4,400,000.00 MORT 20
962004C3 Sterling Self Storage 2004C3 JPMCB 4,050,000.00 MORT 20
982004C3 CJS Corporate Center 2004C3 JPMCB 4,000,000.00 MORT 20
992004C3 Greenridge Center 2004C3 JPMCB 4,000,000.00 MORT 20
0000000X0 XXXX Self Storage 2004C3 JPMCB 4,000,000.00 MORT 20
1042004C3 Centre at South Shore Harbour I 2004C3 JPMCB 3,950,000.00 MORT 20
1052004C3 Xxxxxxxxx Xxxx Xxxxxxxxxx 0000X0 XXXXX 3,900,000.00 MORT 20
1062004C3 Fort Xxxx Self Storage 2004C3 JPMCB 3,800,000.00 MORT 20
1092004C3 Xxxxxxxxxx Xxxxxxxx Xxxxx 0000X0 XXXXX 3,600,000.00 MORT 20
1122004C3 Marne Associates Shopping Center 2004C3 JPMCB 3,400,000.00 MORT 20
1142004C3 Oak Tree Center 2004C3 JPMCB 3,100,000.00 MORT 20
1152004C3 Xxxxxx Xxxxxxx Xxxxxxxx 0000X0 XXXXX 3,300,000.00 MORT 20
1172004C3 Highland Park Apartment Portfolio 2004C3 JPMCB 3,000,000.00 MORT 20
1182004C3 Romark Center 2004C3 JPMCB 3,000,000.00 MORT 20
1192004C3 Storage, LLC 2004C3 JPMCB 3,000,000.00 MORT 20
1242004C3 Xxx Xxxxxx Xxxxx 0000X0 XXXXX 2,672,000.00 MORT 20
1252004C3 Myrtle Avenue Storage 2004C3 JPMCB 2,630,000.00 MORT 20
1272004C3 Xxxxxx Xxxx Xxxxx 0000X0 XXXXX 2,580,000.00 MORT 20
0000000X0 000 Xxxx 000xx Xxxxxx 0000X0 XXXXX 2,500,000.00 MORT 20
1302004C3 000 Xxxx Xxxx Xxxxxx 0000X0 XXXXX 2,400,000.00 MORT 20
1312004C3 Forest Crossing 2004C3 JPMCB 2,250,000.00 MORT 20
1372004C3 000 Xxxxx Xxxxx Xxxxx Xxxx 0000X0 XXXXX 2,100,000.00 MORT 20
1382004C3 Kittyhawk Apartments 2004C3 JPMCB 2,050,000.00 MORT 20
1392004C3 Xxxx Xxxxxx Xxxxxxxxxx 0000X0 XXXXX 2,020,000.00 MORT 20
1402004C3 Country Club Estates 2004C3 JPMCB 2,000,000.00 MORT 20
1412004C3 Xxxxxxxxx Xxxxx 0000X0 XXXXX 1,950,000.00 MORT 20
1432004C3 Xxxxxxxxxxx Xxxxx 0000X0 XXXXX 1,800,000.00 MORT 20
1462004C3 00 X. 00xx Xxxxxx 0000X0 XXXXX 1,750,000.00 MORT 20
0000000X0 640 Xxxx Xxxxxx 2004C3 JPMCB 1,450,000.00 MORT 20
972004C3 Xxxxxxxxx Court Apartments 2004C3 NCCI 4,040,000.00 ASN1 20
1132004C3 Xxxxx Industries- 00 Xxxxxx Xxx and 18 and 00 Xxxxx Xxx 2004C3 NCCI 3,376,000.00 ASN1 20
1332004C3 Xxxxx House Apartments 2004C3 NCCI 2,160,000.00 ASN1 20
1392004C3 Xxxxx Industries- 4 and 00X Xxxxxx Xxx 0000X0 XXXX 1,900,000.00 ASN1 20
852004C3 Sandalwood Mobile Home Park 2004C3 NCCI 5,150,000.00 COM1 20
192004C3 Silo Court Apartments 2004C3 NCCI 28,000,000.00 COM1 68
702004C3 Grande Pointe Apartments 2004C3 NCCI 7,125,000.00 COM1 68
12004C3 Xxxxxxxx Xxxxx 0000X0 NCCI 31,000,000.00 MORT 20
22004C3 Xxxxxx Xxxxx Xxxxx 0000X0 NCCI 22,500,000.00 MORT 20
32004C3 Crossroads Centre 2004C3 NCCI 18,200,000.00 MORT 20
42004C3 Tops Plaza - Union Road 2004C3 NCCI 14,500,000.00 MORT 20
52004C3 Tops Xxxxx - Xxxxxxxxx 0000X0 NCCI 10,750,000.00 MORT 20
62004C3 Tops Plaza - Xxxxxxxx Road 2004C3 NCCI 10,420,000.00 MORT 20
72004C3 Chillicothe Plaza 2004C3 NCCI 9,000,000.00 MORT 20
82004C3 Xxxxxx Xxxxx 0000X0 NCCI 8,900,000.00 MORT 20
112004C3 Northcreek Commons 2004C3 NCCI 5,700,000.00 MORT 20
122004C3 Tops Plaza - Xxxxx 2004C3 NCCI 5,100,000.00 MORT 20
132004C3 Xxxxxx Xxxxx 0000X0 NCCI 2,300,000.00 MORT 20
142004C3 Las Olas Centre 2004C3 NCCI 98,980,000.00 MORT 20
202004C3 Lakeshore Club Apartments 2004C3 NCCI 28,000,000.00 MORT 20
212004C3 Champaign Office/Retail Portfolio 2004C3 NCCI 26,000,000.00 MORT 20
252004C3 Jefferson at Xx Xxxxxxxx 2004C3 NCCI 21,831,000.00 MORT 20
282004C3 Time Square 2004C3 NCCI 20,400,000.00 MORT 20
322004C3 The Plaza at Sawmill 2004C3 NCCI 16,000,000.00 MORT 20
352004C3 Xxxxxxxx Xxxx, 0000X0 NCCI 15,600,000.00 MORT 20
412004C3 Pioneer Square 2004C3 NCCI 14,500,000.00 MORT 20
452004C3 Largo 95 2004C3 NCCI 14,000,000.00 MORT 20
512004C3 Southwood Manor MHP 2004C3 NCCI 10,985,000.00 MORT 20
522004C3 Xxxxxxx Xxxx XXX 0000X0 NCCI 10,820,000.00 MORT 20
642004C3 Xxxxxxxxxx/XXX Xxxxxxxx 0000X0 NCCI 8,000,000.00 MORT 20
682004C3 Xxxxxxxxx 0000X0 NCCI 24,000,000.00 MORT 20
812004C3 Xxxxxxx Xxxxx 0000X0 NCCI 5,600,000.00 MORT 20
822004C3 000 Xxxx 0xx Xxxxxx 0000X0 NCCI 5,300,000.00 MORT 20
852004C3 Sandalwood Mobile Home Park 2004C3 NCCI 5,150,000.00 MORT 20
862004C3 11211 Katy Freeway 2004C3 NCCI 5,100,000.00 MORT 20
932004C3 Xxxxxx Xxxxxx Xxxxxxxxxx 0000X0 NCCI 4,500,000.00 MORT 20
972004C3 Xxxxxxxxx Court Apartments 2004C3 NCCI 4,040,000.00 MORT 20
1002004C3 Walgreen's - Xxxxxxxx, XX 0000X0 NCCI 4,000,000.00 MORT 20
1112004C3 0000 XXXX Xxxx 0000X0 XXXX 3,500,000.00 MORT 20
1132004C3 Xxxxx Industries- 00 Xxxxxx Xxx and 18 and 00 Xxxxx Xxx 2004C3 NCCI 3,376,000.00 MORT 20
1162004C3 Valencia Estates MHP 2004C3 NCCI 3,060,000.00 MORT 20
1222004C3 Eckerd Drugstore/Corning 2004C3 NCCI 2,825,000.00 MORT 20
1232004C3 Baseline Power Shops 2004C3 NCCI 2,720,000.00 MORT 20
1302004C3 Savannah Pines 2004C3 NCCI 2,230,000.00 MORT 20
1312004C3 Apple Village MHC 2004C3 NCCI 2,220,000.00 MORT 20
1332004C3 Xxxxx House Apartments 2004C3 NCCI 2,160,000.00 MORT 20
1392004C3 Xxxxx Industries- 4 and 00X Xxxxxx Xxx 0000X0 XXXX 1,900,000.00 MORT 20
0000000X0 Amarillo Ranch MHP 2004C3 NCCI 1,750,000.00 MORT 20
1492004C3 Xxxxx MHP 2004C3 NCCI 975,000.00 MORT 20
192004C3 Silo Court Apartments 2004C3 NCCI 28,000,000.00 MORT 68
302004C3 Inland/Oswego Commons Shopping Center 2004C3 NCCI 19,262,100.00 MORT 68
702004C3 Grande Pointe Apartments 2004C3 NCCI 7,125,000.00 MORT 68
582004C3 Xxxxxxx Xxxxxxxxx 0000X0 NCCI 9,240,000.00 MORT 96
882004C3 Harvest Towne 2004C3 NCCI 5,005,000.00 MORT 96
1032004C3 Xxxxxx Xxxxxx, Xxxxxxxxxx, XX 0000X0 NCCI 3,960,000.00 MORT 96
1212004C3 Best Buy - Rock Hill 2004C3 NCCI 2,871,000.00 MORT 96
492004C3 Pinecrest Townhomes 2004C3 PNC 11,400,000.00 MORT 68
552004C3 TRW Automotive - Tech 4 2004C3 PNC 10,400,000.00 MORT 68
782004C3 Xxxxxxxxx Xxxxxx 0000X0 PNC 6,000,000.00 MORT 68
1012004C3 Linens 'N Things 2004C3 PNC 4,000,000.00 MORT 68
1202004C3 Xxxxxxxxxx Xxxxx Xxxxxxxxxx 0000X0 XXX 2,975,000.00 MORT 68
0000000X0 Xxxxxxxx Xxxxxxx 0000X0 PNC 1,800,000.00 MORT 68
1492004C3 Valley View Center 2004C3 PNC 1,600,000.00 MORT 68
1502004C3 Xxxxx Xxxxxxx Xxxxxxxxxx 0000X0 XXX 1,600,000.00 MORT 68
242004C3 Indian Hollow Apartments 2004C3 PNC 21,975,000.00 MORT 96
502004C3 000 X. Xxxxxxxx Xxxxxxxx 0000X0 XXX 11,088,000.00 MORT 96
17A2004C3 Everest - Xxxxx Xxxxxx 0000X0 PNC 0.00 MORT 96
17B2004C3 Everest - Chelmsford Flex R&D 2004C3 PNC 0.00 MORT 96
17C2004C3 Everest - Northwoods Business Park 2004C3 PNC 0.00 MORT 96
17E2004C3 Everest - Watertown Technology Park 2004C3 PNC 0.00 MORT 96
532004C3 Villas at Xxxxxx Ranch 2004C3 PNC 10,500,000.00 NOTE 13
532004C3 Villas at Xxxxxx Ranch 2004C3 PNC 10,500,000.00 NOTE 14
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.
December 29, 2004 Commercial Mortgage Pass-Through Certificates, Series 2004-C3 Exception Report for Close
Collateral ID Exception Description Notation
-----------------------------------------------------------------------------------------------------------------------------------
152004C3 UNRECORDED ORIGINAL CONSOL, AMENDED & RESTATED
152004C3 UNRECORDED ORIGINAL
162004C3 UNRECORDED ORIGINAL CROSSROADS II LLC & CROSSROADS JOINT VENTURE LLC TO JPMC
182004C3 UNRECORDED ORIGINAL 4 BORROWERS (SEE MEMO) TO JPMC
222004C3 UNRECORDED ORIGINAL @IMT MOORINGS LLC TO JPMC
232004C3 UNRECORDED ORIGINAL UNION SQUARE SHOPPING CENTER TO JPMC
262004C3 UNRECORDED ORIGINAL UNIVERSITY DEVELOPMENT CO, LLC TO JPMC
272004C3 UNRECORDED ORIGINAL IMT DEL CORONADO LLC TO JPMC
292004C3 UNRECORDED ORIGINAL @WOODCLIFF NORTH ASSOCIATES TO JPMC
342004C3 UNRECORDED ORIGINAL IMT RANCHO MURIETTA LLC TO JPMC
362004C3 UNRECORDED ORIGINAL
392004C3 UNRECORDED ORIGINAL TIMBERS ASSOCIATES LP TO JPMC
402004C3 UNRECORDED ORIGINAL 0000 XXXX XXXXX LLC TO JPMC
422004C3 UNRECORDED ORIGINAL FAYETTE PLACE IMPROVEMENTS TO JPMC
462004C3 UNRECORDED ORIGINAL SP PLAZA TO JPMC
542004C3 UNRECORDED ORIGINAL ACQUIPORT LENEXA LLC TO JPMC
612004C3 UNRECORDED ORIGINAL JMWM-XXXXXXXX LLC TO JPMC
622004C3 UNRECORDED ORIGINAL
632004C3 UNRECORDED ORIGINAL
662004C3 UNRECORDED ORIGINAL
672004C3 UNRECORDED ORIGINAL
692004C3 UNRECORDED ORIGINAL
722004C3 UNRECORDED ORIGINAL
732004C3 UNRECORDED ORIGINAL CROSSMARK PARTNERS TO JPMC
752004C3 UNRECORDED ORIGINAL LMR CILVERLAKE CCU TO JPMC
762004C3 UNRECORDED ORIGINAL
772004C3 UNRECORDED ORIGINAL
792004C3 UNRECORDED ORIGINAL
802004C3 UNRECORDED ORIGINAL WHITESTONE RETAIL LTD TO JPMC
832004C3 UNRECORDED ORIGINAL
842004C3 UNRECORDED ORIGINAL
872004C3 UNRECORDED ORIGINAL
892004C3 UNRECORDED ORIGINAL
912004C3 UNRECORDED ORIGINAL BEAUMONT CROSSROADS TO JPMC
922004C3 UNRECORDED ORIGINAL
952004C3 UNRECORDED ORIGINAL
962004C3 UNRECORDED ORIGINAL
982004C3 UNRECORDED ORIGINAL
992004C3 UNRECORDED ORIGINAL DMD GREENRIDGE GP INC TO JPMC
0000000X0 UNRECORDED ORIGINAL
1042004C3 UNRECORDED ORIGINAL 000 XXXXX XXXXX LTD TO JPMC
1052004C3 UNRECORDED ORIGINAL
1062004C3 UNRECORDED ORIGINAL
1092004C3 UNRECORDED ORIGINAL XXXX-XXXX INDUSTRIAL PARK TO JPMC
1122004C3 UNRECORDED ORIGINAL MARNE ASSOCIATES LLC TO JPMC
1142004C3 UNRECORDED ORIGINAL
1152004C3 UNRECORDED ORIGINAL
1172004C3 UNRECORDED ORIGINAL (A,B,C & D)
1182004C3 UNRECORDED ORIGINAL
1192004C3 UNRECORDED ORIGINAL STORAGE LLC TO JPMC
1242004C3 UNRECORDED ORIGINAL XXXXX NORTHJAX TO JPMC
1252004C3 UNRECORDED ORIGINAL
1272004C3 UNRECORDED ORIGINAL DK ENTERPRISES LLC TO JPMC
0000000X0 UNRECORDED ORIGINAL
1302004C3 UNRECORDED ORIGINAL
1312004C3 UNRECORDED ORIGINAL
1372004C3 UNRECORDED ORIGINAL GAP MORT & SECURITY AGREEMENT
1382004C3 UNRECORDED ORIGINAL KITTYHAWK APARTMENTS LLC TO JPMC
1392004C3 UNRECORDED ORIGINAL LUBBOCK STUDIOS LP TO JPMC
1402004C3 UNRECORDED ORIGINAL COUNTRY CLUB ESTATES MANUFACTURED HOUSING COMMUNITY TO JPMC
1412004C3 UNRECORDED ORIGINAL XXXXXX CAPITAL INVESTMENTS TO JPMC
1432004C3 UNRECORDED ORIGINAL SH-YO ENTERPRISES TO JPMC
1462004C3 UNRECORDED ORIGINAL XXXXX XXXX LLC TO JPMC
0000000X0 UNRECORDED ORIGINAL XXXXXX XXXXXX, LTD TO JPMC
972004C3 UNRECORDED ORIGINAL ARBOR TO NCCI
1132004C3 UNRECORDED ORIGINAL ARBOR REALTY TO NCCI
1332004C3 UNRECORDED ORIGINAL ARCS TO NCCI
1392004C3 UNRECORDED ORIGINAL ARBOR REALTY TO NCCI
852004C3 UNRECORDED ORIGINAL ASN1 & ASL1; ARCS TO NCCI
192004C3 CERTIFIED TRUE COPY ASN1 & ASL1; UNION CAPITAL TO NCCI
702004C3 CERTIFIED TRUE COPY ASN1 & ASL1; UNION CAPITAL TO NCCI
12004C3 UNRECORDED ORIGINAL
22004C3 UNRECORDED ORIGINAL
32004C3 UNRECORDED ORIGINAL
42004C3 UNRECORDED ORIGINAL
52004C3 UNRECORDED ORIGINAL
62004C3 UNRECORDED ORIGINAL DDR XXXXXXXX STOP TO NCCI
72004C3 UNRECORDED ORIGINAL DDR CHILLICOTHE TO NCCI
82004C3 UNRECORDED ORIGINAL
112004C3 UNRECORDED ORIGINAL
122004C3 UNRECORDED ORIGINAL DDR XXXXX PLAZA TO NCCI
132004C3 UNRECORDED ORIGINAL DDR OXFORD PLACE TO NCCI
142004C3 UNRECORDED ORIGINAL ELO ASSOCIATES II TO NCCI (AMENDED & RESTATED)
202004C3 UNRECORDED ORIGINAL
212004C3 UNRECORDED ORIGINAL
252004C3 UNRECORDED ORIGINAL
282004C3 UNRECORDED ORIGINAL
322004C3 UNRECORDED ORIGINAL
352004C3 UNRECORDED ORIGINAL
412004C3 UNRECORDED ORIGINAL
452004C3 UNRECORDED ORIGINAL GUARDIAN FUND II - LARGO 95 TO NCCI (PURCHASE MONEY)
512004C3 UNRECORDED ORIGINAL
522004C3 UNRECORDED ORIGINAL
642004C3 UNRECORDED ORIGINAL
682004C3 UNRECORDED ORIGINAL
812004C3 UNRECORDED ORIGINAL
822004C3 UNRECORDED ORIGINAL
852004C3 UNRECORDED ORIGINAL SANDALWOOD MOBILE HOME PARK TO ARCS
862004C3 UNRECORDED ORIGINAL
932004C3 UNRECORDED ORIGINAL
972004C3 UNRECORDED ORIGINAL
1002004C3 UNRECORDED ORIGINAL
1112004C3 UNRECORDED ORIGINAL
1132004C3 UNRECORDED ORIGINAL AMENDED, RESTATED, CONSOLID.: EMAK HOLDING TO ARBOR REALTY
1162004C3 UNRECORDED ORIGINAL
1222004C3 UNRECORDED ORIGINAL
1232004C3 UNRECORDED ORIGINAL
1302004C3 UNRECORDED ORIGINAL
1312004C3 UNRECORDED ORIGINAL
1332004C3 UNRECORDED ORIGINAL
1392004C3 UNRECORDED ORIGINAL AMENDED, RESTATED, & CONSOLID.: JCDE ASSOC. TO ARBOR REALTY
0000000X0 UNRECORDED ORIGINAL
1492004C3 UNRECORDED ORIGINAL
192004C3 CERTIFIED TRUE COPY
302004C3 CERTIFIED TRUE COPY
702004C3 CERTIFIED TRUE COPY
582004C3 DOCUMENT IS AN UNRECORDED COPY, NEED RECORDED COPY
882004C3 DOCUMENT IS AN UNRECORDED COPY, NEED RECORDED COPY
1032004C3 DOCUMENT IS AN UNRECORDED COPY, NEED RECORDED COPY
1212004C3 DOCUMENT IS AN UNRECORDED COPY, NEED RECORDED COPY
492004C3 CERTIFIED TRUE COPY
552004C3 CERTIFIED TRUE COPY
782004C3 CERTIFIED TRUE COPY
1012004C3 CERTIFIED TRUE COPY
1202004C3 CERTIFIED TRUE COPY
0000000X0 CERTIFIED TRUE COPY
1492004C3 CERTIFIED TRUE COPY
1502004C3 CERTIFIED TRUE COPY
242004C3 DOCUMENT IS AN UNRECORDED COPY, NEED RECORDED COPY
502004C3 DOCUMENT IS AN UNRECORDED COPY, NEED RECORDED COPY
17A2004C3 DOCUMENT IS AN UNRECORDED COPY, NEED RECORDED COPY
17B2004C3 DOCUMENT IS AN UNRECORDED COPY, NEED RECORDED COPY
17C2004C3 DOCUMENT IS AN UNRECORDED COPY, NEED RECORDED COPY
17E2004C3 DOCUMENT IS AN UNRECORDED COPY, NEED RECORDED COPY
532004C3 DATE OF LAST PAYMENT DOES NOT AGREE WITH SCHEDULE NOTE: 4.84% ;SCHD: 4.860%
532004C3 LOAN AMOUNT DOES NOT AGREE WITH SCHEDULE NOTE: $10,000,000.00 ;SCHD: $10,500,000.00
SCHEDULE A
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Midland Loan Services, Inc.
00000 Xxxxxx, Xxxxx 000
Xxxxxxxx Xxxx, Xxxxxx 00000
X.X. Xxxxxx Company, Inc.
0000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxxxx, Xxxxxxx 00000
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fitch, Inc.
Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
JPMorgan Chase Bank, National Association
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Nomura Credit & Capital, Inc.
2 World Financial Xxxxxx, Xxxxxxxx X
Xxx Xxxx, Xxx Xxxx 00000-0000
PNC Bank, National Association
10851 Xxxxxx, Xxxxx 000
Xxxxxxxx Xxxx, Xxxxxx 00000
EXHIBIT W
Monthly Additional Report on Recoveries and Reimbursements
Securitization Name
Advance Interest Reconciliation Report
As of
Determination Date
Property
Protection
P&I Advances T&I Advances Advances Advance Late Charges Net Advance
Loan # Property Name UPB Outstanding Outstanding Outstanding Interest Collected Interest
------ ------------- --- ------------ ------------ ----------- -------- ------------ -----------
______ _____________ ___ ____________ ____________ ___________ ________ ____________ ___________
______ _____________ ___ ____________ ____________ ___________ ________ ____________ ___________
______ _____________ ___ ____________ ____________ ___________ ________ ____________ ___________
______ _____________ ___ ____________ ____________ ___________ ________ ____________ ___________
______ _____________ ___ ____________ ____________ ___________ ________ ____________ ___________
______ _____________ ___ ____________ ____________ ___________ ________ ____________ ___________
______ _____________ ___ ____________ ____________ ___________ ________ ____________ ___________
______ _____________ ___ ____________ ____________ ___________ ________ ____________ ___________
EXHIBIT X
Realized Loss Form Prepared by Special Servicer and MasterServicer
--------------------------------------------------------------------------------
Portfolio Name Property Name:
Prospectus ID: City:
Servicer ID: State:
(applicable to Final Recovery Determination/Realized Loss) Property Type:
--------------------------------------------------------------------------------
Date: 4/15/2004
------------------------------------------------------------------------------------------------------------------------------------
Total Funds Received on Corrected Mortgage Loan and Specially Serviced Mortgage Loan:
Sales Proceeds or Payoff Proceeds --
Insurance Proceeds --
Suspense Balance --
Tax & Insurance Reserve Balance --
Other Reserve Balance --
Other Proceeds --
------
--
Less: Liquidation Expenses
Broker Fees --
Other Selling Expenses --
------
--
------
Proceeds available --
------
1) Amounts Due Servicers and Trustee:
Includes Current Period and Accrued Servicing Fees and Other Fees:
(Excludes items from Additional Trust Fund Expenses)
a Liquidation Fee to SS on SS loan --
b Workout Fee on Corrected Mtg. loan --
c Master Servicing Fees (prior period) --
d Special Servicing Fees --
e Trustee Fees --
f Other Fees --
g P & I Advances (net advanced) --
h Interest on Advances- P & I --
i T&I Advances --
j Interest on Advances- T&I --
k Servicing Advances --
l Interest on Advances-Servicing Advances --
Total 0.00
2) Amounts held back for future payment:
a Other Unpaid Fees and expenses --
b Other amounts --
Total --
3) Accrued interest (current period and prior interest shortfalls)
a Current Scheduled Interest (Gross) --
b Cumulative Aser Amount --
c Deemed non-recoverable interest or Advances (prior shortfall) --
d Deemed non-recoverable interest or Advances (paid from trust principal) --
e Other unpaid interest --
------
Total --
4) Additional Trust fund Expenses (prior interest shortfalls or principal losses)
a Special Servicing Fees --
b Work Out fees (Corrected Mortgage Loan) --
c Interest on Advances --
d Other expenses: (Inspection by SS, Environmental, legal etc.) --
e Unliquidated Advances (work-out delayed reimb.paid from trust-principal) --
f Deemed Non-Recoverable Principal Advances (paid from trust-Principal) --
g Deemed Non-Recoverable Servicing Advances (paid from trust-Principal) --
Total --
Total #1 through #4 - Liquidation Expenses --
------
Net Proceeds (Proceeds available less #1 thru #4) --
------
(Proceeds available for Principal Distribution) (If negative, no proceeds available for distribution)
Beginning Scheduled Principal Balance --
------
Realized Loss Calculation --
------
Realized Loss to Trust (per definition in PSA) --
------
====================================================================================================================================
If Realized LossClaculation > Beginning Scheduled Principal Balance (if positive number) --
(refer to PSA for allocation) (optional)
a Amounts allocated to Interest shortfall--Current Period --
b Amount applied to Interest shortfall or principal loss--Prior Period --
c Amount to Realized Loss > than STB, allocate to current period principal --
d Other method per PSA
--------------------------------------------------------------------------------------------------------------------------------
Additional Proceeds received after Final Recovery Determination/Realized Loss
Amounts distributed as reimbursement of Unfunded Principal Balance Reductions (prior Realized Losses) (optional)
Date Description Amount Class that received funds (optional)
------------- ------ ------------------------------------
New8 0
current period 0
------
subtotal Additional Proceeds 0
------------------------------------------------------------------------------------------------------------------------------------
Additional Expenses after Final Recovery Determination/Realized Loss allocated to Interest Shortfalls
Date Description Amount Class that received funds (optional)
------------- ------ ------------------------------------
New8 Legal expense 0
Current Period 0
------
subtotal Additional Expenses 0
Current Period Adjustment to Trust (Additional Proceeds less Additional Expenses) --
------
Cumulative Adjustment to Trust --
(positive number =proceeds available)
====================================================================================================================================
Adjusted Realized Loss
(should be used if PSA provides for this)
___________
___________
________________________________________________________________________________
Signature and Title of Servicing Officer Date
cc: Special Servicer, Master Servicer, Trustee,
attachment to Distribution Statement
SCHEDULE 1
Mortgage Loans Containing Additional Debt
Loan Number Property Name
----------------------- ---------------------------------
15 000 Xxxx Xxxxxx Xxxxx
00 Xxxxxxxx at Mesa Cove Apartments
SCHEDULE 2
Mortgage Loans which Initially Pay Interest Only
Loan Number Property Name
--------------------- ---------------------------------------------
0 Xxxxxxxx Xxxxx
0 Xxxxxx Xxxxx Plaza
3 Crossroads Centre
4 Tops Plaza - Union Road
5 Tops Xxxxx - Xxxxxxxxx
0 Xxxx Xxxxx - Xxxxxxxx Xxxx
7 Chillicothe Place
0 Xxxxxx Xxxxx
0 Xxxx Xxxxx - Xxxxxxx
10 Tops Plaza - Warsaw
00 Xxxxxxxxxx Xxxxxxx
00 Xxxx Xxxxx - Xx Xxx
00 Xxxxxx Xxxxx
00 Xxx Xxxx Xxxxxx
25 Jefferson at Xx Xxxxxxxx Xxxxxxxxxx
00 Xxx Xxxxxxxx Apartments
30 Oswego Commons
00 Xxxxxx Xxxxxxxx Xxxxxxxxxx
00 Xxxxxxxx Xxxxxxx Xxxx Center
68 South Xxxxxx Shopping Center
70 B&M - Grande Pointe
88 Harvest Towne Center
103 Xxxxxx Xxxxxx
121 Best Buy - Rock Hill
