efc12-544_ex41.htm


 







Exhibit 4.1

Form of Pooling and Servicing Agreement




 


MORGAN STANLEY CAPITAL I INC.,


as Depositor,


 


 


_______,


as Master Servicer,


 


_________,


as Special Servicer,


 


and


 


_______,


as Trustee, Paying Agent and Certificate Registrar.







 


 


POOLING AND SERVICING AGREEMENT


 


Dated as of _____, 20__




 


 


COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES


SERIES 20__-___


 


 


This form of Pooling and Servicing Agreement is representative of the form of pooling and servicing agreement that may typically be used in a particular transaction.  The provisions of the pooling and servicing agreement will vary from transaction to transaction, whether or not the provisions are bracketed in this form, to reflect the specific parties, the structure of the certificates, servicing provisions, asset pool, and other matters.


 




 




  





  











  











 


TABLE OF CONTENTS


 


Page


 


 





	
ARTICLE I


	  
	
DEFINITIONS


	
Section 1.1

	
Definitions

	
7


	
Section 1.2

	
Calculations Respecting Mortgage Loans

	
83


	
Section 1.3

	
Calculations Respecting Accrued Interest

	
84


	
Section 1.4

	
Interpretation

	
84


	
Section 1.5

	
ARD Loan

	
85


	  	  	  
	
ARTICLE II


	  	  	  
	
DECLARATION OF TRUST;


ISSUANCES OF CERTIFICATES


	  	  	  
	
Section 2.1

	
Conveyance of Mortgage Loans

	
86


	
Section 2.2

	
Acceptance by Trustee

	
88


	
Section 2.3

	
Repurchase of Mortgage Loans for Material Document Defects and Material Breaches of Representations and Warranties

	
90


	
Section 2.4

	
Representations and Warranties

	
96


	
Section 2.5

	
Conveyance of Interests

	
98


	  	  	  
	
ARTICLE III


	  	  	  
	
THE CERTIFICATES


	  	  	  
	
Section 3.1

	
The Certificates

	
98


	
Section 3.2

	
Registration

	
99


	
Section 3.3

	
Transfer and Exchange of Certificates

	
99


	
Section 3.4

	
Mutilated, Destroyed, Lost or Stolen Certificates

	
105


	
Section 3.5

	
Persons Deemed Owners

	
106


	
Section 3.6

	
Access to List of Certificateholders’ Names and Addresses

	
106


	
Section 3.7

	
Book-Entry Certificates

	
106


	
Section 3.8

	
Notices to Clearing Agency

	
110


	
Section 3.9

	
Definitive Certificates

	
110


	
Section 3.10

	
Depositable and Exchangeable Certificates

	
111


	  	  	  
	
ARTICLE IV


	  	  	  
	
ADVANCES


	  	  	  
	
Section 4.1

	
P&I Advances by the Master Servicer

	
113


	
Section 4.2

	
Servicing Advances

	
114


	
Section 4.3

	
Advances by the Trustee

	
115


	
Section 4.4

	
Evidence of Nonrecoverability

	
116





 




  





  











  






 


	
Section 4.5

	
Interest on Advances; Calculation of Outstanding Advances with Respect to a Mortgage Loan

	
117


	
Section 4.6

	
Reimbursement of Advances and Advance Interest

	
118


	  	  	  
	
ARTICLE V


	  	  	  
	
ADMINISTRATION OF THE TRUST


	  	  	  
	
Section 5.1

	
Collections

	
119


	
Section 5.2

	
Application of Funds in the Certificate Accounts and Interest Reserve Accounts

	
122


	
Section 5.3

	
Distribution Account, Excess Interest Sub-account, Reserve Account and Floating Rate Account

	
130


	
Section 5.4

	
Paying Agent Reports

	
133


	
Section 5.5

	
Paying Agent Tax Reports

	
135


	  	  	  
	
ARTICLE VI


	  	  	  
	
DISTRIBUTIONS


	  	  	  
	
Section 6.1

	
Distributions Generally

	
135


	
Section 6.2

	
REMIC I

	
136


	
Section 6.3

	
REMIC II

	
137


	
Section 6.4

	
Reserved

	
139


	
Section 6.5

	
REMIC III

	
139


	
Section 6.6

	
Allocation of Realized Losses, Expense Losses and Shortfalls Due to Nonrecoverability

	
150


	
Section 6.7

	
Net Aggregate Prepayment Interest Shortfalls

	
152


	
Section 6.8

	
Adjustment of Servicing Fees

	
153


	
Section 6.9

	
Appraisal Reductions

	
153


	
Section 6.10

	
Compliance with Withholding Requirements

	
154


	
Section 6.11

	
Prepayment Premiums and Yield Maintenance Charges

	
154


	
Section 6.12

	
Other Distributions.

	
156


	  	  	  
	
ARTICLE VII


	  	  	  
	
CERTAIN MATTERS CONCERNING THE TRUSTEE AND THE PAYING AGENT


	  	  	  
	
Section 7.1

	
Duties of the Trustee and the Paying Agent

	
158


	
Section 7.2

	
Certain Matters Affecting the Trustee and the Paying Agent

	
160


	
Section 7.3

	
The Trustee and the Paying Agent Not Liable for Certificates or Interests or Mortgage Loans

	
162


	
Section 7.4

	
The Trustee and the Paying Agent May Own Certificates

	
163


	
Section 7.5

	
Eligibility Requirements for the Trustee and the Paying Agent

	
163


	
Section 7.6

	
Resignation and Removal of the Trustee or the Paying Agent

	
164


	
Section 7.7

	
Successor Trustee or Paying Agent

	
165


	
Section 7.8

	
Merger or Consolidation of Trustee or Paying Agent

	
166


	
Section 7.9

	
Appointment of Co-Trustee, Separate Trustee, Agents or Custodian

	
166


	
Section 7.10

	
Authenticating Agents

	
168


	
Section 7.11

	
Indemnification of the Trustee and the Paying Agent

	
169





 




  





  











  






 


	
Section 7.12

	
Fees and Expenses of Trustee and the Paying Agent

	
171


	
Section 7.13

	
Collection of Moneys

	
172


	
Section 7.14

	
Trustee to Act; Appointment of Successor

	
172


	
Section 7.15

	
Notification to Holders

	
174


	
Section 7.16

	
Representations and Warranties of the Trustee and the Paying Agent

	
174


	
Section 7.17

	
Fidelity Bond and Errors and Omissions Insurance Policy Maintained by the Trustee and the Paying Agent

	
176


	  	  	  
	
ARTICLE VIII


	  	  	  
	
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS


	  	  	  
	
Section 8.1

	
Servicing Standard; Servicing Duties

	
177


	
Section 8.2

	
Fidelity Bond and Errors and Omissions Insurance Policy Maintained by the Master Servicer

	
178


	
Section 8.3

	
Master Servicer’s General Power and Duties

	
178


	
Section 8.4

	
Primary Servicing and Sub-Servicing

	
184


	
Section 8.5

	
[Master] [Primary] Servicer May Own Certificates

	
186


	
Section 8.6

	
Maintenance of Hazard Insurance, Other Insurance and Taxes

	
187


	
Section 8.7

	
Enforcement of Due-On-Sale Clauses; Assumption Agreements; Due-On-Encumbrance Clause

	
189


	
Section 8.8

	
Trustee to Cooperate; Release of Trustee Mortgage Files

	
194


	
Section 8.9

	
Documents, Records and Funds in Possession of the Master Servicer to Be Held for the Trustee for the Benefit of the Certificateholders

	
194


	
Section 8.10

	
Servicing Compensation

	
195


	
Section 8.11

	
Master Servicer Reports; Account Statements

	
196


	
Section 8.12

	
[Reserved]

	
198


	
Section 8.13

	
[Reserved]

	
198


	
Section 8.14

	
Operating Statement Analysis Reports Regarding the Mortgaged Properties

	
198


	
Section 8.15

	
Other Available Information and Certain Rights of the Master Servicer

	
199


	
Section 8.16

	
Rule 144A Information

	
201


	
Section 8.17

	
Inspections

	
202


	
Section 8.18

	
Modifications, Waivers, Amendments, Extensions and Consents

	
202


	
Section 8.19

	
Specially Serviced Mortgage Loans

	
205


	
Section 8.20

	
Representations, Warranties and Covenants of the Master Servicer

	
206


	
Section 8.21

	
Merger or Consolidation

	
207


	
Section 8.22

	
Resignation of the Master Servicer

	
208


	
Section 8.23

	
Assignment or Delegation of Duties by the Master Servicer

	
208


	
Section 8.24

	
Limitation on Liability of the Master Servicer and Others

	
209


	
Section 8.25

	
Indemnification; Third-Party Claims

	
211


	
Section 8.26

	
[Reserved]

	
214


	
Section 8.27

	
Compliance with REMIC Provisions and Grantor Trust Provisions

	
214


	
Section 8.28

	
Termination

	
214


	
Section 8.29

	
Procedure Upon Termination

	
217


	
Section 8.30

	
Swap Contract

	
219





 




  





  











  






 



	
ARTICLE IX


	  	  	  
	
ADMINISTRATION AND SERVICING OF SPECIALLY SERVICED MORTGAGE LOANS BY THE SPECIAL SERVICER


	  	  	  
	
Section 9.1

	
Duties of the Special Servicer

	
220


	
Section 9.2

	
Fidelity Bond and Errors and Omissions Insurance Policy of the Special Servicer

	
222


	
Section 9.3

	
Sub-Servicers

	
222


	
Section 9.4

	
Special Servicer’s General Powers and Duties

	
222


	
Section 9.5

	
“Due-On-Sale” Clauses; Assignment and Assumption Agreements; Modifications of Specially Serviced Mortgage Loans; Due-On-Encumbrance Clauses

	
224


	
Section 9.6

	
Release of Mortgage Files

	
228


	
Section 9.7

	
Documents, Records and Funds in Possession of the Special Servicer to Be Held for the Trustee

	
229


	
Section 9.8

	
Representations, Warranties and Covenants of the Special Servicer

	
230


	
Section 9.9

	
Standard Hazard, Flood and Comprehensive General Liability Insurance Policies

	
232


	
Section 9.10

	
Presentment of Claims and Collection of Proceeds

	
233


	
Section 9.11

	
Compensation to the Special Servicer

	
233


	
Section 9.12

	
Realization Upon Defaulted Mortgage Loans

	
234


	
Section 9.13

	
Foreclosure

	
236


	
Section 9.14

	
Operation of REO Property

	
237


	
Section 9.15

	
Sale of REO Property

	
240


	
Section 9.16

	
Realization on Collateral Security

	
242


	
Section 9.17

	
[Reserved]

	
242


	
Section 9.18

	
[Reserved]

	
242


	
Section 9.19

	
[Reserved]

	
242


	
Section 9.20

	
Merger or Consolidation

	
242


	
Section 9.21

	
Resignation of the Special Servicer

	
242


	
Section 9.22

	
Assignment or Delegation of Duties by the Special Servicer

	
243


	
Section 9.23

	
Limitation on Liability of the Special Servicer and Others

	
244


	
Section 9.24

	
Indemnification; Third-Party Claims

	
246


	
Section 9.25

	
Reserved

	
248


	
Section 9.26

	
Special Servicer May Own Certificates

	
248


	
Section 9.27

	
Tax Reporting

	
248


	
Section 9.28

	
Application of Funds Received

	
248


	
Section 9.29

	
Compliance with REMIC Provisions and Grantor Trust Provisions

	
248


	
Section 9.30

	
Termination

	
249


	
Section 9.31

	
Procedure Upon Termination

	
251


	
Section 9.32

	
Certain Special Servicer Reports

	
252


	
Section 9.33

	
Special Servicer to Cooperate with the Master Servicer and Paying Agent

	
254


	
Section 9.34

	
Reserved

	
255


	
Section 9.35

	
Reserved

	
255


	
Section 9.36

	
Sale of Defaulted Mortgage Loans

	
255





 




  





  











  






 


	
Section 9.37

	
Operating Adviser; Elections

	
257


	
Section 9.38

	
Limitation on Liability of Operating Adviser

	
258


	
Section 9.39

	
Rights of Operating Adviser

	
259


	  	  	  
	
ARTICLE X


	  	  	  
	
PURCHASE AND TERMINATION OF THE TRUST


	  	  	  
	
Section 10.1

	
Termination of Trust Upon Repurchase or Liquidation of All Mortgage Loans

	
261


	
Section 10.2

	
Procedure Upon Termination of Trust

	
263


	
Section 10.3

	
Additional Trust Termination Requirements

	
264


	  	  	  
	
ARTICLE XI


	  	  	  
	
RIGHTS OF CERTIFICATEHOLDERS


	  	  	  
	
Section 11.1

	
Limitation on Rights of Holders

	
265


	
Section 11.2

	
Access to List of Holders

	
266


	
Section 11.3

	
Acts of Holders of Certificates

	
267


	  	  	  
	
ARTICLE XII


	  	  	  
	
REMIC AND GRANTOR TRUST ADMINISTRATION


	  	  	  
	
Section 12.1

	
REMIC Administration

	
268


	
Section 12.2

	
Prohibited Transactions and Activities

	
273


	
Section 12.3

	
Modifications of Mortgage Loans

	
273


	
Section 12.4

	
Liability with Respect to Certain Taxes and Loss of REMIC Status

	
274


	
Section 12.5

	
Grantor Trust Administration

	
274


	  	  	  
	
ARTICLE XIII


	  	  	  
	
EXCHANGE ACT REPORTING AND REGULATION AB COMPLIANCE


	  	  	  
	
Section 13.1

	
Intent of the Parties; Reasonableness

	
275


	
Section 13.2

	
Additional Representations and Warranties of the Master Servicer, the Special Servicer, the Primary Servicer and the Paying Agent

	
276


	
Section 13.3

	
Information to be Provided by the Master Servicer, the Special Servicer, the Primary Servicer and the Paying Agent

	
277


	
Section 13.4

	
Information to be Provided by the Trustee

	
280


	
Section 13.5

	
Filing Obligations

	
280


	
Section 13.6

	
Form 10-D Filings

	
281


	
Section 13.7

	
Form 10-K Filings

	
282


	
Section 13.8

	
Sarbanes-Oxley Certification

	
284


	
Section 13.9

	
Form 8-K Filings

	
284


	
Section 13.10

	
Form 15 Filing; Incomplete Exchange Act Filings; Amendments to Exchange Act Reports

	
286


	
Section 13.11

	
Annual Compliance Statements

	
287


	
Section 13.12

	
Annual Reports on Assessment of Compliance with Servicing Criteria

	
288


	
Section 13.13

	
Annual Independent Public Accountants’ Servicing Report

	
289





 




  





  











  






 


	
Section 13.14

	
Indemnification

	
290


	
Section 13.15

	
Amendments

	
292


	
Section 13.16

	
Exchange Act Report Signatures

	
292


	
Section 13.17

	
Termination of the Paying Agent and Sub-Servicers

	
292


	  	  	  
	
ARTICLE XIV


	  	  	  
	
MISCELLANEOUS PROVISIONS


	  	  	  
	
Section 14.1

	
Binding Nature of Agreement

	
293


	
Section 14.2

	
Entire Agreement

	
293


	
Section 14.3

	
Amendment

	
293


	
Section 14.4

	
GOVERNING LAW

	
296


	
Section 14.5

	
Notices

	
296


	
Section 14.6

	
Severability of Provisions

	
296


	
Section 14.7

	
Indulgences; No Waivers

	
296


	
Section 14.8

	
Headings Not to Affect Interpretation

	
297


	
Section 14.9

	
Benefits of Agreement

	
297


	
Section 14.10

	
Special Notices to the Rating Agencies

	
297


	
Section 14.11

	
Counterparts

	
299


	
Section 14.12

	
Intention of Parties

	
299


	
Section 14.13

	
Recordation of Agreement

	
300


	
Section 14.14

	
Rating Agency Monitoring Fees

	
300







 






EXHIBITS AND SCHEDULES


 



	
  

	
EXHIBIT A-1

	
Form of Class [A-1] Certificate








	
  

	
EXHIBIT A-2

	
Form of Class [A-1A] Certificate








	
  

	
EXHIBIT A-3

	
Form of Class [A-2] Certificate








	
  

	
EXHIBIT A-4

	
Form of Class [A-3-1FL] Certificate








	
  

	
EXHIBIT A-5

	
Form of Class [A-3-1] Certificate








	
  

	
EXHIBIT A-6

	
Form of Class [A-3-2] Certificate








	
  

	
EXHIBIT A-7

	
Form of Class [A-AB] Certificate








	
  

	
EXHIBIT A-8

	
Form of Class [A-4A] Certificate








	
  

	
EXHIBIT A-9

	
Form of Class [A-4B] Certificate








	
  

	
EXHIBIT A-10

	
Form of Class X-2 Certificate








	
  

	
EXHIBIT A-11

	
Form of Class [A-J] Certificate








	
  

	
EXHIBIT A-12

	
Form of Class [B] Certificate








	
  

	
EXHIBIT A-13

	
Form of Class [C] Certificate








	
  

	
EXHIBIT A-14

	
Form of Class [D] Certificate








	
  

	
EXHIBIT A-15

	
Form of Class [E] Certificate








	
  

	
EXHIBIT A-16

	
Form of Class [F] Certificate








	
  

	
EXHIBIT A-17

	
Form of Class [G] Certificate








	
  

	
EXHIBIT A-18

	
Form of Class [H] Certificate








	
  

	
EXHIBIT A-19

	
Form of Class [J] Certificate








	
  

	
EXHIBIT A-20

	
Form of Class [K] Certificate








	
  

	
EXHIBIT A-21

	
Form of Class [L] Certificate








	
  

	
EXHIBIT A-22

	
Form of Class [M] Certificate








	
  

	
EXHIBIT A-23

	
Form of Class [N] Certificate








	
  

	
EXHIBIT A-24

	
Form of Class [O] Certificate







 


 


 




  





-vii-











  






 


 



	
  

	
EXHIBIT A-25

	
Form of Class [P] Certificate








	
  

	
EXHIBIT A-26

	
Form of Class [EI] Certificate








	
  

	
EXHIBIT A-27

	
Form of Class [R-I] Certificate








	
  

	
EXHIBIT A-28

	
Form of Class [R-II] Certificate








	
  

	
EXHIBIT A-29

	
Form of Class [R-III] Certificate








	
  

	
EXHIBIT A-30

	
Form of Class [X-1] Certificate








	
  

	
EXHIBIT A-31

	
Form of Class [X-Y] Certificate








	
  

	
EXHIBIT B-1

	
Form of Initial Certification of Trustee (Section 2.2)








	
  

	
EXHIBIT B-2

	
Form of Final Certification of Trustee (Section 2.2)








	
  

	
EXHIBIT C

	
Form of Request for Release








	
  

	
EXHIBIT D-1

	
Form of Transferor Certificate for Transfers to Definitive Privately Offered Certificates (Section 3.3(c))








	
  

	
EXHIBIT D-2A

	
Form I of Transferee Certificate for Transfers of Definitive Privately Offered Certificates (Section 3.3(c))








	
  

	
EXHIBIT D-2B

	
Form II of Transferee Certificate for Transfers of Definitive Privately Offered Certificates (Section 3.3(c))








	
  

	
EXHIBIT D-3A

	
Form I of Transferee Certificate for Transfers of Interests in Book-Entry Privately Offered Certificates (Section 3.3(c))








	
  

	
EXHIBIT D-3B

	
Form II of Transferee Certificate for Transfers of Interests in Book-Entry Privately Offered Certificates (Section 3.3(c))








	
  

	
EXHIBIT E-1

	
Form of Transfer Affidavit and Agreement for Transfers of REMIC Residual Certificates (Section 3.3(e))








	
  

	
EXHIBIT E-2

	
Form of Transferor Certificate for Transfers of REMIC Residual Certificates (Section 3.3(e))








	
  

	
EXHIBIT F

	
Form of Transferor Certificate for Transfers of Regulation S Certificates








	
  

	
EXHIBIT G

	
Form of Exchange Certification







 


 




  





-viii-











  






 


 



	
  

	
EXHIBIT H

	
Form of EUROCLEAR or Clearstream Certificate (Section 3.7(d))








	
  

	
EXHIBIT I

	
Investor Certification (Section 5.4(a))








	
  

	
EXHIBIT J

	
Form of Notice and Certification regarding Defeasance of Mortgage Loan (Section 8.3(h))








	
  

	
EXHIBIT K

	
Form of Sarbanes-Oxley Certification








	
  

	
EXHIBIT K-1

	
Form of Performance Certification








	
  

	
EXHIBIT L

	
Form of Exchange Letter (Depositable Certificates for Exchangeable Certificates)








	
  

	
EXHIBIT M

	
Form of Exchange Letter (Exchangeable Certificates for Depositable Certificates)








	
  

	
SCHEDULE I

	
Loan Schedule








	
  

	
SCHEDULE II

	
Rates Used in Determination of Class X Pass-Through Rates (“Class X-1 Strip Rate” and “Class X-2 Strip Rate”)








	
  

	
SCHEDULE III

	
Class A-AB Planned Principal Balance








	
  

	
SCHEDULE IV

	
Servicing Criteria to be Addressed in Assessment of Compliance








	
  

	
SCHEDULE V

	
Additional Form 10-D Disclosure








	
  

	
SCHEDULE VI

	
Additional Form 10-K Disclosure








	
  

	
SCHEDULE VII

	
Form 8-K Disclosure Information








	
  

	
SCHEDULE VIII

	
Available Exchanges of Depositable Certificates and Exchangeable Certificates







 


 


 


 


 


 


 


 


 


 


 


 


 


 




  





-ix-











  
















 


THIS POOLING AND SERVICING AGREEMENT is dated as of _____, 20__ (this “Agreement”) among MORGAN STANLEY CAPITAL I INC., a Delaware corporation, as depositor (the “Depositor”), _______, as master servicer (the “Master Servicer”), _______, as special servicer (the “Special Servicer”) and _______, as trustee of the Trust, as paying agent and as certificate registrar (the “Trustee,” “Paying Agent” and “Certificate Registrar”).


 


PRELIMINARY STATEMENT


 


On the Closing Date, the Depositor will acquire the Mortgage Loans from [Morgan Stanley Mortgage Capital Inc., as seller (“MSMC”)], [and] [insert names of other sellers].  On the Closing Date, the Depositor will acquire (i) the REMIC I Regular Interests and the Class [R-I] Certificates as consideration for its transfer to the Trust of the Mortgage Loans (other than any Excess Interest payable thereon) and the other property constituting REMIC I; (ii) the REMIC II Regular Interests and the Class [R-II] Certificates as consideration for its transfer of the REMIC I Regular Interests to the Trust; (iii) the REMIC III Certificates and the Class A-3-1FL Regular Interest as consideration for its transfer of the REMIC II Regular Interests to the Trust; (iv) the Class [A-3-1FL] Certificates as consideration for its transfer of the Class A-3-1FL Regular Interest to the Trust and for the Trustee, on behalf of the Trust, entering into the Swap Contract and (v) the Class [EI] Certificates as consideration for its transfer of the Excess Interest to the Trust.  The Depositor has duly authorized the execution and delivery of this Agreement to provide for the foregoing and the issuance of (A) the REMIC I Regular Interests and the Class [R-I] Certificates representing in the aggregate the entire beneficial ownership of REMIC I, (B) the REMIC II Regular Interests and the Class [R-II] Certificates representing in the aggregate the entire beneficial ownership of REMIC II, (C) the REMIC III Certificates and the Class A-3-1FL Regular Interest representing in the aggregate the entire beneficial ownership of REMIC III, (D) the Class [A-3-1FL] Certificates representing in the aggregate the entire beneficial ownership of the Class A-3-1FL Grantor Trust and (E) the Class [EI] Certificates representing in the aggregate the entire beneficial ownership of the Class EI Grantor Trust.


 


Excess Interest received on the Mortgage Loans shall be held in the Class EI Grantor Trust for the benefit of the Class [EI] Certificates.  All covenants and agreements made by the Depositor and the Trustee herein with respect to the Mortgage Loans and the other property constituting the Trust are for the benefit of the Holders of the REMIC I Regular Interests, the REMIC II Regular Interests, the REMIC Regular Certificates, the Class [EI] Certificates, the Residual Certificates, the Class A-3-1FL Regular Interest and the Swap Counterparty.  The parties hereto are entering into this Agreement, and the Trustee is accepting the trusts created hereby, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged.


 


The Class [A-1], Class [A-1A], Class [A-2], Class [A-3-1FL], Class [A-3-1], Class [A-3-2], Class [A-AB], Class [A-4A], Class [A-4B], Class [X-2], Class [A-J], Class [B], Class [C] and Class [D] Certificates will be offered for sale pursuant to the prospectus (the “Prospectus”) dated _____, 20__, as supplemented by the free writing prospectus dated _____, 20__ (together with the Prospectus, the “Free Writing Prospectus”), and as further


 




 




  





  











  











 


supplemented by the final prospectus supplement dated _____, 20__ (the “Prospectus Supplement,” and, together with the Prospectus, the “Final Prospectus Supplement”) and the Class [X-1], Class [X-Y], Class [E], Class [F], Class [G], Class [H], Class [J], Class [K], Class [L], Class [M], Class [N], Class [O], Class [P] and Class [EI] Certificates will be offered for sale pursuant to a Private Placement Memorandum dated _____, 20__.


 


REMIC I


 


Each REMIC I Regular Interest (a “Corresponding REMIC I Regular Interest”) will relate to a specific Mortgage Loan.  Each Corresponding REMIC I Regular Interest (other than the Group X-Y REMIC I Regular Interests) will have a pass-through rate equal to the REMIC I Net Mortgage Rate of the related Mortgage Loan, an initial principal amount (the initial “Certificate Balance”) equal to the Scheduled Principal Balance as of the Cut-Off Date (as herein defined) of the Mortgage Loan to which the Corresponding REMIC I Regular Interest relates, and a latest possible maturity date set to the Final Rated Distribution Date (as defined herein).  Each Group X-Y REMIC I Regular Interest will relate to a specific Specially Designated Co-op Loan.  Each Group X-Y REMIC I Regular Interest will have a Pass-Through Rate equal to the Class X-Y Strip Rate, an initial notional amount equal to the Scheduled Principal Balance as of the Cut-Off Date of the Specially Designated Co-op Loan to which such Group X-Y REMIC I Regular Interest relates, and a latest possible maturity date set to the Final Rated Distribution Date.  Excess Interest shall be included as an asset of REMIC I.  The Class [R-I] Certificates will be designated as the sole Class of residual interests in REMIC I and will have no Certificate Balance and no Pass-Through Rate, but will be entitled to receive the proceeds of any assets remaining in REMIC I after all Classes of REMIC I Regular Interests have been paid in full.


 


REMIC II


 


The REMIC II Regular Interests have the pass-through rates and Certificate Balances or Notional Amount set forth in the definition thereof.  The Class [R-II] Certificates will be designated as the sole Class of residual interests in REMIC II and will have no Certificate Balance and no Pass-Through Rate, but will be entitled to receive the proceeds of any assets remaining in REMIC II after all Classes of REMIC II Regular Interests have been paid in full.


 


The following table sets forth the Class or Component designation, the corresponding REMIC II Regular Interest (the “Corresponding REMIC II Regular Interest”), the Corresponding Components of the Class [X-1] or Class [X-2] Certificates (the “Corresponding Components”) and the Original Class REMIC II Certificate Balance for each Class of Principal Balance Certificates (and in the case of the Class [A-3-1FL] Certificates, the Class A-3-1FL Regular Interest) (the “Corresponding Certificates”).


 




  





-2-











  
















 








	

 


Corresponding 


Certificates



	

 


Original Class 


Certificate Balance or 


Notional Balance



	

 


Corresponding 


REMIC II Regular


Interests (1)



	

 


Original 


REMIC II 


Certificate 


Balance or 


Notional 


Balance



	

 


Corresponding 


Components of 


Class [X-1] or 


Class [X-2] 


Certificates (1)







	
Class [A-1]

	
$

	
A-1-1

	
$

	
A-1-1


	  	  	
A-1-2

	
$

	
A-1-2


	  	  	
A-1-3

	
$

	
A-1-3


	
Class [A-1A]

	
$

	
A-1A-1

	
$

	
A-1A-1


	  	  	
A-1A-2

	
$

	
A-1A-2


	  	  	
A-1A-3

	
$

	
A-1A-3


	  	  	
A-1A-4

	
$

	
A-1A-4


	  	  	
A-1A-5

	
$

	
A-1A-5


	  	  	
A-1A-6

	
$

	
A-1A-6


	  	  	
A-1A-7

	
$

	
A-1A-7


	  	  	
A-1A-8

	
$

	
A-1A-8


	  	  	
A-1A-9

	
$

	
A-1A-9


	
Class [A-2]

	
$

	
A-2

	
$

	
A-2


	
Class [A-3-1FL]

	
$

	
A-3-1FL-1(2)

	
$

	
A-3-1FL-1


	  	  	
A-3-1FL-2(2)

	
$

	
A-3-1FL-2


	  	  	
A-3-1FL-3(2)

	
$

	
A-3-1FL-3


	  	  	
A-3-1FL-4(2)

	
$

	
A-3-1FL-4


	
Class [A-3-1]

	
$

	
A-3-1-1

	
$

	
A-3-1-1


	  	  	
A-3-1-2

	
$

	
A-3-1-2


	  	  	
A-3-1-3

	
$

	
A-3-1-3


	  	  	
A-3-1-4

	
$

	
A-3-1-4


	
Class [A-3-2]

	
$

	
A-3-2-1

	
$

	
A-3-2-1


	  	  	
A-3-2-2

	
$

	
A-3-2-2


	
Class [A-AB]

	
$

	
A-AB-1

	
$

	
A-AB-1


	 	 	A-AB-2	$	A-AB-2
	 	 	 	 	 



 


 


 




  





-3-











  






 









	

 


Corresponding 


Certificates



	

 


Original Class 


Certificate Balance or 


Notional Balance



	

 


Corresponding 


REMIC II Regular


Interests (1)



	

 


Original 


REMIC II 


Certificate 


Balance or 


Notional 


Balance



	

 


Corresponding 


Components of 


Class [X-1] or 


Class [X-2] 


Certificates (1)











	
Class [A-4A]

	  	
A-4A-1

	
$

	
A-4A-1


	  	  	
A-4A-2

	
$

	
A-4A-2


	  	  	
A-4A-3

	
$

	
A-4A-3


	
Class [A-4B]

	
$

	
A-4B

	
$

	
A-4B


	
Class [A-J]

	
$

	
A-J

	
$

	
A-J


	
Class [X-Y]

	
$

	
X-Y

	
$

	
N/A


	
Class [B]

	
$

	
B-1

	
$

	
B-1


	  	  	
B-2

	
$

	
B-2


	  	  	
B-3

	
$

	
B-3


	
Class [C]

	
$

	
C-1

	
$

	
C-1


	  	  	
C-2

	
$

	
C-2


	
Class [D]

	
$

	
D-1

	
$

	
D-1


	  	  	
D-2

	
$

	
D-2


	
Class [E]

	
$

	
E

	
$

	
E


	
Class [F]

	
$

	
F-1

	
$

	
F-1


	  	  	
F-2

	
$

	
F-2


	
Class [G]

	
$

	
G

	
$

	
G


	
Class [H]

	
$

	
H-1

	
$

	
H-1


	  	  	
H-2

	
$

	
H-2


	
Class [J]

	
$

	
J

	
$

	
J


	
Class [K]

	
$

	
K

	
$

	
K


	
Class [L]

	
$

	
L

	
$

	
L


	
Class [M]

	
$

	
M

	
$

	
M


	
Class [N]

	
$

	
N

	
$

	
N


	
Class [O]

	
$

	
O

	
$

	
O


	
Class [P]

	
$

	
P

	
$

	
P















 










	
(1)

	
The REMIC II Regular Interests and the Components of the Class [X-1] and Class [X-2] Certificates that correspond to any particular Class of Principal Balance Certificates also correspond to each other and, accordingly, constitute the “Corresponding REMIC II Regular Interest” and the “Corresponding Components,” respectively, with respect to each other.







 



	
(2)

	
REMIC II Regular Interests A-3-1FL-1, A-3-1FL-2, A-3-1FL-3 and A-3-1FL-4 correspond, in the aggregate, to the Class A-3-1FL Regular Interest, having an initial Certificate Balance of $_____.







 


REMIC III


 


The following sets forth the Class designation, Pass-Through Rate, initial Aggregate Certificate Balance (or initial Notional Amount) and Final Scheduled Distribution Date for each Class of REMIC III Certificates comprising the interests in REMIC III created hereunder.


 


 




  





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REMIC III Regular 


Interest Designation



	

 


Approximate Initial 


Pass-Through Rate (a)



	

 


Initial Aggregate 


Certificate Balance


or Notional Amount



	

 


Final Scheduled 


Distribution Date (b)




	
Class A-1

	
%

	
$

	  
	
Class A-1A

	
%

	
$

	  
	
Class A-2

	
%

	
$

	  
	
Class A-3-1FL

	
%

	
$

	  
	
Class A-3-1

	
%

	
$

	  
	
Class A-3-2

	
%

	
$

	  
	
Class A-AB

	
%

	
$

	  
	
Class A-4A

	
%

	
$

	  
	
Class A-4B

	
%

	
$

	  
	
Class A-J

	
%

	
$

	  
	
Class X-1

	
%

	
$

	  
	
Class X-2

	
%

	
$

	  
	
Class X-Y

	
%

	
$

	  
	
Class B

	
%

	
$

	  
	
Class C

	
%

	
$

	  
	
Class D

	
%

	
$

	  
	
Class E

	
%

	
$

	  
	
Class F

	
%

	
$

	  
	
Class G

	
%

	
$

	  
	
Class H

	
%

	
$

	  
	
Class J

	
%

	
$

	  
	
Class K

	
%

	
$

	  
	
Class L

	
%

	
$

	  
	
Class M

	
%

	
$

	  
	
Class N

	
%

	
$

	  
	
Class O

	
%

	
$

	  
	
Class P

	
%

	
$

	  
	
Class R-III (c)

	
N/A

	
N/A

	
N/A















 










	
(a)

	
On each Distribution Date after the initial Distribution Date, the Pass-Through Rate for each Class of Certificates will be determined as described herein under the definition of “Pass-Through Rate.”







 



	
(b)

	
The Final Scheduled Distribution Date for each Class of Certificates assigned a rating is the Distribution Date on which such Class is expected to be paid in full, assuming that timely payments (and no prepayments) will be made on the Mortgage Loans in accordance with their terms (except that each ARD Loan will be prepaid in full on its Anticipated Repayment Date) in the case of the REMIC III Regular Interests.







 



	
(c)

	
The Class [R-III] Certificates will be entitled to receive the proceeds of any remaining assets in REMIC III after the principal amounts of all REMIC III Regular Interests have been reduced to zero and any Realized Losses previously allocated thereto (and any interest thereon) have been reimbursed.







 


Class EI Grantor Trust


 


Each Class [EI] Certificate will be entitled to Excess Interest (which will not be a part of any REMIC Pool).  The parties intend that (i) the portions of the Trust representing the Excess Interest and the Excess Interest Sub-account shall be treated as a grantor trust under


 




 




  





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subpart E of Part 1 of subchapter J of Chapter 1 of Subtitle A of the Code and (ii) the Class [EI] Certificates shall represent undivided beneficial interests in the portion of the Trust consisting of the entitlement to receive Excess Interest (collectively, the “Class EI Grantor Trust”).


 


As of the Cut-Off Date, the Mortgage Loans had an Aggregate Principal Balance of $_____.


 


Class A-3-1FL Grantor Trust


 


As provided herein, with respect to the Trust, the Paying Agent on behalf of the Trustee will treat the segregated pool of assets consisting of (i) the Class A-3-1FL Regular Interest (bearing a fixed rate of interest at ___% per annum subject to a cap equal to the Weighted Average REMIC I Net Mortgage Rate) and the Swap Contract and all payments under the Class A-3-1FL Regular Interest and the Swap Contract and (ii) all funds and assets on deposit from time to time in the Floating Rate Account as a separate grantor trust within the meaning of subpart E, part I of Subchapter J of Chapter 1 of Subtitle A of the Code.  The Class [A-3-1FL] Certificates will be treated as undivided beneficial interests in the Class A-3-1FL Grantor Trust.


 


As provided herein, with respect to the Trust, the Paying Agent on behalf of the Trustee will make an election for the segregated pool of assets described in the first paragraph of Section 12.1(a) hereof (including the Mortgage Loans (other than the Excess Interest payable with respect to such Mortgage Loans)) to be treated for federal income tax purposes as a real estate mortgage investment conduit (“REMIC I”).  The REMIC I Regular Interests will be designated as the “regular interests” in REMIC I and the Class [R-I] Certificates will be designated as the sole Class of “residual interests” in REMIC I for purposes of the REMIC Provisions.


 


As provided herein, with respect to the Trust, the Paying Agent on behalf of the Trustee will make an election for the segregated pool of assets described in the second paragraph of Section 12.1(a) hereof consisting of the REMIC I Regular Interests to be treated for federal income tax purposes as a real estate mortgage investment conduit (“REMIC II”).  The REMIC II Regular Interests will be designated as the “regular interests” in REMIC II and the Class [R-II] Certificates will be designated as the sole Class of “residual interests” in REMIC II for purposes of the REMIC Provisions.


 


As provided herein, with respect to the Trust, the Paying Agent on behalf of the Trustee will make an election for the segregated pool of assets described in the third paragraph of Section 12.1(a) hereof consisting of the REMIC II Regular Interests to be treated for federal income tax purposes as a real estate mortgage investment conduit (“REMIC III”).  The REMIC III Regular Interests (including, in the case of the Class [A-3-1FL] Certificates, the Class A-3-1FL Regular Interest represented by the Class [A-3-1FL] Certificates) will be designated as the “regular interests” in REMIC III and the Class [R-III] Certificates (together with the REMIC Regular Certificates, the “REMIC III Certificates”) will be designated as the sole Class of “residual interests” in REMIC III for purposes of the REMIC Provisions.


 




  





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ARTICLE I


 


DEFINITIONS


 


Section 1.1 Definitions


 


Whenever used in this Agreement, the following words and phrases, unless the context otherwise requires, shall have the following meanings:


 


“Accountant” means a Person engaged in the practice of accounting who is Independent.


 


“Accrued Certificate Interest” means, with respect to each Distribution Date and any Class of Interests or Principal Balance Certificates, interest accrued during the Interest Accrual Period relating to such Distribution Date on the Aggregate Certificate Balance of such Class or Interest as of the close of business on the immediately preceding Distribution Date at the respective rates per annum set forth in the definition of the applicable Pass-Through Rate for each such Class.  Accrued Certificate Interest on the Class [X-1] and Class [X-2] Certificates for each Distribution Date will equal the Accrued Component Interest for the related Interest Accrual Period for all of their respective Components for such Distribution Date.  Accrued Certificate Interest on the Class [X-Y] Certificates for each Distribution Date will equal the Class X-Y Interest Amount.


 


“Accrued Component Interest”  With respect to each Component of the Class [X-1] and Class [X-2] Certificates for any Distribution Date, one month’s interest at the Class X-1 Strip Rate or Class X-2 Strip Rate applicable to such Component for such Distribution Date, accrued on the Component Notional Amount of such Component outstanding immediately prior to such Distribution Date.  Accrued Component Interest shall be calculated on a 30/360 basis and, with respect to any Component and any Distribution Date, shall be deemed to accrue during the calendar month preceding the month in which such Distribution Date occurs.


 


“Acquisition Date” means the date upon which, under the Code (and in particular the REMIC Provisions and Section 856(e) of the Code), the Trust or a REMIC Pool is deemed to have acquired a Mortgaged Property (or an interest therein, in the case of each Mortgaged Property securing any Loan Group).


 


“Additional Form 10-D Disclosure” has the meaning set forth in Section 13.3.


 


“Additional Form 10-K Disclosure” has the meaning set forth in Section 13.4.


 


“Additional Servicer” means each Affiliate of the [Master Servicer], MSMC, [names of other sponsors], the Depositor [or any of the Underwriters] that Services any of the Mortgage Loans and each Person, other than the Special Servicer, who is not an Affiliate of the [Master Servicer], [Primary Servicer], MSMC, [names of other sponsors], the Depositor [or any of the Underwriters], and who Services 10% or more of the Mortgage Loans (based on their Principal Balance).


 




  





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“Additional Trust Expense” means any of the following items:  (i) Special Servicing Fees, Work-Out Fees and Liquidation Fees (to the extent not collected from the related Mortgagor or paid from Late Fees or default interest as provided in Section 4.5, (ii) Advance Interest that cannot be paid from Late Fees and default interest in accordance with Section 4.6(c); (iii) amounts paid to indemnify the Master Servicer, the Special Servicer, any Primary Servicer, the Certificate Registrar, the Trustee, the Paying Agent (or any other Person) pursuant to the terms of this Agreement; (iv) to the extent not otherwise paid, any federal, state, or local taxes imposed on the Trust or its assets and paid from amounts on deposit in the Certificate Accounts or Distribution Account, (v) the amount of any Advance plus interest due thereon and Unliquidated Advances that are not recovered from the proceeds of a Mortgage Loan or Loan Group upon a Final Recovery Determination and (vi) to the extent not included in the calculation of a Realized Loss and not covered by indemnification by one of the parties hereto or otherwise, any other unanticipated cost, liability, or expense (or portion thereof) of the Trust (including costs of collecting such amounts or other Additional Trust Expenses) which the Trust has not recovered, and in the judgment of the Master Servicer (or the Special Servicer, in the case of a Specially Serviced Mortgage Loan) will not, recover from the related Mortgagor or Mortgaged Property or otherwise, including a Modification Loss described in clause (ii) of the definition thereof.  Notwithstanding anything in this Agreement to the contrary, “Additional Trust Expenses” shall not include allocable overhead of the Master Servicer, the Special Servicer, the Trustee, the Paying Agent or the Certificate Registrar such as costs for office space, office equipment, supplies and related expenses, employee salaries and related expenses, and similar internal costs and expenses, except to the extent specifically allowed in this Agreement.


 


“Adjusted Mortgage Rate” means, with respect to any Mortgage Loan that accrues interest on the basis of a 360-day year consisting of twelve 30-day months (“30/360 basis”), and with respect to any Distribution Date, the Mortgage Rate thereof minus the Administrative Cost Rate.  For any Mortgage Loan that accrue(s) interest on a basis other than that of a 30/360 basis and with respect to any Distribution Date, the rate that, when applied to the Principal Balance of the related Mortgage Loan (on the day prior to the Due Date preceding such Distribution Date) on a 30/360 basis for the related loan accrual period, yields the amount of interest actually due on such Mortgage Loan on the Due Date preceding such Distribution Date (less the Administrative Cost Rate for such Mortgage Loan); provided that for purposes of this definition, (i) the Adjusted Mortgage Rate for the loan accrual period relating to the Due Dates in both January and February in any year that is not a leap year and in February in any year that is a leap year, shall be determined net of any amounts transferred to the Interest Reserve Accounts and (ii) the Adjusted Mortgage Rate for the loan accrual period relating to the Due Date in March (commencing in March 20__) shall be determined taking into account the addition of any amounts withdrawn from the Interest Reserve Accounts, provided, further, that if the Maturity Date on any Mortgage Loan in January or February or if there is a Principal Prepayment on any Mortgage Loan in January or February, then the Adjusted Mortgage Rate shall be determined taking into account the addition of any amounts withdrawn from the Interest Reserve Account for such month.


 


“Administrative Cost Rate” means the sum of the Master Servicing Fee Rate, the Primary Servicing Fee Rate, the Excess Servicing Fee Rate and the Trustee Fee Rate.


 


“Advance” means either a P&I Advance or a Servicing Advance.


 




  





-8-











  






“Advance Interest” means interest payable to the Master Servicer, the Special Servicer or the Trustee on outstanding Advances (other than Unliquidated Advances) pursuant to Section 4.5 of this Agreement.


 


“Advance Rate” means a per annum rate equal to the Prime Rate as published in the “Money Rates” section of The Wall Street Journal from time to time or, if no longer so published, such other publication as determined by the Trustee in its reasonable discretion.


 


“Advance Report Date” means the third Business Day prior to each Distribution Date.


 


“Adverse Grantor Trust Event” shall mean any action taken by a Person or the failure of a Person to take any action that, under the Grantor Trust Provisions, if taken or not taken, as the case may be, could endanger the status of the Class EI Grantor Trust or the Class A-3-1FL Grantor Trust as a grantor trust under the Grantor Trust Provisions or result in the imposition of a tax upon the Class EI Grantor Trust or the Class A-3-1FL Grantor Trust or its assets or transactions.


 


“Adverse REMIC Event” means any action that, under the REMIC Provisions, if taken or not taken, as the case may be, would either (i) endanger the status of any REMIC Pool as a REMIC or (ii) subject to Section 9.14(e), result in the imposition of a tax upon the income of any REMIC Pool or any of their respective assets or transactions, including (without limitation) the tax on prohibited transactions as defined in Section 860F(a)(2) of the Code and the tax on prohibited contributions set forth in Section 860G(d) of the Code.


 


“Affiliate” means, with respect to any specified Person, any other Person controlling or controlled by or under common control with such specified Person.  For the purposes of this definition, “control” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.


 


“Aggregate Certificate Balance” means the aggregate of the Certificate Balances of the Principal Balance Certificates, the REMIC I Regular Interests (other than the Group X-Y REMIC I Regular Interests), the REMIC II Regular Interests (other than REMIC II Regular Interest X-Y) or the REMIC III Regular Interests, as the case may be, at any date of determination.  With respect to a Class of Principal Balance Certificates, REMIC I Regular Interests (other than the Group X-Y REMIC I Regular Interests) or REMIC II Regular Interests (other than REMIC II Regular Interest X-Y), Aggregate Certificate Balance shall mean the aggregate of the Certificate Balances of all Certificates or Interests, as the case may be, of that Class at any date of determination.


 


[“Aggregate Denomination” means, with respect to any date of determination and Class or Classes Certificates, the aggregate of the denominations of the Outstanding Certificates of such Class or Classes on such date.]


 




  





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“Aggregate Principal Balance” means, at the time of any determination and as the context may require, the aggregate of the Scheduled Principal Balances for all Mortgage Loans.


 


“Agreement” means this Pooling and Servicing Agreement and all amendments and supplements hereto.


 


[“Allocation Ratio”  means, with respect to each Class of Exchangeable Certificates, a fraction, the numerator of which is equal to the Aggregate Denomination of such Class of Exchangeable Certificates at the close of business on the related Record Date and the denominator of which is the Initial Authorized Denomination with respect to such Exchangeable Certificates.]


 


“Anticipated Repayment Date” means, with respect to the ARD Loans, the date on which a substantial principal payment on an ARD Loan is anticipated to be made, as set forth in the related Mortgage Note.


 


“Appraisal” means an appraisal by an Independent state certified MAI appraiser having at least five years’ experience in appraising property of the same type as, and in the same geographic area as, the Mortgaged Property being appraised, which appraisal complies with the Uniform Standards of Professional Appraisal Practices and states the “market value” of the subject property as defined in 12 C.F.R. § 225.62.


 


“Appraisal Event” means, with respect to any Mortgage Loan, not later than the earliest of (i) the date 120 days after the occurrence of any delinquency in payment with respect to such Mortgage Loan if such delinquency remains uncured, (ii) the date 30 days after receipt of notice that the related Mortgagor has filed a bankruptcy petition or the related Mortgagor has become the subject of involuntary bankruptcy proceedings or the related Mortgagor has consented to the filing of a bankruptcy proceeding against it or a receiver is appointed in respect of the related Mortgaged Property, provided such petition or appointment is still in effect, (iii) the date that is 30 days following the date the related Mortgaged Property becomes an REO Property and (iv) the effective date of any modification to a Money Term of such Mortgage Loan, other than an extension of the date that a Balloon Payment is due for a period of less than six months from the original due date of such Balloon Payment.


 


“Appraisal Reduction” means, with respect to any Required Appraisal Loan with respect to which an Appraisal or internal valuation is performed pursuant to Section 6.9, an amount equal to the excess of (A) the sum, as of the first Determination Date that is at least 15 days after the date on which the Appraisal or internal valuation is obtained or performed, of (i) the Scheduled Principal Balance of such Mortgage Loan (or, in the case of an REO Property, the related REO Mortgage Loan) less the undrawn principal amount of any letter of credit or debt service reserve, if applicable, that is then securing such Mortgage Loan, (ii) to the extent not previously advanced by the Master Servicer or the Trustee, all accrued and unpaid interest on such Mortgage Loan (or, in the case of an REO Property, the related REO Mortgage Loan), at a per annum rate equal to the Mortgage Rate, (iii) all unreimbursed Advances (including Unliquidated Advances) and interest on Advances (other than Unliquidated Advances) at the Advance Rate with respect to such Mortgage Loan (or, in the case of an REO Property, the


 




 




  





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related REO Mortgage Loan) and (iv) to the extent funds on deposit in any applicable Escrow Accounts are not sufficient therefor, and to the extent not previously advanced by the Master Servicer, the Special Servicer or the Trustee, all currently due and unpaid real estate taxes and assessments, insurance premiums and, if applicable, ground rents and other amounts which were required to be deposited in any Escrow Account (but were not deposited) in respect of such Mortgaged Property or REO Property, as the case may be, over (B) 90% of the Appraised Value (net of any prior mortgage liens) of such Mortgaged Property or REO Property as determined by such Appraisal or internal valuation, as the case may be, plus the full amount of any escrows held by or on behalf of the Trustee as security for the Mortgage Loan (less the estimated amount of the obligations anticipated to be payable in the next twelve months to which such escrows relate).  With respect to each Mortgage Loan that is cross-collateralized with any other Mortgage Loan, the value of each Mortgaged Property that is security for each Mortgage Loan in such cross-collateralized group, as well as the outstanding amounts under each such Mortgage Loan shall be taken into account when calculating such Appraisal Reduction.  Each Appraisal or internal valuation for a Required Appraisal Loan shall be updated annually, for so long as an Appraisal Reduction exists, from the date of such Appraisal or internal valuation.  In addition, the Operating Adviser may at any time request the Special Servicer to obtain (at the Operating Adviser’s expense) an updated Appraisal, with a corresponding adjustment to the amount of the Appraisal Reduction.  The Appraisal Reduction for each Required Appraisal Loan will be recalculated based on subsequent Appraisals, internal valuations or updates.  Any Appraisal Reduction for any Mortgage Loan shall be reduced to reflect any Realized Principal Losses on the Required Appraisal Loan.  Each Appraisal Reduction will be reduced to zero as of the date the related Mortgage Loan is brought current under the then current terms of the Mortgage Loan for at least three consecutive months, and no Appraisal Reduction will exist as to any Mortgage Loan after it has been paid in full, liquidated, repurchased or otherwise disposed of.


 


“Appraised Value” means (i) with respect to any Mortgaged Property (other than the Mortgaged Property securing a Co-op Mortgage Loan), the appraised value thereof determined by an Appraisal of the Mortgaged Property securing such Mortgage Loan made by an Independent appraiser selected by the Master Servicer or the Special Servicer, as applicable or, in the case of an internal valuation performed by the Special Servicer pursuant to Section 6.9, the value of the Mortgaged Property determined by such internal valuation and (ii) with respect to each Mortgaged Property securing a Co-op Mortgage Loan, the appraised value thereof determined by an Appraisal of the Mortgaged Property securing such Co-op Mortgage Loan made by an Independent appraiser selected by the Master Servicer or the Special Servicer, as applicable, or in the case of an internal valuation performed by the Special Servicer pursuant to Section 6.9, the value of the Mortgaged Property determined by such internal valuation, each determined as if such property were operated as a cooperatively owned multifamily residential building (rather than a multifamily rental apartment building).


 


“ARD Loan” means the Mortgage Loans designated on the Mortgage Loan Schedule as Mortgage Loan No. __ and Mortgage Loan No. __, collectively.


 


“Assignment of Leases” means, with respect to any Mortgage Loan, any assignment of leases, rents and profits or equivalent instrument, whether contained in the related Mortgage or executed separately, assigning to the holder or holders of such Mortgage all of the related Mortgagor’s interest in the leases, rents and profits derived from the ownership,


 


 




  





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operation, leasing or disposition of all or a portion of the related Mortgaged Property as security for repayment of such Mortgage Loan.


 


“Assignment of Mortgage” means an assignment of the Mortgage, notice of transfer or equivalent instrument, in recordable form, sufficient under the laws of the jurisdiction wherein the related Mortgaged Property is located to reflect the transfer of the Mortgage to the Trustee, which assignment, notice of transfer or equivalent instrument may be in the form of one or more blanket assignments covering the Mortgage Loans secured by Mortgaged Properties located in the same jurisdiction, if permitted by law.


 


“Assumed Scheduled Payment” means:  (i) with respect to any Balloon Mortgage Loan for its Maturity Date (provided that such Mortgage Loan has not been paid in full, and no Final Recovery Determination or other sale or liquidation has occurred in respect thereof, on or before the end of the Collection Period in which such Maturity Date occurs) and for any subsequent Due Date therefor as of which such Mortgage Loan remains outstanding and part of the Trust, if no Scheduled Payment (other than the related delinquent Balloon Payment) is due for such Due Date, the scheduled monthly payment of principal and/or interest deemed to be due in respect thereof on such Due Date equal to the Scheduled Payment that would have been due in respect of such Mortgage Loan on such Due Date, if it had been required to continue to accrue interest in accordance with its terms, and to pay principal in accordance with the amortization schedule in effect immediately prior to, and without regard to the occurrence of, its most recent Maturity Date (as such may have been extended in connection with a bankruptcy or similar proceeding involving the related Mortgagor or a modification, waiver or amendment of such Mortgage Loan granted or agreed to by the Master Servicer or the Special Servicer pursuant to the terms hereof) and (ii) with respect to any REO Mortgage Loan for any Due Date therefor as of which the related REO Property remains part of the Trust, the scheduled monthly payment of principal and interest deemed to be due in respect thereof on such Due Date equal to the Scheduled Payment (or, in the case of a Balloon Mortgage Loan described in the preceding clause of this definition, the Assumed Scheduled Payment) that was due in respect of the related Mortgage Loan on the last Due Date prior to its becoming an REO Mortgage Loan.


 


“Authenticating Agent” means any authenticating agent serving in such capacity pursuant to Section 7.10.


 


“Authorized Officer” means any Person that may execute an Officer’s Certificate on behalf of the Depositor.


 


“Available Advance Reimbursement Amount” has the meaning set forth in Section 4.6(a) hereof.


 


“Available Distribution Amount” means, with respect to any Distribution Date and the Mortgage Loans, an amount equal to the aggregate of the following amounts (a) all amounts on deposit in the Distribution Account as of the commencement of business on such Distribution Date that represent payments and other collections on or in respect of the Mortgage Loans and any REO Properties that were (x) received by the Master Servicer or the Special Servicer through the end of the related Collection Period (other than any portion thereof that constituted a portion of the Available Distribution Amount for a prior Distribution Date as


 


 




  





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described in clause (a)(y) below) or (y) remitted by the Master Servicer on the related Master Servicer Remittance Date pursuant to Section 5.1(h), exclusive of (i) any such amounts that were deposited in the Distribution Account in error, (ii) amounts that are payable or reimbursable to any Person other than the Certificateholders (including amounts payable to the Master Servicer in respect of unpaid Master Servicing Fees, the Primary Servicers in respect of unpaid Primary Servicing Fees, the Special Servicer in respect of unpaid Special Servicer Compensation, the Trustee in respect of unpaid Trustee Fees or to the parties entitled thereto in respect of the unpaid Excess Servicing Fees), (iii) amounts that constitute Prepayment Premiums or Yield Maintenance Charges, (iv) if such Distribution Date occurs during January, other than in a leap year, or February of any year, the Interest Reserve Amounts with respect to Interest Reserve Loans deposited in the Interest Reserve Accounts, (v) Excess Interest and (vi) Scheduled Payments collected but due on a Due Date subsequent to the related Collection Period (other than any portion thereof described in clause (a)(y) above)  and (b) if and to the extent not already among the amounts described in clause (a), (i) the aggregate amount of any P&I Advances made by the Master Servicer or the Trustee for such Distribution Date pursuant to Section 4.1 and/or Section 4.3, (ii) the aggregate amount of any Compensating Interest payments made by the Master Servicer for such Distribution Date pursuant to the terms hereof, and (iii) if a Distribution Date occurs in March of any year, commencing March 20__ or if a Maturity Date or Principal Prepayment falls on a January or February of any year, the aggregate of the Interest Reserve Amounts then held on deposit in the Interest Reserve Accounts in respect of the related Interest Reserve Loan or Interest Reserve Loans.


 


“Balloon Mortgage Loan” means a Mortgage Loan that provides for Scheduled Payments based on an amortization schedule that is significantly longer than its term to maturity and that is expected to have a remaining principal balance equal to or greater than 5% of its original principal balance as of its stated maturity date, unless prepaid prior thereto.


 


“Balloon Payment” means, with respect to any Balloon Mortgage Loan, the Scheduled Payment payable on the Maturity Date of such Mortgage Loan.


 


“Banking Day” means any day on which commercial banks are open for business (including dealings in foreign exchange and foreign currency) in London, England.


 


“Bankruptcy Loss” means a loss arising from a proceeding under the United States Bankruptcy Code or any other similar state law or other proceeding with respect to the Mortgagor of, or Mortgaged Property under, a Mortgage Loan, including, without limitation, any Deficient Valuation Amount or losses, if any, resulting from any Debt Service Reduction Amount for the month in which the related Remittance Date occurs.


 


“Base Interest Fraction” means, with respect to any Principal Prepayment of any Mortgage Loan that provides for payment of a Prepayment Premium or Yield Maintenance Charge, and with respect to any Class of Certificates (except for Class [A-3-1FL] Certificates) and the Class A-3-1FL Regular Interest, a fraction (A) whose numerator is the greater of (x) zero and (y) the difference between (i) the Pass-Through Rate on that Class of Certificates or the Class A-3-1FL Regular Interest and (ii) the Discount Rate used in calculating the Prepayment Premium or Yield Maintenance Charge with respect to the Principal Prepayment (or the current Discount Rate if not used in such calculation) and (B) whose denominator is the difference


 


 




  





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between (i) the Mortgage Rate on the related Mortgage Loan and (ii) the Discount Rate used in calculating the Prepayment Premium or Yield Maintenance Charge with respect to that Principal Prepayment (or the current Discount Rate if not used in such calculation), provided, however, that under no circumstances will the Base Interest Fraction be greater than one.  If the Discount Rate referred to above is greater than the Mortgage Rate on the related Mortgage Loan, then the Base Interest Fraction will equal zero.


 


“Book-Entry Certificates” means certificates evidencing a beneficial interest in a Class of Certificates, ownership and transfer of which shall be made through book entries as described in Section 3.7; provided that after the occurrence of a condition whereupon book-entry registration and transfer are no longer authorized and Definitive Certificates are to be issued to the Certificate Owners, such certificates shall no longer be “Book-Entry Certificates.”


 


“Business Day” means (i) with respect to any matter not involving the payment of the Net Swap Payment, any day other than a Saturday, a Sunday or a day on which banking institutions in the states where the Certificate Account, Distribution Account, Trustee, the Master Servicer, a Primary Servicer or the Special Servicer are located and are authorized or obligated by law or executive order to remain closed or (ii) with respect to the payment of the Net Swap Payment, any day other than a Saturday, a Sunday or a day on which banking institutions in the states where the Trustee or the Swap Counterparty are located and are authorized or obligated by law or executive order to remain closed.  With respect to clause (i) of the foregoing definition, upon the request of any party to this Agreement or the Operating Adviser, the Trustee, the Paying Agent, the Master Servicer, the Special Servicer and each Primary Servicer shall provide such party a list of the legal holidays observed by such entity; provided that each Primary Servicer shall be required to provide the Operating Adviser and the Master Servicer on or before the first day of January of each calendar year with a list of each day that will not be a “Business Day” in the jurisdiction of such Primary Servicer during such calendar year


 


“Cash Liquidation” means, as to any Defaulted Mortgage Loan other than a Mortgage Loan with respect to which the related Mortgaged Property became REO Property, the sale of such Defaulted Mortgage Loan.  The Master Servicer shall maintain records in accordance with the Servicing Standard (and, in the case of Specially Serviced Mortgage Loans, based on the written reports with respect to such Cash Liquidation delivered by the Special Servicer to the Master Servicer), of each Cash Liquidation.


 


“CERCLA” means the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. § 9601, et seq.).


 


“Certificate Account” means one or more separate accounts established and maintained by the Master Servicer (or any Sub-Servicer or Primary Servicer on behalf of the Master Servicer) pursuant to Section 5.1(a), each of which shall be an Eligible Account.


 


“Certificate Balance” means, with respect to any Certificate (other than the Class [X] Certificates, the Class [EI] Certificates and the Residual Certificates) or Interest (other than the Group X-Y REMIC I Regular Interests and the REMIC II Regular Interest X-Y) as of any Distribution Date, the maximum specified dollar amount of principal to which the Holder thereof is then entitled hereunder, such amount being equal to the initial principal amount set


 




 




  





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forth on the face of such Certificate (in the case of a Certificate), or as ascribed thereto in the Preliminary Statement hereto (in the case of an Interest), minus (A)(i) the amount of all principal distributions previously made with respect to such Certificate pursuant to Section 6.5(a) or deemed to have been made with respect to such Interest pursuant to Section 6.2(a) or Section 6.3(a), as the case may be and (ii) all Realized Losses allocated or deemed to have been allocated to such Interest or Certificate pursuant to Section 6.6, plus (B) an amount equal to the amounts identified in clause (I)(C) of the definition of Principal Distribution Amount, such increases to be allocated to the Principal Balance Certificates or Interests in sequential order (i.e., to the most senior Class first), in each case up to the amount of Realized Losses previously allocated thereto and not otherwise reimbursed hereunder.


 


“Certificate Owner” means, with respect to a Book-Entry Certificate, the Person who is the beneficial owner of such Book-Entry Certificate, as may be reflected on the books of the Clearing Agency, or on the books of a Person maintaining an account with such Clearing Agency (directly or as an indirect participant, in accordance with the rules of such Clearing Agency).


 


“Certificate Register” has the meaning provided in Section 3.2.


 


“Certificate Registrar” means the registrar appointed pursuant to Section 3.2 and initially shall be the Paying Agent.


 


“Certificateholders” has the meaning provided in the definition of “Holder.”


 


“Certificates” means, collectively, the REMIC III Certificates, the Class [A-3-1FL] Certificates, the Class [EI] Certificates, the Class [R-I] Certificates, the Class [R-II] Certificates and the Class [R-III] Certificates.


 


“Certification Parties” has the meaning set forth in Section 13.8.


 


“Certifying Person” has the meaning set forth in Section 13.8.


 


“Certifying Servicer” has the meaning set forth in Section 13.11.


 


“Class” means, with respect to the REMIC I Regular Interests, REMIC II Regular Interests, REMIC III Certificates, Class A-3-1FL Regular Interest, Class [A-3-1FL] Certificates and Class [EI] Certificates, any class of such Certificates or Interests.


 


“Class [A] Certificates” means the Class [A-1] Certificates, Class [A-1A] Certificates, Class [A-2] Certificates, Class [A-3-1FL] Certificates (or, as the context requires, the Class A-3-1FL Regular Interest), Class [A-3-1] Certificates, Class [A-3-2] Certificates, Class [A-AB] Certificates, Class [A-4A] Certificates and Class [A-4B] Certificates, collectively.


 


“Class A-3-1FL Available Funds” means, in respect of each Distribution Date, (i) the sum of all previously undistributed payments or other receipts on account of principal and interest and other sums on or in respect of the Class A-3-1FL Regular Interest received by the Paying Agent (or the Master Servicer on the Paying Agent’s behalf) after the Cut-off Date and on or prior to such Distribution Date and (ii) the sum of all previously undistributed amounts


 


 




  





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received from the Swap Counterparty in respect of the Class A-3-1FL Regular Interest pursuant to the Swap Contract, including, but not limited to, any termination payment, but in the case of both (i) and (ii) excluding the following:  (a) all amounts of Prepayment Premiums allocated to the Class A-3-1FL Regular Interest for so long as the Swap Contract is in effect; (b) all amounts required to be paid to the Swap Counterparty in respect of the Class A-3-1FL Regular Interest pursuant to the Swap Contract; and (c) all amounts incurred by the Trustee in connection with enforcing the rights of the Trust under the Swap Contract.


 


“Class A-3-1FL Grantor Trust” means the segregated pool of assets consisting of (i) the Class A-3-1FL Regular Interest and the Swap Contract and all payments under the Class A-3-1FL Regular Interest and the Swap Contract, (ii) all funds and assets from time to time on deposit in the Floating Rate Account and (iii) proceeds of all of the foregoing.


 


“Class A-3-1FL Interest Distribution Amount” means, in respect of any Distribution Date, the sum of (i) for so long as the Swap Contract is in effect, the aggregate amount of interest received by the Paying Agent from the Swap Counterparty in respect of the Class A-3-1FL Regular Interest pursuant to the terms of the Swap Contract during the related Interest Accrual Period and (ii) amounts in respect of interest (including reimbursement of any Prepayment Interest Shortfalls) received on the Class A-3-1FL Regular Interest not required to be paid to the Swap Counterparty (which will arise due to the netting provisions of the Swap Contract or upon the termination or expiration of the Swap Contract).  If the Swap Counterparty defaults on its obligation to pay such interest to the Paying Agent, or if a Swap Default occurs and is continuing or if the Swap Contract is terminated, the Class A-3-1FL Interest Distribution Amount will equal the Distributable Certificate Interest Amount in respect of the Class A-3-1FL Regular Interest, until such time as the Swap Default is cured, or such obligation is paid, as the case may be, or until a replacement Swap Contract is obtained.


 


“Class A-3-1FL Principal Distribution Amount” means, in respect of any Distribution Date, an amount equal to the aggregate amount of the principal payments made on the Class A-3-1FL Regular Interest on such Distribution Date.


 


“Class A-3-1FL Regular Interest” means the uncertificated interest designated as a “regular interest” in REMIC III, which shall consist of an Interest having a Certificate Balance equal to the Certificate Balance of the Class [A-3-1FL] Certificates, and which has a Pass-Through Rate equal to the per annum rate of the lesser of [_]% and the Weighted Average REMIC I Net Mortgage Rate in respect of each Distribution Date.


 


“Class [A-4] Certificates” means the Class [A-4A] Certificates and Class [A-4B] Certificates, collectively.


 


“Class [A-1] Certificates,” “Class [A-1A] Certificates,” “Class [A-2] Certificates,” “Class [A-3-1FL] Certificates,” “Class [A-3-1] Certificates,” “Class [A-3-2] Certificates,” “Class [A-AB] Certificates,” “Class [A-4A] Certificates,” “Class [A-4B] Certificates,” “Class [A-J] Certificates,” “Class [X-1] Certificates,” “Class [X-2] Certificates,” “Class [X-Y] Certificates,” “Class [B] Certificates,” “Class [C] Certificates,” “Class [D] Certificates,” “Class [E] Certificates,” “Class [F] Certificates,” “Class [G] Certificates,” “Class [H] Certificates,” “Class [J] Certificates,” “Class [K] Certificates,”


 


 




  





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“Class [L] Certificates,” “Class [M] Certificates,” “Class [N] Certificates,” “Class [O] Certificates,” “Class [P] Certificates,” “Class [EI] Certificates,” “Class [R-I] Certificates,” “Class [R-II] Certificates,” or “Class [R-III] Certificates” mean the Certificates designated as “Class [A-1],” “Class A-1A,” “Class A-2,” “Class A-3-1FL,” “Class A-3-1,” “Class A-3-2,” “Class A-AB,” “Class A-4A,” “Class A-4B,” “Class A-J,” “Class X-1,” “Class X-2,” “Class X-Y,” “Class B,” “Class C,” “Class D,” “Class E,” “Class F,” “Class G,” “Class H,” “Class J,” “Class K,” “Class L,” “Class M,” “Class N,” “Class O,” “Class EI,” “Class R-I,” “Class R-II” and “Class R-III,” respectively, on the face thereof, in substantially the form attached hereto as Exhibits A-1 through A-31.


 


“Class A-1-1 Component” means a component of the beneficial interest in REMIC III evidenced by the Class [A-1] Certificates, which component represents a Component Notional Amount equal to the Certificate Balance of the REMIC II Regular Interest A-1-1.


 


“Class A-1-2 Component” means a component of the beneficial interest in REMIC III evidenced by the Class [A-1] Certificates, which component represents a Component Notional Amount equal to the Certificate Balance of the REMIC II Regular Interest A-1-2.


 


“Class A-1-3 Component” means a component of the beneficial interest in REMIC III evidenced by the Class [A-1] Certificates, which component represents a Component Notional Amount equal to the Certificate Balance of the REMIC II Regular Interest A-1-3.


 


“Class A-1A-1 Component” means a component of the beneficial interest in REMIC III evidenced by the Class [A-1A] Certificates, which component represents a Component Notional Amount equal to the Certificate Balance of the REMIC II Regular Interest A-1A-1.


 


“Class A-1A-2 Component” means a component of the beneficial interest in REMIC III evidenced by the Class [A-1A] Certificates, which component represents a Component Notional Amount equal to the Certificate Balance of the REMIC II Regular Interest A-1A-2.


 


“Class A-1A-3 Component” means a component of the beneficial interest in REMIC III evidenced by the Class [A-1A] Certificates, which component represents a Component Notional Amount equal to the Certificate Balance of the REMIC II Regular Interest A-1A-3.


 


“Class A-1A-4 Component” means a component of the beneficial interest in REMIC III evidenced by the Class [A-1A] Certificates, which component represents a Component Notional Amount equal to the Certificate Balance of the REMIC II Regular Interest A-1A-4.


 


“Class A-1A-5 Component” means a component of the beneficial interest in REMIC III evidenced by the Class [A-1A] Certificates, which component represents a Component Notional Amount equal to the Certificate Balance of the REMIC II Regular Interest A-1A-5.


 


 




  





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“Class A-1A-6 Component” means a component of the beneficial interest in REMIC III evidenced by the Class [A-1A] Certificates, which component represents a Component Notional Amount equal to the Certificate Balance of the REMIC II Regular Interest A-1A-6.


 


“Class A-1A-7 Component” means a component of the beneficial interest in REMIC III evidenced by the Class [A-1A] Certificates, which component represents a Component Notional Amount equal to the Certificate Balance of the REMIC II Regular Interest A-1A-7.


 


“Class A-1A-8 Component” means a component of the beneficial interest in REMIC III evidenced by the Class [A-1A] Certificates, which component represents a Component Notional Amount equal to the Certificate Balance of the REMIC II Regular Interest A-1A-8.


 


“Class A-1A-9 Component” means a component of the beneficial interest in REMIC III evidenced by the Class [A-1A] Certificates, which component represents a Component Notional Amount equal to the Certificate Balance of the REMIC II Regular Interest A-1A-9.


 


“Class A-2 Component” means a component of the beneficial interest in REMIC III evidenced by the Class [A-2] Certificates, which component represents a Component Notional Amount equal to the Certificate Balance of the REMIC II Regular Interest A-2.


 


“Class A-3-1FL-1 Component” means a component of the beneficial interest in REMIC III evidenced by the Class A-3-1FL Regular Interest, which component represents a Component Notional Amount equal to the Certificate Balance of the REMIC II Regular Interest A-3-1FL-1.


 


“Class A-3-1FL-2 Component” means a component of the beneficial interest in REMIC III evidenced by the Class A-3-1FL Regular Interest, which component represents a Component Notional Amount equal to the Certificate Balance of the REMIC II Regular Interest A-3-1FL-2.


 


“Class A-3-1FL-3 Component” means a component of the beneficial interest in REMIC III evidenced by the Class A-3-1FL Regular Interest, which component represents a Component Notional Amount equal to the Certificate Balance of the REMIC II Regular Interest A-3-1FL-3.


 


“Class A-3-1FL-4 Component” means a component of the beneficial interest in REMIC III evidenced by the Class A-3-1FL Regular Interest, which component represents a Component Notional Amount equal to the Certificate Balance of the REMIC II Regular Interest A-3-1FL-4.


 


“Class A-3-1-1 Component” means a component of the beneficial interest in REMIC III evidenced by the Class [A-3-1] Certificates, which component represents a Component Notional Amount equal to the Certificate Balance of the REMIC II Regular Interest A-3-1-1.


 


 




  





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“Class A-3-1-2 Component” means a component of the beneficial interest in REMIC III evidenced by the Class [A-3-1] Certificates, which component represents a Component Notional Amount equal to the Certificate Balance of the REMIC II Regular Interest A-3-1-2.


 


“Class A-3-1-3 Component” means a component of the beneficial interest in REMIC III evidenced by the Class [A-3-1] Certificates, which component represents a Component Notional Amount equal to the Certificate Balance of the REMIC II Regular Interest A-3-1-3


 


“Class A-3-1-4 Component” means a component of the beneficial interest in REMIC III evidenced by the Class [A-3-1] Certificates, which component represents a Component Notional Amount equal to the Certificate Balance of the REMIC II Regular Interest A-3-1-4.


 


“Class A-3-2-1 Component” means a component of the beneficial interest in REMIC III evidenced by the Class [A-3-2] Certificates, which component represents a Component Notional Amount equal to the Certificate Balance of the REMIC II Regular Interest A-3-2-1.


 


“Class A-3-2-2 Component” means a component of the beneficial interest in REMIC III evidenced by the Class [A-3-2] Certificates, which component represents a Component Notional Amount equal to the Certificate Balance of the REMIC II Regular Interest A-3-2-2.


 


“Class A-AB-1 Component” means a component of the beneficial interest in REMIC III evidenced by the Class [A-AB] Certificates, which component represents a Component Notional Amount equal to the Certificate Balance of the REMIC II Regular Interest A-AB-1.


 


“Class A-AB-2 Component” means a component of the beneficial interest in REMIC III evidenced by the Class [A-AB] Certificates, which component represents a Component Notional Amount equal to the Certificate Balance of the REMIC II Regular Interest A-AB-2.


 


“Class A-4A-1 Component” means a component of the beneficial interest in REMIC III evidenced by the Class [A-4A] Certificates, which component represents a Component Notional Amount equal to the Certificate Balance of the REMIC II Regular Interest A-4A-1.


 


“Class A-4A-2 Component” means a component of the beneficial interest in REMIC III evidenced by the Class [A-4] Certificates, which component represents a Component Notional Amount equal to the Certificate Balance of the REMIC II Regular Interest A-4A-2.


 


“Class A-4A-3 Component” means a component of the beneficial interest in REMIC III evidenced by the Class [A-4] Certificates, which component represents a Component Notional Amount equal to the Certificate Balance of the REMIC II Regular Interest A-4A-3.


 


 




  





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“Class A-4B Component” means a component of the beneficial interest in REMIC III evidenced by the Class [A-4B] Certificates, which component represents a Component Notional Amount equal to the Certificate Balance of the REMIC II Regular Interest A-4B.


 


“Class A-J Component” means a component of the beneficial interest in REMIC III evidenced by the Class [A-J] Certificates, which component represents a Component Notional Amount equal to the Certificate Balance of the REMIC II Regular Interest A-J.


 


“Class B-1 Component” means a component of the beneficial interest in REMIC III evidenced by the Class [B] Certificates, which component represents a Component Notional Amount equal to the Certificate Balance of the REMIC II Regular Interest B-1.


 


“Class B-2 Component” means a component of the beneficial interest in REMIC III evidenced by the Class [B] Certificates, which component represents a Component Notional Amount equal to the Certificate Balance of the REMIC II Regular Interest B-2.


 


“Class B-3 Component” means a component of the beneficial interest in REMIC III evidenced by the Class [B] Certificates, which component represents a Component Notional Amount equal to the Certificate Balance of the REMIC II Regular Interest B-3.


 


“Class C-1 Component” means a component of the beneficial interest in REMIC III evidenced by the Class [C] Certificates, which component represents a Component Notional Amount equal to the Certificate Balance of the REMIC II Regular Interest C-1.


 


“Class C-2 Component” means a component of the beneficial interest in REMIC III evidenced by the Class [C] Certificates, which component represents a Component Notional Amount equal to the Certificate Balance of the REMIC II Regular Interest C-2.


 


“Class D-1 Component” means a component of the beneficial interest in REMIC III evidenced by the Class [D] Certificates, which component represents a Component Notional Amount equal to the Certificate Balance of the REMIC II Regular Interest D-1.


 


“Class D-2 Component” means a component of the beneficial interest in REMIC III evidenced by the Class [D] Certificates, which component represents a Component Notional Amount equal to the Certificate Balance of the REMIC II Regular Interest D-2.


 


“Class E Component” means a component of the beneficial interest in REMIC III evidenced by the Class [E] Certificates, which component represents a Component Notional Amount equal to the Certificate Balance of the REMIC II Regular Interest E.


 


“Class EI Grantor Trust” means that portion of the Trust consisting of Excess Interest and the Excess Interest Sub-account.


 


“Class F-1 Component” means a component of the beneficial interest in REMIC III evidenced by the Class [F] Certificates, which component represents a Component Notional Amount equal to the Certificate Balance of the REMIC II Regular Interest F-1.


 


 




  





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“Class F-2 Component” means a component of the beneficial interest in REMIC III evidenced by the Class [F] Certificates, which component represents a Component Notional Amount equal to the Certificate Balance of the REMIC II Regular Interest F-2.


 


“Class G Component” means a component of the beneficial interest in REMIC III evidenced by the Class [G] Certificates, which component represents a Component Notional Amount equal to the Certificate Balance of the REMIC II Regular Interest G.


 


“Class H-1 Component” means a component of the beneficial interest in REMIC III evidenced by the Class [H] Certificates, which component represents a Component Notional Amount equal to the Certificate Balance of the REMIC II Regular Interest H-1.


 


“Class H-2 Component” means a component of the beneficial interest in REMIC III evidenced by the Class [H] Certificates, which component represents a Component Notional Amount equal to the Certificate Balance of the REMIC II Regular Interest H-2.


 


“Class J Component” means a component of the beneficial interest in REMIC III evidenced by the Class [J] Certificates, which component represents a Component Notional Amount equal to the Certificate Balance of the REMIC II Regular Interest J.


 


“Class K Component” means a component of the beneficial interest in REMIC III evidenced by the Class [K] Certificates, which component represents a Component Notional Amount equal to the Certificate Balance of the REMIC II Regular Interest K.


 


“Class L Component” means a component of the beneficial interest in REMIC III evidenced by the Class [L] Certificates, which component represents a Component Notional Amount equal to the Certificate Balance of the REMIC II Regular Interest L.


 


“Class M Component” means a component of the beneficial interest in REMIC III evidenced by the Class [M] Certificates, which component represents a Component Notional Amount equal to the Certificate Balance of the REMIC II Regular Interest M.


 


“Class N Component” means a component of the beneficial interest in REMIC III evidenced by the Class [N] Certificates, which component represents a Component Notional Amount equal to the Certificate Balance of the REMIC II Regular Interest N.


 


“Class O Component” means a component of the beneficial interest in REMIC III evidenced by the Class [O] Certificates, which component represents a Component Notional Amount equal to the Certificate Balance of the REMIC II Regular Interest O.


 


“Class P Component” means a component of the beneficial interest in REMIC III evidenced by the Class [P] Certificates, which component represents a Component Notional Amount equal to the Certificate Balance of the REMIC II Regular Interest P.


 


“Class [X] Certificates” means the Class [X-1] Certificates, the Class [X-2] Certificates and the Class [X-Y] Certificates, collectively.


 


 




  





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“Class [X-1] Notional Amount” means, with respect to the Class [X-1] Certificates and any date of determination, the aggregate of the outstanding Certificate Balances of the Principal Balance Certificates.


 


“Class X-1 Strip Rate” means, with respect to any Class of Components (other than Components that are also Class X-2 Components) for any Distribution Date, a rate per annum equal to (i) the Weighted Average REMIC I Net Mortgage Rate for such Distribution Date, minus (ii) the Pass-Through Rate for the Corresponding Certificates.  In the case of any Class of Components that are also Class X-2 Components, (i) for any Distribution Date occurring on or before the related Class X-2 Component Crossover Date, a rate per annum equal to, (x) the Weighted Average REMIC I Net Mortgage Rate for such Distribution Date, minus (y) the greater of (1) the rate per annum corresponding to such Distribution Date as set forth in Schedule III attached hereto and (2) the Pass Through Rate for the Class of Corresponding Certificates, and (ii) for any Distribution Date occurring after the related Class X-2 Component Crossover Date, a rate per annum equal to (x) the Weighted Average REMIC I Net Mortgage Rate for such Distribution Date, minus (y) the Pass-Through Rate for the Corresponding Certificates (provided that in no event shall any Class X-1 Strip Rate be less than zero).


 


“Class X-2 Component Crossover Date” means, (i) with respect to the Class A-1-2 Component and the Class A-1A-2 Component, the Distribution Date in ______,


 


(ii) with respect to the Class A-1-3 Component, Class A-1A-3 Component, Class A-2 Component, Class A-3-1FL-1 Component, Class A-3-1-1 Component, Class H-1 Component, Class J Component, Class K Component and Class L Component the Distribution Date occurring in ___;


 


(iii) with respect to the Class A-1A-4 Component, Class A-3-1FL-2 Component, Class A-3-1-2 Component, Class F-1 Component, Class G Component and Class H-2 Component, the Distribution Date occurring in ____;


 


(iv) with respect to the Class A-1A-5 Component, Class A-3-1FL-3 Component, Class A-3-1-3 Component, Class D-1 Component, Class F-2 Component and Class E Component, the Distribution Date occurring in _____;


 


(v) with respect to the Class A-1A-6 Component, Class A-3-1FL-4 Component, Class A-3-1-4 Component, Class A-3-2-1 Component, Class A-AB-1 Component, Class C-1 Component and Class D-2 Component, the Distribution Date occurring in ______;


 


(vi) with respect to the Class A-1A-7 Component, Class A-3-2-2 Component, Class A-AB-2 Component, Class A-4A-1 Component, Class B-1 Component and Class C-2 Component, the Distribution Date occurring in ______;


 


(vii) with respect to the Class A-1A-8 Component, Class A-4A-2 Component and Class B-2 Component, the Distribution Date occurring in ______; and


 


(viii), with respect to the Class A-1A-9 Component, Class A-4A-3 Component, Class A-4B Component, Class A-J Component and Class B-3 Component, the Distribution Date occurring in ______.


 




  





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“Class X-2 Components” means each of the Class A-1-2 Component, Class A-1-3 Component, Class A-1A-2 Component, Class A-1A-3 Component, Class A-1A-4 Component, Class A-1A-5 Component, Class A-1A-6 Component, Class A-1A-7 Component, Class A-1A-8 Component, Class A-1A-9 Component, Class A-2 Component, Class A-3-1FL-1 Component, Class A-3-1FL-2 Component, Class A-3-1FL-3 Component, Class A-3-1FL-4 Component, Class A-3-1-1 Component, Class A-3-1-2 Component, Class A-3-1-3 Component, Class A-3-1-4 Component, Class A-3-2-1 Component, Class A-3-2-2 Component, Class A-AB-1 Component, Class A-AB-2 Component, Class A-4A-1 Component, Class A-4A-2 Component, Class A-4A-3 Component, Class A-4B Component, Class A-J Component, Class B-1 Component, Class B-2 Component, Class C-1 Component, Class C-2 Component, Class D-1 Component, Class D-2 Component, Class E Component, Class F-1 Component, Class F-2 Component, Class G Component, Class H-1 Component, Class H-2 Component, Class J-1 Component, Class J-2 Component, Class K Component and Class L Component.


 


“Class X-2 Notional Amount” means as of any date of determination, the sum of the then Component Notional Amounts of the Class X-2 Components excluding the Class X-2 Components for which the Class X-2 Crossover Date has been previously passed.


 


“Class X-2 Strip Rate” means, with respect to each of the Class X-2 Components for any Distribution Date, a rate per annum equal to (i) for any Distribution Date occurring on or before the related Class X-2 Component Crossover Date, the excess, if any, of (x) the lesser of (i) the rate per annum corresponding to such Distribution Date as set forth in Schedule III attached hereto and (ii) the Weighted Average REMIC I Net Mortgage Rate for such Distribution Date over (y) the Pass Through Rate for the Class of Corresponding Certificates (provided that, in no event shall any Class X-2 Strip Rate be less than zero), and (ii) for any Distribution Date occurring after the related Class X-2 Component Crossover Date, 0% per annum.


 


“Class X-Y Interest Amount” means, with respect to any Distribution Date and the related Interest Accrual Period, interest accrued on the Class X-Y Notional Amount during the related Interest Accrual Period at a rate equal to one twelfth of a per annum rate equal to the Weighted Average Class X-Y Strip Rate.


 


“Class X-Y Notional Amount” means, with respect to any Distribution Date, the aggregate of the Principal Balances of the Specially Designated Co-op Mortgage Loans (or any successor REO Mortgage Loans), reduced by any Advances of principal on such Specially Designated Co-op Mortgage Loans (or any successor REO Mortgage Loans) and losses on those Specially Designated Co-op Mortgage Loans previously allocated to the Certificateholders.


 


“Class X-Y Strip Rate” means, with respect to any Specially Designated Co-op Mortgage Loan (and any successor REO Mortgage Loan with respect thereto), for any Distribution Date, a rate per annum equal to either: (1) if such Mortgage Loan accrues interest on a 30/360 basis, ____%; and (2) if such Mortgage Loan accrues interest on a basis other than that of a 30/360 basis, the product of (a)  ____%, multiplied by (b) a fraction, the numerator of which is the number of days in the Interest Accrual Period that corresponds to such Distribution Date, and the denominator of which 30.


 




  





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“Clearing Agency” means an organization registered as a “clearing agency” pursuant to Section 17A of the 1934 Act, which initially shall be the Depository.


 


“Clearstream” means Clearstream Banking Luxembourg, société anonyme.


 


“Closing Date” means on or about ____, 20__.


 


“CMSA” means the Commercial Mortgage Securities Association.


 


“CMSA Bond Level File” means a report substantially in the form of, and containing the information called for in, the downloadable form of the “Bond Level File” available as of the Closing Date on the CMSA Website, or such other form for the presentation of such information and containing such additional information as may from time to time be approved by the CMSA for commercial mortgage securities transactions generally and, insofar as it requires the presentation of information in addition to that called for by the form of the “Bond Level File” available as of the Closing Date on the CMSA Website, is reasonably acceptable to the Trustee, as applicable.


 


“CMSA Collateral Summary File” means a report substantially in the form of, and containing the information called for in, the downloadable form of the “Collateral Summary File” available as of the Closing Date on the CMSA Website, or such other form for the presentation of such information and containing such additional information as may from time to time be approved by the CMSA for commercial mortgage securities transactions generally and, insofar as it requires the presentation of information in addition to that called for by the form of the “Collateral Summary File” available as of the Closing Date on the CMSA Website, is reasonably acceptable to the Trustee, as applicable.


 


“CMSA Comparative Financial Status Report” means a report substantially in the form of, and containing the information called for in, the downloadable form of the “Comparative Financial Status Report” available as of the Closing Date on the CMSA Website, or such other form for the presentation of such information and containing such additional information as may from time to time be approved by the CMSA for commercial mortgage securities transactions generally and, insofar as it requires the presentation of information in addition to that called for by the form of the “Comparative Financial Status Report” available as of the Closing Date on the CMSA Website, is reasonably acceptable to the Master Servicer or the Special Servicer, as applicable.


 


“CMSA Delinquent Loan Status Report” means a report substantially in the form of, and containing the information called for in, the downloadable form of the “Delinquent Loan Status Report” available as of the Closing Date on the CMSA Website, or such other form for the presentation of such information and containing such additional information as may from time to time be approved by the CMSA for commercial mortgage securities transactions generally and, insofar as it requires the presentation of information in addition to that called for by the form of the “Delinquent Loan Status Report” available as of the Closing Date on the CMSA Website, is reasonably acceptable to the Master Servicer or the Special Servicer, as applicable.


 




  





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“CMSA Financial File” means a report substantially in the form of, and containing the information called for in, the downloadable form of the “Financial File” available as of the Closing Date on the CMSA Website, or such other form for the presentation of such information and containing such additional information as may from time to time be approved by the CMSA for commercial mortgage securities transactions generally and, insofar as it requires the presentation of information in addition to that called for by the form of the “Financial File” available as of the Closing Date on the CMSA Website, is reasonably acceptable to the Master Servicer or the Special Servicer, as applicable.


 


“CMSA Historical Liquidation Report” means a report substantially in the form of, and containing the information called for in, the downloadable form of the “Historical Liquidation Report” available as of the Closing Date on the CMSA Website, or such other form for the presentation of such information and containing such additional information as may from time to time be approved by the CMSA for commercial mortgage securities transactions generally and, insofar as it requires the presentation of information in addition to that called for by the form of the “Historical Liquidation Report” available as of the Closing Date on the CMSA Website, is reasonably acceptable to the Master Servicer or the Special Servicer, as applicable.


 


“CMSA Historical Loan Modification and Corrected Mortgage Loan Report” means a report substantially in the form of, and containing the information called for in, the downloadable form of the “Historical Loan Modification and Corrected Mortgage Loan Report” available as of the Closing Date on the CMSA Website, or such other form for the presentation of such information and containing such additional information as may from time to time be approved by the CMSA for commercial mortgage securities transactions generally and, insofar as it requires the presentation of information in addition to that called for by the form of the “Historical Loan Modification and Corrected Mortgage Loan Report” available as of the Closing Date on the CMSA Website, is reasonably acceptable to the Master Servicer or the Special Servicer, as applicable.


 


“CMSA Loan Level Reserve/LOC Report” means a report substantially in the form of, and containing the information called for in, the downloadable form of the “Loan Level Reserve/LOC Report” available as of the Closing Date on the CMSA Website, or such other form for the presentation of such information and containing such additional information as may from time to time be approved by the CMSA for commercial mortgage securities transactions generally and, insofar as it requires the presentation of information in addition to that called for by the form of the “Loan Level Reserve/LOC Report” available as of the Closing Date on the CMSA Website, is reasonably acceptable to the Master Servicer or the Special Servicer, as applicable.


 


“CMSA Loan Periodic Update File” means a monthly report substantially in the form of, and containing the information called for in, the downloadable form of the “Loan Periodic Update File” available as of the Closing Date on the CMSA Website, or such other form for the presentation of such information and containing such additional information as may from time to time be recommended by the CMSA for commercial mortgage-backed securities transactions generally and, insofar as it requires the presentation of information in addition to that called for by the form of the “Loan Periodic Update File” available as of the Closing Date on 


 


 




  





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the CMSA Website, is reasonably acceptable to the Master Servicer or the Special Servicer, as applicable.


 


“CMSA Loan Setup File” means a report substantially in the form of, and containing the information called for in, the downloadable form of the “Loan Setup File” available as of the Closing Date on the CMSA Website, or such other form for the presentation of such information and containing such additional information as may from time to time be approved by the CMSA for commercial mortgage securities transactions generally and, insofar as it requires the presentation of information in addition to that called for by the form of the “Loan Setup File” available as of the Closing Date on the CMSA Website, is reasonably acceptable to the Master Servicer or the Special Servicer, as applicable.


 


“CMSA NOI Adjustment Worksheet” means a report substantially in the form of, and containing the information called for in, the downloadable form of the “NOI Adjustment Worksheet” available as of the Closing Date on the CMSA Website, or such other form for the presentation of such information and containing such additional information as may from time to time be approved by the CMSA for commercial mortgage securities transactions generally and, insofar as it requires the presentation of information in addition to that called for by the form of the “NOI Adjustment Work” available as of the Closing Date on the CMSA Website, is reasonably acceptable to the Master Servicer or the Special Servicer, as applicable.


 


“CMSA Operating Statement Analysis Report” means a report substantially in the form of, and containing the information called for in, the downloadable form of the “Operating Statement Analysis Report” available as of the Closing Date on the CMSA Website, or such other form for the presentation of such information and containing such additional information as may from time to time be approved by the CMSA for commercial mortgage securities transactions generally and, insofar as it requires the presentation of information in addition to that called for by the form of the “Operating Statement Analysis Report” available as of the Closing Date on the CMSA Website, is reasonably acceptable to the Master Servicer or the Special Servicer, as applicable.


 


“CMSA Property File” means a report substantially in the form of, and containing the information called for in, the downloadable form of the “Property File” available as of the Closing Date on the CMSA Website, or such other form for the presentation of such information and containing such additional information as may from time to time be approved by the CMSA for commercial mortgage securities transactions generally and, insofar as it requires the presentation of information in addition to that called for by the form of the “Property File” available as of the Closing Date on the CMSA Website, is reasonably acceptable to the Master Servicer or the Special Servicer, as applicable.


 


“CMSA Reconciliation of Funds” means a report substantially in the form of, and containing the information called for in, the downloadable form of the “Reconciliation of Funds” available as of the Closing Date on the CMSA Website, or such other form for the presentation of such information and containing such additional information as may from time to time be approved by the CMSA for commercial mortgage securities transactions generally and, insofar as it requires the presentation of information in addition to that called for by the form of


 




 




  





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the “Reconciliation of Funds” available as of the Closing Date on the CMSA Website, is reasonably acceptable to the Trustee.


 


“CMSA REO Status Report” means a report substantially in the form of, and containing the information called for in, the downloadable form of the “REO Status Report” available as of the Closing Date on the CMSA Website, or such other form for the presentation of such information and containing such additional information as may from time to time be approved by the CMSA for commercial mortgage securities transactions generally and, insofar as it requires the presentation of information in addition to that called for by the form of the “REO Status Report” available as of the Closing Date on the CMSA Website, is reasonably acceptable to the Master Servicer or the Special Servicer, as applicable.


 


“CMSA Reports” means the Restricted Servicer Reports and the Unrestricted Servicer Reports, collectively, as the forms thereof are modified, expanded or otherwise changed from time to time by the CMSA.  With respect to new reports created and approved by the CMSA, such new reports will be used in this transaction (provided, however, that insofar as any such new report requires the presentation of information in addition to that called for by the current CMSA reports, such new report is reasonably acceptable to the Master Servicer or the Special Servicer, as applicable) and the Depositor shall direct the Trustee as to whether such reports will be Restricted Servicer Reports or Unrestricted Servicer Reports.  The Trustee shall provide the Master Servicer and Special Servicer with a copy of such direction within two Business Days after its receipt.  In the case of each Mortgaged Property securing a Co-op Mortgage Loan, the respective files and reports comprising the CMSA Reports shall present the Projected Net Cash Flow for such Mortgaged Property and the Debt Service Coverage Ratio for such Co-op Mortgage Loan, as such terms apply to residential cooperative properties, if and to the extent that such file or report requires preparation and/or submission of data concerning net cash flow or debt service coverage.


 


“CMSA Servicer Watch List” means a report substantially in the form of, and containing the information called for in, the downloadable form of “Servicer Watch List” available as of the Closing Date on the CMSA Website, or such other form for the presentation of such information and containing such additional information as may from time to time be approved by the CMSA for commercial mortgage securities transactions generally and, insofar as it requires the presentation of information in addition to that called for by the form of the “Servicer Watch List” available as of the Closing Date on the CMSA Website, is reasonably acceptable to the Master Servicer or the Special Servicer, as applicable; provided, however, that, notwithstanding the foregoing, the Master Servicer shall not be required to include a Co-op Mortgage Loan on the Servicer Watch List on account of the Debt Service Coverage Ratio of such Co-op Mortgage Loan, unless such Debt Service Coverage Ratio shall fall below 0.90x (for purposes of the calculation of the Debt Service Coverage Ratio of a Co-op Mortgage Loan for this definition only, the Projected Net Cash Flow of the related Mortgaged Property shall be adjusted to reflect the actual expenses incurred by the Mortgagor).


 


“CMSA Special Servicer Loan File” means a report substantially in the form of, and containing the information called for in, the downloadable form of the “Special Servicer Loan File” available as of the Closing Date on the CMSA Website, or such other form for the presentation of such information and containing such additional information as may from time to


 









  





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time be approved by the CMSA for commercial mortgage securities transactions generally and, insofar as it requires the presentation of information in addition to that called for by the form of the “Special Servicer Loan File” available as of the Closing Date on the CMSA Website, is reasonably acceptable to the Special Servicer, as applicable.


 


“CMSA Website” means the CMSA’s website located at “www.cmbs.org” or such other primary website as the CMSA may establish for dissemination of its report forms.


 


“Code” means the Internal Revenue Code of 1986, as amended, any successor statutes thereto, and applicable U.S. Department of Treasury regulations issued pursuant thereto in temporary or final form and proposed regulations thereunder, to the extent that, by reason of their proposed effective date, such proposed regulations would apply to the Trust.


 


“Collection Period” means, with respect to any Distribution Date, the period beginning on the day after the Determination Date in the month preceding the month of such Distribution Date (or in the case of the first Distribution Date, the Cut-Off Date) and ending on the Determination Date in the month in which the Distribution Date occurs.


 


“Commission” means the Securities and Exchange Commission.


 


“Compensating Interest” means, with respect to any Distribution Date and the Master Servicer, an amount equal to the excess of (A) Prepayment Interest Shortfalls incurred in respect of the Mortgage Loans serviced by the Master Servicer resulting from Principal Prepayments on such Mortgage Loans during the related Collection Period, over (B) the aggregate of the Prepayment Interest Excesses received in respect of the Mortgage Loans serviced by the Master Servicer resulting from Principal Prepayments on such Mortgage Loan during the same related Collection Period.  Notwithstanding the foregoing, such Compensating Interest shall not (i) exceed the portion of the aggregate Master Servicing Fee accrued at a rate per annum equal to [__] basis points for the related Collection Period calculated in respect of the Master Servicer’s Mortgage Loans, including REO Mortgage Loans, if the Master Servicer applied the subject Principal Prepayment in accordance with the terms of the related Mortgage Loan documents and (ii) be required to be paid on any Net Aggregate Prepayment Interest Shortfalls to the extent incurred in respect of any Specially Serviced Mortgaged Loans.


 


“Component” means each of the Class A-1-1 Component, Class A-1-2 Component, Class A-1-3 Component, Class A-1A-1 Component, Class A-1A-2 Component, Class A-1A-3 Component, Class A-1A-4 Component, Class A-1A-5 Component, Class A-1A-6 Component, Class A-1A-7 Component, Class A-1A-8 Component, Class A-1A-9 Component, Class A-2 Component, Class A-3-1FL-1 Component, Class A-3-1FL-2 Component, Class A-3-1FL-3 Component, Class A-3-1FL-4 Component, Class A-3-1-1 Component, Class A-3-1-2 Component, Class A-3-1-3 Component, Class A-3-1-4 Component, Class A-3-2-1 Component, Class A-3-2-2 Component, Class A-AB-1 Component, Class A-AB-2 Component, Class A-4A-1 Component, Class A-4A-2 Component, Class A-4A-3 Component, Class A-4B Component, Class A-J Component, Class B-1 Component, Class B-2 Component, Class B-3 Component, Class C-1 Component, Class C-2 Component, Class D-1 Component, Class D-2 Component, Class E Component, Class F-1 Component, Class F-2 Component, Class G Component, Class H-1 Component, Class H-2 Component, Class J Component, Class K


 




 




  





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Component, Class L Component, Class M Component, Class N Component, Class O Component and Class P Component.


 


“Component Notional Amount” means with respect to each Component and any date of determination, an amount equal to the then Certificate Balance of its Corresponding REMIC II Regular Interest.


 


“Condemnation Proceeds” means any awards resulting from the full or partial condemnation or any eminent domain proceeding or any conveyance in lieu or in anticipation thereof with respect to a Mortgaged Property by or to any governmental, quasi-governmental authority or private entity with condemnation powers (other than amounts to be applied to the restoration, preservation or repair of such Mortgaged Property or released to the related Mortgagor in accordance with the terms of the Mortgage Loan.


 


“Controlling Class” means the most subordinate Class of REMIC Regular Certificates or Class [A-3-1FL] Certificates outstanding at any time of determination; provided that, if the aggregate Certificate Balance of such Class is less than 25% of the initial Certificate Balance of such Class as of the Closing Date, the Controlling Class shall be the next most subordinate Class of REMIC Regular Certificates or Class [A-3-1FL] Certificates outstanding.  As of the Closing Date, the Controlling Class will be the Class [P] Certificates.


 


“Controlling Person” means, with respect to any Person, any other Person who “controls” such Person within the meaning of the 1933 Act.


 


“Co-op Mortgage Loan” means any Mortgage Loan that, as of the date it is first included in the Trust, is secured by a Mortgage that encumbers a residential cooperative property.


 


“Co-op Trust Assets” means the Co-op Mortgage Loans, any REO Properties acquired by the Trust with respect to the Co-op Mortgage Loans and any and all other related assets of the Trust.


 


“Corporate Trust Office” means, with respect to the presentment and surrender of Certificates for the final distribution thereon or the presentment and surrender of Certificates for any other purpose, the principal corporate trust office of the Certificate Registrar.  The principal corporate trust office of the Trustee is presently located at [insert address] with respect to certificate transfers and at [insert address] with respect to other trustee and securities administration services, or at such other address as the Trustee or Certificate Registrar may designate from time to time by notice to the Certificateholders, the Depositor, the Master Servicer and the Special Servicer.


 


“Corresponding Certificate” means the Class of Certificates (or, in the case of the Class [A-3-1FL] Certificates, the Class A-3-1FL Regular Interest) as set forth in the Preliminary Statement with respect to any Corresponding Component or any Corresponding REMIC II Regular Interest.


 


“Corresponding Component” means the Component as set forth in the Preliminary Statement with respect to any Corresponding Certificate (or, in the case of the


 




 




  





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Class [A-3-1FL] Certificates, the Class A-3-1FL Regular Interest) or any Corresponding REMIC II Regular Interest.


 


“Corresponding REMIC I Regular Interest” means, with respect to each Mortgage Loan, the REMIC I Regular Interest or Interests having an initial Certificate Balance (in the case of the Group PB REMIC Regular Interests) or initial Notional Amount (in the case of the Group X-Y REMIC I Regular Interests), equal to the Principal Balance of such Mortgage Loan outstanding as of the Cut-Off Date, after taking into account all principal and interest payments made or due prior to the Cut-Off Date.


 


“Corresponding REMIC II Regular Interest” means the REMIC II Regular Interest as defined in the Preliminary Statement with respect to any Class of Corresponding Certificates or any Corresponding Component.


 


“Credit Support Provider” shall have the meaning assigned in the Swap Contract.


 


“Cross-Collateralized Loan” has the meaning set forth in Section 2.3(a) hereof.


 


“Custodian” means the Trustee or any Person who is appointed by the Trustee at any time as custodian pursuant to Section 7.9 and who is unaffiliated with the Depositor and each Seller and satisfies the eligibility requirements of the Trustee as set forth in Section 7.5.


 


“Customer” means a broker, dealer, bank, other financial institution or other Person for whom the Clearing Agency effects book-entry transfers and pledges of securities deposited with the Clearing Agency.


 


“Cut-Off Date” means the end of business on ____1, 20__.  The Cut-Off Date for any Mortgage Loan that has a Due Date on a date other than the first day of each month shall be the end of business on ___1, 20__ and Scheduled Payments due in ____ 20__ with respect to Mortgage Loans not having Due Dates on the first of each month have been deemed received on ____1, 20__, not the actual day on which such Scheduled Payments were due.


 


“Debt Service Coverage Ratio” means either, (a) with respect to any Mortgage Loan (other than a Co-op Mortgage Loan), as of any date of determination, the ratio of (1) the annual, year-end net cash flow of the related Mortgaged Property or Mortgaged Properties, determined as provided in the NOI Adjustment Worksheet based on the most recent annual, year-end operating statements provided by the Mortgagor (or if no annual, year-end operating statements have been provided, based on such information provided by the Mortgagor, including without limitation rent rolls and other unaudited financial information, as the Master Servicer shall determine in accordance with the Servicing Standard) to (2) the annualized amount of debt service payable on that Mortgage Loan or, in the case of Mortgage Loans that are interest-only, where periodic payments are interest-only for a certain amount of time after origination after which date the Mortgage Loan amortizes principal for the remaining term of the Mortgage Loan, the annualized amount of debt service that will be payable under the Mortgage Loan after the beginning of the amortization term of the Mortgage Loan, or (b) with respect to any Co-op Mortgage Loan, as of any date of determination, the ratio of (1) the Projected Net Cash Flow for


 


 




  





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the related Mortgaged Property on an annualized basis to (2) the annualized amount of debt service payable on that Co-op Mortgage Loan.


 


“Debt Service Reduction Amount” means, with respect to a Due Date and the related Determination Date, the amount of the reduction of the Scheduled Payment which a Mortgagor is obligated to pay on such Due Date with respect to a Mortgage Loan as a result of any proceeding under bankruptcy law or any similar proceeding (other than a Deficient Valuation Amount); provided, however, that in the case of an amount that is deferred as a result of any such proceeding, but not forgiven, the amount of the reduction shall include only the net present value (calculated at the related Mortgage Rate) of the reduction.


 


“Defaulted Mortgage Loan” means a Mortgage Loan that is in default under the terms of the applicable Mortgage Loan documentation and for which any applicable grace period has expired.


 


“Defeasance Collateral” means, with respect to any Defeasance Loan, “government securities” as defined in Section 2(a)(16) of the Investment Company Act of 1940 required to be pledged in lieu of prepayment pursuant to the terms thereof.


 


“Defeasance Loan” means any Mortgage Loan which requires or permits the related Mortgagor (or permits the holder of such Mortgage Loan to require the related Mortgagor) to pledge Defeasance Collateral to such holder in lieu of prepayment.


 


“Deficient Valuation” means, with respect to any Mortgage Loan, a valuation by a court of competent jurisdiction of the Mortgaged Property relating to such Mortgage Loan in an amount less than the then outstanding indebtedness under such Mortgage Loan, which valuation results from a proceeding initiated under the United States Bankruptcy Code, as amended from time to time, and that reduces the amount the Mortgagor is required to pay under such Mortgage Loan.


 


“Deficient Valuation Amount” means with respect to each Mortgage Loan, the amount by which the total amount due with respect to such Mortgage Loan or (excluding interest not yet accrued), including the Principal Balance of such Mortgage Loan plus any accrued and unpaid interest thereon and any other amounts recoverable from the Mortgagor with respect thereto pursuant to the terms thereof, is reduced in connection with a Deficient Valuation.


 


“Definitive Certificates” means Certificates of any Class issued in definitive, fully registered, certificated form without interest coupons.


 


“Deleted Mortgage Loan” means a Mortgage Loan which is repurchased from the Trust pursuant to the terms hereof or as to which one or more Qualifying Substitute Mortgage Loans are substituted.


 


“Depositable Certificates” means the Class [2-A-1], Class [2-A-2], Class [3-A-1], Class [3-A-2], Class [3-A-3], Class [4-A-1], Class [4-A-2], Class [4-A-3] and Class [4-A-4] Certificates.


 




  





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“Depositor” means Morgan Stanley Capital I Inc., a Delaware corporation, and its successors in interest.


 


“Depository” has the meaning set forth in Section 3.7(a).


 


“Depository Agreement” means the Blanket Letter of Representations dated the Closing Date between the Depositor and the Depository.


 


“Determination Date” means, with respect to any Distribution Date and any of the Mortgage Loans, the earlier of (i) the [10th] day of the month in which such Distribution Date occurs or, if such day is not a Business Day, the immediately preceding Business Day, and (ii) the [5th] Business Day prior to the related Distribution Date, commencing _____, 20__.


 


“Directly Operate” means, with respect to any REO Property, the furnishing or rendering of services to the tenants thereof, the management of such REO Property, the holding of such REO Property primarily for sale to customers (other than a sale of an REO Property pursuant to and in accordance with Section 9.15) or the performance of any construction work thereon, in each case other than through an Independent Contractor; provided, however, that the Trustee (or the Special Servicer on behalf of the Trustee) shall not be considered to Directly Operate an REO Property solely because the Trustee (or the Special Servicer on behalf of the Trustee) establishes rental terms, chooses tenants, enters into or renews leases, deals with taxes and insurance, or makes decisions as to repairs, tenant improvements or capital expenditures with respect to such REO Property (including, without limitation, construction activity to effect repairs or in connection with leasing activity) or undertakes any ministerial action incidental thereto.


 


“Disclosure Documents” means [insert description of disclosure documents].


 


“Discount Rate” means the rate which, when compounded monthly, is equivalent to the Treasury Rate when compounded semi-annually.  The “Treasury Rate,” unless otherwise set forth in the Mortgage Loan documents, is the yield calculated by the linear interpolation of the yields, as reported in Federal Reserve Statistical Release H.15—Selected Interest Rates under the heading “U.S. government securities/Treasury constant maturities” for the week ending prior to the date of the relevant principal prepayment, of U.S. Treasury constant maturities with a maturity date (one longer and one shorter) most nearly approximating the maturity date (or the Anticipated Repayment Date, if applicable) of the Mortgage Loan prepaid.  If Release H.15 is no longer published, the Master Servicer will select a comparable publication to determine the Treasury Rate.


 


“Disqualified Organization” means any of (i) the United States, any State or any political subdivision thereof, or any agency or instrumentality of any of the foregoing (other than an instrumentality which is a corporation if all of its activities are subject to tax and, except for FHLMC, a majority of its board of directors is not selected by any such governmental unit), (ii) a foreign government, international organization or any agency or instrumentality of either of the foregoing, (iii) an organization (except certain farmers’ cooperatives described in Section 521 of the Code) which is exempt from tax imposed by Chapter 1 of the Code (unless such organization is subject to the tax imposed by Section 511 of the Code on unrelated business taxable income),


 









  





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(iv) rural electric and telephone cooperatives described in Section 1381 of the Code, and (v) any other Person so designated by the Master Servicer based upon an Opinion of Counsel that the holding of an ownership interest in a Residual Certificate by such Person may cause any of the REMIC Pools, or any Person having an Ownership Interest in any Class of Certificates, other than such Person, to incur a liability for any federal tax imposed under the Code that would not otherwise be imposed but for the transfer of an ownership interest in a Residual Certificate to such Person.  The terms “United States,” “State” and “international organization” shall have the meanings set forth in Section 7701 of the Code or successor provisions.


 


“Distributable Certificate Interest” means, with respect to any Distribution Date and any Class of Certificates (other than the Class [A-3-1FL] Certificates, Class [EI] Certificates and the Residual Certificates) or Interests (including the Class A-3-1FL Regular Interest), the sum of (A) Accrued Certificate Interest in respect of such Class or Interest, reduced (to not less than zero) by (i) any Net Aggregate Prepayment Interest Shortfalls for such Class of Certificates or Interests, allocated on such Distribution Date to such Class or Interest pursuant to Section 6.7, and (ii) Realized Losses allocated on such Distribution Date to reduce the Distributable Certificate Interest payable to such Class or Interest pursuant to Section 6.6, plus (B) the Unpaid Interest, plus (C) if the Aggregate Certificate Balance is reduced because of a diversion of principal in accordance with Section 5.2(a)(II)(iv), and there is a subsequent recovery of amounts as described in Section 6.6(c)(i), then interest at the applicable Pass-Through Rate that would have accrued and been distributable with respect to the amount by which the Aggregate Certificate Balance was so reduced, which interest shall accrue from the date that the related Realized Loss is allocated through the end of the Interest Accrual Period related to the Distribution Date on which such amounts are subsequently recovered.


 


“Distribution Account” means the Distribution Account maintained by the Paying Agent on behalf of the Trustee, in accordance with the provisions of Section 5.3, which account shall be an Eligible Account.


 


“Distribution Date” means the [15th] day of each month or, if such day is not a Business Day, the next succeeding Business Day, commencing ____, 20__.


 


“Due Date” means, with respect to a Mortgage Loan, the date on which a Scheduled Payment is first due without the application of grace periods.


 


“EC Trust” means the grantor trust created under this Agreement pursuant to Section 3.10(a).


 


“EC Trust Certificate” means any Class of Certificates issued by the EC Trust and representing beneficial ownership of one or more Depositable Certificates held by such EC Trust.


 


“Eligible Account” means an account (or accounts) that is any of the following:  (i) maintained with a depository institution or trust company whose (A) commercial paper, short-term unsecured debt obligations or other short-term deposits are rated at least [“P-1” by Moody’s and “A-1” by S&P], if the deposits are to be held in the account for 30 days or less, or (B) long term unsecured debt obligations are rated at least [“Aa3” by Moody’s and “AA-” (or


 


 




  





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“A” (without regard to any plus or minus), if the short-term unsecured debt obligations are rated at least “A-1”) by S&P], if the deposits are to be held in the account more than 30 days, (ii) a segregated trust account or accounts maintained in the trust department of the Trustee, the Paying Agent or other financial institution having a combined capital and surplus of at least $50,000,000 and subject to regulations regarding fiduciary funds on deposit similar to Title 12 of the Code of Federal Regulations Section 9.10(b) or (iii) an account or accounts of a depository institution acceptable to the Rating Agencies, as evidenced by Rating Agency Confirmation with respect to the use of any such account as a Certificate Account or the Distribution Account.


 


“Eligible Investments” means any one or more of the following financial assets or other property:


 


(i) direct obligations of, and obligations fully guaranteed as to timely payment of principal and interest by, the United States of America, FNMA, FHLMC or any agency or instrumentality of the United States of America the obligations of which are backed by the full faith and credit of the United States of America; provided that any obligation of FNMA or FHLMC, other than an unsecured senior debt obligation of FNMA or FHLMC, shall be an Eligible Investment only if Rating Agency Confirmation is obtained with respect to such investment;


 


(ii) demand or time deposits in, unsecured certificates of deposit of, money market deposit accounts of, or bankers’ acceptances issued by, any depository institution or trust company (including the Trustee, the Master Servicer, the Special Servicer, the Paying Agent or any Affiliate of the Master Servicer, the Special Servicer, the Paying Agent or the Trustee, acting in its commercial capacity) incorporated or organized under the laws of the United States of America or any State thereof and subject to supervision and examination by federal or state banking authorities, so long as the commercial paper or other short-term debt obligations of such depository institution or trust company are rated [“Prime-1” by Moody’s and “A-1” (without regard to any plus or minus) by S&P] or the long-term unsecured debt obligations of such depository institution or trust company have been assigned a rating by each Rating Agency at least equal to [“Aa2” by Moody’s and “AA-” by S&P] or its equivalent or, in each case, if not rated by a Rating Agency, then such Rating Agency has issued a Rating Agency Confirmation;


 


(iii) repurchase agreements or obligations with respect to any security described in clause (i) above where such security has a remaining maturity of one year or less and where such repurchase obligation has been entered into with a depository institution or trust company (acting as principal) described in clause (ii) above and where such repurchase obligation will mature prior to the Business Day preceding the next date upon which, as described in this Agreement, such amounts are required to be withdrawn from a Certificate Account and which meets the minimum rating requirement for such entity described above (or for which Rating Agency Confirmation is obtained with respect to such ratings);


 


(iv) debt obligations (other than stripped bonds or stripped coupons) bearing interest or sold at a discount issued by any corporation incorporated under the laws of the United States of America or any state thereof, which securities are rated  in one of the


 









  





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[two highest rating categories by Moody’s and at least “AA” by S&P], unless otherwise specified in writing by the Rating Agency; provided that securities issued by any particular corporation will not be Eligible Investments to the extent that investment therein will cause the then-outstanding principal amount of securities issued by such corporation and held in a Certificate Account to exceed 5% of the sum of the aggregate Certificate Principal Balance of the Principal Balance Certificates and the aggregate principal amount of all Eligible Investments in the Certificate Account;


 


(v) commercial paper (including both non-interest-bearing discount obligations and interest-bearing obligations payable on demand or on a specified date not more than one year after the date of issuance thereof) rated [“Prime-1” by Moody’s and “A-1” (without regard to any plus or minus) by S&P] (or for which Rating Agency Confirmation is obtained with respect to such ratings);


 


(vi) units of investment funds (including money market funds) that are rated in [the highest long-term category by Moody’s and “AAAm” by S&P] (or if not rated by any such Rating Agency, then such Rating Agency has issued a Rating Agency Confirmation);


 


(vii) guaranteed reinvestment agreements maturing within 365 days or less issued by any bank, insurance company or other corporation whose long-term unsecured debt rating is not less than [“Aa2” by Moody’s and “AA” (or its equivalent) by S&P], or for which Rating Agency Confirmation is obtained with respect to such ratings; provided that, with respect to S&P, such agreements state that funds may be withdrawn at par without penalty;


 


(viii) any money market funds (including those managed or advised by the Paying Agent or its Affiliates) that maintain a constant asset value and that are rated [“Aaa” (or its equivalent) by Moody’s (if so rated by Moody’s) and “AAAm” or “AAAm-G” (or its equivalent) by S&P], and any other demand, money-market or time deposit, or any other obligation, security or investment, with respect to which Rating Agency Confirmation has been obtained; and


 


(ix) such other investments bearing interest or sold at a discount, earning a return “in the nature of interest” within the meaning of Treasury Regulation Section 1.860G-2(g)(1)(i) (as evidenced by an Opinion of Counsel delivered to the Trustee and the Paying Agent by the Master Servicer or Special Servicer at the Master Servicer’s or Special Servicer’s expense), as are acceptable to the Rating Agencies (as evidenced by Rating Agency Confirmation) and treated as “permitted investments” that are “cash flow investments” under Section 860G(a)(5) of the Code;


 


provided (A) such investment is held for a temporary period pursuant to Section 1.860G-2(g)(i) of the Treasury Regulations, (B) such investment is payable by the obligor in U.S. dollars, and (C) that no such instrument shall be an Eligible Investment (1) if such instrument evidences either (a) a right to receive only interest payments or only principal payments with respect to the obligations underlying such instrument or (b) a right to receive both principal and interest payments derived from obligations underlying such instrument and the principal and interest


 









  





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payments with respect to such instrument provide a yield to maturity of greater than 120% of the yield to maturity at par of such underlying obligations, or (2) if it may be redeemed at a price below the purchase price or (3) if it is not treated as a “permitted investment” that is a “cash flow investment” under Section 860G(a)(5) of the Code; and provided, further, that any such instrument shall have a maturity date no later than the date such instrument is required to be used to satisfy the obligations under this Agreement, and, in any event, shall not have a maturity in excess of one year; any such instrument must have a predetermined fixed dollar of principal due at maturity that cannot vary or change; if rated, the obligation must not have an “r” highlighter affixed to its rating; interest on any variable rate instrument shall be tied to a single interest rate index plus a single fixed spread (if any) and move proportionally with that index; and provided, further, that no amount beneficially owned by any REMIC Pool (including any amounts collected by the Master Servicer but not yet deposited in the Certificate Accounts) may be invested in investments treated as equity interests for Federal income tax purposes.  No Eligible Investments shall be purchased at a price in excess of par.  For the purpose of this definition, units of investment funds (including money market funds) shall be deemed to mature daily.


 


“Environmental Insurance Policy” shall mean, with respect to any Mortgage Loan or the related Mortgaged Property or REO Property, any insurance policy covering pollution conditions and/or other environmental conditions that is maintained from time to time in respect of such Mortgage Loan, Mortgaged Property or REO Property, as the case may be, for the benefit of, among others, the Trustee on behalf of the Certificateholders.


 


“Environmental Laws” means any and all federal, state and local statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses, agreements or other governmental restrictions, now or hereafter in effect, relating to health or the environment or to emissions, discharges or releases of chemical substances, including, without limitation, any and all pollutants, contaminants, petroleum or petroleum products, asbestos or asbestos-containing materials, polychlorinated biphenyls, urea-formaldehyde insulation, radon, industrial, toxic or hazardous substances or wastes, into the environment, including, without limitation, ambient air, surface water, ground water or land, or otherwise relating to the manufacture, processing, distribution, use, labeling, registration, treatment, storage, disposal, transport or handling of any of the foregoing substances or wastes or the clean-up or other remediation thereof.


 


“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.


 


“Escrow Account” means an account established by or on behalf of the Master Servicer pursuant to Section 8.3(e).


 


“Escrow Amount” means any amount payable with respect to a Mortgage Loan for taxes, assessments, water rates, Standard Hazard Insurance Policy premiums, ground lease payments, reserves for capital improvements, deferred maintenance, repairs, tenant improvements, leasing commissions, rental achievements, environmental matters and other reserves or comparable items.


 


“Euroclear” means the Euroclear system.


 









  





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“Event of Default” has the meaning set forth in Section 8.28(b).


 


“Excess Interest” means, with respect to an ARD Loan if such ARD Loan is not prepaid in full on or before its Anticipated Repayment Date, the excess, if any of (i) interest accrued at the rate of interest applicable to such Mortgage Loan after such Anticipated Repayment Date (plus any interest on such interest as may be provided for under the Mortgage Loan documents) over (ii) interest accrued at the rate of interest applicable to such Mortgage Loan before such Anticipated Repayment Date.  Excess Interest on an ARD Loan is an asset of the Trust, but shall not be an asset of any REMIC Pool formed hereunder.


 


“Excess Interest Sub-account” means an administrative account deemed to be a sub-account of the Distribution Account, in accordance with the provisions of Section 5.3.  The Excess Interest Sub-account shall not be an asset of any REMIC Pool formed hereunder.


 


“Excess Liquidation Proceeds” means, with respect to any Mortgage Loan, the excess of (i) Liquidation Proceeds of a Mortgage Loan or related REO Property, over (ii) the amount that would have been received if a Principal Prepayment in full had been made with respect to such Mortgage Loan on the date such proceeds were received plus accrued and unpaid interest with respect to such Mortgage Loan and all expenses (including Additional Trust Expenses and Unliquidated Advances) with respect to such Mortgage Loan.


 


“Excess Servicing Fee” means, with respect to the Mortgage Loans for which an “excess servicing fee rate” is designated on the Mortgage Loan Schedule, the monthly fee payable to the parties set forth on Exhibit J hereto or their successors and assigns, as holders of excess servicing rights, which fee shall accrue on the Scheduled Principal Balance of each such Mortgage Loan immediately prior to the Due Date occurring in each month at the per annum rate (determined in the same manner as the applicable Mortgage Rate for such Mortgage Loan is determined for such month) specified on the Mortgage Loan Schedule (the “Excess Servicing Fee Rate”).  Each holder of a right to receive Excess Servicing Fees is entitled to Excess Servicing Fees only with respect to the Mortgage Loans as indicated on Exhibit J hereto.


 


“Exchange Certification” means an Exchange Certification substantially in the form set forth in Exhibit G hereto executed by a holder of an interest in a Regulation S Global Certificate or a Rule 144A IAI Global Certificate, as applicable.


 


“Exchangeable Certificates” means the Class [2-A-3], Class [3-A-4] and Class [4-A-5] Certificates.


 


“Expense Loss” means a loss realized upon payment by the Trust of an Additional Trust Expense.


 


“Extension” has the meaning set forth in Section 9.15(a).


 


“FDIC” means the Federal Deposit Insurance Corporation or any successor thereto.


 


“FHLMC” means the Federal Home Loan Mortgage Corporation, or any successor thereto.


 


 




  





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“Final Certification” has the meaning set forth in Section 2.2.


 


“Final Prospectus Supplement” has the meaning set forth in the Preliminary Statement hereto.


 


“Final Rated Distribution Date” means, with respect to each rated Class of Certificates, the Distribution Date in ______________.


 


“Final Recovery Determination” means a determination with respect to:  (i) any Mortgage Loan other than a Specially Serviced Mortgage Loan, by the Master Servicer in consultation with the Special Servicer and (ii) with respect to any Specially Serviced Mortgage Loan (including a Mortgage Loan that became an REO Property) by the Special Servicer, in each case, in its good faith discretion, consistent with the Servicing Standard, that all Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds, Purchase Proceeds and other payments or recoveries which the Master Servicer or the Special Servicer, as the case may be, expects to be finally recoverable on such Mortgage Loan, without regard to any obligation of the Master Servicer or the Trustee, as the case may be, to make payments from its own funds pursuant to Article IV hereof, have been recovered.  With respect to each Mortgage Loan that is cross-collateralized by Mortgaged Properties securing other Mortgage Loans, all of the Mortgaged Properties and other security must be considered in connection with any such Final Recovery Determination.  The Special Servicer shall be required to provide the Master Servicer with prompt written notice of any Final Recovery Determination with respect to any Specially Serviced Mortgage Loan or REO Mortgage Loan upon making such determination.  The Master Servicer shall promptly notify the Trustee and the Paying Agent of such determination and the Paying Agent shall deliver a copy of such notice to each Rating Agency.


 


“Final Scheduled Distribution Date” means, for each Class of rated Certificates, the Distribution Date on which such Class would be paid in full if payments were made on the Mortgage Loans in accordance with their terms, except that the ARD Loan is assumed to be repaid on its Anticipated Repayment Date.


 


“Fitch” means Fitch Ratings, Inc. or its successor in interest.


 


“Fixed Interest Distribution” means with respect to the Class A-3-1FL Regular Interest, the payments of interest required to be made in respect of each Distribution Date, commencing in ____20__, by the Trustee to the Swap Counterparty pursuant to the Swap Contract at a rate equal to the Pass-Through Rate of the Class A-3-1FL Regular Interest on the Floating Rate Certificate Notional Amount subject to reduction in accordance with the Swap Contract.


 


“Floating Rate Account” means the Eligible Account or Accounts established and maintained by the Paying Agent on behalf of the Trustee with respect to the Class [A-3-1FL] Certificates, which shall be entitled “_______, as Trustee, in trust for Holders of Morgan Stanley Capital I Trust 20__-____, Floating Rate Account, Class A-3-1FL” and “[Name of Master Servicer], as Master Servicer for _______, as Trustee for the Holders of Morgan Stanley Capital I Trust 20__-___, Floating Rate Account, Class A-3-1FL”; provided, that the Floating Rate


 




  





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Account may be a subaccount of the Distribution Account or the Certificate Account.  The Floating Rate Account shall be an asset of the Class A-3-1FL Grantor Trust.


 


“Floating Rate Certificate Notional Amount” means a notional amount equal to the Certificate Balance of the Class A-3-1FL Regular Interest.


 


“FNMA” means the Federal National Mortgage Association, or any successor thereto.


 


“Form 8-K Disclosure Information” has the meaning set forth in Section 13.9.


 


“Global Certificate” means any Rule 144A IAI Global Certificate, Regulation S Temporary Global Certificate or Regulation S Permanent Global Certificate.


 


“Grantor Trust Provisions” shall mean those provisions of the Code relating to grantor trusts, which appear in subpart E, Part I of subchapter J, and related provisions, and proposed, temporary and final Treasury regulations, including Treasury Regulations Section 301.7701-4(c)(2), and any published rulings, notice and announcements promulgated thereunder, as the foregoing may be in effect from time to time.


 


“Group PB REMIC I Regular Interests” means, collectively, all of the REMIC I Regular Interests other than the Group X-Y REMIC I Regular Interests, which are the REMIC I Regular Interests with principal balances.


 


“Group X-Y REMIC I Regular Interests” means, collectively, the REMIC I Regular Interests, which represent interests in the Class X-Y Strip Rates with respect to the Specially Designated Co-op Mortgage Loans, which are the REMIC I Regular Interests without principal balances (but have notional amounts for purposes of accruing interest).


 


“Holder” means the Person in whose name a Certificate is registered on the Certificate Register.


 


“IAI Definitive Certificate” means, with respect to any Class of Certificates sold to Institutional Accredited Investors who are not Qualified Institutional Buyers, a Certificate in definitive, fully registered certificated form without interest coupons.


 


“Independent” means, when used with respect to any Accountants, a Person who is “independent” within the meaning of Rule 2-01(B) of the Commission’s Regulation S-X.  Independent means, when used with respect to any other Person, a Person who (A) is in fact independent of another specified Person and any Affiliate of such other Person, (B) does not have any material direct or indirect financial interest in such other Person or any Affiliate of such other Person, (C) is not connected with such other Person or any Affiliate of such other Person as an officer, employee, promoter, underwriter, trustee, partner, director or Person performing similar functions and (D) is not a member of the immediate family of a Person defined in clause (B) or (C) above.


 


“Independent Contractor” means, either (i) with respect to any Mortgage Loan (A) that is not a Specially Serviced Mortgage Loan, any Person designated by the Master


 


 




  





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Servicer (other than the Master Servicer, but which may be an Affiliate of the Master Servicer), or (B) that is a Specially Serviced Mortgage Loan, any Person designated by the Special Servicer that would be an “independent contractor” with respect to a REMIC Pool within the meaning of Section 856(d)(3) of the Code if such REMIC Pool were a real estate investment trust (except that the ownership test set forth in such Section shall be considered to be met by any Person that owns, directly or indirectly, 35% or more of the Aggregate Certificate Balance or Notional Amount, as the case may be, of any Class of the Certificates (other than the Residual Certificates), a Percentage Interest of 35% or more in the Residual Certificates or such other interest in any Class of the Certificates or of the applicable REMIC Pool as is set forth in an Opinion of Counsel, which shall be at no expense to the Trustee or the Trust) so long as such REMIC Pool does not receive or derive any income from such Person and provided that the relationship between such Person and such REMIC is at arm’s length, all within the meaning of Treasury Regulations Section 1.856-4(b)(5), or (ii) any other Person (including the Master Servicer or the Special Servicer) upon receipt by the Trustee of an Opinion of Counsel, which shall be at the expense of the Person delivering such opinion to the Trustee, to the effect that the taking of any action in respect of any REO Property by such Person, subject to any conditions therein specified, that is otherwise herein contemplated to be taken by an Independent Contractor will not cause such REO Property to cease to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code (determined without regard to the exception applicable for purposes of Section 860D(a) of the Code), or cause any income realized in respect of such REO Property to fail to qualify as Rents from Real Property.


 


[“Initial Authorized Denomination” means, with respect to any Depositable Certificate or Exchangeable Certificate, the amount set forth with respect to such Class in Schedule VIII under the heading, “Original Certificate Balance or Notional Amount”.]


 


“Initial Certification” has the meaning set forth in Section 2.2.


 


“Initial Deposit” means the amount of all collections made on the Mortgage Loans from the Cut-Off Date to and excluding the Closing Date.


 


“Initial LTV Co-op Basis” shall mean, with respect to any Co-op Mortgage Loan, the related loan-to-value ratio specified under the heading “Cut-Off Date LTV” in Appendix II to the Final Prospectus Supplement.


 


“Inspection Report” means a report substantially in the form of, and containing the information called for in, the downloadable form of the “Property Inspection Form” available as of ____, 20__ on the CMSA Website, or such other form for the presentation of such information and containing such additional information as may from time to time be approved by the CMSA for commercial mortgage securities transactions generally and, insofar as it requires the presentation of information in addition to that called for by the form of the “Property Inspection Form” available as of the Closing Date on the CMSA Website, is reasonably acceptable to the Master Servicer or the Special Servicer, as applicable.


 


“Institutional Accredited Investor” means an institutional accredited investor qualifying pursuant to Rule 501(a)(1), (2), (3) or (7) of Regulation D of the 1933 Act.


 




  





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“Insurance Policies” means, collectively, any Standard Hazard Insurance Policy, flood insurance policy, title insurance policy, terrorism insurance policy or Environmental Insurance Policy relating to the Mortgage Loans or the Mortgaged Properties in effect as of the Closing Date or thereafter during the term of this Agreement.


 


“Insurance Proceeds” means amounts paid by the insurer under any Insurance Policy (other than amounts required to be paid over to the Mortgagor (or used to restore the related Mortgaged Property) pursuant to law, the related Mortgage Loan or the Servicing Standard).


 


“Insured Environmental Event” has the meaning set forth in Section 9.1(f).


 


“Interest” means a REMIC I Regular Interest, a REMIC II Regular Interest or the Class A-3-1FL Regular Interest, as applicable.


 


“Interest Accrual Period” means, with respect to each Distribution Date, (i) for each Class of REMIC Regular Certificates (other than the Class [A-3-1FL] Certificates), the Class A-3-1FL Regular Interest and, if the Swap Contract or any replacement swap contract is no longer in effect or if a Swap Default has occurred and is continuing, with respect to the Class [A-3-1FL] Certificates, the calendar month immediately preceding the month in which such Distribution Date occurs or (ii) for the Class [A-3-1FL] Certificates, for so long as the Swap Contract or any replacement swap contract is in effect and no Swap Default has occurred and is continuing, the period from (and including) the prior Distribution Date (or the Closing Date, in the case of the first such period) and ending on (and including) the day before the current Distribution Date.


 


“Interest Reserve Account” means that Interest Reserve Account maintained by the Master Servicer pursuant to Section 5.1(a), which account shall be an Eligible Account.


 


“Interest Reserve Amount” has the meaning set forth in Section 5.1(d).


 


“Interest Reserve Loans” shall mean the Mortgage Loans which bear interest other than on the basis of a 360-day year consisting of twelve 30-day months.


 


“Interest Reset Date” means the day that is two Banking Days prior to the start of the related Interest Accrual Period.


 


“Interested Person” means, as of any date of determination, the Master Servicer, the Special Servicer, the Depositor, the holder of any related Junior Indebtedness (with respect to any particular Mortgage Loan), a holder of 50% or more of the Controlling Class, the Operating Adviser, any Independent Contractor engaged by the Master Servicer or the Special Servicer pursuant to this Agreement, or any Person actually known to a Responsible Officer of the Trustee to be an Affiliate of any of them.


 


“Investor-Based Exemption” means any of Prohibited Transaction Class Exemption (“PTCE”) 84-14 (for transactions by independent “qualified professional asset managers”), PTCE 90-1 (for transactions by insurance company pooled separate accounts), PTCE 91-38 (for transactions by bank collective investment funds), PTCE 95-60 (for


 


 


 




  





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transactions by insurance company general accounts) or PTCE 96-23 (for transactions effected by “in-house asset managers”), or any comparable exemption available under Similar Laws.


 


“ISDA” means the International Swap Dealers Association.


 


“Junior Indebtedness” means any indebtedness of any Mortgagor that is secured by a lien that is junior in right of payment to the lien of the Mortgage securing the related Mortgage Note.


 


“Late Collections” means, with respect to any Mortgage Loan, all amounts received during any Collection Period, whether as late payments or as Liquidation Proceeds, Insurance Proceeds, Condemnation Proceeds, Purchase Proceeds or otherwise, that represent payments or collections of Scheduled Payments due but delinquent for a previous Collection Period and not previously recovered.


 


“Late Fees” means a fee payable to the Master Servicer or the Special Servicer, as the case may be, to the extent actually collected from the Mortgagor as provided in the related Mortgage Loan, if applicable, in connection with a late payment made by such Mortgagor.


 


“LIBOR” means with respect to each Interest Accrual Period, the per annum rate for deposits in U.S. dollars for a period of one month, which appears on the Telerate page 3750 as the “London Interbank Offering Rate” as of 11:00 a.m., London time, on the Interest Reset Date.  If such rate does not appear on said Telerate page 3750, LIBOR shall be the arithmetic mean of the offered quotations obtained by the Swap Counterparty from the principal London office of four major banks in the London interbank market selected by the Swap Counterparty in its sole discretion (each, a “Reference Bank”) for rates at which deposits in U.S. dollars are offered to prime banks in the London interbank market for a period of one month in an amount that is representative for a single transaction in the relevant market at the relevant time as of approximately 11:00 a.m., London time, on the Interest Reset Date.  If fewer than two Reference Banks provide the Swap Counterparty with such quotations, LIBOR shall be the rate per annum which the Swap Counterparty determines to be the arithmetic mean of the rates quoted by major banks in New York City, New York selected by the Swap Counterparty at approximately 11:00 a.m. New York City time on the first day of the Interest Accrual Period for loans in U.S. dollars to leading European banks for a period of one month in an amount that is representative for a single transaction in the relevant market at the relevant time.  LIBOR for the initial Interest Accrual Period is ___%.


 


“Liquidation Expenses” means reasonable and direct expenses incurred by the Special Servicer on behalf of the Trust in connection with the enforcement and liquidation of any Specially Serviced Mortgage Loan or REO Property acquired in respect thereof including, without limitation, reasonable legal fees and expenses, appraisal fees, committee or referee fees, property manager fees, and, if applicable, brokerage commissions and conveyance taxes for such Specially Serviced Mortgage Loan.  All Liquidation Expenses relating to enforcement and disposition of the Specially Serviced Mortgage Loan shall be (i) paid out of income from the related REO Property, to the extent available, (ii) paid out of related proceeds from liquidation or (iii) advanced by the Master Servicer or Special Servicer, subject to Section 4.4 and Section 4.6(d) hereof, as a Servicing Advance.


 


 


 




  





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“Liquidation Fee” means a fee equal to the product of (x) [1.00]% and (y) the Liquidation Proceeds received in connection with full or partial liquidation of a Specially Serviced Mortgage Loan or related REO Property and any Condemnation Proceeds or Insurance Proceeds received by the Trust; provided, however, that (A) in the case of a final disposition consisting of the repurchase of a Mortgage Loan or REO Property by a Seller pursuant to Section 2.3, such fee will only be paid by such Seller and due to the Special Servicer if repurchased after the date that is [180] days or more after the applicable Seller receives notice of the breach or defect causing the repurchase and (B) in the case of a repurchase of a Mortgage Loan by a related B note holder or mezzanine lender, such fee will only be due to the Special Servicer if repurchased [60] days after the Master Servicer, Special Servicer or Trustee receives notice of the default causing the repurchase.


 


“Liquidation Proceeds” means (i) with respect to the sale or liquidation of a Mortgage Loan or related REO Property (other than pursuant to Section 2.3), the proceeds of such sale or liquidation net of Liquidation Expenses (to the extent not otherwise paid pursuant to Section 4.6(c)) and (ii) with respect to the repurchase of a Mortgage Loan or an REO Mortgage Loan pursuant to Section 2.3, the Purchase Price of such Mortgage Loan or REO Mortgage Loan (or such allocable portion) at the time of such repurchase.


 


“Liquidation Realized Loss” means, with respect to each Mortgage Loan or REO Property, as the case may be, as to which a Cash Liquidation or REO Disposition has occurred, an amount equal to the sum, without duplication, of (A) the Principal Balance of the Mortgage Loan (or deemed Principal Balance, in the case of an REO Mortgage Loan) as of the date of the Cash Liquidation or REO Disposition (adjusted in accordance with Section 6.6(c)(i)), plus (B) unpaid interest and interest accrued thereon at the applicable Mortgage Rate (including interest accrued and unpaid on the portion of the Principal Balance added in accordance with Section 6.6(c)(i), which interest shall accrue from the date of the reduction in the Principal Balance resulting from the allocation of a Realized Loss incurred pursuant to Section 6.6(b)(i)), plus (C) any expenses (including Additional Trust Expenses) incurred in connection with such Mortgage Loan that are payable or reimbursable to any Person, other than amounts previously treated as Expense Losses or included in the definition of Liquidation Expenses minus the sum of (i) REO Income allocated as recoveries of principal or interest on the related Mortgage Loan, and (ii) with respect to any Mortgage Loan, Liquidation Proceeds, Late Collections and all other amounts received from the related Mortgagor and received during the Collection Period in which such Cash Liquidation or REO Disposition occurred.  REO Income and Liquidation Proceeds shall be applied in accordance with Section 1.2(b) hereof.


 


“Loan Group” means either Loan Group 1 or Loan Group 2, as the case may be.


 


“Loan Group 1” means all of the Mortgage Loans that are Loan Group 1 Mortgage Loans and any successor REO Mortgage Loans with respect thereto.


 


“Loan Group 1 Mortgage Loan” means any Mortgage Loan identified on the Mortgage Loan Schedule as belonging to Loan Group 1.


 




  





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“Loan Group 1 Principal Distribution Amount” means, for any Distribution Date, that portion, if any, of the Principal Distribution Amount attributable to Mortgage Loans included in Loan Group 1.


 


“Loan Group Principal Distribution Amount” means the Loan Group 1 Principal Distribution Amount or the Loan Group 2 Principal Distribution Amount, as applicable.


 


“Loan Group 2” means all of the Mortgage Loans that are Loan Group 2 Mortgage Loans and any successor REO Mortgage Loans with respect thereto.


 


“Loan Group 2 Mortgage Loan” means any Mortgage Loan identified on the Mortgage Loan Schedule as belonging to Loan Group 2.


 


“Loan Group 2 Principal Distribution Amount” means, for any Distribution Date, that portion, if any, of the Principal Distribution Amount attributable to Mortgage Loans included in Loan Group 2.


 


“Loan-to-Value Ratio” means, as of any date with respect to a Mortgage Loan, the fraction, expressed as a percentage, the numerator of which is the Principal Balance of such Mortgage Loan at the date of determination and the denominator of which is the Appraised Value of the Mortgaged Property as shown on the most recent Appraisal or valuation of the Mortgaged Property which is available as of such date.


 


“Lock-Box Account” has the meaning set forth in Section 8.3(g).


 


“Lock-Box Agreement” means, with respect to any Mortgage Loan, any lock box agreement relating to such Mortgage Loan among the related Mortgagor, a depositary institution and the Master Servicer (or a Primary Servicer or Sub Servicer on its behalf) pursuant to which a Lock-Box Account is created.


 


“Losses” has the meaning set forth in Section 12.4.


 


“MAI” means Member of the Appraisal Institute.


 


“Master Servicer” means the master servicer identified in the first paragraph of this Agreement and its permitted successors and assigns.


 


“Master Servicer Consent Matter” has the meaning set forth in Section 8.3(a).


 


“Master Servicer Remittance Date” means, for each Distribution Date, the Business Day immediately preceding such Distribution Date.


 


“Master Servicing Fee” means for each calendar month, as to each Mortgage Loan, an amount equal to the Master Servicing Fee Rate applicable to such month (determined in the same manner (other than the rate of accrual) as the applicable Mortgage Rate is determined for such Mortgage Loan for such month) multiplied by the Scheduled Principal Balance of such Mortgage Loan immediately before the Due Date occurring in such month, subject to reduction


 


 


 




  





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in respect of Compensating Interest, as set forth in Section 8.10(c).  For the avoidance of doubt, Master Servicing Fees are in addition to Primary Servicing Fees.


 


“Master Servicing Fee Rate” means, with respect to each Mortgage Loan, the rate per annum specified as such on the Mortgage Loan Schedule.


 


“Material Breach” has the meaning set forth in Section 2.3(a).


 


“Material Document Defect” has the meaning set forth in Section 2.3(a).


 


“Maturity Date” means, with respect to any Mortgage Loan as of any date of determination, the date on which the last payment of principal is due and payable under the related Mortgage Loan, after taking into account all Principal Prepayments received and any Deficient Valuation, Debt Service Reduction Amount or modification of the Mortgage Loan occurring prior to such date of determination, but without giving effect to (i) any acceleration of the principal of such Mortgage Loan or (ii) any grace period permitted by the related Mortgage Loan.


 


“Modification Fee” means a fee, if any, (i) collected from a Mortgagor by the Master Servicer in connection with a modification of a Mortgage Loan other than a Specially Serviced Mortgage Loan or (ii) collected by the Special Servicer in connection with the modification of a Specially Serviced Mortgage Loan.


 


“Modification Loss” means, with respect to each Mortgage Loan (i) a decrease in the Principal Balance of such Mortgage Loan, as a result of a modification thereof in accordance with the terms hereof, (ii) any expenses connected with such modification, to the extent (x) reimbursable to the Trustee, the Special Servicer or the Master Servicer and (y) not recovered from the Mortgagor or (iii) in the case of a modification of such Mortgage Loan that reduces the Mortgage Rate thereof, the excess, on each Due Date, of the amount of interest that would have accrued at a rate equal to the original Mortgage Rate, over interest that actually accrued on such Mortgage Loan during the preceding Collection Period.


 


“Money Term” means, with respect to any Mortgage Loan, the Maturity Date, Mortgage Rate, Principal Balance, amortization term or payment frequency thereof, or the amount of the scheduled payment thereof, or any provision thereof requiring the payment of a prepayment premium, yield maintenance payment or percentage premium in connection with a principal prepayment (and shall not include late fees or default interest provisions).


 


“Monthly Certificateholders Report” means a report provided pursuant to Section 5.4 by the Paying Agent monthly as of the related Determination Date which sets forth, to the extent applicable: [(i) the date of such Distribution Date, and of the Record Date, Interest Accrual Period, and Determination Date for such Distribution Date; (ii) the Available Distribution Amount for the Distribution Date, and any other cash flows received on the Mortgage Loans and applied to pay fees and expenses (including the components of the Available Distribution Amount or such other cash flows); (iii) the aggregate amount of servicing fees, Special Servicing Fees, other special servicing compensation and Trustee Fees paid to the Master Servicer, the Primary Servicer, the Special Servicer, the holders of the rights to Excess Servicing Fees, the Trustee and the Paying Agent with respect to the Mortgage Loans; (iv) the


 









  





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amount of other fees and expenses accrued and paid from the Trust Fund, including without limitation Advance reimbursement and interest on Advances, and specifying the purpose of such fees or expenses and the party receiving payment of those amounts, if applicable; (v) the amount, if any, of such distributions to the Holders of each Class of Principal Balance Certificates applied to reduce the respective Certificate Balances thereof; (vi) the amount of such distribution to holders of each Class of Certificates allocable to (A) interest accrued (including Excess Interest) at the respective Pass-Through Rates, less any Net Aggregate Prepayment Interest Shortfalls and (B) Prepayment Premiums; (vii) the amount of any shortfall in principal distributions and any shortfall in interest distributions to each applicable Class of Certificates; (viii) the amount of excess cash flow, if any distributed to the holder of the Residual Certificates; (ix) the aggregate Certificate Balance or Notional Amount of each Class of Certificates before and after giving effect to the distribution made on such Distribution Date; (x) the Pass-Through Rate applicable to each Class of Certificates for such Distribution Date; (xi) the Weighted Average Mortgage Rate (and interest rates by distributional groups or ranges) of the Mortgage Loans as of the related Determination Date; (xii) [the amount on deposit in certain accounts established pursuant to this Agreement before and after giving effect to the distribution made on such Distribution Date (and any material account activity since the prior Distribution Date)]; (xiii)  the number of outstanding Mortgage Loans and the aggregate Principal Balance and Scheduled Principal Balance of the Mortgage Loans and the weighted average remaining term at the close of business on such Determination Date, with respect to the Mortgage Loans; (xiv) the number and aggregate Scheduled Principal Balance of Mortgage Loans (A) delinquent 30-59 days, (B) delinquent 60-89 days, (C) delinquent 90 or more days, (D) as to which foreclosure proceedings have been commenced, or (E) as to which bankruptcy proceedings have been commenced; (xv) the aggregate amount and general purpose of Servicing Advances and P&I Advances outstanding, separately stated, that have been made by the Master Servicer, the Special Servicer and the Trustee with respect to the Mortgage Loans; (xvi) the number and related Principal Balances of any Mortgage Loans modified, extended or waived on a loan-by-loan basis since the previous Determination Date (including a description of any material modifications, extensions or waivers to mortgage loan terms, fees, penalties or payments during the distribution period or that have cumulatively become material over time; provided, that the Paying Agent shall include each description provided to it of any modifications, extensions or waivers to mortgage loan terms, fees, penalties or payments during the distribution period with respect to any Specially Servicer Mortgage Loan); (xvii) with respect to any REO Property included in the Trust, the Principal Balance of the related Mortgage Loan as of the date of acquisition of the REO Property and the Scheduled Principal Balance thereof; (xviii) as of the related Determination Date (A) as to any REO Property sold during the related Collection Period, the date of the related determination by the Special Servicer that it has recovered all payments which it expects to be finally recoverable and the amount of the proceeds of such sale deposited into the Certificate Account, and (B) the aggregate amount of other revenues collected by the Special Servicer with respect to each REO Property during the related Collection Period and credited to the Certificate Account, in each case identifying such REO Property by the loan number of the related Mortgage Loan; (xix) the aggregate amount of Principal Prepayments made during the related Collection Period with respect to the Mortgage Loans; (xx) the amount of Unpaid Interest and Realized Losses, if any, incurred with respect to the Mortgage Loans, including a breakout by type of such Realized Losses; (xxi) any Material Breaches of Mortgage Loan representations and warranties of which the Trustee, the Master Servicer or the Special Servicer has received written


 


 




  





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notice; (xxii) the amount of any Appraisal Reductions effected during the related Collection Period on a loan-by-loan basis and the total Appraisal Reductions in effect as of such Distribution Date]; [(xxiii) the amounts received in respect of the Swap Contract or the amounts paid in respect of the Swap Contract and, if any of such amounts are less than the full amount required to be paid under the Swap Contract, the amount of the shortfall; (xxiv) the identification of any Rating Agency Trigger Event or Swap Default as of the close of business on the last day of the immediately preceding calendar month with respect to the Swap Contract (including, if applicable, the notice required by Section 6.12); (xxv) the amount of any (x) payment by the Swap Counterparty as a termination payment, (y) payment to any successor interest rate swap counterparty to acquire a replacement interest rate swap agreement, and (z) collateral posted in connection with any Rating Agency Trigger Event; (xxvi) the amount of and identification of any payments on the Class [A-3-1FL] Certificates in addition to the amount of principal and interest due thereon, such as any payment received in connection with the Swap Contract or any payment of a Prepayment Premium after the termination of the Swap Contract that is required to be distributed on the Class [A-3-1FL] Certificates pursuant to the terms of this Agreement; and] [(xxvii) exchanges that took place since the last Distribution Date, the designations of the Exchangeable Classes that were exchanged for, the balances of the outstanding Exchangeable Certificates, including Notional Amounts, the Pass-Through Rates on the outstanding Classes of Exchangeable Certificates, interest and principal paid to, and losses allocated, to the outstanding Class of Exchangeable Certificates and if no exchanges have occurred].  In the case of information furnished pursuant to subclauses (i), (ii) and (vii) above, the amounts shall be expressed in the aggregate and as a dollar amount per $1,000 of original principal amount of the Certificates for all Certificates of each applicable Class.


 


“Moody’s” means Moody’s Investors Service, Inc. or its successor in interest.


 


“Mortgage” means the mortgage, deed of trust or other instrument securing a Mortgage Note.


 


“Mortgage File” means the mortgage documents listed below:


 


(i) the original Mortgage Note bearing all intervening endorsements, endorsed in blank or endorsed “Pay to the order of _______, as Trustee for Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 20__-___, without recourse, representation or warranty” or if the original Mortgage Note is not included therein, then a lost note affidavit and indemnity with a copy of the Mortgage Note attached thereto;


 


(ii) the original Mortgage, with evidence of recording thereon, and, if the Mortgage was executed pursuant to a power of attorney, a certified true copy of the power of attorney certified by the public recorder’s office, with evidence of recording thereon (if recording is customary in the jurisdiction in which such power of attorney was executed) or certified by a title insurance company or escrow company to be a true copy thereof; provided that if such original Mortgage cannot be delivered with evidence of recording thereon on or prior to the 90th day following the Closing Date because of a delay caused by the public recording office where such original Mortgage has been delivered for recordation or because such original Mortgage has been lost, the Depositor


 


 




  





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shall deliver or cause to be delivered to the Trustee a true and correct copy of such Mortgage, together with (A) in the case of a delay caused by the public recording office, an Officer’s Certificate of the applicable Seller stating that such original Mortgage has been sent to the appropriate public recording official for recordation or (B) in the case of an original Mortgage that has been lost after recordation, a certification by the appropriate county recording office where such Mortgage is recorded that such copy is a true and complete copy of the original recorded Mortgage;


 


(iii) the originals of all agreements modifying a Money Term or other material modification, consolidation and extension agreements, if any, with, if applicable, evidence of recording thereon (which are reflected in the Mortgage Loan Schedule), or if such original modification, consolidation and extension agreements have been delivered to the appropriate recording office for recordation and either have not yet been returned on or prior to the 90th day following the Closing Date with evidence of recordation thereon or have been lost after recordation, true copies of such modifications, consolidations and extensions certified by the applicable Seller together with (A) in the case of a delay caused by the public recording office, an Officer’s Certificate of the applicable Seller stating that such original modification, consolidation or extension agreement has been dispatched or sent to the appropriate public recording official for recordation or (B) in the case of an original modification, consolidation or extension agreement that has been lost after recordation, a certification by the appropriate county recording office where such document is recorded that such copy is a true and complete copy of the original recorded modification, consolidation or extension agreement, and the originals of all assumption agreements, if any;


 


(iv) an original Assignment of Mortgage for each Mortgage Loan, in form and substance acceptable for recording, signed by the holder of record in blank or in favor of “_______, as Trustee for Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 20__-____;


 


(v) originals of all intervening assignments of Mortgage, if any, with evidence of recording thereon or, if such original assignments of Mortgage have been delivered to the appropriate recorder’s office for recordation, certified true copies of such assignments of Mortgage certified by the applicable Seller, or in the case of an original blanket intervening assignment of Mortgage retained by the applicable Seller, a copy thereof certified by the applicable Seller or, if any original intervening assignment of Mortgage has not yet been returned on or prior to the 90th day following the Closing Date from the applicable recording office or has been lost, a true and correct copy thereof, together with (A) in the case of a delay caused by the public recording office, an Officer’s Certificate of the applicable Seller stating that such original intervening assignment of Mortgage has been sent to the appropriate public recording official for recordation or (B) in the case of an original intervening assignment of Mortgage that has been lost after recordation, a certification by the appropriate county recording office where such assignment is recorded that such copy is a true and complete copy of the original recorded intervening assignment of Mortgage;


 




  





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(vi) if the related Assignment of Leases is separate from the Mortgage, the original of such Assignment of Leases with evidence of recording thereon or certified by a title insurance company or escrow company to be a true copy thereof; provided that or, if such Assignment of Leases has not been returned on or prior to the 90th day following the Closing Date because of a delay caused by the applicable public recording office where such Assignment of Leases has been delivered for recordation or because such original Assignment of Leases has been lost, the Seller shall deliver or cause to be delivered to the Trustee a true and correct copy of such Assignment of Leases submitted for recording, together with, (A) in the case of a delay caused by the public recording office, an Officer’s Certificate (as defined below) of the Seller stating that such Assignment of Leases has been sent to the appropriate public recording official for recordation or (B) in the case of an original Assignment of Leases that has been lost after recordation, a certification by the appropriate county recording office where such Assignment of Leases is recorded that such copy is a true and complete copy of the original recorded Assignment of Leases, in each case together with an original assignment of such Assignment of Leases, in recordable form, signed by the holder of record in favor of “_______, as Trustee for Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 20__-____,” which assignment may be effected in the related Assignment of Mortgage;


 


(vii) the original or a copy of each guaranty, if any, constituting additional security for the repayment of such Mortgage Loan;


 


(viii) the original Title Insurance Policy, or in the event such original Title Insurance Policy has not been issued, a binder, actual “marked-up” title commitment, pro forma policy, or an agreement to provide any of the foregoing pursuant to binding escrow instructions executed by the title company or its authorized agent with one of the foregoing attached thereto and, in each case, with the original Title Insurance Policy to follow within 180 days of the Closing Date, or a copy of any of the foregoing certified by the title company with the original Title Insurance Policy to follow within 180 days of the Closing Date, or a preliminary title report with the original Title Insurance Policy to follow within 180 days of the Closing Date;


 


(ix) (A) Copies of UCC financing statements (together with all assignments thereof) filed in connection with a Mortgage Loan and (B) UCC-2 or UCC-3 financing statements assigning such UCC financing statements to the Trustee executed and delivered in connection with the Mortgage Loan;


 


(x) copies of the related ground lease(s), if any, related to any Mortgage Loan where the Mortgagor is the lessee under such ground lease and there is a lien in favor of the mortgagee in such lease;


 


(xi) copies of any loan agreements, lock-box agreements and intercreditor agreements, if any, related to any Mortgage Loan;


 


(xii) either (A) the original of each letter of credit, if any, constituting additional collateral for such Mortgage Loan (other than letters of credit representing


 









  





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tenant security deposits which have been collaterally assigned to the lender), which shall be assigned and delivered to the Trustee on behalf of the Trust, and applied, drawn, reduced or released in accordance with documents evidencing or securing the applicable Mortgage Loan, this Agreement and the applicable Primary Servicing Agreement or, (B) the original of each letter of credit, if any, constituting additional collateral for such Mortgage Loan (other than letters of credit representing tenant security deposits which have been collaterally assigned to the lender), which shall be held by the applicable Primary Servicer (or the Master Servicer) on behalf of the Trustee and applied, drawn, reduced or released in accordance with documents evidencing or securing the applicable Mortgage Loan, this Agreement and the applicable Primary Servicing Agreement (it being understood that each Seller has agreed (a) that the proceeds of such letter of credit belong to the Trust, (b) to notify, on or before the Closing Date, the bank issuing the letter of credit that the letter of credit and the proceeds thereof belong to the Trust, and to use reasonable efforts to obtain within 30 days (but in any event to obtain within 90 days) following the Closing Date, an acknowledgement thereof by the bank (with a copy of such acknowledgement to be sent to the Trustee) and (c) to indemnify the Trust for any liabilities, charges, costs, fees or other expenses accruing from the failure of the Seller to assign the letter of credit hereunder).  In the case of clause (B) above, each Primary Servicer (and the Master Servicer) acknowledges that any letter of credit held by it shall be held in its capacity as agent of the Trust, and if a Primary Servicer or the Master Servicer, as applicable, sells its rights to service the applicable Mortgage Loan, the applicable Primary Servicer or the Master Servicer, as applicable, will assign the applicable letter of credit to the Trust or at the direction of the Special Servicer to such party as the Special Servicer may instruct, in each case, at the expense of the Primary Servicer or the Master Servicer, as applicable.  The Primary Servicer (or the Master Servicer) shall indemnify the Trust for any loss caused by the ineffectiveness of such assignment;


 


(xiii) the original or a copy of the environmental indemnity agreement, if any, related to any Mortgage Loan;


 


(xiv) copies of third-party management agreements, if any, for all hotels and for such other Mortgaged Properties securing Mortgage Loans with a Cut-Off Date Principal Balance equal to or greater than $[20,000,000];


 


(xv) the original of any Environmental Insurance Policy or (i) if the original is held by the related borrower, a copy thereof, or (ii) the binder for such Environmental Insurance Policy;


 


(xvi) a copy of any affidavit and indemnification agreement in favor of the lender; and


 


(xvii) with respect to hospitality properties, a copy of any franchise agreement, franchise comfort letter and applicable assignment or transfer documents.


 


“Mortgage Loan” means a Mortgage Note secured by a Mortgage, and all amendments and modifications thereof, identified on the Mortgage Loan Schedule, as amended


 


 




  





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from time to time, and conveyed, transferred, sold, assigned to or deposited with the Trustee pursuant to Section 2.1 or Section 2.3, and Mortgage Loan shall also include any Defeasance Loan, any REO Mortgage Loan, unless the context requires otherwise.


 


“Mortgage Loan Purchase Agreement” means [identify each Mortgage Loan Purchase Agreement].


 


“Mortgage Loan Schedule” or “Loan Schedule” means the schedule attached hereto as Schedule I, as such schedule may be amended from time to time pursuant to Section 2.3.


 


“Mortgage Note” means the note or other evidence of indebtedness evidencing the indebtedness of a Mortgagor under a Mortgage Loan.


 


“Mortgage Pool” means all of the Mortgage Loans and any successor REO Mortgage Loans, collectively.


 


“Mortgage Rate” means, for a given Mortgage Loan, the per annum rate at which interest accrues on such Mortgage Loan.


 


“Mortgaged Property” means the real property, together with improvements thereto, securing the indebtedness of the Mortgagor under the related Mortgage Loan.


 


“Mortgagee” means, with respect to any Mortgage as of any date of determination, the mortgagee named therein as of such date.


 


“Mortgagor” means the obligor on a Mortgage Note.


 


“MSMC” has the meaning assigned in the Preliminary Statement hereto.


 


“Net Aggregate Prepayment Interest Shortfall” means, for any Distribution Date and the Master Servicer, the excess of all Prepayment Interest Shortfalls incurred in respect of all (or, where specified, a portion) of the Mortgage Loans serviced by the Master Servicer (including Specially Serviced Mortgage Loans) during any Collection Period over the sum of (A) the Compensating Interest to be paid by the Master Servicer (or any Primary Servicer or Sub-Servicer, if applicable according to the related Primary Servicing Agreement or Sub-Servicing Agreement) on such Distribution Date and (B) the aggregate Prepayment Interest Excesses during such Collection Period for the Master Servicer’s Mortgage Loans (including Specially Serviced Mortgage Loans).  Prepayment Interest Shortfalls and Prepayment Interest Excesses will be separately accounted for by the Master Servicer.


 


“Net Swap Payment” shall have the meaning specified in Section 8.30(g).


 


“New Lease” means any lease of any REO Property entered into on behalf of the Trust, including any lease renewed or extended on behalf of the Trust if the Trust has the right to renegotiate the terms of such lease.


 


“1940 Act” means the Investment Company Act of 1940, as amended.


 


 




  





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“1933 Act” means the Securities Act of 1933, as amended.


 


“1934 Act” means the Securities Exchange Act of 1934, as amended.


 


“Non-Investment Grade Certificates” means each Class of Certificates other than a Residual Certificate or a Class [EI] Certificate that, at the time of determination, is not rated in one of the four highest generic rating categories by at least one of Fitch, S&P or Moody’s.


 


“Non-Registered Certificate” means unless and until registered under the Securities Act, any Class [X-1], Class [X-Y], Class [E], Class [F], Class [G], Class [H], Class [J], Class [K], Class [L], Class [M], Class [N], Class [O], Class [P], Class [EI] or Residual Certificate.


 


“Nondisqualification Opinion” means a written Opinion of Counsel to the effect that a contemplated action (i) will neither cause any REMIC Pool to fail to qualify as a REMIC at any time that any Certificates are outstanding nor cause a “prohibited transaction,” “prohibited contribution” or any other tax (other than a tax on “net income from foreclosure property” permitted to be incurred under this Agreement) to be imposed on any REMIC Pool or the Trust, (ii) will not cause the Class EI Grantor Trust to fail to qualify as a grantor trust and (iii) will not cause the Class A-3-1FL Grantor Trust to fail to qualify as a grantor trust.


 


“Noneconomic Residual Interest” means a residual interest that is a “noneconomic residual interest” within the meaning of Treasury Regulations Section 1.860E-1(c).


 


“Nonrecoverable Advance” means the portion of any Advance (including interest accrued thereon at the Advance Rate) or Unliquidated Advance (not including interest thereon) previously made (or, in the case of an Unliquidated Advance, not reimbursed to the Trust) or proposed to be made by the Master Servicer, the Special Servicer or the Trustee that, in its respective sole discretion, exercised in good faith and, with respect to the Master Servicer and the Special Servicer, in accordance with the Servicing Standard, will not be or, in the case of a current delinquency, would not be, ultimately recoverable, from Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds or Purchase Proceeds (or from any other collections) with respect to the related Mortgage Loan or REO Property, as evidenced by an Officer’s Certificate delivered pursuant to Section 4.4.  With respect to each Mortgage Loan that is cross-collateralized by Mortgaged Properties securing other Mortgage Loans, all of such Mortgaged Properties and other security must be considered in connection with any determination of whether an Advance or Unliquidated Advance is a Nonrecoverable Advance.  Such Officer’s Certificate shall be delivered to the Trustee (upon which the Trustee may conclusively rely) or to the Depositor (if the Trustee is delivering such Officer’s Certificate) and (in either case) to the Special Servicer and the Paying Agent, in the time periods as specified in Section 4.4 and shall include the information and reports set forth in Section 4.4.  Absent bad faith, the Master Servicer’s determination as to the nonrecoverability of any Advance shall be conclusive and binding on the Certificateholders and may, in all cases, be relied on by the Trustee; provided, however, that the Special Servicer may, at its option, make a determination in accordance with the Servicing Standard that any P&I Advance or Servicing Advance, if made,


 


 




  





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would be a Nonrecoverable Advance and shall deliver to the Master Servicer and the Trustee notice of such determination.  Any such determination shall be conclusive and binding on the Master Servicer and the Trustee; provided, however, the Special Servicer shall have no such right to make an affirmative determination that any P&I Advance is or would be recoverable and, in the absence of a determination by the Special Servicer that such Advance is or would be a Nonrecoverable Advance, the decision that a P&I Advance is recoverable shall remain with the Master Servicer or Trustee, as applicable.  Absent bad faith, such determination by the Special Servicer shall be conclusive and binding on the Certificateholders, the Master Servicer and the Trustee.  None of the Master Servicer, the Special Servicer or the Trustee will be obligated to make any Advance that, in its judgment in accordance with the Servicing Standard, would not ultimately be recoverable out of collections on the related Mortgage Loan.  In making any nonrecoverability determination as described above, the relevant party shall be entitled (i) to consider (among other things) the obligations of the Mortgagor under the terms of the Mortgage Loan as it may have been modified, (ii) to consider (among other things) the related Mortgaged Properties in their “as is” then-current conditions and occupancies and such party’s assumptions (consistent with the Servicing Standard in the case of the Master Servicer or the Special Servicer) regarding the possibility and effects of future adverse change with respect to such Mortgaged Properties, (iii) to estimate and consider, consistent with the Servicing Standard in the case of the Master Servicer or the Special Servicer (among other things), future expenses, (iv) to estimate and consider, consistent with the Servicing Standard in the case of the Master Servicer or the Special Servicer (among other things), the timing of recovery to such party and (v) to consider the amount of any deferred Advances outstanding.  In addition, the relevant party may, consistent with the Servicing Standard in the case of the Master Servicer or the Special Servicer, update or change its nonrecoverability determinations at any time in accordance with the terms hereof and may, consistent with the Servicing Standard in the case of the Master Servicer or the Special Servicer, obtain from the Special Servicer any analysis, appraisals or other information in the possession of the Special Servicer for such purposes.


 


“Notional Amount” means, as of any date of determination:  (i) with respect to all of the Class [X-1] Certificates as a Class, the Class X-1 Notional Amount as of such date of determination; (ii) with respect to any Class [X-1] Certificate, the product of the Percentage Interest evidenced by such Certificate and the Class X-1 Notional Amount as of such date of determination; (iii) with respect to all of the Class [X-Y] Certificates as a Class, the Class X-Y Notional Amount as of such date of determination; (iv) with respect to any Class [X-Y] Certificate, the product of the Percentage Interest evidenced by such Certificate and the Class X-Y Notional Amount; (v) with respect to all of the Class [X-2] Certificates as a Class, the Class X-2 Notional Amount as of such date of determination; (vi) with respect to any Class [X-2] Certificate, the product of the Percentage Interest evidenced by such Certificate and the Class X-2 Notional Amount of such date of determination; (vii) with respect to any Group X-Y REMIC I Regular Interest, the Principal Balance of the related Specially Designated Co-op Mortgage Loan (or any successor REO Mortgage Loan), reduced by any Advances of principal made with respect to such Specially Designated Co-op Mortgage Loan and losses thereon previously allocated to Certificateholders; and (viii) with respect to the REMIC II Regular Interest X-Y, the Class X-Y Notional Amount, which is equal to the aggregate of the Notional Amounts with respect to all Group X-Y REMIC I Regular Interests.


 




  





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“Officer’s Certificate” means (v) in the case of the Depositor, a certificate signed by one or more of the Chairman of the Board, any Vice Chairman, the President, or any Senior Vice President, Vice President or Assistant Vice President, and by one or more of the Treasurer, any Assistant Treasurer, the Secretary or any Assistant Secretary of the Depositor, or (w) in the case of the Master Servicer(s) and the Special Servicer(s), any of the officers referred to above or an employee thereof designated as a Servicing Officer or Special Servicing Officer pursuant to this Agreement, (x) in the case of the Trustee, a certificate signed by a Responsible Officer, (y) in the case of a Seller, a certificate signed by one or more of the Chairman of the Board, any Vice Chairman, any Managing Director or Director, the President, or any Executive Vice President; Senior Vice President, Second Vice President, Vice President or Assistant Vice President, any Treasurer, any Assistant Treasurer or any Secretary or Assistant Secretary or any other authorized signatory and (z) in the case of the Paying Agent, a certificate signed by a Responsible Officer, each with specific responsibilities for the matters contemplated by this Agreement.


 


“Operating Adviser” shall have the meaning specified in Section 9.37(a).


 


“Opinion of Counsel” means a written opinion of counsel addressed to the Master Servicer (and/or any Primary Servicer acting on behalf of the Master Servicer), the Special Servicer, or the Trustee and the Paying Agent, as applicable, reasonably acceptable in form and substance to the Master Servicer (and/or any Primary Servicer acting on behalf of the Master Servicer), the Special Servicer, or the Trustee and the Paying Agent, as applicable, and who is not in-house counsel to the party required to deliver such opinion but who, in the good faith judgment of the Master Servicer (and/or any Primary Servicer acting on behalf of the Master Servicer), the Special Servicer, or the Trustee and the Paying Agent, as applicable, is Independent outside counsel knowledgeable of the issues occurring in the practice of securitization with respect to any such opinion of counsel concerning the taxation, or status as a REMIC for tax purposes, of any REMIC Pool or status as a “grantor trust” under the Grantor Trust Provisions of the Class A-3-1FL Grantor Trust and the Class EI Grantor Trust.


 


“Option” shall have the meaning specified in Section 9.36(a).


 


“Option Holder” shall have the meaning specified in Section 9.36(a).


 


“Option Purchase Price” shall have the meaning specified in Section 9.36(b).


 


“OTS” shall mean the Office of Thrift Supervision or any successor thereto.


 


“Outstanding Certificate” means any Outstanding Exchangeable Certificate and Outstanding Depositable Certificate.


 


“Outstanding Depositable Certificate” means any Depositable Certificate issued hereunder; provided, that upon the exchange of any Depositable Certificate pursuant to Section 3.10 hereof, the Depositable Certificate so exchanged shall be deemed no longer to be an Outstanding Depositable Certificate, and the Exchangeable Certificate issued in exchange therefore shall be deemed to be an Outstanding Exchangeable Certificate.


 




  





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“Outstanding Exchangeable Certificate” means any Exchangeable Certificate issued hereunder; provided, that upon the exchange of any Exchangeable Certificate pursuant to Section 3.10 hereof, the Exchangeable Certificate so exchanged shall be deemed no longer to be an Outstanding Certificate, and each Depositable Certificate issued in exchange therefore shall be deemed to be an Outstanding Depositable Certificate.


 


“Ownership Interest” means, as to any Certificate, any ownership or security interest in such Certificate as the Holder thereof and any other interest therein, whether direct or indirect, legal or beneficial, as owner or as pledgee.


 


“P&I Advance” shall mean, (i) with respect to any Mortgage Loan or Specially Serviced Mortgage Loan as to which all or a portion of the Scheduled Payment (net of the related Master Servicing Fees, Excess Servicing Fees, Primary Servicing Fees and other servicing fees payable from such Scheduled Payment), other than a Balloon Payment or any default interest, due during the related Collection Period was not received by the Master Servicer as of the related Determination Date (subject to Section 5.1(h)), the portion of such Scheduled Payment not received; (ii) with respect to any Balloon Mortgage Loan (including any REO Mortgage Loan which provided for a Balloon Payment) as to which a Balloon Payment was due or deemed due during or prior to the related Collection Period but was delinquent, in whole or in part, as of the related Determination Date, an amount equal to the excess, if any, of the Assumed Scheduled Payment (net of the related Master Servicing Fee, Excess Servicing Fees, Primary Servicing Fees and other master or primary servicing fees payable from such Assumed Scheduled Payment) for such Balloon Mortgage Loan for the related Collection Period, over any Late Collections received in respect of such Balloon Payment during such Collection Period; and (iii) with respect to each REO Property, an amount equal to the excess, if any, of the Assumed Scheduled Payment for the REO Mortgage Loan related to such REO Property during the related Collection Period, over remittances of REO Income to the Master Servicer by the Special Servicer, reduced by any amounts required to be paid as taxes on such REO Income (including taxes imposed pursuant to Section 860G(c) of the Code); provided, however, that the Scheduled Payment or Assumed Scheduled Payment for any Mortgage Loan or REO Mortgage Loan which has been modified shall be calculated based on its terms as modified and provided, further, that the interest portion amount of any P&I Advance with respect to a Mortgage Loan as to which there has been an Appraisal Reduction shall be an amount equal to the product of (i) the amount with respect to interest required to be advanced without giving effect to this proviso and (ii) a fraction, the numerator of which is the Scheduled Principal Balance of such Mortgage Loan as of the immediately preceding Determination Date less any Appraisal Reduction applicable to such Mortgage Loan and the denominator of which is the Scheduled Principal Balance of such Mortgage Loan as of such Determination Date.


 


“P&I Advance Amount” means the amount of the P&I Advance computed for any Distribution Date.


 


“Participant” means a broker, dealer, bank, other financial institution or other Person for whom the Clearing Agency effects book-entry transfers and pledges of securities deposited with the Clearing Agency.


 




  





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“Pass-Through Rate” or “Pass-Through Rates” means with respect to any Class of REMIC I Regular Interests, REMIC II Regular Interests, REMIC III Regular Interests or Class [A-3-1FL] Certificates, for the first Distribution Date, the rate set forth in the Preliminary Statement hereto.  For any Distribution Date occurring thereafter, the Pass-Through Rates for (i)(A) the Group PB REMIC I Regular Interests shall equal their respective REMIC I Net Mortgage Rates and (B) the Group X-Y REMIC I Regular Interests, their respective Class X-Y Strip Rates on the related Mortgage Loan for such Distribution Date, (ii)(A) the REMIC II Regular Interests (other than REMIC II Regular Interest X-Y) shall equal the Weighted Average REMIC I Net Mortgage Rate and (B) the REMIC II Regular Interest X-Y shall equal the Weighted Average Class X-Y Strip Rate for such Distribution Date, (iii) the Class A-1 and Class [A-2] Certificates shall equal the fixed rate corresponding to such Class set forth in the Preliminary Statement hereto, (iv) the Class [A-1A] Certificates shall equal a per annum rate equal to the lesser of ___% and the Weighted Average REMIC I Net Mortgage Rate for such Distribution Date, (v) the Class [A-3-1FL] Certificates shall equal the per annum rate equal to LIBOR plus ___%, provided, however, that under the circumstances set forth in Section 6.12 regarding defaults or terminations under the Swap Contract, the Pass-Through Rate of the Class A-3-1FL Regular Interest shall be subject to reduction in accordance with the Swap Contract and this Agreement, (vi) the Class [A-3-1] Certificates shall equal a per annum rate equal to the lesser of ___% and the Weighted Average REMIC I Net Mortgage Rate for such Distribution Date, (vii) the Class [A-3-2] Certificates shall equal a per annum rate equal to the lesser of ___% and the Weighted Average REMIC I Net Mortgage Rate for such Distribution Date, (viii) the Class [A-AB] Certificates shall equal a per annum rate equal to the lesser of ___% and the Weighted Average REMIC I Net Mortgage Rate for such Distribution Date, (ix) the Class [A-4A] Certificates shall equal a per annum rate equal to the lesser of ___% and the Weighted Average REMIC I Net Mortgage Rate for such Distribution Date, (x) the Class [A-4B] Certificates shall equal a per annum rate equal to the lesser of ___% and the Weighted Average REMIC I Net Mortgage Rate for such Distribution Date, (xi) the Class [A-J] Certificates shall equal a per annum rate equal to the Weighted Average REMIC I Net Mortgage Rate less ___% for such Distribution Date, (xii) the Class [B] Certificates shall equal a per annum rate equal to the Weighted Average REMIC I Net Mortgage Rate less ___% for such Distribution Date, (xiii) the Class C, Class D, Class E, Class F, Class G and Class [H] Certificates shall equal a per annum rate equal to the Weighted Average REMIC I Net Mortgage Rate, (xiv)  the Class J, Class K, Class L, Class M, Class N, Class O and Class [P] Certificates shall equal the lesser of (A) ___% and (B) the Weighted Average REMIC I Net Mortgage Rate for such Distribution Date, (xv) the Class [X-1] Certificates shall equal the per annum rate equal to the weighted average of Class X-1 Strip Rates for the Components for such Distribution Date (weighted on the basis of the respective Component Notional Amounts of such Components outstanding immediately prior to such Distribution Date), (xvi) the Class [X-2] Certificates shall equal the per annum rate equal to the weighted average of the Class X-2 Strip Rates for the respective Class X-2 Components for such Distribution Date (weighted on the basis of the respective Component Notional Amounts of such Components outstanding immediately prior to such Distribution Date), (xvii) the Class [X-Y] Certificates shall equal the Weighted Average Class X-Y Strip Rate and (xviii) the Class A-3-1FL Regular Interest shall equal a per annum rate equal to the lesser of ___% and the Weighted Average REMIC I Net Mortgage Rate for such Distribution Date.


 


“Paying Agent” means _______ and any successor or assign, as provided herein.


 



 




  





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“Paying Agent’s Website” has the meaning set forth in Section 5.4(a) hereof.


 


“PCAOB” means the Public Company Accounting Oversight Board.


 


“Percentage Interest” means, with respect to each Class of Certificates other than the Residual Certificates, the fraction of such Class evidenced by such Certificate, expressed as a percentage (carried to four decimal places and rounded, if necessary), the numerator of which is the Certificate Balance or Notional Amount, as applicable, represented by such Certificate determined as of the Closing Date (as stated on the face of such Certificate) and the denominator of which is the Aggregate Certificate Balance or Notional Amount, as applicable, of all of the Certificates of such Class determined as of the Closing Date.  With respect to each Residual Certificate, the percentage interest in distributions (if any) to be made with respect to the relevant Class, as stated on the face of such Certificate.


 


“Performing Party” has the meaning set forth in Section 8.26(b).


 


“Permitted Transferee” means any Transferee other than (i) a Disqualified Organization or (ii) a United States Tax Person with respect to whom income from a Residual Certificate is attributable to a foreign permanent establishment or fixed base, within the meaning of an applicable income tax treaty, of such Person or any other United States Tax Person.


 


“Person” means any individual, corporation, limited liability company, partnership, joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.


 


“Phase I Environmental Report” means a report by an Independent Person who regularly conducts environmental site assessments in accordance with then current standards imposed by institutional commercial mortgage lenders and who has a reasonable amount of experience conducting such assessments.


 


“Placement Agent” means [Morgan Stanley & Co. Incorporated or its successor in interest].


 


“Plan” has the meaning set forth in Section 3.3(d).


 


“Planned Principal Balance”  means for any Distribution Date, the balance shown for such Distribution Date on Schedule III.


 


“Free Writing Prospectus” has the meaning set forth in the Preliminary Statement hereto.


 


“Prepayment Interest Excess” means for any Distribution Date and the related Collection Period, during which a full or partial Principal Prepayment of a Mortgage Loan (including any payment of an unscheduled Balloon Payment) is made on or after the Due Date for such Mortgage Loan through and including the last day of the Collection Period (or, with respect to those Mortgage Loans listed on Schedule XIII, through and including the first Business Day prior to the Master Servicer Remittance Date), the amount of interest that accrues on the amount of such Principal Prepayment or Balloon Payment from such Due Date to the date











 




  





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such payment was made, plus (if made) any payment by the related Mortgagor of interest that would have accrued to the next succeeding Due Date (net of the amount of any Master Servicing Fee, the Primary Servicing Fees, the Excess Servicing Fees, the Special Servicing Fee and the Trustee Fee in each case, to the extent payable out of such collection of interest), to the extent collected.


 


“Prepayment Interest Shortfall” means, with respect to any Distribution Date, a shortfall in the collection of a full month’s interest on any Mortgage Loan, by reason of a full or partial Principal Prepayment (including any payment of an unscheduled Balloon Payment) made during any Collection Period prior to the Due Date for such Mortgage Loan in such Collection Period (including any shortfall resulting from a payment during the grace period relating to such Due Date).  The amount of any Prepayment Interest Shortfall shall equal the excess of (A) the aggregate amount of interest which would have accrued at the REMIC I Net Mortgage Rate on the Scheduled Principal Balance of such Mortgage Loan for the 30 days ending on such Due Date if such Principal Prepayment or Balloon Payment had not been made (net of the Master Servicing Fee, the Primary Servicing Fees, the Excess Servicing Fees, the Special Servicing Fee and the Trustee Fee), plus, with respect to each Specially Designated Co-op Mortgage Loan, the related Class X-Y Strip Rate over (B) the aggregate interest that did so accrue at the REMIC I Net Mortgage Rate plus, with respect to each Specially Designated Co-op Mortgage Loan, the related Class X-Y Strip Rate, through the date such payment was made.


 


“Prepayment Premium” means, with respect to any Mortgage Loan for any Distribution Date, the prepayment premiums or percentage premiums, if any, received during a related Collection Period in connection with Principal Prepayments on such Mortgage Loan.


 


“Primary Collateral” means the portion of the Mortgaged Property securing the Repurchased Loan or Cross-Collateralized Loan, as applicable, that is encumbered by a first mortgage lien.


 


“Primary Servicers” means [specify primary servicers] and each of their respective permitted successors and assigns.


 


“Primary Servicing Agreement” means, with respect to each Primary Servicer, the agreement between such Primary Servicer and the Master Servicer, dated as of _____, under which such Primary Servicer services the Mortgage Loans set forth on the schedule attached thereto.


 


“Primary Servicing Fee” means, for each calendar month, as to each Mortgage Loan for which a Primary Servicing Fee is payable pursuant to this Agreement, the Primary Servicing Fee Rate multiplied by the Scheduled Principal Balance of such Mortgage Loan immediately before the Due Date occurring in such month, but prorated for the number of days during the calendar month for such Mortgage Loan for which interest actually accrues on such Mortgage Loan and payable only from collections on such Mortgage Loan.


 


“Primary Servicing Fee Rate” means, the rate per annum at which the monthly Primary Servicing Fee payable to the applicable Primary Servicer (or the Master Servicer, as applicable) accrues, which rate is the per annum rate specified on the Mortgage Loan Schedule,











 


 




  





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as more specifically described, in the case of the Primary Servicers, in the applicable Primary Servicing Agreement (determined in the same manner (other than the rate of accrual) as the applicable Mortgage Rate is determined for such Mortgage Loan for such month).


 


“Principal Balance” means, with respect to any Mortgage Loan or any REO Mortgage Loan, for purposes of performing calculations with respect to any Distribution Date, the principal balance of such Mortgage Loan or the related REO Mortgage Loan outstanding as of the Cut Off Date after taking into account all principal and interest payments made or due prior to the Cut Off Date (assuming, for any Mortgage Loan with a Cut Off Date that is not the first day of the month of the Closing Date, that principal and interest payments for such month were paid on the first day of such month), reduced (to not less than zero) by (i) any payments or other collections of amounts allocable to principal on such Mortgage Loan or any related REO Mortgage Loan that have been collected or received during any preceding Collection Period, other than any Scheduled Payments due in any subsequent Collection Period, and (ii) any Realized Principal Loss incurred in respect of such Mortgage Loan or related REO Mortgage Loan, in each case, during any related and preceding Collection Period.


 


“Principal Balance Certificates” means, collectively, the Class [A-1], Class [A-1A], Class [A-2], Class [A-3-1FL], Class [A-3-1], Class [A-3-2], Class [A-AB], Class [A-4A], Class [A-4B], Class [A-J], Class [B], Class [C], Class [D], Class [E], Class [F], Class [G], Class [H], Class [J], Class [K], Class [L], Class [M], Class [N], Class [O] and Class [P] Certificates.


 


“Principal Distribution Amount” means, on any Distribution Date, the amount equal to the excess, if any, of (I) the sum of:


 


(A) the aggregate (without duplication) of the following amounts received with respect to the Mortgage Loans:  (i) the principal portion of all Scheduled Payments (other than the principal portion of Balloon Payments) and any Assumed Scheduled Payments, in each case, to the extent received or advanced, as the case may be, in respect of the Mortgage Loans and any REO Mortgage Loans for their respective Due Dates occurring during the related Collection Period; and (ii) all payments (including Principal Prepayments and the principal portion of Balloon Payments) and any other collections (including Liquidation Proceeds (other than the portion thereof, if any, constituting Excess Liquidation Proceeds), Condemnation Proceeds, Insurance Proceeds, Purchase Proceeds and REO Income) received on or in respect of the Mortgage Loans during the related Collection Period that were identified and applied by the Master Servicer as recoveries of principal thereof;


 


(B) the aggregate amount of any collections received on or in respect of the Mortgage Loans that represents a delinquent amount as to which an Advance had been made, which Advance or interest thereon was previously reimbursed during the Collection Period for a prior Distribution Date as part of a Workout-Delayed Reimbursement Amount for which a deduction was made under clause (II)(A) below with respect to such Distribution Date (with respect to each such Mortgage Loan, allocated first to the Loan Group Principal Distribution Amount related to the Loan










 


  





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Group that does not include such Mortgage Loan, and then to the Loan Group Principal Distribution Amount related to the Loan Group that includes such Mortgage Loan); and


 


(C) the aggregate amount of any collections identified and applied by the Master Servicer as recoveries of principal and received on or in respect of the Mortgage Loans during the related Collection Period that, in each case, represents a recovery of an amount previously determined (in a Collection Period for a prior Distribution Date) to have been a Nonrecoverable Advance and any interest thereon and for which a deduction was made under clause (II)(B) below with respect to a prior Distribution Date (with respect to each such Mortgage Loan, allocated first to the Loan Group Principal Distribution Amount related to the Loan Group that does not include such Mortgage Loan, and then to the Loan Group Principal Distribution Amount related to the Loan Group that includes such Mortgage Loan), and which are applied pursuant to Section 6.6(c)(i); over


 


(II) the sum of (with respect to each such Mortgage Loan, allocated first to the Loan Group Principal Distribution Amount applicable to such Mortgage Loan, and then to the other Loan Group Principal Distribution Amount):


 


(A) the aggregate amount of Workout-Delayed Reimbursement Amounts (and Advance Interest thereon) that was reimbursed or paid during the related Collection Period to one or more of the Master Servicer, the Special Servicer and the Trustee from principal collections on the Mortgage Loans pursuant to subsection (iii) of Section 5.2(a)(II); and


 


(B) the aggregate amount of Nonrecoverable Advances (and Advance Interest thereon) that was reimbursed or paid during the related Collection Period to one or more of the Master Servicer, the Special Servicer and the Trustee during the related Collection Period from principal collections on the Mortgage Loans pursuant to subsection (iv) of Section 5.2(a)(II).


 


“Principal Prepayment” means any voluntary or involuntary payment or collection of principal on a Mortgage Loan which is received or recovered in advance of its scheduled Due Date and applied to reduce the Principal Balance of the Mortgage Loan in advance of its scheduled Due Date, including, without limitation, all proceeds, to the extent allocable to principal, received from the payment of cash in connection with a substitution shortfall pursuant to Section 2.3; provided that the pledge by a Mortgagor of Defeasance Collateral with respect to a Defeasance Loan shall not be deemed to be a Principal Prepayment.


 


“Private Placement Memorandum” means the Private Placement Memorandum dated ____, 20__, pursuant to which the Class [X-1], Class [X-Y], Class [E], Class [F], Class [G], Class [H], Class [J], Class [K], Class [L], Class [M], Class [N], Class [O] and Class [P] Certificates will be offered for sale.


 


“Projected Net Cash Flow” shall mean, with respect to any Mortgaged Property that is a residential cooperative property, projected net operating income at such Mortgaged Property, as set forth in the Appraisal obtained with respect to such Mortgaged Property in










 


  





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connection with the origination of the related Mortgage Loan (or an updated Appraisal, if required hereunder), assuming such Mortgaged Property was operated as a rental property with rents set at prevailing market rates taking into account the presence of existing rent controlled or rent stabilized occupants, reduced by underwritten capital expenditures, property operating expenses, a market rate vacancy assumption and projected reserves.


 


“Prospectus” has the meaning set forth in the Preliminary Statement hereto.


 


“PTCE” has the meaning set forth in Section 3.3(d).


 


“Purchase Price” means, with respect to (i) the repurchase, pursuant to Article II of this Agreement, by the applicable Seller of a Mortgage Loan sold by such Seller, (ii) the determination of fair value of an REO Mortgage Loan with respect to a liquidation by the Special Servicer pursuant to Section 9.15 or (iii) the determination of fair value of a Mortgage Loan in connection with a purchase by the Option Holder pursuant to Section 9.36 under the circumstances described therein, a price equal to the sum of (A) 100% of the unpaid Principal Balance of such Mortgage Loan (or deemed Principal Balance, in the case of an REO Mortgage Loan), plus (B) accrued but unpaid interest thereon calculated at the Mortgage Rate to, but not including, the Due Date in the Collection Period in which such purchase or liquidation occurs, plus (C) the amount of any expenses related to such Mortgage Loan or the related REO Property (including any Servicing Advances and Advance Interest (which have not been paid by the Mortgagor or out of Late Fees or default interest paid by the related Mortgagor on the related Mortgage Loan) and all unpaid Special Servicing Fees and Liquidation Fees paid or payable with respect to the Mortgage Loan) that are reimbursable or payable to the Master Servicer, the Special Servicer, the Paying Agent or the Trustee, plus (D) if such Mortgage Loan or REO Mortgage Loan is being repurchased or substituted for by a Seller pursuant to the related Mortgage Loan Purchase Agreement, all expenses reasonably incurred or to be incurred by the Primary Servicer, the Master Servicer, the Special Servicer, the Depositor, the Paying Agent or the Trustee in respect of the Material Breach or Material Document Defect giving rise to the repurchase or substitution obligation (and that are not otherwise included in (C) above).


 


“Purchase Proceeds” means any cash amounts received by the Master Servicer in connection with:  (i) the repurchase of a Mortgage Loan or an REO Mortgage Loan by a Seller pursuant to Section 2.3, (ii) the purchase by the Option Holder of a Mortgage Loan pursuant to Section 9.36 or (iii) the purchase of the Mortgage Loans and REO Properties by the Depositor, the Master Servicer, the Special Servicer or the holders of the Class [R-I] Certificates pursuant to Section 10.1(b).


 


“Qualified Bidder” means as used in section 8.29(c), a Person qualified to act as successor Master Servicer hereunder pursuant to Section 8.22(b) (including the requirement set forth in Section 8.22(b) that Rating Agency Confirmation shall have been obtained from each Rating Agency with respect to such Person).


 


“Qualified Institutional Buyer” means a qualified institutional buyer qualifying pursuant to Rule 144A.











 




  





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“Qualified Insurer” means, (i) with respect to any Mortgage Loan, an insurance company duly qualified as such under the laws of the state in which the related Mortgaged Property is located, duly authorized and licensed in such state to transact the applicable insurance business and to write the insurance, but in no event rated lower than [“A2” by Moody’s, or if not so rated by Moody’s, then Moody’s has issued a Rating Agency Confirmation, and “A” by S&P, or if not so rated by S&P, then S&P has issued a Rating Agency Confirmation], and (ii) with respect to the Servicer Errors and Omissions Insurance Policy or Servicer Fidelity Bond an insurance company that has a claim paying ability no lower than [“A” by S&P if rated by S&P, or if not so rated by S&P, then A:IX by A. M. Best or S&P has issued a Rating Agency Confirmation and “A2” by Moody’s (or if such company is not rated by Moody’s, is rated at least A:IX by A.M. Best’s Key Rating Guide)] or (iii) in either case, a company not satisfying clause (i) or (ii) but with respect to which Rating Agency Confirmation is obtained from [Moody’s and S&P].  “Qualified Insurer” shall also mean any entity that satisfies all of the criteria, other than the ratings criteria, set forth in one of the foregoing clauses and whose obligations under the related insurance policy are guaranteed or backed by an entity that satisfies the ratings criteria set forth in such clause (construed as if such entity were an insurance company referred to therein).


 


“Qualifying Substitute Mortgage Loan” means, in the case of a Mortgage Loan substituted for a Deleted Mortgage Loan, a Mortgage Loan which, on the date of substitution, (i) has an outstanding principal balance, after deduction of the principal portion of the Scheduled Payment due in the month of substitution, not in excess of the Principal Balance of the Deleted Mortgage Loan; provided, however, that, to the extent that the principal balance of such Mortgage Loan is less than the Principal Balance of the Deleted Mortgage Loan, then such differential in principal amount, together with interest thereon at the Mortgage Rate on the related Mortgage Loan from the date as to which interest was last paid through the last day of the month in which such substitution occurs, shall be paid by the party effecting such substitution to the Master Servicer for deposit into the applicable Certificate Account, and shall be treated as a Principal Prepayment hereunder; (ii) is accruing interest at a rate of interest at least equal to that of the Deleted Mortgage Loan; (iii) has a remaining term to stated maturity not greater than, and not more than two years less than, that of the Deleted Mortgage Loan; (iv) has (A) an original Loan-to-Value Ratio not higher than the lesser of (x) the current Loan-to-Value Ratio of the Deleted Mortgage Loan and (y) 75.0% and (B) has a current Debt Service Coverage Ratio equal to the greater of (x) the current Debt Service Coverage Ratio of the Deleted Mortgage Loan and (y) 1.25x; (v) will comply with all of the representations and warranties relating to Mortgage Loans set forth herein, as of the date of substitution; (vi) has a Phase I Environmental Report relating to the related Mortgaged Property in the related Mortgage File and such Phase I Environmental Report does not, in the good faith reasonable judgment of the Special Servicer, exercised in a manner consistent with the Servicing Standard, raise material issues that have not been adequately addressed; (vii) has an engineering report relating to the related Mortgaged Property in its Mortgage Files and such engineering report does not, in the good faith reasonable judgment of the Special Servicer, exercised in a manner consistent with the Servicing Standard, raise material issues that have not been adequately addressed; (viii) is secured by a residential cooperative property if the Mortgage Loan substituted for a Deleted Mortgage Loan is a Co-op Mortgage Loan; and (ix) as to which the Trustee and the Paying Agent have received an Opinion of Counsel, at the related Seller’s expense, that such Mortgage Loan is a “qualified replacement mortgage” within the meaning of Section 860G(a)(4) of the Code; provided that no Mortgage











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Loan may have a Maturity Date after the date three years prior to the Final Rated Distribution Date, and provided, further, that no such Mortgage Loan shall be substituted for a Deleted Mortgage Loan unless Rating Agency Confirmation is obtained, and provided, further, that no such Mortgage Loan shall be substituted for a Deleted Mortgage Loan unless the Operating Adviser shall have approved of such substitution (provided, however, that such approval of the Operating Adviser may not be unreasonably withheld).  In the event that either one mortgage loan is substituted for more than one Deleted Mortgage Loan or more than one mortgage loan is substituted for one or more Deleted Mortgage Loans, then (A) the Principal Balance referred to in clause (i) above shall be determined on the basis of aggregate Principal Balances and (B) the rates referred to in clause (i) above and the remaining term to stated maturity referred to in clause (ii) above shall be determined on a weighted average basis; provided, however, that no individual interest rate, minus the Administrative Cost Rate, shall be lower than the highest Pass-Through Rate of any Class of Principal Balance Certificates then outstanding having a fixed rate.  Whenever a Qualifying Substitute Mortgage Loan is substituted for a Deleted Mortgage Loan pursuant to this Agreement, the party effecting such substitution shall certify that such Mortgage Loan meets all of the requirements of this definition and shall send such certification to the Paying Agent, which shall deliver a copy of such certification to the Master Servicer, the Special Servicer, the Trustee and the Operating Adviser promptly, and in any event within five Business Days following the Paying Agent’s receipt of such certification.


 


“Rating Agencies” means [Moody’s and S&P] [specify other agencies].


 


“Rating Agency Confirmation” means, with respect to any matter, confirmation in writing by each Rating Agency (or such Rating Agency as is specified herein) that a proposed action, failure to act, or other event specified herein will not in and of itself result in the withdrawal, downgrade, or qualification, as applicable, of the then-current rating assigned by such Rating Agency to any Class of Certificates then rated by such Rating Agency.


 


“Rating Agency Trigger Event” means, with respect to the Swap Contract, a reduction in the Swap Counterparty’s Credit Support Provider’s short-term unsecured debt rating (or its equivalent) or long-term unsecured debt rating (or its equivalent) below the ratings specified in the Swap Contract.


 


“Realized Interest Loss” means, with respect to each Mortgage Loan (i) in the case of a Liquidation Realized Loss, the portion of any Liquidation Realized Loss that exceeds the Realized Principal Loss on the related Mortgage Loan, (ii) in the case of a Bankruptcy Loss, the portion of such Realized Loss attributable to accrued interest on the related Mortgage Loan, (iii) in the case of an Expense Loss, an Expense Loss resulting in any period from the payment of the Special Servicing Fee and any Expense Losses set forth in the last sentence of the definition of “Realized Principal Loss” or (iv) in the case of a Modification Loss, a Modification Loss described in clause (iii) of the definition thereof.


 


“Realized Loss” means a Liquidation Realized Loss, a Modification Loss, a Bankruptcy Loss or an Expense Loss with respect to a Mortgage Loan.  Realized Losses on a Mortgage Loan are allocated first to the Principal Balance of, and then to interest on such Mortgage Loan.










 


  





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“Realized Principal Loss” means, with respect to each Mortgage Loan, (i) in the case of a Liquidation Realized Loss, the amount of such Realized Loss, to the extent that it does not exceed the Principal Balance of the Mortgage Loan (or deemed Principal Balance, in the case of REO Property), (ii) in the case of a Modification Loss, the amount of such Modification Loss described in clause (i) of the definition thereof, (iii) in the case of a Bankruptcy Loss, the portion of such Realized Loss attributable to the reduction in the Principal Balance of the related Mortgage Loan, (iv) in the case of an Expense Loss, the portion thereof not treated as a Realized Interest Loss and (v) the amounts in respect thereof that are withdrawn from the Certificate Account pursuant to Section 6.6(b)(i).  Notwithstanding clause (iv) of the preceding sentence, to the extent that Expense Losses (exclusive of Expense Losses resulting from payment of the Special Servicing Fee) exceed amounts with respect to a Mortgage Loan that were identified as allocable to principal, such excess shall be treated as a Realized Interest Loss.


 


“Recombination Group” means the Class or Classes of Depositable Certificates and the related Class or Classes of Exchangeable Certificates included within any particular “Recombination” specified in Schedule VIII.


 


“Record Date” means, for each Distribution Date and each Class of Certificates, the close of business on the last Business Day of the month immediately preceding the month in which such Distribution Date occurs.


 


“Recoveries” means, as of any Distribution Date, any amounts recovered with respect to a Mortgage Loan or REO Property following the period in which a Final Recovery Determination occurs plus other amounts defined as “Recoveries” herein.


 


“Regulation AB” means Subpart 229.1100 – Asset Backed Securities (Regulation AB), 17 C.F.R. §§229.1100-229.1123, as such may be amended from time to time, and subject to such clarification and interpretation as have been provided by the Commission in the adopting release (Asset-Backed Securities, Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff of the Commission, or as may be provided by the Commission or its staff from time to time.


 


“Regulation S” means Regulation S under the 1933 Act.


 


“Regulation S Certificate” means a written certification substantially in the form set forth in Exhibit F hereto certifying that a beneficial owner of an interest in a Regulation S Temporary Global Certificate is not a U.S. Person (as defined in Regulation S).


 


“Regulation S Global Certificates” means the Regulation S Permanent Global Certificates together with the Regulation S Temporary Global Certificates.


 


“Regulation S Permanent Global Certificate” means any single permanent global Certificate, in definitive, fully registered form without interest coupons received in exchange for a Regulation S Temporary Global Certificate.


 


“Regulation S Temporary Global Certificate” means, with respect to any Class of Certificates offered and sold outside of the United States in reliance on Regulation S, a single temporary global Certificate, in definitive, fully registered form without interest coupons.











 




  





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“Rehabilitated Mortgage Loan” means any Specially Serviced Mortgage Loan with respect to which (i) three consecutive Scheduled Payments have been made (in the case of any such Mortgage Loan that was modified, based on the modified terms), or a complete defeasance shall have occurred, (ii) no other Servicing Transfer Event has occurred and is continuing (or with respect to determining whether a Required Appraisal Loan is a Rehabilitated Mortgage Loan for applying Appraisal Reductions, no other Appraisal Event has occurred and is continuing) and (iii) one of the following statements is true with respect to any cost incurred as a result of the occurrence of the Servicing Transfer Event: (a) the cost has been reimbursed to the Trust, (b) the Mortgagor’s obligation to pay the cost has been forgiven, (c) the Mortgagor has agreed in writing to reimburse such costs or (d) the cost represents an amount that has been the subject of an Advance made with respect to the Mortgage Loan following default, the mortgage loan has been worked out under terms that do not provide for the repayment of such Advance in full upon the execution of the workout arrangement but the Mortgagor is nonetheless obligated under the terms of the workout arrangement to reimburse such Advance in the future.


 


“Release Date” means the date 40 days after the later of (i) the commencement of the offering of the Certificates and (ii) the Closing Date.


 


“Relevant Servicing Criteria” means the Servicing Criteria applicable to, each Reporting Servicer (as set forth, with respect to the Master Servicer, the Special Servicer, the Primary Servicer, the Paying Agent and the Trustee, on Schedule IV attached hereto).  For clarification purposes, multiple Reporting Servicers can have responsibility for the same Relevant Servicing Criteria and some of the Servicing Criteria will not be applicable to certain Reporting Servicers.  With respect to a Servicing Function Participant engaged by the Trustee, the Master Servicer, the Special Servicer, the Primary Servicer, the Paying Agent or any Sub-Servicer, the term “Relevant Servicing Criteria” may refer to a portion of the Relevant Servicing Criteria applicable to the Trustee, the Master Servicer, the Special Servicer, the Primary Servicer, the Paying Agent or any Sub-Servicer.


 


“REMIC” means a real estate mortgage investment conduit within the meaning of Section 860D of the Code.


 


“REMIC I” means the segregated pool of assets consisting of the Mortgage Loans (other than any Excess Interest payable thereon), such amounts related thereto as shall from time to time be held in the Certificate Accounts, the Interest Reserve Accounts, the Reserve Account and the Distribution Account (other than the portion thereof constituting the Floating Rate Account or Excess Interest Sub-account or funds held with respect to REMIC II or REMIC III), the related Insurance Policies and any related REO Properties, for which a REMIC election has been made pursuant to Section 12.1(a) hereof.


 


“REMIC I Interests” means, collectively, the REMIC I Regular Interests and the Class [R-I] Certificates.


 


“REMIC I Net Mortgage Rate” means, with respect to any Distribution Date and any REMIC I Regular Interest, a rate per annum equal to the Adjusted Mortgage Rate for the related Mortgage Loan for such Distribution Date (based on the Mortgage Rate thereof (without taking into account any increase therein after the Anticipated Repayment Date in respect of an











 




  





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ARD Loan or any default interest rate), as of the Cut-Off Date and without regard to any modification, waiver or amendment of the terms thereof following the Cut-Off Date) minus, with respect to each Specially Designated Co-op Mortgage Loan, the Class X-Y Strip Rate.


 


“REMIC I Regular Interests” means, collectively, the uncertificated interests designated as “regular interests” in REMIC I, which shall consist of, with respect to (i) each Mortgage Loan (other than a Specially Designated Co-op Mortgage Loan), an interest having an initial Certificate Balance equal to the Cut-Off Date Scheduled Principal Balance of such Mortgage Loan, and which has a Pass-Through Rate equal to the REMIC I Net Mortgage Rate of such Mortgage Loan and (ii) with respect to each Specially Designated Co-op Mortgage Loan, one interest having an initial Certificate Balance equal to the Cut-Off Date Scheduled Principal Balance of such Specially Designated Co-op Mortgage Loan, and which has a Pass-Through Rate equal to the REMIC I Net Mortgage Rate of such Specially Designated Co-op Mortgage Loan and one interest having an initial Notional Amount equal to the Cut-Off Date Scheduled Principal Balance of such Specially Designated Co-op Mortgage Loan, and which has a Pass-Through Rate equal to the Class X-Y Strip Rate of such Specially Designated Co-op Mortgage Loan.


 


“REMIC II” means the segregated pool of assets consisting of the REMIC I Regular Interests and related amounts in the Distribution Account for which a REMIC election has been made pursuant to Section 12.1(a) hereof.


 


“REMIC II Interests” means, collectively, the REMIC II Regular Interests and the Class [R-II] Certificates.


 


“REMIC II Regular Interest A-1-1” means the uncertificated interest designated as a “regular interest” in REMIC II, which shall consist of an interest having initial Certificate Balance as set forth in the Preliminary Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.


 


“REMIC II Regular Interest A-1-2” means the uncertificated interest designated as a “regular interest” in REMIC II, which shall consist of an interest having initial Certificate Balance as set forth in the Preliminary Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.


 


“REMIC II Regular Interest A-1-3” means the uncertificated interest designated as a “regular interest” in REMIC II, which shall consist of an interest having initial Certificate Balance as set forth in the Preliminary Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.


 


“REMIC II Regular Interest A-1A-1” means the uncertificated interest designated as a “regular interest” in REMIC II, which shall consist of an interest having an initial Certificate Balance as set forth in the Preliminary Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.


 


“REMIC II Regular Interest A-1A-2” means the uncertificated interest designated as a “regular interest” in REMIC II, which shall consist of an interest having an initial










 


  





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Certificate Balance as set forth in the Preliminary Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.


 


“REMIC II Regular Interest A-1A-3” means the uncertificated interest designated as a “regular interest” in REMIC II, which shall consist of an interest having an initial Certificate Balance as set forth in the Preliminary Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.


 


“REMIC II Regular Interest A-1A-4” means the uncertificated interest designated as a “regular interest” in REMIC II, which shall consist of an interest having an initial Certificate Balance as set forth in the Preliminary Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.


 


“REMIC II Regular Interest A-1A-5” means the uncertificated interest designated as a “regular interest” in REMIC II, which shall consist of an interest having an initial Certificate Balance as set forth in the Preliminary Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.


 


“REMIC II Regular Interest A-1A-6” means the uncertificated interest designated as a “regular interest” in REMIC II, which shall consist of an interest having an initial Certificate Balance as set forth in the Preliminary Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.


 


“REMIC II Regular Interest A-1A-7” means the uncertificated interest designated as a “regular interest” in REMIC II, which shall consist of an interest having an initial Certificate Balance as set forth in the Preliminary Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.


 


“REMIC II Regular Interest A-1A-8” means the uncertificated interest designated as a “regular interest” in REMIC II, which shall consist of an interest having an initial Certificate Balance as set forth in the Preliminary Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.


 


“REMIC II Regular Interest A-1A-9” means the uncertificated interest designated as a “regular interest” in REMIC II, which shall consist of an interest having an initial Certificate Balance as set forth in the Preliminary Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.


 


“REMIC II Regular Interest A-2” means the uncertificated interest designated as a “regular interest” in REMIC II, which shall consist of an interest having initial Certificate Balance as set forth in the Preliminary Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.


 


“REMIC II Regular Interest A-3-1FL-1” means the uncertificated interest designated as a “regular interest” in REMIC II, which shall consist of an interest having initial Certificate Balance as set forth in the Preliminary Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.










 


  





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“REMIC II Regular Interest A-3-1FL-2” means the uncertificated interest designated as a “regular interest” in REMIC II, which shall consist of an interest having initial Certificate Balance as set forth in the Preliminary Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.


 


“REMIC II Regular Interest A-3-1FL-3” means the uncertificated interest designated as a “regular interest” in REMIC II, which shall consist of an interest having initial Certificate Balance as set forth in the Preliminary Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.


 


“REMIC II Regular Interest A-3-1FL-4” means the uncertificated interest designated as a “regular interest” in REMIC II, which shall consist of an interest having initial Certificate Balance as set forth in the Preliminary Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.


 


“REMIC II Regular Interest A-3-1-1” means the uncertificated interest designated as a “regular interest” in REMIC II, which shall consist of an interest having initial Certificate Balance as set forth in the Preliminary Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.


 


“REMIC II Regular Interest A-3-1-2” means the uncertificated interest designated as a “regular interest” in REMIC II, which shall consist of an interest having initial Certificate Balance as set forth in the Preliminary Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.


 


“REMIC II Regular Interest A-3-1-3” means the uncertificated interest designated as a “regular interest” in REMIC II, which shall consist of an interest having initial Certificate Balance as set forth in the Preliminary Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.


 


“REMIC II Regular Interest A-3-1-4” means the uncertificated interest designated as a “regular interest” in REMIC II, which shall consist of an interest having initial Certificate Balance as set forth in the Preliminary Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.


 


“REMIC II Regular Interest A-3-2-1” means the uncertificated interest designated as a “regular interest” in REMIC II, which shall consist of an interest having initial Certificate Balance as set forth in the Preliminary Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.


 


 “REMIC II Regular Interest A-3-2-2” means the uncertificated interest designated as a “regular interest” in REMIC II, which shall consist of an interest having initial Certificate Balance as set forth in the Preliminary Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.


 


 “REMIC II Regular Interest A-AB-1” means the uncertificated interest designated as a “regular interest” in REMIC II, which shall consist of interest having an initial










 


  





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Certificate Balance as set forth in the Preliminary Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.


 


“REMIC II Regular Interest A-AB-2” means the uncertificated interest designated as a “regular interest” in REMIC II, which shall consist of an interest having an initial Certificate Balance as set forth in the Preliminary Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.


 


 “REMIC II Regular Interest A-4A-1” means the uncertificated interest designated as a “regular interest” in REMIC II, which shall consist of an interest having an initial Certificate Balance as set forth in the Preliminary Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.


 


“REMIC II Regular Interest A-4A-2” means the uncertificated interest designated as a “regular interest” in REMIC II, which shall consist of an interest having an initial Certificate Balance as set forth in the Preliminary Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.


 


“REMIC II Regular Interest A-4A-3” means the uncertificated interest designated as a “regular interest” in REMIC II, which shall consist of an interest having an initial Certificate Balance as set forth in the Preliminary Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.


 


 “REMIC II Regular Interest A-4B” means the uncertificated interest designated as a “regular interest” in REMIC II, which shall consist of an interest having an initial Certificate Balance as set forth in the Preliminary Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.


 


 “REMIC II Regular Interest A-J” means the uncertificated interest designated as a “regular interest” in REMIC II, which shall consist of an interest having an initial Certificate Balance as set forth in the Preliminary Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.


 


“REMIC II Regular Interest B-1” means the uncertificated interest designated as a “regular interest” in REMIC II, which shall consist of an interest having an initial Certificate Balance as set forth in the Preliminary Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.


 


“REMIC II Regular Interest B-2” means the uncertificated interest designated as a “regular interest” in REMIC II, which shall consist of an interest having an initial Certificate Balance as set forth in the Preliminary Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.


 


“REMIC II Regular Interest B-3” means the uncertificated interest designated as a “regular interest” in REMIC II, which shall consist of an interest having an initial Certificate Balance as set forth in the Preliminary Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.










 


  





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“REMIC II Regular Interest C-1” means the uncertificated interest designated as a “regular interest” in REMIC II, which shall consist of an interest having an initial Certificate Balance as set forth in the Preliminary Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.


 


“REMIC II Regular Interest C-2” means the uncertificated interest designated as a “regular interest” in REMIC II, which shall consist of an interest having an initial Certificate Balance as set forth in the Preliminary Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.


 


“REMIC II Regular Interest D-1” means the uncertificated interest designated as a “regular interest” in REMIC II, which shall consist of an interest having an initial Certificate Balance as set forth in the Preliminary Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.


 


“REMIC II Regular Interest D-2” means the uncertificated interest designated as a “regular interest” in REMIC II, which shall consist of an interest having an initial Certificate Balance as set forth in the Preliminary Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.


 


“REMIC II Regular Interest E” means the uncertificated interest designated as a “regular interest” in REMIC II, which shall consist of an interest having an initial Certificate Balance as set forth in the Preliminary Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.


 


“REMIC II Regular Interest F-1” means the uncertificated interest designated as a “regular interest” in REMIC II, which shall consist of an interest having an initial Certificate Balance as set forth in the Preliminary Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.


 


“REMIC II Regular Interest F-2” means the uncertificated interest designated as a “regular interest” in REMIC II, which shall consist of an interest having an initial Certificate Balance as set forth in the Preliminary Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.


 


“REMIC II Regular Interest G” means the uncertificated interest designated as a “regular interest” in REMIC II, which shall consist of an interest having an initial Certificate Balance as set forth in the Preliminary Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.


 


“REMIC II Regular Interest H-1” means the uncertificated interest designated as a “regular interest” in REMIC II, which shall consist of an interest having an initial Certificate Balance as set forth in the Preliminary Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.


 


“REMIC II Regular Interest H-2” means the uncertificated interest designated as a “regular interest” in REMIC II, which shall consist of an interest having an initial Certificate










 


  





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Balance as set forth in the Preliminary Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.


 


“REMIC II Regular Interest J” means the uncertificated interest designated as a “regular interest” in REMIC II, which shall consist of an interest having an initial Certificate Balance as set forth in the Preliminary Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.


 


“REMIC II Regular Interest K” means the uncertificated interest designated as a “regular interest” in REMIC II, which shall consist of an interest having an initial Certificate Balance as set forth in the Preliminary Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.


 


“REMIC II Regular Interest L” means the uncertificated interest designated as a “regular interest” in REMIC II, which shall consist of an interest having an initial Certificate Balance as set forth in the Preliminary Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.


 


 “REMIC II Regular Interest M” means the uncertificated interest designated as a “regular interest” in REMIC II, which shall consist of an interest having an initial Certificate Balance as set forth in the Preliminary Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.


 


“REMIC II Regular Interest N” means the uncertificated interest designated as a “regular interest” in REMIC II, which shall consist of an interest having an initial Certificate Balance as set forth in the Preliminary Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.


 


“REMIC II Regular Interest O” means the uncertificated interest designated as a “regular interest” in REMIC II, which shall consist of an interest having an initial Certificate Balance as set forth in the Preliminary Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.


 


“REMIC II Regular Interest P” means the uncertificated interest designated as a “regular interest” in REMIC II, which shall consist of an interest having initial Certificate Balance as set forth in the Preliminary Statement, and which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.


 


“REMIC II Regular Interest X-Y” means the uncertificated interest designated as a “regular interest” in REMIC II, which shall consist of an interest having an initial notional amount equal to the initial Class X-Y Notional Amount, and which has a Pass-Through Rate equal to the Weighted Average Class X-Y Strip Rate.


 


“REMIC II Regular Interests” means, collectively, the REMIC II Regular Interest A-1-1, REMIC II Regular Interest A-1-2, REMIC II Regular Interest A-1-3, REMIC II Regular Interest A-1A-1, REMIC II Regular Interest A-1A-2, REMIC II Regular Interest A-1A-3, REMIC II Regular Interest A-1A-4, REMIC II Regular Interest A-1A-5, REMIC II Regular Interest A-1A-6, REMIC II Regular Interest A-1A-7, REMIC II Regular Interest 










 


  





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A-1A-8, REMIC II Regular Interest A-1A-9, REMIC II Regular Interest A-2, REMIC II Regular Interest A-3-1FL-1, REMIC II Regular Interest A-3-1FL-2, REMIC II Regular Interest A-3-1FL-3, REMIC II Regular Interest A-3-1FL-4, REMIC II Regular Interest A-3-1-1, REMIC II Regular Interest A-3-1-2, REMIC II Regular Interest A-3-1-3, REMIC II Regular Interest A-3-1-4, REMIC II Regular Interest A-3-2-1, REMIC II Regular Interest A-3-2-2, REMIC II Regular Interest A-AB-1, REMIC II Regular Interest A-AB-2, REMIC II Regular Interest A-4A-1, REMIC II Regular Interest A-4A-2, REMIC II Regular Interest A-4B, REMIC II Regular Interest A-J, REMIC II Regular Interest B-1, REMIC II Regular Interest B-2, REMIC II Regular Interest B-3, REMIC II Regular Interest C-1, REMIC II Regular Interest C-2, REMIC II Regular Interest D-1, REMIC II Regular Interest D-2, REMIC II Regular Interest E, REMIC II Regular Interest F-1, REMIC II Regular Interest F-2, REMIC II Regular Interest G, REMIC II Regular Interest H-1, REMIC II Regular Interest H-2, REMIC II Regular Interest J, REMIC II Regular Interest K, REMIC II Regular Interest L, REMIC II Regular Interest M, REMIC II Regular Interest N, REMIC II Regular Interest O, REMIC II Regular Interest P and REMIC II Regular Interest X-Y.


 


“REMIC III” means the segregated pool of assets consisting of the REMIC II Regular Interests and related amounts in the Distribution Account for which a REMIC election has been made pursuant to Section 12.1(a) hereof.


 


“REMIC III Certificates” has the meaning set forth in the final paragraph of the Preliminary Statement hereto.


 


“REMIC III Regular Interests” means, collectively, the Class [A-1] Certificates, Class [A-1A] Certificates, Class [A-2] Certificates, Class A-3-1FL Regular Interest, Class [A-3-1] Certificates, Class [A-3-2] Certificates, Class [A-AB] Certificates, Class [A-4A] Certificates, Class [A-4B] Certificates, Class [A-J] Certificates, Class [X-1] Certificates, Class [X-2] Certificates, Class [X-Y] Certificates, Class [B] Certificates, Class [C] Certificates, Class [D] Certificates, Class [E] Certificates, Class [F] Certificates, Class [G] Certificates, Class [H] Certificates, Class [J] Certificates, Class [K] Certificates, Class [L] Certificates, Class [M] Certificates, Class [N] Certificates, Class [O] Certificates and Class [P] Certificates.


 


“REMIC Pool” means each of the three segregated pools of assets designated as a REMIC pursuant to Section 12.1(b) hereof.


 


“REMIC Provisions” means the provisions of the federal income tax law relating to real estate mortgage investment conduits, which appear at Sections 860A through 860G of Subchapter M of Chapter 1 of the Code, and related provisions, and final, temporary and proposed regulations and rulings promulgated thereunder, as the foregoing may be in effect from time to time and taking account, as appropriate, of any proposed legislation or regulations which, as proposed, would have an effective date prior to enactment or promulgation thereof.


 


“REMIC Regular Certificates” means, collectively, the Class [A-1], Class [A-1A], Class [A-2], Class [A-3-1], Class [A-3-2], Class [A-AB], Class [A-4A], Class [A-4B], Class [A-J], Class [X-1], Class [X-2], Class [X-Y], Class [B], Class [C], Class [D], Class [E], Class [F], Class [G], Class [H], Class [J], Class [K], Class [L], Class [M], Class [N], Class [O] and Class [P] Certificates.










 


  





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“Rent Loss Policy” means a policy of insurance generally insuring against loss of income or rent resulting from hazards or acts of God.


 


“Rents from Real Property” means, with respect to any REO Property, income of the character described in Section 856(d) of the Code.


 


“REO Account” shall have the meaning set forth in Section 9.14(a) hereof.


 


“REO Disposition” means the receipt by the Master Servicer or the Special Servicer of Liquidation Proceeds and other payments and recoveries (including proceeds of a final sale) from the sale or other disposition of REO Property.


 


“REO Income” means, with respect to any REO Property, except as set forth below, all income received in connection with such REO Property during such period less any operating expenses, utilities, real estate taxes, management fees, insurance premiums, expenses for maintenance and repairs and any other capital expenses directly related to such REO Property paid during such period.


 


“REO Mortgage Loan” means a Mortgage Loan, as to which the related Mortgaged Property is an REO Property.


 


“REO Property” means a Mortgaged Property (or the Trust’s interest therein, if the Mortgaged Property securing a Loan Group has been acquired by the Trust) acquired by the Trust through foreclosure, deed-in-lieu of foreclosure, abandonment or reclamation from bankruptcy in connection with a Defaulted Mortgage Loan or otherwise treated as foreclosure property under the REMIC Provisions.


 


“Report Date” means the close of business on the third Business Day before the related Distribution Date.


 


“Reportable Event” has the meaning set forth in Section 13.9.


 


“Reporting Servicer” means the Master Servicer, the Special Servicer and any Servicing Function Participant (including the Primary Servicer, the Paying Agent, the Trustee and each Sub-Servicer), as the case may be.


 


“Repurchased Loan” has the meaning set forth in Section 2.3(a) hereof.


 


“Request for Release” means a request for release of certain documents relating to the Mortgage Loans, a form of which is attached hereto as Exhibit C.


 


“Required Appraisal Loan” means any Mortgage Loan as to which an Appraisal Event has occurred.  A Mortgage Loan will cease to be a Required Appraisal Loan at such time as it is a Rehabilitated Mortgage Loan.


 


“Reserve Account” shall mean the Reserve Account maintained by the Paying Agent in accordance with the provisions of Section 5.3, which shall be an Eligible Account, which may be a sub-account of the Distribution Account.










 


  





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“Residual Certificates” means, with respect to REMIC I, the Class [R-I] Certificates; with respect to REMIC II, the Class [R-II] Certificates; and with respect to REMIC III, the Class [R-III] Certificates.


 


“Responsible Officer” means, when used with respect to the initial Trustee, any officer assigned to the Global Securitization Trust Services Group, or with respect to the Paying Agent, any officer assigned to the Corporate Trust Services Group, each with specific responsibilities for the matters contemplated by this Agreement and when used with respect to any successor Trustee or Paying Agent, any Vice President, Assistant Vice President, corporate trust officer or any assistant corporate trust officer or Persons performing similar roles on behalf of the Trustee or Paying Agent.


 


“Restricted Servicer Reports” means, collectively, to the extent not filed with the Commission, the CMSA Servicer Watch List, the CMSA Operating Statement Analysis Report, the CMSA NOI Adjustment Worksheet, CMSA Financial File and the CMSA Comparative Financial Status Report.


 


“Reverse Sequential Order” means sequentially to the Class [P], Class [O], Class [N], Class [M], Class [L], Class [K], Class [J], Class [H], Class [G], Class [F], Class [E], Class [D], Class [C], Class [B], Class [A-J] and finally to the Class [X-1], Class [X-2], Class [X-Y], Class [A-1], Class [A-1A], Class [A-2], Class [A-3-1], Class [A-3-2], Class [A-AB], Class [A-4A] and Class [A-4B] Certificates and either the Class A-3-1FL Regular Interest or Class [A-3-1FL] Certificates, as applicable, on a pro rata basis, as described herein.


 


“Rule 144A” means Rule 144A under the 1933 Act.


 


“Rule 144A IAI Global Certificate” means, with respect to any Class of Certificates offered and sold in reliance on Rule 144A or to certain Institutional Accredited Investors, a single, permanent global Certificate, in definitive, fully registered form without interest coupons.


 


“S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc. or its successor in interest.


 


“Sarbanes-Oxley Act”  means the Sarbanes-Oxley Act of 2002 and the rules and regulations of the Commission promulgated thereunder (including any interpretations thereof by the Commission’s staff).


 


“Sarbanes-Oxley Certification” has the meaning set forth in Section 13.8.


 


“Scheduled Payment” means each scheduled payment of principal of, and/or interest on, a Mortgage Loan required to be paid on its Due Date by the Mortgagor in accordance with the terms of the related Mortgage Note (excluding all amounts of principal and interest which were due on or before the Cut Off Date, whenever received, and taking account of any modifications thereof and the effects of any Debt Service Reduction Amounts and Deficient Valuation Amounts).










 


  





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“Scheduled Principal Balance” means, with respect to any Mortgage Loan or any REO Mortgage Loan, for purposes of performing calculations with respect to any Distribution Date, the Principal Balance thereof minus the aggregate amount of any P&I Advances of principal previously made with respect to such Mortgage Loan or such REO Mortgage Loan.


 


“Seller” means MSMC or [identify each other seller], as the case may be.


 


“Service(s)(ing)” means, in accordance with Regulation AB, the act of servicing and administering the Mortgage Loans or any other assets of the Trust by an entity that meets the definition of “servicer” set forth in Item 1101 of Regulation AB and is subject to the disclosure requirements set forth in Item 1108 of Regulation AB.  For clarification purposes, any uncapitalized occurrence of this term shall have the meaning commonly understood by participants in the commercial mortgage-backed securities market.


 


“Servicer Errors and Omissions Insurance Policy” or “Errors and Omissions Insurance Policy” means an errors and omissions insurance policy maintained by the Master Servicer, the Special Servicer, the Trustee or the Paying Agent, as the case may be, in accordance with Section 8.2, Section 9.2 and Section 7.17, respectively.


 


“Servicer Fidelity Bond” or “Fidelity Bond” means a bond or insurance policy under which the insurer agrees to indemnify the Master Servicer, the Special Servicer, the Trustee or the Paying Agent, as the case may be, (subject to standard exclusions) for all losses (less any deductible) sustained as a result of any theft, embezzlement, fraud or other dishonest act on the part of the Master Servicer’s, the Special Servicer’s, the Trustee’s or the Paying Agent’s, as the case may be, officers or employees and is maintained in accordance with Section 8.2, Section 9.2 and Section 7.17, respectively.


 


“Servicer Mortgage File” means (i) with respect to all Mortgage Loans other than the MSMC Loans, copies of the mortgage documents listed in the definition of Mortgage File relating to a Mortgage Loan, and (ii) with respect to the MSMC Loans, copies of the mortgage documents listed in the definition of Mortgage File relating to a Mortgage Loan and, to the extent required to be (and actually) delivered to the Master Servicer by the applicable Seller pursuant to the applicable Mortgage Loan Purchase Agreement, copies of the following items:  the Mortgage Note, any Mortgage, the Assignment of Leases and the Assignment of Mortgage, any guaranty/indemnity agreement, any loan agreement, any insurance policies or certificates (as applicable), any property inspection reports, any financial statements on the property, any escrow analysis, any tax bills, any Appraisal, any environmental report, any engineering report, any asset summary, financial information on the Mortgagor/sponsor and any guarantors, any letters of credit, any intercreditor agreement and any Environmental Insurance Policies.


 


“Servicing Advance” means any cost or expense of the Master Servicer, the Special Servicer or the Trustee, as the case may be, designated as a Servicing Advance pursuant to this Agreement and any other costs and expenses incurred by or for the Master Servicer, the Special Servicer or the Trustee, as the case may be, to protect and preserve the security for a Mortgage Loan.










 


  





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“Servicing Criteria” means the criteria set forth in paragraph (d) of Item 1122 of Regulation AB, as such may be amended from time to time.


 


“Servicing Function Participant” means any Person, other than the Master Servicer and the Special Servicer, that, within the meaning of Item 1122 of Regulation AB, is performing activities addressed by the Servicing Criteria, unless such Person’s activities relate only to 5% or less of the Mortgage Loans (based on their Principal Balance).  For clarification purposes, the Trustee, the Primary Servicer and the Paying Agent are each Servicing Function Participants.


 


“Servicing Officer” means, any officer or employee of the Master Servicer involved in, or responsible for, the administration and servicing of the Mortgage Loans whose name and specimen signature appear on a list of servicing officers or employees furnished to the Trustee by the Master Servicer, or an Additional Servicer, as the case may be, and signed by an officer of the Master Service, or an Additional Servicer, as the case may be, as such list may from time to time be amended.


 


“Servicing Standard” means the standard by which the Master Servicer and Special Servicer will service and administer the Mortgage Loans and/or REO Properties that it is obligated to service and administer pursuant to this Agreement in the best interests and for the benefit of the Certificateholders (as determined by the Master Servicer or the Special Servicer, as applicable, in its good faith and reasonable judgment), to perform such servicing and administration in accordance with applicable law, the terms of this Agreement, and the terms of the respective subject Mortgage Loans and, to the extent consistent with the foregoing, further as follows:


 


(i)           with the same skill, care and diligence as is normal and usual in its mortgage servicing activities on behalf of third parties or on behalf of itself, whichever is higher, and in the case of the Special Servicer, its REO Property management activities on behalf of third parties or on behalf of itself, whichever is higher, with respect to mortgage loans that are comparable to the Mortgage Loans; and


 


(ii)           with a view to the timely collection of all scheduled payments of principal and interest under the Mortgage Loans and, in the case of the Special Servicer, if a serviced Mortgage Loan comes into and continues in default, and if, in the judgment of the Special Servicer, no satisfactory arrangements can be made for the collection of the delinquent payments, the maximization of the recovery on that Mortgage Loan to the Certificateholders (as a collective whole), on a net present value basis;


 


but without regard to:  (I) any relationship that the Master Servicer or Special Servicer, as the case may be, or any Affiliate thereof may have with the related Mortgagor; (II) the ownership of any Certificate by the Master Servicer or Special Servicer, as the case may be, or any Affiliate thereof; (III) the Master Servicer’s obligation to make P&I Advances or Servicing Advances; (IV) the Special Servicer’s obligation to request that the Master Servicer make Servicing Advances; (V) the right of the Master Servicer (or any Affiliate thereof) or Special Servicer (or any Affiliate thereof), as the case may be, to receive reimbursement of costs, or the sufficiency of any compensation payable to it under this Agreement or with respect to any particular










 


  





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transaction; [and (VI) any obligation of the Master Servicer or any of its Affiliates (in their capacity as a Seller) to cure a breach of a representation or warranty or repurchase any Mortgage Loan].


 


“Servicing Transfer Event” means the occurrence of any of the following events:  (i) a payment default shall have occurred on a Mortgage Loan (x) at its Maturity Date (except, if (a) the Mortgagor is making its Assumed Scheduled Payment, (b) the Mortgagor notifies the Master Servicer of its intent to refinance such Mortgage Loan and is diligently pursuing such refinancing, (c) the Mortgagor delivers a firm commitment to refinance acceptable to the Operating Advisor on or prior to the Maturity Date, and (d) such refinancing occurs within 60 days of such default, which 60-day period may be extended to 120 days at the Operating Advisor’s discretion) or (y) if any other payment is more than 60 days past due or has not been made on or before the second Due Date following the date such payment was due; (ii) any Mortgage Loan as to which, to the Master Servicer’s knowledge, the Mortgagor has consented to the appointment of a receiver or conservator in any insolvency or similar proceeding of, or relating to, such Mortgagor or to all or substantially all of its property, or the Mortgagor has become the subject of a decree or order issued under a bankruptcy, insolvency or similar law and such decree or order shall have remained undischarged, undismissed or unstayed for a period of 30 days; (iii) any Mortgage Loan as to which the Master Servicer shall have received notice of the foreclosure or proposed foreclosure of any other lien on the Mortgaged Property; (iv) any Mortgage Loan as to which the Master Servicer has knowledge of a default (other than a failure by the related Mortgagor to pay principal or interest) which in the good faith reasonable judgment of the Master Servicer materially and adversely affects the interests of the Certificateholders and which has occurred and remains unremedied for the applicable grace period specified in such Mortgage Loan (or, if no grace period is specified, 60 days); (v) any Mortgage Loan as to which the Mortgagor admits in writing its inability to pay its debts generally as they become due, files a petition to take advantage of any applicable insolvency or reorganization statute, makes an assignment for the benefit of its creditors or voluntarily suspends payment of its obligations; and (vi) any Mortgage Loan as to which, in the good faith reasonable judgment of the Master Servicer, (a) a payment default is imminent or is likely to occur within 60 days and such default, in the judgment of the Master Servicer, is reasonably likely to materially and adversely affect the interests of the Certificateholders or (b) any other default is imminent or is likely to occur within 60 days and such default, in the judgment of the Master Servicer, is reasonably likely to materially and adversely affect the interests of the Certificateholders.


 


“Similar Laws” has the meaning set forth in Section 3.3(d).


 


“Single-Purpose Entity” means a Person, other than an individual, whose organizational documents provide substantially to the effect that it is formed or organized solely for the purpose of owning and collecting payments from Defeasance Collateral for the benefit of the Trust and which (i) does not engage in any business unrelated thereto and the financing thereof; (ii) does not have any assets other than those related to its interest in Defeasance Collateral; (iii) maintains its own books, records and accounts, in each case which are separate and apart from the books, records and accounts of any other Person; (iv) conducts business in its own name and uses separate stationery, invoices and checks; (v) does not guarantee or assume the debts or obligations of any other Person; (vi) does not commingle its assets or funds with











 




  





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those of any other Person; (vii) transacts business with Affiliates on an arm’s length basis pursuant to written agreements; and (viii) holds itself out as being a legal entity, separate and apart from any other Person, and otherwise complies with the single-purpose requirements established by the Rating Agencies.  The entity’s organizational documents also provide that any dissolution and winding up or insolvency filing for such entity requires the unanimous consent of all partners or members, as applicable, and that such documents may not be amended with respect to the Single-Purpose Entity requirements.


 


“Sole Certificateholder” means any Certificateholder (or Certificateholders provided they act in unanimity) holding 100% of the then outstanding Class [X-1], Class [X-2], Class [X-Y], Class [J], Class [K], Class [L], Class [M], Class [N], Class [O] and Class [P] Certificates or an assignment of the voting rights thereof; provided, however, that the Certificate Balances of the Class [A-1], Class [A-1A], Class [A-2], Class [A-3-1FL], Class [A-3-1], Class [A-3-2], Class [A-AB], Class [A-4A], Class [A-4B], Class [A-J], Class [B], Class [C], Class [D], Class [E], Class [F], Class [G] and Class [H] Certificates have been reduced to zero.


 


“Special Servicer” means the special servicer identified in the first paragraph of this Agreement and its permitted successors and assigns.


 


“Special Servicer Compensation” means, with respect to any applicable period, the sum of the Special Servicing Fees, the Liquidation Fees and Work-Out Fees and any other amounts to be paid to the Special Servicer pursuant to the terms of this Agreement.


 


“Special Servicer Remittance Date” means the Business Day preceding each Determination Date.


 


“Special Servicing Fee” means, for each calendar month, as to each Mortgage Loan that is a Specially Serviced Mortgage Loan (including REO Mortgage Loans), the fraction or portion of the Special Servicing Fee Rate applicable to such month (determined using the same interest accrual methodology that is applied with respect to the Mortgage Rate for such Mortgage Loan for such month) multiplied by the Scheduled Principal Balance of such Specially Serviced Mortgage Loan immediately before the Due Date occurring in such month.


 


“Special Servicing Fee Rate” means [0.25]% per annum.


 


“Special Servicing Officer” means any officer or employee of the Special Servicer involved in, or responsible for, the administration and servicing of the Specially Serviced Mortgage Loans whose name and specimen signature appear on a list of servicing officers or employees furnished to the Trustee, the Paying Agent and the Master Servicer by the Special Servicer signed by an officer of the Special Servicer, as such list may from time to time be amended.


 


“Specially Designated Co-op Mortgage Loan” means, any Co-op Mortgage Loan or any successor REO Mortgage Loan.


 


“Specially Serviced Mortgage Loan” means, as of any date of determination, any Mortgage Loan with respect to which the Master Servicer has notified the Special Servicer, the Operating Adviser and the Trustee that a Servicing Transfer Event has occurred (which











 




  





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notice shall be effective upon receipt) and the Special Servicer has received all information, documents and records relating to such Mortgage Loan, as reasonably requested by the Special Servicer to enable it to assume its duties with respect to such Mortgage Loan.  A Specially Serviced Mortgage Loan shall cease to be a Specially Serviced Mortgage Loan from and after the date on which the Special Servicer notifies the Master Servicer, the Operating Adviser, the Paying Agent and the Trustee, in accordance with Section 8.1(b), that such Mortgage Loan, with respect to such Servicing Transfer Event, has become a Rehabilitated Mortgage Loan, unless and until the Master Servicer notifies the Special Servicer, the Paying Agent and the Trustee, in accordance with Section 8.1(b) that another Servicing Transfer Event with respect to such Mortgage Loan, exists or occurs.


 


“Standard Hazard Insurance Policy” means a fire and casualty extended coverage insurance policy in such amount and with such coverage as required by this Agreement.


 


“Subcontractor” means any vendor, subcontractor or other Person that is not responsible for the overall servicing of Mortgage Loans but performs one or more discrete functions identified in Item 1122(d) of Regulation AB with respect to Mortgage Loans under the direction or authority of the Master Servicer, the Special Servicer, an Additional Servicer or a Sub-Servicer.


 


“Sub-Servicer” means any Person that (i) is a Servicing Function Participant, (ii) Services the assets of the Trust on behalf of the Trust, the Paying Agent, the Master Servicer, the Special Servicer, any Additional Servicer or any other Person that otherwise constitutes a “Sub-Servicer”, and (iii) is responsible for the performance (whether directly or through sub-servicers or Subcontractors) of Servicing functions that are required to be performed by the Trust, the Paying Agent, the Master Servicer, the Special Servicer or any Additional Servicer under this Agreement or any sub-servicing agreement and are identified in Item 1122(d) of Regulation AB.


 


“Sub-Servicing Agreement” means the [identity].


 


“Subordinate Certificates” means, collectively, the Class [A-J], Class [B], Class [C], Class [D], Class [E], Class [F], Class [G], Class [H], Class [J], Class [K], Class [L], Class [M], Class [N], Class [O] and Class [P] Certificates.


 


“Successful Bidder” has the meaning set forth in Section 8.29(d).


 


“Swap Contract” means that certain ISDA Master Agreement, the schedule thereto, confirmation (ref# _____) and credit support annex related to the interest rate swap, each document dated as of _____, 20__, with the Swap Counterparty.


 


“Swap Counterparty” shall mean [Morgan Stanley Capital Services Inc.], acting in such capacity or its successor in interest.


 


“Swap Counterparty Collateral Account” has the meaning set forth in Section 8.30(f).










 


  





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“Swap Default” shall mean, with respect to the Swap Contract, any failure on the part of the Swap Counterparty to (i) make a required payment under the Swap Contract or (ii) either post acceptable collateral or find an acceptable replacement swap counterparty or credit support provider after a Rating Agency Trigger Event as required by such Swap Contract.


 


“Swap Upfront Payment” has the meaning set forth in Section 2.2.


 


“Tax Matters Person” means the Person designated as the “tax matters person” of the related REMIC Pool pursuant to Treasury Regulations Section 1.860F-4(d) and Temporary Treasury Regulations Section 301.6231(a)(7)-1T.


 


“10-K Filing Deadline” has the meaning set forth in Section 13.4.


 


“Termination Price” has the meaning set forth in Section 10.1(b) herein.


 


“30/360 basis” means any Mortgage Loan that accrues interest on the basis of a 360-day year consisting of twelve 30-day months.


 


“Time of Sale” means at or prior to the time when sales to purchasers of the Certificates were first made, which was approximately _____ [a][p].m. on __________, 20___.


 


“Title Insurance Policy” means a title insurance policy maintained with respect to a Mortgage Loan.


 


“Transfer” means any direct or indirect transfer, sale, pledge, hypothecation, or other form of assignment of any Ownership Interest in a Certificate.


 


“Transferee” means any Person who is acquiring by Transfer any Ownership Interest in a Certificate.


 


“Transferor” means any Person who is disposing by Transfer any Ownership Interest in a Certificate.


 


“Trust” means the trust created pursuant to this Agreement, the assets of which consist of all the assets of REMIC I (including the related Mortgage Loans (other than Excess Interest thereon), such related amounts as shall from time to time be held in the Certificate Accounts, the Distribution Account (other than the Excess Interest Sub-Account and the Floating Rate Account), the Interest Reserve Account, the Reserve Account, the REO Accounts, the Trustee’s rights under the Insurance Policies, any REO Properties and other items referred to in Section 2.1(a) hereof, in each case to the extent allocable to the related Mortgage Loan), the REMIC I Regular Interests, the REMIC II Regular Interests, REMIC III, the Swap Contract, the Class A-3-1FL Regular Interest, the Floating Rate Account, Excess Interest and the Excess Interest Sub-Account.


 


“Trustee” means _______, as trustee, or its successor-in-interest, or if any successor trustee, or any co-trustee shall be appointed as herein provided, then “Trustee” shall also mean such successor trustee (subject to Section 7.7 hereof) and such co trustee (subject to Section 7.9 hereof), as the case may be.










 


  





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“Trustee Fee” means for each calendar month, as to each Mortgage Loan (including REO Mortgage Loans and Defeasance Loans), the portion of the Trustee Fee Rate applicable to such month (determined using the same interest accrual methodology (other than the rate of accrual) that is applied with respect to the Mortgage Rate for such Mortgage Loan for such month) multiplied by the Scheduled Principal Balance of each such Mortgage Loan immediately before the Due Date occurring in such month.


 


“Trustee Fee Rate” means _______% per annum.


 


“Trustee Mortgage File” means the mortgage documents listed in the definition of Mortgage File hereof pertaining to a particular Mortgage Loan and any additional documents required to be added to the Mortgage File pursuant to this Agreement; provided that whenever the term “Trustee Mortgage File” is used to refer to documents actually received by the Trustee or a Custodian on its behalf, such terms shall not be deemed to include such documents required to be included therein unless they are actually so received.


 


“UCC” means the Uniform Commercial Code as in effect from time to time in the State of New York.


 


“Underwriter” means each of [Morgan Stanley & Co. Incorporated] and [specify other underwriters], or their respective successors-in-interest.


 


“United States Person” means (i) any natural person resident in the United States, (ii) any partnership or corporation organized or incorporated under the laws of the United States or any state thereof or the District of Columbia, (iii) any estate of which an executor or administrator is a United States Person (other than an estate governed by foreign law and of which at least one executor or administrator is a non-United States Person who has sole or shared investment discretion with respect to its assets), (iv) any trust of which any trustee is a United States Person (other than a trust of which at least one trustee is a non-United States Person and has sole or shared investment discretion with respect to its assets), (v) any agency or branch of a foreign entity located in the United States, (vi) any non-discretionary or similar account (other than an estate or trust) held by a dealer or other fiduciary for the benefit or account of a United States Person, (vii) any discretionary or similar account (other than an estate or trust) held by a dealer or other fiduciary organized, incorporated or (if an individual) resident in the United States (other than such an account held for the benefit or account of a non-United States Person), (viii) any partnership or corporation organized or incorporated under the laws of a foreign jurisdiction and formed by a United States Person principally for the purpose of investing in securities not registered under the 1933 Act (unless it is organized or incorporated, and owned, by accredited investors within the meaning of Rule 501(A) under the 1933 Act who are not natural persons, estates or trusts); provided, however, that the term “United States Person” shall not include (A) a branch or agency of a United States Person that is located and operating outside the United States for valid business purposes as a locally regulated branch or agency engaged in the banking or insurance business, (B) any employee benefit plan established and administered in accordance with the law, customary practices and documentation of a foreign country and (C) the international organizations set forth in Section 902(o)(7) of Regulation S under the 1933 Act and any other similar international organizations, and their agencies, Affiliates and pension plans.










 


  





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“United States Tax Person” means any of (i) a citizen or resident of the United States, (ii) corporation or partnership (except to the extent provided in applicable Treasury Regulations) created or organized in or under the laws of the United States or any State thereof or the District of Columbia, including any entity treated as such a corporation or partnership for federal income tax purposes, (iii) an estate the income of which is includible in gross income for United States tax purposes, regardless of its source or (iv) a trust if a court within the United States is able to exercise primary supervision over the administration of such trust, and one or more United States Tax Persons has the authority to control all substantial decisions of such trust (or to the extent provided in applicable Treasury Regulations, a trust in existence on August 20, 1996, which is eligible to be treated as a United States Tax Person).


 


“Unliquidated Advance” means any Advance previously made by a party hereto that has been previously reimbursed to the Person that made the Advance by the Trust as part of a Workout-Delayed Reimbursement Amount pursuant to subsection (iii) of Section 5.2(a)(II), but that has not been recovered from the Mortgagor or otherwise from collections on or the proceeds of the Mortgage Loan or REO Property in respect of which the Advance was made.


 


“Unpaid Interest” means, on any Distribution Date with respect to any Class of Interests or Certificates (including the Class A-3-1FL Regular Interest, but excluding the Class [A-3-1FL] Certificates, Residual Certificates and the Class [EI] Certificates), the portion of Distributable Certificate Interest for such Class remaining unpaid as of the close of business on the preceding Distribution Date, plus one month’s interest thereon at the applicable Pass-Through Rate.


 


“Unrestricted Servicer Reports” means, collectively, the CMSA Delinquent Loan Status Report, CMSA Historical Loan Modification and Corrected Mortgage Loan Report, CMSA Historical Liquidation Report and, if and to the extent filed with the Commission, such reports and files as would, but for such filing, constitute Restricted Master Servicer Reports.


 


“Weighted Average Class X-Y Strip Rate” means, with respect to any Distribution Date, the weighted average of the Class X-Y Strip Rates for each of the Group X-Y REMIC I Regular Interests, weighted on the basis of their respective Notional Amounts as of the close of business on the preceding Distribution Date.


 


“Weighted Average REMIC I Net Mortgage Rate” means, with respect to any Distribution Date, the weighted average of the REMIC I Net Mortgage Rates for the REMIC I  Regular Interests, weighted on the basis of their respective Certificate Balance as of the close of business on the preceding Distribution Date.


 


“Workout-Delayed Reimbursement Amount” has the meaning set forth in subsection (II)(A) of Section 5.2(a).


 


“Work-Out Fee” means a fee payable with respect to any Rehabilitated Mortgage Loan, equal to the product of (x) [1.00]% and (y) the amount of each collection of interest (other than default interest, Excess Interest) and principal received (including any Condemnation Proceeds received and applied as a collection of such interest and principal) on










 


  





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such Mortgage Loan so long as it remains a Rehabilitated Mortgage Loan or otherwise payable as set forth in Section 9.21(d).


 


“Yield Maintenance Charges” means, with respect to any Distribution Date, the aggregate of all yield maintenance charges, if any, received during the related Collection Period in connection with Principal Prepayments.


 


“Yield Maintenance Minimum Amount” means, with respect to a Mortgage Loan that provides for a Yield Maintenance Charge to be paid in connection with any Principal Prepayment thereon or other early collection of principal thereof, any specified amount or specified percentage of the amount prepaid which constitutes the minimum amount that such Yield Maintenance Charge may be.


 


Section 1.2 Calculations Respecting Mortgage Loans


 


(a) Calculations required to be made by the Paying Agent pursuant to this Agreement with respect to any Mortgage Loan shall be made based upon current information as to the terms of such Mortgage Loan and reports of payments received from the Master Servicer on such Mortgage Loan and payments to be made to the Paying Agent as supplied to the Paying Agent by the Master Servicer.  The Paying Agent shall not be required to recompute, verify or recalculate the information supplied to it by the Master Servicer and may conclusively rely upon such information in making such calculations.  If, however, a Responsible Officer of the Paying Agent has actual knowledge of an error in the calculations, the Paying Agent shall inform the Master Servicer of such error.


 


(b) Unless otherwise required by law or the applicable Mortgage Loan documents, any amounts (other than escrow and reserve deposits and reimbursements of Servicing Advances and expenses) received in respect of a Mortgage Loan as to which a default has occurred and is continuing (other than Liquidation Proceeds, Insurance Proceeds, Condemnation Proceeds, Purchase Proceeds and REO Income) shall be applied as follows: first, to overdue interest due with respect to such Mortgage Loan at the Mortgage Rate thereof, second, to current interest due with respect to such Mortgage Loan at the Mortgage Rate thereof, third, to the reduction of the Principal Balance of such Mortgage Loan to zero if such Mortgage Loan has been accelerated, and in respect of any scheduled payments of principal then due to the extent that such Mortgage Loan has not yet been accelerated,  fourth, to any default interest and other amounts due on such Mortgage Loan and fifth, to Late Fees due with respect to such Mortgage Loan.


 


Liquidation Proceeds, Insurance Proceeds, Condemnation Proceeds, Purchase Proceeds and REO Income shall be applied as follows: first, as a recovery of any related and unreimbursed Advances (together with interest thereon) and Unliquidated Advances (to the Trust), and if applicable, unpaid Liquidation Expenses; second, as a recovery of unpaid servicing compensation; third, as a recovery of any Additional Trust Expenses; fourth, as a recovery of any Nonrecoverable Advances and interest thereon, except with respect to any Unliquidated Advance previously reimbursed from principal pursuant to Section 5.2(a)(II)(iv); fifth, as a recovery of any remaining accrued and unpaid interest on such Mortgage Loan at the related Mortgage Rate to, but not including, the date of receipt (or, in the case of a full monthly payment










 


  





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from any Mortgagor, through the related Due Date); sixth, as a recovery of any remaining principal of such Mortgage Loan then due and owing, including by reason of acceleration of the Mortgage Loan following a default thereunder (or, if a Liquidation Event has occurred in respect of such Mortgage Loan, as a recovery of principal to the extent of its entire remaining unpaid Principal Balance); seventh, unless a Liquidation Event has occurred with respect to such Mortgage Loan, as a recovery of amounts to be currently applied to the payment of real estate taxes, assessments, insurance premiums (including premiums on any Environmental Insurance Policy), ground rents (if applicable) and similar items; eighth, as a recovery of any Late Fees and default interest then due and owing under such Mortgage Loan; ninth, as a recovery of any Prepayment Premium or Yield Maintenance Charge then due and owing under such Mortgage Loan; tenth, as a recovery of any assumption fees, Modification Fees and extension fees then due and owing under such Mortgage Loan; and eleventh, as a recovery of any other amounts then due and owing under such Mortgage Loan.


 


(c) Notwithstanding the foregoing applications of amounts received by or on behalf of the Trust in respect of any Mortgage Loan, any amounts due and owing under the related Mortgage Note and Mortgage (including for principal and accrued and unpaid interest) shall be applied in accordance with the express provisions of the related Mortgage Loan documents.


 


Section 1.3 Calculations Respecting Accrued Interest


 


Accrued interest on any Certificate (other than the Class [A-3-1FL] Certificates) and on the Class A-3-1FL Regular Interest shall be calculated based upon a 360-day year consisting of twelve 30-day months, and, unless there is a Swap Default or the Swap Contract is terminated, accrued interest on the Class [A-3-1FL] Certificates shall be calculated on the basis of the actual number of days elapsed in the related Interest Accrual Period and a 360-day year.  If a Swap Default occurs and is continuing or if the Swap Contract is terminated and no replacement swap contract is in effect, the Class [A-3-1FL] Certificates shall accrue interest based upon a 360-day year consisting of twelve 30-day months.  Pass-Through Rates shall be carried out to eight decimal places, rounded if necessary.  All dollar amounts calculated hereunder shall be rounded to the nearest penny.


 


Section 1.4 Interpretation


 


(a) Whenever the Agreement refers to a Distribution Date and a “related” Collection Period, Interest Accrual Period, Record Date, Due Date, Report Date, Monthly Certificateholders Report, Special Servicer Remittance Date, Master Servicer Remittance Date or Determination Date, such reference shall be to the Collection Period, Interest Accrual Period, Record Date, Due Date, Report Date, Special Servicer Remittance Date, Master Servicer Remittance Date or Determination Date, as applicable, immediately preceding such Distribution Date.


 


(b) As used herein and in any certificate or other document made or delivered pursuant hereto or thereto, accounting terms not defined in Section 1.1 shall have the respective meanings given to them under generally accepted accounting principles or regulatory accounting principles, as applicable.










 


  





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(c) The words “hereof,” “herein” and “hereunder,” and words of similar import, when used in this Agreement, shall refer to this agreement as a whole and not to any particular provision of this Agreement, and references to Sections, Schedules and Exhibits contained in this Agreement are references to Sections, Schedules and Exhibits in or to this Agreement unless otherwise specified.


 


(d) Whenever a term is defined herein, the definition ascribed to such term shall be equally applicable to both the singular and plural forms of such term and to masculine, feminine and neuter genders of such term.


 


(e) This Agreement is the result of arm’s-length negotiations between the parties and has been reviewed by each party hereto and its counsel.  Each party agrees that any ambiguity in this Agreement shall not be interpreted against the party drafting the particular clause which is in question.


 


Section 1.5 ARD Loan


 


Notwithstanding any provision of this Agreement:


 


(a) For the ARD Loan, the Excess Interest accruing as a result of the step-up in the Mortgage Rate upon failure of the related Mortgagor to pay the principal on the Anticipated Repayment Date as specifically provided for in the related Mortgage Note shall not be taken into account for purposes of the definitions of “Appraisal Reduction,” “Assumed Scheduled Payment,” “Mortgage Rate,” “Purchase Price” and “Realized Loss.”


 


(b) Excess Interest shall constitute an asset of the Trust but not an asset of any REMIC Pool.


 


(c) Neither the Master Servicer nor the Special Servicer shall take any enforcement action with respect to the payment of Excess Interest unless the taking of such action is consistent with the Servicing Standard and all other amounts due under such Mortgage Loan have been paid, and, in the good faith and reasonable judgment of the Master Servicer and the Special Servicer, as the case may be, the Liquidation Proceeds expected to be recovered in connection with such enforcement action will cover the anticipated costs of such enforcement action and, if applicable, any associated interest thereon.


 


(d) Liquidation Fees shall not be deemed to be earned on Excess Interest.


 


(e) With respect to the ARD Loan after its Anticipated Repayment Date, the respective Master Servicer or the respective Special Servicer, as the case may be, shall be permitted, in its discretion, to waive in accordance with Section 8.18 and Section 9.5 hereof, all or any accrued Excess Interest if, prior to the related Maturity Date, the related Mortgagor has requested the right to prepay the Mortgage Loan in full together with all payments required by the Mortgage Loan in connection with such prepayment except for all or a portion of accrued Excess Interest, provided that the respective Master Servicer’s or the respective Special Servicer’s determination to waive the right to such accrued Excess Interest is in accordance with the Servicing Standard and with Section 8.18 and Section 9.5 hereof.  The respective Master










 


  





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Servicer or the respective Special Servicer, as the case may be, will have no liability to the Trust, the Certificateholders or any other Person so long as such determination is based on such criteria.


 


ARTICLE II


 


DECLARATION OF TRUST;


ISSUANCES OF CERTIFICATES


 


Section 2.1 Conveyance of Mortgage Loans


 


(a) Effective as of the Closing Date, the Depositor does hereby assign in trust to the Trustee, without recourse, for the benefit of the Certificateholders all the right, title and interest of the Depositor, in, to and under (i) the Mortgage Loans identified on the Mortgage Loan Schedule, (ii) the Depositor’s rights under each Mortgage Loan Purchase Agreement that are permitted to be assigned to the Trustee pursuant to Section 14 thereof, (iii) the Initial Deposit (which shall be paid to the Trustee on the Closing Date) and (iv) all other assets included or to be included in REMIC I for the benefit of REMIC II and REMIC III.  Such assignment includes all interest and principal received or receivable on or with respect to the Mortgage Loans and due after the Cut-Off Date.  The transfer of the Mortgage Loans and the related rights and property accomplished hereby is absolute and is intended by the parties to constitute a sale.  In connection with the initial sale of the Certificates by the Depositor, the purchase price to be paid includes a portion attributable to interest accruing on the Certificates from and after the Cut-Off Date.


 


(b) In connection with the Depositor’s assignment pursuant to Section 2.1(a) above, the Depositor shall direct, and hereby represents and warrants that it has directed, each Seller pursuant to the applicable Mortgage Loan Purchase Agreement to deliver to and deposit with, or cause to be delivered to and deposited with, the Trustee or a Custodian appointed hereunder, on or before the Closing Date, the Mortgage Note for each Mortgage Loan so assigned, endorsed to the Trustee as specified in clause (i) of the definition of “Mortgage File.”  Each Seller is required, pursuant to the applicable Mortgage Loan Purchase Agreement, to deliver to the Trustee the remaining documents constituting the Mortgage File for each Mortgage Loan within the time period set forth therein.  None of the Trustee, the Paying Agent, any Custodian, the Master Servicer or the Special Servicer shall be liable for any failure by any Seller or the Depositor to comply with the document delivery requirements of the Mortgage Loan Purchase Agreements and this Section 2.1(b).


 


(c) Each Seller, at its own expense, for the Mortgage Loans sold to the Depositor by such Seller shall promptly (and in any event within 90 days following the receipt of all recording information necessary to record such document) cause to be submitted for recording or filing, as the case may be, in the appropriate public office for real property records or UCC financing statements, as appropriate, each assignment to the Trustee referred to in clauses (iv), (vi)(B) and (ix)(B) of the definition of “Mortgage File”.  Each such assignment shall reflect that it should be returned by the public recording office to the Trustee following recording or filing; provided that in those instances where the public recording office retains the original Assignment of Mortgage, assignment of Assignment of Leases or assignment of UCC financing statements, the Trustee shall obtain therefrom, at the expense of the applicable Seller, a certified copy of the recorded original and shall forward copies thereof to the Master Servicer and the











 




  





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Special Servicer.  If any such document or instrument is lost or returned unrecorded or unfiled, as the case may be, because of a defect therein, the Trustee shall promptly notify the applicable Seller and the applicable Seller for its respective Mortgage Loans shall promptly prepare or cause to be prepared and delivered to the Trustee a substitute therefor or cure such defect, as the case may be, and thereafter the Trustee shall upon receipt thereof from such Seller cause the same to be duly recorded or filed, as appropriate.


 


The parties acknowledge the obligation of each Seller pursuant to Section 2 of the related Mortgage Loan Purchase Agreement to deliver to the Trustee, on or before the fifth Business Day after the Closing Date, _____ limited powers of attorney substantially in the form attached as Exhibit __ to the Primary Servicing Agreements or Exhibit __ to the Mortgage Loan Purchase Agreements in favor of the Trustee, the Master Servicer and the Special Servicer to empower the Trustee, the Master Servicer and, in the event of the failure or incapacity of the Trustee and the Master Servicer, the Special Servicer, to submit for recording, at the expense of the applicable Seller, any mortgage loan documents required to be recorded as described in the preceding paragraph and any intervening assignments with evidence of recording thereon that are required to be included in the Mortgage Files (so long as original counterparts have previously been delivered to the Trustee).  The Sellers agree to reasonably cooperate with the Trustee, the Master Servicer and the Special Servicer in connection with any additional powers of attorney or revisions thereto that are requested by such parties for purposes of such recordation.  The Trustee and each other party hereto agrees that no such power of attorney shall be used with respect to any Mortgage Loan by or under authorization by any party hereto except that to the extent that the absence of a document described in the second preceding sentence with respect to such Mortgage Loan remains unremedied as of the earlier of (i) the date that is 180 days following the delivery of notice of such absence to the related Seller, but in no event earlier than 18 months from the Closing Date, and (ii) the date (if any) on which such Mortgage Loan becomes a Specially Serviced Mortgage Loan.  The Trustee shall submit such documents for recording, at the related Seller’s expense, after the periods set forth above; provided, however, the Trustee shall not submit such assignments for recording if the applicable Seller produces evidence that it has sent any such assignment for recording and certifies that it is awaiting its return from the applicable recording office.


 


(d) All relevant servicing or loan documents and records in the possession of the Depositor or the Sellers that relate to the servicing of any Mortgage Loans and that are not required to be a part of a Mortgage File in accordance with the definition thereof and are reasonably necessary for the ongoing administration and/or servicing of the applicable Mortgage Loan shall be delivered to the Master Servicer (with a copy to the related Primary Servicer, if applicable), on or before the date that is 75 days following the Closing Date and shall be held by the Master Servicer or the related Primary Servicer on behalf of the Trustee in trust for the benefit of the Certificateholders.  To the extent delivered to the Master Servicer and the related Sub-Servicer or the related Primary Servicer, as applicable, by the related Seller, the Servicer Mortgage File will consist of the documents listed in the definition of Mortgage File; provided, however, the Seller shall not be required to deliver any draft documents, attorney-client privileged communications, internal correspondence or credit analysis.  Delivery of any of the foregoing documents to the applicable Primary Servicer (or sub-servicer) shall be deemed delivery to the Master Servicer and satisfy the Depositor’s obligations under this Section 2.1(d).  Each of the foregoing items shall be delivered in electronic form, to the extent such document is











 




  





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available in such form and such form is reasonably acceptable to the Master Servicer.  None of the Master Servicer, the Special Servicer or any Primary Servicer shall have any liability for the absence of any of the foregoing items from the Servicing Mortgage File if such item was not delivered by the related Seller.


 


(e) In connection with the Depositor’s assignment pursuant to Section 2.1(a) above, the Depositor shall deliver to the Trustee and the Master Servicer on or before the Closing Date a copy of a fully executed counterpart of each Mortgage Loan Purchase Agreement, as in full force and effect on the Closing Date, which Mortgage Loan Purchase Agreements shall contain the representations and warranties made by the Sellers with respect to each related Mortgage Loan as of the Closing Date.


 


(f) In connection herewith, the Depositor has acquired the Mortgage Loans from the Seller.  The Depositor will deliver the original Mortgage Notes (or lost note affidavits with copies of the related Mortgage Notes, as described in the definition of Mortgage File) relating to the Mortgage Loans to the Trustee, endorsed as otherwise provided herein, to effect the transfer to the Trustee of such Mortgage Notes and all related deeds of trust, mortgages and other loan documents.  To avoid the unnecessary expense and administrative inconvenience associated with the execution and recording of multiple assignment documents, each Seller is required under the Mortgage Loan Purchase Agreements to deliver Assignments of Mortgages and assignments of Assignments of Leases and assignments of UCC financing statements in blank or naming the Trustee, on behalf of the Certificateholders, as assignee.  Notwithstanding the fact that the assignments shall be in blank or name the Trustee, on behalf of the Certificateholders, as the assignee, the parties hereto acknowledge and agree that for all purposes the Mortgage Loans shall be deemed to have been transferred from the applicable Seller to the Depositor, and all Mortgage Loans shall be deemed to have been transferred from the Depositor to the Trustee on behalf of the Certificateholders.


 


Section 2.2 Acceptance by Trustee


 


The Trustee will hold (i) the documents constituting a part of the Mortgage Files delivered to it, (ii) the REMIC I Regular Interests, (iii) the REMIC II Regular Interests, (iv) the assets of the Class A-3-1FL Grantor Trust and (v) the assets of the Class EI Grantor Trust, in each case, in trust for the use and benefit of all present and future Certificateholders.  In connection with the entering into of the Swap Contract, the Trustee, on behalf of the Trust, will be paid an upfront payment by the Swap Counterparty with respect to the Class [A-3-1FL] Certificates (the “Swap Upfront Payment”).  On the Closing Date, the Trustee is hereby directed to pay the Swap Upfront Payment to the Depositor to an account designated by it.


 


On the Closing Date in respect of the Initial Certification, and within 90 days after the Closing Date in respect of the Final Certification, the Trustee shall examine the Mortgage Files in its possession, and shall deliver to the Depositor, the Sellers, the Master Servicer, the Special Servicer and the Operating Adviser, a certification (the “Initial Certification” and the “Final Certification,” respectively, in the respective forms set forth as Exhibit B-1 and Exhibit B-2 hereto), which may be in electronic format (i) in the case of the Initial Certification, as to each Mortgage Loan listed in the Mortgage Loan Schedule, except as may be specified in the schedule of exceptions to Mortgage File delivery attached thereto, to the effect that:  (A) all










 


  





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documents pursuant to clause (i) of the definition of Mortgage File are in its possession, (B) such documents have been reviewed by it and have not been materially mutilated, damaged, defaced, torn or otherwise physically altered, and such documents relate to such Mortgage Loan, and (C) each Mortgage Note has been endorsed as provided in clause (i) of the definition of Mortgage File, and (ii) in the case of the Final Certification, as to each Mortgage Loan listed in the Mortgage Loan Schedule, except as may be specified in the schedule of exceptions to Mortgage File delivery attached thereto, to the effect that:  (A) all documents pursuant to clauses (i), (ii), (iv), (vi), (viii) and (xii) of the definition of Mortgage File required to be included in the Mortgage File (to the extent required to be delivered pursuant to this Agreement and any applicable Primary Servicing Agreement), and with respect to all documents specified in the other clauses of the definition of Mortgage File to the extent actually known by a Responsible Officer of the Trustee to be required pursuant to this Agreement (assuming that, with respect to the documents referred to in clause (xii) of the definition of Mortgage File, an original letter of credit in the possession of the Trustee is not so required, unless a Responsible Officer of the Trustee has actual knowledge to the contrary), are in its possession, (B) such documents have been reviewed by it and have not been materially mutilated, damaged, defaced, torn or otherwise physically altered, and such documents relate to such Mortgage Loan, (C) based on its examination and only as to the Mortgage Note and Mortgage or the appraisal of the related Mortgaged Property, the street address of the Mortgaged Property set forth in the Mortgage Loan Schedule respecting such Mortgage Loan accurately reflects the information contained in the documents in the Mortgage File, and (D) each Mortgage Note has been endorsed as required by the terms of this Agreement.  Notwithstanding the foregoing, the delivery of an original or a copy of a binder, pro forma policy or title commitment certified by the title company in lieu of the delivery of the actual Title Insurance Policy shall not be considered a Material Document Defect with respect to any Mortgage File.  The Trustee shall deliver to the Master Servicer, the Special Servicer, the Operating Adviser and each Seller a copy of such Final Certification, which may be in electronic format.


 


Within 360 days after the Cut-Off Date, the Trustee shall provide a confirmation of receipt of recorded assignments of Mortgage (as described in the definition of Mortgage File, with evidence of recording thereon) or otherwise provide evidence of such recordation to the Master Servicer, the Special Servicer, the Operating Adviser and each Seller, and if any recorded assignment of Mortgage has not been received by the Trustee by such time, the Trustee shall provide information in such confirmation on the status of missing assignments.  The Trustee agrees to use reasonable efforts to submit for recording any unrecorded assignments of Mortgage that have been delivered to it (including effecting such recordation process through or cooperating with the applicable Seller) such recordation to be at the expense of the applicable Seller; provided, however, that the Trustee shall not submit for recording any such assignments if the applicable Seller produces evidence that it has sent any such assignment for recording and is awaiting its return from the applicable recording office.  In giving the certifications required above, the Trustee shall be under no obligation or duty to inspect, review or examine any such documents, instruments, securities or other papers to determine whether they or the signatures thereon are valid, legal, genuine, enforceable, in recordable form or appropriate for their represented purposes, or that they are other than what they purport to be on their face, or to determine whether any Mortgage File should include any assumption agreement, modification agreement, consolidation agreement, extension agreement, Assignment of Lease, ground lease,










 


  





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UCC financing statement, guaranty, written assurance, substitution agreement, lock box agreement, intercreditor agreement, management agreement or letter of credit.


 


If any exceptions are noted on a schedule of exceptions attached to the Final Certification, including exceptions resulting from the fact that the recordation and/or filing has not been completed (based solely on the absence of receipt by the Custodian (or the Trustee) of the particular documents showing evidence of the recordation and/or filing), then the Custodian on behalf of the Trustee (or the Trustee) shall continuously update such schedule of exceptions to reflect receipt of any corrected documents, additional documents or instruments or evidences of recordation and/or filing, as to each Mortgage Loan, until the earliest of the following dates:  (i) the date on which all such exceptions are eliminated (any such elimination resulting from the fact that recordation and/or filing has been completed shall be based solely on receipt by the Custodian or the Trustee of the particular documents showing evidence of the recordation and/or filing), (ii) the date on which all the affected Mortgage Loans are removed from the Trust and (iii) the second anniversary of the Closing Date, and shall provide such updated schedule of exceptions (which may be in electronic format) to each of the Depositor, each Seller (as to its respective Mortgage Loans only), the Master Servicer, the Special Servicer, the Operating Adviser and the Paying Agent on or about the date that is 180 days after the Closing Date and then again every 90 days thereafter (until the earliest date specified above, except, with respect to clause (iii) above, the Trustee shall continue to provide such updated schedule of exceptions annually after such date).  The Paying Agent shall promptly forward a copy thereof to each Certificateholder in the Controlling Class and shall deliver or make available a copy thereof to other Certificateholders pursuant to Sections 5.4(e) and 5.4(f).  Promptly, and in any event within two Business Days, following any request therefor by the Depositor, the Master Servicer, the Special Servicer or the Operating Adviser that is made later than two years following the Closing Date, the Custodian (or the Trustee) shall deliver an updated schedule of exceptions, which may be in electronic format (to the extent the prior schedule showed exceptions), to the requesting Person and the Paying Agent, which shall make available a copy thereof pursuant to Section 5.4(e).


 


The Trustee or its authorized agents shall retain possession and custody of each Trustee Mortgage File in accordance with and subject to the terms and conditions set forth herein.


 


The Master Servicer agrees to hold all of the original letters of credit, which are part of the Mortgage File, in trust for the benefit of the Trust Fund.


 


Section 2.3 Repurchase of Mortgage Loans for Material Document Defects and Material Breaches of Representations and Warranties


 


(a) If any party hereto discovers that any document or documents constituting a part of a Mortgage File has not been delivered as and when required (and including the expiration of any grace or cure period), has not been properly executed, or is defective on its face or discovers or receives notice of a breach of any of the representations and warranties relating to the Mortgage Loans required to be made by a Seller regarding the characteristics of the Mortgage Loans and/or related Mortgaged Properties as set forth in the related Mortgage Loan Purchase Agreements, and in either case such defect or breach either (i) materially and adversely











 




  





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affects the interests of the holders of the Certificates in the related Mortgage Loan, or (ii) both (A) the document defect or breach materially and adversely affects the value of the Mortgage Loan and (B) the Mortgage Loan is a Specially Serviced Mortgage Loan or Rehabilitated Mortgage Loan (such a document defect described in the preceding clause (i) or (ii), a “Material Document Defect,” and such a breach described in the preceding clause (i) or (ii), a “Material Breach”) such party shall give prompt written notice to the other parties hereto and to each Rating Agency subject to the terms of the applicable Mortgage Loan Purchase Agreement.  Promptly (but in any event within three Business Days) upon becoming aware of any such Material Document Defect or Material Breach, the Master Servicer shall, and the Special Servicer may, request that the related Seller, not later than 90 days from such Seller’s receipt of the notice of such Material Document Defect or Material Breach, cure such Material Document Defect or Material Breach, as the case may be, in all material respects; provided, however, that if such Material Document Defect or Material Breach, as the case may be, cannot be corrected or cured in all material respects within such 90-day period, and such Material Document Defect or Material Breach would not cause the Mortgage Loan to be other than a “qualified mortgage” (as defined in the Code) but the related Seller is diligently attempting to effect such correction or cure, as certified by such Seller in an Officer’s Certificate delivered to the Trustee, then the cure period will be extended for an additional 90 days unless, solely in the case of a Material Document Defect, (x) the Mortgage Loan is at the end of the initial 90 day period a Specially Serviced Mortgage Loan and a Servicing Transfer Event has occurred as a result of a monetary default or as described in clause (ii) or clause (v) of the definition of “Servicing Transfer Event” and (y) the Material Document Defect was identified in a certification delivered to the Seller by the Trustee pursuant to Section 2.2 not less than 90 days prior to the delivery of the notice of such Material Document Defect.  The parties acknowledge that neither delivery of a certification or schedule of exceptions to a Seller pursuant to Section 2.2 or otherwise nor possession of such certification or schedule by the Seller shall, in and of itself, constitute delivery of notice of any Material Document Defect or knowledge or awareness by the Seller of any Material Document Defect listed therein.  Notwithstanding anything herein to the contrary, any breach of the representation and warranty contained under the heading “Prepayment Premiums” in Exhibit 2 to each Mortgage Loan Purchase Agreement with respect to any Mortgage Loan shall constitute a Material Breach only if such prepayment premium or yield maintenance charge is not deemed “customary” for commercial mortgage loans at the time of origination, as evidenced by (i) an opinion of tax counsel to such effect or (ii) a determination by the Internal Revenue Service that such provision is not customary.  In addition, if such Mortgage Loan is modified so that it becomes a Qualified Substitute Mortgage Loan, such breach shall be deemed cured and the related Seller will not be obligated to repurchase such Mortgage Loan or otherwise remedy such breach.  The related Seller is required to pay for any expenses incurred by the Master Servicer or the Special Servicer in connection with such modification.


 


If any such Material Document Defect or Material Breach cannot be corrected or cured in all material respects within the above cure periods, the related Seller that is the subject of such Material Breach shall be obligated, not later than the last day of such permitted cure period, to (i) repurchase the affected Mortgage Loan or REO Mortgage Loan from the Trust at the applicable Purchase Price in accordance with the related Mortgage Loan Purchase Agreement, or (ii) if within the two-year period commencing on the Closing Date, at the related Seller’s option, replace, without recourse, such Mortgage Loan or REO Mortgage Loan with a Qualifying Substitute Mortgage Loan.  If such Material Document Defect or Material Breach










 


  





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would cause the Mortgage Loan to be other than a “qualified mortgage” (as defined in the Code), then notwithstanding the previous sentence, the repurchase or substitution must occur within 90 days from the earlier of the date the related Seller discovered or was notified of the breach or defect.


 


As to any Qualifying Substitute Mortgage Loan or Loans, the Master Servicer shall not execute any instrument effecting the substitution unless the related Seller has delivered to the Trustee for such Qualifying Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage, the related Assignment of Mortgage, and such other documents and agreements as are required by Section 2.1, with the Mortgage Note endorsed as required by Section 2.1 and the Master Servicer shall be entitled to rely on statements and certifications from the Trustee for this purpose.  No substitution may be made in any calendar month after the Determination Date for such month.  Monthly payments due with respect to Qualifying Substitute Mortgage Loans in the month of substitution shall not be part of the Trust and will be retained by the Master Servicer and remitted by the Master Servicer to the related Seller on the next succeeding Distribution Date.  For the month of substitution, distributions to Certificateholders will include the Scheduled Payment due on the related Deleted Mortgage Loan for such month and thereafter the related Seller shall be entitled to retain all amounts received in respect of such Deleted Mortgage Loan.


 


The Master Servicer shall amend or cause to be amended the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan and the substitution of the Qualifying Substitute Mortgage Loan or Loans and upon such amendment the Master Servicer shall deliver or cause to be delivered such amended Mortgage Loan Schedule to the Trustee, the Paying Agent and the Special Servicer.  Upon such substitution, the Qualifying Substitute Mortgage Loan or Loans shall be subject to the terms of this Agreement in all respects.  Upon receipt of the Trustee Mortgage File pertaining to any Qualifying Substitute Mortgage Loans, the Trustee shall release the Trustee Mortgage File relating to such Deleted Mortgage Loan to the related Seller, and the Trustee (and the Depositor, if necessary) shall execute and deliver such instruments of transfer or assignment in the form presented to it, in each case without recourse, representation or warranty, as shall be necessary to vest title (to the extent that such title was transferred to the Trustee or the Depositor) in the related Seller or its designee to any Deleted Mortgage Loan (including any property acquired in respect thereof or any insurance policy proceeds relating thereto) substituted for pursuant to this Section 2.3.


 


If (i) a Mortgage Loan is to be repurchased or replaced in connection with a Material Document Defect or Material Breach as contemplated above, (ii) such Mortgage Loan is cross-collateralized and cross-defaulted with one or more other Mortgage Loans and (iii) the applicable document defect or breach does not constitute a Material Document Defect or Material Breach, as the case may be, as to such other Mortgage Loans (without regard to this paragraph), then the applicable document defect or breach (as the case may be) shall be deemed to constitute a Material Document Defect or Material Breach (as the case may be) as to each such other Mortgage Loan for purposes of the above provisions, and the related Seller shall be obligated to repurchase or replace each such other Mortgage Loan in accordance with the provisions above unless, in the case of such breach or document defect, both of the following conditions would be satisfied if the related Seller were to repurchase or replace only those Mortgage Loans as to which a Material Breach or Material Document Defect had occurred










 


  





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without regard to this paragraph (the “Affected Loan(s)”):  (1) the debt service coverage ratio for all such other Mortgage Loans (excluding the Affected Loan(s)) for the four calendar quarters immediately preceding the repurchase or replacement (determined as provided in the definition of Debt Service Coverage Ratio, except that net cash flow for such four calendar quarters, rather than year-end, shall be used) is equal to the greater of (x) the debt service coverage ratio for all such Mortgage Loans (including the Affected Loan(s)) set forth under the heading “NCF DSCR” in Appendix II to the Final Prospectus Supplement and (y) [1.25]x, and (2) the Loan-to-Value Ratio for all such other Mortgage Loans (excluding the Affected Loan(s)) is not greater than the lesser of (x) the current Loan-to-Value Ratio for all such Mortgage Loans (including the Affected Loan(s)) set forth under the heading “Cut-Off Date LTV” in Appendix II to the Final Prospectus Supplement and (y) [75]%.  The determination of the Master Servicer as to whether the conditions set forth above have been satisfied shall be conclusive and binding in the absence of manifest error.  The Master Servicer will be entitled to cause to be delivered, or direct the related Seller to (in which case the related Seller shall) cause to be delivered to the Master Servicer:  (i) an Appraisal of any or all of the related Mortgaged Properties for purposes of determining whether the condition set forth in clause (2) above has been satisfied, in each case at the expense of the related Seller if the scope and cost of the Appraisal is approved by the related Seller (such approval not to be unreasonably withheld) and (ii) an Opinion of Counsel that not requiring the repurchase of each such other Mortgage Loan will not result in an Adverse REMIC Event.


 


With respect to any Mortgage Loan that is cross-defaulted and cross-collateralized with any other Mortgage Loan conveyed hereunder, to the extent that the applicable Seller is required to repurchase or substitute for such Mortgage Loan (each, a “Repurchased Loan”) in the manner prescribed above while the Trustee continues to hold any other Mortgage Loan that is cross-collateralized and cross-defaulted (each, a “Cross-Collateralized Loan”) with such Repurchased Loan, the related Seller and the Depositor have agreed in the Mortgage Loan Purchase Agreement to modify, prior to such repurchase or substitution, the related Mortgage Loan documents in a manner such that such affected Repurchased Loan, on the one hand, and any related Crossed-Collateralized Loans held by the Trustee, on the other, would no longer be cross-defaulted or cross-collateralized with one another; provided that the applicable Seller shall have furnished the Trustee, at the expense of the applicable Seller, with a Nondisqualification Opinion that such modification shall not cause an Adverse REMIC Event; provided, further, that if such Nondisqualification Opinion cannot be furnished, the applicable Seller and the Depositor have agreed in the applicable Mortgage Loan Purchase Agreement that such repurchase or substitution of only the Repurchased Loan, notwithstanding anything to the contrary herein, shall not be permitted and the applicable Seller shall repurchase or substitute for the Repurchased Loan and all related Crossed-Collateralized Loans.  Any reserve or other cash collateral or letters of credit securing the Repurchased Loan and the Cross-Collateralized Loans shall be allocated between such Mortgage Loans in accordance with the Mortgage Loan documents.  All other terms of the Mortgage Loans shall remain in full force and effect, without any modification thereof.  The Mortgagors set forth on Schedule VII hereto are intended third-party beneficiaries of the provisions set forth in this paragraph and the preceding paragraph.  The provisions of this paragraph and the preceding paragraph may not be modified with respect to any Mortgage Loan without the related Mortgagor’s consent.










 


  





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Upon occurrence (and after any applicable cure or grace period), any of the following document defects shall be conclusively presumed materially and adversely to affect the interests of Certificateholders in a Mortgage Loan and be a Material Document Defect:  (a) the absence from the Mortgage File of the original signed Mortgage Note, unless the Mortgage File contains a signed lost note affidavit and indemnity and a copy of the Mortgage Note; (b) the absence from the Mortgage File of the original signed Mortgage, unless there is included in the Mortgage File (i) a copy of the Mortgage certified by the local authority with which the Mortgage was recorded or (ii) a true and correct copy of the Mortgage together with an Officer’s Certificate; or (c) the absence from the Mortgage File of the item called for by paragraph (viii) of the definition of Mortgage File.  If any of the foregoing Material Document Defects is discovered by the Custodian (or the Trustee if there is no Custodian) or any other party hereto, the Trustee (or as set forth in Section 2.3(a), the Master Servicer) will take the steps described elsewhere in this section, including the giving of notices to the Rating Agencies and the parties hereto and making demand upon the related Seller for the cure of the document defect or repurchase or replacement of the related Mortgage Loan.


 


(b) If the related Seller disputes that a Material Document Defect or Material Breach exists with respect to a Mortgage Loan or otherwise refuses (i) to effect a correction or cure of such Material Document Defect or Material Breach, (ii) to repurchase the affected Mortgage Loan from the Trust or (iii) to replace such Mortgage Loan with a Qualifying Substitute Mortgage Loan, each in accordance with the related Mortgage Loan Purchase Agreement, then provided that (x) the period of time provided for the related Seller to correct, repurchase or cure has expired and (y) the Mortgage Loan is then in default and is then a Specially Serviced Mortgage Loan, the Special Servicer may, subject to the Servicing Standard, modify, work-out or foreclose, sell or otherwise liquidate (or permit the liquidation of) the Mortgage Loan pursuant to Section 9.5, Section 9.12, Section 9.15 and Section 9.36, as applicable, of this Agreement, while pursuing the repurchase claim.  Each Seller acknowledges and agrees that any modification of the Mortgage Loan pursuant to such a work-out shall not constitute a defense to any repurchase claim nor shall such modification or work-out change the Purchase Price due from the related Seller for any repurchase claim.  Any sale of the Mortgage Loan, or foreclosure upon such Mortgage Loan and sale of the REO Property, to a Person other than the related Seller shall be without (i) recourse of any kind (either expressed or implied) by such Person against the related Seller and (ii) representation or warranty of any kind (either expressed or implied) by the related Seller to or for the benefit of such Person.


 


The fact that a Material Document Defect or Material Breach is not discovered until after foreclosure (but in all instances prior to the sale of the related REO Property or Mortgage Loan) shall not prejudice any claim against the related Seller for repurchase of the REO Mortgage Loan or REO Property.  In such an event, the Master Servicer or Special Servicer, as applicable, shall notify the related Seller of the discovery of the Material Document Defect or Material Breach and the related Seller shall be required to follow the procedures set forth in the related Mortgage Loan Purchase Agreement to correct or cure such Material Document Defect or Material Breach or purchase the REO Property at the Purchase Price.  If the related Seller fails to correct or cure the Material Document Defect or Material Breach or purchase the REO Property, then the provisions above regarding notice of offers related to such REO Property and the related Seller’s right to purchase such REO Property shall apply.  If a court of competent jurisdiction issues a final order that the related Seller is or was obligated to











 




  





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repurchase the related Mortgage Loan or REO Mortgage Loan or the related Seller otherwise accepts liability, then, after the expiration of any applicable appeal period, but in no event later than the termination of the Trust pursuant to Section 9.30 hereof, the related Seller will be obligated to pay to the Trust the difference between any Liquidation Proceeds received upon such liquidation (including those arising from any sale to the related Seller) and the Purchase Price; provided that the prevailing party in such action shall be entitled to recover all costs, fees and expenses (including reasonable attorneys fees) related thereto; provided, further, that if the Seller is the prevailing party in such action, such costs, fees and expenses (including reasonable attorneys fees) shall be an Additional Trust Expense.


 


In connection with any liquidation or sale of a Mortgage Loan or REO Property as described above, the Special Servicer will not receive a Liquidation Fee in connection with such liquidation or sale or any portion of the Work-Out Fee that accrues after the related Seller receives notice of a breach or defect until a final determination has been made, as set forth in the prior paragraph, as to whether the related Seller is or was obligated to repurchase such related Mortgage Loan or REO Property.  Subject to the last two sentences of the first paragraph of Section 2.3(a), upon such determination, the Special Servicer will be entitled:  (i) with respect to a determination that the related Seller is or was obligated to repurchase a Mortgage Loan, to collect a Liquidation Fee, if due in accordance with the definition thereof, based upon the full Purchase Price of the related Mortgage Loan or REO Property, with such Liquidation Fee payable by the related Seller or (ii) with respect to a determination that the related Seller is not or was not obligated to repurchase a Mortgage Loan (or the Trust decides that it will no longer pursue a claim against the Seller for repurchase), (A) to collect a Liquidation Fee based upon the Liquidation Proceeds as received upon the actual sale or liquidation of such Mortgage Loan or REO Property, and (B) collect any accrued and unpaid Work-Out Fee, based on amounts that were collected for as long as the related Mortgage Loan was a Rehabilitated Mortgage Loan, in each case with such amounts to be paid from amounts in the Certificate Account.


 


In any month in which the related Seller substitutes one or more Qualifying Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the Master Servicer will determine the amount (if any) by which the aggregate Principal Balance of all such Qualifying Substitute Mortgage Loans as of the date of substitution is less than the aggregate Principal Balance of all such Deleted Mortgage Loans (in each case after application of scheduled principal portion of the monthly payments received in the month of substitution).  The Depositor shall cause the related Seller to deposit the amount of such shortage into the Certificate Account in the month of substitution, without any reimbursement thereof.  In addition, the Depositor shall cause the related Seller to deposit into the Certificate Account, together with such shortage, if any, an amount equal to interest on the Deleted Mortgage Loans at a rate equal to the sum of the applicable Mortgage Rate from the Due Date as to which interest was last paid up to the Due Date next succeeding such substitution together with the amount of unreimbursed Servicing Advances, amounts required to be paid to the Special Servicer but remaining unpaid or unreimbursed, and interest on unreimbursed Advances with respect to such Deleted Mortgage Loans at the Advance Rate.  The Depositor shall cause the related Seller, in the case of the Mortgage Loans, to give notice in writing (accompanied by an Officer’s Certificate as to the calculation of such shortage) to the Trustee, the Paying Agent and the Master Servicer of such event which notice shall be accompanied by an Officer’s Certificate as to the calculation of such shortfall.










 


  





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If the affected Mortgage Loan is to be repurchased, the Master Servicer shall designate the Certificate Account as the account to which funds in the amount of the Purchase Price are to be wired.  Any such purchase of a Mortgage Loan shall be on a whole loan, servicing released basis.


 


(c) In connection with any repurchase of or substitution for a Mortgage Loan contemplated by this Section 2.3, the Trustee, the Master Servicer and the Special Servicer shall each tender to the related Seller, upon delivery to each of them of a receipt executed by such Seller, all portions of the Mortgage File and other documents pertaining to such Mortgage Loan possessed by it (including, without limitation, all documents delivered to the Trustee and the Master Servicer pursuant to the related Mortgage Loan Purchase Agreement), and each document that constitutes a part of the Mortgage File shall be endorsed or assigned to the extent necessary or appropriate to the related Seller or its designee in the same manner, and pursuant to appropriate forms of assignment, substantially similar to the manner and forms pursuant to which documents were previously assigned to the Trustee, but in any event, without recourse, representation or warranty; provided that such tender by the Trustee shall be conditioned upon its receipt from the Master Servicer of a Request for Release.  The Master Servicer shall, and is hereby authorized and empowered by the Trustee to, prepare, execute and deliver in its own name, on behalf of the Certificateholders and the Trustee or any of them, the endorsements and assignments contemplated by this Section 2.3, and the Trustee shall execute and deliver any powers of attorney necessary to permit the Master Servicer to do so.  The Master Servicer shall, and is also hereby authorized and empowered by the Trustee to, reconvey to the related Seller any deposits then held in the applicable Escrow Account relating to the Mortgage Loan being repurchased or substituted for.  The Master Servicer shall indemnify the Trustee for all costs, liabilities and expenses (including attorneys’ fees) incurred by the Trustee in connection with any negligent or intentional misuse of any such powers of attorney by the Master Servicer.


 


(d) The Mortgage Loan Purchase Agreements provide the sole remedies available to the Certificateholders, or the Trustee on behalf of the Certificateholders, respecting any Material Document Defect or Material Breach.  The parties hereunder understand that each Seller under the applicable Mortgage Loan Purchase Agreement will be providing the remedies with respect to the Mortgage Loans sold by such Seller.


 


(e) The Trustee shall enforce the provisions of this Section 2.3.  Alternatively, the Trustee may, in its sole discretion, appoint a designee to enforce such provisions (which, with the Master Servicer’s consent, may be the Master Servicer or which, with the Special Servicer’s consent, may be the Special Servicer).


 


Section 2.4 Representations and Warranties


 


The Depositor hereby represents and warrants to the Master Servicer, the Special Servicer, the Trustee (in its capacity as Trustee of the Trust) and the Paying Agent as of the Closing Date that:


 


(a) The Depositor is a corporation duly organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power










 


  





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and authority to own its property, to carry on its business as presently conducted, to enter into and perform its obligations under this Agreement, and to create the trust pursuant hereto;


 


(b) The execution and delivery by the Depositor of this Agreement have been duly authorized by all necessary corporate action on the part of the Depositor; neither the execution and delivery of this Agreement, nor the consummation of the transactions herein contemplated, nor compliance with the provisions hereof, will conflict with or result in a breach of, or constitute a default under, (i) any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Depositor or its properties; (ii) the certificate of incorporation or bylaws of the Depositor; or (iii) the terms of any indenture or other agreement or instrument to which the Depositor is a party or by which it is bound; neither the Depositor nor any of its Affiliates is a party to, bound by, or in breach of or violation of any indenture or other agreement or instrument, or subject to or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects or to the best knowledge of the Depositor may in the future materially and adversely affect (i) the ability of the Depositor to perform its obligations under this Agreement or (ii) the business, operations, financial condition, properties or assets of the Depositor;


 


(c) The execution, delivery and performance by the Depositor of this Agreement and the consummation of the transactions contemplated hereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;


 


(d) This Agreement has been duly executed and delivered by the Depositor and, assuming due authorization, execution and delivery by the Trustee, constitutes a valid and binding obligation of the Depositor enforceable against it in accordance with its terms;


 


(e) There are no actions, suits or proceedings pending or, to the best of the Depositor’s knowledge, threatened or likely to be asserted against or affecting the Depositor, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or (B) with respect to any other matter which in the judgment of the Depositor will be determined adversely to the Depositor and will, if determined adversely to the Depositor, materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement; and


 


(f) Immediately prior to the consummation of the transactions contemplated in this Agreement, the Depositor had good title to and was the sole owner of each Mortgage Loan free and clear of any and all adverse claims, charges or security interests (including liens arising under the federal tax laws or the Employee Retirement Income Security Act of 1974, as amended).










 


  





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Section 2.5 Conveyance of Interests


 


Effective as of the Closing Date, the Depositor does hereby transfer, assign, set over, deposit with and otherwise convey to the Trustee, without recourse, in trust, all the right, title and interest of the Depositor in and to (i) the assets of REMIC I in exchange for the REMIC I Interests, (ii) the assets of REMIC II in exchange for the REMIC II Interests, (iii) the assets of REMIC III in exchange for the REMIC III Certificates, (iv) the assets of the Class EI Grantor Trust in exchange for the Class [EI] Certificates and (v) the Class A-3-1FL Regular Interest in exchange for the Class [A-3-1FL] Certificates.


 


ARTICLE III




 


THE CERTIFICATES


 


Section 3.1 The Certificates


 


(a) The Certificates shall be in substantially the forms set forth in Exhibits A-1 through A-31 hereto, with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Agreement or as may in the reasonable judgment of the Trustee or the Depositor be necessary, appropriate or convenient to comply, or facilitate compliance, with applicable laws, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange on which any of the Certificates may be listed, or as may, consistently herewith, be determined by the officers executing such Certificates, as evidenced by their execution thereof.


 


The Definitive Certificates shall be printed, typewritten, lithographed or engraved or produced by any combination of these methods or may be produced in any other manner permitted by the rules of any securities exchange on which any of the Certificates may be listed, all as determined by the officers  executing such Certificates, as evidenced by their execution thereof.


 


(b) The Class [A] Certificates and the Class [A-J] Certificates will be issuable in denominations of $[25,000] initial Certificate Balance and in any whole dollar denomination in excess thereof.  The Class [X] (other than the Class [X-2] Certificates), Class [B], Class [C], Class [D], Class [E], Class [F], Class [G], Class [H], Class [J], Class [K], Class [L], Class [M], Class [N], Class [O] and Class [P] Certificates will be issuable in denominations of $[100,000] initial Certificate Balance or initial Notional Amount (as applicable) or in any whole dollar denomination in excess thereof.  The Class [X-2] Certificates will be issuable in denominations of $[1,000,0000] initial Certificate Balance and in any whole dollar denomination in excess thereof.  The Class [EI], Class [R-I], Class [R-II] and Class [R-III] Certificates each will be issued in minimum Percentage Interests of 10% and integral multiples of 10% in excess thereof and together aggregating the entire 100% Percentage Interest in each such Class.


 


(c) Each Certificate shall, on original issue, be executed by the Certificate Registrar and authenticated by the Authenticating Agent upon the order of the Depositor.  No Certificate shall be entitled to any benefit under this Agreement, or be valid for any purpose,


 


 




 




  





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unless there appears on such Certificate a certificate of authentication substantially in the form provided for herein, executed by an authorized officer of the Authenticating Agent by manual signature, and such certification upon any Certificate shall be conclusive evidence, and the only evidence, that such Certificate has been duly authenticated and delivered hereunder.  All Certificates shall be dated the date of their authentication.  At any time and from time to time after the execution and delivery of this Agreement, the Depositor may deliver Certificates to the Authenticating Agent for authentication and the Authenticating Agent shall authenticate and deliver such Certificates as in this Agreement provided and not otherwise.  In the event that additional Certificates need to be prepared at any time subsequent to the Closing Date, the Depositor shall prepare, or cause to be prepared, deliver, or cause to be delivered, at the Depositor’s expense, any such additional Certificates.  With respect to the Class [A], Class [A-J], Class [X-1], Class [X-2], Class [B], Class [C], Class [D], Class [E], Class [F], Class [G], Class [H], Class [J], Class [K], Class [L], Class [M], Class [N], Class [O] and Class [P] Certificates that are issued in book-entry form, on the Closing Date, the Authenticating Agent upon the order of the Depositor shall authenticate Book-Entry Certificates that are issued to a Clearing Agency or its nominee as provided in Section 3.7 against payment of the purchase price thereof.  With respect to the Class [J], Class [K], Class [L], Class [M], Class [N], Class [O], Class [P], Class [EI] and Class [X-Y] Certificates that are issued in definitive form, on the Closing Date, the Authenticating Agent upon the order of the Depositor shall authenticate Definitive Certificates that are issued to the registered holder thereof against payment of the purchase price thereof.


 


Section 3.2 Registration


 


The Paying Agent shall be the initial Certificate Registrar in respect of the Certificates and the Certificate Registrar shall maintain books for the registration and for the transfer of Certificates (the “Certificate Register”).  The Certificate Registrar may resign or be discharged or removed by the Paying Agent or the Certificateholders, and a new successor may be appointed, in accordance with the procedures and requirements set forth in Sections 7.6 and 7.7 hereof with respect to the resignation, discharge or removal of the Paying Agent and the appointment of a successor Paying Agent.  The Certificate Registrar may appoint, by a written instrument delivered to the Holders and the Trustee, any trust company to act as co-registrar under such conditions as the Certificate Registrar may prescribe; provided that the Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment.


 


Section 3.3 Transfer and Exchange of Certificates


 


(a) A Certificate may be transferred by the Holder thereof only upon presentation and surrender of such Certificate at the Corporate Trust Office, duly endorsed or accompanied by a written instrument of transfer duly executed by such Holder or such Holder’s duly authorized attorney in such form as shall be satisfactory to the Certificate Registrar.  Upon the transfer of any Certificate in accordance with the preceding sentence, and subject to the restrictions set forth in the other subsections of this Section 3.3, the Certificate Registrar shall execute, and the Authenticating Agent shall authenticate and deliver to the transferee, one or more new Certificates of the same Class and evidencing, in the aggregate, the same aggregate initial Certificate Balance, initial Notional Amount or Percentage Interest, as the case may be, as









  





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the Certificate being transferred.  No service charge shall be made to a Certificateholder for any registration of transfer of Certificates, but the Certificate Registrar may require payment of a sum sufficient to cover any tax or governmental charge that may be imposed in connection with any registration or transfer of Certificates.  The Certificate Registrar may decline to accept any request for a registration of transfer of any Certificate during the period beginning five calendar days prior to any Distribution Date.


 


(b) A Certificate may be exchanged by the Holder thereof for any number of new Certificates of the same Class, in authorized denominations, representing in the aggregate the same initial Certificate Balance, initial Notional Amount or Percentage Interest, as the case may be, as the Certificate surrendered, upon surrender of the Certificate to be exchanged at the offices of the Certificate Registrar duly endorsed or accompanied by a written instrument of exchange duly executed by such Holder or such Holder’s duly authorized attorney in such form as is satisfactory to the Certificate Registrar.  Certificates delivered upon any such exchange will evidence the same obligations, and will be entitled to the same rights and privileges, as the Certificates surrendered.  No service charge shall be made to a Certificateholder for any exchange of Certificates, but the Certificate Registrar may require payment of a sum sufficient to cover any tax or governmental charge that may be imposed in connection with any exchange of Certificates.  Whenever any Certificates are so surrendered for exchange, the Certificate Registrar shall execute and the Authenticating Agent shall authenticate, date and deliver the Certificates which the Certificateholder making the exchange is entitled to receive.


 


(c) No transfer, sale, pledge or other disposition of any Non-Registered Certificate or interest therein shall be made unless such transfer, sale, pledge or other disposition is exempt from the registration and/or qualification requirements of the Securities Act and any applicable state securities laws, or is otherwise made in accordance with the Securities Act and such state securities laws.  If a transfer of any Non-Registered Certificate held as a Definitive Certificate is to be made without registration under the Securities Act (other than in connection with a transfer of such Non-Registered Certificate by the Depositor or one of its Affiliates), then the Certificate Registrar shall refuse to register such transfer unless it receives (and upon receipt, may conclusively rely upon) either:  (i) a certificate from the Certificateholder desiring to effect such transfer substantially in the form attached as Exhibit D-1 hereto and a certificate from such Certificateholder’s prospective Transferee substantially in the form attached either as Exhibit D-2A hereto or as Exhibit D-2B hereto; or (ii) an Opinion of Counsel satisfactory to the Certificate Registrar to the effect that such transfer shall be made without registration under the Securities Act, together with the written certification(s) as to the facts surrounding such transfer from the Certificateholder desiring to effect such transfer and/or such Certificateholder’s prospective Transferee on which such Opinion of Counsel is based (such Opinion of Counsel shall not be an expense of the Trust or of the Depositor, the Master Servicer, the Special Servicer, the Paying Agent, the Trustee or the Certificate Registrar in their respective capacities as such).  If a transfer of any interest in a Non-Registered Certificate that constitutes a Book-Entry Certificate is to be made without registration under the Securities Act (other than in connection with the initial issuance of the Certificates or a transfer of any interest in such Non-Registered Certificate by the Depositor or any of its Affiliates), then the Certificate Owner desiring to effect such transfer shall be required to obtain either (i) a certificate from such Certificate Owner’s prospective Transferee substantially in the form attached as Exhibit D-3A hereto or as Exhibit D-3B hereto, or (ii) an Opinion of Counsel to the effect that such transfer




  





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may be made without registration under the Securities Act.  None of the Depositor, the Paying Agent, the Trustee, the Master Servicer, the Special Servicer or the Certificate Registrar is obligated to register or qualify any Class of Non-Registered Certificates under the Securities Act or any other securities law or to take any action not otherwise required under this Agreement to permit the transfer of any Certificate.  Any Certificateholder or Certificate Owner desiring to effect a transfer of Non-Registered Certificates or interests therein shall, and does hereby agree to, indemnify the Depositor, each Underwriter, the Trustee, the Master Servicer, the Special Servicer, the Paying Agent and the Certificate Registrar against any liability that may result if the transfer is not exempt from such registration or qualification or is not made in accordance with such federal and state laws.


 


(d) No transfer of a Non-Investment Grade Certificate, Class [EI] Certificate or Residual Certificate or any interest therein shall be made (A) to any retirement plan or other employee benefit plan or arrangement, including individual retirement accounts and annuities, Keogh plans and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, including, without limitation, insurance company general accounts, that is subject to ERISA or Section 4975 of the Code or any applicable federal, state or local law (“Similar Laws”) materially similar to the foregoing provisions of ERISA or the Code (each, a “Plan”), (B) in book-entry form to an Institutional Accredited Investor who is not also a Qualified Institutional Buyer or (C) to any Person who is directly or indirectly purchasing such Certificate or interest therein on behalf of, as named fiduciary of, as trustee of, or with “plan assets” of a Plan, unless:  (i) in the case of a Non-Investment Grade Certificate that constitutes a Book-Entry Certificate and is being sold to a Qualified Institutional Buyer, the purchase and holding of such Certificate or interest therein qualifies for the exemptive relief available under Sections I and III of U.S. Department of Labor Prohibited Transaction Class Exemption (“PTCE”) 95-60; or (ii) in the case of a Non-Investment Grade Certificate held as a Definitive Certificate, the prospective Transferee provides the Certificate Registrar with a certification of facts and an Opinion of Counsel which establish to the satisfaction of the Certificate Registrar that such transfer will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code or materially similar provisions of applicable federal, state or local law or subject the Depositor, the Trustee, the Paying Agent, the Master Servicer, the Special Servicer or the Certificate Registrar to any obligation in addition to those undertaken in this Agreement.  Each Person who acquires any Non-Investment Grade Certificate or Residual Certificate or interest therein (unless it shall have acquired such Certificate or interest therein from the Depositor or an Affiliate thereof or, in the case of a Non-Investment Grade Certificate, unless it shall have delivered to the Certificate Registrar the certification of facts and Opinion of Counsel referred to in clause (ii) of the preceding sentence) shall be required to deliver to the Certificate Registrar (or, in the case of an interest in a Non-Investment Grade Certificate that constitutes a Book-Entry Certificate, to the Certificate Owner that is transferring such interest) a certification to the effect that:  (i) it is neither a Plan nor any Person who is directly or indirectly purchasing such Certificate or interest therein on behalf of, as named fiduciary of, as trustee of, or with “plan assets” of a Plan; or (ii) in the case of a Non-Investment Grade Certificate, that the purchase and holding of such Certificate or interest therein by such Person qualifies for the exemptive relief available under Sections I and III of PTCE 95-60 or another exemption from the “prohibited transactions” rules under ERISA by the U.S. Department of Labor.  No transfer of a Class EI or Residual Certificate will be made to any Person that does not make the representation in clause (i) of the preceding sentence.




  





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(e) Each Person who has or who acquires any Ownership Interest in a Residual Certificate shall be deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Paying Agent under clause (F) below to deliver payments to a Person other than such Person and to have irrevocably authorized the Certificate Registrar under clause (G) below to negotiate the terms of any mandatory sale and to execute all instruments of Transfer and to do all other things necessary in connection with any such sale.  The rights of such Person acquiring any Ownership Interest in a Residual Certificate are expressly subject to the following provisions:


 


(A) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall be a Permitted Transferee and a United States Tax Person and shall promptly notify the Certificate Registrar of any change or impending change in its status as a Permitted Transferee.


 


(B) In connection with any proposed Transfer of any Ownership Interest in a Residual Certificate, the Certificate Registrar shall require delivery to it, and no Transfer of any Residual Certificate shall be registered until the Certificate Registrar receives, an affidavit and agreement substantially in the form attached hereto as Exhibit E-1 (a “Transfer Affidavit and Agreement”) from the proposed Transferee, in form and substance satisfactory to the Certificate Registrar, representing and warranting, among other things, that such Transferee is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Residual Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person that is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Residual Certificate, it will endeavor to remain a Permitted Transferee, that it is a United States Tax Person, that it has historically paid its debts as they have come due and will continue to do so in the future, that it understands that its tax liability with respect to the Residual Certificates may exceed cash flows thereon and it intends to pay such taxes as they come due, that it will provide the Certificate Registrar with all information necessary to determine that the applicable paragraphs of Section 14 of such Transfer Affidavit and Agreement are true or that Section 14 is not applicable, that it will not cause income with respect to the Residual Certificate to be attributable to a foreign permanent establishment or fixed base (within the meaning of an applicable income tax treaty) of such Person or any other United States Tax Person and that it has reviewed the provisions of this Section 3.3(e) and agrees to be bound by them.


 


(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if the Certificate Registrar has actual knowledge that the proposed Transferee is not a Permitted Transferee or is not a United States Tax Person, no Transfer of an Ownership Interest in a Residual Certificate to such proposed Transferee shall be effected.


 


(D) Each Person holding or acquiring an Ownership Interest in a Residual Certificate shall agree (1) to require a Transfer Affidavit and Agreement from any prospective Transferee to whom such Person attempts to transfer its












  





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Ownership Interest in such Residual Certificate and (2) not to transfer its Ownership Interest in such Residual Certificate unless it provides to the Certificate Registrar a certificate substantially in the form attached hereto as Exhibit E-2 among other things stating that (x) it has conducted a reasonable investigation of the financial condition of the proposed Transferee and, as a result of the investigation, the Transferor determines that the proposed Transferee had historically paid its debts as they came due and found no significant evidence that the proposed Transferee will not continue to pay its debts as they come due in the future and, (y) it has no actual knowledge that such prospective Transferee is not a Permitted Transferee or is not a United States Tax Person.


 


(E) Each Person holding or acquiring an Ownership Interest in a Residual Certificate that is a “pass-through interest holder” within the meaning of temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A) or is holding an Ownership Interest in a Residual Certificate on behalf of a “pass-through interest holder,” by purchasing an Ownership Interest in such Certificate, agrees to give the Certificate Registrar written notice of its status as such immediately upon holding or acquiring such Ownership Interest in a Residual Certificate.


 


(F) If any purported Transferee shall become a Holder of a Residual Certificate in violation of the provisions of this Section 3.3(e) or if any Holder of a Residual Certificate shall lose its status as a Permitted Transferee or a United States Tax Person, then the last preceding Holder of such Residual Certificate that was in compliance with the provisions of this Section 3.3(e) shall be restored, to the extent permitted by law, to all rights and obligations as Holder thereof retroactive to the date of registration of such Transfer of such Residual Certificate.  None of the Trustee, the Master Servicer, the Special Servicer, the Certificate Registrar or the Paying Agent shall be under any liability to any Person for any registration of Transfer of a Residual Certificate that is in fact not permitted by this Section 3.3(e) or for making any payments due on such Certificate to the Holder thereof or for taking any other action with respect to such Holder under the provisions of this Agreement.


 


(G) If any purported Transferee shall become a Holder of a Residual Certificate in violation of the restrictions in this Section 3.3(e), or if any Holder of a Residual Certificate shall lose its status as a Permitted Transferee or a United States Person, and to the extent that the retroactive restoration of the rights and obligations of the prior Holder of such Residual Certificate as described in clause (F) above shall be invalid, illegal or unenforceable, then the Trustee shall have the right, without notice to the Holder or any prior Holder of such Residual Certificate, but not the obligation, to sell or cause to be sold such Residual Certificate to a purchaser selected by the Trustee on such terms as the Trustee may choose.  Such noncomplying Holder shall promptly endorse and deliver such Residual Certificate in accordance with the instructions of the Certificate Registrar.  Such purchaser may be the Certificate Registrar itself or any Affiliate of the Certificate Registrar.  The proceeds of such sale, net of the commissions (which may include commissions payable to the Certificate Registrar or its


 




 




  





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Affiliates), expenses and taxes due, if any, will be remitted by the Certificate Registrar to such noncomplying Holder.  The terms and conditions of any sale under this clause (G) shall be determined in the sole discretion of the Certificate Registrar, and the Certificate Registrar shall not be liable to any Person having an Ownership Interest in a Residual Certificate as a result of its exercise of such discretion.


 


The Trustee shall make available to the Internal Revenue Service and those Persons specified by the REMIC Provisions, all information in its possession necessary to compute any tax imposed as a result of the Transfer of an Ownership Interest in a Residual Certificate to any Person who is not a Permitted Transferee, including the information described in Treasury Regulations Sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the “excess inclusions” of such Residual Certificate.  The Person holding the Ownership Interest in a Residual Certificate shall be responsible for the reasonable compensation of the Trustee for providing such information.  The Master Servicer shall take all reasonable action to cooperate with the Trustee in making such information available.


 


The provisions of this Section 3.3(e) may be modified, added to or eliminated, provided that there shall have been delivered to the Trustee, the Paying Agent, the Certificate Registrar, the Master Servicer, the Operating Adviser and the Depositor the following:


 


(A)           written notification from each Rating Agency to the effect that the modification of, addition to or elimination of such provisions will not cause such Rating Agency to qualify, downgrade or withdraw its then current rating of any Class of Certificates; and


 


(B)           an Opinion of Counsel, in form and substance satisfactory to the Trustee, the Certificate Registrar and the Depositor, to the effect that such modification of, addition to or elimination of such provisions will not cause any REMIC Pool to (x) cease to qualify as a REMIC or (y) be subject to an entity-level tax caused by the Transfer of any Residual Certificate to a Person which is not a Permitted Transferee, or cause a Person other than the prospective Transferee to be subject to a tax caused by the Transfer of a Residual Certificate to a Person which is not a Permitted Transferee.


 


(f) None of the Master Servicer, the Special Servicer, the Trustee, the Paying Agent or the Certificate Registrar shall have any liability to the Trust arising from a transfer of any Certificate in reliance upon a certification, ruling or Opinion of Counsel described in this Section 3.3; provided, however, that the Certificate Registrar shall not register the transfer of a Residual Certificate if it has actual knowledge that the proposed transferee does not meet the qualifications of a permitted Holder of a Residual Certificate as set forth in Section 3.3(e); provided, further, that the Certificate Registrar shall not register the transfer of a Noneconomic Residual Interest if it shall have received notice that the Transferor has determined, as a result of the investigation under Section 3.3(e)(D), that the proposed Transferee has not paid its debts as they came due or that it will not pay its debts as they come due in the future.  The Certificate Registrar shall have no obligation or duty to monitor, determine or inquire as to compliance with any restriction on transfer or exchange of Certificates or any interest therein imposed under this


 









  





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Article III or under applicable law other than to require delivery of the certifications and/or opinions described in this Article III; provided, however, that the Certificate Registrar shall not register the transfer of a Residual Certificate if it has actual knowledge that the proposed transferee does not meet the qualifications of a permitted Holder of a Residual Certificate as set forth in Section 3.3(e).  The Certificate Registrar shall have no liability for transfers (including without limitation transfers made through the book-entry facilities of the Depository or between or among Participants or Certificate Owners) made in violation of applicable restrictions, provided that the Certificate Registrar has satisfied its duties expressly set forth in Sections 3.3(c), 3.3(d) and 3.3(e).


 


(g) All Certificates surrendered for transfer and exchange shall be physically cancelled by the Certificate Registrar, and the Certificate Registrar shall hold such cancelled Certificates in accordance with its standard procedures.


 


(h) The Certificate Registrar shall provide the Master Servicer, the Special Servicer and the Depositor, upon written request, with an updated copy of the Certificate Register within a reasonable period of time following receipt of such request.


 


(i) Unless and until it is exchanged in whole for the individual Certificates represented thereby, a Global Certificate representing all of the Certificates of a Class may not be transferred, except as a whole by the Depository to a nominee of the Depository or by a nominee of the Depository to the Depository or another nominee of the Depository or by the Depository or any such nominee to a successor Clearing Agency or a nominee of such successor Clearing Agency, and no such transfer to any such other Person may be registered; provided that this subsection (i) shall not prohibit any transfer of a Certificate of a Class that is issued in exchange for a Global Certificate of the same Class pursuant to Section 3.9 below.  Nothing in this subsection (i) shall prohibit or render ineffective any transfer of a beneficial interest in a Global Certificate effected in accordance with the other provisions of this Section 3.3.


 


Section 3.4 Mutilated, Destroyed, Lost or Stolen Certificates


 


If (A) any mutilated Certificate is surrendered to the Certificate Registrar, or the Certificate Registrar receives evidence to its satisfaction of the destruction, loss or theft of any Certificate and (B) except in the case of a mutilated Certificate so surrendered, there is delivered to the Certificate Registrar such security or indemnity as may be required by it to save it harmless, then, in the absence of notice to the Certificate Registrar that such Certificate has been acquired by a bona fide purchaser, the Certificate Registrar shall execute, and the Authenticating Agent shall authenticate and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Certificate, a new Certificate of like tenor and interest in the Trust.  In connection with the issuance of any new Certificate under this Section 3.4, the Certificate Registrar may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Certificate Registrar) connected therewith.  Any replacement Certificate issued pursuant to this Section 3.4 shall constitute complete and indefeasible evidence of ownership in the Trust, as if originally issued, whether or not the lost, stolen or destroyed Certificate shall be found at any time.


 









  





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Section 3.5 Persons Deemed Owners


 


Prior to presentation of a Certificate for registration of transfer, the Master Servicer, the Special Servicer, the Trustee, the Operating Adviser, the Paying Agent and any agents of the Master Servicer, the Special Servicer, the Paying Agent, the Trustee or the Operating Adviser may treat the Person in whose name any Certificate is registered as of the related Record Date as the owner of such Certificate for the purpose of receiving distributions as provided in this Agreement and for all other purposes whatsoever, and none of the Master Servicer, the Special Servicer, the Trustee, the Paying Agent, the Operating Adviser or any agent of the Master Servicer, the Special Servicer, the Trustee, the Paying Agent or the Operating Adviser shall be affected by any notice to the contrary.


 


Section 3.6 Access to List of Certificateholders’ Names and Addresses


 


If three or more Certificateholders, a Certificateholder holding all the Certificates of any Class of Certificates, the Master Servicer, the Special Servicer, the Paying Agent, the Trustee, the Operating Adviser or the Depositor (A) request in writing from the Certificate Registrar a list of the names and addresses of Certificateholders and (B) in the case of a request by Certificateholders, state that such Certificateholders desire to communicate with other Certificateholders with respect to their rights under this Agreement or under the Certificates, then the Certificate Registrar shall, within ten Business Days after the receipt of such request, afford such Certificateholders, the Master Servicer, the Special Servicer, the Depositor, the Paying Agent, the Trustee, the Swap Counterparty or the Operating Adviser, as applicable, access during normal business hours to a current list of the Certificateholders.  The expense of providing any such information requested by such Person shall be borne by the party requesting such information and shall not be borne by the Certificate Registrar or the Trustee.  Every Certificateholder, by receiving and holding a Certificate, agrees that the Certificate Registrar and the Trustee shall not be held accountable by reason of the disclosure of any such information as to the list of the Certificateholders hereunder, regardless of the source from which such information was derived.


 


Section 3.7 Book-Entry Certificates


 


(a) The Class A-1, Class A-1A, Class A-2, Class A-3-1FL, Class A-3-1, Class A-3-2, Class A-AB, Class A-4A, Class A-4B, Class A-J, Class X-1, Class X-2, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class O and Class [P] Certificates, upon original issuance, each shall be issued in the form of one or more Certificates representing the Book-Entry Certificates, to be delivered to the Certificate Registrar, as custodian for The Depository Trust Company (the “Depository”), the initial Clearing Agency, by, or on behalf of, the Depositor, provided that any Non-Investment Grade Certificates sold to Institutional Accredited Investors who are not Qualified Institutional Buyers will be issued as Definitive Certificates.  The Certificates shall initially be registered on the Certificate Register in the name of Cede & Co., the nominee of the Depository, as the initial Clearing Agency, and no Certificate Owner will receive a definitive certificate representing such Certificate Owner’s interest in the Certificates, except as provided in Section 3.9.  Unless and until Definitive Certificates have been issued to the Certificate Owners pursuant to Section 3.9:


 









  





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(i) the provisions of this Section 3.7 shall be in full force and effect with respect to each such Class;


 


(ii) the Depositor, the Master Servicer, the Paying Agent, the Certificate Registrar and the Trustee may deal with the Clearing Agency for all purposes (including the making of distributions on the Certificates) as the authorized representative of the Certificate Owners;


 


(iii) to the extent that the provisions of this Section 3.7 conflict with any other provisions of this Agreement, the provisions of this Section 3.7 shall control with respect to each such Class; and


 


(iv) the rights of the Certificate Owners of each such Class shall be exercised only through the Clearing Agency and the applicable Participants and shall be limited to those established by law and agreements between such Certificate Owners and the Clearing Agency and/or the Participants.  Pursuant to the Depository Agreement, unless and until Certificates are issued pursuant to Section 3.9, the initial Clearing Agency will make book-entry transfers among the Participants and receive and transmit distributions of principal and interest on the related Certificates to such Participants.


 


(b) For purposes of any provision of this Agreement requiring or permitting actions with the consent of, or at the direction of, Holders of the Certificates evidencing a specified percentage of the aggregate unpaid principal amount of Certificates, such direction or consent may be given by the Clearing Agency at the direction of Certificate Owners owning Certificates evidencing the requisite percentage of principal amount of Certificates.  The Clearing Agency may take conflicting actions with respect to the Certificates to the extent that such actions are taken on behalf of the Certificate Owners.


 


(c) The Certificates of each Class (other than the Residual Certificates) initially sold in reliance on Rule 144A or with respect to the Class [A-1], Class [A-1A], Class [A-2], Class [A-3-1FL], Class [A-3-1], Class [A-3-2], Class [A-AB], Class [A-4A], Class [A-4B], Class [A-J], Class [B], Class [C], Class [D], Class [E], Class [F], Class [G] and Class [H] Certificates sold to Institutional Accredited Investors shall be represented by the Rule 144A IAI Global Certificate for such Class, which shall be deposited with the Certificate Registrar, as custodian for the Depository and registered in the name of Cede & Co. as nominee of the Depository.  The Class [J], Class [K], Class [L], Class [M], Class [N], Class [O] and Class [P] Certificates initially sold to Institutional Accredited Investors shall be represented by IAI Definitive Certificates for such Class.  The Certificates evidenced by any Rule 144A IAI Global Certificate or IAI Definitive Certificate shall be subject to certain restrictions on transfer as set forth in Section 3.3 hereof and shall bear legend(s) regarding such restrictions described herein.


 


(d) The Certificates of each Class (other than the Residual Certificates) initially sold in offshore transactions in reliance on Regulation S shall be represented by the Regulation S Temporary Global Certificate for such Class, which shall be deposited with the Certificate Registrar, as custodian for the Depository and registered in the name of Cede & Co. as nominee of the Depository.  Not earlier than the Release Date, beneficial interests in any


 









  





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Regulation S Temporary Global Certificate shall be exchangeable for beneficial interests in the Regulation S Permanent Global Certificate for such Class.  Beneficial interests in any Regulation S Temporary Global Certificate may be held only through Euroclear or Clearstream; provided, however, that such interests may be exchanged for interests in the Rule 144A IAI Global Certificate for such Class in accordance with the certification requirements described in Section 3.7(f).  The Regulation S Permanent Global Certificates shall be deposited with the Certificate Registrar, as custodian for the Depository and registered in the name of Cede & Co. as nominee of the Depository.


 


On or prior to the Release Date and on or prior to any Distribution Date occurring prior to the Release Date, each Certificate Owner of a Regulation S Temporary Global Certificate that holds a beneficial interest therein on the Release Date or on any such Distribution Date, as the case may be, must deliver to Euroclear or Clearstream (as applicable) a Regulation S Certificate; provided, however, that any Certificate Owner that holds a beneficial interest in a Regulation S Temporary Global Certificate on the Release Date or on any such Distribution Date that has previously delivered a Regulation S Certificate to Euroclear or Clearstream with respect to its interest therein does not need to deliver any subsequent Regulation S Certificate (unless the certificate previously delivered is no longer true as of such subsequent date, and such Certificate Owner must promptly notify Euroclear or Clearstream, as applicable, thereof).  Euroclear or Clearstream, as applicable, shall be required to promptly deliver to the Certificate Registrar a certificate substantially in the form of Exhibit H hereto to the effect that it has received the requisite Regulation S Certificates for each such Class, and no Certificate Owner (or transferee from any such Certificate Owner) shall be entitled to receive an interest in the Regulation S Permanent Global Certificate for such Class or any payment or principal or interest with respect to its interest in such Regulation S Temporary Global Certificate prior to the Certificate Registrar receiving such certification from Euroclear or Clearstream with respect to the portion of the Regulation S Temporary Global Certificate owned by such Certificate Owner (and, with respect to an interest in the applicable Regulation S Permanent Global Certificate, prior to the Release Date).  After the Release Date, distributions due with respect to any beneficial interest in a Regulation S Temporary Global Certificate shall not be made to the holders of such beneficial interests unless exchange for a beneficial interest in the related Regulation S Permanent Global Certificate is improperly withheld or refused.  No interest in a Regulation S Global Certificate may be held by or transferred to a U.S. Person (as defined in Regulation S) except for exchanges for a beneficial interest in the Rule 144A IAI Global Certificate for such Class as described in Section 3.7(f).


 


(e) Except in the limited circumstances described below in Section 3.9, owners of beneficial interests in Global Certificates shall not be entitled to receive physical delivery of Definitive Certificates.  The Certificates are not issuable in bearer form.  Upon the issuance of each Global Certificate, the Depository or its custodian shall credit, on its internal system, the respective principal amount of the individual beneficial interests represented by such Global Certificate to the accounts of Persons who have accounts with such Depository.  Such accounts initially shall be designated by or on behalf of the Underwriters and Placement Agents.  Ownership of beneficial interests in a Global Certificate shall be limited to Customers or Persons who hold interests directly or indirectly through Customers.  Ownership of beneficial interests in the Global Certificates shall be shown on, and the transfer of that ownership shall be effected only through, records maintained by the Depository or its nominee (with respect to interests of


 









  





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Customers) and the records of Customers (with respect to interests of Persons other than Customers).


 


So long as the Depository, or its nominee, is the registered holder of a Global Certificate, the Depository or such nominee, as the case may be, shall be considered the sole owner and holder of the Certificates represented by such Global Certificate for all purposes under this Agreement and the Certificates, including, without limitation, obtaining consents and waivers thereunder, and the Trustee, the Paying Agent and the Certificate Registrar shall not be affected by any notice to the contrary.  Except under the circumstance described in Section 3.9, owners of beneficial interests in a Global Certificate will not be entitled to have any portions of such Global Certificate registered in their names, will not receive or be entitled to receive physical delivery of Definitive Certificates in certificated form and shall not be considered the owners or holders of the Global Certificate (or any Certificates represented thereby) under this Agreement or the Certificates.  In addition, no Certificate Owner of an interest in a Global Certificate shall be able to transfer that interest except in accordance with the Depository’s applicable procedures (in addition to those under this Agreement and, if applicable, those of Euroclear and Clearstream).


 


(f) Any holder of an interest in a Regulation S Global Certificate shall have the right, upon prior written notice to the Certificate Registrar, Euroclear or Clearstream, as applicable, and the Depository, in the form of an Exchange Certification (substantially in the form of Exhibit G attached hereto), to exchange all or a portion of such interest (in authorized denominations as set forth in Section 3.1(b)) for an equivalent interest in the Rule 144A IAI Global Certificate for such Class in connection with a transfer of its interest therein to a transferee that is eligible to hold an interest in such Rule 144A IAI Global Certificate as described herein; provided, however, that no Exchange Certification shall be required if any such exchange occurs after the Release Date.  Any holder of an interest in the Rule 144A IAI Global Certificate shall have the right, upon prior written notice to the Certificate Registrar, the Depository and Euroclear or Clearstream, as applicable, in the form of an Exchange Certification, to exchange all or a portion of such interest (in authorized denominations as set forth in Section 3.1(b)) for an equivalent interest in the Regulation S Global Certificate for such Class in connection with a transfer of its interest therein to a transferee that is eligible to hold an interest in such Regulation S Global Certificate as described herein; provided, however, that if such exchange occurs prior to the Release Date, the transferee shall acquire an interest in a Regulation S Temporary Global Certificate only and shall be subject to all of the restrictions associated therewith described in Section 3.7(d).  Following receipt of any Exchange Certification or request for transfer, as applicable, by the Certificate Registrar:  (i) the Certificate Registrar shall endorse the schedule to any Global Certificate representing the Certificate or Certificates being exchanged to reduce the stated principal amount of such Global Certificate by the denominations of the Certificate or Certificates for which such exchange is to be made, and (ii) the Certificate Registrar shall endorse the schedule to any Global Certificate representing the Certificate or Certificates for which such exchange is to be made to increase the stated principal amount of such Global Certificate by the denominations of the Certificate or Certificates being exchanged therefor.  The form of the Exchange Certification shall be available from the Certificate Registrar.


 









  





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Section 3.8 Notices to Clearing Agency


 


Whenever notice or other communication to the Certificateholders is required under this Agreement, unless and until Definitive Certificates shall have been issued to the related Certificateholders pursuant to Section 3.9, the Paying Agent shall give all such notices and communications specified herein to be given to Holders of the Book-Entry Certificates to the Clearing Agency which shall give such notices and communications to the related Participants in accordance with its applicable rules, regulations and procedures.


 


Section 3.9 Definitive Certificates


 


(a) Definitive Certificates will be issued to the owners of beneficial interests in a Global Certificate or their nominees if (i) the Clearing Agency notifies the Depositor and the Certificate Registrar in writing that the Clearing Agency is unwilling or unable to continue as depositary for such Global Certificate and a qualifying successor depositary is not appointed by the Depositor within 90 days thereof, (ii) the Trustee has instituted or caused to be instituted or has been directed to institute any judicial proceeding in a court to enforce the rights of the Certificateholders under this Agreement and under such Global Certificate and the Trustee has been advised by counsel that in connection with such proceeding it is necessary or advisable for the Trustee or its custodian to obtain possession of such Global Certificate, or (iii) after the occurrence of an Event of Default, Certificate Owners representing a majority in aggregate outstanding Certificate Balance of such Global Certificate advise the Clearing Agency through the Participants in writing (and the Clearing Agency so advises the Depositor, the Certificate Registrar and the Master Servicer in writing) that the continuation in global form of the Certificates being evidenced by such Global Certificate is no longer in their best interests; provided that under no circumstances will Definitive Certificates be issued to Certificate Owners of the Regulation S Temporary Global Certificate.  Upon notice of the occurrence of any of the events described in the preceding sentence, the Certificate Registrar shall notify the Clearing Agency and request the Clearing Agency to notify all Certificate Owners, through the applicable Participants, of the occurrence of the event and of the availability of Definitive Certificates to such Certificate Owners requesting the same.  Upon surrender to the Certificate Registrar of the Global Certificates by the Clearing Agency, accompanied by registration instructions from the Clearing Agency for registration, the Certificate Registrar shall execute, and the Authenticating Agent shall authenticate and deliver, the Definitive Certificates.  None of the Depositor, the Trustee, the Paying Agent or the Certificate Registrar shall be liable for any delay in delivery of such instructions and may conclusively rely on, and shall be protected in relying on, such instructions.  Upon the issuance of Definitive Certificates, all references herein to obligations imposed upon or to be performed by the Clearing Agency shall be deemed to be imposed upon and performed by the Certificate Registrar, to the extent applicable with respect to such Definitive Certificates, and the Certificate Registrar and the Trustee and the Paying Agent shall recognize the Holders of Definitive Certificates as Certificateholders hereunder.


 


(b) Distributions of principal and interest on the Definitive Certificates shall be made by the Paying Agent directly to holders of Definitive Certificates in accordance with the procedures set forth in this Agreement.


 









  





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Section 3.10 Depositable and Exchangeable Certificates





 


(a)  On the Closing Date, there is hereby established a grantor trust for federal income tax purposes (the “EC Trust”).  The EC Trust shall be maintained by the Paying Agent, on behalf of the Trustee, for the benefit of the Holders of the Depositable Certificates and the Exchangeable Certificates.  The assets of the EC Trust shall consist of certain uncertificated REMIC III Regular Interests, which have been placed in the EC Trust.  The uncertificated REMIC III Regular Interests in the EC Trust shall be held by the Paying Agent, on behalf of the Trustee.  On the Closing Date, the EC Trust shall issue the several Classes of Depositable Certificates and Exchangeable Certificates. Each Class of Exchangeable Certificates and each Class of Depositable Certificates shall be issued on the Closing Date with the respective Class Principal Balance or Notional Amount set forth for such Class on [Exhibit [_]] hereto.  Upon the sale of the Depositable Certificates and Exchangeable Certificates on the Closing Date, the Exchangeable Certificates shall be held by the Paying Agent, on behalf of the Trustee to facilitate the exchange of Depositable Certificates and Exchangeable Certificates on and after the Closing Date.  Among the Depositable Certificates and Exchangeable Certificates, the beneficial interest of the uncertificated REMIC III Regular Interests shall be represented by either the Depositable Certificates or Exchangeable Certificates until such Certificates have been exchanged for related Exchangeable Certificates or Depositable Certificates, as applicable, at which time, such related Exchangeable Certificates or Depositable Certificates, as applicable, shall represent those uncertificated REMIC III Regular Interests held by the EC Trust.





 


(b)           If Exchangeable Certificates are held by any Certificateholder on any Distribution Date, the Paying Agent shall distribute to such Holders on such Distribution Date any amounts allocated to the related REMIC III Regular Interests pursuant to Section [__] that would otherwise have been distributable to the related surrendered Depositable Certificates.  Amounts related to interest allocated to the related REMIC III Regular Interests pursuant to Section [__] that would otherwise have been distributable as interest to the related surrendered Depositable Certificates shall be distributed by the Paying Agent as interest to the related Class or Classes of related Exchangeable Certificates.  Amounts related to principal allocated to the related REMIC III Regular Interests pursuant to Section [__] that would otherwise have been distributable as principal to the related surrendered Depositable Certificates shall be distributed by the Paying Agent as principal to the related Class or Classes of related Exchangeable Certificates.  All distributions of principal to the Exchangeable Certificates shall be made pro rata among the Classes of Exchangeable Certificates within each Recombination Group unless specifically provided for otherwise in Section [_] hereof.  All distributions that are made with respect to a particular Class of Exchangeable Certificates shall be made pro rata among all Certificates of such Class in proportion to their respective Class Principal Balances.


 




(c) On each Distribution Date on which a Class of Exchangeable Certificates shall be entitled to receive distributions, such Class shall be allocated a proportionate share of the Net Aggregate Prepayment Interest Shortfalls that would otherwise have been allocable to the related Classes of Depositable Certificates in the related Recombination Group.


 


(d) On each Distribution Date on which a Class of Exchangeable Certificates shall be entitled to receive distributions, such Class shall be allocated a proportionate share of the Realized Losses that would otherwise have been allocable to the related Classes of Depositable


 









  





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Certificates in the related Recombination Group unless specifically provided for otherwise in Section [__] hereof.





 


(e)  Upon the presentation and surrender of a Depositable Certificate, the Holder thereof shall be deemed to have transferred, assigned, and set over and otherwise conveyed to the Paying Agent, on behalf of the Trustee, as trustee of the EC Trust, all of such Holder’s right, title and interest in and to such Depositable Certificate, including all payments of interest thereon received after the month of the exchange.  Upon the presentation and surrender of an Exchangeable Certificate, the Holder thereof shall be deemed to have transferred, assigned, set over and otherwise conveyed to the Paying Agent, on behalf of the Trustee, as trustee of the EC Trust, all of such Holder’s right, title and interest in and to such Exchangeable Certificates, including all payments of interest thereon received after the month of the exchange.


 


(f)  At the request of the Holder of a Class or Classes of Depositable Certificates, and upon the surrender of such Depositable Certificates, the Paying Agent, on behalf of the Trustee, shall deliver such Exchangeable Certificates as set forth in such Recombination Group in the respective denominations determined based on the proportion that the initial Class Principal Balance or initial Notional Amounts of such Exchangeable Certificates bear to the initial Class Principal Balances of the Depositable Certificates, as set forth in Schedule [VIII], which shall represent in the aggregate, the entire beneficial ownership of the related REMIC III Regular Interests related to such surrendered Certificates.  In addition, at the request of the Holder of a Class or Classes of Exchangeable Certificates, and upon the surrender of such Exchangeable Certificates, the Paying Agent, on behalf of the Trustee, shall exchange such Exchangeable Certificates for another Class or Classes of Exchangeable Certificates or the related Depositable Certificates, as set forth in Schedule [VIII].  There shall be no limitation on the number of exchanges authorized pursuant to this Section 3.10.  In connection with any exchange of Depositable Certificates for Exchangeable Certificates or Exchangeable Certificates for Depositable Certificates the Certificate Registrar shall reduce the outstanding Certificate Balance or Notional Amount of such Depositable Certificates or Exchangeable Certificates, as applicable, on the Certificate Registrar and shall increase the outstanding amount of related Exchangeable Certificates or Depositable Certificates, respectively, on the Certificate Registrer.


 




(g) Exchangeable Certificates shall be exchangeable on the books of DTC for Depositable Certificates, and Depositable Certificates shall be exchangeable on the books of DTC for Exchangeable Certificates, on and after the Closing Date, by notice to the Paying Agent substantially in the form of Exhibit [L] (exchange of Depositable Certificates for Exchangeable Certificates) or Exhibit [M] (exchange of Exchangeable Certificates for Depositable Certificates) hereto, as applicable or, under the terms and conditions set forth herein.





 


(h) In order to effect an exchange of Certificates, the Certificateholder shall notify the Paying Agent in writing or by e-mail at [____]@[__].com no later than two Business Days before the proposed exchange date.  The exchange date with respect to the Certificates may be any Business Day from and including the 25th calendar day of the month to and including the second to last Business Day of that month subject to the Paying Agent’s approval.  The notice must be on the Certificateholder’s letterhead, carry a medallion stamp guarantee and set forth the following information: the CUSIP number of each Certificate to be exchanged and each Certificate to be received; outstanding Class Principal Balance or Notional Amount, as applicable, and the initial Class Principal Balance or Notional Amount, as applicable, of the Certificate to be exchanged, the Certificateholder’s DTC participant number; and the proposed exchange date.  After receiving the notice, the Paying Agent shall e-mail the Certificateholder with wire payment instructions relating to the exchange fee.  A notice becomes irrevocable on the second Business Day before the proposed exchange date.  Notwithstanding any other provision herein set forth, a fee of $[____] shall be payable to the Paying Agent in connection with each exchange.









  





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(i) The Paying Agent shall make the first distribution on an Exchangeable Certificate or an Depositable Certificate received in an exchange transaction on the Distribution Date in the month following the month of the exchange to the Certificateholder of record as of the close of business on the last day of the calendar month of the exchange.


 


(j) The Holders of each Class of Exchangeable Certificates shall be entitled to exercise voting rights under this Agreement in direct proportion to the voting rights of the related Class or Classes of Depositable Certificates.


 


ARTICLE IV


 


ADVANCES


 


P&I Advances and Servicing Advances shall be made as provided herein by the Master Servicer and, if the Master Servicer does not make such Advances, by the Trustee, except to the extent that the Master Servicer or the Trustee determines in accordance with Section 4.4 below, that any such Advance would be a Nonrecoverable Advance.


 


Section 4.1 P&I Advances by the Master Servicer


 


(a) On or prior to the Advance Report Date, the Master Servicer shall notify the Trustee and the Paying Agent if the P&I Advance Amount for such Distribution Date is greater than zero, and the Master Servicer shall only make a P&I Advance in respect of each Mortgage Loan of such amount on the Master Servicer Remittance Date.  It is understood that the obligation of the Master Servicer to make such P&I Advances is mandatory and shall apply through any court appointed stay period or similar payment delay resulting from any insolvency of the Mortgagor or related bankruptcy.  Notwithstanding the foregoing, the Master Servicer shall not be required to make such P&I Advance, if the Master Servicer determines, in accordance with Section 4.4 below, that any such P&I Advance would be a Nonrecoverable Advance and shall not make such P&I Advance if such P&I Advance, if made, would be a Nonrecoverable Advance as determined by the Special Servicer in accordance with the Servicing Standard and the Special Servicer has notified the Master Servicer of such determination not later than 24 hours (and on a Business Day) prior to the date on which the Master Servicer would


 


 




  





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be required to make such P&I Advance in the absence of a recoverability determination.  Such determination shall be conclusive and binding on the Trustee and the Certificateholders.  The Master Servicer and the Trustee shall not advance default interest, Balloon Payments or Prepayment Premiums.  None of the Master Servicer or the Trustee shall advance any amount due to be paid by the Swap Counterparty for distribution to the Class [A-3-1FL] Certificates in the event that the Swap Counterparty fails to make a required payment.  If the Swap Counterparty fails to make a required payment pursuant to the Swap Contract, the Trustee shall, on the date on which such payment is due and not made, promptly notify the Swap Counterparty and the related Credit Support Provider (as such term is defined in the Swap Contract) of such failure, including the amount of any payment required to be made by the Swap Counterparty.


 


(b) No Special Servicer shall make P&I Advances under this Agreement or advances of any amount due to be paid by the Swap Counterparty for distribution to the Class [A-3-1FL] Certificates in the event that the Swap Counterparty fails to make a required payment.  If the Master Servicer fails to make a P&I Advance that it is required to make under this Section 4.1, it shall promptly notify the Trustee and the Paying Agent of such failure.


 


(c) If the Master Servicer determines that there is a P&I Advance Amount with respect to its applicable Mortgage Loans for a Distribution Date, the Master Servicer shall on the Master Servicer Remittance Date either (A) deposit in the applicable Certificate Account an amount equal to the P&I Advance Amount or (B) utilize funds in such Certificate Account being held for future distributions or withdrawals to make such Advance.  Any funds being held in a Certificate Account for future distribution or withdrawal and so used shall be replaced by the Master Servicer from its own funds by deposit in such Certificate Account on or before any future Master Servicer Remittance Date to the extent that funds in such Certificate Account on the Master Servicer Remittance Date shall be less than payments to the Paying Agent or other Persons required to be made on such date.


 


Section 4.2 Servicing Advances


 


The Master Servicer and, if the Master Servicer does not, the Trustee to the extent the Trustee receives written notice from the Paying Agent that such Advance has not been made by the Master Servicer shall make Servicing Advances to the extent provided in this Agreement, except to the extent that the Master Servicer or the Trustee, as applicable, determines in accordance with Section 4.4 below, that any such Advance would be a Nonrecoverable Advance.  If the Master Servicer or the Trustee, as applicable, determines that such advance would constitute a Nonrecoverable Advance, then such party shall promptly deliver notice of such determination to the Special Servicer.  Upon receipt of such notice, the Special Servicer shall determine (with the reasonable assistance of the Master Servicer or the Trustee, as applicable) whether the payment of such amount is (i) necessary to preserve the related Mortgaged Property and (ii) would be in the best interest of the Certificateholders.  If the Special Servicer shall determine that the payment of such amount is (i) necessary to preserve the related Mortgaged Property and (ii) would be in the best interest of the Certificateholders, then the Special Servicer shall direct the Master Servicer or the Trustee, as applicable, in writing to make such payment and such party shall make such payment from amounts in the Certificate Account.  Such determination by the Master Servicer or the Special Servicer shall be conclusive and binding on the Trustee and the Certificateholders.  The Special Servicer shall not be required to make


 









  





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Servicing Advances under this Agreement, but may make such Servicing Advances at its option in which event the Master Servicer shall reimburse the Special Servicer within 5 Business Days of receipt of a statement therefor sent to the Master Servicer at the Master Servicer’s Contact Numbers.  The Special Servicer shall notify the Master Servicer that a Servicing Advance is required in connection with a Specially Serviced Mortgage Loan or REO Property, and the Master Servicer shall make such Servicing Advance within five Business Days of receipt of such notice.  In addition, the Special Servicer shall provide the Master Servicer or the Trustee with such information in its possession as the Master Servicer or the Trustee may reasonably request to enable the Master Servicer or the Trustee, as applicable, to determine whether a requested Servicing Advance would constitute a Nonrecoverable Advance.  Any request by the Special Servicer that the Master Servicer make a Servicing Advance shall be deemed to be a determination by the Special Servicer that such requested Servicing Advance is not a Nonrecoverable Advance and the Master Servicer shall be entitled to conclusively rely on such determination; provided, that the determination shall not be binding on the Master Servicer or the Trustee.  The Master Servicer or Special Servicer may update or change its recoverability determinations at any time (but not reverse the other Master Servicer or Special Servicer’s determination that an Advance is a Nonrecoverable Advance).  Promptly after discovering that the Master Servicer has failed to make a Servicing Advance that the Master Servicer is required to make hereunder, the Paying Agent shall promptly notify the Trustee in writing of the failure by the Master Servicer to make such Servicing Advance.


 


Section 4.3 Advances by the Trustee


 


(a) To the extent that the Master Servicer fails to make a P&I Advance by the Master Servicer Remittance Date (other than a P&I Advance that the Master Servicer determines is a Nonrecoverable Advance), the Trustee shall make such P&I Advance to the extent the Trustee receives written notice from the Paying Agent not later than [10:00] a.m. (New York City time) on the Distribution Date that such Advance has not been made by the Master Servicer on the Master Servicer Remittance Date unless the Trustee determines that such P&I Advance, if made, would be a Nonrecoverable Advance.  To the extent the Trustee is required hereunder to make P&I Advances on the Mortgage Loans, it shall remit the amount thereof to the Paying Agent for deposit in the Distribution Account by [1:00] p.m. (New York City time) on each such Distribution Date.  The Paying Agent shall notify the Trustee in writing as soon as practicable, but not later than [10:00] a.m. (New York City time) on the Distribution Date if the Master Servicer has failed to make a P&I Advance.


 


(b) To the extent that the Master Servicer fails to make a Servicing Advance by the date such Servicing Advance is required to be made (other than a Servicing Advance that the Master Servicer or the Special Servicer determines is a Nonrecoverable Advance), and a Responsible Officer of the Trustee receives notice thereof, the Trustee shall make such Servicing Advance promptly, but in any event, not later than five Business Days after notice thereof in accordance with Section 4.2, unless the Trustee determines that such Servicing Advance, if made, would be a Nonrecoverable Advance. If the Trustee determines that such advance would constitute a Nonrecoverable Advance, then the Trustee shall deliver notice of such determination to the Special Servicer.  Upon receipt of such notice, the Special Servicer shall determine (with the reasonable assistance of the Trustee) whether the payment of such amount is (i) necessary to preserve the related Mortgaged Property and (ii) would be in the best interest of the


 


 




  





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Certificateholders.  If the Special Servicer shall determine that the payment of such amount is (i) necessary to preserve the related Mortgaged Property and (ii) would be in the best interest of the Certificateholders, then the Special Servicer shall direct the Paying Agent in writing to make such payment and the Paying Agent shall make such payment from amounts in the Distribution Account.


 


Section 4.4 Evidence of Nonrecoverability


 


If the Master Servicer or the Special Servicer determines at any time, in its sole discretion, exercised in accordance with the Servicing Standard, that any Advance previously made (or Unliquidated Advance in respect thereof) or any proposed Advance, if made, would constitute a Nonrecoverable Advance, such determination shall be evidenced by an Officer’s Certificate delivered to the Trustee, the Master Servicer or the Special Servicer, the Paying Agent, the Operating Adviser and the Rating Agencies promptly upon making such determination, but in no event later than the Business Day following the date of such determination.  Such Officer’s Certificate shall set forth the reasons for such determination of nonrecoverability, together with, to the extent such information, report or document is in the Master Servicer’s or the Special Servicer’s possession, any related financial information such as related income and expense statements, rent rolls (with respect to mortgaged properties other than residential cooperative properties), occupancy status, property inspections and any Appraisals performed within the last 12 months on the Mortgaged Property, and, if such reports are used by the Master Servicer or the Special Servicer to determine that any P&I Advance or Servicing Advance, as applicable, would be a Nonrecoverable Advance, any engineers’ reports, environmental surveys, internal final valuations or other information relevant thereto which support such determination.  If the Trustee determines at any time, in its sole discretion, exercised in good faith, that any portion of an Advance previously made or a portion of a proposed Advance that the Trustee is required to make pursuant to this Agreement, if made, would constitute a Nonrecoverable Advance, such determination shall be evidenced by an Officer’s Certificate of a Responsible Officer of the Trustee, delivered to the Depositor, the Master Servicer, the Special Servicer, the Paying Agent and the Operating Adviser similar to the Officer’s Certificate of the Master Servicer or the Special Servicer described in the prior sentence.  The Trustee shall not be required to make an Advance that the Master Servicer or the Special Servicer has previously determined to be a Nonrecoverable Advance.  Notwithstanding any other provision of this Agreement, none of the Master Servicer, the Special Servicer or the Trustee shall be obligated to, nor shall it, make any Advance or make any payment that is designated in this Agreement to be an Advance, if the Trustee determines in its good faith business judgment and, with respect to the Master Servicer or the Special Servicer, in accordance with the Servicing Standard, that such Advance or such payment (including interest accrued thereon at the Advance Rate) would be a Nonrecoverable Advance.  Absent bad faith, the Master Servicer’s determination as to the nonrecoverability of any Advance shall be conclusive and binding on the Certificateholders and may, in all cases, be relied on by the Trustee; provided, however, that the Special Servicer may, at its option, make a determination in accordance with the Servicing Standard that any P&I Advance or Servicing Advance, if made, would be a Nonrecoverable Advance and shall deliver to the Master Servicer and the Trustee notice of such determination; provided, further, however, the Special Servicer shall have no right to make an affirmative determination that any P&I Advance is or would be recoverable and, in the absence of a determination by the Special Servicer that such Advance is or would be a Nonrecoverable


 









  





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Advance, the decision that a P&I Advance is recoverable shall remain with the Master Servicer or Trustee, as applicable.  Absent bad faith, such determination by the Special Servicer shall be conclusive and binding on the Certificateholders, the Master Servicer and the Trustee.  The Master Servicer shall consider Unliquidated Advances in respect of prior P&I Advances and Servicing Advances as outstanding Advances for purposes of nonrecoverability determinations as if such Unliquidated Advance were a P&I Advance or Servicing Advance, as applicable.


 


Section 4.5 Interest on Advances; Calculation of Outstanding Advances with Respect to a Mortgage Loan


 


Any unreimbursed Advance funded from the Master Servicer’s, the Special Servicer’s or the Trustee’s own funds shall accrue interest on a daily basis, at a per annum rate equal to the Advance Rate, from and including the date such Advance was made to but not including the date on which such Advance has been reimbursed; provided, however, that neither the Master Servicer nor any other party shall be entitled to interest accrued on the amount of any P&I Advance with respect to any Mortgage Loan for the period commencing on the date of such P&I Advance and ending on the day on which the grace period applicable to the related Mortgagor’s obligation to make the related Scheduled Payment expires pursuant to the related Mortgage Loan documents but shall be entitled to interest on such Advance at the Advance Rate to the extent the Scheduled Payment remains outstanding beyond the expiration of the grace period.  In addition, no Master Servicer shall be entitled to interest on any particular P&I Advance (or portion thereof) made thereby to the extent a payment (or portion thereof) is received but is being held by or on behalf of the Master Servicer in connection with any dispute, claim or offset.  For purposes of determining whether a P&I Advance is outstanding, amounts collected with respect to a particular Mortgage Loan or a particular REO Property and treated as collections of principal or interest shall be applied first to reimburse the earliest P&I Advance and then each succeeding P&I Advance to the extent not inconsistent with Section 4.6.  The Master Servicer shall use efforts consistent with the Servicing Standard to collect (but shall have no further obligation to collect), with respect to the Mortgage Loans that are not Specially Serviced Mortgage Loans, Late Fees and default interest from the Mortgagor in an amount sufficient to pay Advance Interest incurred and unpaid with respect to such Mortgage Loan arising on or after the Cut-off Date.  The Master Servicer shall be entitled to retain Late Fees and default interest paid by any Mortgagor during a Collection Period with respect to any Mortgage Loan (other than the portion of such Late Fees and default interest that relates to the period commencing after the Servicing Transfer Event in respect of a Specially Serviced Mortgage Loan, as to which the Special Servicer shall retain Late Fees and default interest with respect to such Specially Serviced Mortgage Loan, subject to the offsets set forth below) as additional servicing compensation only to the extent such Late Fees and default interest with respect to such Mortgage Loan (x) exceed unreimbursed Additional Trust Fund Expenses and Advance Interest with respect to such Mortgage Loan arising on or after the Cut-off Date and (y) are not used to pay Special Servicing Fees, Liquidation Fees and Workout Fees accrued with respect to such Collection Period on such Mortgage Loan.  The Special Servicer, with respect to any Specially Serviced Mortgage Loan, shall (i) pay from any Late Fees and default interest collected from such Specially Serviced Mortgage Loan (a) any outstanding and unpaid Advance Interest payable with respect to such Specially Serviced Mortgage Loan to the Master Servicer, the Special Servicer or the Trustee, as applicable, and (b) to the Trust, any losses previously incurred by the Trust with respect to such Specially Serviced Mortgage Loan (other than the related


 









  





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Special Servicing Fees) and (ii) retain any remaining portion of such Late Fees and default interest as additional Special Servicer Compensation.  It is hereby acknowledged that the Master Servicer may only waive Late Fees and default interest to the extent set forth in Section 8.3(a).


 


Section 4.6 Reimbursement of Advances and Advance Interest


 


(a) Advances made with respect to each Mortgage Loan or Specially Serviced Mortgage Loan or REO Property (including Advances later determined to be Nonrecoverable Advances) and Advance Interest thereon shall be reimbursed to the extent of the amounts identified to be applied therefor in Section 5.2.  The aggregate of the amounts available to repay Advances and Advance Interest thereon pursuant to Section 5.2 collected in any Collection Period with respect to Mortgage Loans or Specially Serviced Mortgage Loans or REO Property shall be an “Available Advance Reimbursement Amount.”


 


(b) To the extent that Advances have been made on the Mortgage Loans, any Specially Serviced Mortgage Loans or any REO Mortgage Loans, the Available Advance Reimbursement Amount with respect to any Determination Date shall be applied to reimburse (i) the Trustee for any Advances outstanding to the Trustee with respect to any of such Mortgage Loans, any of such Specially Serviced Mortgage Loans or REO Mortgage Loans, plus any Advance Interest owed to the Trustee with respect to such Advances and then (ii) the Master Servicer and the Special Servicer for any Advances outstanding to the Master Servicer or the Special Servicer, as the case may be, with respect to any of such Mortgage Loans, any of such Specially Serviced Mortgage Loans or REO Mortgage Loans, plus any Advance Interest owed to the Master Servicer or the Special Servicer with respect to such Advances.  To the extent that any Advance Interest payable to the Master Servicer, the Special Servicer or the Trustee with respect to a Specially Serviced Mortgage Loan or REO Mortgage Loan cannot be recovered from the related Mortgagor, the amount of such Advance Interest shall be payable to the Trustee, the Master Servicer or the Special Servicer, as the case may be, from amounts on deposit in the applicable Certificate Account (or sub-account thereof) (or, if not available from such Certificate Account, the other Certificate Account) or the Distribution Account pursuant to Section 5.2(a) or Section 5.3(b)(ii), to the extent of amounts identified to be applied thereunder.  The Master Servicer’s, the Special Servicer’s and the Trustee’s right of reimbursement under this Agreement for Advances and interest thereon shall be prior to the rights of the Certificateholders to receive any amounts recovered with respect to such Mortgage Loans or REO Mortgage Loans.


 


(c) Advance Interest arising on or after the Cut-off Date and not previously paid with respect to any Mortgage Loan will be paid to the Trustee, the Special Servicer and/or the Master Servicer (in accordance with the priorities specified in the preceding paragraph) first, from Late Fees and default interest collected with respect to such Mortgage Loan during the Collection Period, and then from Excess Liquidation Proceeds then available prior to payment from any other amounts.  Late Fees and default interest will be applied on a “loan-by-loan basis” (under which Late Fees and default interest with respect to a Mortgage Loan will be offset against the Advance Interest incurred and unpaid with respect to such Mortgage Loan arising on or after the Cut-off Date).


 


(d) To the extent that the Special Servicer incurs out-of-pocket expenses, in accordance with the Servicing Standard, in connection with servicing Specially Serviced


 









  





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Mortgage Loans, the Master Servicer shall, subject to Section 4.4, reimburse the Special Servicer for such expenditures on the next succeeding Master Servicer Remittance Date, provided the Special Servicer has delivered, on or before the related Determination Date, an invoice and a report substantiating such expenses from the Special Servicer requesting such reimbursement.  All such amounts paid by the Special Servicer and reimbursed by the Master Servicer shall be a Servicing Advance.  In the event that the Master Servicer fails to reimburse the Special Servicer hereunder or the Master Servicer determines that such Servicing Advance was or, if made, would be a Nonrecoverable Advance and the Master Servicer does not make such payment, the Special Servicer shall notify the Master Servicer and the Paying Agent in writing of such nonpayment and the amount payable to the Special Servicer and shall be entitled to receive reimbursement from the Trust as an Additional Trust Expense.  The Master Servicer, the Paying Agent and the Trustee shall have no obligation to verify the amount payable to the Special Servicer pursuant to this Section 4.6(d) and circumstances surrounding the notice delivered by the Special Servicer pursuant to this Section 4.6(d).


 


ARTICLE V


 


ADMINISTRATION OF THE TRUST


 


Section 5.1 Collections


 


(a) On or prior to the Closing Date, the Master Servicer shall open, or cause to be opened, and shall thereafter maintain, or cause to be maintained, a separate account or accounts, which accounts must be Eligible Accounts, in the name of “_______, as Master Servicer for _______, as Trustee for the Holders of Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 20__-__” (collectively, or individually, as the case may be the “Certificate Account”).  On or prior to the Closing Date, the Master Servicer shall open, or cause to be opened, and shall maintain, or cause to be maintained an additional separate account or accounts in the name of “_______, as Master Servicer for _______, as Trustee for the Holders of Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 20__-__” (collectively, or individually, as the case may be, the “Interest Reserve Account”).


 


(b) On or prior to the date the Master Servicer shall initially deposit funds in a Certificate Account or an Interest Reserve Account, as the case may be, the Master Servicer shall give to the Paying Agent and the Trustee prior written notice of the name and address of the depository institution(s) at which such accounts are maintained and the account number of such accounts.  The Master Servicer shall take such actions as are necessary to cause any depository institution holding a Certificate Account and an Interest Reserve Account to hold such accounts in the name of the Master Servicer as provided in Section 5.1(a), subject to the Master Servicer’s (or its Primary Servicer’s or its Sub-Servicer’s) right to direct payments and investments and its rights of withdrawal under this Agreement.


 


(c) The Master Servicer shall deposit, or cause to be deposited, into its Certificate Account on the Business Day following receipt (or, in the case of an inadvertent failure to make such deposit on the Business Day following receipt, within 3 Business Days of discovery of such failure and in the case of unscheduled remittances of principal or interest, on


 









  





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the Business Day following identification of the proper application of such amounts), the following amounts received by it (including amounts remitted to the Master Servicer by the Special Servicer from the applicable REO Account pursuant to Section 9.14 and amounts received from the Primary Servicers or Sub-Servicers), other than amounts received by it in respect of interest and principal on the Mortgage Loans due on or before the Cut-Off Date which shall be remitted to the applicable Seller (provided that the Master Servicer (I) may retain amounts otherwise payable to the Master Servicer as provided in Section 5.2(a) rather than deposit them into such Certificate Account, (II) shall, rather than deposit them in the Certificate Account, directly remit to the Primary Servicers the applicable Primary Servicing Fees payable as provided in Section 5.2(a)(iv) (unless already retained by the applicable Primary Servicer), and (III) shall, rather than deposit them in a Certificate Account, directly remit the Excess Servicing Fees to the holders thereof as provided in Section 5.2(a)(iv) (unless already retained by the applicable holder of the excess servicing rights)):


 


(A) Principal:  all payments on account of principal, including Principal Prepayments, the principal component of Scheduled Payments, and any Late Collections in respect thereof, on the Mortgage Loans;


 


(B) Interest:  all payments on account of interest on the Mortgage Loans (including Excess Interest, which shall be payable only to the Class [EI] Certificateholders, in each case as provided herein, and excluding Interest Reserve Amounts to be deposited in the applicable Interest Reserve Account pursuant to Section 5.1(d) below);


 


(C) Liquidation Proceeds:  all Liquidation Proceeds with respect to the Mortgage Loans;


 


(D) Insurance Proceeds:  all Insurance Proceeds other than proceeds to be applied to the restoration or repair of the property subject to the related Mortgage or released to the related Mortgagor in accordance with the Servicing Standard, which proceeds shall be deposited by the Master Servicer into the applicable Escrow Account and not deposited in the Certificate Accounts;


 


(E) Condemnation Proceeds:  all Condemnation Proceeds other than proceeds to be applied to the restoration or repair of the property subject to the related Mortgage or released to the related Mortgagor in accordance with the Servicing Standard, which proceeds shall be deposited by the Master Servicer into the applicable Escrow Account and not deposited in the Certificate Accounts;


 


(F) REO Income:  all REO Income received from the Special Servicer;


 


(G) Investment Losses:  any amounts required to be deposited by the Master Servicer pursuant to Section 5.1(e) in connection with losses realized on Eligible Investments with respect to funds held in the Certificate Accounts and amounts required to be deposited by the Special Servicer pursuant to Section 9.14(b) in connection with losses realized on Eligible Investments with respect to funds held in the REO Accounts;


 









  





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(H) Advances:  all P&I Advances unless made directly to the Distribution Account;


 


(I) Compensating Interest:  all Compensating Interest received with respect to the Mortgage Loans; and


 


(J) Other:  all other amounts, including Prepayment Premiums, required to be deposited in the Certificate Accounts pursuant to this Agreement, including, but not limited to, Purchase Proceeds of any Mortgage Loans repurchased by a Seller or the maker of a representation and warranty with respect to any Mortgage Loan or substitution shortfall amounts (as described in the ninth paragraph of Section 2.3(a)) paid by a Seller in connection with the substitution of any Qualifying Substitute Mortgage Loans, any payments or recoveries in respect of Unliquidated Advances or in respect of Nonrecoverable Advances paid from principal collections on the Mortgage Loans pursuant to Section 5.2(a)(II).


 


Remittances from any REO Accounts to the Master Servicer for deposit in the applicable Certificate Accounts shall be made by the Special Servicer no later than the Special Servicer Remittance Date.


 


(d) The Master Servicer, with respect to each Distribution Date occurring in January (other than in any leap year) and February of each year, shall deposit in the applicable Interest Reserve Account in respect of each related Interest Reserve Loan, an amount equal to one day’s interest at the related REMIC I Net Mortgage Rate, as applicable (without regard to the provisos in the definition of Adjusted Mortgage Rate), on the Scheduled Principal Balance of such Mortgage Loan as of the Due Date in the month in which such Distribution Date occurs, to the extent a Scheduled Payment or P&I Advance is timely made in respect thereof for such Due Date (all amounts so deposited in any consecutive January and February in respect of each Interest Reserve Loan, the “Interest Reserve Amount”).


 


(e) Funds in the Certificate Accounts and Interest Reserve Accounts may be invested and, if invested, shall be invested by, and at the risk of, the Master Servicer in Eligible Investments selected by the Master Servicer which shall mature, unless payable on demand, not later than the Business Day immediately preceding the next Master Servicer Remittance Date, and any such Eligible Investment shall not be sold or disposed of prior to its maturity unless payable on demand.  All such Eligible Investments shall be made in the name of “_______, as Trustee for the Holders of the Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 20__-____.”  None of the Depositor, the Mortgagors, the Paying Agent or the Trustee shall be liable for any loss incurred on such Eligible Investments.


 


An amount equal to all income and gain realized from any such investment shall be paid to the Master Servicer as additional servicing compensation and shall be subject to its withdrawal at any time from time to time.  The amount of any losses incurred in respect of any such investments shall be for the account of the Master Servicer which shall deposit the amount of such loss (to the extent not offset by income from other investments) in the applicable Certificate Account or applicable Interest Reserve Account, as the case may be, out of its own funds immediately as realized.  No Master Servicer shall be liable for any losses incurred in


 









  





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respect of any account which is not controlled by the Master Servicer or any losses with respect to a default on an Eligible Investment.  If the Master Servicer deposits in or transfers to any Certificate Account or any Interest Reserve Account, as the case may be, any amount not required to be deposited therein or transferred thereto, it may at any time withdraw such amount or retransfer such amount from such Certificate Account or Interest Reserve Account, as the case may be, any provision herein to the contrary notwithstanding.


 


(f) Except as expressly provided otherwise in this Agreement, if any default occurs in the making of a payment due under any Eligible Investment, or if a default occurs in any other performance required under any Eligible Investment, the Paying Agent on behalf of and at the direction of the Trustee may take such action as may be appropriate to enforce such payment or performance, including the institution and prosecution of appropriate proceedings; provided, however, that if the Master Servicer shall have deposited in the applicable Certificate Account and the Interest Reserve Account an amount equal to all amounts due under any such Eligible Investment (net of anticipated income or earnings thereon that would have been payable to the Master Servicer as additional servicing compensation) the Master Servicer shall have the sole right to enforce such payment or performance.


 


(g) Certain of the Mortgage Loans may provide for payment by the Mortgagor to the Master Servicer of amounts to be used for payment of Escrow Amounts for the account of the Mortgagor.  The Master Servicer shall deal with these amounts in accordance with the Servicing Standard, the terms of the related Mortgage Loans and Section 8.3(e) hereof, and the Primary Servicers will hold any Escrow Accounts relating to the Mortgage Loans that they service in accordance with the requirements set forth in Section 8.3(e).


 


Section 5.2 Application of Funds in the Certificate Accounts and Interest Reserve Accounts


 


(a) Subsection (I).  The Master Servicer shall, from time to time, make withdrawals from the applicable Certificate Accounts and remit them by wire transfer prior to 2:00 p.m., New York City time, on the related Master Servicer Remittance Date, in immediately available funds to the account specified in this Section or otherwise (x) to such account as each shall determine from time to time of amounts payable to the Master Servicer from the applicable Certificate Account pursuant to clauses (i), (ii), (iii), (iv), (vi), (viii) and (ix) below; (y) to the account specified in writing by the Paying Agent from time to time of amounts payable to the Paying Agent and the Trustee from the applicable Certificate Account pursuant to clauses (ii), (iii), (v), (vi), (xi), (xii) and (xiii) below; and (z) to the Special Servicer from time to time of amounts payable to the Special Servicer from the applicable Certificate Account pursuant to clauses (i), (ii), (iv), (vi), (vii) and (ix) below of the following amounts, from the amounts specified for the following purposes:


 


(i) Fees:  The Master Servicer shall pay (A) to itself Late Fees (in excess of amounts used to pay Advance Interest) relating to Mortgage Loans which are not Specially Serviced Mortgage Loans, [100%] of any Modification Fees relating to Mortgage Loans which are not Specially Serviced Mortgage Loans as provided in Section 8.18(b), [100%] of assumption application fees relating to Mortgage Loans that are not Specially Serviced Mortgage Loans, [50%] of any assumption fees relating to


 









  





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Mortgage Loans which are not Specially Serviced Mortgage Loans that require Special Servicer approval or [100%] of any assumption fees relating to Mortgage Loans which are not Specially Serviced Mortgage Loans that, with respect to the assignment, assumption or substitution (a) the consent of the Special Servicer was not required or (b) is “expressly permitted” pursuant to the terms of the related Mortgage Loan as payable under Section 8.7(a) or 8.7(d), [100%] of any extension fees payable under Section 8.10 or other fees payable to each the Master Servicer hereunder; provided that any such fees described in (A) hereof shall be divided between the Master Servicer and any related Primary Servicer as set forth in the applicable Primary Servicing Agreement and (B) directly to the Special Servicer, [50%] of any assumption fees on Mortgage Loans which are not Specially Serviced Mortgage Loans and for which with respect to the assignment, assumption or substitution (a) the consent of the Special Servicer was required or (b) is not “expressly permitted” pursuant to the terms of the related Mortgage Loan as payable under Section 8.7(a) or 8.7(d) and, to the extent deposited into a Certificate Account, all assumption fees (including assumption application fees) relating to Specially Serviced Mortgage Loans and, to the extent provided in Section 9.11(c), Late Fees, Modification Fees and other fees collected on Specially Serviced Mortgage Loans, in each case to the extent provided for herein from funds paid by or on behalf of the applicable Mortgagor and, to the extent provided in Section 9.11(c), default interest (in excess of Advance Interest arising only from that particular Specially Serviced Mortgage Loan for which the Late Fees or default interest were collected);


 


(ii) Servicing Advances (including amounts later determined to be Nonrecoverable Advances): in the case of all Mortgage Loans, subject to subsection (iv) of Section 5.2(a)(II) below, to reimburse or pay to the Master Servicer, the Special Servicer and the Trustee, pursuant to Section 4.6, (x) prior to a Final Recovery Determination or determination in accordance with Section 4.4 that any Servicing Advance is a Nonrecoverable Advance, Servicing Advances on the related Mortgage Loan from payments made by or on behalf of the related Mortgagor of the amounts to which a Servicing Advance relates or from REO Income from the related REO Property or from Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds or Purchase Proceeds and, to the extent that a Servicing Advance has been or is being reimbursed, any related Advance Interest thereon first, from Late Fees and default interest collected during the Collection Period, and then from Excess Liquidation Proceeds then available and then from any other amounts on deposit in the applicable Certificate Account (or, if not available from such Certificate Account, the other Certificate Account); provided that Late Fees and default interest will be applied on a “loan by loan basis” (under which Late Fees and default interest paid with respect to each Mortgage Loan, will be offset against the Advance Interest incurred and unpaid with respect to the particular Mortgage Loan, on or after the Cut Off Date), to the payment of Advance Interest incurred on or after the Cut Off Date and unpaid on all Advances on such Mortgage Loan; provided, further, that if both the Master Servicer and the Special Servicer have outstanding Servicing Advances at the same time, because the Master Servicer did not reimburse the Special Servicer for such Servicing Advance as provided in Section 4.3 hereof, and amounts on deposit in the Certificate Account are not sufficient to reimburse both such Servicing Advances with interest thereon, then such Servicing Advance with respect to the subject Mortgage Loan made by the Special Servicer shall be reimbursed first until paid in full or (y) after a Final


 









  





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Recovery Determination or determination that any Servicing Advance on the related Mortgage Loan is a Nonrecoverable Advance, any Servicing Advances made on the related Mortgage Loan or REO Property from any funds on deposit in the applicable Certificate Account (or, if not available from such Certificate Account, the other Certificate Account) (regardless of whether such amount was recovered from the applicable Mortgage Loan or REO Property) and pay Advance Interest thereon first, from Late Fees and default interest collected during the Collection Period (applying such Late Fees and default interest on a “loan by loan basis” to the payment of Advance Interest incurred and unpaid on all Advances on such Mortgage Loan arising on or after the Cut Off Date), then from Excess Liquidation Proceeds then available and then from any other amounts on deposit in the applicable Certificate Account (notwithstanding anything herein to the contrary the Master Servicer shall reimburse itself or such other party pursuant to Section 4.4(b));


 


(iii) P&I Advances (including amounts later to be determined to be Nonrecoverable Advances):  in the case of the Mortgage Loans, subject to subsection (iv) of Section 5.2(a)(II) below, to reimburse or pay to the Master Servicer and the Trustee, pursuant to Section 4.6, (x) if prior to a Final Recovery Determination or determination that any Advance is a Nonrecoverable Advance, any P&I Advances from Late Collections made by the Mortgagor of the amounts to which a P&I Advance relates, or REO Income from the related REO Property or from Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds or Purchase Proceeds allocable to the related Mortgage Loan and, to the extent that a P&I Advance has been or is being reimbursed, any related Advance Interest thereon, first, from Late Fees and default interest collected during the Collection Period and allocable to such Mortgage Loan, and then from Excess Liquidation Proceeds then available and then from any other amounts on deposit in the applicable Certificate Account (or, if not available from such Certificate Account, the other Certificate Account); provided that Late Fees and default interest will be applied on a “loan-by-loan basis” (under which Late Fees and default interest paid with respect to each Mortgage Loan will be offset against the Advance Interest incurred and unpaid with respect to the particular Mortgage Loan on or after the Cut-Off Date) or (y) if after a Final Recovery Determination or determination in accordance with Section 4.4 that any P&I Advance on the related Mortgage Loan is a Nonrecoverable Advance, for any Mortgage Loan, any P&I Advances made on the related Mortgage Loan or REO Property from any funds on deposit in the applicable Certificate Account (or, if not available from such Certificate Account, the other Certificate Account) (regardless of whether such amount was recovered from the applicable Mortgage Loan or REO Property) and any Advance Interest thereon, first, from Late Fees and default interest collected during the Collection Period allocable to such Mortgage Loan (applying such Late Fees and default interest on a “loan-by-loan basis,” to the payment of Advance Interest incurred and unpaid on all Advances on such Mortgage Loan incurred on or after the Cut-Off Date), then from Excess Liquidation Proceeds then available and then from any other amounts on deposit in the applicable Certificate Account (or, if not available from such Certificate Account, the other Certificate Account);


 


(iv) Servicing Fees and Special Servicer Compensation:  to pay to itself the Master Servicing Fee, subject to reduction for any Compensating Interest, to pay to the


 









  





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Special Servicer the Special Servicing Fee and the Work-Out Fee and, if applicable, to pay to the Primary Servicers (or the Master Servicer) the Primary Servicing Fees and to pay to the parties entitled thereto the Excess Servicing Fees (to the extent not previously retained by any of such parties);


 


(v) Trustee Fee:  to pay to the Distribution Account for withdrawal by the Trustee, the Trustee Fee;


 


(vi) Expenses of Trust:  to pay to the Person entitled thereto any amounts specified herein to be Additional Trust Expenses at the time set forth herein or in the definition thereof, the payment of which is not more specifically provided for in this Agreement; provided that the Depositor shall not be entitled to receive reimbursement for performing its duties under this Agreement;


 


(vii) Liquidation Fees:  to pay to the Special Servicer from the applicable Certificate Accounts, the amount certified by the Special Servicer equal to the Liquidation Fee, to the extent provided in Section 9.11 hereof;


 


(viii) Investment Income:  to pay to itself income and gain realized on the investment of funds deposited in the applicable Certificate Accounts;


 


(ix) Prepayment Interest Excesses:  to pay to the Master Servicer the aggregate Prepayment Interest Excesses relating to the Mortgage Loans for which they act as Master Servicer which are not Specially Serviced Mortgage Loans, to the extent not offset by Prepayment Interest Shortfalls relating to such Mortgage Loans; and to pay to the Master Servicer the aggregate Prepayment Interest Excesses relating to the Specially Serviced Mortgage Loans for which they act as Master Servicer, which have received voluntary Principal Prepayments (not from Liquidation Proceeds or from modifications to Specially Serviced Mortgage Loans), to the extent not offset by Prepayment Interest Shortfalls relating to such Specially Serviced Mortgage Loans;


 


(x) Correction of Errors:  to withdraw funds deposited in the Certificate Accounts in error;


 


(xi) Distribution Account:  other than amounts held for payment in future periods or pursuant to clause (xii) below, to make payment on the Master Servicer Remittance Date of the remaining amounts in the applicable Certificate Accounts (excluding Excess Interest and Excess Liquidation Proceeds) into the Distribution Account (or in the case of any Excess Interest, deposit to the Excess Interest Sub-account), the obligation to make such payments to be offset by the amount of any Net Swap Payment, as set forth in Section 8.30(b) and Section 6.12;


 


(xii) Reserve Account:  to make payment on the Master Servicer Remittance Date to the Reserve Account, any Excess Liquidation Proceeds (subject to Section 4.6(c)); and


 









  





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(xiii) Clear and Terminate:  to clear and terminate the Certificate Accounts pursuant to Section 8.29.


 


Subsection (II).  The provisions of this subsection II of this Section 5.2(a) shall apply notwithstanding any contrary provision of subsection (I) of this Section 5.2(a):


 


(i) Identification of Workout-Delayed Reimbursement Amounts:  If any Advance made with respect to any Mortgage Loan on or before the date on which such Mortgage Loan becomes (or, but for the requirement that the Mortgagor shall have made three consecutive scheduled payments under its modified terms, would then constitute) a Rehabilitated Mortgage Loan, together with Advance Interest accrued thereon, is not, pursuant to the operation of the provisions of Section 5.2(a)(I), reimbursed to the Person who made such Advance on or before the date, if any, on which such Mortgage Loan becomes a Rehabilitated Mortgage Loan, such Advance, together with such Advance Interest, shall constitute a “Workout-Delayed Reimbursement Amount” to the extent that such amount has not been determined to constitute a Nonrecoverable Advance.  All references herein to “Workout-Delayed Reimbursement Amount” shall be construed always to mean the related Advance and any Advance Interest thereon, together with any further Advance Interest that accrues on the unreimbursed portion of such Advance from time to time in accordance with the other provisions of this Agreement.  That any amount constitutes all or a portion of any Workout-Delayed Reimbursement Amount shall not in any manner limit the right of any Person hereunder to determine that such amount instead constitutes a Nonrecoverable Advance.


 


(ii) General Relationship of Provisions:  Subsection (iii) below (subject to the terms and conditions thereof) sets forth the terms of and conditions to the right of a Person to be reimbursed for any Workout-Delayed Reimbursement Amount to the extent that such Person is not otherwise entitled to reimbursement and payment of such Workout-Delayed Reimbursement Amount pursuant to the operation of Section 5.2(a)(I) above.  Subsection (iv) below (subject to the terms and conditions thereof) authorizes the Master Servicer to abstain from reimbursing itself (or, if applicable, the Trustee to abstain from obtaining reimbursement) for Nonrecoverable Advances under certain circumstances in its sole discretion.  Upon any determination that all or any portion of a Workout-Delayed Reimbursement Amount constitutes a Nonrecoverable Advance, then the reimbursement or payment of such amount (and any further Advance Interest that may accrue thereon) shall cease to be subject to the operation of subsection (iii) below, such amount (and further Advance Interest) shall be as fully payable and reimbursable to the relevant Person as would any other Nonrecoverable Advance (and Advance Interest thereon) and, as a Nonrecoverable Advance, such amount may become the subject of the Master Servicer’s (or, if applicable, the Trustee’s) exercise of its sole discretion authorized by subsection (iv) below.


 


(iii) Reimbursements of Workout-Delayed Reimbursement Amounts:  The Master Servicer, the Special Servicer and the Trustee, as applicable, shall be entitled to reimbursement and payment for all Workout-Delayed Reimbursement Amounts in each Collection Period; provided, however, that the aggregate amount (for all such Persons collectively) of such reimbursements and payments in such Collection Period shall not


 









  





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exceed (and the reimbursement and payment shall be made from) the aggregate amounts in the Certificate Account allocable to principal for such Collection Period contemplated by clause (I)(A) of the definition of Principal Distribution Amount (but not including any such amounts that constitute Advances) and net of any Nonrecoverable Advances then outstanding and reimbursable from such amounts in the Certificate Account allocable to principal in accordance with Section 5.2(a)(II)(iv) below.  As and to the extent provided in clause (II)(A) of the definition thereof, the Principal Distribution Amount for the Distribution Date related to such Collection Period shall be reduced to the extent that such payment or reimbursement of a Workout-Delayed Reimbursement Amount is made from amounts in the Certificate Account allocable to principal pursuant to the preceding sentence.


 


(iv) Reimbursement of Nonrecoverable Advances; Sole Discretion to Abstain from Reimbursements of Certain Nonrecoverable Advances:  To the extent that Section 5.2(a)(I) otherwise entitles the Master Servicer, Special Servicer or Trustee to reimbursement for any Nonrecoverable Advance (including Workout Delayed Reimbursement Amounts that have been determined by the Master Servicer, Special Servicer or the Trustee to be Nonrecoverable Advances) (or payment of Advance Interest thereon from a source other than Late Fees and default interest on the related Mortgage Loan) during any Collection Period, then, notwithstanding any contrary provision of subsection (I) above, (a) to the extent that one or more such reimbursements and payments of Nonrecoverable Advances (and such Advance Interest thereon) are made, such reimbursements and payments shall be made, first, from the aggregate principal collections and recoveries on the Mortgage Loans for such Collection Period contemplated by clause (I)(A) of the definition of Principal Distribution Amount (but not including any such amounts that constitute Advances, and prior to any deduction for Workout-Delayed Reimbursement Amounts (and Advance Interest thereon) that were reimbursed or paid during the related Collection Period from principal collections on the Mortgage Loans, as described by clause (II)(A) of the definition of Principal Distribution Amount and pursuant to subsection (iii) of Section 5.2(a)(II)), and then from other collections (including interest) on the Mortgage Loans for such Collection Period, and (b) if and to the extent that the amount of such a Nonrecoverable Advance (and Advance Interest thereon), together with all Nonrecoverable Advances (and Advance Interest thereon) theretofore reimbursed during such Collection Period, would exceed such principal collections and recoveries on the Mortgage Loans for such Collection Period (and Advance Interest thereon), the Master Servicer (and the Special Servicer or the Trustee, as applicable, if it made the relevant Advance) is hereby authorized (but shall not be construed to have any obligation whatsoever), if it elects at its sole discretion (subject to the requirement below that the Master Servicer may not defer any reimbursement for more than 6 Collection Periods without the consent of the Operating Advisor), to abstain from reimbursing itself (notwithstanding that it is entitled to such reimbursement) during that Collection Period for all or a portion of such Nonrecoverable Advance (and Advance Interest thereon); provided, however, that no deferment shall be more than the amount by which the Nonrecoverable Advances (and Advance Interest thereon) exceed the amount of principal on collection in the Certificate Account.  The Master Servicer or the Special Servicer, in considering whether an Advance is a Nonrecoverable Advance, shall be entitled to give due regard to the existence of any outstanding Nonrecoverable Advance


 









  





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or Workout-Delayed Reimbursement Amount with respect to other Mortgage Loans which, at the time of such consideration, the reimbursement of which is being deferred or delayed by the Master Servicer, the Special Servicer or the Trustee because there is insufficient principal available for such reimbursement, in light of the fact that proceeds on the related Mortgage Loan are a source of reimbursement not only for the P&I Advance or Servicing Advance under consideration, but also as a potential source of reimbursement of such Nonrecoverable Advance or Workout-Delayed Reimbursement Amount which is or may be being deferred or delayed.  In connection with a potential election by the Master Servicer, Special Servicer or Trustee to abstain from the reimbursement of a particular Nonrecoverable Advance or portion thereof during the Collection Period for any Distribution Date, the Master Servicer (or the Special Servicer or the Trustee, as applicable) shall further be authorized to wait for principal collections to be received before making its determination of whether to abstain from the reimbursement of a particular Nonrecoverable Advance or portion thereof until the end of the Collection Period.  Notwithstanding the foregoing, the Master Servicer (or the Special Servicer or the Trustee, as applicable) may defer the above reimbursement for no more than 6 Collection Periods without the consent of the Operating Adviser and, in any event, 12 Collection Periods in the aggregate.  If the Master Servicer (or the Special Servicer or the Trustee, as applicable), determines, in its sole discretion, that its ability to fully recover the Nonrecoverable Advances has been compromised, then the Master Servicer (or the Special Servicer or the Trustee, as applicable) will be entitled to immediate reimbursement of such Nonrecoverable Advance plus interest thereon at the Advance Rate.  The agreement of the Master Servicer (or the Special Servicer or the Trustee, as applicable) to defer reimbursement of such Nonrecoverable Advances shall not be construed as an obligation on the part of the Master Servicer (or the Special Servicer or the Trustee, as applicable), or a right of the Certificateholders.  No such deferment shall be deemed to create in the Certificateholders a right to prior payment of distributions over the Master Servicer’s, Special Servicer’s or the Trustee’s right to reimbursement for Advances.  Deferred Advances shall continue to earn interest at the Advance Rate.  In all events the decision to defer reimbursement or seek immediate reimbursement of Nonrecoverable Advances shall be deemed to be in accordance with the Servicing Standard.


 


None of the Master Servicer, the Special Servicer or the Trustee shall have any liability whatsoever for making an election, or refraining from making an election, that is authorized under this subsection (II)(iv).  The foregoing shall not, however, be construed to limit any liability that may otherwise be imposed on such Person for any failure by such Person to comply with the conditions to making such an election under this subsection (II)(iv) or to comply with the terms of this subsection (II)(iv) and the other provisions of this Agreement that apply once such an election, if any, has been made.


 


Any election by the Master Servicer (or the Special Servicer or the Trustee, as applicable) to abstain from reimbursing itself for any Nonrecoverable Advance (and Advance Interest thereon) or portion thereof with respect to any Collection Period shall not be construed to impose on the Master Servicer (or the Special Servicer or the Trustee, as applicable) any obligation to make such an election (or any entitlement in favor of any Certificateholder or any other Person to such an election) with respect to any subsequent Collection Period or to


 


 




  





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constitute a waiver or limitation on the right of the Master Servicer (or the Special Servicer or the Trustee, as applicable) to otherwise be reimbursed for such Nonrecoverable Advance (and Advance Interest thereon).  Any election by the Master Servicer, the Special Servicer or the Trustee to abstain from reimbursing itself for any Nonrecoverable Advance or portion thereof with respect to any one or more Collection Periods shall not limit the accrual of Advance Interest on the unreimbursed portion of such Nonrecoverable Advance for the period prior to the actual reimbursement of such Nonrecoverable Advance.  None of the Master Servicer, the Special Servicer, the Trustee or the other parties to this Agreement shall have any liability to one another or to any of the Certificateholders for any such election that such party makes as contemplated by this subsection or for any losses, damages or other adverse economic or other effects that may arise from such an election.  The foregoing statements in this paragraph shall not limit the generality of the statements made in the immediately preceding paragraph.  Notwithstanding the foregoing, none of the Master Servicer, the Special Servicer or the Trustee shall have the right to abstain from reimbursing itself for any Nonrecoverable Advance to the extent of the amount described in clause (I)(A) of the definition of Principal Distribution Amount.


 


To the extent that amounts in the Certificate Account allocable to principal are not sufficient to fully reimburse any Nonrecoverable Advance (with interest thereon) in any Collection Period and the Master Servicer, the Special Servicer or the Trustee, as applicable, does not intend to exercise its sole discretion to defer the reimbursement of such amounts to a subsequent Collection Period, then the Special Servicer, the Master Servicer or the Trustee, as applicable, shall give the Rating Agencies at least 15 days notice prior to any reimbursement to it of Nonrecoverable Advances from amounts in the Certificate Account allocable to interest on the Mortgage Loans unless (1) the Special Servicer, the Master Servicer or the Trustee, as applicable, determines in its sole discretion that waiting 15 days after such a notice could jeopardize the Special Servicer’s, the Master Servicer’s or the Trustee’s, as applicable, ability to recover such Nonrecoverable Advances, (2) changed circumstances or new or different information becomes known to the Special Servicer, the Master Servicer or the Trustee, as applicable, that could affect or cause a determination of whether any Advance is a Nonrecoverable Advance, whether to defer reimbursement of a Nonrecoverable Advance or the determination in clause (1) above, or (3) the Special Servicer or the Master Servicer, as applicable, has not timely received from the Trustee information requested by the Special Servicer or the Master Servicer, as applicable, to consider in determining whether to defer reimbursement of a Nonrecoverable Advance; provided that, if clause (1), (2) or (3) apply, the Special Servicer, the Master Servicer or the Trustee, as applicable, shall give Rating Agencies notice of an anticipated reimbursement to it of Nonrecoverable Advances from amounts in the Certificate Account allocable to interest on the Mortgage Loans as soon as reasonably practicable in such circumstances.


 


(v) Reimbursement Rights of the Master Servicer, Special Servicer and Trustee Are Senior:  Nothing in this Agreement shall be deemed to create in any Certificateholder a right to prior payment of distributions over the Master Servicer’s, the Special Servicer’s or the Trustee’s right to reimbursement for Advances plus Advance Interest (whether those that constitute Workout-Delayed Reimbursement Amounts, those that have been the subject of the Master Servicer’s election authorized in subsection (iv) or otherwise).


 









  





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(b) Scheduled Payments due in a Collection Period succeeding the Collection Period relating to the Master Servicer Remittance Date, Principal Prepayments received after the related Collection Period, or other amounts not distributable on the related Distribution Date, shall be held in the applicable Certificate Account (or sub-account thereof) and shall be distributed on the Master Servicer Remittance Date or Dates to which such succeeding Collection Period or Periods relate.  In connection with the deposit of any Scheduled Payments and Principal Prepayments to the Distribution Account in accordance with the immediately preceding sentence, the Master Servicer shall promptly notify the Paying Agent and the Paying Agent shall, if it has already reported anticipated distributions to the Depository, use commercially reasonable efforts to cause the Depository to make the revised distribution on a timely basis on such Distribution Date.  Neither the Master Servicer nor the Paying Agent nor the Trustee shall be liable or held responsible for any resulting delay or failure or any claims or costs incurred in the making of such distribution to Certificateholders.  For purposes of the definition of “Available Distribution Amount” and “Principal Distribution Amount,” the Scheduled Payments and Principal Prepayments referred to in the preceding proviso shall be deemed to have been collected in the prior Collection Period.


 


(c) On the Master Servicer Remittance Date in March of every year commencing in March 20__, the Master Servicer shall withdraw all related amounts then in the applicable Interest Reserve Accounts and deposit such amounts into the Distribution Account.


 


Section 5.3 Distribution Account, Excess Interest Sub-account, Reserve Account and Floating Rate Account


 


(a) The Paying Agent, on behalf of the Trustee shall establish (with respect to clause (i), on or prior to the Closing Date, and with respect to clause (ii), on or prior to the date the Paying Agent determines is necessary) and maintain in its name, on behalf of the Trustee, (i) an account (the “Distribution Account”), which shall include a certain sub-account (the “Excess Interest Sub-account”) to be held in trust for the benefit of the Holders until disbursed pursuant to the terms of this Agreement, titled:  “_______, as Trustee, in trust for the benefit of the Holders of Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 20__-____, Distribution Account” and (ii) an account (the “Reserve Account”) to be held in trust for the benefit of the holders of interests in the Trust until disbursed pursuant to the terms of this Agreement, titled:  “_______, as Trustee, in trust for the benefit of the Holders of Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 20__-____, Reserve Account.”  The Distribution Account and the Reserve Account shall be Eligible Accounts.  Funds in the Reserve Account shall not be invested.  The Distribution Account and the Reserve Account shall be held separate and apart from and shall not be commingled with any other monies including, without limitation, other monies of the Paying Agent held under this Agreement.  The Excess Interest Sub-account and the Reserve Account shall be deemed sub-accounts of the Distribution Account.


 


Funds in the Distribution Account may be invested and, if invested, shall be invested by, and at the risk of, the Paying Agent in Eligible Investments selected by the Paying Agent which shall mature, unless payable on demand, not later than such time on the Distribution Date which will allow the Paying Agent to make withdrawals from the Distribution Account under Section 5.3(b), and any such Eligible Investment shall not be sold or disposed of


 









  





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prior to its maturity unless payable on demand.  All such Eligible Investments shall be made in the name of “_______, as Trustee in trust for the benefit of the Holders of Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 20__-____.”  None of the Depositor, the Mortgagors, the Special Servicer, the Master Servicer, the Primary Servicers or the Trustee shall be liable for any loss incurred on such Eligible Investments.


 


An amount equal to all income and gain realized from any such investment shall be paid to the Paying Agent as additional compensation and shall be subject to its withdrawal at any time from time to time.  The amount of any losses incurred in respect of any such investments shall be for the account of the Paying Agent which shall deposit the amount of such loss (to the extent not offset by income from other investments) in the Distribution Account, as the case may be, out of its own funds immediately as realized.  If the Paying Agent deposits in or transfers to the Distribution Account, as the case may be, any amount not required to be deposited therein or transferred thereto, it may at any time withdraw such amount or retransfer such amount from the Distribution Account, as the case may be, notwithstanding any provision herein to the contrary.


 


(b) Except as set forth in the next succeeding sentences, the Paying Agent shall deposit into the Distribution Account or the Reserve Account, as applicable, on the Business Day received, all moneys remitted by the Master Servicer pursuant to this Agreement, including P&I Advances made by the Master Servicer and the Trustee, other than Excess Liquidation Proceeds, into the Distribution Account and all Excess Liquidation Proceeds into the Reserve Account.  The Paying Agent shall deposit amounts constituting collections of Excess Interest on the Mortgage Loans into the Excess Interest Sub-account.  Subject to Section 5.1(h), on the Master Servicer Remittance Date, none of the Master Servicer shall have any duty to remit to the Distribution Account any amounts other than amounts held in the applicable Certificate Accounts and collected during the related Collection Period as provided in clauses (v) and (xi) of Section 5.2(a) and the P&I Advance Amount, and, on the Master Servicer Remittance Date occurring in March of any year, commencing in March 20__, related amounts held in the applicable Interest Reserve Accounts.  The Paying Agent shall make withdrawals from the Distribution Account (including the Excess Interest Sub-account) and the Reserve Account only for the following purposes:


 


(i) to withdraw amounts deposited in the Distribution Account in error and pay such amounts to the Persons entitled thereto;


 


(ii) to pay any amounts payable to the Master Servicer, the Primary Servicers, the Special Servicer and the Trustee (including the Trustee’s Fee), or other expenses or other amounts permitted to be paid hereunder and not previously paid to such Persons pursuant to Section 5.2;


 


(iii) to make distributions to the Certificateholders pursuant to Sections 6.5 and 6.11, to make distributions to the Class A-3-1FL Grantor Trust in respect of the Class A-3-1FL Regular Interest; and


 


(iv) to clear and terminate the Distribution Account pursuant to Section 10.2.


 









  





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(c) On or before the Closing Date, the Paying Agent shall establish and maintain the Floating Rate Account for the benefit of the Class [A-3-1FL] Certificateholders, which may be a sub-account of the Distribution Account.  The Floating Rate Account shall (i) at all times be an Eligible Account, (ii) be entitled: “_______, as Trustee, in trust for Holders of the Morgan Stanley Capital I Trust 20__-__, Floating Rate Account, Class A-3-1FL” and (iii) relate solely to the Class [A-3-1FL] Certificates, and the Paying Agent  shall have the exclusive right to withdraw funds therefrom.  The Paying Agent shall deposit into the Floating Rate Account on or prior to each Distribution Date an amount equal to those amounts payable under the related Class A-3-1FL Regular Interest (net of any payments to the Swap Counterparty made pursuant to Section 8.30(b) hereof) pursuant to Article VI hereof and shall deposit into the Floating Rate Account all amounts received on the Swap Contract in respect of such Distribution Date.  Amounts in the Floating Rate Account shall be held uninvested.  The Paying Agent shall make withdrawals from the Floating Rate Account under its control in the following order of priority and only for the following purposes:


 


(i) to withdraw amounts deposited in the Floating Rate Account in error and pay such amounts to the Persons entitled thereto;


 


(ii) to make any payments to the Swap Counterparty in accordance with this Agreement and the applicable Swap Contract;


 


(iii) to make distributions to the Holders of the Class [A-3-1FL] Certificates pursuant to Section 6.12;


 


(iv) to withdraw termination payments to purchase a replacement Swap Contract, if applicable;


 


(v) to pay the costs and expenses incurred by the Trustee in connection with enforcing the rights of the Trust under the Swap Contract; provided that the Trustee shall only be permitted to incur and reimburse itself out of the Floating Rate Account with respect to any such costs and expenses which are in excess of any termination payment received from the Swap Counterparty and not otherwise applied to offset the expense of entering into a replacement Swap Contract if it has received either the written consent of 100% of the holders of the affected Class [A-3-1FL] Certificates or the written confirmation of each Rating Agency then rating such Class [A-3-1F] Certificates that such action or event will not result in the reduction, qualification or withdrawal of its then current rating for such Class [A-3-1FL] Certificates (the expense of such confirmation to be borne by the holders of the Class [A-3-1FL] Certificates); and


 


(vi) to clear and terminate the Floating Rate Account pursuant to Section 9.1.


 


(d) On or before [3:00] p.m. New York time on the Master Servicer Remittance Date, the Paying Agent shall pay all amounts due to the Swap Counterparty pursuant to the Swap Contract.


 









  





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Section 5.4 Paying Agent Reports


 


(a) On or prior to each Distribution Date, based on information provided in monthly reports prepared by the Master Servicer and the Special Servicer and delivered to the Paying Agent by the Master Servicer (no later than [2:00 p.m.], New York City time on the Report Date), the Paying Agent shall make available to any interested party via its internet website initially located at “___________” (the “Paying Agent’s Website”), (i) the Monthly Certificateholders Report (substantially in the form of Exhibit M), (ii) a report containing information regarding the Mortgage Loans as of the end of the related Collection Period, which report shall contain substantially the categories of information regarding the Mortgage Loans set forth in Appendix I to the Final Prospectus Supplement and shall be presented in tabular format substantially similar to the format utilized in such Appendix I which report may be included as part of the Monthly Certificateholders Report, (iii) the CMSA Loan Periodic Update File, CMSA Loan Setup File, CMSA Bond Level File and the CMSA Collateral Summary File, (iv) a CMSA Delinquent Loan Status Report, a CMSA Historical Loan Modification and Corrected Mortgage Loan Report, a CMSA Historical Liquidation Report, a CMSA Reconciliation of Funds Report, a CMSA REO Status Report and an CMSA Loan Level Reserve/LOC Report, each containing substantially the information contemplated in the definition of Unrestricted Servicer Reports and (v) as a convenience for interested parties (and not in furtherance of the distribution thereof under the securities laws), the Final Prospectus Supplement and this Agreement.


 


In addition, on or prior to each Distribution Date, based on information provided in monthly reports prepared by the Master Servicer and the Special Servicer and delivered to the Paying Agent in accordance herewith, the Paying Agent shall make available via the Paying Agent’s Website, on a restricted basis, the Restricted Servicer Reports (including the Property File on or prior to each Distribution Date, commencing in ___ 20__).  The Paying Agent shall provide access to the Restricted Servicer Reports, upon request, to each Certificateholder and any prospective Certificateholder or Certificate Owner, each of the parties to this Agreement, each of the Rating Agencies, each of the Underwriters, the Operating Adviser, the Placement Agent and any Certificate Owner upon receipt (which may be in electronic form) from such Person of an Investor Certificate in the form of Exhibit I, and any other Person upon the direction of the Depositor, any Placement Agent or any Underwriter.  For assistance with the above-mentioned Paying Agent services, Certificateholders or any party hereto may initially call ____________.


 


The Paying Agent makes no representations or warranties as to the accuracy or completeness of any report, document or other information made available on the Paying Agent’s Website and assumes no responsibility therefor.  The Paying Agent shall be entitled to conclusively rely on any information provided to it by the Master Servicer or the Special Servicer and shall have no obligation to verify such information and the Paying Agent may disclaim responsibility for any information distributed by the Paying Agent for which it is not the original source.  In connection with providing access to the Paying Agent’s Website, the Paying Agent, may require registration and the acceptance of a disclaimer.  None of the Master Servicer, the Special Servicer, any Primary Servicer or the Paying Agent shall be liable for the dissemination of information in accordance with this Agreement; provided that this sentence shall not in any way limit the liability the Paying Agent may otherwise have in the performance of its duties hereunder.


 









  





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(b) Subject to Section 8.15, upon advance written request, if required by federal regulation, of any Certificateholder that is a savings association, bank, or insurance company, the Paying Agent shall provide (to the extent in its possession) to each such Certificateholder such reports and access to non privileged information and documentation regarding the Mortgage Loans and the Certificates as such Certificateholder may reasonably deem necessary to comply with applicable regulations of the Office of Thrift Supervision or successor or other regulatory authorities with respect to investment in the Certificates; provided that the Paying Agent shall be entitled to be reimbursed by such Certificateholder for the Paying Agent’s actual expenses incurred in providing such reports and access.


 


(c) Upon written request, the Paying Agent shall send to each Person who at any time during the calendar year was a Certificateholder of record, customary information as the Paying Agent deems may be necessary or desirable for such Holders to prepare their federal income tax returns.


 


(d) Reserved.


 


(e) The Paying Agent shall afford the Rating Agencies, the Depositor, the Master Servicer, the Special Servicer, the Primary Servicers, the Trustee, the Operating Adviser, the Swap Counterparty, any Certificateholder, prospective Certificate Owner or any Person reasonably designated by any Placement Agent, or any Underwriter upon reasonable notice and during normal business hours, reasonable access to all relevant, non-attorney privileged records and documentation regarding the applicable Mortgage Loans, REO Property and all other relevant matters relating to this Agreement, and access to Responsible Officers of the Paying Agent.


 


(f) Copies (or computer diskettes or other digital or electronic formats of such information if reasonably available in lieu of paper copies) of any and all of the foregoing items of this Section 5.4 shall be made available by the Paying Agent upon request; provided, however, that the Paying Agent shall be permitted to require payment by the requesting party (other than the Depositor, the Master Servicer, the Special Servicer, the Swap Counterparty, the Trustee, the Operating Adviser, the Placement Agent or any Underwriter or any Rating Agency) of a sum sufficient to cover the reasonable expenses actually incurred by the Paying Agent of providing access or copies (including electronic or digital copies) of any such information requested in accordance with the preceding sentence.


 


(g) The Paying Agent shall make available at its Corporate Trust Office (either in physical or electronic form), during normal business hours, upon reasonable advance written notice for review by any Certificateholder, any Certificate Owner, any prospective Certificate Owner, any Placement Agent, the Swap Counterparty, the Underwriters, each Rating Agency, the Special Servicer and the Depositor, originals or copies of, among other things, the following items:  (i) the most recent property inspection reports in the possession of the Trustee in respect of each Mortgaged Property and REO Property, (ii) the most recent Mortgaged Property/REO Property annual operating statement and rent roll (or in the case of a residential cooperative property, the most recent maintenance schedule), if any, collected or otherwise obtained by or on behalf of the Master Servicer or the Special Servicer and delivered to the Paying Agent, and (iii) any Phase I Environmental Report or engineering report prepared or


 









  





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appraisals performed in respect of each Mortgaged Property; provided, however, that the Paying Agent shall be permitted to require payment by the requesting party (other than either Rating Agency or the Operating Adviser) of a sum sufficient to cover the reasonable expenses actually incurred by the Paying Agent or the Trustee of providing access or copies (including electronic or digital copies) of any such information reasonably requested in accordance with the preceding sentence.


 


Section 5.5 Paying Agent Tax Reports


 


The Paying Agent shall perform all reporting and other tax compliance duties that are the responsibility of each REMIC Pool, the Class A-3-1FL Grantor Trust and the Class EI Grantor Trust under the Code, REMIC Provisions, or other compliance guidance issued by the Internal Revenue Service or any state or local taxing authority, as applicable.  Consistent with this Pooling and Servicing Agreement, the Paying Agent shall provide or cause to be provided (i) to the United States Department of Treasury or other Persons (including, but not limited to, the Transferor of a Class [R-I], Class [R-II] or Class [R-III] Certificate, to a Disqualified Organization or to an agent that has acquired a Class [R-I], Class [R-II] or Class [R-III] Certificate on behalf of a Disqualified Organization) such information as is necessary for the application of any tax relating to the transfer of a Class [R-I], Class [R-II] or Class [R-III] Certificate to any Disqualified Organization and (ii) to the Certificateholders such information or reports as are required by the Code or REMIC Provisions.  The Master Servicer shall on a timely basis provide the Paying Agent with such information concerning the Mortgage Loans as is necessary for the preparation of the tax or information returns or receipts of each REMIC Pool, the Class A-3-1FL Grantor Trust and the Class EI Grantor Trust as the Paying Agent may reasonably request from time to time.  The Special Servicer is required to provide to the Master Servicer all information in its possession with respect to the Specially Serviced Mortgage Loans and REO Property in order for the Master Servicer to comply with its obligations under this Section 5.5.  The Paying Agent shall be entitled to conclusively rely on any such information provided to it by the Master Servicer or the Special Servicer and shall have no obligation to verify any such information.


 


ARTICLE VI


 


DISTRIBUTIONS


 


Section 6.1 Distributions Generally


 


Subject to Section 10.2(a), respecting the final distribution on the Certificates, on each Distribution Date, the Paying Agent shall (1) first, withdraw from the Distribution Account and pay to the Trustee any unpaid fees, expenses and other amounts then required to be paid pursuant to this Agreement, and then, to the Paying Agent, any unpaid fees, expenses and other amounts then required to be paid pursuant to this Agreement, and then at the written direction of the Master Servicer, withdraw from the Distribution Account and pay to the Master Servicer, the Primary Servicers and the Special Servicer any unpaid servicing compensation or other amounts currently required to be paid pursuant to this Agreement (to the extent not previously retained or withdrawn by the Master Servicer from the applicable Certificate Accounts), and (2) second, make distributions in the manner and amounts set forth below.


 









  





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Each distribution to Holders of Certificates shall be made by check mailed to such Holder’s address as it appears on the Certificate Register of the Certificate Registrar or, upon written request to the Paying Agent on or prior to the related Record Date (or upon standing instructions given to the Paying Agent on the Closing Date prior to any Record Date, which instructions may be revoked at any time thereafter upon written notice to the Paying Agent five days prior to the related Record Date) made by a Certificateholder by wire transfer in immediately available funds to an account specified in the request of such Certificateholder; provided that (i) remittances to the Paying Agent shall be made by wire transfer of immediately available funds to the Distribution Account and the Reserve Account; and (ii) the final distribution in respect of any Certificate shall be made only upon presentation and surrender of such Certificate at such location specified by the Paying Agent in a notice delivered to Certificateholders pursuant to Section 10.2(a).  If any payment required to be made on the Certificates is to be made on a day that is not a Business Day, then such payment will be made on the next succeeding Business Day without compensation for such delay.  All distributions or allocations made with respect to Holders of Certificates of a Class on each Distribution Date shall be made or allocated among the outstanding Interests in such Class in proportion to their respective initial Certificate Balances or Percentage Interests for the Class X Certificates.


 


Section 6.2 REMIC I


 


On each Distribution Date, the Paying Agent shall be deemed to distribute to itself on behalf of the Trustee, as holder of the REMIC I Regular Interests, for the following purposes and in the following order of priority:


 


(i) from the portion of the Available Distribution Amount attributable to interest collected or deemed collected on or with respect to each Mortgage Loan or related REO Property, Distributable Certificate Interest to each Corresponding REMIC I Regular Interest;


 


(ii) from the portion of the Available Distribution Amount, attributable to principal collected or deemed collected on or with respect to each Mortgage Loan or related REO Property, principal to the Corresponding REMIC I Regular Interest (other than the Group X-Y REMIC I Regular Interests), until the Certificate Balance thereof is reduced to zero;


 


(iii) any remaining funds with respect to each Mortgage Loan or related REO Property, to reimburse any Realized Losses previously allocated to the REMIC I Regular Interests (other than the Group X-Y REMIC I Regular Interests), plus interest on such Realized Losses at the related REMIC I Net Mortgage Rate previously allocated thereto; and


 


(iv) thereafter, to the Class [R-I] Certificateholders, at such time as the Certificate Balance of all Classes of REMIC I Regular Interests have been reduced to zero, and Realized Losses previously allocated thereto have been reimbursed to the Holders of the REMIC I Regular Interests, any amounts remaining with respect to each Mortgage Loan or related REO Property, to the extent of the Trust’s interest therein.


 









  





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Section 6.3 REMIC II


 


(a) On each Distribution Date, the Paying Agent shall be deemed to distribute to itself on behalf of the Trustee, as holder of the REMIC II Regular Interests, amounts distributable to any Class of Principal Balance Certificates (or, in the case of the Class [A-3-1FL] Certificates, distributable to the Class A-3-1FL Regular Interest) pursuant to Section 6.5 or Section 10.1 to its Corresponding REMIC II Regular Interest set forth in the Preliminary Statement hereto; provided that interest shall be deemed to have been distributed pro rata among two or more Corresponding REMIC II Regular Interests that correspond to a Class of Principal Balance Certificates (or, in the case of the Class [A-3-1FL] Certificates, distributed to the Class A-3-1FL Regular Interest); and provided, further, that distributions of principal:


 


(i) with respect to the Class [A-1] Certificates, shall be deemed to have first been distributed from REMIC II to REMIC III in respect of REMIC II Regular Interest A-1-1; second, to REMIC II Regular Interest A-1-2; and third to REMIC II Regular Interest A-1-3; in each case, until their respective Certificate Balances are reduced to zero;


 


(ii) with respect to the Class [A-1A] Certificates, shall be deemed to have first been distributed from REMIC II to REMIC III in respect of REMIC II Regular Interest A-1A-1; second, to REMIC II Regular Interest A-1A-2; third, to REMIC II Regular Interest A-1A-3; fourth, to REMIC II Regular Interest A-1A-4; fifth, to REMIC II Regular Interest A-1A-5; sixth, to REMIC II Regular Interest A-1A-6; seventh, to REMIC II Regular Interest A-1A-7; eighth, to REMIC II Regular Interest A-1A-8 and ninth, to REMIC II Regular Interest A-1A-9; in each case, until their respective Certificate Balances are reduced to zero;


 


(iii) with respect to the Class [A-2] Certificates, shall be deemed to have been distributed from REMIC II to REMIC III in respect of REMIC II Regular Interest A-2, until its Certificate Balance is reduced to zero;


 


(iv) with respect to the Class A-3-1FL Regular Interest, shall be deemed to have first been distributed from REMIC II to REMIC III in respect of REMIC II Regular Interest A-3-1FL-1; second, to REMIC II Regular Interest A-3-1FL-2; third, to REMIC II Regular Interest A-3-1FL-3 and fourth, to REMIC II Regular Interest A-3-1FL-4; in each case, until their respective Certificate Balances are reduced to zero;


 


(v) with respect to the Class [A-3-1] Certificates, shall be deemed to have first been distributed from REMIC II to REMIC III in respect of REMIC II Regular Interest A-3-1-1; second, to REMIC II Regular Interest A-3-1-2; third, to REMIC II Regular Interest A-3-1-3 and fourth, to REMIC II Regular Interest A-3-1-4; in each case, until their respective Certificate Balances are reduced to zero;


 


(vi) with respect to the Class [A-3-2] Certificates, shall be deemed to have first been distributed from REMIC II to REMIC III in respect of REMIC II Regular Interest A-3-2-1 and second, to REMIC II Regular Interest A-3-2-2; in either case, until their respective Certificate Balances are reduced to zero;


 


 




  





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(vii) with respect to the Class [A-AB] Certificates, shall be deemed to have first been distributed from REMIC II to REMIC III in respect to of REMIC II Regular Interest A-AB-1 and second, to REMIC II Regular Interest A-AB-2; in either case, until their respective Certificate Balances are reduced to zero;


 


(viii) with respect to the Class [A-4A] Certificates, shall be deemed to have first been distributed from REMIC II to REMIC III in respect of REMIC II Regular Interest A-4A-1; second, to REMIC II Regular Interest A-4A-2 and third, to REMIC II Regular Interest A-4A-3; in each case, until their respective Certificate Balances are reduced to zero;


 


(ix) with respect to the Class [A-4B] Certificates, shall be deemed to have been distributed from REMIC II to REMIC III in respect of REMIC II Regular Interest A-4B, until its Certificate Balance is reduced to zero;


 


(x) with respect to the Class [B] Certificates, shall be deemed to have first been distributed from REMIC II to REMIC III in respect of REMIC II Regular Interest B-1; second, to REMIC II Regular Interest B-2; and third, to REMIC II Regular Interest B-3; in each case, until their respective Certificate Balances are reduced to zero;


 


(xi) with respect to the Class [C] Certificates, shall be deemed to have first been distributed from REMIC II to REMIC III in respect of REMIC II Regular Interest C-1; and second, to REMIC II Regular Interest C-2; in each case, until their respective Certificate Balances are reduced to zero;


 


(xii) with respect to the Class [D] Certificates, shall be deemed to have first been distributed from REMIC II to REMIC III in respect of REMIC II Regular Interest D-1; second, to REMIC II Regular Interest D-2; and third, to REMIC II Regular Interest D-3; in each case, until their respective Certificate Balances are reduced to zero;


 


(xiii) with respect to the Class [F] Certificates, shall be deemed to have first been distributed from REMIC II to REMIC III in respect of REMIC II Regular Interest F-1; and second, to REMIC II Regular Interest F-2; in each case, until their respective Certificate Balances are reduced to zero;


 


(xiv) with respect to the Class [G] Certificates, shall be deemed to have been distributed from REMIC II to REMIC III in respect of REMIC II Regular Interest G. until its Certificate Balance is reduced to zero; and


 


(xv) with respect to the Class [H] Certificates, shall be deemed to have first been distributed from REMIC II to REMIC III in respect of REMIC II Regular Interest H-1; and second, to REMIC II Regular Interest H-2; in each case, until their respective Certificate Balances are reduced to zero.


 


(b) All distributions made in respect of the Class [X-1] and Class [X-2] Certificates on each Distribution Date pursuant to Section 6.5 or Section 10.1, and allocable to any particular Component of such Class of Certificates in accordance with the last paragraph of Section 6.5(a), shall be deemed to have first been distributed from REMIC II to REMIC III in


 









  





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respect of such Component’s Corresponding REMIC II Regular Interest.  All distributions made in respect of the Class [X-Y] Certificates on each Distribution Date pursuant to Section 6.5 or Section 10.1 shall be deemed distributed to REMIC II Regular Interest X-Y.  All distributions of reimbursements of Realized Losses made in respect of any Class of Principal Balance Certificates (or, in the case of the Class [A-3-1FL] Certificates, in respect of the Class A-3-1FL Regular Interest) on each Distribution Date pursuant to Section 6.5 shall be deemed to have first been distributed from REMIC II to REMIC III in respect of its Corresponding REMIC II Regular Interest set forth in the Preliminary Statement hereto; provided, however, that distributions of reimbursements of Realized Losses shall be made in reverse sequential order and priority as such as Realized Losses were previously allocated to a particular Component of such Class of Certificates.  Any amounts remaining in the Distribution Account with respect to REMIC II on any Distribution Date after the foregoing distributions shall be distributed to the holders of the Class [R-II] Certificates.


 


Section 6.4 Reserved


 


Section 6.5 REMIC III


 


(a) On each Distribution Date, the Paying Agent shall withdraw from the Distribution Account an amount equal to the Available Distribution Amount and shall distribute such amount (other than the amount attributable to Excess Liquidation Proceeds which shall be distributed in accordance with Section 6.5(b), the amount attributable to Excess Interest which shall be distributed in accordance with Section 6.5(c), and the amount equal to any Net Swap Payment that was deemed distributed in respect of the Class A-3-1FL Regular Interest on the immediately preceding Master Servicer Remittance Date pursuant to Section 8.30(b)) in the following amounts and order of priority:


 


(i) to the Holders of the Class [A-1] Certificates, Class [A-1A] Certificates, Class [A-2] Certificates, Class A-3-1FL Regular Interest, Class [A-3-1] Certificates, Class [A-3-2] Certificates, Class [A-AB] Certificates, Class [A-4] Certificates, Class [X-1] Certificates, Class [X-2] Certificates and Class [X-Y] Certificates, concurrently,


 


(A) to the Holders of the Class [A-1] Certificates, Class [A-2] Certificates, Class A-3-1FL Regular Interest, Class [A-3-1] Certificates, Class [A-3-2] Certificates, Class [A-AB] Certificates and Class [A-4] Certificates, the Distributable Certificate Interest Amount in respect of such Class for such Distribution Date (which shall be payable from amounts in the Available Distribution Amount attributable to Loan Group 1), pro rata in proportion to the Distributable Certificate Interest Amount payable in respect of each such Class; provided, that the interest distributed to the Holders of the Class [A-4] Certificates will be applied first to the Class [A-4A] Certificates up to their Distributable Certificate Interest Amount and then to the Class [A-4B] Certificates up to their Distributable Certificate Interest Amount;


 


(B) to the Holders of the Class [A-1A] Certificates, the Distributable Certificate Interest Amount in respect of such Class for such Distribution Date


 









  





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(which shall be payable from amounts in the Available Distribution Amount attributable to Loan Group 2);


 


(C) to the Holders of the Class [X-1] Certificates, Class [X-2] Certificates and Class [X-Y] Certificates, the Distributable Certificate Interest Amount in respect of each such Class for such Distribution Date, pro rata in proportion to the Distributable Certificate Interest Amount payable in respect of each such Class;


 


provided, however, that if the portion of Available Distribution Amount attributable to either Loan Group is insufficient to pay in full the total amount of interest to be distributed with respect to any of the Class [A] or Class [X] Certificates on such Distribution Date as described above, the Available Distribution Amount will be allocated among the Class [A] Certificates and the Class [X] Certificates, pro rata in proportion to the respective amounts of interest payable thereon for such Distribution Date, without regard to Loan Group, provided that interest distributed to the Holders of the Class [A-4] Certificates will be applied first to the Class [A-4A] Certificates up to their interest entitlement and then to the Class [A-4B] Certificates up to their interest entitlement;


 


(ii) (A) to the holders of the Class [A-1], Class [A-1A], Class [A-2], Class [A-3-1], Class [A-3-2], Class [A-AB] and Class [A-4] Certificates and the Class A-3-1FL Regular Interest,


 


(1) first, to the Holders of the Class [A-AB] Certificates, the Loan Group 1 Principal Distribution Amount for such Distribution Date and, after the Certificate Balance of the Class [A-1A] Certificates has been reduced to zero, the Loan Group 2 Principal Distribution Amount for such Distribution Date, until the aggregate Certificate Balance of the Class [A-AB] Certificates has been reduced to the Planned Principal Balance for such Distribution Date; the portion of the Loan Group 2 Principal Distribution Amount distributed hereunder will be reduced by any portion thereof distributed to the Holders of the Class [A-1A] Certificates;


 


(2) second, upon payment to the Class [A-AB] Certificates of the above distribution, to the Holders of the Class [A-1] Certificates, the Loan Group 1 Principal Distribution Amount for such Distribution Date and, after the Certificate Balance of the Class [A-1A] Certificates has been reduced to zero, the Loan Group 2 Principal Distribution Amount for such Distribution Date, until the aggregate Certificate Balance of the Class [A-1] Certificates has been reduced to zero; the portion of the Loan Group 1 Principal Distribution Amount and Loan Group 2 Principal Distribution Amount distributed hereunder will be reduced by any portion thereof distributed to the Holders of the Class [A-AB] Certificates (in


 









  





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respect of the Planned Principal Balance) and (solely with respect to the Loan Group 2 Principal Distribution Amount) Class [A-1A] Certificates;


 


(3) third, upon payment in full of the aggregate Certificate Balance of the Class [A-1] Certificates, to the Holders of the Class [A-2] Certificates, the Loan Group 1 Principal Distribution Amount for such Distribution Date and, after the Certificate Balance of the Class [A-1A] Certificates has been reduced to zero, the Loan Group 2 Principal Distribution Amount, until the aggregate Certificate Balance of the Class [A-2] Certificates has been reduced to zero; the portion of the Loan Group 1 Principal Distribution Amount and Loan Group 2 Principal Distribution Amount distributed hereunder will be reduced by any portion thereof distributed to the Holders of the Class [A-AB] Certificates (in respect of the Planned Principal Balance), Class [A-1] Certificates and (solely with respect to the Loan Group 2 Principal Distribution Amount) Class [A-1A] Certificates;


 


(4) fourth, upon payment in full of the aggregate Certificate Balance of the Class [A-2] Certificates, to the Holders of the Class [A-3-1] Certificates and the Class A-3-1FL Regular Interest, pro rata, the Loan Group 1 Principal Distribution Amount for such Distribution Date and, after the Certificate Balance of the Class [A-1A] Certificates has been reduced to zero, the Loan Group 2 Principal Distribution Amount, until the aggregate Certificate Balances of the Class [A-3-1] Certificates and the Class A-3-1FL Regular Interest have been reduced to zero; the portion of the Loan Group 1 Principal Distribution Amount and Loan Group 2 Principal Distribution Amount distributed hereunder will be reduced by any portion thereof distributed to the Holders of the Class [A-AB] Certificates (in respect of the Planned Principal Balance), Class [A-1] Certificates, Class [A-2] Certificates and (solely with respect to the Loan Group 2 Principal Distribution Amount) Class [A-1A] Certificates;


 


(5) fifth, upon payment in full of the aggregate Certificate Balances of the Class [A-3-1] Certificates and the Class A-3-1FL Regular Interest, to the Holders of the Class [A-3-2] Certificates, the Loan Group 1 Principal Distribution Amount for such Distribution Date and, after the Certificate Balance of the Class [A-1A] Certificates has been reduced to zero, the Loan Group 2 Principal Distribution Amount, until the aggregate Certificate Balance of the Class [A-3-2] Certificates has been reduced to zero; the portion of the Loan Group 1 Principal Distribution Amount and Loan Group 2 Principal Distribution Amount distributed hereunder will be reduced by any portion thereof distributed to the Holders of the Class [A-AB] Certificates (in respect of the Planned Principal Balance), Class [A-1] Certificates, Class [A-2] Certificates, Class [A-3-1] Certificates and the Class A-3-1FL Regular Interest and (solely with respect to the Loan Group 2 Principal Distribution Amount) Class [A-1A] Certificates;


 









  





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(6) sixth, upon payment in full of the aggregate Certificate Balance of the Class [A-3-2] Certificates, to the Holders of the Class [A-AB] Certificates, the Loan Group 1 Principal Distribution Amount for such Distribution Date and, after the Certificate Balance of the Class [A-1A] Certificates has been reduced to zero, the Loan Group 2 Principal Distribution Amount, until the aggregate Certificate Balance of the Class [A-AB] Certificates has been reduced to zero; the portion of the Loan Group 1 Principal Distribution Amount and Loan Group 2 Principal Distribution Amount distributed hereunder will be reduced by any portion thereof distributed to the Holders of the Class [A-AB] Certificates (in respect of the Planned Principal Balance), Class [A-1] Certificates, Class [A-2] Certificates, Class [A-3-1] Certificates, Class A-3-1FL Regular Interest and Class [A-3-2] Certificates and (solely with respect to the Loan Group 2 Principal Distribution Amount) Class [A-1A] Certificates;


 


(7) seventh, upon payment in full of the aggregate Certificate Balance of the Class [A-AB] Certificates, to the Holders of the Class [A-4A] Certificates, the Loan Group 1 Principal Distribution Amount for such Distribution Date and, after the Certificate Balance of the Class [A-1A] Certificates has been reduced to zero, the Loan Group 2 Principal Distribution Amount, until the aggregate Certificate Balance of the Class [A-4A] Certificates has been reduced to zero; the portion of the Loan Group 1 Principal Distribution Amount and Loan Group 2 Principal Distribution Amount distributed hereunder will be reduced by any portion thereof distributed to the Holders of the Class [A-AB] Certificates, Class [A-1] Certificates, Class [A-2] Certificates, Class [A-3-1] Certificates, Class A-3-1FL Regular Interest and Class [A-3-2] Certificates and (solely with respect to the Loan Group 2 Principal Distribution Amount) Class [A-1A] Certificates;


 


(8) eighth, upon payment in full of the aggregate Certificate Balance of the Class [A-4A] Certificates, to the Holders of the Class [A-4B] Certificates, the Loan Group 1 Principal Distribution Amount for such Distribution Date and, after the Certificate Balance of the Class [A-1A] Certificates has been reduced to zero, the Loan Group 2 Principal Distribution Amount, until the aggregate Certificate Balance of the Class [A-4B] Certificates has been reduced to zero; the portion of the Loan Group 1 Principal Distribution Amount and Loan Group 2 Principal Distribution Amount distributed hereunder will be reduced by any portion thereof distributed to the Holders of the Class [A-AB] Certificates, Class [A-1] Certificates, Class [A-2] Certificates, Class [A-3-1] Certificates, Class A-3-1FL Regular Interest, Class [A-3-2] Certificates and Class [A-4A] Certificates and (solely with respect to the Loan Group 2 Principal Distribution Amount) Class [A-1A] Certificates; and









  





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(B) to the Holders of the Class [A-1A] Certificates, the Loan Group 2 Principal Distribution Amount for such Distribution Date and, after the Certificate Balance of the Class [A-4B] Certificates has been reduced to zero, the Loan Group 1 Principal Distribution Amount for such Distribution Date, until the aggregate Certificate Balance of the Class [A-1A] Certificates has been reduced to zero; the portion of the Loan Group 1 Principal Distribution Amount will be reduced by any portion thereof distributed to the Holders of the Class [A-AB] Certificates, Class [A-1] Certificates, Class [A-2] Certificates, Class [A-3-1] Certificates, Class A-3-1FL Regular Interest, Class [A-3-2] Certificates, Class [A-4A] Certificates and Class [A-4B] Certificates;


 


(iii) to the Holders of the Class [A] Certificates (other than the Class [A-3-1FL] Certificates), Class [X-1] Certificates, Class [X-2] Certificates, Class [X-Y] Certificates and Class A-3-1FL Regular Interest, pro rata (treating principal and interest losses separately) in proportion to their respective entitlements to reimbursement described in this clause, to reimburse any Realized Losses previously allocated thereto and not previously fully reimbursed, plus one month’s interest at the applicable Pass-Through Rate on such Realized Losses; provided, that such amounts in respect of the Class [A-4] Certificates will be allocated first to the Class [A-4A] Certificates until such Realized Losses previously allocated thereto are reimbursed together with all applicable interest at the applicable Pass-Through Rate and then to the Class [A-4B] Certificates until such Realized Losses previously allocated thereto are reimbursed together with all applicable interest at the applicable Pass-Through Rate;


 


(iv) to the Holders of the Class [A-J] Certificates, Distributable Certificate Interest for such Distribution Date;


 


(v) upon payment in full of the Certificate Balance of the Class A Certificates (other than the Class [A-3-1FL] Certificates) and the Class A-3-1FL Regular Interest, to the Holders of the Class [A-J] Certificates, the Principal Distribution Amount for such Distribution Date (reduced by any prior distributions thereof hereunder), until the Certificate Balance of the Class [A-J] Certificates has been reduced to zero;


 


(vi) to the Holders of the Class [A-J] Certificates, to reimburse any Realized Losses previously allocated thereto and not previously fully reimbursed, plus one month’s interest at the applicable Pass-Through Rate on such Realized Losses;


 


(vii) to the Holders of the Class [B] Certificates, Distributable Certificate Interest for such Distribution Date,


 


(viii) upon payment in full of the Certificate Balance of the Class [A-J] Certificates, to the Holders of the Class [B] Certificates, the Principal Distribution Amount for such Distribution Date (reduced by any prior distributions to Holders of Class [A] Certificates (other than the Class [A-3-1FL] Certificates), the Class A-3-1FL Regular Interest and Class [A-J] Certificates hereunder), until the Certificate Balance of the Class [B] Certificates has been reduced to zero,


 









  





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(ix) to the Holders of the Class [B] Certificates, to reimburse any Realized Losses previously allocated thereto and not previously fully reimbursed, plus one month’s interest at the applicable Pass-Through Rate on such Realized Losses


 


(x) to the Holders of the Class [C] Certificates, Distributable Certificate Interest for such Distribution Date,


 


(xi) upon payment in full of the Certificate Balance of the Class [B] Certificates, to the Holders of the Class [C] Certificates, the Principal Distribution Amount for such Distribution Date (reduced by any prior distributions to Holders of Class [A] Certificates (other than Class [A-3-1FL] Certificates), the Class A-3-1FL Regular Interest, Class [A-J] Certificates and Class [B] Certificates hereunder), until the Certificate Balance of the Class [C] Certificates has been reduced to zero,


 


(xii) to the Holders of the Class [C] Certificates, to reimburse any Realized Losses previously allocated thereto and not previously fully reimbursed, plus one month’s interest at the applicable Pass-Through Rate on such Realized Losses,


 


(xiii) to the Holders of the Class [D] Certificates, Distributable Certificate Interest for such Distribution Date,


 


(xiv) upon payment in full of the Certificate Balance of the Class [C] Certificates, to the Holders of the Class [D] Certificates, the Principal Distribution Amount for such Distribution Date (reduced by any prior distributions to Holders of Class [A] Certificates (other than Class [A-3-1FL] Certificates), the Class A-3-1FL Regular Interest, Class [A-J] Certificates, Class [B] Certificates and Class [C] Certificates hereunder), until the Certificate Balance of the Class [D] Certificates has been reduced to zero,


 


(xv) to the Holders of the Class [D] Certificates, to reimburse any Realized Losses previously allocated thereto and not previously fully reimbursed, plus one month’s interest at the applicable Pass-Through Rate on such Realized Losses,


 


(xvi) to the Holders of the Class [E] Certificates, Distributable Certificate Interest for such Distribution Date


 


(xvii) upon payment in full of the Certificate Balance of the Class [D] Certificates, to the Holders of the Class [E] Certificates, the Principal Distribution Amount for such Distribution Date (reduced by any prior distributions to Holders of Class [A] Certificates (other than Class [A-3-1FL] Certificates), the Class A-3-1FL Regular Interest, Class [A-J] Certificates, Class [B] Certificates, Class [C] Certificates and Class [D] Certificates hereunder), until the Certificate Balance of the Class [E] Certificates has been reduced to zero,


 


(xviii) to the Holders of the Class [E] Certificates, to reimburse any Realized Losses previously allocated thereto and not previously fully reimbursed, plus one month’s interest at the applicable Pass-Through Rate on such Realized Losses,


 









  





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(xix) to the Holders of the Class [F] Certificates, Distributable Certificate Interest for such Distribution Date,


 


(xx) upon payment in full of the Certificate Balance of the Class [E] Certificates, to the Holders of the Class [F] Certificates, the Principal Distribution Amount for such Distribution Date (reduced by any prior distributions to Holders of Class [A] Certificates (other than Class [A-3-1FL] Certificates), the Class A-3-1FL Regular Interest, Class [A-J] Certificates, Class [B] Certificates, Class [C] Certificates, Class [D] Certificates and Class [E] Certificates hereunder), until the Certificate Balance of the Class [F] Certificates has been reduced to zero,


 


(xxi) to the Holders of the Class [F] Certificates, to reimburse any Realized Losses previously allocated thereto and not previously fully reimbursed, plus one month’s interest at the applicable Pass-Through Rate on such Realized Losses,


 


(xxii) to the Holders of the Class [G] Certificates, Distributable Certificate Interest for such Distribution Date,


 


(xxiii) upon payment in full of the Certificate Balance of the Class [F] Certificates, to the Holders of the Class [G] Certificates, the Principal Distribution Amount for such Distribution Date (reduced by any prior distributions to Holders of Class [A] Certificates (other than Class [A-3-1FL] Certificates), the Class A-3-1FL Regular Interest, Class [A-J] Certificates, Class [B] Certificates, Class [C] Certificates, Class [D] Certificates, Class [E] Certificates and Class [F] Certificates hereunder), until the Certificate Balance of the Class [G] Certificates has been reduced to zero,


 


(xxiv) to the Holders of the Class [G] Certificates, to reimburse any Realized Losses previously allocated thereto and not previously fully reimbursed, plus one month’s interest at the applicable Pass-Through Rate on such Realized Losses,


 


(xxv) to the Holders of the Class [H] Certificates, Distributable Certificate Interest for such Distribution Date,


 


(xxvi) upon payment in full of the Certificate Balance of the Class [G] Certificates, to the Holders of the Class [H] Certificates, the Principal Distribution Amount for such Distribution Date (reduced by any prior distributions to Holders of Class [A] Certificates (other than Class [A-3-1FL] Certificates), the Class A-3-1FL Regular Interest, Class [A-J] Certificates, Class [B] Certificates, Class [C] Certificates, Class [D] Certificates, Class [E] Certificates, Class [F] Certificates and Class [G] Certificates hereunder), until the Certificate Balance of the Class [H] Certificates has been reduced to zero,


 


(xxvii) to the Holders of the Class [H] Certificates, to reimburse any Realized Losses previously allocated thereto and not previously fully reimbursed, plus one month’s interest at the applicable Pass-Through Rate on such Realized Losses,


 


(xxviii) to the Holders of the Class [J] Certificates, Distributable Certificate Interest for such Distribution Date,


 









  





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(xxix) upon payment in full of the Certificate Balance of the Class [H] Certificates, to the Holders of the Class [J] Certificates, the Principal Distribution Amount for such Distribution Date (reduced by any prior distributions to Holders of Class [A] Certificates (other than Class [A-3-1FL] Certificates), the Class A-3-1FL Regular Interest, Class [A-J] Certificates, Class [B] Certificates, Class [C] Certificates, Class [D] Certificates, Class [E] Certificates, Class [F] Certificates, Class [G] Certificates and Class [H] Certificates hereunder), until the Certificate Balance of the Class [J] Certificates has been reduced to zero,


 


(xxx) to the Holders of the Class [J] Certificates, to reimburse any Realized Losses previously allocated thereto and not previously fully reimbursed, plus one month’s interest at the applicable Pass-Through Rate on such Realized Losses,


 


(xxxi) to the Holders of the Class [K] Certificates, Distributable Certificate Interest for such Distribution Date,


 


(xxxii) upon payment in full of the Certificate Balance of the Class [J] Certificates, to the Holders of the Class [K] Certificates, the Principal Distribution Amount for such Distribution Date (reduced by any prior distributions to Holders of Class [A] Certificates (other than Class [A-3-1FL] Certificates), the Class A-3-1FL Regular Interest, Class [A-J] Certificates, Class [B] Certificates, Class [C] Certificates, Class [D] Certificates, Class [E] Certificates, Class [F] Certificates, Class [G] Certificates, Class [H] Certificates and Class [J] Certificates hereunder), until the Certificate Balance of the Class [K] Certificates has been reduced to zero,


 


(xxxiii) to the Holders of the Class [K] Certificates, to reimburse any Realized Losses previously allocated thereto and not previously fully reimbursed, plus one month’s interest at the applicable Pass-Through Rate on such Realized Losses,


 


(xxxiv) to the Holders of the Class [L] Certificates, Distributable Certificate Interest for such Distribution Date,


 


(xxxv) upon payment in full of the Certificate Balance of the Class [K] Certificates, to the Holders of the Class [L] Certificates, the Principal Distribution Amount for such Distribution Date (reduced by any prior distributions to Holders of Class [A] Certificates (other than Class [A-3-1FL] Certificates), the Class A-3-1FL Regular Interest, Class [A-J] Certificates, Class [B] Certificates, Class [C] Certificates, Class [D] Certificates, Class [E] Certificates, Class [F] Certificates, Class [G] Certificates, Class [H] Certificates, Class [J] Certificates and Class [K] Certificates hereunder), until the Certificate Balance of the Class [L] Certificates has been reduced to zero,


 


(xxxvi) to the Holders of the Class [L] Certificates, to reimburse any Realized Losses previously allocated thereto and not previously fully reimbursed, plus one month’s interest at the applicable Pass-Through Rate on such Realized Losses,


 


(xxxvii) to the Holders of the Class [M] Certificates, Distributable Certificate Interest for such Distribution Date,


 









  





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(xxxviii) upon payment in full of the Certificate Balance of the Class [L] Certificates, to the Holders of the Class [M] Certificates, the Principal Distribution Amount for such Distribution Date (reduced by any prior distributions to Holders of Class [A] Certificates (other than Class [A-3-1FL] Certificates), the Class A-3-1FL Regular Interest, Class [A-J] Certificates, Class [B] Certificates, Class [C] Certificates, Class [D] Certificates, Class [E] Certificates, Class [F] Certificates, Class [G] Certificates, Class [H] Certificates, Class [J] Certificates, Class [K] Certificates and Class [L] Certificates hereunder), until the Certificate Balance of the Class [M] Certificates has been reduced to zero,


 


(xxxix) to the Holders of the Class [M] Certificates, to reimburse any Realized Losses previously allocated thereto and not previously fully reimbursed, plus one month’s interest at the applicable Pass-Through Rate on such Realized Losses,


 


(xl) to the Holders of the Class [N] Certificates, Distributable Certificate Interest for such Distribution Date,


 


(xli) upon payment in full of the Certificate Balance of the Class [M] Certificates, to the Holders of the Class [N] Certificates, the Principal Distribution Amount for such Distribution Date (reduced by any prior distributions to Holders of Class [A] Certificates (other than Class [A-3-1FL] Certificates), the Class A-3-1FL Regular Interest, Class [A-J] Certificates, Class [B] Certificates, Class [C] Certificates, Class [D] Certificates, Class [E] Certificates, Class [F] Certificates, Class [G] Certificates, Class [H] Certificates, Class [J] Certificates, Class [K] Certificates, Class [L] Certificates and Class [M] Certificates hereunder), until the Certificate Balance of the Class [N] Certificates has been reduced to zero,


 


(xlii) to the Holders of the Class [N] Certificates, to reimburse any Realized Losses previously allocated thereto and not previously fully reimbursed, plus one month’s interest at the applicable Pass-Through Rate on such Realized Losses,


 


(xliii) to the Holders of the Class [O] Certificates, Distributable Certificate Interest for such Distribution Date,


 


(xliv) upon payment in full of the Certificate Balance of the Class [N] Certificates, to the Holders of the Class [O] Certificates, the Principal Distribution Amount for such Distribution Date (reduced by any prior distributions to Holders of Class [A] Certificates (other than Class [A-3-1FL] Certificates), the Class A-3-1FL Regular Interest, Class [A-J] Certificates, Class [B] Certificates, Class [C] Certificates, Class [D] Certificates, Class [E] Certificates, Class [F] Certificates, Class [G] Certificates, Class [H] Certificates, Class [J] Certificates, Class [K] Certificates, Class [L] Certificates, Class [M] Certificates and Class [N] Certificates hereunder), until the Certificate Balance of the Class [O] Certificates has been reduced to zero,


 


(xlv) to the Holders of the Class [O] Certificates, to reimburse any Realized Losses previously allocated thereto and not previously fully reimbursed, plus one month’s interest at the applicable Pass-Through Rate on such Realized Losses,


 









  





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(xlvi) to the Holders of the Class [P] Certificates, Distributable Certificate Interest for such Distribution Date,


 


(xlvii) upon payment in full of the Certificate Balance of the Class [O] Certificates, to the Holders of the Class [P] Certificates, the Principal Distribution Amount for such Distribution Date (reduced by any prior distributions to Holders of Class [A] Certificates (other than Class [A-3-1FL] Certificates), the Class A-3-1FL Regular Interest, Class [A-J] Certificates, Class [B] Certificates, Class [C] Certificates, Class [D] Certificates, Class [E] Certificates, Class [F] Certificates, Class [G] Certificates, Class [H] Certificates, Class [J] Certificates, Class [K] Certificates, Class [L] Certificates, Class [M] Certificates, Class [N] Certificates and Class [O] Certificates hereunder), until the Certificate Balance of the Class [P] Certificates has been reduced to zero,


 


(xlviii) to the Holders of the Class [P] Certificates, to reimburse any Realized Losses previously allocated thereto and not previously fully reimbursed, plus one month’s interest at the applicable Pass-Through Rate on such Realized Losses, and


 


(xlix) to the Holders of the Class [R-III] Certificates at such time as the Certificate Balances of all Classes of REMIC Regular Certificates and the Class A-3-1FL Regular Interest have been reduced to zero, and Realized Losses previously allocated to each Holder have been reimbursed to the Holders of the REMIC Regular Certificates and the Class A-3-1FL Regular Interest, any amounts remaining on deposit in the Distribution Account.


 


Notwithstanding the foregoing, on each Distribution Date occurring on or after the earliest date, if any, upon which the Certificate Balances of all the Classes of Subordinate Certificates have been reduced to zero or the aggregate Appraisal Reduction in effect is greater than or equal to Certificate Balances of all the Classes of Subordinate Certificates, the Principal Distribution Amount will be distributed,


 



	
●  

	
first, to the Holders of the Class [A-1], Class [A-1A], Class [A-2], Class [A-3-1], Class [A-3-2], Class [A-AB] and Class [A-4] Certificates and the Class A-3-1FL Regular Interest, pro rata, based on their respective Certificate Balances, in reduction of their respective Certificate Balances, until the Certificate Balance of each such Class is reduced to zero, provided that Principal Distribution Amounts distributed to the Holders of the Class [A-4] Certificates will be applied first to the Class [A-4A] Certificates until the aggregate Certificate Balance of such Class is reduced to zero and then to the Class [A-4B] Certificates until the aggregate Certificate Balance of such Class is reduced to zero; and







 



	
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second, to the Holders of the Class [A-1], Class [A-1A], Class [A-2], Class [A-3-1], Class [A-3-2], Class [A-AB] and Class [A-4] Certificates and the Class A-3-1FL Regular Interest, pro rata, based on the respective amounts of unreimbursed Realized Losses previously allocated to each such Class, plus one month’s interest on such Realized Losses at the applicable Pass-Through Rate, provided that such amounts with respect to the Class [A-4] Certificates will be allocated first to the Class [A-4A] Certificates until such unreimbursed losses are reimbursed, together with interest at the applicable Pass-







 









  





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Through Rate, and then to the Class [A-4B] Certificates until such unreimbursed losses are reimbursed, together with interest at the applicable Pass-Through Rate.


 


Such distribution of the Principal Distribution Amount to the Holders of the Class [A-1] Certificates, Class [A-1A] Certificates, Class [A-2] Certificates, Class A-3-1FL Regular Interest, Class [A-3-1] Certificates, Class [A-3-2] Certificates, Class [A-AB] Certificates, Class [A-4A] Certificates and Class [A-4B] Certificates, respectively, shall be deemed to be made to REMIC II Regular Interests A-1-1, A-1-2 and A-1-3, REMIC II Regular Interests A-1A-1, A-1A-2, A-1A-3, A-1A-4, A-1A-5, A-1A-6, A-1A-7, A-1A-8, and A-1A-9,  REMIC II Regular Interest A-2, REMIC II Regular Interests A-3-1FL-1, A-3-1FL-2, A-3-1FL-3 and A-3-1FL-4, REMIC II Regular Interests A-3-1-1, A-3-1-2, A-3-1-3 and A-3-1-4, REMIC II Regular Interests A-3-2-1 and A-3-2-2, REMIC II Regular Interests A-AB-1, and A-AB-2, REMIC II Regular Interests A-4A-1, A-4A-2 and A-4A-3 and REMIC II Regular Interest A-4B, respectively, in the same order and priority as the distributions described in Section 6.3(a).


 


(b) On each Distribution Date, following the above-described distributions on the Principal Balance Certificates and the Class [X-1] Certificates, Class [X-2] Certificates and Class [X-Y] Certificates, the Paying Agent shall withdraw amounts in the Reserve Account and shall pay the Certificateholders on such Distribution Date such amounts in the following priority:


 


(i) first, from amounts in the Reserve Account with respect to all Mortgage Loans, to reimburse the Holders of the Class [A] Certificates (other than the Class [A-3-1FL] Certificates), the Class A-3-1FL Regular Interest and the Class [X] Certificates, pro rata, and then the remaining amounts to reimburse the Principal Balance Certificates (other than the Class [A] Certificates) (in order of alphabetical and numerical Class designation) for any, and to the extent of, Realized Losses previously allocated to them and not previously fully reimbursed, plus one month’s interest at the applicable Pass-Through Rate on such Realized Losses; provided, that such amounts in respect of the Class [A-4] Certificates will be allocated first to the Class [A-4A] Certificates until such Realized Losses previously allocated thereto are reimbursed together with all applicable interest at the applicable Pass-Through Rate and then to the Class [A-4B] Certificates until such Realized Losses previously allocated thereto are reimbursed together with all applicable interest at the applicable Pass-Through Rate; and


 


(ii) second, upon the reduction of the Aggregate Certificate Balance of the Principal Balance Certificates (other than the Class [A-3-1FL] Certificates) and the Class A-3-1FL Regular Interest to zero, to pay any amounts remaining on deposit in such account to the Special Servicer as additional Special Servicer Compensation.


 


Amounts reimbursed pursuant to Section 6.5(b)(i) shall be deemed to be applied to reimbursement of Realized Losses previously allocated to the REMIC II Regular Interests and the REMIC I Regular Interests in the reverse sequential order and priority as such Realized Losses were applied thereto.


 


(c) On each Distribution Date, the Paying Agent shall withdraw from the Excess Interest Sub-account any Excess Interest on deposit therein, and the Paying Agent shall distribute such Excess Interest on such Distribution Date to the Class [EI] Certificates.


 









  





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Section 6.6 Allocation of Realized Losses, Expense Losses and Shortfalls Due to Nonrecoverability


 


(a) REMIC I.  On each Distribution Date, except as provided in subsection (b) below,


 


(i) Realized Principal Losses on each Mortgage Loan realized during the related Collection Period shall reduce the Certificate Balance of the Corresponding REMIC I Regular Interest;


 


(ii) Realized Interest Losses on each Mortgage Loan shall be allocated to reduce first, Distributable Certificate Interest for such Distribution Date, and then Unpaid Interest in each case owing on the Corresponding REMIC I Regular Interests (and as between the related Group X-Y REMIC I Regular Interest and Group PB REMIC I Regular Interest, pro rata, based on Distributable Certificate Interest otherwise payable thereon); and to the extent that such Realized Interest Loss exceeds such amount, shall be treated as an Expense Loss; and


 


(iii) Expense Losses (not otherwise applied above) realized during the related Collection Period shall be allocated among the REMIC I Regular Interests in proportion to their Certificate Balances or Notional Amounts (and, as between the related Group X-Y REMIC I Regular Interest and Group PB REMIC I Regular Interest, in proportion to Distributable Certificate Interest or Unpaid Interest, as applicable) after making all other allocations for such Distribution Date.


 


(b) In the event that the Master Servicer, the Special Servicer or the Trustee determines that an Advance previously made by it (whether such Advance (together with Advance Interest thereon) was in respect of principal or interest on the related Mortgage Loan or a Servicing Advance) is a Nonrecoverable Advance and the Master Servicer withdraws the amount of such Advance from the applicable Certificate Account pursuant to Section 5.2(a) hereof (which amount shall be treated as an Available Advance Reimbursement Amount pursuant to Section 4.6 or if the Master Servicer determines any Unliquidated Advance has become a Nonrecoverable Advance), the Master Servicer (after consultation with the Special Servicer) shall compute the Realized Loss with respect to such Mortgage Loan (and the Paying Agent shall allocate the Realized Loss) as follows:


 


(i) the amount withdrawn from the Certificate Account shall be treated as Realized Principal Losses up to the amount of the aggregate amount in the Certificate Account allocable to principal for such Collection Period contemplated by clause (I)(A) of the definition of Principal Distribution Amount, and shall be allocated to the Corresponding REMIC I Regular Interest in accordance with Section 6.6(a)(i) (and to the extent that any Realized Principal Loss exceeds the Certificate Balance of the Corresponding REMIC I Regular Interest, such Realized Principal Loss shall be allocated to the other Corresponding REMIC I Regular Interests in accordance with Section 6.6(a)(iii)), and such withdrawal shall reduce the principal paid on each such REMIC I Regular Interest on which principal would otherwise be paid on such Distribution Date, in proportion to such principal payments; and


 









  





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(ii) if the amount that the Master Servicer withdraws from the Certificate Account as referenced in clause (b)(i) above exceeds such amounts allocable to principal for such Collection Period, then such additional amounts shall constitute Unpaid Interest, and shall be allocated to the REMIC I Regular Interests on a pro rata basis based upon the amount of accrued and unpaid interest thereon.


 


(c) At such time as a Final Recovery Determination is made with respect to any Mortgage Loan with respect to which the Master Servicer previously had withdrawn amounts from the applicable Certificate Account following a determination that Advances previously made were Nonrecoverable Advances and Realized Losses were computed and allocated pursuant to clauses (a) and (b) above, and amounts are recovered:


 


(i) the portion of the amount of collections recovered on the Mortgage Loan that is identified and applied by the Master Servicer as recoveries of principal shall be applied first, to make payments of principal on the Corresponding REMIC I Regular Interest up to an amount equal to the Realized Principal Losses previously allocated thereto as a result of the reimbursement of Nonrecoverable Advances or Advance Interest (and the Principal Balance of the Mortgage Loan and the related Certificate Balance of the Corresponding REMIC I Regular Interest shall be correspondingly increased), and thereafter to make payments of principal to the Corresponding REMIC I Regular Interests with respect to which principal distributions were reduced pursuant to Section 6.6(b)(i) above, in proportion to the amount of such reductions; and


 


(ii) the portion of the amount recovered on the Mortgage Loan that is identified and applied by the Master Servicer as recoveries of interest shall be applied to make payments of Unpaid Interest on the REMIC I Regular Interests with respect to which Unpaid Interest was allocated pursuant to Section 6.6(b)(ii).


 


(d) REMIC II.  On each Distribution Date, all Realized Losses and Expense Losses on the REMIC I Regular Interests for such Distribution Date (or for prior Distribution Dates, to the extent not previously allocated) shall be allocated to the REMIC II Regular Interests in the amounts and in the manner as will be allocated to the Corresponding Certificates relating thereto pursuant to Section 6.6(f)); provided, however, that Realized Losses and Expense Losses allocated to REMIC II Regular Interests shall be allocated among the Corresponding Components sequentially in alphabetical and numerical order.  Realized Interest Losses allocated to the Class [X-1] and Class [X-2] Certificates shall reduce the amount of interest payable on the REMIC II Regular Interest A-1-1, REMIC II Regular Interest A-1-2, REMIC II Regular Interest A-1-3, REMIC II Regular Interest A-1A-1, REMIC II Regular Interest A-1A-2, REMIC II Regular Interest A-1A-3, REMIC II Regular Interest A-1A-4, REMIC II Regular Interest A-1A-5, REMIC II Regular Interest A-1A-6, REMIC II Regular Interest A-1A-7, REMIC II Regular Interest A-1A-8, REMIC II Regular Interest A-1A-9, REMIC II Regular Interest A-2, REMIC II Regular Interest A-3-1FL-1, REMIC II Regular Interest A-3-1FL-2, REMIC II Regular Interest A-3-1FL-3, REMIC II Regular Interest A-3-1FL-4, REMIC II Regular Interest A-3-1-1, REMIC II Regular Interest A-3-1-2, REMIC II Regular Interest A-3-1-3, REMIC II Regular Interest A-3-1-4, REMIC II Regular Interest A-3-2-1, REMIC II Regular Interest A-3-2-2, REMIC II Regular Interest A-AB-1, REMIC II Regular Interest A-AB-2, REMIC II Regular Interest A-4A-1, REMIC II Regular Interest A-4A-2, REMIC II Regular Interest A-4A-3,


 









  





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REMIC II Regular Interest A-4B, REMIC II Regular Interest A-J, REMIC II Regular Interest B-1, REMIC II Regular Interest B-2, REMIC II Regular Interest B-3, REMIC II Regular Interest C-1, REMIC II Regular Interest C-2, REMIC II Regular Interest D-1, REMIC II Regular Interest D-2, REMIC II Regular Interest E, REMIC II Regular Interest F-1, REMIC II Regular Interest F-2, REMIC II Regular Interest G, REMIC II Regular Interest H-1, REMIC II Regular Interest H-2, REMIC II Regular Interest J, REMIC II Regular Interest K, REMIC II Regular Interest L, REMIC II Regular Interest M, REMIC II Regular Interest N, REMIC II Regular Interest O and REMIC II Regular Interest P, which reduction shall be allocated pro rata based on the product of the Certificate Balance of such REMIC II Regular Interest and the sum of the Class X-1 Strip Rate and the Class X-2 Strip Rate (if any) applicable to the Corresponding Component relating to such REMIC II Regular Interest.


 


(e) Reserved.


 


(f) REMIC III.  On each Distribution Date, all Realized Losses on the REMIC II Regular Interests for such Distribution Date (or for prior Distribution Dates, to the extent not previously allocated) shall be allocated to the REMIC III Regular Interests in Reverse Sequential Order, with such reductions being allocated among the Class [A-1], Class [A-1A], Class [A-2], Class [A-3-1], Class [A-3-2], Class [A-AB], Class [A-4A] and Class [A-4B] Certificates and the Class A-3-1FL Regular Interest and, in the case of interest, Class [X-1], Class [X-2] and Class [X-Y] Certificates, pro rata, in each case reducing (A) the Certificate Balance of such Class until such Certificate Balance is reduced to zero (in the case of the Class A Certificates, other than the Class [A-3-1FL] Certificates, and the Class A-3-1FL Regular Interest); (B) Unpaid Interest owing to such Class to the extent thereof; and (C) Distributable Certificate Interest owing to such Class, provided that Realized Losses shall not reduce the Aggregate Certificate Balance of the REMIC Regular Certificates and the Class A-3-1FL Regular Interest below the sum of the Aggregate Certificate Balances of the REMIC II Regular Interests; provided, further, that losses allocated to the Class [A-4] Certificates will be applied first to the Class [A-4B] Certificates until such Certificate Balance is reduced to zero and then to the Class [A-4A] Certificates until such Certificate Balance is reduced to zero.


 


Section 6.7 Net Aggregate Prepayment Interest Shortfalls


 


On each Distribution Date, any Net Aggregate Prepayment Interest Shortfalls in the Mortgage Loans in REMIC I (other than any Specially Designated Co-op Mortgage Loan) shall be allocated among the REMIC I Regular Interests, pro rata in proportion to the Accrued Certificate Interest for each such REMIC I Regular Interest for such Distribution Date (without taking into account any Class X-Y Interest Amount) and shall reduce Distributable Certificate Interest for each such Interest.  On each Distribution Date, any such Net Aggregate Prepayment Interest Shortfalls in the REMIC I Regular Interests held by REMIC II shall be allocated among the REMIC II Regular Interests (other than REMIC II Regular Interest X-Y), pro rata in proportion to the Accrued Certificate Interest for each such REMIC II Regular Interest for such Distribution Date (without taking into account any Class X-Y Interest Amount) and shall reduce Distributable Certificate Interest for each such Interest.  On each Distribution Date, the amount of any such Net Aggregate Prepayment Interest Shortfalls on the REMIC III Regular Interests shall be allocated to each Class of Certificates (other than Class [A-3-1FL] Certificates and the Class [X-Y] Certificates) and the Class A-3-1FL Regular Interest, pro rata, in proportion to the


 









  





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amount of Accrued Certificate Interest payable to such Class of Certificates on such Distribution Date (without taking into account any Class X-Y Interest Amount), in each case reducing interest otherwise payable thereon.  The amount of Net Aggregate Prepayment Interest Shortfalls allocated to a Class of Certificates pursuant to the preceding sentence shall reduce the Distributable Certificate Interest for such Class for such Distribution Date (without taking into account any Accrued Certificate Interest payable to the Holders of the Class [X-Y] Certificates on such Distribution Date.)  On each Distribution Date, any Net Aggregate Prepayment Interest Shortfalls in respect of any Specially Designated Co-op Mortgage Loan shall be allocated among the REMIC I Regular Interests, pro rata in proportion to the Accrued Certificate Interest for each such REMIC I Regular Interest for such Distribution Date and shall reduce Distributable Certificate Interest for each such Interest.  On each Distribution Date, any such Net Aggregate Prepayment Interest Shortfalls in the REMIC I Regular Interests held by REMIC II shall be allocated among the REMIC II Regular Interests, pro rata in proportion to the Accrued Certificate Interest for each such REMIC II Regular Interest for such Distribution Date and shall reduce Distributable Certificate Interest for each such REMIC II Regular Interest.  On each Distribution Date, any such Net Aggregate Prepayment Interest Shortfalls in the REMIC III Regular Interests shall be allocated among the REMIC III Regular Interests, pro rata in proportion to the Accrued Certificate Interest for each such REMIC III Regular Interests for such Distribution Date and shall reduce Distributable Certificate Interest for each such REMIC III Regular Interest.  No portion of any Net Aggregate Prepayment Interest Shortfalls for any Distribution Date that is attributable to a Mortgage Loan that is not a Specially Designated Co-op Mortgage Loan shall be allocable to or reduce interest distributions on the Class [X-Y] Certificates.  Any amounts of Net Aggregate Prepayment Interest Shortfalls allocated to the Class A-3-1FL Regular Interest shall reduce the amount of interest distributable to the Class [A-3-1FL] Certificates by an equivalent amount.


 


Section 6.8 Adjustment of Servicing Fees


 


The Master Servicing Fee payable to the Master Servicer shall be adjusted as provided in Section 8.10(c) herein.  Any amount retained by REMIC I as a result of a reduction of the Master Servicing Fee shall be treated as interest collected with respect to the prepaid Mortgage Loans with respect to which the Master Servicing Fee adjustment occurs.


 


Section 6.9 Appraisal Reductions


 


Not later than the date on which an Appraisal Event occurs, the Special Servicer shall have obtained (A) an Appraisal of the Mortgaged Property securing the related Mortgage Loan if the Principal Balance of such Mortgage Loan exceeds $2,000,000 or (B) at the option of the Special Servicer, if such Principal Balance is less than or equal to $2,000,000, either an internal valuation prepared by the Special Servicer in accordance with MAI standards (which internal valuation shall ascribe a value for any residential cooperative property based on the value of such property as if operated as a residential cooperative) or an Appraisal which in all cases shall be completed as of the date that such Mortgage Loan becomes a Required Appraisal Loan; provided that if the Special Servicer had completed or obtained an Appraisal or internal valuation within the immediately prior 12 months, the Special Servicer may rely on such Appraisal or internal valuation and shall have no duty to prepare a new Appraisal or internal valuation, unless such reliance would not be in accordance with the Servicing Standard;


 









  





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provided, further, that if the Special Servicer is required to obtain an Appraisal of a Mortgaged Property or prepare an internal valuation after receipt of the notice described in clause (ii) of the definition of Appraisal Event, such Appraisal or internal valuation will be obtained or prepared, as the case may be, no later than 60 days after receipt of such notice.  With respect to each Mortgage Loan that is cross-collateralized with any other Mortgage Loan, the Appraisal or internal valuation need only be performed with respect to Mortgaged Properties that constitute the principal security for the individual Mortgage Loan to which an Appraisal Event occurs, and not with respect to all of the Mortgaged Properties that constitute security for the individual Mortgage Loan in the cross-collateralized group.  Such Appraisal or valuation shall be conducted in accordance with the definition of “market value” as set forth in 12 C.F.R. § 225.62 and shall be updated at least annually from the date of such Appraisal or valuation, as applicable, to the extent such Mortgage Loan remains a Required Appraisal Loan.  The cost of any such Appraisal or valuation, if not performed by the Special Servicer, shall be an expense of the Trust and may be paid from REO Income or, to the extent collections from such related Mortgage Loan or Mortgaged Property does not cover the expense, such unpaid expense shall be, subject to Section 4.4 hereof, advanced by the Master Servicer at the request of the Special Servicer pursuant to Section 4.6 in which event it shall be treated as a Servicing Advance.  The Special Servicer shall calculate any Appraisal Reduction.  The Master Servicer shall recalculate the Appraisal Reduction for any Mortgage Loan based on the original Appraisal or updated Appraisals or internal valuations provided from time to time to it by the Special Servicer and report such amount to the Trustee.  The Special Servicer shall provide notice of any Appraisal Event with respect to a Mortgage Loan to the Master Servicer and the Operating Adviser on the day of determination of such Appraisal Event.


 


Appraisal Reductions allocated to any Mortgage Loan shall be allocated to the Certificate Principal Balance of the related Classes of Principal Balance Certificates in the order of their subordination, i.e., in Reverse Sequential Order.


 


Section 6.10 Compliance with Withholding Requirements


 


Notwithstanding any other provision of this Agreement to the contrary, the Paying Agent on behalf of the Trustee shall comply with all federal withholding requirements with respect to payments to Certificateholders of interest, original issue discount, or other amounts that the Paying Agent reasonably believes are applicable under the Code, giving effect to all applicable exemptions from withholding as to which the recipient has furnished the applicable and effective certification or other documentation.  The consent of Certificateholders shall not be required for any such withholding and any amount so withheld shall be regarded as distributed to the related Certificateholders for purposes of this Agreement.  In the event the Paying Agent withholds any amount from payments made to any Certificateholder pursuant to federal withholding requirements, the Paying Agent shall indicate to such Certificateholder the amount withheld.  The Trustee shall not be responsible for the Paying Agent’s failure to comply with any withholding requirements.


 


Section 6.11 Prepayment Premiums and Yield Maintenance Charges


 


On any Distribution Date prior to and including the Distribution Date on which the Certificate Balance of the Class A Senior Certificates has been reduced to zero, Prepayment


 









  





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Premiums or Yield Maintenance Charges collected with respect to a Mortgage Loan in a particular Loan Group during any particular Collection Period will be distributed by the Paying Agent on the Classes of Certificates as follows: (i) first, the Paying Agent shall be deemed to distribute to the Trustee, as holder of the Group PB REMIC I Regular Interest to which such Mortgage Loan relates, any Prepayment Premiums collected on or with respect to such Mortgage Loan in that Loan Group on that Distribution Date; and (ii) second, the Paying Agent shall be deemed to distribute to the Trustee, as holder of the REMIC II Regular Interests, any Prepayment Premiums deemed distributed to the REMIC I Regular Interests, and shall be deemed to distribute such Prepayment Premiums to the REMIC II Regular Interest then entitled to distributions of principal from the Principal Distribution Amount (or, if more than one Class of REMIC II Regular Interests is then entitled to distributions of principal from the Principal Distribution Amount, such Prepayment Premiums shall be deemed distributed among such Classes pro rata in accordance with the relevant amounts of entitlements to distributions of principal).


 


Following such deemed distributions, the Holders of the respective Classes of Principal Balance Certificates (other than the Class [J], Class [K], Class [L], Class [M], Class [N], Class [O] and Class [P] Certificates) and the Class A-3-1FL Regular Interest then entitled to distributions of principal from the Principal Distribution Amount for such Distribution Date, will be entitled to, and the Paying Agent on behalf of the Trustee will pay to such Holder(s), an amount equal to, in the case of each such Class, the product of (a) a fraction, the numerator of which is the amount distributed as principal to the Holders of that Class on that Distribution Date, and the denominator of which is the total amount distributed as principal to the Holders of all Classes of Principal Balance Certificates on that Distribution Date, (b) the Base Interest Fraction for the related Principal Prepayment and that Class of Certificates and (c) the amount of Prepayment Premiums or Yield Maintenance Charges in respect of such principal prepayment during the related Collection Period.  If there is more than one such Class of Principal Balance Certificates entitled to distributions of principal on such Distribution Date, the aggregate amount described in the preceding sentence will be allocated among such Classes on a pro rata basis in accordance with the relative amounts of entitlement to such distributions of principal.  Any portion of such Prepayment Premium or Yield Maintenance Charge that is not so distributed to the Holders of such Principal Balance Certificates will be distributed to the Holders of the Class [X-1] and Class [X-2] Certificates.  On or prior to the Distribution Date in ____________, [80]% of the Prepayment Premium or Yield Maintenance Charge that is not so distributed to the Holders of such Principal Balance Certificates will be distributed to the Holders of the Class [X-1] Certificates and [20]% of the Prepayment Premium or Yield Maintenance Charge that is not so distributed to the Holders of such Principal Balance Certificates will be distributed to the Holders of the Class [X-2] Certificates.  After the Distribution Date in ____________, any portion of such Prepayment Premium or Yield Maintenance Charge collected during the related Collection Period that is not so distributed to the Holders of such Principal Balance Certificates will be distributed to the Holders of the Class [X-1] Certificates.  For so long as the Swap Contract or any replacement swap contract is in effect, the Prepayment Premium allocated to the Class A-3-1FL Regular Interest shall be payable to the Swap Counterparty pursuant to the terms of the Swap Contract.  If the Swap Contract and any replacement swap contract are no longer in effect, any Prepayment Premium allocated to the Class A-3-1FL Regular Interest shall be distributed to the Class [A-3-1FL] Certificates.


 









  





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Notwithstanding the foregoing, Yield Maintenance Charges collected during any Collection Period with respect to any Specially Designated Co-op Mortgage Loan will be distributed to the REMIC III Regular Interests as follows, with allocations to be made pursuant to the following (a) and (b) on a pro rata basis:  (a)  if the amount of such Yield Maintenance Charges exceeds any applicable Yield Maintenance Minimum Amount, (x) the amount of such Yield Maintenance Charges that would have been payable with respect to such Specially Designated Co-op Mortgage Loan if the related Mortgage Rate was equal to the related REMIC I Net Mortgage Rate with respect to such Mortgage Loan (calculated without regard to any Yield Maintenance Minimum Amount) will be distributed as set forth above, and (y) the amount of such Yield Maintenance Charges actually payable during such Collection Period in excess of the amount to be distributed pursuant to clause (x) will be distributed to the Holders of the Class [X-Y] Certificates; (b) if the amount of such Yield Maintenance Charges equals any applicable Yield Maintenance Minimum Amount, such Yield Maintenance Charges shall be distributed as follows: (x) [50%] to the Holders of the Class [A-1], Class [A-1A], Class [A-2], Class [A-3-1], Class [A-3-2], Class [A-AB], Class [A-4A], Class [A-4B], Class [A-J], Class [B], Class [C], Class [D], Class [E], Class [F], Class [G], Class [H], Class [X-1] and Class [X-2] Certificates and the Class A-3-1FL Regular Interest, allocable among such Classes as set forth in the paragraphs above, and (y) [50%] to the Holders of the Class [X-Y] Certificates; and (c) notwithstanding the foregoing, Prepayment Premiums collected during any Collection Period with respect to any Specially Designated Co-op Mortgage Loan shall be distributed as follows: (a) [50%] to the Holders of the Class [A-1], Class [A-1A], Class [A-2], Class [A-3-1], Class [A-3-2], Class [A-AB], Class [A-4A], Class [A-4B], Class [A-J], Class [B], Class [C], Class [D], Class [E], Class [F], Class [G], Class [H], Class [X-1] and Class [X-2] Certificates and the Class A-3-1FL Regular Interest, allocable among such Classes as set forth in the paragraph above, and (b) [50%] to the Holders of the Class [X-Y] Certificates.


 


Section 6.12 Other Distributions.


 


On each Distribution Date, the Paying Agent shall distribute the Class A-3-1FL Available Funds for such Distribution Date to the Holders of record of the Class [A-3-1FL] Certificates as of the related Record Date in the following amounts:  (i) the Class A-3-1FL Interest Distribution Amount, (ii) the Class A-3-1FL Principal Distribution Amount, (iii) any termination payments made by the Swap Counterparty and not used by the Paying Agent to enter into a replacement swap contract, and (iv) only if the Swap Contract has been terminated and no replacement Swap Contract has been entered into, any Prepayment Premiums that were allocated to the Class A-3-1FL Regular Interest.  No Holder of a Class [A-3-1FL] Certificate shall be entitled to receive any portion of any Prepayment Premium paid on the Class A-3-1FL Regular Interest unless the Swap Contract has been terminated and no replacement Swap Contract has been entered into.  Such amount shall be payable to the Swap Counterparty pursuant to the terms of the Swap Contract.  Following a Swap Default under the Swap Contract or other default or event of termination of the Swap Contract, and during the period when the Trustee is pursuing remedies under such Swap Contract, the Class A-3-1FL Interest Distribution Amount for each Class [A-3-1FL] Certificate shall equal the Distributable Certificate Interest amount for the Class A-3-1FL Regular Interest, until such time as the conditions giving rise to such Swap Default or other default have been cured.  Any such Swap Default, other default or event of termination, and the consequent change to a fixed Pass-Through Rate shall not constitute a default under this Agreement.  To the extent required by The Depository Trust Company, a Swap


 









  





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Default can result in a delay in the distribution of amounts payable to the Class [A-3-1FL] Certificates and such delay will not constitute a default under this Agreement nor result in the accrual of interest on such delayed payment and no party hereto shall be obligated to advance such amounts.  Notwithstanding the foregoing, to the extent provided in the Swap Contract, the Swap Counterparty will remain liable for such Swap Default or other default or event of termination pursuant to the Swap Contract.


 


For as long as a Swap Default or other default or event of termination has occurred and a Class [A-3-1FL] Certificate is receiving the fixed Pass-Through Rate, such Class [A-3-1FL] Certificate shall accrue interest at the same rate, on the same basis and in the same manner as the related Class A-3-1FL Regular Interest.


 


If the Swap Contract becomes subject to early termination due to the occurrence of an event of default or a termination event thereunder, the Paying Agent on behalf of the Trustee shall promptly provide written notice to the Holders of the Class [A-3-1FL] Certificates and the Paying Agent shall take such commercially reasonable actions (following the expiration of any applicable grace period), unless directed in writing by the Certificateholders evidencing, in the aggregate, not less than 100% of the Voting Rights of the Class [A-3-1FL] Certificates, to enforce the rights of the Trust under the Swap Contract as may be permitted by the terms of the Swap Contract and consistent with the terms hereof (and only to the extent that, and only for so long as, doing so does not lead the Paying Agent to incur expenses in excess of the amounts available to it for reimbursement), and shall apply the proceeds collected from the Swap Counterparty in connection with any such actions (including, without limitation, the proceeds of the liquidation of any collateral pledged by the Swap Counterparty) to enter into a replacement interest rate swap contract on substantially identical terms or on such other terms reasonably acceptable to the Trustee as directed by 100% of the Holders of the Class [A-3-1FL] Certificates.  Each Rating Agency shall confirm in writing that such action will not result in a qualification, downgrade or withdrawal of the then-current ratings of the Certificates.  If the costs attributable to entering into a replacement interest rate swap contract will exceed the sum of the net proceeds of the liquidation of the Swap Contract, a replacement interest rate swap contract shall not be entered into.  Prior to the application of any proceeds in accordance with the terms of this paragraph, such proceeds shall be deposited in the Floating Rate Account.  Any proceeds of the liquidation of the Swap Contract which exceed the costs attributable to entering into a replacement interest rate swap contract (or if no replacement interest rate swap contract is entered into) shall be deposited into the Floating Rate Account and shall be distributed to the Holders of the Class [A-3-1FL] Certificates.


 


The Trustee and the Paying Agent shall be entitled to conclusively rely on the report from the Swap Counterparty that specifies LIBOR for any Interest Accrual Period (in the absence of manifest error).


 


As long as the Swap Contract is in effect, each beneficial owner of a Class [A-3-1FL] Certificate, or any interest therein, shall be deemed to have represented that either (i) it is not an employee benefit plan subject to Title I of ERISA, a plan subject to Section 4975 of the Code, or a plan subject to any Similar Laws or any person investing on behalf of or with plan assets of such employee benefit plan or plan or (ii) the acquisition and holding of such


 


 









  





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Certificate are eligible for the exemptive relief available under at least one of the Investor-Based Exemptions.


 


Notwithstanding anything herein to the contrary, any expenses incurred by the Trustee under this Section 6.12 shall be paid by the Class A-3-1FL Grantor Trust, and not by any other trust hereunder, but only upon the Trustee’s determination that such expenses cannot be recovered from the Swap Counterparty or any proceeds due under the Swap Contract; provided, however, that either without the consent of 100% of the Holders of the Class [A-3-1FL] Certificates or the written confirmation of each Rating Agency then rating the Class [A-3-1FL] Certificates that such action or event will not result in the reduction, qualification or withdrawal of its then current rating of the Class [A-3-1FL] Certificates (the expense of such confirmation to be borne by the holders of the Class [A-3-1FL] Certificates), the Trustee shall not be permitted to incur such costs and expenses in excess of any termination payment received from the Swap Counterparty and not otherwise applied to offset the expense of entering into a replacement swap contract.  Factors that the Trustee may consider when making a recoverability determination with respect to the reimbursement of such expenses include, but are not limited to, (i) the financial condition of the Swap Counterparty and (ii) the likelihood that the Swap Counterparty will make such reimbursements in the event the Trustee pursues appropriate legal action or other commercially reasonable enforcement and collection measures.


 


ARTICLE VII


 


CERTAIN MATTERS CONCERNING THE TRUSTEE AND THE PAYING AGENT


 


Section 7.1 Duties of the Trustee and the Paying Agent


 


(a) The Trustee and the Paying Agent each shall undertake to perform only those duties as are specifically set forth in this Agreement and no implied covenants or obligations shall be read into this Agreement against the Trustee or the Paying Agent.  Any permissive right of the Trustee or the Paying Agent provided for in this Agreement shall not be construed as a duty of the Trustee or the Paying Agent.  The Trustee shall exercise such of the rights and powers vested in it by this Agreement and following the occurrence and during the continuation of any Event of Default hereunder, the Trustee shall use the same degree of care and skill in its exercise as a prudent Person would exercise or use under the circumstances in the conduct of such Person’s own affairs.


 


(b) The Trustee or the Paying Agent, as applicable, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trustee or the Paying Agent, as the case may be, which are specifically required to be furnished pursuant to any provision of this Agreement, shall examine them to determine whether they on their face conform to the requirements of this Agreement; provided that the Trustee or the Paying Agent, as the case may be, shall not be responsible for the accuracy or content of any such resolution, certificate, statement, opinion, report, document, order or other instrument furnished by the Master Servicer or any other Person to it pursuant to this Agreement.  If any such instrument is found on its face not to conform to the requirements of this Agreement, the Trustee or the Paying Agent shall request the providing party to correct the instrument and if not so corrected, the Trustee shall inform the Certificateholders.


 


 




  





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(c) Neither of the Trustee or the Paying Agent or any of their respective partners, representatives, Affiliates, members, managers, directors, officers, employees, agents or Controlling Persons shall have any liability to the Trust or the Certificateholders arising out of or in connection with this Agreement, except for their respective negligence or willful misconduct.  No provision of this Agreement shall be construed to relieve the Trustee, the Paying Agent or any of their respective partners, representatives, Affiliates, members, managers, directors, officers, employees, agents or Controlling Persons from liability for their own negligent action, their own negligent failure to act or their own willful misconduct or bad faith; provided that:


 


(i) neither of the Trustee or the Paying Agent or any of their respective partners, representatives, Affiliates, members, managers, directors, officers, employees, agents or Controlling Persons shall be personally liable with respect to any action taken, suffered or omitted to be taken by it in its reasonable business judgment in accordance with this Agreement or at the direction of Holders of Certificates evidencing not less than a majority of the outstanding Certificate Balance of the Certificates;


 


(ii) no provision of this Agreement shall require either the Trustee or the Paying Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it;


 


(iii) neither of the Trustee or the Paying Agent or any of their respective partners, representatives, Affiliates, members, managers, directors, officers, employees, agents or Controlling Persons shall be responsible for any act or omission of the Master Servicer, the Special Servicer, the Depositor or any Seller, or for the acts or omissions of each other, including, without limitation, in connection with actions taken pursuant to this Agreement;


 


(iv) the execution by the Trustee or the Paying Agent of any forms or plans of liquidation in connection with any REMIC Pool shall not constitute a representation by the Trustee or the Paying Agent as to the adequacy of such form or plan of liquidation;


 


(v) neither of the Trustee or the Paying Agent shall be under any obligation to appear in, prosecute or defend any legal action which is not incidental to its duties as Trustee or Paying Agent, as applicable, in accordance with this Agreement.  In such event, all legal expense and costs of such action shall be expenses and costs of the Trust and the Trustee and the Paying Agent shall be entitled to be reimbursed therefor from the Certificate Account pursuant to Section 5.2(a)(vi); and


 


(vi) neither of the Trustee or the Paying Agent shall be charged with knowledge of any failure by the Master Servicer, the Special Servicer or the Swap Counterparty or by each other to comply with its obligations under this Agreement or the Swap Contract or any act, failure, or breach of any Person upon the occurrence of which the Trustee or the Paying Agent may be required to act, unless a Responsible Officer of the Trustee or the Paying Agent, as the case may be, obtains actual knowledge of such failure.


 









  





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Section 7.2 Certain Matters Affecting the Trustee and the Paying Agent


 


(a) Except as otherwise provided in Section 7.1:


 


(i) the Trustee and the Paying Agent each may request, and may rely and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;


 


(ii) the Trustee and the Paying Agent each may consult with counsel and the advice of such counsel and any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance with such advice or Opinion of Counsel;


 


(iii) neither of the Trustee or the Paying Agent or any of their respective partners, representatives, Affiliates, members, managers, directors, officers, employees, agents or Controlling Persons shall be personally liable for any action taken, suffered or omitted by such Person in its reasonable business judgment and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;


 


(iv) the Trustee and the Paying Agent shall not be under any obligation to exercise any remedies after default as specified in this Agreement or to institute, conduct or defend any litigation hereunder or relating hereto or make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document (provided the same appears regular on its face), unless requested in writing to do so by Holders of at least 25% of the Aggregate Certificate Balance of the Certificates then outstanding, provided that, if the payment within a reasonable time to the Trustee or the Paying Agent, as applicable, of the costs, expenses or liabilities likely to be incurred by it in connection with the foregoing is, in the opinion of such Person not reasonably assured to such Person by the security afforded to it by the terms of this Agreement, such Person may require reasonable indemnity against such expense or liability or payment of such estimated expenses as a condition to proceeding.  The reasonable expenses of the Trustee or the Paying Agent, as applicable, shall be paid by the Certificateholders requesting such examination;


 


(v) the Trustee and the Paying Agent each may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys, which agents or attorneys shall have any or all of the rights, powers, duties and obligations of the Trustee and the Paying Agent conferred on them by such appointment; provided that each of the Trustee and the Paying Agent, as the case may be, shall continue to be responsible for its duties and obligations hereunder and shall not be liable for the actions or omissions of the Master Servicer, the Special Servicer, the Depositor or the actions or omissions of each other;


 









  





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(vi) neither of the Trustee or the Paying Agent shall be required to obtain a deficiency judgment against a Mortgagor;


 


(vii) neither of the Trustee or the Paying Agent shall be required to expend its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such liability is not assured to it;


 


(viii) neither of the Trustee or the Paying Agent shall be liable for any loss on any investment of funds pursuant to this Agreement;


 


(ix) unless otherwise specifically required by law, neither of the Trustee or the Paying Agent shall be required to post any surety or bond of any kind in connection with the execution or performance of its duties hereunder; and


 


(x) except as specifically provided hereunder in connection with the performance of its specific duties, neither of the Trustee or the Paying Agent shall be responsible for any act or omission of the Master Servicer, the Special Servicer, the Depositor or of each other.


 


(b) Following the Closing Date, the Trustee shall not accept any contribution of assets to the Trust not specifically contemplated by this Agreement unless the Trustee shall have received a Nondisqualification Opinion at the expense of the Person desiring to contribute such assets with respect to such contribution.


 


(c) All rights of action under this Agreement or under any of the Certificates, enforceable by the Trustee, may be enforced by it without the possession of any of the Certificates, or the production thereof at the trial or any proceeding relating thereto, and any such suit, action or proceeding instituted by the Trustee shall be brought in its name for the benefit of all the Holders of such Certificates, subject to the provisions of this Agreement.


 


(d) The Trustee shall timely pay, from its own funds, the amount of any and all federal, state and local taxes imposed on the Trust or its assets or transactions including, without limitation, (A) “prohibited transaction” penalty taxes as defined in Section 860F of the Code, if, when and as the same shall be due and payable, (B) any tax on contributions to a REMIC after the Closing Date imposed by Section 860G(d) of the Code and (C) any tax on “net income from foreclosure property” as defined in Section 860G(c) of the Code, but only if such taxes arise out of a breach by the Trustee of its obligations hereunder, which breach constitutes negligence or willful misconduct of the Trustee.


 


(e) The Paying Agent shall timely pay, from its own funds, the amount of any and all federal, state and local taxes imposed on the Trust or its assets or transactions including, without limitation, (A) “prohibited transaction” penalty taxes as defined in Section 860F of the Code, if, when and as the same shall be due and payable, (B) any tax on contributions to a REMIC after the Closing Date imposed by Section 860G(d) of the Code and (C) any tax on “net income from foreclosure property” as defined in Section 860G(c) of the Code, but only if such taxes arise out of a breach by the Paying Agent of its obligations hereunder, which breach constitutes negligence or willful misconduct of the Paying Agent.


 









  





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(f) If, in connection with any Distribution Date, the Trustee or Paying Agent has reported to the Depository the anticipated amount of the distribution to be made to the Depository on such Distribution Date and the timing of the receipt from the Master Servicer of any Principal Prepayment or Balloon Payment requires modification of such anticipated amount of the distribution to be made to the Depository, the Trustee or Paying Agent will use commercially reasonable efforts to cause the Depository to revise the amount of the distribution on a timely basis so that such Principal Prepayments or Balloon Payments will be included in the Available Distribution Amount for such Distribution Date.  None of the Trustee, the Paying Agent, the Master Servicer and the Special Servicer will be liable or held responsible for any resulting delay (or claims by the Depository resulting therefrom) in the making of such distribution to Certificateholders.


 


Section 7.3 The Trustee and the Paying Agent Not Liable for Certificates or Interests or Mortgage Loans


 


The Trustee and the Paying Agent each makes no representations as to the validity or sufficiency of this Agreement, the information contained in the Private Placement Memorandum, the Free Writing Prospectus, the Final Prospectus Supplement or Prospectus for the REMIC III Regular Interests or Residual Certificates (other than the Certificate of Authentication on the Certificates if the Paying Agent is the Authenticating Agent) or of any Mortgage Loan, Assignment of Mortgage or related document save that (i) each of the Trustee and the Paying Agent represents that, assuming due execution and delivery by the other parties hereto, this Agreement has been duly authorized, executed and delivered by it and constitutes its valid and binding obligation, enforceable against it in accordance with its terms except that such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally, and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law and (ii) the Trustee represents that, assuming due execution and delivery by the other parties hereto, this Agreement has been duly authorized, executed and delivered by it and constitutes its valid and binding obligation, enforceable against it in accordance with its terms except that such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally, and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law.  Neither of the Trustee or the Paying Agent shall be accountable for the use or application by the Depositor or the Master Servicer or the Special Servicer or by each other of any of the Certificates or any of the proceeds of such Certificates, or for the use or application by the Depositor or the Master Servicer or the Special Servicer or by each other of funds paid in consideration of the assignment of the Mortgage Loans to the Trust or deposited into the Distribution Account or any other fund or account maintained with respect to the Certificates or any account maintained pursuant to this Agreement or for investment of any such amounts.  No recourse shall be had for any claim based on any provisions of this Agreement, the Private Placement Memorandum, the Free Writing Prospectus, the Final Prospectus Supplement, the Prospectus or the Certificates (except with respect to the Trustee and the Paying Agent to the extent of information furnished by the Trustee and the Paying Agent under the caption entitled [“DESCRIPTION OF THE OFFERED CERTIFICATES—The Trustee, Paying Agent, Certificate Registrar and Authenticating Agent”] in the Free Writing Prospectus and the Final Prospectus Supplement), the Mortgage Loans or the assignment thereof against the Trustee or the


 


 




  





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Paying Agent in such Person’s individual capacity and any such claim shall be asserted solely against the Trust or any indemnitor who shall furnish indemnity as provided herein.  None of the Trustee or the Paying Agent shall be liable for any action or failure of any action by the Depositor or the Master Servicer or the Special Servicer or by each other hereunder.  None of Trustee or the Paying Agent shall at any time have any responsibility or liability for or with respect to the legality, validity or enforceability of the Mortgages or the Mortgage Loans, or the perfection and priority of the Mortgages or the maintenance of any such perfection and priority, or for or with respect to the efficacy of the Trust or its ability to generate the payments to be distributed to Certificateholders under this Agreement, including, without limitation, the existence, condition and ownership of any Mortgaged Property; the existence and enforceability of any hazard insurance thereon; the validity of the assignment of the Mortgage Loans to the Trust or of any intervening assignment; the completeness of the Mortgage Loans; the performance or enforcement of the Mortgage Loans (other than if the Trustee shall assume the duties of the Master Servicer); the compliance by the Depositor, each Seller, the Mortgagor or the Master Servicer or the Special Servicer or by each other with any warranty or representation made under this Agreement or in any related document or the accuracy of any such warranty or representation made under this Agreement or in any related document prior to the receipt by a Responsible Officer of the Trustee of notice or other discovery of any non compliance therewith or any breach thereof; any investment of monies by or at the direction of the Master Servicer or the Special Servicer or any loss resulting therefrom; the failure of the Master Servicer or any Sub-Servicer or the Special Servicer to act or perform any duties required of it on behalf of the Trustee hereunder; or any action by the Trustee taken at the instruction of the Master Servicer or the Special Servicer.


 


Section 7.4 The Trustee and the Paying Agent May Own Certificates


 


Each of the Trustee and the Paying Agent in its individual or any other capacity may become the owner or pledgee of Certificates with the same rights it would have if it were not the Trustee or the Paying Agent, as the case may be.


 


Section 7.5 Eligibility Requirements for the Trustee and the Paying Agent


 


The Trustee hereunder shall at all times be (i) an institution insured by the FDIC, (ii) a corporation, national bank or national banking association organized and doing business under the laws of the United States of America and any state thereof, authorized to exercise corporate trust powers, having a combined capital and surplus of not less than $50,000,000 and subject to supervision or examination by federal or state authority, and (iii) an institution whose short-term debt obligations are at all times rated not less than [“A 1” (without regard to plus or minus) by S&P and “Prime-1” by Moody’s] and whose long term senior unsecured debt is at all times rated not less than [“A1” by Moody’s and “A+” by S&P].  If such corporation, national bank or national banking association publishes reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority, then, for the purposes of this Section, the combined capital and surplus of such corporation, national bank or national banking association shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published.  In case at any time the Trustee shall cease to be eligible in accordance with provisions of this Section, the Trustee shall resign immediately in the manner and with the effect specified in Section 7.6.


 









  





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The Paying Agent shall be either a bank or trust company or otherwise authorized under law to exercise corporate trust powers and shall be rated at least [“A” by S&P and “A2” by Moody’s], unless and to the extent Rating Agency Confirmation is obtained.


 


Section 7.6 Resignation and Removal of the Trustee or the Paying Agent


 


(a) The Trustee or the Paying Agent may at any time resign and be discharged from the trusts hereby created by giving written notice thereof to the Depositor, the Master Servicer, the Swap Counterparty and the Rating Agencies; provided that such resignation shall not be effective until its successor shall have accepted the appointment.  Upon receiving such notice of resignation, the Depositor will promptly appoint a successor trustee or paying agent, as the case may be.  If no successor trustee or paying agent shall have been so appointed, as the case may be, and shall have accepted appointment within 30 days after the giving of such notice of resignation, the resigning Trustee or the Paying Agent, as the case may be, may petition any court of competent jurisdiction for the appointment of a successor trustee or paying agent, as the case may be.  It shall be a condition to the appointment of a successor trustee that such entity satisfies the eligibility requirements set forth in Section 7.5.


 


(b) If at any time (i) the Trustee shall cease to be eligible in accordance with the provisions of Section 7.5 and shall fail to resign after written request therefor by the Depositor, (ii) the Trustee shall become incapable of acting, or shall be adjudged a bankrupt or insolvent, or a receiver of the Trustee or of its property shall be appointed, or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, (iii) a tax is imposed or threatened with respect to the Trust or any REMIC Pool by any state in which the Trustee or the Trust held by the Trustee is located solely because of the location of the Trustee in such state; provided, however, that, if the Trustee agrees to indemnify the Trust for such taxes, it shall not be removed pursuant to this clause (iii), or (iv) the continuation of the Trustee as such would result in a downgrade, qualification or withdrawal of the rating by the Rating Agencies of any Class of Certificates with a rating as evidenced in writing by the Rating Agencies.  In the case of removal under clauses (i), (ii), (iii) and (iv) above, the Trustee shall bear all such costs of transfer.  Such succession shall take effect after a successor trustee has been appointed and has accepted such appointment.  In the case of the removal of the initial Trustee, the Depositor shall also remove the Paying Agent.


 


(c) If at any time (i) the Paying Agent shall cease to be eligible in accordance with the provisions of Section 7.5 and shall fail to resign after written request therefor by the Depositor, (ii) the Paying Agent shall become incapable of acting, or shall be adjudged a bankrupt or insolvent, or a receiver of the Paying Agent or of its property shall be appointed, or any public officer shall take charge or control of the Paying Agent or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, (iii) a tax is imposed or threatened with respect to the Trust or any REMIC Pool by any state in which the Paying Agent is located solely because of the location of the Paying Agent in such state; provided, however, that, if the Paying Agent agrees to indemnify the Trust for such taxes, it shall not be removed pursuant to this clause (iii), or (iv) the continuation of the Paying Agent as such would result in a downgrade, qualification or withdrawal, as applicable, of the rating by any Rating Agency of any Class of Certificates with a rating as evidenced in writing by any Rating Agency, then the Depositor or the Trustee shall send a written notice of termination to the Paying Agent (which notice shall


 


 









  





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specify the reason for such termination) and remove such Paying Agent and the Depositor shall appoint a successor Paying Agent by written instrument, one copy of which instrument shall be delivered to the Paying Agent so removed, one copy to the successor Paying Agent, and one copy to each of the Trustee, the Master Servicer, the Swap Counterparty and the Rating Agencies.  In all such cases, the Paying Agent shall bear all costs of transfer to a successor Paying Agent, such succession only to take effect after a successor Paying Agent has been appointed and has accepted such appointment.


 


(d) The Holders of more than 50% of the Aggregate Certificate Balance of the Certificates then outstanding may for cause upon 30 days’ written notice to the Trustee or the Paying Agent, as the case may be, and to the Depositor remove the Trustee or the Paying Agent, as the case may be, by such written instrument, signed by such Holders or their attorney-in-fact duly authorized, one copy of which instrument shall be delivered to the Depositor and one copy to the Trustee or the Paying Agent, as the case may be, so removed; the Depositor shall thereupon use its best efforts to appoint a successor Trustee or the Paying Agent, as the case may be, in accordance with this Section.


 


(e) Any resignation or removal of the Trustee or the Paying Agent, as the case may be, and appointment of a successor trustee or paying agent pursuant to any of the provisions of this Section shall become effective upon acceptance of appointment by the successor trustee or paying agent, as the case may be, as provided in Section 7.7.  Upon any succession of the Trustee or the Paying Agent under this Agreement, the predecessor Trustee or Paying Agent, as the case may be, shall be entitled to the payment of compensation and reimbursement agreed to under this Agreement for services rendered and expenses incurred.  The Trustee or the Paying Agent shall not be liable for any action or omission of any successor Trustee or Paying Agent, as the case may be.


 


(f) Following the Closing Date, for so long as the Trust is subject to the reporting requirements of the Exchange Act, the Paying Agent may not appoint any sub-servicer that is or could become a Reporting Servicer without the prior written consent of the Depositor, which consent shall not be unreasonably withheld.


 


Section 7.7 Successor Trustee or Paying Agent


 


(a) Any successor Trustee or Paying Agent appointed as provided in Section 7.6 shall execute, acknowledge and deliver to the Depositor and to its predecessor Trustee or Paying Agent, as the case may be, an instrument accepting such appointment hereunder, and thereupon the resignation or removal of the predecessor Trustee or Paying Agent, as the case may be, shall become effective and such successor Trustee or Paying Agent, as the case may be, without any further act, deed or conveyance, shall become fully vested with all the rights, powers, duties and obligations of its predecessor hereunder, with like effect as if originally named as Trustee or Paying Agent herein, as the case may be.  The predecessor Trustee or Paying Agent shall deliver (at such predecessor’s own expense) to the successor Trustee or Paying Agent all Mortgage Files and documents and statements related to the Mortgage Files held by it hereunder, and the predecessor Trustee shall duly assign, transfer, deliver and pay over (at such predecessor’s own expense) to the successor Trustee, the entire Trust, together with all instruments of transfer and assignment or other documents properly


 


 









  





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executed necessary to effect such transfer.  The predecessor Trustee or Paying Agent, as the case may be, shall also deliver all records or copies thereof maintained by the predecessor Trustee or Paying Agent in the administration hereof as may be reasonably requested by the successor Trustee or Paying Agent, as applicable, and shall thereupon be discharged from all duties and responsibilities under this Agreement.  In addition, the Depositor and the predecessor Trustee or Paying Agent shall execute and deliver such other instruments and do such other things as may reasonably be required to more fully and certainly vest and confirm in the successor Trustee or Paying Agent, as the case may be, all such rights, powers, duties and obligations.  Anything herein to the contrary notwithstanding, in no event shall the combined fees payable to a successor Trustee exceed the Trustee Fee.


 


(b) No successor Trustee or Paying Agent shall accept appointment as provided in this Section unless at the time of such appointment such successor Trustee or Paying Agent, as the case may be, shall be eligible under the provisions of Section 7.5.


 


(c) Upon acceptance of appointment by a successor Trustee or Paying Agent as provided in this Section, the successor Trustee or Paying Agent shall mail notice of the succession of such Trustee or Paying Agent hereunder to all Holders of Certificates at their addresses as shown in the Certificate Register and to the Rating Agencies.  The expenses of such mailing shall be borne by the successor Trustee or Paying Agent.  If the successor Trustee or Paying Agent fails to mail such notice within 10 days after acceptance of appointment by the successor Trustee or Paying Agent, the Master Servicer shall cause such notice to be mailed at the expense of the successor Trustee or Paying Agent, as applicable.


 


Section 7.8 Merger or Consolidation of Trustee or Paying Agent


 


Any Person into which the Trustee or Paying Agent may be merged or converted or with which it may be consolidated, or any Person resulting from any merger, conversion or consolidation to which such Trustee or Paying Agent shall be a party, or any Persons succeeding to the business of such Trustee or Paying Agent, shall be the successor of such Trustee or Paying Agent, as the case may be, hereunder, as applicable, provided that (i) such Person shall be eligible under the provisions of Section 7.5, without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding and (ii) for so long as the Trust is subject to the reporting requirements of the Exchange Act, shall have been consented to by the Depositor (which consent shall not be unreasonably withheld).


 


Section 7.9 Appointment of Co-Trustee, Separate Trustee, Agents or Custodian


 


(a) Notwithstanding any other provisions hereof, at any time, the Trustee, the Depositor or, in the case of the Trust, the Certificateholders evidencing more than 50% of the Aggregate Certificate Balance of the Certificates then outstanding shall each have the power from time to time to appoint one or more Persons to act either as co-trustees jointly with the Trustee or as separate trustees, or as custodians, for the purpose of holding title to, foreclosing or otherwise taking action with respect to any Mortgage Loan outside the state where the Trustee has its principal place of business where such separate trustee or co-trustee is necessary or


 









  





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advisable (or the Trustee is advised by the Master Servicer or the Special Servicer that such separate trustee or co-trustee is necessary or advisable) under the laws of any state in which a property securing a Mortgage Loan is located or for the purpose of otherwise conforming to any legal requirement, restriction or condition in any state in which a property securing a Mortgage Loan is located or in any state in which any portion of the Trust is located.  The separate trustees, co trustees, or custodians so appointed shall be trustees or custodians for the benefit of all the Certificateholders, shall have such powers, rights and remedies as shall be specified in the instrument of appointment and shall be deemed to have accepted the provisions of this Agreement; provided that no such appointment shall, or shall be deemed to, constitute the appointee an agent of the Trustee; provided, further, that the Trustee shall be liable for the actions of any co-trustee or separate trustee appointed by it and shall have no liability for the actions of any co-trustee or separate trustee appointed by the Depositor or the Certificateholders pursuant to this paragraph.


 


(b) The Trustee or the Paying Agent, as the case may be, may from time to time appoint one or more independent third-party agents to perform all or any portion of its administrative duties hereunder (i.e., collection and distribution of funds, preparation and dissemination of reports, monitoring compliance, etc.).  The Trustee or the Paying Agent, as the case may be, shall supervise and oversee such agents appointed by it.  The terms of any arrangement or agreement between the Trustee or the Paying Agent, as the case may be, and such agent, may be terminated, without cause and without the payment of any termination fees in the event the Trustee or the Paying Agent, as the case may be, is terminated in accordance with this Agreement.  In addition, neither the Trust nor the Certificateholders shall have any liability or direct obligation to such agent.  Notwithstanding the terms of any such agreement, the Trustee or the Paying Agent, as the case may be, shall remain at all times obligated and liable to the Trust and the Certificateholders for performing its duties hereunder.


 


(c) Every separate trustee, co-trustee, and custodian shall, to the extent permitted by law, be appointed and act subject to the following provisions and conditions:


 


(i) all powers, duties, obligations and rights conferred upon the Trustee in respect of the receipt, custody and payment of moneys shall be exercised solely by the Trustee;


 


(ii) all other rights, powers, duties and obligations conferred or imposed upon the Trustee shall be conferred or imposed upon and exercised or performed by the Trustee and such separate trustee, co-trustee, or custodian jointly, except to the extent that under any law of any jurisdiction in which any particular act or acts are to be performed (whether as Trustee hereunder or as successor to the Master Servicer hereunder) the Trustee shall be incompetent or unqualified to perform such act or acts, in which event such rights, powers, duties and obligations, including the holding of title to the Trust or any portion thereof in any such jurisdiction, shall be exercised and performed by such separate trustee, co-trustee, or custodian;


 


(iii) no trustee or custodian hereunder shall be personally liable by reason of any act or omission of any other trustee or custodian hereunder; and


 









  





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(iv) the Trustee or, in the case of the Trust, the Certificateholders evidencing more than 50% of the Aggregate Principal Amount of the Certificates then outstanding may at any time accept the resignation of or remove any separate trustee, co-trustee or custodian, so appointed by it or them, if such resignation or removal does not violate the other terms of this Agreement.


 


(d) Any notice, request or other writing given to the Trustee shall be deemed to have been given to each of the then separate trustees and co-trustees, as effectively as if given to each of them.  Every instrument appointing any separate trustee, co-trustee or custodian shall refer to this Agreement and the conditions of this Article VII.  Each separate trustee and co trustee, upon its acceptance of the trusts conferred, shall be vested with the estates or property specified in its instrument of appointment, either jointly with the Trustee or separately, as may be provided therein, subject to all the provisions of this Agreement, specifically including every provision of this Agreement relating to the conduct of, affecting the liability of, or affording protection to, the Trustee.  Every such instrument shall be filed with the Trustee.


 


(e) Any separate trustee, co-trustee or custodian may, at any time, constitute the Trustee its agent or attorney-in-fact with full power and authority, to the extent not prohibited by law, to do any lawful act under or in respect of this Agreement on its behalf and in its name.  If any separate trustee, co-trustee or custodian shall die, become incapable of acting, resign or be removed, all of its estates, properties, rights, remedies and trusts shall vest in and be exercised by the Trustee, to the extent permitted by law, without the appointment of a new or successor trustee.


 


(f) No separate trustee, co-trustee or custodian hereunder shall be required to meet the terms of eligibility as a successor trustee under Section 7.5 hereof and no notice to Certificateholders of the appointment of any separate trustee, co-trustee or custodian hereunder shall be required.


 


(g) The Trustee agrees to instruct the co-trustees, if any, to the extent necessary to fulfill the Trustee’s obligations hereunder.


 


(h) The Trustee shall pay the reasonable compensation of the co-trustees, separate trustees or custodians appointed by the Trustee pursuant to this Section 7.9 to the extent, and in accordance with the standards, specified in Section 7.12 hereof.


 


(i) Subject to the consent of the Depositor, which consent shall not be unreasonably withheld, the Trustee, at its sole cost and expense, may appoint at any time a successor Custodian.  Until such time as the Trustee appoints a successor Custodian, the Trustee shall be the Custodian hereunder.  Upon the appointment of a successor custodian, the Trustee and the Custodian shall enter into a custodial agreement.


 


Section 7.10 Authenticating Agents


 


(a) The Paying Agent shall serve as the initial Authenticating Agent hereunder for the purpose of executing and authenticating Certificates.  Any successor Authenticating Agent must be acceptable to the Depositor and must be a corporation or national bank organized and doing business under the laws of the United States of America or of any state


 









  





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and having a principal office and place of business in the Borough of Manhattan in the City and State of New York, having a combined capital and surplus of at least $50,000,000, authorized under such laws to do a trust business and subject to supervision or examination by federal or state authorities.


 


(b) Any Person into which the Authenticating Agent may be merged or converted or with which it may be consolidated, or any Person resulting from any merger, conversion or consolidation to which the Authenticating Agent shall be a party, or any Person succeeding to the corporate agency business of the Authenticating Agent, shall continue to be the Authenticating Agent without the execution or filing of any paper or any further act on the part of the Trustee or the Authenticating Agent.


 


(c) The Authenticating Agent may at any time resign by giving at least 30 days’ advance written notice of resignation to the Trustee and the Depositor.  The Trustee may at any time terminate the agency of the Authenticating Agent by giving written notice of termination to the Authenticating Agent and the Depositor; provided that the Trustee may not terminate the Paying Agent as Authenticating Agent unless the Paying Agent shall be removed as Paying Agent hereunder.  Upon receiving a notice of resignation or upon such a termination, or in case at any time the Authenticating Agent shall cease to be eligible in accordance with the provisions of Section 7.10(a), the Trustee may appoint a successor Authenticating Agent, shall give written notice of such appointment to the Depositor and shall mail notice of such appointment to all Holders of Certificates.  Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers, duties and responsibilities of its predecessor hereunder, with like effect as if originally named as Authenticating Agent.  No such Authenticating Agent shall be appointed unless eligible under the provisions of Section 7.10(a).  No Authenticating Agent shall have responsibility or liability for any action taken by it as such at the direction of the Trustee.


 


Section 7.11 Indemnification of the Trustee and the Paying Agent


 


(a) The Trustee, the Certificate Registrar, the Paying Agent and each of its respective partners, representatives, Affiliates, members, managers, directors, officers, employees, agents and Controlling Persons shall be entitled to indemnification from the Trust for any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with any legal action incurred without negligence or willful misconduct on their respective part, arising out of, or in connection with this Agreement, the Mortgage Loans, the Certificates and the acceptance or administration of the trusts or duties created hereunder (including, without limitation, any unanticipated loss, liability or expense incurred in connection with any action or inaction of the Master Servicer, the Special Servicer or the Depositor or of each other such Person hereunder but only to the extent the Trustee, the Certificate Registrar or the Paying Agent, as the case may be, is unable to recover within a reasonable period of time such amount from such third party pursuant to this Agreement) including the costs and expenses of defending themselves against any claim in connection with the exercise or performance of any of their powers or duties hereunder and the Trustee, the Certificate Registrar and the Paying Agent and each of their respective partners, representatives, Affiliates, members, managers, directors, officers, employees, agents and Controlling Persons shall be entitled to indemnification from the Trust for


 


 









  





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any unanticipated loss, liability or expense incurred in connection with the provision by the Trustee, the Certificate Registrar and the Paying Agent of the reports required to be provided by it pursuant to this Agreement; provided that:


 


(i) with respect to any such claim, the Trustee, the Certificate Registrar or the Paying Agent, as the case may be, shall have given the Depositor, the Master Servicer, the Sellers, each other and the Holders of the Certificates written notice thereof promptly after a Responsible Officer of the Trustee, the Certificate Registrar or the Paying Agent, as the case may be, shall have knowledge thereof; provided, however, that failure to give such notice to the Depositor, the Master Servicer, the Sellers, each other and the Holders of Certificates shall not affect the Trustee’s, Certificate Registrar’s or Paying Agent’s, as the case may be, rights to indemnification herein unless the Depositor’s defense of such claim on behalf of the Trust is materially prejudiced thereby;


 


(ii) while maintaining control over its own defense, the Trustee, the Certificate Registrar or the Paying Agent, as the case may be, shall cooperate and consult fully with the Depositor in preparing such defense; and


 


(iii) notwithstanding anything to the contrary in this Section 7.11, the Trust shall not be liable for settlement of any such claim by the Trustee, the Certificate Registrar or the Paying Agent, as the case may be, entered into without the prior consent of the Depositor, which consent shall not be unreasonably withheld.


 


(b) The provisions of this Section 7.11 shall survive any termination of this Agreement and the resignation or removal of the Trustee, the Certificate Registrar or the Paying Agent, as the case may be.


 


(c) The Depositor shall indemnify and hold harmless the Trustee, the Certificate Registrar or the Paying Agent, as the case may be, their respective partners, representatives, Affiliates, members, managers, directors, officers, employees, agents and Controlling Persons from and against any loss, claim, damage or liability, joint or several, and any action in respect thereof, to which the Trustee, the Certificate Registrar or the Paying Agent, as the case may be, their respective partners, representatives, Affiliates, members, managers, directors, officers, employees, agents or Controlling Person may become subject under the 1933 Act, insofar as such loss, claim, damage, liability or action arises out of, or is based upon any untrue statement or alleged untrue statement of a material fact contained in the Private Placement Memorandum, the Free Writing Prospectus, the Final Prospectus Supplement or the Prospectus, or arises out of, or is based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made, not misleading and shall reimburse the Trustee, the Certificate Registrar or the Paying Agent, as the case may be, their respective partners, representatives, Affiliates, members, managers, directors, officers, employees, agents or Controlling Person for any legal and other expenses reasonably incurred by the Trustee, the Certificate Registrar or the Paying Agent, as the case may be, or any such partners, representatives, Affiliates, members, managers, directors, officers, employees, agents or Controlling Person in investigating or defending or preparing to defend against any such loss, claim, damage, liability or action; provided that the Depositor shall not be liable in any such case


 




 




  





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to the extent that any such loss, claim, damage, liability or action arises out of, or is based upon, any untrue statement or alleged untrue statement or omission made in any such Private Placement Memorandum, Free Writing Prospectus, Final Prospectus Supplement or Prospectus in reliance upon and in conformity with written information concerning the Trustee, the Certificate Registrar or the Paying Agent, as the case may be, furnished to the Depositor by or on behalf of such Person specifically for inclusion therein.  It is hereby expressly agreed that the only written information provided by the Trustee, the Certificate Registrar or the Paying Agent, as the case may be, for inclusion in the Free Writing Prospectus and Final Prospectus Supplement is set forth in [the third sentence under the caption entitled “DESCRIPTION OF THE OFFERED CERTIFICATES—The Trustee, Paying Agent, Certificate Registrar and Authenticating Agent—The Trustee, Paying Agent, Certificate Registrar and Authenticating Agent.”]  The Trustee, the Certificate Registrar or the Paying Agent, as the case may be, shall immediately notify the Depositor and the Sellers if a claim is made by a third party with respect to this Section 7.11(c) entitling such Person, its partners, representatives, Affiliates, members, managers, directors, officers, employees, agents or Controlling Person to indemnification hereunder, whereupon the Depositor shall assume the defense of any such claim (with counsel reasonably satisfactory to such Person) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim.  Any failure to so notify the Depositor shall not affect any rights the Trustee, the Certificate Registrar or the Paying Agent, as the case may be, their respective partners, representatives, Affiliates, members, managers, directors, officers, employees, agents or Controlling Person may have to indemnification under this Section 7.11(c), unless the Depositor’s defense of such claim is materially prejudiced thereby.  The indemnification provided herein shall survive the termination of this Agreement and the resignation or removal of the Trustee or the Paying Agent.  The Depositor shall not be indemnified by the Trust for any expenses incurred by the Depositor arising from any violation or alleged violation of the 1933 Act or 1934 Act by the Depositor.


 


Section 7.12 Fees and Expenses of Trustee and the Paying Agent


 


The Trustee shall be entitled to receive the Trustee Fee, pursuant to Section 5.3(b)(ii) (which shall not be limited by any provision of law with respect to the compensation of a trustee of an express trust), for all services rendered by it in the execution of the trusts hereby created and in the exercise and performance of any of the powers and duties respectively, hereunder of the Trustee and the Paying Agent.  The Trustee and the Paying Agent shall also be entitled to recover from the Trust all reasonable unanticipated expenses and disbursements incurred or made by the Trustee and the Paying Agent in accordance with any of the provisions of this Agreement (including the reasonable compensation and the reasonable expenses and disbursements of its counsel and other Persons not regularly in its employ), not including expenses incurred in the ordinary course of performing its duties as Trustee or Paying Agent, respectively, hereunder, and except any such expense, disbursement or advance as may arise from the negligence or bad faith of such Person or which is the responsibility of the Holders of the Certificates hereunder.  The provisions of this Section 7.12 shall survive any termination of this Agreement and the resignation or removal of the Trustee or the Paying Agent.


 









  





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Section 7.13 Collection of Moneys


 


Except as otherwise expressly provided in this Agreement, the Trustee and the Paying Agent may demand payment or delivery of, and shall receive and collect, all money and other property payable to or receivable by the Trustee or the Paying Agent, as the case may be, pursuant to this Agreement.  The Trustee or the Paying Agent, as the case may be, shall hold all such money and property received by it as part of the Trust and shall distribute it as provided in this Agreement.  If the Trustee or the Paying Agent, as the case may be, shall not have timely received amounts to be remitted with respect to the Mortgage Loans from the Master Servicer, the Trustee or the Paying Agent, as the case may be, shall request that the Master Servicer make such distribution as promptly as practicable or legally permitted.  If the Trustee or the Paying Agent, as the case may be, shall subsequently receive any such amount, it may withdraw such request.


 


Section 7.14 Trustee to Act; Appointment of Successor


 


(a) On and after the time the Master Servicer is terminated pursuant to this Agreement in accordance with Sections 8.28 and 8.29, the Trustee shall be the successor in all respects to the Master Servicer in its capacity under this Agreement and the transactions set forth or provided for therein and shall have all the rights and powers and be subject to all the responsibilities, duties and liabilities relating thereto and arising thereafter placed on the Master Servicer by the terms and provisions of this Agreement; provided that, any failure to perform such duties or responsibilities caused by the Master Servicer’s failure to provide required information shall not be considered a default by the Trustee hereunder.  In addition, the Trustee shall have no liability relating to (i) the representations and warranties of the Master Servicer contained in this Agreement or (ii) any obligation incurred by the Master Servicer prior to its termination or resignation (including, without limitation, the Master Servicer’s obligation to repay losses resulting from the investment of funds in any account established under this Agreement), except any ongoing obligations to the Primary Servicers arising after the termination of the Master Servicer from their servicing rights and obligations under the applicable Primary Servicing Agreement.  In the Trustee’s capacity as such successor, the Trustee shall have the same limitations on liability granted to the Master Servicer in this Agreement.  As compensation therefor, the Trustee shall be entitled to receive all the compensation payable to the Master Servicer set forth in this Agreement, including, without limitation, the Master Servicing Fee.


 


(b) Notwithstanding the above, the Trustee (A) may, if the Trustee is unwilling to so act, or (B) shall, if it is unable to so act, appoint, or petition a court of competent jurisdiction to appoint any established commercial or multifamily mortgage finance institution, servicer or special servicer or mortgage servicing institution having a net worth of not less than $15,000,000, meeting such other standards for a successor servicer as are set forth in this Agreement and with respect to which Rating Agency Confirmation is obtained, as the successor to such terminated Master Servicer hereunder in the assumption of all of the responsibilities, duties or liabilities of a servicer as the Master Servicer hereunder and under the applicable Primary Servicing Agreement.  Pending any such appointment, the Trustee shall act in such capacity as hereinabove provided.  Any entity designated by the Trustee as successor Master Servicer may be an Affiliate of the Trustee; provided that such Affiliate must meet the standards


 









  





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for the Master Servicer as set forth herein.  In connection with such appointment and assumption, the Trustee may make such arrangements for the compensation of such successor out of payments on Mortgage Loans as it and such successor shall agree subject to Section 8.10.  The Trustee and such successor shall take such actions, consistent with this Agreement as shall be necessary to effectuate any such succession.  The terminated Master Servicer shall cooperate with the Trustee and any successor servicer in effecting the termination of the Master Servicer’s responsibilities and rights under this Agreement, including, without limitation, notifying Mortgagors of the assignment of the servicing function and providing the Trustee and successor servicer all documents and records in its possession in electronic or other form reasonably requested by the successor servicer to enable the successor servicer to assume the Master Servicer’s functions hereunder and the transfer to the Trustee or such successor servicer of all amounts which shall at the time be or should have been deposited by the Master Servicer in the applicable Certificate Account and any other account or fund maintained with respect to the Certificates or thereafter be received by the Master Servicer with respect to the Mortgage Loans.  Neither the Trustee nor any other successor servicer shall be deemed to be in default hereunder by reason of any failure to make, or any delay in making, any distribution hereunder or any portion thereof caused by (i) the failure of the terminated Master Servicer to deliver, or any delay in delivering, cash, documents or records to it, or (ii) restrictions imposed by any regulatory authority having jurisdiction over the Master Servicer.  The Trustee shall be reimbursed for all of its out-of-pocket expenses incurred in connection with obtaining such successor Master Servicer by the Trust within 30 days of the Trustee’s submission of an invoice with respect thereto, to the extent such expenses have not been reimbursed by the terminated Master Servicer as provided herein; such expenses paid by the Trust shall be deemed to be an Additional Trust Expense.


 


(c) On and after the time the Special Servicer is terminated pursuant to this Agreement, in accordance with Section 9.30, the Trustee shall be the successor in all respects to the Special Servicer in its capacity under this Agreement and the transactions set forth or provided for therein and shall, subject to Section 9.21(d), have all the rights and powers and be subject to all the responsibilities, duties and liabilities relating thereto and arising thereafter placed on the Special Servicer by the terms and provisions of this Agreement; provided that, any failure to perform such duties or responsibilities caused by the Special Servicer’s failure to provide required information shall not be considered a default by the Trustee hereunder.  In addition, the Trustee shall have no liability relating to (i) the representations and warranties of the Special Servicer contained in this Agreement or (ii) any obligation incurred by the Special Servicer prior to its termination or resignation.  In the Trustee’s capacity as such successor, the Trustee shall have the same limitations on liability granted to the Special Servicer in this Agreement.  As compensation therefor, the Trustee shall, subject to Section 9.21(d), be entitled to receive all the compensation payable to the Special Servicer set forth in this Agreement, including, without limitation the Special Servicer Compensation.


 


(d) Notwithstanding the above, the Trustee may, if the Trustee shall be unwilling to so act, or shall, if it is unable to so act, appoint, or petition a court of competent jurisdiction to appoint, any established commercial or multifamily mortgage finance institution, special servicer or mortgage servicing institution having a net worth of not less than $15,000,000, and meeting such other standards for a successor Special Servicer as are set forth in Section 9.21, and with respect to which Rating Agency Confirmation is obtained, as the successor to the terminated Special Servicer hereunder in the assumption of all of the


 









  





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responsibilities, duties or liabilities of the Special Servicer hereunder.  Pending any such appointment, the Trustee shall act in such capacity as hereinabove provided.  Any entity designated by the Trustee as successor Special Servicer may be an Affiliate of the Trustee; provided that such Affiliate must meet the standards for a successor Special Servicer set forth herein.  In connection with such appointment and assumption, the Trustee may make such arrangements for the compensation of such successor, subject to Section 9.21(d), out of payments on Mortgage Loans as it and such successor shall agree; provided that no such compensation shall be in excess of that permitted to the terminated Special Servicer under this Agreement.  The Trustee and such successor shall take such actions, consistent with this Agreement as shall be necessary to effectuate any such succession.  The terminated Special Servicer shall cooperate with the Trustee and any successor Special Servicer in effecting the termination of the Special Servicer’s responsibilities and rights under this Agreement, including, without limitation, notifying Mortgagors of Specially Serviced Mortgage Loans of the assignment of the special servicing function and providing the Trustee and successor Special Servicer all documents and records in its possession in electronic or other form reasonably requested by the successor Special Servicer to enable the successor Special Servicer to assume the Special Servicer’s functions hereunder and the transfer to the Trustee or such successor Special Servicer of all amounts which shall at the time be or should have been deposited by the terminated Special Servicer in the applicable Certificate Account and any other account or fund maintained with respect to the Certificates or thereafter be received by the Special Servicer with respect to the Mortgage Loans.  Neither the Trustee nor any other successor Special Servicer shall be deemed to be in default hereunder by reason of any failure to make, or any delay in making, any distribution hereunder or any portion thereof caused by (i) the failure of the terminated Special Servicer to deliver, or any delay in delivering, cash, documents or records to it, or (ii) restrictions imposed by any regulatory authority having jurisdiction over the Special Servicer.  The Trustee shall be reimbursed for all of its out-of-pocket expenses incurred in connection with obtaining such successor Special Servicer by the Trust within 30 days of submission of an invoice with respect thereto but only to the extent such expenses have not been reimbursed by the terminated Special Servicer as provided herein; and such expenses paid by the Trust shall be deemed to be an Additional Trust Expense.


 


Section 7.15 Notification to Holders


 


Upon termination of, or an Event of Default by, the Master Servicer, the Paying Agent or the Special Servicer, or appointment of a successor to the Master Servicer, the Paying Agent or the Special Servicer, the Trustee shall promptly mail notice thereof by first class mail to the Rating Agencies, the Operating Adviser, the Sellers and the Certificateholders at their respective addresses appearing on the Certificate Register.


 


Section 7.16 Representations and Warranties of the Trustee and the Paying Agent


 


(a) The Trustee hereby represents and warrants as of the date hereof that:


 


(i) the Trustee is a national banking association, duly organized, validly existing and in good standing under the laws governing its creation and existence and has


 









  





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full power and authority to own its property, to carry on its business as presently conducted, and to enter into and perform its obligations under this Agreement;


 


(ii) the execution and delivery by the Trustee of this Agreement have been duly authorized by all necessary action on the part of the Trustee; neither the execution and delivery of this Agreement, nor the consummation of the transactions contemplated in this Agreement, nor compliance with the provisions of this Agreement, will conflict with or result in a breach of, or constitute a default under, (i) any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Trustee or its properties that would materially and adversely affect the Trustee’s ability to perform its obligations under this Agreement, (ii) the organizational documents of the Trustee, or (iii) the terms of any material agreement or instrument to which the Trustee is a party or by which it is bound; the Trustee is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental agency, which default would materially and adversely affect its performance under this Agreement;


 


(iii) the execution, delivery and performance by the Trustee of this Agreement and the consummation of the transactions contemplated by this Agreement do not require the consent, approval, authorization or order of, the giving of notice to or the registration with any state, federal or other governmental authority or agency, except such as has been or will be obtained, given, effected or taken in order for the Trustee to perform its obligations under this Agreement;


 


(iv) this Agreement has been duly executed and delivered by the Trustee and, assuming due authorization, execution and delivery by the other parties hereto, constitutes a valid and binding obligation of the Trustee, enforceable against the Trustee in accordance with its terms, subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium and other similar laws affecting creditors’ rights generally as from time to time in effect, and to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law); and


 


(v) no litigation is pending or, to the Trustee’s knowledge, threatened, against the Trustee that, either in one instance or in the aggregate, would draw into question the validity of this Agreement, or which would be likely to impair materially the ability of the Trustee to perform under the terms of this Agreement.


 


(b) The Paying Agent hereby represents and warrants as of the date hereof that:


 


(i) the Paying Agent is a national banking association, duly organized, validly existing and in good standing under the laws governing its creation and existence and has full power and authority to own its property, to carry on its business as presently conducted, and to enter into and perform its obligations under this Agreement;


 









  





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(ii) the execution and delivery by the Paying Agent of this Agreement have been duly authorized by all necessary action on the part of the Paying Agent; neither the execution and delivery of this Agreement, nor the consummation of the transactions contemplated in this Agreement, nor compliance with the provisions of this Agreement, will conflict with or result in a breach of, or constitute a default under, (i) any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Paying Agent or its properties that would materially and adversely affect the Paying Agent’s ability to perform its obligations under this Agreement, (ii) the organizational documents of the Paying Agent, or (iii) the terms of any material agreement or instrument to which the Paying Agent is a party or by which it is bound; the Paying Agent is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental agency, which default would materially and adversely affect its performance under this Agreement;


 


(iii) the execution, delivery and performance by the Paying Agent of this Agreement and the consummation of the transactions contemplated by this Agreement do not require the consent, approval, authorization or order of, the giving of notice to or the registration with any state, federal or other governmental authority or agency, except such as has been or will be obtained, given, effected or taken in order for the Paying Agent to perform its obligations under this Agreement;


 


(iv) this Agreement has been duly executed and delivered by the Paying Agent and, assuming due authorization, execution and delivery by the other parties hereto, constitutes a valid and binding obligation of the Paying Agent, enforceable against the Paying Agent in accordance with its terms, subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium and other similar laws affecting creditors’ rights generally as from time to time in effect, and to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law); and


 


(v) there are no actions, suits or proceeding pending or, to the best of the Paying Agent’s knowledge, threatened, against the Paying Agent that, either in one instance or in the aggregate, would draw into question the validity of this Agreement, or which would be likely to impair materially the ability of the Paying Agent to perform under the terms of this Agreement.


 


Section 7.17 Fidelity Bond and Errors and Omissions Insurance Policy Maintained by the Trustee and the Paying Agent


 


Each of the Trustee and the Paying Agent, at its own respective expense, shall maintain in effect a Fidelity Bond and a Errors and Omissions Insurance Policy.  The Errors and Omissions Insurance Policy and Fidelity Bond shall be issued by a Qualified Insurer in form and in amount customary for trustees or paying agents in similar transactions (unless the Trustee or the Paying Agent, as the case may be, self insures as provided below).  In the event that any such Errors and Omissions Insurance Policy or Fidelity Bond ceases to be in effect, the Trustee or the Paying Agent, as the case may be, shall obtain a comparable replacement policy or bond from an


 









  





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insurer or issuer meeting the requirements set forth above as of the date of such replacement.  So long as the long-term debt rating of the Trustee or the Paying Agent, as the case may be, is not less than [“A” as rated by S&P and “Baa1” as rated by Moody’s, if rated by S&P and Moody’s], respectively, the Trustee or the Paying Agent, as the case may be, may self-insure for the Fidelity Bond and the Errors and Omissions Insurance Policy.


 


ARTICLE VIII


 


ADMINISTRATION AND SERVICING OF MORTGAGE LOANS


 


Section 8.1 Servicing Standard; Servicing Duties


 


(a) Subject to the express provisions of this Agreement, for and on behalf of the Trust and for the benefit of the Certificateholders as a whole, the Master Servicer shall service and administer the Mortgage Loans in accordance with the Servicing Standard and the terms of this Agreement.


 


In connection with such servicing and administration, the Master Servicer shall service in accordance with the Servicing Standard; provided, however, that nothing herein contained shall be construed as an express or implied guarantee by the Master Servicer of the collectability of payments on the Mortgage Loans or shall be construed as impairing or adversely affecting any rights or benefits specifically provided by this Agreement to the Master Servicer, including with respect to Master Servicing Fees or the right to be reimbursed for Advances.


 


(b) The Master Servicer, in the case of an event specified in clause (x) of this subclause (b), and the Special Servicer, in the case of an event specified in clause (y) of this subclause (b), shall each send a written notice to the other and to the Trustee and the Paying Agent, the Operating Adviser and the respective Seller within two Business Days after becoming aware (x) that a Servicing Transfer Event has occurred with respect to a Mortgage Loan or (y) that a Mortgage Loan has become a Rehabilitated Mortgage Loan, which notice shall identify the applicable Mortgage Loan and, in the case of an event specified in clause (x) of this subclause (b) above, the Servicing Transfer Event that occurred.


 


(c) With respect to each Mortgage Loan that is subject to an Environmental Insurance Policy, for as long as it is not a Specially Serviced Mortgage Loan, if any of the Master Servicer, the Special Servicer or the applicable Primary Servicer has actual knowledge of any event giving rise to a claim under an Environmental Insurance Policy, such Person shall notify the related Master Servicer, the related Special Servicer and the related Primary Servicer, as applicable, to such effect and the Master Servicer shall take reasonable actions as are in accordance with the Servicing Standard and the terms and conditions of such Environmental Insurance Policy to make a claim thereunder and achieve the payment of all amounts to which the Trust is entitled thereunder.  Any legal fees or other out-of-pocket costs incurred in accordance with the Servicing Standard in connection with any such claim shall be paid by, and reimbursable to, the Master Servicer or the Special Servicer as a Servicing Advance.


 


(d) In connection with any extension of the Maturity Date of a Mortgage Loan that is the subject of an Environmental Insurance Policy, the Master Servicer shall give prompt


 




  





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written notice of such extension to the insurer under the Environmental Insurance Policy and shall execute such documents as are reasonably required by such insurer to procure an extension of such policy (if available).


 


Section 8.2 Fidelity Bond and Errors and Omissions Insurance Policy Maintained by the Master Servicer


 


The Master Servicer, at its expense, shall maintain in effect a Servicer Fidelity Bond and a Servicer Errors and Omissions Insurance Policy.  The Servicer Errors and Omissions Insurance Policy and Servicer Fidelity Bond shall be issued by a Qualified Insurer (unless the Master Servicer self insures as provided below) and be in form and amount consistent with the Servicing Standard.  In the event that any such Servicer Errors and Omissions Insurance Policy or Servicer Fidelity Bond ceases to be in effect, the Master Servicer shall obtain a comparable replacement policy or bond from an insurer or issuer meeting the requirements set forth above as of the date of such replacement.  So long as the long-term rating of the Master Servicer (or its corporate parent) is not in any event less than [“A” as rated by S&P and “Baa1” as rated by Moody’s,] respectively, the Master Servicer may self-insure for the Servicer Fidelity Bond and the Servicer Errors and Omissions Insurance Policy.


 


Section 8.3 Master Servicer’s General Power and Duties


 


(a) The Master Servicer shall service and administer the Mortgage Loans it is required to service hereunder and shall, subject to Sections 8.7, 8.18, 8.19, 8.27 and 9.39 and Article XII hereof and as otherwise provided herein and by the Code, have full power and authority to do any and all things which it may deem necessary or desirable in connection with such servicing and administration in accordance with the Servicing Standard.  To the extent consistent with the foregoing and subject to any express limitations and provisions set forth in this Agreement, such power and authority shall include, without limitation, the right, subject to the terms hereof, (A) to execute and deliver, on behalf of the Certificateholders  and the Trustee, customary consents or waivers and other instruments and documents (including, without limitation, estoppel certificates, financing statements, continuation statements, title endorsements and reports and other documents and instruments necessary to preserve and maintain the lien on the related Mortgaged Property and related collateral), (B) to consent to assignments and assumptions or substitutions, and transfers of interest of any Mortgagor, in each case subject to and in accordance with the terms of the related Mortgage Loan and Section 8.7, (C) to collect any Insurance Proceeds, (D) subject to Section 8.7, to consent to any subordinate financings to be secured by any related Mortgaged Property to the extent that such consent is required pursuant to the terms of the related Mortgage or which otherwise is required, and, subject to Section 8.7, to consent to any mezzanine debt to the extent such consent is required pursuant to the terms of the related Mortgage; (E) to consent to the application of any proceeds of insurance policies or condemnation awards to the restoration of the related Mortgaged Property or otherwise and to administer and monitor the application of such proceeds and awards in accordance with the terms of the Mortgage Loan as the Master Servicer deems reasonable under the circumstances, (F) to execute and deliver, on behalf of the Certificateholders  and the Trustee, documents relating to the management, operation, maintenance, repair, leasing and marketing of the related Mortgaged Properties, including agreements and requests by the Mortgagor with respect to modifications of the standards of operation and management of the


 









  





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Mortgaged Properties or the replacement of asset managers, (G) to consent to any operation or action under a Mortgage Loan that is contemplated or permitted under a Mortgage or other documents evidencing or securing the applicable Mortgage Loan (either as a matter of right or upon satisfaction of specified conditions), (H) to obtain, release, waive or modify any term other than a Money Term of a Mortgage Loan and related documents subject to and to the extent permitted by Section 8.18, (I) to exercise all rights, powers and privileges granted or provided to the holder of the Mortgage Notes under the terms of the Mortgage, including all rights of consent or approval thereunder, (J) to enter into lease subordination agreements, non-disturbance and attornment agreements or other leasing or rental arrangements which may be requested by the Mortgagor or the Mortgagor’s tenants, (K) to join the Mortgagor in granting, modifying or releasing any easements, covenants, conditions, restrictions, equitable servitudes, or land use or zoning requirements with respect to the Mortgaged Properties to the extent such does not adversely affect the value of the related Mortgage Loan or Mortgaged Property, (L) to execute and deliver, on behalf of itself, the Trustee, the Trust or any of them, any and all instruments of satisfaction or cancellation, or of partial or full release or discharge and all other comparable instruments, with respect to the Mortgage Loans and with respect to the Mortgaged Properties, and (M) cause to be held on behalf of the Trustee, in accordance with the terms of any Mortgage Loan and this Agreement, Defeasance Collateral.  The foregoing clauses (A) through (M) are referred to collectively as “Master Servicer Consent Matters.”  In addition, the Master Servicer, consistent with the Servicing Standard, may waive any default interest and Late Fees with respect to its Mortgage Loans that are not Specially Serviced Mortgage Loans; provided that, to the extent the Master Servicer waives any default interest and Late Fees, any outstanding Advance Interest with respect to the related Mortgage Loan that would otherwise have been paid out of such default interest and Late Fees shall be paid out of the additional servicing compensation payable to the Master Servicer with respect to that Mortgage Loan; and provided, further, that if no additional servicing compensation is available to offset the outstanding Advance Interest with respect to the Mortgage Loan that would otherwise be offset by the default interest and Late Fees, then the Master Servicer shall not waive such default interest and Late Fees unless it is the first such waiver with respect to the subject Mortgage Loan.


 


Notwithstanding the above, the Master Servicer shall have no power to (i) waive any Prepayment Premiums or (ii) consent to any modification of a Money Term.  In addition, subject to the Servicing Standard, the Master Servicer shall not accept any prepayment of principal with respect to any Mortgage Loan on any date other than the related Due Date unless (i) such payment is accompanied by a payment of the interest due with respect to such Mortgage Loan up to the next succeeding Due Date, (ii) such prepayment does not result in the Trust incurring a Prepayment Interest Shortfall or (iii) such prepayment is required to be permitted under the related Mortgage Loan documents on a date other than the related Due Date.  Nothing contained in this Agreement shall limit the ability of the Master Servicer to lend money to (to the extent not secured, in whole or in part, by any Mortgaged Property), accept deposits from and otherwise generally engage in any kind of business or dealings with any Mortgagor as though the Master Servicer were not a party to this Agreement or to the transactions contemplated hereby; provided, however, that this sentence shall not modify the Servicing Standard.


 


(b) No Master Servicer shall be obligated to service and administer the Mortgage Loans which have become and continue to be Specially Serviced Mortgage Loans, except as specifically provided herein.  The Master Servicer shall be required to make all


 


 




  





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calculations and prepare all reports required hereunder with respect to such Specially Serviced Mortgage Loans (other than calculations and reports expressly required to be made by the Special Servicer hereunder) as if no Servicing Transfer Event had occurred and shall continue to collect all Scheduled Payments, make Servicing Advances as set forth herein, make P&I Advances as set forth herein and render such incidental services with respect to such Specially Serviced Mortgage Loans, all as are specifically provided for herein, but shall have no other servicing or other duties with respect to such Specially Serviced Mortgage Loans.  The Master Servicer shall give notice within three Business Days to the Special Servicer of any collections it receives from any Specially Serviced Mortgage Loans, subject to changes agreed upon from time to time by the Special Servicer and the Master Servicer.  The Special Servicer shall instruct within one Business Day after receiving such notice the Master Servicer on how to apply such funds.  The Master Servicer within one Business Day after receiving such instructions shall apply such funds in accordance with the Special Servicer’s instructions.  Each Mortgage Loan that becomes a Specially Serviced Mortgage Loan shall continue as such until such Mortgage Loan becomes a Rehabilitated Mortgage Loan.  No Master Servicer shall be required to initiate extraordinary collection procedures or legal proceedings with respect to any Mortgage Loan or to undertake any pre-foreclosure procedures.


 


(c) Concurrently with the execution of this Agreement, the Trustee shall sign the Powers of Attorney.  The Master Servicer, shall promptly notify the Trustee of the recording of any document on behalf of the Trustee under such Power-of-Attorney.  From time to time until the termination of the Trust, upon receipt of additional unexecuted powers of attorney from the Master Servicer or the Special Servicer, the Trustee shall execute and return to the Master Servicer, the Special Servicer or any Primary Servicer any additional powers of attorney and other documents necessary or appropriate to enable the Master Servicer and the Special Servicer to service and administer the Mortgage Loans including, without limitation, documents relating to the management, operation, maintenance, repair, leasing or marketing of the Mortgaged Properties.  The Master Servicer shall indemnify the Trustee for any costs, liabilities and expenses (including attorneys’ fees) incurred by the Trustee in connection with the intentional or negligent misuse of such power of attorney by the Master Servicer.  Notwithstanding anything contained herein to the contrary, neither the Master Servicer nor the Special Servicer shall, without the Trustee’s written consent:  (i) initiate any action, suit or proceeding directly relating to the servicing of the Mortgage Loans solely under the Trustee’s name without indicating the Master Servicer’s or Special Servicer’s, as applicable, representative capacity, (ii) initiate any other action, suit or proceeding not directly relating to the servicing of the Mortgage Loans (including but not limited to actions, suits or proceedings against Certificateholders, or against the Depositor or the Sellers for breaches of representations and warranties) solely under the Trustee’s name, (iii) engage counsel to represent the Trustee in any action, suit or proceeding not directly related to the servicing of the Mortgage Loans (including but not limited to actions, suits or proceedings against Certificateholders, or against the Depositor or the Sellers for breaches of representations and warranties, or (iv) prepare, execute or deliver any government filings, forms, permits, registrations or other documents or take any other actions with the intent to cause, and that actually causes, the Trustee to be registered to do business in any state.  The limitations of the preceding clause shall not be construed to limit any duty or obligation imposed on the Trustee under any other provision of this Agreement.


 









  





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(d) The Master Servicer shall make efforts consistent with the Servicing Standard and the terms of this Agreement to collect all payments called for under the terms and provisions of the applicable Mortgage Loans (other than Specially Serviced Mortgage Loans or REO Properties).


 


(e) The Master Servicer (or any Primary Servicer on its behalf) shall segregate and hold all funds collected and received pursuant to any Mortgage Loan constituting Escrow Amounts separate and apart from any of its own funds and general assets and shall establish and maintain one or more segregated custodial accounts (each, an “Escrow Account”) into which all Escrow Amounts shall be deposited within one Business Day after receipt.  Each Escrow Account shall be an Eligible Account.  The Master Servicer shall also deposit into each applicable Escrow Account any amounts representing losses on Eligible Investments pursuant to the immediately succeeding paragraph and any Insurance Proceeds or Liquidation Proceeds which are required to be applied to the restoration or repair of any Mortgaged Property pursuant to the related Mortgage Loan.  Each Escrow Account shall be maintained in accordance with the requirements of the related Mortgage Loan and in accordance with the Servicing Standard.  Withdrawals from an Escrow Account may be made only:


 


(i) to effect timely payments of items constituting Escrow Amounts for the related Mortgage Loan;


 


(ii) to transfer funds to the applicable Certificate Account (or any sub-account thereof) to reimburse the Master Servicer for any Advance (or the Trust for any Unliquidated Advance) relating to Escrow Amounts, but only from amounts received with respect to the related Mortgage Loan which represent late collections of Escrow Amounts thereunder;


 


(iii) for application to the restoration or repair of the related Mortgaged Property in accordance with the related Mortgage Loan and the Servicing Standard;


 


(iv) to clear and terminate such Escrow Account upon the termination of this Agreement or pay-off of the related Mortgage Loan;


 


(v) to pay from time to time to the related Mortgagor any interest or investment income earned on funds deposited in the applicable Escrow Account if such income is required to be paid to the related Mortgagor under applicable law or by the terms of the Mortgage Loan, or otherwise to the Master Servicer; and


 


(vi) to remove any funds deposited in a Escrow Account that were not required to be deposited therein or to refund amounts to the Mortgagors determined to be overages.


 


Subject to the immediately succeeding two sentences, (i) the Master Servicer may direct any depository institution or trust company in which the applicable Escrow Accounts are maintained to invest the funds held therein in one or more Eligible Investments; provided, however, that such funds shall be either (x) immediately available or (y) available in accordance with a schedule which will permit the Master Servicer to meet the payment obligations for which the applicable Escrow Account was established; (ii) the Master Servicer shall be entitled to all


 


 









  





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income and gain realized from any such investment of funds as additional servicing compensation; and (iii) the Master Servicer shall deposit from its own funds in the applicable Escrow Account the amount of any loss incurred in respect of any such investment of funds on or before the next Master Servicer Remittance Date.  The Master Servicer shall not direct the investment of funds held in any Escrow Account and retain the income and gain realized therefrom if the terms of the related Mortgage Loan or applicable law permit the Mortgagor to be entitled to the income and gain realized from the investment of funds deposited therein, and the Master Servicer shall not be required to invest amounts on deposit in applicable Escrow Accounts in Eligible Investments or Eligible Accounts to the extent that the Master Servicer are required by either law or under the terms of any related Mortgage Loan to deposit or invest (or the Mortgagor is entitled to direct the deposit or investment of) such amounts in another type of investments or accounts.  In the event the Master Servicer is not entitled to direct the investment of such funds, (1) the Master Servicer shall direct the depository institution or trust company in which such Escrow Accounts are maintained to invest the funds held therein in accordance with the Mortgagor’s written investment instructions, if the terms of the related Mortgage Loan or applicable law require the Master Servicer to invest such funds in accordance with the Mortgagor’s directions; and (2) in the absence of appropriate written instructions from the Mortgagor, the Master Servicer shall have no obligation to, but may be entitled to, direct the investment of such funds; provided, however, that in either event (i) such funds shall be either (y) immediately available or (z) available in accordance with a schedule which will permit the Master Servicer to meet the payment obligations for which the applicable Escrow Account was established, and (ii) the Master Servicer shall have no liability for any loss in investments of such funds that are invested pursuant to written instructions from the Mortgagor.


 


(f) The relationship of each of the Master Servicer and the Special Servicer to the Trustee and the Paying Agent and to each other under this Agreement is intended by the parties to be that of an independent contractor and not of a joint venturer, partner or agent.


 


(g) With respect to each Mortgage Loan, if required by the terms of the related Mortgage Loan, any Lock-Box Agreement or similar agreement, the Master Servicer shall establish and maintain, in accordance with the Servicing Standard, one or more lock-box, cash management or similar accounts (“Lock-Box Accounts”) to be held outside the Trust and maintained by the Master Servicer in accordance with the terms of the related Mortgage.  No Lock-Box Account is required to be an Eligible Account, unless otherwise required pursuant to the related Mortgage Loan documents.  The Master Servicer shall apply the funds deposited in such accounts in accordance with terms of the related Mortgage Loan documents, any Lock-Box Agreement and in accordance with the Servicing Standard.


 


(h) The Master Servicer or any Primary Servicer on its behalf shall process all defeasances of Mortgage Loans in accordance with the terms of the Mortgage Loan documents, and shall be entitled to any fees paid relating thereto.  The Master Servicer shall not permit defeasance (or partial defeasance if permitted under the Mortgage Loan) of any Mortgage Loan on or before the second anniversary of the Closing Date unless such defeasance will not result in an Adverse REMIC Event and the Master Servicer has received an opinion of counsel to such effect and all items in the following sentence have been satisfied.  Subsequent to the second anniversary of the Closing Date, the Master Servicer, in connection with the defeasance of a Mortgage Loan shall require (to the extent it is not inconsistent with the Servicing Standard) that:


 









  





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(i) the defeasance collateral consists of “government securities” as defined in the 1940 Act, subject to Rating Agency approval, (ii) the Master Servicer has received evidence satisfactory to it, that the defeasance will not result in an Adverse REMIC Event, (iii) either (A) the related Mortgagor designates a Single-Purpose Entity (if the Mortgagor no longer complies) to own the Defeasance Collateral (subject to customary qualifications) or (B) the Master Servicer has established a Single-Purpose Entity to hold all Defeasance Collateral relating to the Defeasance Loans (in its corporate capacity and not as agent of or on behalf of the Trust or the Trustee), (iv) the Master Servicer has requested and received from the Mortgagor (A) an opinion of counsel that the Trustee will have a perfected, first priority security interest in such Defeasance Collateral and (B) written confirmation from a firm of independent accountants stating that payments made on such Defeasance Collateral in accordance with the terms thereof will be sufficient to pay the subject Mortgage Loan (or the defeased portion thereof in connection with a partial defeasance) in full on or before its Maturity Date (or, in the case of the ARD Loan, on or before its Anticipated Repayment Date) and to timely pay each subsequent Scheduled Payment, (v) (A) the Master Servicer shall receive a Rating Agency Confirmation if the Mortgage Loan (together with any other Mortgage Loan with which it is cross-collateralized) has a Principal Balance greater than the lesser of $20,000,000 and 5% of the Aggregate Certificate Balance (or such higher threshold as shall be published by S&P), unless such Rating Agency has waived in writing such Rating Agency Confirmation requirement [or (B) if the Mortgage Loan is less than or equal to both of the amounts set forth in clause (A), either a Notice and Certification in the form attached hereto as Exhibit J (or such less restrictive form as shall be adopted by S&P) or a Rating Agency Confirmation is received from S&P] and (vi) a Rating Agency Confirmation is received if the Mortgage Loan is one of the ten largest Mortgage Loans, by Principal Balance.  Any customary and reasonable out-of-pocket expense incurred by the Master Servicer pursuant to this Section 8.3(h) shall be paid by the Mortgagor of the Defeasance Loan pursuant to the related Mortgage, Mortgage Note or other pertinent document, if so allowed by the terms of such documents.


 


The parties hereto acknowledge that, if a Seller shall have breached the representation set forth under the heading “Releases of Mortgaged Property” in Exhibit 2 to the Mortgage Loan Purchase Agreements, regarding the obligations of a Mortgagor to pay the costs of a tax opinion associated with the full or partial release or substitution of collateral for a Mortgage Loan because the related Mortgage Loan documents do not require the related Mortgagor to pay costs related thereto, to the extent an amount is due and not paid by the Mortgagor, then the sole obligation of the related Seller shall be to pay for such tax opinion.  In addition, the parties hereto acknowledge that, if a Seller shall have breached the representation set forth under the heading “Defeasance and Assumption Costs” in Exhibit 2 to the Mortgage Loan Purchase Agreements, regarding the obligation of a Mortgagor to pay the reasonable costs and expenses associated with a defeasance or assumption of the related Mortgage Loan, because the related Mortgage Loan documents do not require the related Mortgagor to pay costs related thereto, including, but not limited to, amounts owed to one or both Rating Agencies, then the sole obligation of the related Seller shall be to pay an amount equal to such insufficiency or expense to the extent the related Mortgagor is not required to pay such amount.  Promptly upon receipt of notice of such insufficiency or unpaid expenses or costs, the Master Servicer shall request the related Seller to make such payment by deposit to the applicable Certificate Account.  The related Seller shall have no obligation to pay for any of the foregoing costs if the applicable Mortgagor has an obligation to pay for such costs.


 









  





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In the case of a Specially Serviced Mortgage Loan, the Master Servicer shall process any defeasance of such Specially Serviced Mortgage Loan in accordance with the original terms of the respective Mortgage Loan documents following a request by the Special Servicer that the Master Servicer do so, which request shall be accompanied by a waiver of any condition of defeasance that an “event of default” under such Specially Serviced Mortgage Loan not have occurred or be continuing, and the Master Servicer shall be entitled to any fees paid relating to such defeasance.  If such “event of default” is on account of an uncured payment default, the Special Servicer will process the defeasance of such Specially Serviced Mortgage Loan, and the Special Servicer shall be entitled to any fees paid relating to such defeasance.


 


(i) The Master Servicer shall, as to each Mortgage Loan which is secured by the interest of the related Mortgagor under a ground lease, confirm whether or not on or prior to the date that is thirty (30) days after receipt of the related Servicer Mortgage File by the Master Servicer (or Primary Servicer, if applicable), the Seller has notified the related ground lessor of the transfer of such Mortgage Loan to the Trust pursuant to this Agreement, and informed such ground lessor that any notices of default under the related Ground Lease should thereafter be forwarded to the Master Servicer (as evidenced by delivery of a copy thereof to the Master Servicer).  The Master Servicer shall promptly notify the ground lessor if the Seller has failed to do so by the thirtieth day after the Closing Date.


 


Section 8.4 Primary Servicing and Sub-Servicing


 


(a) The parties hereto (A) acknowledge that the Master Servicer has delegated certain of its obligations and assigned certain of its rights under this Agreement to each of the Primary Servicers pursuant to the respective Primary Servicing Agreements and (B) agree:  (1) in addition to those obligations specifically delegated by the Master Servicer to the Primary Servicers under the applicable Primary Servicing Agreement, each Primary Servicer and (if so provided in the related Sub-Servicing Agreement) each Sub-Servicer shall also perform the Master Servicer’s obligations set forth in Section 2.1(d) of this Agreement as such Section relates to the Mortgage Loans serviced by it; (2) in addition to those rights specifically granted by the Master Servicer to the Primary Servicers under the applicable Primary Servicing Agreement or any Sub-Servicer under the applicable Sub-Servicing Agreement, those rights set forth in Section 8.24 hereof accruing to the benefit of the Master Servicer shall also accrue to the benefit of the Primary Servicers and each Sub-Servicer; (3) any indemnification or release from liability set forth in this Agreement accruing to the benefit of the Master Servicer shall also, to the extent applicable, benefit the Primary Servicers and each Sub-Servicer; and (4) for each notice, certification, report, schedule, statement or other type of writing that a party hereto is obligated to deliver to the Master Servicer in respect of Mortgage Loans for which a Primary Servicer or Sub-Servicer has been engaged, such party shall deliver to each of the applicable Primary Servicers or the applicable Sub-Servicer a copy of such notice, certification, report, schedule, statement or other type of writing at the time and in the same manner that any of the foregoing is required to be delivered to the Master Servicer.


 


Notwithstanding the provisions of any Primary Servicing Agreement, the Sub-Servicing Agreement or any other provisions of this Agreement, the Master Servicer shall remain obligated and liable to the Trustee, the Paying Agent, the Special Servicer and the Certificateholders for servicing and administering of the Mortgage Loans in accordance with the


 


 









  





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provisions of this Agreement to the same extent as if the Master Servicer was alone servicing and administering the Mortgage Loans; provided, however, the foregoing shall not in any way limit or impair the indemnification provisions benefiting the Master Servicer in Section 8.25.  The Master Servicer or applicable Primary Servicer shall supervise, administer, monitor, enforce and oversee the servicing of the applicable Mortgage Loans by any Sub-Servicer appointed by it.  Other than with respect to the agreements with the Primary Servicers or the Sub-Servicers under agreements that are in effect as of the Closing Date, the terms of any arrangement or agreement between the Master Servicer or applicable Primary Servicer, on the one hand, and a Sub-Servicer, on the other, shall provide that such sub-servicing agreement or arrangement may be terminated, without cause and without the payment of any termination fees, by the Trustee in the event the Master Servicer or the applicable Primary Servicer is terminated in accordance with this Agreement or the applicable Primary Servicing Agreement.  In addition, none of the Special Servicer, the Trustee, the Paying Agent or the Certificateholders shall have any direct obligation or liability (including, without limitation, indemnification obligations) with respect to any Sub-Servicer.  The Master Servicer or applicable Primary Servicer shall pay the costs of enforcement against any of its Sub-Servicers at its own expense, but shall be reimbursed therefor only (i) from a general recovery resulting from such enforcement only to the extent that such recovery exceeds all amounts due in respect of the related Mortgage Loans or (ii) from a specific recovery of costs, expenses or attorneys fees against the party against whom such enforcement is directed.  Notwithstanding the provisions of any Primary Servicing Agreement or any sub-servicing agreement, any of the provisions of this Agreement relating to agreements or arrangements between the Master Servicer, a Primary Servicer or a Sub-Servicer, or reference to actions taken through a Sub-Servicer or otherwise, the Master Servicer, or applicable Primary Servicer shall remain obligated and liable to the Trustee, the Paying Agent, the Special Servicer and the Certificateholders for the servicing and administering of the applicable Mortgage Loans in accordance with (and subject to the limitations contained within) the provisions of this Agreement or the applicable Primary Servicing Agreement without diminution of such obligation or liability by virtue of indemnification from a Sub-Servicer and to the same extent and under the same terms and conditions as if the Master Servicer or applicable Primary Servicer alone were servicing and administering the Mortgage Loans.


 


(b) Subject to the limitations of subsection (a), the Master Servicer or any Primary Servicer may appoint one or more sub-servicers to perform all or any portion of its duties hereunder for the benefit of the Trustee and the Certificateholders, provided, however, that any decision or recommendation involving the exercise of a Primary Servicer’s discretion as a “lender” under any loan document with respect to a Mortgage Loan shall be exercised only by the Primary Servicer and may not be delegated to a sub-servicer, provided, further, that following the Closing Date, for so long as the Trust is subject to the reporting requirements of the Exchange Act, the Master Servicer and the Primary Servicer may not appoint any sub-servicer that is or could become a Reporting Servicer, without the prior written consent of the Depositor, which consent shall not be unreasonably withheld; provided, that for the avoidance of doubt, the Depositor shall be deemed to have provided its prior written consent to the appointment of the Primary Servicer as a sub-servicer.


 


The Master Servicer shall enter into a Primary Servicing Agreement with each Primary Servicer and shall not terminate such agreement except in accordance with the terms thereof.  To the extent consistent with the rights of a Primary Servicer or a Sub-Servicer under


 









  





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this Agreement and the related Primary Servicing Agreement or Sub-Servicing Agreement, but not in limitation of any other rights granted to a Primary Servicer or a Sub-Servicer in this Agreement and/or in the Primary Servicing Agreement or a Sub-Servicing Agreement, such Primary Servicer or Sub-Servicer shall have all of the rights and obligations of a Sub-Servicer set forth herein.


 


Notwithstanding any other provision set forth in this Agreement to the contrary, (i) each Primary Servicer’s and each Sub-Servicer’s rights and obligations under its respective Primary Servicing Agreement or Sub-Servicing Agreement shall expressly survive a termination of the Master Servicer’s servicing rights under this Agreement; provided that the applicable Primary Servicing Agreement or Sub-Servicing Agreement has not been terminated in accordance with its provisions, (ii) any successor Master Servicer, including, without limitation, the Trustee (if it assumes the servicing obligations of the terminated Master Servicer) shall be deemed to automatically assume and agree to each of the then current Primary Servicing Agreements or Sub-Servicing Agreement without further action upon becoming the successor Master Servicer and (iii) this Agreement may not be modified in any manner which would increase the obligations or limit the rights of any Primary Servicer or any Sub-Servicer hereunder and/or under the applicable Primary Servicing Agreement or the Sub-Servicing Agreement, without the prior written consent of such Primary Servicer or the Sub-Servicer (which consent shall not be unreasonably withheld).


 


If a task, right or obligation of the Master Servicer is delegated to a Primary Servicer under a Primary Servicing Agreement, and such task, right or obligation involves or requires the consent of the Special Servicer, then the Special Servicer shall accept the performance of such task, right or obligation by such Primary Servicer in accordance with the terms of this Agreement (including without limitation any time periods for consent or deemed consent to be observed by the Special Servicer) as if the Master Servicer were performing it.


 


Notwithstanding any provision of this Agreement, each of the parties hereto acknowledges and agrees that the Special Servicer, in such capacity, is neither a party to any Primary Servicing Agreement or Sub-Servicing Agreement, nor is bound by any provision of any Primary Servicing Agreement or the Sub-Servicing Agreement in its capacity as Special Servicer.  The Special Servicer hereby acknowledge the delegation of rights and duties hereunder by the Master Servicer pursuant to the provisions of the Primary Servicing Agreements and the Sub-Servicing Agreements in effect on the date hereof.


 


Section 8.5 [Master] [Primary] Servicer May Own Certificates


 


The Master Servicer and any Primary Servicer and any agent of the Master Servicer or Primary Servicers in its individual or any other capacity may become the owner or pledgee of Certificates with the same rights it would have if it were not the Master Servicer, such Primary Servicer or such agent.  Any such interest of the Master Servicer or any Primary Servicer or such agent in the Certificates shall not be taken into account when evaluating whether actions of the Master Servicer are consistent with its obligations in accordance with the Servicing Standard regardless of whether such actions may have the effect of benefiting the Class or Classes of Certificates owned by the Master Servicer.


 


 









  





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Section 8.6 Maintenance of Hazard Insurance, Other Insurance and Taxes


 


Subject to the limitations set forth below, the Master Servicer shall use reasonable efforts consistent with the Servicing Standard to cause the related Mortgagor to maintain for each Mortgaged Property (other than any REO Property) (A) a Standard Hazard Insurance Policy which does not provide for reduction due to depreciation in an amount that is at least equal to the lesser of (i) the full replacement cost of improvements securing such Mortgage Loan or (ii) the outstanding Principal Balance of such Mortgage Loan but, in any event, in an amount sufficient to avoid the application of any co insurance clause, (B) any terrorism insurance coverage for a Mortgage Loan, which the related Mortgagor is required to maintain under the related Mortgage, to the extent that such insurance is available at a commercially reasonable rate and (C) any other insurance coverage for a Mortgage Loan which the related Mortgagor is required to maintain under the related Mortgage; provided the Master Servicer shall not be required to maintain earthquake insurance on any Mortgaged Property required by the related Mortgage unless such insurance was required at origination and is available at a commercially reasonable rate; provided, however, that the Special Servicer shall have the right, but not the duty, to obtain, at the Trust’s expense, earthquake insurance on any Mortgaged Property securing a Specially Serviced Mortgage Loan or an REO Property so long as such insurance is available at a commercially reasonable rate; provided, further, that a determination by the Master Servicer that terrorism insurance is not available at a commercially reasonable rate shall be subject to the approval of the Operating Adviser as set forth below.  If the related Mortgagor does not maintain the insurance set forth in clauses (A), (B) and (C) above, then the Master Servicer shall cause to be maintained such insurance with a Qualified Insurer and the payment of the cost of such insurance shall be a Servicing Advance; provided, that a determination by the Master Servicer that terrorism insurance should not be obtained on a force-placed basis shall be subject to the approval of the Operating Adviser as set forth below.  Upon the Master Servicer’s determination that terrorism insurance is not available at a commercially reasonable rate or that terrorism insurance should not be obtained on a force-placed basis, the Master Servicer shall notify the Operating Adviser.  The Operating Adviser shall have five days after such notice to disapprove such determination.  The failure of the Operating Adviser to provide notice of such disapproval in such time period shall be deemed approval.  If the Operating Adviser provides such notice of disapproval within such time period, the Master Servicer shall obtain such insurance coverage and the cost of such insurance coverage shall be considered a Servicing Advance.


 


Each Standard Hazard Insurance Policy maintained with respect to any Mortgaged Property that is not an REO Property shall contain, or have an accompanying endorsement that contains, a standard mortgagee clause.  If, on the date of origination, the improvements on the Mortgaged Property are located in a designated special flood hazard area by the Federal Emergency Management Agency in the Federal Register, as amended from time to time (to the extent permitted under the related Mortgage Loan or as required by law), the Master Servicer (with respect to any Mortgaged Property that is not an REO Property) shall cause flood insurance to be maintained.  Such flood insurance shall be in an amount equal to the lesser of (i) the unpaid principal balance of the related Mortgage Loan or (ii) the maximum amount of such insurance available for the related Mortgaged Property under the national flood insurance program, if the area in which the improvements on the Mortgaged Property are located is participating in such program.  Any amounts collected by the Master Servicer under any such policies (other than amounts to be applied to the restoration or repair of the related Mortgaged


 


 









  





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Property or property thus acquired or amounts released to the Mortgagor in accordance with the terms of the applicable Mortgage Loan) shall be deposited in the applicable Certificate Account.


 


Any cost (such as insurance premiums and insurance broker fees but not internal costs and expenses of obtaining such insurance) incurred by the Master Servicer in maintaining any insurance pursuant to this Section 8.6 shall not, for the purpose of calculating monthly distributions to the Certificateholders or remittances to the Paying Agent for their benefit, be added to the Principal Balance of the Mortgage Loan, notwithstanding that the terms of the Mortgage Loan permit such cost to be added to the outstanding Principal Balance thereof.  Such costs shall be paid as a Servicing Advance by the Master Servicer, subject to Section 4.4 hereof.


 


Notwithstanding the above, the Master Servicer shall have no obligation beyond using its reasonable efforts consistent with the Servicing Standard to enforce such insurance requirements.  Furthermore, the Master Servicer shall not be required in any event to maintain or obtain insurance coverage to the extent the Trustee as mortgagee does not have an insurable interest or beyond what is reasonably available at a commercially reasonable rate and consistent with the Servicing Standard.  The Master Servicer shall notify the Trustee in the event it makes such determination.  Notwithstanding the foregoing, such determination shall be subject to the approval of the Operating Adviser with respect to terrorism insurance, as set forth in the first paragraph of this Section 8.6.  In addition, the Master Servicer shall be entitled to rely at its own expense on insurance consultants in connection with any such determination.  In no event shall the Master Servicer be required to obtain any insurance coverage that would require a Servicing Advance that constitutes a Nonrecoverable Advance.


 


The Master Servicer shall conclusively be deemed to have satisfied its obligations as set forth in this Section 8.6 either (i) if the Master Servicer shall have obtained and maintained a master force placed or blanket insurance policy insuring against hazard losses on all of the applicable Mortgage Loans, it being understood and agreed that such policy may contain a deductible clause on terms substantially equivalent to those commercially available and maintained by comparable servicers consistent with the Servicing Standard, and provided that such policy is issued by a Qualified Insurer or (ii) if the Master Servicer, provided that its or its parent’s long-term rating is not less than [“A” by S&P and “A2” by Moody’s], self-insures for its obligations as set forth in the first paragraph of this Section 8.6.  In the event that the Master Servicer shall cause any Mortgage Loan to be covered by such a master force placed or blanket insurance policy, the incremental cost of such insurance allocable to such Mortgage Loan (i.e., other than any minimum or standby premium payable for such policy whether or not any Mortgage Loan is then covered thereby), if not borne by the related Mortgagor, shall be paid by the Master Servicer as a Servicing Advance.  If such policy contains a deductible clause, the Master Servicer shall, if there shall not have been maintained on the related Mortgaged Property a policy complying with this Section 8.6 and there shall have been a loss that would have been covered by such policy, deposit in the applicable Certificate Account the amount not otherwise payable under such master force placed or blanket insurance policy because of such deductible clause to the extent that such deductible exceeds (i) the deductible under the related Mortgage Loan or (ii) if there is no deductible limitation required under the Mortgage Loan, the deductible amount with respect to insurance policies generally available on properties similar to the related Mortgaged Property which is consistent with the Servicing Standard, and deliver to the Trustee an Officer’s Certificate describing the calculation of such amount.  In connection with its


 









  





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activities as administrator and servicer of the Mortgage Loans, the Master Servicer agrees to present, on its behalf and on behalf of the Trustee, claims under any such master force placed or blanket insurance policy.


 


With respect to each Mortgage Loan, the Master Servicer shall maintain accurate records with respect to each related Mortgaged Property reflecting the status of taxes, assessments and other similar items that are or may become a lien on the related Mortgaged Property and the status of insurance premiums payable with respect thereto.  From time to time, the Master Servicer (other than with respect to REO Mortgage Loans) shall, except in the case of Mortgage Loans under which Escrow Amounts are not held by the Master Servicer (i) obtain all bills for the payment of such items (including renewal premiums), and (ii) effect payment of all such bills, taxes and other assessments with respect to such Mortgaged Properties prior to the applicable penalty or termination date, in each case employing for such purpose Escrow Amounts as allowed under the terms of the related Mortgage Loan.  If a Mortgagor fails to make any such payment on a timely basis or collections from the Mortgagor are insufficient to pay any such item before the applicable penalty or termination date, the Master Servicer in accordance with the Servicing Standard shall use its reasonable efforts to pay as a Servicing Advance the amount necessary to effect the payment of any such item prior to such penalty or termination date (or, with respect to real estate taxes, prior to the earlier of the imposition of late tax payment penalty charges or the notice of intent to create a tax lien on the Mortgaged Property), subject to Section 4.4 hereof.  No costs incurred by the Master Servicer or the Trustee, as the case may be, in effecting the payment of taxes and assessments on the Mortgaged Properties and related insurance premiums and ground rents shall, for the purpose of calculating distributions to Certificateholders, be added to the Principal Balance of the Mortgage Loans, notwithstanding that the terms of such Mortgage Loans permit such costs to be added to the outstanding principal balances of such Mortgage Loans.


 


Section 8.7 Enforcement of Due-On-Sale Clauses; Assumption Agreements; Due-On-Encumbrance Clause


 


(a) In the event the Master Servicer receives a request from a Mortgagor pursuant to the provisions of any Mortgage Loan (other than a Specially Serviced Mortgage Loan) that expressly permits, subject to any conditions set forth in the Mortgage Loan documents, the assignment of the related Mortgaged Property to, and assumption of such Mortgage Loan by, another Person, the Master Servicer (or, if applicable, a Primary Servicer) shall obtain relevant information for purposes of evaluating such request and no Special Servicer shall have an obligation to review or consent to such request.  For the purpose of the foregoing sentence, the term “expressly permits” shall include outright permission to assign, permission to assign upon satisfaction of certain conditions or prohibition against assignment except upon the satisfaction of stated conditions.  With respect to each Mortgage Loan that does not “expressly permit” an assignment or assumption, if the Master Servicer (or, if such Mortgage Loan is serviced by a Primary Servicer, the Primary Servicer) recommends to approve such assignment, the Master Servicer shall provide to the Special Servicer and the Operating Adviser (or, with respect to a recommendation by the Primary Servicer, to the Master Servicer, the Special Servicer and the Operating Adviser, simultaneously) a copy of such recommendation and the materials upon which such recommendation is based (the “Assignment and Assumption Submission”) and all other information related to such assignment and assumption in its


 









  





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possession reasonably requested by the Special Servicer and (A) the Special Servicer shall have the right hereunder to grant or withhold consent to any such request for such assignment and assumption in accordance with the terms of the Mortgage Loan and this Agreement, and the Special Servicer shall not unreasonably withhold such consent and any such decision of the Special Servicer shall be in accordance with the Servicing Standard, (B) failure of the Special Servicer to notify the Master Servicer in writing within ten Business Days following the Master Servicer’s or the applicable Primary Servicer’s delivery of the recommendation described above and the Assignment and Assumption Submission to the Special Servicer on which the recommendation is based, of its determination to grant or withhold such consent shall be deemed to constitute a grant of such consent; provided, that, if the Special Servicer reasonably requests additional information from the Master Servicer or Primary Servicer, as applicable, on which to base its decision, the foregoing ten Business Day period in which the Special Servicer has to consent to the Assignment and Assumption Submission shall cease to run on the Business Day on which the Special Servicer makes such request and shall resume to run on the Business Day on which the Special Servicer receives such additional information, and (C) the Master Servicer or Primary Servicer shall not permit any such assignment or assumption unless it has received the written consent of the Special Servicer or such consent has been deemed to have been granted as described in the preceding clause (B).  The Special Servicer hereby acknowledges the delegation of rights and duties hereunder by the Master Servicer pursuant to the provisions of each Primary Servicing Agreement.  If the Special Servicer withholds consent pursuant to the provisions of this Agreement, it shall provide the Master Servicer or any applicable Primary Servicer with a written statement and a verbal explanation as to its reasoning and analysis within the time frame specified in (B) of the preceding sentence.  Upon consent or deemed consent by the Special Servicer to such proposed assignment and assumption, the Master Servicer or Primary Servicer, as applicable, shall process such request of the related Mortgagor and shall be authorized to enter into an assignment and assumption or substitution agreement with the Person to whom the related Mortgaged Property has been or is proposed to be conveyed, and/or release the original Mortgagor from liability under the related Mortgage Loan and substitute as obligor thereunder the Person to whom the related Mortgaged Property has been or is proposed to be conveyed; provided, however, that the Master Servicer shall not enter into any such agreement to the extent that any terms thereof would result in an Adverse REMIC Event or create any lien on a Mortgaged Property that is senior to, or on parity with, the lien of the related Mortgage.  In the event that the Master Servicer shall require a Nondisqualification Opinion in order to process a request for a substitution, the Master Servicer shall use its reasonable efforts in accordance with the Servicing Standard to collect the related costs, expenses and fees from the Mortgagor to the extent the related Mortgage Loan documents require the related Mortgagor to pay such amounts.  To the extent permitted by applicable law, the Master Servicer shall not enter into such an assumption or substitution agreement unless the credit status of the prospective new Mortgagor is in conformity to the terms of the related Mortgage Loan.  In making its recommendation, the Master Servicer shall evaluate such conformity in accordance with the Servicing Standard.  The Master Servicer shall not condition approval of any request for assumption of a Mortgage Loan on an increase in the interest rate of such Mortgage Loan.  The Master Servicer shall notify the Trustee, the Paying Agent, the Special Servicer and the Operating Adviser of any assignment and assumption or substitution agreement executed pursuant to this Section 8.7(a).  The Master Servicer, as applicable, shall be entitled to (as additional servicing compensation) [50%] of any assumption fee collected from a Mortgagor in connection with an assignment and assumption or


 









  





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substitution of a non-Specially Serviced Mortgage Loan (except that the Master Servicer shall be entitled to [100%] of such fee in connection with (a) any assignment and assumption or substitution with respect to which the consent of the Special Servicer was not required or (b) any assignment and assumption or substitution that is “expressly permitted” pursuant to the terms of the related Mortgage Loan), as executed pursuant to this Section 8.7(a) and the Special Servicer shall be entitled to (as additional special servicing compensation) the other [50%] of such fee relating to the non-Specially Serviced Mortgage Loans (except with respect to the Mortgage Loans with respect to which the Special Servicer’s consent was not required in connection therewith or with respect to any assignment and assumption or substitution that is not “expressly permitted” pursuant to the terms of the related Mortgage Loan); provided that any such fees payable to the Master Servicer pursuant to this paragraph shall be divided between the Master Servicer and any related Primary Servicer as set forth in the applicable Primary Servicing Agreement.


 


(b) Reserved.


 


(c) Neither the Master Servicer nor the Special Servicer shall have any liability, and shall be indemnified by the Trust for any liability to the Mortgagor or the proposed assignee, for any delay in responding to requests for assumption, if the same shall occur as a result of the failure of the Rating Agencies, or any of them, to respond to such request in a reasonable period of time.


 


(d) If any Mortgage Loan that is not a Specially Serviced Mortgage Loan contains a provision in the nature of a “due-on-sale” clause, which by its terms (i) provides that such Mortgage Loan shall (or may at the mortgagee’s option) become due and payable upon the sale or other transfer of an interest in the related Mortgaged Property or ownership interest in the related Mortgagor, or (ii) provides that such Mortgage Loan may not be assumed or ownership interests in the related Mortgagor may not be transferred without the consent of the related mortgagee in connection with any such sale or other transfer, then, the Master Servicer’s review and determination (such determination to be approved by the Special Servicer in the same manner as in Section 8.7(a)) to either (A) enforce such due-on-sale clause or (B) if in the best economic interest of the Trust, waive the effect of such provision, shall be processed in the same manner as in Section 8.7(a); provided, however, that if the Principal Balance of such Mortgage Loan (together with any other Mortgage Loan with which it is cross-collateralized) at such time equals or exceeds [5%] of the Aggregate Certificate Balance or exceeds $[35,000,000] or is one of the then current top 10 loans (by Principal Balance) in the pool, then prior to waiving the effect of such provision, the Master Servicer shall obtain Rating Agency Confirmation regarding such waiver.  In connection with the request for such consent, the Master Servicer shall prepare and deliver to [S&P and Moody’s] a memorandum outlining its analysis and recommendation in accordance with the Servicing Standard, together with copies of all relevant documentation.  The Master Servicer shall promptly forward copies of the assignment and assumption documents relating to any Mortgage Loan to the Special Servicer, the Paying Agent and the Trustee, and the Master Servicer shall promptly thereafter forward such documents to the Rating Agencies.  The Special Servicer and the Master Servicer shall each be entitled to (as additional compensation) [50%] of any fee collected from a Mortgagor in connection with the granting or withholding such consent with respect to Mortgage Loans that are not Specially Serviced Mortgage Loans; provided, that such fees that are allocated to the Master Servicer pursuant hereto shall be divided


 









  





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between the Master Servicer and any applicable Primary Servicer as set forth in the related Primary Servicing Agreement.


 


(e) The Master Servicer, as applicable, shall have the right to consent to any transfers of an interest in a Mortgagor of a Mortgage Loan that is not a Specially Serviced Mortgage Loan, to the extent such transfer is to a party or entity specifically named or described under the terms of the related Mortgage Loan in connection with a transfer of cooperative units therein to the extent such consent is required under the terms of the related Mortgage Loan, in each case including any consent to transfer to any subsidiary or Affiliate of Mortgagor, to a Person acquiring less than a majority interest in the Mortgagor or to an entity of which the Mortgagor is the controlling beneficial owner; provided, however, that if (i) the Principal Balance of such Mortgage Loan (together with any other Mortgage Loan with which it is cross-collateralized) at such time equals or exceeds [5%] of the Aggregate Certificate Balance or is one of the then current top 10 loans (by Principal Balance) in the pool (provided that such Mortgage Loan has a then current Principal Balance of $[5,000,000] or more), and (ii) the transfer is of an equity interest in the Mortgagor greater than 49%, then prior to consenting, the Master Servicer shall obtain a Rating Agency Confirmation regarding such consent, the costs of which to be payable by the related Mortgagor to the extent provided for in the Mortgage Loan documents.  The Master Servicer, as applicable, shall be entitled to collect and receive from Mortgagors any customary fees in connection with such transfers of interest as additional servicing compensation to the extent the Master Servicer’s collection of such fees is not expressly prohibited under the related loan documents for the Mortgage Loan.


 


(f) The Trustee for the benefit of the Certificateholders shall execute any necessary instruments in the form presented to it by the Master Servicer (pursuant to subsection (a) or (d)) for such assignments and assumptions agreements.  Upon the closing of the transactions contemplated by such documents, the Master Servicer shall cause the originals of the assignment and assumption agreement, the release (if any), or the modification or supplement to the Mortgage Loan to be delivered to the Trustee except to the extent such documents have been submitted to the recording office, in which event the Master Servicer shall promptly deliver copies of such documents to the Trustee and the Special Servicer.


 


(g) If any Mortgage Loan (other than a Specially Serviced Mortgage Loan) which contains a provision in the nature of a “due-on-encumbrance” clause, which by its terms:


 


(i) provides that such Mortgage Loan shall (or may at the mortgagee’s option) become due and payable upon the creation of any additional lien or other encumbrance on the related Mortgaged Property or a lien on the ownership interest in the Mortgagor; or


 


(ii) requires the consent of the Mortgagee to the creation of any such additional lien or other encumbrance on the related Mortgaged Property,


 


then, as long as such Mortgage Loan is included in the Trust, the Master Servicer, on behalf of the Trustee as the Mortgagee of record, shall exercise (or, subject to Section 8.18, waive its right to exercise) any right it may have with respect to such Mortgage Loan (x) to accelerate the payments thereon, or (y) to withhold its consent to the creation of any such additional lien or









  





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other encumbrance, in a manner consistent with the Servicing Standard, sub-section (h) below and Section 8.18 hereof.  The Master Servicer shall not waive the effect of such provision without first obtaining Rating Agency Confirmation regarding such waiver and complying with the provisions of the next succeeding paragraph; provided, however, that such Rating Agency Confirmation shall only be required if the applicable Mortgage Loan (x) represents 2% or more of the Principal Balance of all of the Mortgage Loans held by the Trust or is one of the 10 largest Mortgage Loans based on Principal Balance or (y) such Mortgage Loan (which includes Junior Indebtedness, if any) has a Loan to Value Ratio that is greater than or equal to [85%] and a Debt Service Coverage Ratio (which includes debt service on any Junior Indebtedness) that is less than [1.2x].


 


(h) Without limiting the generality of the preceding paragraph, in the event that the Master Servicer receives a request for a waiver of any “due-on-encumbrance” clause under any Mortgage Loan, the Master Servicer shall obtain relevant information for purposes of evaluating such request for a waiver.  If the Master Servicer recommends to waive such clause, the Master Servicer shall provide to the Special Servicer a copy of such recommendation and the materials upon which such recommendation is based and (A) the Special Servicer shall have the right hereunder to grant or withhold consent to any such request in accordance with the terms of the Mortgage Loan and this Agreement, and the Special Servicer shall not unreasonably withhold such consent and any such decision of the Special Servicer shall be in accordance with the Servicing Standard, (B) failure of the Special Servicer to notify the Master Servicer in writing, within ten Business Days following the Master Servicer’s delivery of the recommendation described above and the complete Additional Lien, Monetary Encumbrance and Mezzanine Financing Submission Package and any other information in its possession reasonably requested by the Special Servicer to the Special Servicer on which the recommendation is based, of its determination to grant or withhold such consent shall be deemed to constitute a grant of such consent and (C) the Master Servicer shall not permit any such waiver unless it has received the written consent of the Special Servicer or such consent has been deemed to have been granted as described in the preceding sentence.  If the Special Servicer withholds consent pursuant to the foregoing provisions, it shall provide the Master Servicer with a written statement and a verbal explanation as to its reasoning and analysis.  Upon consent or deemed consent by the Special Servicer to such proposed waiver, the Master Servicer shall process such request of the related Mortgagor subject to the other requirements set forth above.


 


(i) The parties hereto acknowledge that, if a Seller shall have breached the representation set forth under the heading “Defeasance and Assumption Costs” in Exhibit 2 to the Mortgage Loan Purchase Agreements, regarding the obligation of a Mortgagor to pay the reasonable costs and expenses of obtaining any Rating Agency Confirmation in connection with an assumption or defeasance of the related Mortgage Loan because the related mortgage loan documents do not require the Mortgagor to pay costs related thereto, then it shall be the sole obligation of the related Seller to pay an amount equal to such insufficiency to the extent the related Mortgagor is not required to pay such amount.  Promptly upon receipt of notice of such insufficiency, the Master Servicer or the Special Servicer, as applicable, shall request the related Seller to make such payment by deposit to the applicable Certificate Account.  The Master Servicer may not waive such payment by the Mortgagor (and then seek payment for such costs and expenses from the Seller) and shall use its reasonable efforts to collect such amounts from


 









  





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the Mortgagor to the extent the related mortgage loan documents require the related Mortgagor to pay such amounts.


 


Section 8.8 Trustee to Cooperate; Release of Trustee Mortgage Files


 


Upon the payment in full of any Mortgage Loan, the complete defeasance of a Mortgage Loan, satisfaction or discharge in full of any Specially Serviced Mortgage Loan or the receipt by the Master Servicer of a notification that payment in full (or such payment, if any, in connection with the satisfaction and discharge in full of any Specially Serviced Mortgage Loan) will be escrowed in a manner customary for such purposes, and upon notification by the Master Servicer in the form of a certification (which certification shall include a statement to the effect that all amounts received or to be received in connection with such payment which are required to be deposited in the applicable Certificate Account have been or will be so deposited) of a Servicing Officer and a request for release of the Trustee Mortgage File in the form of Exhibit C hereto the Trustee shall promptly release the related Trustee Mortgage File to the Master Servicer and the Trustee shall execute and deliver to the Master Servicer the deed of reconveyance or release, satisfaction or assignment of mortgage or such instrument releasing the lien of the Mortgage, as directed by the Master Servicer together with the Mortgage Note.  The provisions of the immediately preceding sentence shall not, in any manner, limit or impair the right of the Master Servicer to execute and deliver, on behalf of the Trustee, the Certificateholders or any of them, any and all instruments of satisfaction, cancellation or assignment without recourse, representation or warranty, or of partial or full release or discharge and all other comparable instruments, with respect to the Mortgage Loans, and with respect to the Mortgaged Properties held for the benefit of the Certificateholders.  No expenses incurred in connection with any instrument of satisfaction or deed of reconveyance shall be chargeable to the Distribution Account but shall be paid by the Master Servicer except to the extent that such expenses are paid by the related Mortgagor in a manner consistent with the terms of the related Mortgage and applicable law.  From time to time and as shall be appropriate for the servicing of any Mortgage Loan, including for such purpose, collection under any policy of flood insurance, any Servicer Fidelity Bond or Errors and Omissions Policy, or for the purposes of effecting a partial or total release of any Mortgaged Property from the lien of the Mortgage or the making of any corrections to the Mortgage Note or the Mortgage or any of the other documents included in the Trustee Mortgage File, the Trustee shall, upon request of the Master Servicer and the delivery to the Trustee of a Request for Release signed by a Servicing Officer, in the form of Exhibit C hereto, release the Trustee Mortgage File to the Master Servicer or the Special Servicer, as the case may be.


 


Section 8.9 Documents, Records and Funds in Possession of the Master Servicer to Be Held for the Trustee for the Benefit of the Certificateholders


 


Notwithstanding any other provisions of this Agreement, the Master Servicer shall transmit to the Trustee, to the extent required by this Agreement, all documents and instruments coming into the possession of the Master Servicer from time to time and shall account fully to the Trustee and the Paying Agent for any funds received or otherwise collected thereby, including Liquidation Proceeds or Insurance Proceeds in respect of any Mortgage Loan.  All Servicer Mortgage Files and funds collected or held by, or under the control of, the Master Servicer in respect of such Mortgage Loans, whether from the collection of principal and interest


 









  





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payments or from Liquidation Proceeds or Insurance Proceeds, including any funds on deposit in the applicable Certificate Accounts, shall be held by the Master Servicer for and on behalf of the Trustee and the Certificateholders and shall be and remain the sole and exclusive property of the Trustee, subject to the applicable provisions of this Agreement.  The Master Servicer agrees that it shall not create, incur or subject any Servicer Mortgage Files or Trustee Mortgage File or any funds that are deposited in the Certificate Accounts or the applicable Escrow Accounts, or any funds that otherwise are or may become due or payable to the Trustee or the Paying Agent, to any claim, lien, security interest, judgment, levy, writ of attachment or other encumbrance, or assert by legal action or otherwise any claim or right of setoff against any Servicer Mortgage Files or Trustee Mortgage File or any funds collected on, or in connection with, a Mortgage Loan, except, however, that the Master Servicer shall be entitled to receive from any such funds any amounts that are properly due and payable to the Master Servicer under this Agreement.


 


Section 8.10 Servicing Compensation


 


(a) As compensation for its activities hereunder, the Master Servicer shall be entitled to the Master Servicing Fee, which shall be payable by the Trust from amounts held in the applicable Certificate Accounts or otherwise collected from the Mortgage Loans and REO Loans as provided in Section 5.2.  The Master Servicer shall be required to pay to the Primary Servicers the related Primary Servicing Fees, which shall be payable by the Trust from amounts as provided in Section 5.1(c), unless retained by the Primary Servicers from amounts transferred to the Master Servicer in accordance with the terms of the Primary Servicing Agreements.  The Master Servicer shall be required to pay to the holders of the rights to the Excess Servicing Fees (including, if applicable, the Master Servicer), the Excess Servicing Fees, which shall be payable by the Trust as provided in Section 5.1(c), unless otherwise retained by the holders of such rights.  Notwithstanding anything herein to the contrary, if any of the holders of the right to receive Excess Servicing Fees resigns or is no longer the Master Servicer or Primary Servicer (to the extent that such Person was ever the Master Servicer or a Primary Servicer), as applicable, for any reason, it will continue to have the right to receive its portion of the Excess Servicing Fee, and any of the holders of the right to receive Excess Servicing Fees shall have the right to assign its portion of the Excess Servicing Fee, whether or not it is then acting as the Master Servicer or Primary Servicer hereunder.  The Master Servicer shall also be entitled to the Primary Servicing Fee, which shall be payable by the Trust from amounts held in the applicable Certificate Account (or a sub-account thereof) or otherwise collected from the Mortgage Loans as provided in Section 5.2.


 


(b) Additional servicing compensation in the form of application fees, assumption fees, extension fees, servicing fees, default interest payable at a rate above the Mortgage Rate (net of any amount used to pay Advance Interest, Additional Trust Fund Expenses, Special Servicing Fees, Liquidation Fees and Workout Fees relating to the subject Mortgage Loan as provided in Section 4.5), Modification Fees, forbearance fees, Late Fees (net of any amount used to pay Advance Interest), other usual and customary charges and fees actually received from Mortgagors and any other fees listed in any of the Primary Servicing Agreements, all such fees subject to allocation pursuant to such Primary Servicing Agreements, shall be retained by the Master Servicer, provided that the Master Servicer shall be entitled to receive (i) [50%] of any assumption fees relating to Mortgage Loans which are not Specially Serviced Mortgage Loans that require Special Servicer approval or [100%] of any assumption


 









  





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fees relating to Mortgage Loans which are not Specially Serviced Mortgage Loans for which with respect to the assignment, assumption or substitution (a) the consent of the Special Servicer was not required or (b) is “expressly permitted” pursuant to the terms of the related Mortgage Loan as payable under Section 8.7(a) or 8.7(d), (ii) [100%] of application fees, default interest (net of the default interest used to pay Advance Interest, as set forth above), forbearance fees, Late Fees (net of any amount used to pay Advance Interest) and Modification Fees on Mortgage Loans that are not Specially Serviced Mortgage Loans as provided in Section 8.18 hereof; and (iii) [100%] of any modification or extension fees collected from the related Mortgagor in connection with the extension of the Maturity Date of any Mortgage Loan as provided in Section 8.18; provided, however, that the Master Servicer shall not be entitled to any such fees in connection with any Specially Serviced Mortgage Loans and, such fees will be subject to the allocations set forth in the Primary Servicing Agreements.  If the Master Servicer collects any amount payable to the Special Servicer hereunder in connection with an REO Mortgage Loan or Specially Serviced Mortgage Loan, the Master Servicer shall promptly remit such amount to the Special Servicer as provided in Section 5.2.  The Master Servicer shall be required to pay (in the manner otherwise provided herein) all applicable expenses incurred by it in connection with its servicing activities hereunder.


 


(c) Notwithstanding any other provision herein, the Master Servicing Fee payable to the Master Servicer for each monthly period relating to each Determination Date shall be reduced by an amount equal to the Compensating Interest (if any) relating to Mortgage Loans serviced by the Master Servicer for such Determination Date.


 


(d) The Master Servicer, as applicable, shall also be entitled to additional servicing compensation of (i) an amount equal to the excess, if any, of the aggregate Prepayment Interest Excess relating to its respective Mortgage Loans (including any Specially Serviced Loans) for each Distribution Date over the aggregate Prepayment Interest Shortfalls for such Mortgage Loans for such Distribution Date, (ii) interest or other income earned on deposits in the applicable Certificate Account and the Distribution Account (but only to the extent of the net investment earnings, if any, with respect to each such account), and, (iii) to the extent not required to be paid to any Mortgagor under applicable law, any interest or other income earned on deposits in its respective Escrow Accounts.


 


Section 8.11 Master Servicer Reports; Account Statements


 


(a) For each Distribution Date, (i) the Master Servicer shall deliver to the Paying Agent on the related Report Date, the Loan Periodic Update File with respect to such Distribution Date, (ii) the Master Servicer shall report to the Paying Agent on the related Advance Report Date, the amount of any P&I Advance to be made by the Master Servicer on the related Master Servicer Remittance Date and (iii) the Master Servicer shall notify the Paying Agent as soon as reasonably possible, but no later than noon, New York City time on the Master Servicer Remittance Date, of the amount of any Principal Payments and Balloon Payments received by the Business Day immediately preceding the Master Servicer Remittance Date, which amounts were not reported pursuant to clause (i) or (ii) immediately above.  The Special Servicer is required to provide, in the form required under Section 9.32, all information relating to Specially Serviced Mortgage Loans in order for the Master Servicer to satisfy its duties in this Section 8.11 not later than one Business Day prior to the date the Master Servicer is required to


 









  





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distribute any report.  The Master Servicer shall be entitled in good faith to rely on and shall have no liability for information provided by third parties, including the Special Servicer.


 


(b) The Master Servicer shall notify the Trustee and the Paying Agent on or before the Closing Date of the initial location of the applicable Certificate Accounts and, promptly following any change in location of any Certificate Account, the new location thereof.


 


(c) The Master Servicer shall promptly inform the Special Servicer of the name, account number, location and other necessary information concerning the applicable Certificate Accounts in order to permit the Special Servicer to make deposits therein.


 


(d) Reserved.


 


(e) The Master Servicer shall deliver a copy of any reports or information delivered to the Trustee or the Paying Agent pursuant to subsection (a) or subsection (b) of this Section 8.11 to the Depositor, the Special Servicer, the Operating Adviser and each Rating Agency, in each case upon request by such Person and only to the extent such reports and information are not otherwise required to be delivered to such Person under any provision of this Agreement.


 


(f) Notwithstanding any provision of this Agreement to the contrary, the Master Servicer shall not have any obligation to deliver any statement, notice or report that is then made available on the Master Servicer’s website or the Paying Agent’s Website, provided that it has notified all parties entitled to delivery of such reports, by electronic mail or other notice provided in this Agreement, to the effect that such statements, notices or reports shall thereafter be made available on such website from time to time.


 


(g) The Master Servicer shall deliver or cause to be delivered to the Paying Agent the following CMSA Reports with respect to the Mortgage Loans serviced by the Master Servicer (and, if applicable, the related REO Properties) providing the required information as of the related Determination Date upon the following schedule:  (i) a CMSA Comparative Financial Status Report not later than each Report Date, commencing in ___ 20__; (ii) a CMSA Operating Statement Analysis Report, the CMSA Financial File and the CMSA NOI Adjustment Worksheet in accordance with Section 8.14 of this Agreement; (iii) a CMSA Servicer Watch List in accordance with and subject to the terms of Section 8.11(h) on each Report Date, commencing in ____ 20__; (iv) a CMSA Loan Setup File (with respect to the initial Distribution Date only) not later than the Report Date in ____20__; (v) a CMSA Loan Periodic Update File not later than each Report Date commencing in ____ 20__ (a ____ 20__ report will be issued by the Master Servicer in the format and with the content as reasonably agreed by the Master Servicer and the Trustee); (vi) a CMSA Property File on each Report Date, commencing in ____ 20__; (vii) a CMSA Delinquent Loan Status Report on each Report Date, commencing in ____ 20__; (viii) a CMSA Historical Loan Modification and Corrected Mortgage Loan Report not later than each Report Date, commencing in ____ 20__; (ix) a CMSA Historical Liquidation Report not later than each Report Date, commencing in ____ 20__;  and (x) a CMSA REO Status Report on each Report Date, commencing in ____ 20__.  The information that pertains to Specially Serviced Mortgage Loans and REO Properties reflected in such reports shall be based solely upon the reports delivered by the Special Servicer to the Master Servicer in writing and on a computer


 









  





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readable medium reasonably acceptable to the Master Servicer and the Special Servicer on the date and in the form required under Section 9.32.  The Master Servicer’s responsibilities under this Section 8.11(g) with respect to REO Mortgage Loans and Specially Serviced Mortgage Loans shall be subject to the satisfaction of the Special Servicer’s obligations under Section 9.32.


 


(h) If the Master Servicer delivers a notice of drawing to effect a drawing on any letter of credit or debt service reserve account under which the Trust has rights as the holder of any Mortgage Loan for purposes other than payment or reimbursement of amounts contemplated in and by a reserve or escrow agreement (other than after a default under an applicable Mortgage Loan), the Master Servicer shall, within five Business Days following its receipt of the proceeds of such drawing, deliver notice thereof to the Special Servicer, the Operating Adviser and the Paying Agent, which notice shall set forth (i) the unpaid Principal Balance of such Mortgage Loan immediately before and immediately after the drawing, and (ii) a brief description of the circumstances that in the Master Servicer’s good faith and reasonable judgment and in compliance with the Servicing Standard entitled the Master Servicer to make such drawing.


 


Section 8.12 [Reserved]


 


Section 8.13 [Reserved]


 


Section 8.14 Operating Statement Analysis Reports Regarding the Mortgaged Properties


 


Within [105] calendar days (or [90] days as to the Special Servicer), or [120] days with respect to any Co-op Mortgage Loans, after the end of each of the first three calendar quarters (in each year) for the trailing 12 months, quarterly or year-to-date information received, commencing for the quarter ending on March 31, 20__, the Master Servicer shall deliver to the Paying Agent and the Operating Adviser an Operating Statement Analysis Report and a Financial File for each Mortgaged Property in electronic format, prepared using the non normalized quarterly, year-to-date or trailing 12 month operating statements and, in the case of Mortgage Loans other than Co-op Mortgage Loans, rent rolls received from the related Mortgagor, if any.  With respect to Specially Serviced Mortgage Loans, the Master Servicer shall include information only to the extent provided by the Special Servicer, which an Operating Statement Analysis Report and a Financial File shall be prepared by the Special Servicer and delivered to the Master Servicer within 90 days after the end of each of the first three quarters of each year for the trailing twelve months, quarterly or year-to-date information received and other information utilized by the Special Servicer to prepare such report or files.  With respect to any Mortgage Loan for which a Primary Servicer is appointed as the Special Servicer with respect to such Mortgage Loan pursuant to Section 9.39, the reports prepared by any the Special Servicer shall only include the CMSA reports and related data required by the related Primary Servicing Agreement, and such other reports as are mutually agreed to by the related Primary Servicer and the Master Servicer.  Not later than the Report Date occurring in June of each year, beginning in 20__ for year-end 20__, the Master Servicer (in the case of Mortgage Loans that are not Specially Serviced Mortgage Loans and as provided by the Special Servicer to the Master Servicer for Specially Serviced Mortgage Loans) shall deliver to the Paying Agent and the Operating Adviser an Operating Statement Analysis Report, a Financial File and an NOI


 









  





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Adjustment Worksheet for each Mortgage Loan in electronic format, based on the most recently available year-end financial statements and most recently available rent rolls, in each case of Mortgage Loans other than Co-op Mortgage Loans, of each applicable Mortgagor (to the extent provided to the Master Servicer or the Special Servicer by or on behalf of each Mortgagor).  In the case of Specially Serviced Mortgaged Loans, as provided to the Special Servicer by the Mortgagor, the Special Servicer shall forward such information to the Master Servicer on or before April 15 of each such year as provided for in Section 9.32(e) herein, containing such information and analyses for each Mortgage Loan provided for in the respective forms of Operating Statement Analysis Report, Financial File and NOI Adjustment Worksheet.  Such information provided by the Master Servicer shall include what would customarily be included in accordance with the Servicing Standard including, without limitation, Debt Service Coverage Ratios and income.  As and to the extent reasonably requested by the Special Servicer, the Master Servicer shall make inquiry of any Mortgagor with respect to such information or as regards the performance of the related Mortgaged Property in general.  The Paying Agent shall provide or make available electronically at no cost to the Certificateholders or Certificate Owners, the Rating Agencies, the Operating Adviser, the Depositor, the Placement Agent and the Underwriters the Operating Statement Analysis Reports, the Financial Files and the NOI Adjustment Worksheets described above pursuant to Section 5.4(a).  The Master Servicer shall make the CMSA Operating Statement Analysis Report, the operating statements, rent rolls (except in the case of Co-op Mortgage Loans), property inspections and NOI Adjustment Worksheet for each Mortgage Loan available on its website (which shall initially be located at _______ (the “Master Servicer’s Website”)) by the Business Day following the Distribution Date in _____.  The Master Servicer shall, upon request by any of such parties, deliver copies of such documents to such parties if such documents are not available on the Master Servicer’s website at such time.  Pursuant to the Mortgage Loan Purchase Agreements, the Sellers shall populate all fields or any information for their related Mortgage Loans reasonably requested by the Master Servicer to complete the Property File.


 


Section 8.15 Other Available Information and Certain Rights of the Master Servicer


 


(a) Subject to paragraphs (b), (c) and (d) below, unless prohibited by applicable law or the loan documents, the Paying Agent shall make available at its Corporate Trust Office, during normal business hours, upon reasonable advance written notice for review by any Certificateholder, any Certificate Owner, any Seller, any Primary Servicer, the Placement Agent, any Underwriter, each Rating Agency, the Paying Agent or the Depositor, originals or copies of, among other things, the following items:  (i) this Agreement and any amendments thereto, (ii) all final and released Operating Statement Analysis Reports and the Loan Periodic Update Files, (iii) all Officer’s Certificates (including Officer’s Certificates evidencing any determination of Nonrecoverable Advances) delivered to the Trustee and the Paying Agent since the Closing Date, (iv) all accountants’ reports delivered to the Trustee and the Paying Agent since the Closing Date, (v) the most recent property Inspection Reports in the possession of the Paying Agent in respect of each Mortgaged Property, (vi) the most recent Mortgaged Property annual operating statement and, in the case of Mortgage Loans other than Co-op Mortgage Loans, rent roll, if any, collected by or on behalf of the Master Servicer or the Special Servicer, (vii) any and all modifications, waivers and amendments of the terms of a Mortgage Loan entered into by the Master Servicer and/or the Special Servicer, and (viii) any and all Officers’


 









  





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Certificates (and attachments thereto) delivered to the Trustee and the Paying Agent to support the Master Servicer’s determination that any Advance was not or, if made, would not be, recoverable.  The Trustee and the Paying Agent will be permitted to require payment of a sum to be paid by the requesting party (other than the Rating Agencies, the Trustee, the Paying Agent, any Placement Agent or any Underwriter) sufficient to cover the reasonable costs and expenses of making such information available.


 


(b) Subject to the restrictions described below, the Master Servicer shall afford the Rating Agencies, the Depositor, the Trustee, the Paying Agent, the Special Servicer, the Primary Servicers, the Sellers, any Placement Agent, the Underwriters, the Operating Adviser, any Certificateholder or any Certificate Owner, upon reasonable notice and during normal business hours, reasonable access to all information referred to in Section 8.15(a) and any additional relevant, non-attorney-client-privileged records and documentation regarding the applicable Mortgage Loans, REO Property and all accounts, insurance policies and other relevant matters relating to this Agreement (which access may occur by means of the availability of information on the Master Servicer’s or the Paying Agent’s Website or the electronic delivery of such information to the requesting Person), in each case to the extent in its respective possession, and access to Servicing Officers of the Master Servicer responsible for its obligations hereunder.  Copies of information or access will be provided to Certificateholders and each Certificate Owner providing satisfactory evidence of ownership of Certificates or beneficial ownership of a Certificate, as the case may be, which may include a certification.  Copies (or computer diskettes or other digital or electronic copies of such information if reasonably available in lieu of paper copies) of any and all of the foregoing items shall be made available by the Master Servicer upon request; provided, however, that the Master Servicer shall be permitted to require payment by the requesting party (other than the Depositor, the Trustee, the Paying Agent, the Special Servicer, the Operating Adviser, any Placement Agent, any Underwriter, or any Rating Agency) of a sum sufficient to cover the reasonable expenses actually incurred by the Master Servicer of providing access or copies (including electronic or digital copies) of any such information requested in accordance with the preceding sentence.


 


(c) Nothing herein shall be deemed to require the Master Servicer to confirm, represent or warrant the accuracy of (or to be liable or responsible for) any other Person’s information or report.  Notwithstanding the above, the Master Servicer shall not have any liability to the Depositor, the Trustee, the Paying Agent, the Special Servicer, any Certificateholder, any Certificate Owner, the Placement Agent, any Underwriter, any Rating Agency or any other Person to whom it delivers information pursuant to this Section 8.15 or any other provision of this Agreement for federal, state or other applicable securities law violations relating to the disclosure of such information.  In the event any Person brings any claims relating to or arising from the foregoing against the Master Servicer (or any partners, representatives, Affiliates, members, managers, directors, officers, employees, agents thereof), the Trust (from amounts held in any account) shall hold harmless and indemnify the Master Servicer from any loss or expense (including attorney fees) relating to or arising from such claims.


 


(d) The Master Servicer shall produce the reports required of it under this Agreement; provided, however, that the Master Servicer shall not be required to produce any ad hoc non-standard written reports not otherwise required under this Agreement with respect to such Mortgage Loans.  In the event the Master Servicer elects to provide such non-standard


 


 









  





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reports, it may require the Person requesting such report (other than a Rating Agency) to pay a reasonable fee to cover the costs of the preparation thereof.  Notwithstanding anything to the contrary herein, as a condition to the Master Servicer making any report or information available upon request to any Person other than the parties hereto, the Master Servicer may require that the recipient of such information acknowledge that the Master Servicer may contemporaneously provide such information to the Depositor, the Trustee, the Paying Agent, the Special Servicer, the Primary Servicer, the Sellers, the Placement Agent, any Underwriter, any Rating Agency and/or the Certificateholders or Certificate Owners.  Any transmittal of information by the Master Servicer to any Person other than the Trustee, the Paying Agent, the other Master Servicer, the Special Servicer, the Rating Agencies, the Operating Adviser or the Depositor may be accompanied by a letter from the Master Servicer containing a disclaimer as to the confidentiality of the information requested.


 


(e) The Master Servicer may, at its discretion, make available by electronic media and bulletin board service certain information and may make available by electronic media or bulletin board service (in addition to making such information available as provided herein) any reports or information required by this Agreement that the Master Servicer is required to provide to any of the Rating Agencies, the Depositor and anyone the Depositor reasonably designates.


 


(f) The Master Servicer shall cooperate in providing the Rating Agencies with such other pertinent information relating to the Mortgage Loans as is or should be in their respective possession as the Rating Agencies may reasonably request.


 


(g) Once a month, the Master Servicer and the Special Servicer shall, without charge, make a knowledgeable Servicing Officer available to answer questions from the Operating Adviser during regular business hours at such time and for such duration as the Master Servicer or Special Servicer, and the Operating Adviser shall reasonably agree, regarding the performance and servicing of the Mortgage Loans and REO Properties for which the Master Servicer or the Special Servicer, as the case may be, is responsible.  As a condition to such disclosure, the Operating Adviser shall execute a confidentiality agreement in form reasonably acceptable to the Master Servicer, the Special Servicer and the Operating Adviser.


 


Section 8.16 Rule 144A Information


 


For as long as any of the Certificates are “restricted securities” within the meaning of Rule 144A under the Securities Act, the Master Servicer agrees to provide to the Paying Agent for delivery to any Holder thereof, any Certificate Owner therein and to any prospective purchaser of the Certificates or beneficial interest therein reasonably designated by the Paying Agent upon the request of such Certificateholder, such Certificate Owner or the Paying Agent, subject to this Section 8.16 and the provisions of Section 8.15, any information prepared by the Master Servicer that is required to be provided to such holder or prospective purchaser to satisfy the condition set forth in Rule 144A(d)(4) under the Securities Act, including, without limitation, copies of the reports and information described in Sections 8.15(a) and (b).


 









  





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Any recipient of information provided pursuant to this Section 8.16 shall agree that such information shall not be disclosed or used for any purpose other than the evaluation of the Certificates by such Person and the Master Servicer shall be permitted to use the letter referred to in Section 8.15(d).  Unless the Master Servicer chooses to deliver the information directly, the Depositor, the Placement Agent, the Underwriters or the Paying Agent shall be responsible for the physical delivery of the information requested pursuant to this Section 8.16.  As a condition to the Master Servicer making any report or information available upon request to any Person other than the parties hereto, the Master Servicer may require that the recipient of such information acknowledge that the Master Servicer may contemporaneously provide such information to the Depositor, the Trustee, the Paying Agent, the Placement Agent, the Underwriters, any Rating Agency and/or the Certificateholders and Certificate Owners.  The Master Servicer will be permitted to require payment of a sum to be paid by the requesting party (other than the Rating Agencies, the Trustee, the Paying Agent, the Placement Agent or the Underwriters) sufficient to cover the reasonable costs and expenses of making such information available.


 


Section 8.17 Inspections


 


The Master Servicer shall, at its own expense, inspect or cause to be inspected each Mortgaged Property for which it is acting as Master Servicer, other than Mortgaged Properties related to Specially Serviced Mortgage Loans, every calendar year beginning in 20__, or every second calendar year beginning in 20__ if the Principal Balance of the related Mortgage Loan is under $2,000,000; provided that the Master Servicer shall, at the expense of the Trust, inspect or cause to be inspected each Mortgaged Property related to a Mortgage Loan for which it is acting as Master Servicer (other than a Specially Serviced Mortgage Loan, or if there has not been an inspection within the past six months) that has a Debt Service Coverage Ratio that falls below [1.0x or, with respect to Co-op Mortgage Loans, 0.90x].  The foregoing sentence shall not alter the terms of the Special Servicer’s obligation to inspect Mortgaged Properties as set forth in Section 9.4(b) hereto.  The Master Servicer shall cause to be prepared an Inspection Report relating to each inspection.


 


The applicable Inspection Reports shall be available for review by the Trustee, the Special Servicer, the Rating Agencies, the Placement Agent, the Underwriters, the Depositor, the Paying Agent, the Operating Adviser, any Certificate Owner, any Seller and any Primary Servicer via password protocol and execution of an agreement relating thereto on the Master Servicer’s Website.  The Special Servicer shall have the right, but no duty, to inspect or cause to be inspected (at its own expense) every calendar year any Mortgaged Property related to a Mortgage Loan that is not a Specially Serviced Mortgage Loan, provided that the Special Servicer notifies the Master Servicer prior to such inspection.


 


Section 8.18 Modifications, Waivers, Amendments, Extensions and Consents


 


Subject to the limitations of Sections 9.39 and 12.3, the Master Servicer shall have the following powers:


 


(a) (i)           The Master Servicer, in accordance with the Servicing Standard, may agree to any modification, waiver, amendment or consent of or relating to any term









  





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(including, without limitation, Master Servicer Consent Matters set forth in Section 8.3(a) hereof and waiver of default interest and Late Fees as provided in Section 8.3(a)) other than a Money Term of a Mortgage Loan that is not a Specially Serviced Mortgage Loan, provided that such amendment would not result in an Adverse REMIC Event; and provided, further, that if any consent relates to a release of a letter of credit relating to any Mortgage Loan (other than letters of credit or portions thereof released upon satisfaction of conditions specified in the related agreements), then (i) the Master Servicer shall notify the Special Servicer of any Mortgagor’s request to release such letter of credit which the Master Servicer recommends to release, and (ii) if the terms of the related Mortgage Loan do not require the Master Servicer to approve a release, then the Special Servicer shall within five Business Days provide notice to the Master Servicer on whether the Master Servicer should approve the release (and the failure of the Special Servicer to give the Master Servicer such notice shall automatically be deemed to be an approval by the Special Servicer that the Master Servicer should grant such release).  Notwithstanding the preceding sentence, with respect to the Mortgage Loans that are not Specially Serviced Loans, if the Master Servicer recommends to approve a modification, waiver, amendment or consent which is not the Master Servicer Consent Matter (including, without limitation, any waiver of any requirement that the Mortgagor post additional reserves or a letter of credit upon the failure of the Mortgagor to satisfy conditions specified in the Mortgage Loan documents, but excluding any waiver of default interest and Late Fees as provided in Section 8.3(a)), the Master Servicer shall provide to the Special Servicer a copy of the Master Servicer’s recommendation and the relevant information obtained or prepared by the Master Servicer in connection therewith and all other information in the Master Servicer’s possession reasonably requested by the Special Servicer, provided, that (A) the Special Servicer shall have the right hereunder to grant or withhold consent to any such proposed modification, waiver, amendment or consent, and the Special Servicer shall not unreasonably withhold such consent and any such decision shall be in accordance with the Servicing Standard, (B) failure of the Special Servicer to notify the Master Servicer, within five Business Days following the Master Servicer’s delivery of the recommendation and all required information described above, of its determination to grant or withhold such consent shall be deemed to constitute a grant of such consent and (C) the Master Servicer shall not enter into any such proposed modification, waiver, amendment or consent unless it has received the written consent of the Special Servicer or such consent has been deemed to have been granted as described above.  Notwithstanding anything in this Agreement to the contrary, the Master Servicer shall not be required to obtain or request the consent of the Special Servicer in connection with any modification, waiver or amendment, or granting its consent to transactions, under one or more of the Mortgage Loans that in each case the Master Servicer has determined (in accordance with the Servicing Standard) is immaterial.  In any event, the Master Servicer shall promptly notify the Special Servicer of any material modification, waiver, amendment or consent executed by the Master Servicer pursuant to this Section 8.18(a)(i) and provide to the Special Servicer a copy thereof.  Notwithstanding the foregoing provisions of this Section 8.18, if the Mortgage Loan documents do not preclude imposition of a requirement to or require a Mortgagor to pay a fee for an assumption, modification, waiver, amendment or consent that would be due or partially due to the Special Servicer, then the Master Servicer shall not waive the portion of such fee due to the Special Servicer without the Special Servicer’s approval.


 


Notwithstanding the foregoing, the Special Servicer acknowledges that the Master Servicer has delegated certain tasks, rights and obligations to the Primary Servicers for the


 









  





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[specify Mortgage Loans] with respect to Post-Closing Requests pursuant to Section 8.4 of this Agreement.


 


With respect to a Category 1 Request that involves a condition, term or provision that requires, or specifies a standard of, consent or approval of the applicable Mortgagee under the Mortgage Loan documents, each Primary Servicing Agreement provides for the Master Servicer’s determination of materiality of such condition, term or provision requiring approval or consent and the referral of such condition, term or provision to the Special Servicer for consent in accordance with the terms of such Primary Servicing Agreements upon a determination of materiality.  The Special Servicer hereby acknowledges such provisions, including that “materiality” shall include the existence of an Adverse REMIC Event.  Nothing in this Agreement, however, shall grant the applicable Primary Servicers greater authority, discretion or delegated rights over Post-Closing Requests than are set forth in the applicable Primary Servicing Agreements.


 


(ii) The Master Servicer may, without the consent of the Special Servicer, extend the maturity date of any Balloon Mortgage Loan that is not a Specially Serviced Mortgage Loan to a date that is not more than 90 days following the original Maturity Date, if in the Master Servicer’s sole judgment exercised in good faith (and evidenced by an Officer’s Certificate), a default in the payment of the Balloon Payment is reasonably foreseeable and the Mortgagor has obtained an executed written commitment (subject only to satisfaction of conditions set forth therein) for refinancing of the Mortgage Loan or purchase of the related Mortgaged Property.  The Master Servicer shall process all such extensions and shall be entitled to (as additional servicing compensation) 100% of any extension fees collected from a Mortgagor with respect to any such extension.


 


(b) The Master Servicer may require, in its discretion (unless prohibited or otherwise provided in the Mortgage Loan documents), as a condition to granting any request by a Mortgagor for any consent, modification, waiver or amendment, that such Mortgagor pay to the Master Servicer a reasonable and customary modification fee to the extent permitted by law; provided that the collection of such fee shall not be permitted if collection of such fee would cause a “significant modification” (within the meaning of Treasury Regulations Section 1.860G-2(b) of the Mortgage Loan).  The Master Servicer shall be entitled to (as additional servicing compensation) [100%] of any Modification Fees collected from a Mortgagor in connection with a consent, waiver, modification or amendment of a non-Specially Serviced Mortgage Loan executed or granted pursuant to this Section 8.18.  The Master Servicer may charge the Mortgagor for any costs and expenses (including attorneys’ fees and Rating Agency Confirmation fees) incurred by the Master Servicer or the Special Servicer (which amounts shall be reimbursed to the Special Servicer) in connection with any request for a modification, waiver or amendment.  The Master Servicer agrees to use its reasonable efforts in accordance with the Servicing Standard to collect such costs, expenses and fees from the Mortgagor, provided that the failure or inability of the Mortgagor to pay any such costs and expenses shall not impair the right of the Master Servicer to cause such costs and expenses (but not including any modification fee), and interest thereon at the Advance Rate, to be paid or reimbursed by the Trust as a Servicing Advance (to the extent not paid by the Mortgagor).  If the Master Servicer believes that the costs and expenses (including attorneys’ fees) to be incurred by the Master Servicer in


 









  





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connection with any request for a modification, waiver or amendment will result in a payment or reimbursement by the Trust, then the Master Servicer shall notify the Special Servicer.


 


(c) The Master Servicer shall notify the Trustee and the Special Servicer of any modification, waiver or amendment of any term of any Mortgage Loan permitted by it under this Section and the date thereof, and shall deliver to the Trustee for deposit in the related Mortgage File, an original counterpart of the agreement relating to such modification, waiver or amendment, promptly following the execution thereof except to the extent (i) allowed with respect to waiver of default interest and Late Fees as provided in Section 8.3(a) and (ii) such documents have been submitted to the applicable recording office, in which event the Master Servicer shall promptly deliver copies of such documents to the Trustee.  The Master Servicer shall not agree to any modification, waiver, or amendment of any Money Term of a Mortgage Loan or any term of a Specially Serviced Mortgage Loan.


 


(d) If the Mortgage Loan documents relating to a Mortgage Loan provide that certain conditions must be satisfied prior to the Master Servicer releasing additional collateral for the Mortgage Loan (e.g., the release, reduction or termination of reserves or letters of credit or the establishment of reserves), then the Master Servicer shall be permitted to waive any such condition without obtaining the consent of the Special Servicer, provided that (1) the aggregate amount of the related release, reduction or termination is no greater than the smaller of 10% of the outstanding unpaid Principal Balance of the related Mortgage Loan or [$75,000], (2) the condition to be waived is deemed to be non-material in accordance with the Servicing Standard or (3) such release, reduction or termination would not otherwise cause an Adverse REMIC Event.  Notwithstanding the foregoing, without the Special Servicer’s consent or except as provided in the specific Mortgage Loan documents, the Master Servicer shall not waive:  (1) a requirement for any such additional collateral to exist, or (2) a lock box requirement.


 


Section 8.19 Specially Serviced Mortgage Loans


 


(a) The Master Servicer shall send a written notice to the Special Servicer, the Operating Adviser, Rating Agencies, the Paying Agent and the Trustee, within two Business Days after becoming aware of a Servicing Transfer Event with respect to a Mortgage Loan, which notice shall identify the related Mortgage Loan and set forth in reasonable detail the nature and relevant facts of such Servicing Transfer Event and whether such Mortgage Loan is covered by an Environmental Insurance Policy (and for purposes of stating whether such Mortgage Loan is covered by an Environmental Insurance Policy applicable the Master Servicer may rely on the Mortgage Loan Schedule) and, except for the Rating Agencies, the Paying Agent and the Trustee, shall be accompanied by a copy of the Servicer Mortgage File.  The Special Servicer shall not be liable for its failure to deliver the notice set forth in Section 9.36(a) if such failure is caused by its failure to receive the written notice set forth above.


 


(b) Prior to the transfer of the servicing of any Specially Serviced Mortgage Loan to the Special Servicer, the Master Servicer shall notify the related Mortgagor of such transfer in accordance with the Servicing Standard (the form and substance of such notice shall be reasonably satisfactory to the Special Servicer).


 









  





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(c) Any calculations or reports prepared by the Master Servicer to the extent they relate to Specially Serviced Mortgage Loans shall be based on information supplied to the Master Servicer in writing by the Special Servicer as provided hereby.  The Master Servicer shall have no duty to investigate or confirm the accuracy of any information provided to it by the Special Servicer and shall have no liability for the inaccuracy of any of its reports due to the inaccuracy of the information provided by the Special Servicer.


 


(d) On or prior to each Distribution Date, the Master Servicer shall provide to the Special Servicer, in order for the Special Servicer to comply with its obligations under this Agreement, such information (and in the form and medium) as the Special Servicer may reasonably request in writing from time to time, provided that (i) the Master Servicer shall not be required to produce any ad hoc reports or incur any unusual expense or effort in connection therewith and (ii) if the Master Servicer elects to provide such ad hoc reports, it may require the Special Servicer to pay a reasonable fee to cover the costs of the preparation thereof.


 


Section 8.20 Representations, Warranties and Covenants of the Master Servicer


 


(a) The Master Servicer hereby represents and warrants to and covenants with the Trustee and the Paying Agent, as of the date hereof:


 


(i) the Master Servicer is a corporation, duly organized, validly existing and in good standing under the laws of the [State of _________], and the Master Servicer is in compliance with the laws of each State in which any Mortgaged Property is located to the extent necessary to perform its obligations under this Agreement, except where the failure to so qualify or comply would not adversely affect the Master Servicer’s ability to perform its obligations hereunder in accordance with the terms of this Agreement;


 


(ii) the execution and delivery of this Agreement by the Master Servicer, and the performance and compliance with the terms of this Agreement by the Master Servicer, will not violate the Master Servicer’s organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets, which default or breach, in the good faith reasonable judgment of the Master Servicer, is likely to materially and adversely either affect the ability of the Master Servicer to perform its obligations under this Agreement or the financial condition of the Master Servicer;


 


(iii) the Master Servicer has the full power and authority to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement;


 


(iv) this Agreement, assuming due authorization, execution and delivery by the other parties hereto, constitutes a valid, legal and binding obligation of the Master Servicer, enforceable against the Master Servicer in accordance with the terms hereof, subject to (A) applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting the enforcement of creditors’ rights generally, and (B) general principles


 









  





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of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law;


 


(v) the Master Servicer is not in violation of, and its execution and delivery of this Agreement and its performance and compliance with the terms of this Agreement will not constitute a violation of, any law, order or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Master Servicer’s good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Master Servicer to perform its obligations under this Agreement or the financial condition of the Master Servicer;


 


(vi) no litigation is pending or, to the best of the Master Servicer’s knowledge, threatened against the Master Servicer the outcome of which, in the Master Servicer’s good faith and reasonable judgment, could reasonably be expected to prohibit the Master Servicer from entering into this Agreement or materially and adversely affect the ability of the Master Servicer to perform its obligations under this Agreement;


 


(vii) the Master Servicer has errors and omissions insurance coverage which is in full force and effect and which complies with the requirements of Section 8.2; and


 


(viii) no consent, approval, authorization or order, registration or filing with or notice to, any governmental authority or court is required, under federal or state law, for the execution, delivery and performance of or compliance by the Master Servicer with this Agreement, or the consummation by the Master Servicer of any transaction contemplated hereby, other than (1) such consents, approvals, authorizations, qualifications, registrations, filings, or notices as have been obtained or made and (2) where the lack of such consent, approval, authorization, qualification, registration, filing or notice would not have a material adverse effect on the performance by the Master Servicer under this Agreement.


 


(b) It is understood that the representations and warranties set forth in this Section 8.20 shall survive the execution and delivery of this Agreement.


 


(c) Any cause of action against the Master Servicer arising out of the breach of any representations and warranties made in this Section shall accrue upon the giving of written notice to the Master Servicer by any of the Trustee or the Master Servicer.  The Master Servicer shall give prompt notice to the Trustee, the Depositor, the Primary Servicers and the Special Servicer of the occurrence, or the failure to occur, of any event that, with notice or the passage of time or both, would cause any representation or warranty in this Section to be untrue or inaccurate in any respect.


 


Section 8.21 Merger or Consolidation


 


Any Person into which the Master Servicer may be merged or consolidated, or any Person resulting from any merger, conversion, other change in form or consolidation to which the Master Servicer shall be a party, or any Person succeeding to the business of the Master Servicer, shall be the successor of the Master Servicer hereunder, without the execution


 









  





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or filing of any paper or any further act on the part of any of the parties hereto; provided, however, that each Rating Agency provides a Rating Agency Confirmation; provided, further, that for so long as the Trust is subject to the reporting requirements of the Exchange Act, the Depositor shall have consented thereto (which consent shall not be unreasonably withheld).  If such a succession occurs and the conditions thereto set forth in the provisions in the foregoing sentence are not met, the Trustee may terminate the Master Servicer’s servicing of the Mortgage Loans pursuant hereto, such termination to be effected in the manner set forth in Sections 8.28 and 8.29.


 


Section 8.22 Resignation of the Master Servicer


 


(a) Except as otherwise provided in Section 8.22(b) hereof, the Master Servicer shall not resign from the obligations and duties hereby imposed on it unless it determines that the Master Servicer’s duties hereunder are no longer permissible under applicable law or are in material conflict by reason of applicable law with any other activities carried on by it.  Any such determination permitting the resignation of the Master Servicer shall be evidenced by an Opinion of Counsel to such effect delivered to the Trustee.  No such resignation shall become effective until a successor servicer designated by the Trustee, with the consent of the Depositor and the Paying Agent, shall have assumed the Master Servicer’s responsibilities and obligations under this Agreement and Rating Agency Confirmation shall have been obtained.  Notice of such resignation shall be given promptly by the Master Servicer to the Trustee and the Paying Agent.  The Master Servicer bears all costs associated with its resignation and the transfer of servicing under this Section 8.22(a).  Notwithstanding the foregoing, if the Master Servicer shall cease to serve as such in accordance with this Section 8.22(a) and a successor servicer shall not have been engaged, the Trustee or an agent of the Trustee shall assume the duties and obligations of the Master Servicer under this Agreement.  If the Trustee or an agent of the Trustee assumes the duties and obligations of the Master Servicer pursuant to this Section 8.22(a), the Trustee or such agent shall be permitted to resign as master servicer if it has been replaced by a successor servicer satisfying the criteria in the fourth preceding sentence above.


 


(b) The Master Servicer may resign from the obligations and duties imposed on it, upon 30 days notice to the Trustee and the Paying Agent, provided that (i) a successor servicer (x) is available, (y) is willing to assume the obligations, responsibilities, and covenants to be performed hereunder by the Master Servicer on substantially the same terms and conditions, and for not more than equivalent compensation to that herein provided and (z) in the case of a successor servicer to the Master Servicer, assumes all obligations of the resigning Master Servicer under the Primary Servicing Agreements; (ii) the Master Servicer bears all costs associated with its resignation and the transfer of servicing; and (iii) Rating Agency Confirmation is obtained with respect to such servicing transfer, as evidenced by a letter delivered to the Trustee by each such Rating Agency.


 


Section 8.23 Assignment or Delegation of Duties by the Master Servicer


 


The Master Servicer shall have the right without the prior written consent of the Trustee to (A) delegate or subcontract with or authorize or appoint anyone, or delegate certain duties to other professionals such as attorneys and appraisers, as an agent of the Master Servicer


 









  





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(as provided in Section 8.4) to perform and carry out any duties, covenants or obligations to be performed and carried out by the Master Servicer hereunder or (B) assign and delegate all of its duties hereunder; provided, however, that with respect to clause (B), (i) the Master Servicer gives the Depositor, the Special Servicer, the Primary Servicers, and the Trustee notice of such assignment and delegation; (ii) such purchaser or transferee accepting such assignment and delegation executes and delivers to the Depositor and the Trustee an agreement accepting such assignment, which contains an assumption by such Person of the rights, powers, duties, responsibilities, obligations and liabilities of the Master Servicer, with like effect as if originally named as a party to this Agreement and the Primary Servicing Agreements; (iii) the purchaser or transferee has assets in excess of [$15,000,000]; (iv) such assignment and delegation is the subject of a Rating Agency Confirmation from [Moody’s and S&P]; and (v) the Depositor consents to such assignment and delegation, such consent not be unreasonably withheld.  In the case of any such assignment and delegation in accordance with the requirements of subclause (B) of this Section, the Master Servicer shall be released from its obligations under this Agreement, except that the Master Servicer shall remain liable for all liabilities and obligations incurred by it as the Master Servicer hereunder prior to the satisfaction of the conditions to such assignment set forth in the preceding sentence.  Notwithstanding the above, the Master Servicer may appoint the Primary Servicers and Sub-Servicers in accordance with Section 8.4 hereof.


 


Section 8.24 Limitation on Liability of the Master Servicer and Others


 


(a) The Master Servicer or any of the partners, representatives, Affiliates, members, managers, directors, officers, employees or agents of the Master Servicer shall not be under any liability to the holders of the Certificates, the Depositor, the Trustee, the Paying Agent, the Placement Agent, the Underwriters or the Special Servicer for any action taken or for refraining from the taking of any action in good faith, or using reasonable business judgment, consistent with the Servicing Standard; provided that this provision shall not protect the Master Servicer or any such Person against any breach of a representation or warranty contained herein or any liability which would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in its performance of duties under the Agreement or by reason of negligent disregard of obligations and duties hereunder.  The Master Servicer and any partner, representative, Affiliate, member, manager, director, officer, employee or agent of the Master Servicer may rely in good faith on any document of any kind prima facie properly executed and submitted by any Person (including, without limitation, the Special Servicer) respecting any matters arising hereunder.  The Master Servicer shall not be under any obligation to appear in, prosecute or defend any legal action which is not incidental to its duties to service the Mortgage Loans in accordance with this Agreement; provided that the Master Servicer may in its sole discretion undertake any such action which it may reasonably deem necessary or desirable in order to protect the interests of the Certificateholders and the Trustee in the Mortgage Loans (subject to the Special Servicer’s servicing of Specially Serviced Mortgage Loans as contemplated herein).  In such event, all legal expenses and costs of such action shall be expenses and costs of the Trust, and the Master Servicer shall be entitled to be reimbursed therefor as Servicing Advances as provided by Section 5.2, subject to the provisions of Section 4.4 hereof.


 


(b) In addition, the Master Servicer shall have no liability with respect to, and shall be entitled to conclusively rely on as to the truth of the statements and the correctness of the opinions expressed in any certificates or opinions furnished to the Master Servicer and


 









  





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conforming to the requirements of this Agreement.  Subject to the Servicing Standard, the Master Servicer shall have the right to rely on information provided to it by the Special Servicer and Mortgagors, and will have no duty to investigate or verify the accuracy thereof.  The Master Servicer, or any partner, representative, Affiliate, member, manager, director, officer, employee or agent, shall not be personally liable for any error of judgment made in good faith by any officer, unless it shall be proved that the Master Servicer or such officer was negligent in ascertaining the pertinent facts.  The Master Servicer or any partner, representative, Affiliate, member, manager, director, officer, employee or agent, shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion, rights or powers conferred upon it by this Agreement.


 


(c) The Master Servicer shall not be obligated to incur any liabilities, costs, charges, fees or other expenses which relate to or arise from any breach of any representation, warranty or covenant made by the Depositor, the Special Servicer, the Paying Agent or the Trustee in this Agreement.  The Trust shall indemnify and hold harmless the Master Servicer from any and all claims, liabilities, costs, charges, fees or other expenses which relate to or arise from any such breach of representation, warranty or covenant to the extent the Master Servicer is unable to recover such amounts from the Person in breach.


 


(d) Except as otherwise specifically provided herein:


 


(i) the Master Servicer may rely, and shall be protected in acting or refraining from acting upon, any resolution, officer’s certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, financial statement, agreement, appraisal, bond or other document (in electronic or paper format) reasonably believed or in good faith believed by it to be genuine and to have been signed or presented by the proper party or parties;


 


(ii) the Master Servicer may consult with counsel, and any written advice or Opinion of Counsel shall be full and complete authorization and protection with respect to any action taken or suffered or omitted by it hereunder in good faith and in accordance with such advice or Opinion of Counsel;


 


(iii) the Master Servicer shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion, rights or powers conferred upon it by this Agreement; and


 


(iv) the Master Servicer, in preparing any reports hereunder, may rely, and shall be protected in acting or refraining from acting upon any information (financial or other), statement, certificate, document, agreement, covenant, notice, request or other paper (in electronic or paper format) reasonably believed by it to be genuine and provided by any Mortgagor or manager of a Mortgaged Property.


 


(e) The Master Servicer and any partner, representative, Affiliate, member, manager, director, officer, employee or agent of the Master Servicer shall be indemnified by the Trustee, the Paying Agent and the Special Servicer, as the case may be, and held harmless against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs,


 









  





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judgments, and any other costs, liabilities, fees and expenses that the Master Servicer may sustain arising from or as a result of the willful misfeasance, bad faith or negligence in the performance of the Trustee’s, the Paying Agent’s or the Special Servicer’s duties hereunder, as the case may be, or by reason of negligent disregard of the Trustee’s, the Special Servicer’s or the Paying Agent’s obligations and duties hereunder, as the case may be, (including a breach of such obligations a substantial motive of which is to obtain an economic advantage from being released from such obligations).  The Master Servicer shall immediately notify the Trustee, the Paying Agent and the Special Servicer, if a claim is made by a third party with respect to this Agreement or the Mortgage Loans for which it is acting as Master Servicer entitling the Master Servicer to indemnification hereunder, whereupon the Trustee, the Paying Agent or the Special Servicer, in each case, to the extent the claim is related to its respective willful misfeasance, bad faith, negligence or negligent disregard, shall assume the defense of any such claim (with counsel reasonably satisfactory to the Master Servicer) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim.  Any failure to so notify the Trustee, the Paying Agent and the Special Servicer shall not affect any rights that the Master Servicer may have to indemnification under this Agreement or otherwise, unless the Trustee’s, the Paying Agent’s or the Special Servicer’s defense of such claim is materially prejudiced thereby.  Such indemnity shall survive the termination of this Agreement or the resignation or removal of the Master Servicer hereunder.  Any payment hereunder made by the Trustee, the Paying Agent or the Special Servicer pursuant to this paragraph to the Master Servicer shall be paid from the Trustee’s, the Paying Agent’s or the Special Servicer’s own funds, without reimbursement from the Trust therefor except to the extent achieved through subrogation as provided in this Agreement.  Any expenses incurred or indemnification payments made by the Trustee, the Paying Agent or the Special Servicer shall be reimbursed by the party so paid, if a court of competent jurisdiction makes a final judgment that the conduct of the Trustee, the Paying Agent or the Special Servicer, as the case may be, was not culpable of willful misfeasance, bad faith or negligence in the performance of its respective duties hereunder or of negligent disregard of its respective duties hereunder or the indemnified party is found to have acted with willful misfeasance, bad faith or negligence.


 


Section 8.25 Indemnification; Third-Party Claims


 


(a) The Master Servicer and any partner, representative, Affiliate, member, manager, director, officer, employee or agent of each the Master Servicer shall be indemnified by the Trust and held harmless against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with any legal action or claim relating to this Agreement, any Mortgage Loans, any REO Property or the Certificates or any exercise of any right under this Agreement reasonably requiring the use of counsel or the incurring of expenses other than any loss, liability or expense incurred by reason of the Master Servicer’s willful misfeasance, bad faith or negligence in the performance of duties hereunder.  The Master Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Master Servicer) and out of the Trust pay all expenses in connection therewith, including counsel fees, and out of the Trust promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim and satisfy any settlement or other disposition in respect of such claim.  The indemnification provided herein shall survive the termination of this Agreement or of


 









  





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the Master Servicer in such capacity.  The Trustee, the Paying Agent or the Master Servicer shall promptly make from the applicable Certificate Account any payments certified by the Master Servicer to the Trustee and the Paying Agent as required to be made to the Master Servicer pursuant to this Section 8.25.


 


(b) The Master Servicer agrees to indemnify the Trustee, the Special Servicer, the Trust, the Depositor, the Paying Agent, and any partner, representative, Affiliate, member, manager, director, officer, employee, agent or Controlling Person thereof, and hold them harmless against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses that the Trustee, the Special Servicer, the Depositor, the Paying Agent and the Trust may sustain arising from or as a result of the willful misfeasance, bad faith or negligence in the performance of any of the Master Servicer’s duties hereunder or by reason of negligent disregard of the Master Servicer’s obligations and duties hereunder (including a breach of such obligations a substantial motive of which is to obtain an economic advantage from being released from such obligations), and if in any such situation the Master Servicer is replaced, the parties hereto agree that the amount of such claims, losses, penalties, fines, legal fees and related costs, judgments, and other costs, liabilities, fees and expenses shall at least equal the incremental costs, if any, of retaining a successor servicer.  The Trustee, the Special Servicer, the Paying Agent or the Depositor, as applicable, shall immediately notify the Master Servicer if a claim is made by any Person with respect to this Agreement or the Mortgage Loans entitling the Trustee, the Depositor, the Special Servicer, the Paying Agent or the Trust to indemnification under this Section 8.25(b), whereupon the Master Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the Special Servicer, the Paying Agent or the Depositor, as applicable) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim.  Any failure to so notify the Master Servicer shall not affect any rights the Trustee, the Special Servicer, the Depositor, the Paying Agent or the Trust may have to indemnification under this Agreement or otherwise, unless the Master Servicer’s defense of such claim is materially prejudiced thereby.  The indemnification provided herein shall survive the termination of this Agreement and the resignation or termination of the Master Servicer, the Special Servicer, the Paying Agent and the Trustee.  Any expenses incurred or indemnification payments made by the Master Servicer shall be reimbursed by the party so paid, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Master Servicer was not culpable of willful misfeasance, bad faith or negligence in the performance of its respective duties hereunder or of negligent disregard of its respective duties hereunder or the indemnified party is found to have acted with willful misfeasance, bad faith or negligence.


 


(c) The Primary Servicer and any partner, representative, Affiliate, member, manager, director, officer, employee or agent thereof shall be indemnified by the Trust and held harmless against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with any legal action relating to this Agreement, its Primary Servicing Agreement (but only if, and to the extent that, the Master Servicer would have been entitled to indemnification therefor under this Agreement if it were directly servicing the related Mortgage Loans, any [specify primary serviced loans] (solely with respect to the Primary Servicer), any REO Property or the Certificates or any exercise of any right under this Agreement or its related Primary Servicing


 









  





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Agreement (limited as set forth above) reasonably requiring the use of counsel or the incurring of expenses other than any loss, liability or expense incurred by reason of such Primary Servicer’s willful misfeasance, bad faith or negligence in the performance of duties thereunder.  Such Primary Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to such Primary Servicer) and out of the Trust pay all expenses in connection therewith, including counsel fees, and out of the Trust promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim.  The indemnification provided herein shall survive the termination of this Agreement and the related Primary Servicing Agreement.  The Trustee, the Paying Agent or the Master Servicer shall promptly make from the applicable Certificate Account any payments certified by such Primary Servicer with respect to the Mortgage Loans to the Trustee and the Paying Agent as required to be made to such Primary Servicer pursuant to this Section 8.25.


 


(d) The Primary Servicer agrees to indemnify the Trustee, the Special Servicer, the Trust, the Depositor, the Paying Agent, and any partner, representative, Affiliate, member, manager, director, officer, employee, agent or Controlling Person thereof, and hold them harmless against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses that the Trustee, the Special Servicer, the Depositor, the Paying Agent and the Trust may sustain arising from or as a result of the willful misfeasance, bad faith or negligence in the performance of such Primary Servicer’s duties under this Agreement, its related Primary Servicing Agreement or by reason of negligent disregard of such Primary Servicer’s obligations and duties thereunder (including a breach of such obligations a substantial motive of which is to obtain an economic advantage from being released from such obligations), and if in any such situation such Primary Servicer is replaced, the parties hereto agree that the amount of such claims, losses, penalties, fines, legal fees and related costs, judgments, and other costs, liabilities, fees and expenses shall at least equal the incremental costs, if any, of retaining a successor primary servicer.  The Trustee, the Special Servicer, the Paying Agent or the Depositor, as applicable, shall immediately notify such Primary Servicer if a claim is made by any Person with respect to this Agreement, the related Primary Servicing Agreement or the related Mortgage Loans (solely with respect to the Primary Servicer) entitling the Trustee, the Depositor, the Special Servicer, the Paying Agent or the Trust to indemnification under this Section 8.25(d), whereupon such Primary Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the Special Servicer, the Paying Agent or the Depositor, as applicable) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim.  Any failure to so notify such Primary Servicer shall not affect any rights the Trustee, the Special Servicer, the Depositor, the Paying Agent or the Trust may have to indemnification under this Agreement, the related Primary Servicing Agreement or otherwise, unless such Primary Servicer’s defense of such claim is materially prejudiced thereby.  The indemnification provided herein shall survive the termination of this Agreement and the related Primary Servicing Agreement and the resignation or termination of the Master Servicer, the Special Servicer, the Paying Agent and the Trustee.  Any expenses incurred or indemnification payments made by such Primary Servicer shall be reimbursed by the party so paid, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of such Primary Servicer was not culpable or that such Primary Servicer did not act with willful misfeasance, bad faith or negligence.


 









  





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(e) The Master Servicer shall not have any liability to the Depositor, the Trustee, the Paying Agent, the Special Servicer, any Certificateholder, any Certificate Owner, any Primary Servicer, the Placement Agent, any Underwriter, any Rating Agency or any other Person to whom it delivers information pursuant to the provisions of this Agreement for federal, state or other applicable securities law violations relating to the disclosure of such information.  In the event any Person brings any claims relating to or arising from the foregoing against the Master Servicer (or any partners, representatives, Affiliates, members, managers, directors, officers, employees, agents thereof), the Trust (from amounts held in any account) shall hold harmless and indemnify the Master Servicer from any loss or expense (including attorney fees) relating to or arising from such claims.


 


Section 8.26 [Reserved]


 


Section 8.27 Compliance with REMIC Provisions and Grantor Trust Provisions


 


The Master Servicer shall act in accordance with this Agreement and the REMIC Provisions and related provisions of the Code in order to create or maintain the status of the REMIC Pools created hereby as REMICs and each of the Class A-3-1FL Grantor Trust and the Class EI Grantor Trust created hereby as a grantor trust under the Code.  The Master Servicer shall take no action or (A) cause any REMIC Pool to take any action that could (i) endanger the status of any REMIC Pool as a REMIC under the Code or (ii) result in the imposition of a tax upon any REMIC Pool (including, but not limited to, the tax on prohibited transactions as defined in Section 860F(a)(2) of the Code or on prohibited contributions pursuant to Section 860G(d) of the Code) or (B) cause either the Class A-3-1FL Grantor Trust or Class EI Grantor Trust to take any action that could (i) endanger its status as a grantor trust or (ii) result in the imposition of any tax upon the Class A-3-1FL Grantor Trust or Class EI Grantor Trust, unless the Trustee shall have received a Nondisqualification Opinion (at the expense of the party seeking to take such action) to the effect that the contemplated action will not endanger such status or result in the imposition of such tax.  The Master Servicer shall comply with the provisions of Article XII hereof.


 


Section 8.28 Termination


 


(a) The obligations and responsibilities of the Master Servicer created hereby (other than the obligation of the Master Servicer to make payments to the Paying Agent as set forth in Section 8.29 and the obligations of the Master Servicer to the Trustee, the Paying Agent, the Special Servicer and the Trust as set forth in Section 8.25) shall terminate (i) on the date which is the later of (A) the final payment or other liquidation of the last Mortgage Loan remaining outstanding (and final distribution to the Certificateholders) or (B) the disposition of all REO Property (and final distribution to the Certificateholders), (ii) if an Event of Default with respect to the Master Servicer described in clauses 8.28(b)(iii), (iv), (viii) or (ix) (but, with respect to clause (ix), only if directed by the Certificateholders or the Operating Adviser as set forth in the last sentence of this Section 8.28(a)) has occurred, 60 days following the date on which the Trustee or Depositor gives written notice to the Master Servicer that the Master Servicer is terminated or (iii) if an Event of Default with respect to the Master Servicer described in clauses 8.28(b)(i), (ii), (v), (vi) or (vii) has occurred, immediately upon the date on which the Trustee or the Depositor gives written notice to the Master Servicer that the Master Servicer is


 









  





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terminated.  After any Event of Default, the Trustee (i) may elect to terminate the Master Servicer by providing such notice, and (ii) shall provide such notice if holders of Certificates representing more than 25% of the Aggregate Certificate Balance of all Certificates so direct the Trustee.  After an Event of Default described in Section 8.28(b)(ix) below, the Trustee shall, at the written direction of the Operating Advisor or the holders of Certificates representing more than 51% of the Aggregate Certificate Balance of all Certificates, terminate the Master Servicer.


 


(b) “Event of Default,” wherever used herein, means, with respect to the Master Servicer, any one of the following events:


 


(i) any failure by the Master Servicer, at the times required hereunder, to remit to the Paying Agent or otherwise make any payment required to be remitted by the Master Servicer under the terms of this Agreement, including any required Advances, which continues unremedied until 11:00 a.m. on the Distribution Date; or


 


(ii) any failure by the Master Servicer to make a required deposit to the applicable Certificate Account which continues unremedied for one Business Day following the date on which such deposit was first required to be made; or


 


(iii) any failure on the part of the Master Servicer duly to observe or perform in any material respect any other of the duties, covenants or agreements on the part of the Master Servicer contained in this Agreement which continues unremedied for a period of 30 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Master Servicer by the Depositor or the Trustee; provided, however, that if the Master Servicer certifies to the Trustee and the Depositor that the Master Servicer is in good faith attempting to remedy such failure, such cure period will be extended to the extent necessary to permit the Master Servicer to cure such failure; provided, further, that such cure period may not exceed 90 days; or


 


(iv) any breach of the representations and warranties contained in Section 8.20 hereof that materially and adversely affects the interest of any holder of any Class of Certificates and that continues unremedied for a period of 30 days after the date on which notice of such breach, requiring the same to be remedied, shall have been given to the Master Servicer by the Depositor or the Trustee, provided, however, that if the Master Servicer certifies to the Trustee and the Depositor that the Master Servicer is in good faith attempting to remedy such breach, such cure period will be extended to the extent necessary to permit the Master Servicer to cure such breach; provided, further, that such cure period may not exceed 90 days; or


 


(v) a decree or order of a court or agency or supervisory authority having jurisdiction in the premises in an involuntary case under any present or future federal or state bankruptcy, insolvency or similar law for the appointment of a conservator, receiver, liquidator, trustee or similar official in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Master Servicer and such decree or order shall have remained in force undischarged, undismissed or unstayed for a period of 60 days; or


 









  





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(vi) the Master Servicer shall consent to the appointment of a conservator, receiver, liquidator, trustee or similar official in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Master Servicer or of or relating to all or substantially all of its property; or


 


(vii) the Master Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make an assignment for the benefit of its creditors, voluntarily suspend payment of its obligations, or take any corporate action in furtherance of the foregoing; or


 


(viii) [a Servicing Officer of the Master Servicer obtains actual knowledge that Moody’s has (a) qualified, downgraded or withdrawn any rating then assigned by it to any class of certificates, or (b) placed any class of certificates on “watch status” in contemplation of possible rating downgrade or withdrawal (and that “watch status” placement has not have been withdrawn by it within 60 days of such Servicing Officer obtaining such knowledge), and, in either case, cited servicing concerns with the Master Servicer as the sole or a material factor in such rating action]; or


 


(ix) [the Master Servicer is no longer listed on S&P’s Select Servicer List as a U.S. Commercial Mortgage Master Servicer and the Master Servicer is not reinstated to such status within 60 days]; or [other Rating Agency default]


 


(x) the Master Servicer shall fail to comply with any of its obligations under Article XIII of this Agreement; provided, however, that if, following the Master Servicer’s failure to comply with any of such obligations under Section 13.6, 13.7, 13.9, 13.11, 13.12 or 13.13 on or prior to the dates by which such obligations are to be performed pursuant to, and as set forth in, such Sections, (a) the Master Servicer subsequently complies with such obligations before the Trustee or the Depositor gives written notice to it that it is terminated in accordance with this Section 8.28 and (b) the Master Servicer’s failure to comply does not cause the Paying Agent to fail in its obligations to timely file the related Form 8-K, Form 10-D or Form 10-K, as the case may be, by the related 8-K Filing Deadline, 10-D Filing Deadline or 10-K Filing Deadline, then such failure to comply shall cease to be an Event of Default under this Section 8.28(a)(xi) on the date on which such Form 8-K, Form 10-D or Form 10-K is so filed.


 


If the Master Servicer is terminated based upon an Event of Default set forth in clause (viii) or (ix) above, then the Master Servicer shall have the right to enter into a sub-servicing agreement or primary servicing agreement with the applicable successor master servicer with respect to all applicable Mortgage Loans that are not then subject to a Sub-Servicing Agreement or Primary Servicing Agreement, so long as such terminated Master Servicer is on the approved list of commercial mortgage loan primary servicers maintained by S&P and the Operating Advisor has consented to such Primary Servicing or Sub-Servicing arrangement.


 









  





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Section 8.29 Procedure Upon Termination


 


(a) Notice of any termination pursuant to clause (i) of Section 8.28(a), specifying the Master Servicer Remittance Date upon which the final transfer by the Master Servicer to the Paying Agent shall be made, shall be given promptly in writing by the Master Servicer to the Paying Agent no later than the later of (i) five Business Days after the final payment or other liquidation of the last Mortgage Loan or (ii) the sixth day of the month of such final distribution.  Upon any such termination, the duties of the Master Servicer (other than the obligation of the Master Servicer to pay to the Paying Agent the amounts remaining in the applicable Certificate Account as set forth below and the obligations of the Master Servicer to the Trustee and the Trust as provided herein) shall terminate and the Master Servicer shall transfer to the Paying Agent the amounts remaining in the applicable Certificate Account (and any sub-account) after making the withdrawals permitted to be made pursuant to Section 5.2 and shall thereafter terminate the applicable Certificate Account and any other account or fund maintained with respect to the Mortgage Loans.  The Master Servicer being terminated shall bear all costs of the transfer of servicing arising from such termination.


 


(b) On the date specified in a written notice of termination given to the Master Servicer pursuant to clause (ii) of Section 8.28(a), or on the date on which a written notice of termination is given to the Master Servicer pursuant to clause (iii) of Section 8.28(a) all authority, power and rights of the Master Servicer under this Agreement, whether with respect to the Mortgage Loans or otherwise, shall terminate (except for any rights relating to unpaid servicing compensation, unreimbursed Advances and all indemnities and exculpations set forth herein); provided that in no event shall the termination of the Master Servicer be effective until a successor servicer shall have succeeded the Master Servicer as successor servicer, subject to approval by the Rating Agencies, notified the Master Servicer of such designation and such successor servicer shall have assumed the Master Servicer’s obligations and responsibilities hereunder and under the Primary Servicing Agreements, as set forth in an agreement substantially in the form hereof, with respect to the Mortgage Loans.  Except as provided in the next sentence, the Trustee may not succeed the Master Servicer as servicer until and unless it has satisfied the provisions that would apply to a Person succeeding to the business of the Master Servicer pursuant to Section 8.22(b) hereof.  Notwithstanding the foregoing sentence, in the event that the Master Servicer is terminated as a result of an event described in Section 8.28(b)(v), 8.28(b)(vi) or 8.28(b)(vii), the Trustee shall act as successor servicer immediately upon delivery of a notice of termination to the Master Servicer and shall use commercially reasonable efforts within 90 days of assuming the duties of the Master Servicer, either to satisfy the conditions of Section 8.22(b) hereof or to transfer the duties of the Master Servicer to a successor servicer who has satisfied such conditions.  The Trustee is hereby authorized and empowered to execute and deliver, on behalf of the Master Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of termination, whether to complete the transfer and endorsement or assignment of the Mortgage Loans and related documents or otherwise.  The Master Servicer agrees to cooperate with the Trustee and the Paying Agent in effecting the termination of the Master Servicer’s responsibilities and rights hereunder as Master Servicer including, without limitation, notifying Mortgagors of the assignment of the servicing function and providing the Trustee all documents and records in electronic or other form reasonably requested by it to enable the successor


 









  





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servicer designated by the Trustee to assume the Master Servicer’s functions hereunder and to effect the transfer to such successor for administration by it of all amounts which shall at the time be or should have been deposited by the Master Servicer in the Certificate Account and any other account or fund maintained or thereafter received with respect to the Mortgage Loans.


 


(c) If the Master Servicer receives a written notice of termination pursuant to clause (ii) of Section 8.28(a) relating solely to an Event of Default set forth in clause (viii) or (ix) of Section 8.28(b) or an Event of Default caused by a default of a Primary Servicer under its Primary Servicing Agreement, and if the Master Servicer provides the Trustee with the appropriate “request for proposal” materials within five Business Days after receipt of such written notice of termination, then the Trustee shall promptly thereafter (using such “request for proposal” materials provided by the Master Servicer) solicit good faith bids for the rights to service the Mortgage Loans under this Agreement from at least three but no more than five Qualified Bidders or, if three Qualified Bidders cannot be located, then from as many Persons as the Trustee can determine are Qualified Bidders.  At the Trustee’s request, the Master Servicer shall supply the Trustee with the names of Persons from whom to solicit such bids.  In no event shall the Trustee be responsible if less than three Qualified Bidders submit bids for the right to service the Mortgage Loans under this Agreement.


 


(d) Each bid proposal shall require any Qualified Bidder, as a condition of its bid, to enter into this Agreement as successor Master Servicer, and to agree to be bound by the terms hereof and the terms of the Primary Servicing Agreements, not later than 45 days after termination of the Master Servicer hereunder.  The Trustee shall select the Qualified Bidder with the highest cash bid (or such other Qualified Bidder as the Master Servicer may direct) (the “Successful Bidder”) to act as successor Master Servicer hereunder.  The Trustee shall direct the Successful Bidder to enter into this Agreement as successor Master Servicer pursuant to the terms hereof, and in connection therewith to deliver the amount of the Successful Bidder’s cash bid to the Trustee by wire transfer of immediately available funds to an account specified by the Trustee no later than [10:00 a.m.] New York City time on the date specified for the assignment and assumption of the servicing rights hereunder.


 


(e) Upon the assignment and acceptance of the servicing rights hereunder to and by the Successful Bidder and receipt of such cash bid, the Trustee shall remit or cause to be remitted to the terminated Master Servicer the amount of such cash bid received from the Successful Bidder (net of all out-of-pocket expenses incurred in connection with obtaining such bid and transferring servicing) by wire transfer of immediately available funds to an account specified by the terminated Master Servicer no later than [1:00 p.m.] New York City time on the date specified for the assignment and assumption of the servicing rights hereunder.


 


(f) If the Successful Bidder has not entered into this Agreement as a successor Master Servicer within [45 days] after the termination of the Master Servicer hereunder or no Successful Bidder was identified within such [45-day] period, the Trustee shall have no further obligations under Section 8.29(c) and may act or may select another successor to act as Master Servicer hereunder in accordance with Section 8.29(b).  During such [45-day] period and until the acceptance of appointment by a successor servicer, the Master Servicer shall continue to service the Mortgage Loans in accordance with this Agreement.


 









  





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(g) Notwithstanding anything to the contrary in this Section 8.29, the successor master servicer must assume all of the obligations of the terminated Master Servicer under the Primary Servicing Agreements as a condition precedent to its becoming Master Servicer hereunder.


 


Section 8.30 Swap Contract


 


(a) On the Closing Date, the Trustee, not in its individual capacity but solely in its capacity as Trustee on behalf of the Trust, is hereby directed to execute and deliver the Swap Contract in the name of the Trust.  Subject to Section 6.12, the Trustee shall enforce in a commercially reasonable manner the terms of the Swap Contract, including, without limiting the generality of the foregoing, the Credit Support Annex and the terms of the Schedule to the related ISDA Master Agreement.


 


(b) On the second Business Day prior to each Distribution Date, based on the reports provided by the Master Servicer or on information that the Paying Agent obtains from the Swap Counterparty pursuant to the Swap Contract, and subject to the priorities set forth in Article VI hereof, the Paying Agent shall provide to the Swap Counterparty sufficient information to enable the Swap Counterparty to calculate the Net Swap Payment, if any, due to the Swap Counterparty under the Swap Contract, based upon the projected payment that will be payable on the Class A-3-1FL Regular Interest pursuant to the priorities set forth in Article VI hereof and the Pass-Through Rate of the Class A-3-1FL Regular Interest and the Class [A-3-1FL] Certificates and the amount of any Prepayment Premiums payable on the Class A-3-1FL Regular Interest.  The Paying Agent shall distribute or cause to be distributed pursuant to Section 8.30(g), one Business Day prior to each Distribution Date, the Net Swap Payment to the Swap Counterparty pursuant to the terms of the Swap Contract.


 


Any termination payments due to the Swap Counterparty under the Swap Contract shall be payable solely from any portion of the Fixed Interest Distribution remaining after all other amounts have been paid under the Class A-3-1FL Regular Interest and the Class [A-3-1FL] Certificates (including all Unpaid Interest and principal amounts outstanding).


 


(c) The Paying Agent agrees to calculate LIBOR for each Interest Reset Date.  By the close of business on each Interest Reset Date (or, if such date is not a Business Day, on the immediately succeeding Business Day), the Paying Agent will provide notice to the Swap Counterparty of its calculation of LIBOR applicable to the related Interest Accrual Period.


 


(d) Promptly upon receipt of any payment or other receipt in respect of the Class A-3-1FL Regular Interest or the Swap Contract, the Paying Agent shall deposit the same into the Floating Rate Account.


 


(e) Subject to Section 6.12 hereof, if a Rating Agency Trigger Event occurs, the Trustee will enforce in a commercially reasonable manner the Trust’s rights to the Swap Counterparty’s obligations to post collateral or find a replacement swap counterparty that would not cause a Rating Agency Trigger Event.


 


(f) If the Swap Counterparty is required to post collateral pursuant to the Swap Contract, the Trustee shall establish an account (or, shall direct the Paying Agent to


 









  





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establish such account), which shall be an Eligible Account (the “Swap Counterparty Collateral Account”).  The Trustee shall deposit all collateral received from the Swap Counterparty under any Credit Support Annex (as defined in the Swap Contract) of the Swap Contract into the Swap Counterparty Collateral Account.  The only permitted withdrawal from or application of funds on deposit in, or otherwise to the credit of, the Swap Counterparty Collateral Account shall be (i) for application to obligations of the Swap Counterparty under the Swap Contract if such Swap Contract becomes subject to early termination or upon default by the Swap Counterparty or (ii) to return collateral to the relevant Swap Counterparty when and as required by the Swap Contract.  The Trustee or Paying Agent, as applicable, agrees to give the Swap Counterparty prompt notice if it obtains knowledge that the Swap Counterparty Collateral Account or any funds on deposit therein or otherwise to the credit of the Swap Counterparty Collateral Account, shall become subject to any writ, order, judgment, warrant of attachment, execution or similar process.  Funds credited to the Swap Counterparty Collateral Account shall be applied as contemplated in the Swap Contract.  Subject to the terms of the Swap Contract, proceeds of liquidation of any Swap Contract collateral (if the Swap Contract becomes subject to early termination or upon default by the Swap Counterparty) shall be deposited in the Floating Rate Account for application as applicable.


 


(g) The Paying Agent shall pay to the Swap Counterparty the portion of interest and other amounts payable on the Class A-3-1FL Regular Interest which is equal to the net swap payment due to the Swap Counterparty pursuant to the Swap Contract (the “Net Swap Payment”) in accordance with Section 8.30(b) above.  The Trustee and the Paying Agent will have no obligation on behalf of the Trust to pay to the Swap Counterparty any portion of the Fixed Interest Distribution unless and until the interest payment on the Class A-3-1FL Regular Interest is actually received by the Paying Agent.  The Paying Agent shall receive funds from the Swap Counterparty representing the net amount payable to the Paying Agent pursuant to the Swap Contract and shall remit such amount to the holders of the Class [A-3-1FL] Certificates as part of the Class A-3-1FL Interest Distribution Amount pursuant to Section 6.12.


 


(h) With respect to any proposed amendment to the Swap Contract, upon receipt of a Rating Agency Confirmation, the Trustee shall enter into such amendment on behalf of the Class [A-3-1FL] Certificateholders.


 


ARTICLE IX


 


ADMINISTRATION AND SERVICING OF SPECIALLY SERVICED MORTGAGE LOANS BY THE SPECIAL SERVICER


 


Section 9.1 Duties of the Special Servicer


 


(a) Subject to the express provisions of this Agreement, for and on behalf of the Certificateholders and the Trustee, the Special Servicer shall service the Specially Serviced Mortgage Loans and manage the related REO Properties in accordance with the provisions of this Agreement and the Servicing Standard.


 


The Special Servicer shall be the Special Servicer with respect to all the Mortgage Loans and other assets of the Trust and, as such, shall service and administer such of the assets of


 









  





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the Trust as constitute Specially Serviced Mortgage Loans and REO Properties and shall render such incidental services as are required of the Special Servicer with respect to such of the assets of the Trust as constitute assets that are not Specially Serviced Mortgage Loans or REO Properties.


 


(b) The Special Servicer shall cooperate with the Master Servicer and provide the Master Servicer with the information reasonably requested by the Master Servicer, in writing, to the extent required to allow the Master Servicer to perform its servicing obligations with respect to the Specially Serviced Mortgage Loans hereunder; provided, however, that (i) the Special Servicer shall not be required to produce any ad hoc reports or incur any unusual expense or effort in connection therewith and (ii) if the Special Servicer elects to provide such ad hoc reports requested by the Master Servicer, the Special Servicer may require the Master Servicer to pay a reasonable fee to cover the costs of the preparation thereof.  The Special Servicer’s obligations with respect to the servicing of any Specially Serviced Mortgage Loan and any related REO Properties shall terminate when such Specially Serviced Mortgage Loan has become a Rehabilitated Mortgage Loan, unless and until another Servicing Transfer Event with respect to such Rehabilitated Mortgage Loan occurs.


 


(c) The Special Servicer shall send a written notice to the Master Servicer and the Paying Agent within two Business Days after becoming aware that a Mortgage Loan has become a Rehabilitated Mortgage Loan, which notice shall identify the applicable Mortgage Loan.  Upon the receipt of such notice by the Master Servicer and the Paying Agent, such Mortgage Loan shall become a Rehabilitated Mortgage Loan and will be serviced by the Master Servicer.


 


(d) Upon the occurrence of a Servicing Transfer Event with respect to a Mortgage Loan and upon the reasonable request of the Special Servicer, the Master Servicer shall mark its records for such Mortgage Loan to cause any monthly statements for amounts due on such Mortgage Loan to be sent thereafter to the Special Servicer rather than the related Mortgagor.  Upon receipt of any such monthly statement, the Special Servicer shall, within two Business Days, advise the Master Servicer of any changes to be made, and return the monthly statement to the Master Servicer.  The Master Servicer shall thereafter promptly send the corrected monthly statement to the Mortgagor.  If a Mortgage Loan becomes a Rehabilitated Mortgage Loan, the Master Servicer shall send the monthly statement to the Mortgagor as it did before such Mortgage Loan became a Specially Serviced Mortgage Loan.


 


(e) All amounts collected by the Master Servicer with respect to a Specially Serviced Mortgage Loan (other than a Mortgage Loan that has become an REO Mortgage Loan) shall be deposited in the applicable Certificate Account.  The Master Servicer shall within two Business Days after receipt of any such payment, notify the Special Servicer of the receipt of such payment and the amount thereof.  The Special Servicer shall, within two Business Days thereafter, instruct the Master Servicer in writing how to apply such payment (with the application of such payments to be made in accordance with the related Mortgage Loan documents or in accordance with this Agreement, as applicable).


 


(f) After the occurrence of any Servicing Transfer Event with respect to any one or more Mortgage Loans that are the subject of any Environmental Insurance Policy, (i) the


 









  





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Special Servicer shall monitor the dates by which any claim must be made or action must be taken under such Environmental Insurance Policy to achieve the payment of all amounts thereunder to which the Trust is entitled in the event the Special Servicer has actual knowledge of any event giving rise to a claim under such Environmental Insurance Policy (an “Insured Environmental Event”) and (ii) if the Special Servicer has actual knowledge of an Insured Environmental Event with respect to such Mortgage Loan, the Special Servicer shall take reasonable actions as are in accordance with the Servicing Standard and the terms and conditions of the related Environmental Insurance Policy to make a claim thereunder and achieve the payment of all amounts to which the Trust is entitled thereunder.  Any legal fees or other out-of-pocket costs incurred in accordance with the Servicing Standard in connection with any such claim shall be paid by, and reimbursable to, the Master Servicer as a Servicing Advance.  All extraordinary expenses (but not ordinary and routine or anticipated expenses) incurred by the Special Servicer in fulfilling its obligations under this Section 9.1 shall be paid by the Trust.


 


Section 9.2 Fidelity Bond and Errors and Omissions Insurance Policy of the Special Servicer


 


The Special Servicer, at its expense, shall maintain in effect a Servicer Fidelity Bond and a Servicer Errors and Omissions Insurance Policy.  The Servicer Errors and Omissions Insurance Policy and Servicer Fidelity Bond shall be issued by a Qualified Insurer (unless the Special Servicer self insures as provided below) and be in form and amount consistent with the Servicing Standard.  In the event that any such Servicer Errors and Omissions Insurance Policy or Servicer Fidelity Bond ceases to be in effect, the Special Servicer shall obtain a comparable replacement policy or bond from an insurer or issuer meeting the requirements set forth above as of the date of such replacement.  So long as the long-term rating of the Special Servicer (or its corporate parent) is not less than two rating categories (ignoring pluses or minuses) lower than the highest rating of the Certificates, but in any event not less than [“A” as rated by S&P and “A2” as rated by Moody’s], the Special Servicer may self-insure for the Servicer Fidelity Bond and the Servicer Error and Omissions Insurance Policy.


 


Section 9.3 Sub-Servicers


 


The Special Servicer shall have the right to use a Sub-Servicer on the same terms and conditions as those set forth in Section 8.4 for a Sub-Servicer of the Master Servicer.  The Special Servicer shall notify the Master Servicer, the Trustee and the Operating Adviser of the appointment of any Sub-Servicer of the Special Servicer.


 


Section 9.4 Special Servicer’s General Powers and Duties


 


(a) Subject to the other terms and provisions of this Agreement (including, but not limited to, Sections 9.39), the Special Servicer is hereby authorized and empowered when the Special Servicer believes it appropriate in accordance with the Servicing Standard, to take any and all the actions with respect to Specially Serviced Mortgage Loans which the Master Servicer may perform as set forth in Section 8.3(a), including (i) to execute and deliver, on behalf of itself or the Trust, any and all instruments of satisfaction or cancellation, or of partial or full release or discharge and all other comparable instruments, with respect to the Specially Serviced Mortgage Loans and with respect to the related REO Properties and (ii) to effectuate foreclosure or other


 


 




  





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conversion of the ownership of any REO Property securing a Mortgage Loan.  The Trustee shall execute on the Closing Date the Powers of Attorney and shall furnish the Special Servicer from time to time, upon request, with any additional powers of attorney of the Trust, empowering the Special Servicer to take such actions as it determines to be reasonably necessary to comply with its servicing, administrative and management duties hereunder, and the Trustee shall execute and deliver or cause to be executed and delivered such other documents as a Special Servicing Officer may request, that are necessary or appropriate to enable the Special Servicer to service, administer and manage the Specially Serviced Mortgage Loans and carry out its duties hereunder, in each case as the Special Servicer determines is in accordance with the Servicing Standard and the terms of this Agreement; provided that, prior to initiating any proceedings in any court of law or equity (but not defending any proceedings in any court of law or equity) or instituting any proceeding to foreclose on any Mortgaged Property in the name of the Trust in any state, the Special Servicer shall notify the Trustee in writing and not institute or initiate any such proceedings for a period of five Business Days from the date of its delivery of such notice to the Trustee, unless the Special Servicer reasonably believes that such action should be taken in less than five Business Days to preserve the property of the Trust for the benefit of Certificateholders, and the Trustee may within five Business Days of its receipt of such notice advise the Special Servicer that it has received an Opinion of Counsel (the cost of which shall be an expense of the Trust) from an attorney duly licensed to practice law in the state where the related Mortgaged Property or REO Property is located, that it is likely that the laws of the state in which said action is to be taken either prohibit such action if taken in the name of the Trust or that the Trust would be adversely affected under the “doing business” or tax laws of such state if such action is taken in its name; provided, further, that the Special Servicer shall not be liable to the extent that it relies on the advice provided in such Opinion of Counsel.  Upon receipt of any such advice from the Trustee, the Special Servicer shall take such action in the name of such Person or Persons, in trust for the Trust, as shall be consistent with the Opinion of Counsel obtained by the Trustee.  Such Person or Persons shall acknowledge in writing that such action is being taken by the Special Servicer in the name of the Trust.  In the performance of its duties hereunder, the Special Servicer shall be an independent contractor and shall not, except in those instances where it is, after notice to the Trustee as provided above, taking action in the name of the Trust, be deemed to be the agent of the Trust.  The Special Servicer shall indemnify the Trustee for any loss, liability or reasonable expense (including attorneys’ fees) incurred by the Trustee or any partner, representative, Affiliate, member, manager, director, officer, employee, agent or Controlling Person of it or its Affiliates in connection with any negligent or intentional misuse of the foregoing powers of attorney furnished to the Special Servicer by the Trustee.  Such indemnification shall survive the resignation or termination of the Special Servicer hereunder, the resignation or termination of the Trustee and the termination of this Agreement.  The Special Servicer shall not have any responsibility or liability for any act or omission of the Trustee, the Master Servicer or the Depositor that is not attributable to the failure of the Special Servicer to perform its obligations hereunder.  The Special Servicer may conclusively rely on any advice of counsel rendered in a Nondisqualification Opinion.


 


(b) In servicing and administering the Specially Serviced Mortgage Loans and managing any related REO Properties, the Special Servicer shall employ procedures consistent with the Servicing Standard.  The Special Servicer shall conduct, or cause to be conducted, inspections of the Mortgaged Properties relating to Specially Serviced Mortgage Loans at such times and in such manner as shall be consistent with the Servicing Standard; provided that the


 









  





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Special Servicer shall conduct, or cause to be conducted, inspections of the Mortgaged Properties relating to Specially Serviced Mortgage Loans at least once during each twelve-month period that ends on June 30 of any calendar year (commencing with the twelve-month period ending June 30, 20__); provided, further, that the Special Servicer shall, at the expense of the Trust, inspect or cause to be inspected each Mortgaged Property related to a Mortgage Loan that is delinquent for sixty (60) days in the payment of any amounts due under such Mortgage Loan.  The Special Servicer shall provide to the Master Servicer and the Operating Adviser copies of the Inspection Reports relating to such inspections as soon as practicable after the completion of any inspection.


 


Section 9.5 “Due-On-Sale” Clauses; Assignment and Assumption Agreements; Modifications of Specially Serviced Mortgage Loans; Due-On-Encumbrance Clauses


 


Subject to the limitations of Sections 9.39 and 12.3, the Special Servicer shall have the following duties and rights:


 


(a) If any Specially Serviced Mortgage Loan contains a provision in the nature of a “due-on-sale” clause, which by its terms:


 


(i) provides that such Specially Serviced Mortgage Loan shall (or may at the Mortgagee’s option) become due and payable upon the sale or other transfer of an interest in the related Mortgaged Property, or


 


(ii) provides that such Specially Serviced Mortgage Loan may not be assumed without the consent of the related mortgagee in connection with any such sale or other transfer,


 


then, the Special Servicer, on behalf of the Trust, shall, after consultation with (or, if required pursuant to this Agreement, receipt of written consent of) the Operating Adviser and in accordance with the REMIC Provisions, take such actions as it deems to be in the best economic interest of the Trust in accordance with the Servicing Standard, and may waive or enforce any due-on-sale clause contained in the related Mortgage Note or Mortgage; provided, however, that if the Principal Balance of such Mortgage Loan at such time equals or exceeds [5%] of the Aggregate Certificate Balance or is one of the then current top 10 loans (by Principal Balance) in the pool, then prior to waiving the effect of such provision, the Special Servicer shall obtain Rating Agency Confirmation regarding such waiver.  In connection with the request for such consent, the Special Servicer shall prepare and deliver to [S&P and Moody’s] a memorandum outlining its analysis and recommendation in accordance with the Servicing Standard, together with copies of all relevant documentation.  The Special Servicer shall also prepare and provide [S&P and Moody’s] with such memorandum and documentation for all transfer, assumption and encumbrance consents granted for Specially Serviced Mortgage Loans below the threshold set forth above, but for which the Special Servicer’s decision will be sufficient and a Rating Agency Confirmation is not required.  As to any Mortgage Loan that is not a Specially Serviced Mortgage Loan and contains a provision in the nature of a “due-on-sale” clause, the Special Servicer shall have the rights and duties set forth in Section 8.7(d).  The Special Servicer shall be entitled to [100%] of all assumption fees in connection with Specially Serviced Mortgage Loans.


 









  





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After notice to the Operating Adviser (or, if otherwise required pursuant to this Agreement, receipt of written consent of), the Special Servicer is also authorized to take or enter into an assignment and assumption agreement from or with the Person to whom such property has been or is about to be conveyed, and/or to release the original Mortgagor from liability upon the Specially Serviced Mortgage Loan and substitute the new Mortgagor as obligor thereon; provided that except as otherwise permitted by Section 9.5(c), any such assignment and assumption or substitution agreement shall contain no terms that could result in an Adverse REMIC Event.  To the extent permitted by law, the Special Servicer shall enter into an assumption or substitution agreement that is required under the related Mortgage Loan documents (either as a matter of right or upon satisfaction of specified conditions) and shall otherwise enter into any assumption or substitution agreement only if entering into such assumption or substitution agreement is consistent with the Servicing Standard.  The Special Servicer shall not condition approval of any request for assumption of a Specially Serviced Mortgage Loan on an increase in the interest rate of such Specially Serviced Mortgage Loan.  The Special Servicer shall notify the Master Servicer of any such assignment and assumption or substitution agreement and the Special Servicer shall forward to the Trustee the original of such agreement, which original shall be added by the Trustee to the related Mortgage File and shall, for all purposes, be considered a part of such Mortgage File to the same extent as all other documents and instruments constituting a part thereof.


 


(b) In connection with any assignment and assumption of a Specially Serviced Mortgage Loan, in no event shall the Special Servicer consent to the creation of any lien on a Mortgaged Property that is senior to, or on a parity with, the lien of the related Mortgage.  Nothing in this Section 9.5 shall constitute a waiver of the Trustee’s right, as the mortgagee of record, to receive notice of any assignment and assumption of a Specially Serviced Mortgage Loan, any sale or other transfer of the related Mortgaged Property or the creation of any lien or other encumbrance with respect to such Mortgaged Property.


 


(c) Subject to the Servicing Standard and Sections 9.37 and 9.39, and the rights and duties of the Master Servicer under Section 8.18, the Special Servicer may enter into any modification, waiver or amendment (including, without limitation, the substitution or release of collateral or the pledge of additional collateral) of the terms of any Specially Serviced Mortgage Loan, including any modification, waiver or amendment to (i) reduce the amounts owing under any Specially Serviced Mortgage Loan by forgiving principal, accrued interest and/or any Prepayment Premium and/or any other amounts due and payable with respect to such Specially Serviced Mortgage Loan (including, but not limited to, any Late Fees or default interest), (ii) reduce the amount of the Scheduled Payment on any Specially Serviced Mortgage Loan, including by way of a reduction in the related Mortgage Rate, (iii) forbear in the enforcement of any right granted under any Mortgage Note or Mortgage relating to a Specially Serviced Mortgage Loan, (iv) extend the Maturity Date of any Specially Serviced Mortgage Loan and/or (v) accept a principal prepayment on any Specially Serviced Mortgage Loan during any period during which voluntary Principal Prepayments are prohibited, provided, in the case of any such modification, waiver or amendment, that (A) the related Mortgagor is in default with respect to the Specially Serviced Mortgage Loan or, in the reasonable judgment of the Special Servicer, such default is reasonably foreseeable, (B) in the reasonable judgment of the Special Servicer, such modification, waiver or amendment would increase the recovery on the Specially Serviced Mortgage Loan to Certificateholders on a net present value basis (the relevant


 









  





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discounting of amounts that will be distributable to Certificateholders to be performed at the related Mortgage Rate (as demonstrated in writing by the Special Servicer to the Trustee and the Paying Agent), (C) such modification, waiver or amendment would not cause an Adverse REMIC Event to occur, and (D) if notice to the Operating Adviser of such modification, waiver or amendment is required pursuant to Section 9.39.


 


In no event, however, shall the Special Servicer (i) extend the Maturity Date of a Specially Serviced Mortgage Loan beyond a date that is two years prior to the Final Rated Distribution Date or (ii) if the Specially Serviced Mortgage Loan is secured by a ground lease, extend the Maturity Date of such Specially Serviced Mortgage Loan unless the Special Servicer gives due consideration to the remaining term of such ground lease.  The Special Servicer shall not extend the Maturity Date of any Specially Serviced Mortgage Loan secured by a Mortgaged Property covered by a group secured creditor impaired property environmental insurance policy for more than five years beyond such Specially Serviced Mortgage Loan’s Maturity Date unless a new Phase I Environmental Report indicates that there is no environmental condition or the Mortgagor obtains, at its expense, an extension of such policy on the same terms and conditions to cover the period through five years past the extended Maturity Date, provided that, (i) if such Specially Serviced Mortgage Loan is secured by a ground lease, the Special Servicer shall give due consideration to the remaining term of the ground lease and (ii) in no case shall the Maturity Date of any such Specially Serviced Mortgage Loan be extended past a date that is two years prior to the Final Rated Distribution Date.  The determination of the Special Servicer contemplated by clause (B) of the proviso to the first paragraph of this Section 9.5(c) shall be evidenced by an Officer’s Certificate certifying the information in the proviso to the first paragraph under this subsection (c).


 


(d) In the event the Special Servicer intends to permit a Mortgagor to substitute collateral for all or any portion of a Mortgaged Property pursuant to Section 9.5(c) or pledge additional collateral for the Specially Serviced Mortgage Loan pursuant to Section 9.5(c), if the security interest of the Trust in such collateral can only be perfected by possession, or if such collateral requires special care or protection, then prior to agreeing to such substitution or addition of collateral, the Special Servicer shall make arrangements for such possession, care or protection, and prior to agreeing to such substitution or addition of collateral (or such arrangement for possession, care or protection) shall obtain the prior written consent of the Trustee with respect thereto (which consent shall not be unreasonably withheld, delayed or conditioned); provided, however, that the Trustee shall not be required (but has the option) to consent to any substitution or addition of collateral or to hold any such collateral which will require the Trustee to undertake any additional duties or obligations or incur any additional expense.  Notwithstanding the foregoing, to the extent not inconsistent with the related Mortgage Loan documents, the Special Servicer will not permit a Mortgagor to substitute collateral for any portion of the Mortgaged Property unless it shall have received a Rating Agency Confirmation in connection therewith, the costs of which to be payable by the related Mortgagor to the extent provided for in the Mortgage Loan documents.  If the Mortgagor is not required to pay for the Rating Agency Confirmation, then such expense will be paid by the Trust.  Promptly upon receipt of notice of such unpaid expense, regarding a Specially Serviced Mortgage Loan, the Special Servicer shall request the related Seller as and to the extent required pursuant to the terms of the related Mortgage Loan Purchase Agreement to make such payment by deposit to the applicable Certificate Account.  The parties hereto acknowledge that if the Trust incurs any


 









  





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Additional Trust Expense associated solely with the release of collateral that is not required to be paid by a Mortgagor pursuant to the related Mortgage Loan documents (and such Additional Trust Expense is not paid by the Mortgagor), including, but not limited to, rating agency fees, then the sole obligation of the related Seller shall be to pay an amount equal to such expense to the extent the related Mortgagor is not required to pay them.


 


(e) The Special Servicer will promptly deliver to the Master Servicer, the Operating Adviser, the Trustee, the Paying Agent, the Rating Agencies, a notice, specifying any such assignments and assumptions, modifications, material waivers (except any waivers with respect to Late Fees or default interest) or amendments, such notice identifying the affected Specially Serviced Mortgage Loan.  Such notice shall set forth the reasons for such waiver, modification, or amendment (including, but not limited to, information such as related income and expense statements, rent rolls, in the case of Mortgage Loans other than Co-op Mortgage Loans, occupancy status, property inspections, and an internal or external appraisal performed in accordance with MAI standards and methodologies (and, if done externally, the cost of such appraisal shall be recoverable as a Servicing Advance subject to the provisions of Section 4.4 hereof)).  The Special Servicer shall also deliver to the Trustee (or the Custodian), for deposit in the related Mortgage File, an original counterpart of the agreement relating to such modification, waiver or amendment promptly following the execution thereof.


 


(f) No fee described in this Section shall be collected by the Special Servicer from the Mortgagor (or on behalf of the Mortgagor) in conjunction with any consent or any modification, waiver or amendment of the Specially Serviced Mortgage Loan if the collection of such fee would cause such consent, modification, waiver or amendment to be a “significant modification” of the Mortgage Note within the meaning of Treasury Regulations Section 1.860G-2(b).  Subject to the foregoing, the Special Servicer shall use its reasonable efforts, in accordance with the Servicing Standard, to collect any modification fees and other expenses connected with a permitted modification of a Specially Serviced Mortgage Loan from the Mortgagor.  The Special Servicer shall be entitled to [100%] of any modification fees received in connection with a Specially Serviced Mortgage Loan.  The inability of the Mortgagor to pay any costs and expenses of a proposed modification shall not impair the right of the Special Servicer, the Master Servicer or the Trustee to be reimbursed by the Trust for such expenses (including any cost and expense associated with the Opinion of Counsel referred to in this Section).


 


(g) The Special Servicer shall cooperate with the Master Servicer (as provided in Section 8.7) in connection with assignments, assumptions or substitutions of Mortgage Loans that are not Specially Serviced Mortgage Loans and shall be entitled to receive [50%] of any assumption fee paid by the related Mortgagor in connection with an assignment, assumption or substitution executed pursuant to Section 8.7(a) or Section 8.7(d) to the extent that the Special Servicer’s consent was required and the subject assignment, assumption or substitution was not “expressly permitted” by the related Mortgage Loan documents.  The Special Servicer shall be entitled to [100%] of any assumption fee (including assumption application fees) received in connection with a Specially Serviced Mortgage Loan.


 


(h) Notwithstanding anything herein to the contrary, (i) the Special Servicer shall not have any right or obligation to consult with or to seek and/or obtain consent or approval


 


 




  





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from the Operating Adviser prior to acting, and provisions of this Agreement requiring such shall be of no effect, if the Operating Adviser resigns or is removed, during the period following such resignation or removal until a replacement is elected and (ii) no advice, direction or objection from or by the Operating Adviser, as contemplated by this Agreement, may (and the Special Servicer shall ignore and act without regard to any such advice, direction or objection that the Special Servicer has determined, in its reasonable good faith judgment would) (A) require or cause the Special Servicer to violate applicable law, the terms of any Mortgage Loan, any provision of this Agreement or the REMIC Provisions, including the Special Servicer’s obligation to act in accordance with the Servicing Standard, (B) result in an Adverse REMIC Event with respect to any REMIC Pool or any Adverse Grantor Trust Event with respect to the Class EI Grantor Trust or the Class A-3-1FL Grantor Trust, (C) expose the Trust, the Depositor, the Master Servicer, the Special Servicer, the Paying Agent or the Trustee, or any of their respective partners, representatives, Affiliates, members, managers, directors, officers, employees or agents, to any material claim, suit or liability, or (D) materially expand the scope of the Special Servicer’s responsibilities under this Agreement.


 


(i) If any Specially Serviced Mortgage Loan which contains a provision in the nature of a “due-on-encumbrance” clause, which by its terms:


 


(i) provides that such Mortgage Loan shall (or may at the mortgagee’s option) become due and payable upon the creation of any additional lien or other encumbrance on the related Mortgaged Property; or


 


(ii) requires the consent of the mortgagee to the creation of any such additional lien or other encumbrance on the related Mortgaged Property,


 


then, for so long as such Mortgage Loan is included in the Trust, the Special Servicer, on behalf of the Trustee as the mortgagee of record, shall exercise (or, subject to Section 9.5, waive its right to exercise) any right it may have with respect to such Mortgage Loan (x) to accelerate the payments thereon, or (y) to withhold its consent to the creation of any such additional lien or other encumbrance, in a manner consistent with the Servicing Standard.  Prior to waiving the effect of such provision with respect to a Mortgage Loan, the Special Servicer shall obtain Rating Agency Confirmation regarding such waiver; provided, however, that such Rating Agency Confirmation shall only be required if the applicable Mortgage Loan (x) represents 2% or more of the Principal Balance of all of the Mortgage Loans held by the Trust or is one of the 10 largest Mortgage Loans based on Principal Balance or (y) such Mortgage Loan has a Loan-to-Value Ratio (which also includes Junior Indebtedness, if any) that is greater than or equal to [85%] and a Debt Service Coverage Ratio (which also includes debt service on and any Junior Indebtedness) that is less than [1.2x].


 


Section 9.6 Release of Mortgage Files


 


(a) Upon becoming aware of the payment in full of any Specially Serviced Mortgage Loan, or the receipt by the Special Servicer of a notification that payment in full will be escrowed in a manner customary for such purposes, or the complete defeasance of a Specially Serviced Mortgage Loan, the Special Servicer will within 2 Business Days notify the Master Servicer.  The Special Servicer shall determine, in accordance with the Servicing Standard,









  





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whether an instrument of satisfaction shall be delivered and, if the Special Servicer determines that such instrument should be delivered, the Special Servicer shall deliver written approval of such delivery to the Master Servicer.


 


(b) From time to time and as appropriate for the servicing or foreclosure of any Specially Serviced Mortgage Loan or the management of the related REO Property and in accordance with the Servicing Standard, the Trustee shall execute or cause to be executed such documents as shall be prepared and furnished to the Trustee by a Special Servicing Officer (in form reasonably acceptable to the Trustee) and as are necessary for such purposes.  The Trustee or Custodian shall, upon request of the Special Servicer and delivery to the Trustee or Custodian of a request for release signed by a Special Servicing Officer substantially in the form of Exhibit C, release the related Mortgage File to the Special Servicer.  After the transfer of servicing with respect to any Specially Serviced Mortgage Loan to the Special Servicer, in accordance with the Servicing Standard, the Master Servicer shall notify, in writing, the Mortgagor under each Specially Serviced Mortgage Loan transferred to the Special Servicer, of such transfer.


 


(c) Reserved.


 


(d) The Special Servicer shall, with respect to any Rehabilitated Mortgage Loan, release to the Master Servicer all documents and instruments in the possession of the Special Servicer related to such Rehabilitated Mortgage Loan.  Prior to the transfer of servicing with respect to any Rehabilitated Mortgage Loan to the Master Servicer in accordance with the Servicing Standard, the Special Servicer shall notify, in writing, each Mortgagor under each Rehabilitated Mortgage Loan of such transfer.


 


Section 9.7 Documents, Records and Funds in Possession of the Special Servicer to Be Held for the Trustee


 


(a) The Special Servicer shall transmit to the Trustee or Custodian such documents and instruments coming into the possession of the Special Servicer as from time to time are required by the terms hereof to be delivered to the Trustee.  Any funds received by the Special Servicer in respect of any Specially Serviced Mortgage Loan or any REO Property or which otherwise are collected by the Special Servicer as Liquidation Proceeds, Condemnation Proceeds or Insurance Proceeds in respect of any Specially Serviced Mortgage Loan or any REO Property shall be remitted to the Master Servicer within two Business Days of receipt for deposit into the applicable Certificate Account, except that if such amounts relate to REO Income, they shall be deposited in the applicable REO Account.  The Special Servicer shall provide access to information and documentation regarding the Specially Serviced Mortgage Loans to the Trustee, the Master Servicer, the Paying Agent, the Operating Adviser and their respective agents and accountants at any time upon reasonable written request and during normal business hours, provided that the Special Servicer shall not be required to take any action or provide any information that the Special Servicer determines will result in any material cost or expense to which it is not entitled to reimbursement hereunder or will result in any material liability for which it is not indemnified hereunder; provided, further, that the Trustee and the Paying Agent shall be entitled to receive from the Special Servicer all such information as the Trustee and the Paying Agent shall reasonably require to perform their respective duties hereunder.  In fulfilling


 









  





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such a request, the Special Servicer shall not be responsible for determining whether such information is sufficient for the Trustee’s, the Master Servicer’s, the Paying Agent’s or the Operating Adviser’s purposes.


 


(b) The Special Servicer hereby acknowledges that the Trust owns the Specially Serviced Mortgage Loans and all Mortgage Files representing such Specially Serviced Mortgage Loans and all funds now or hereafter held by, or under the control of, the Special Servicer that are collected by the Special Servicer in connection with the Specially Serviced Mortgage Loans (but excluding the Special Servicer Compensation and all other amounts to which the Special Servicer is entitled hereunder); and the Special Servicer agrees that all documents or instruments constituting part of the Mortgage Files, and such funds relating to the Specially Serviced Mortgage Loans which come into the possession or custody of, or which are subject to the control of, the Special Servicer, shall be held by the Special Servicer for and on behalf of the Trust.


 


(c) The Special Servicer also agrees that it shall not create, incur or subject any Specially Serviced Mortgage Loans, or any funds that are required to be deposited in any REO Account to any claim, lien, security interest, judgment, levy, writ of attachment or other encumbrance, nor assert by legal action or otherwise any claim or right of setoff against any Specially Serviced Mortgage Loan or any funds, collected on, or in connection with, a Specially Serviced Mortgage Loan.


 


Section 9.8 Representations, Warranties and Covenants of the Special Servicer


 


(a) The Special Servicer, hereby represents and warrants to and covenants with the Trustee, the Paying Agent, as of the Closing Date:


 


(i) the Special Servicer is a corporation, duly organized, validly existing and in good standing under the laws of the [State of _________], and the Special Servicer is in compliance with the laws of each State in which any Mortgaged Property is located to the extent necessary to perform its obligations under this Agreement;


 


(ii) the execution and delivery of this Agreement by the Special Servicer, and the performance and compliance with the terms of this Agreement by the Special Servicer, will not violate the Special Servicer’s organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets which default or breach in the reasonable judgment of the Special Servicer, is likely to affect materially and adversely either the ability of the Special Servicer to perform its obligations under this Agreement or the financial condition of the Special Servicer;


 


(iii) the Special Servicer has the full corporate power and authority to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement;


 









  





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(iv) this Agreement, assuming due authorization, execution and delivery by each of the other parties hereto, constitutes a valid, legal and binding obligation of the Special Servicer, enforceable against the Special Servicer in accordance with the terms hereof, subject to (A) applicable bankruptcy, insolvency, reorganization, receivership, moratorium and other laws affecting the enforcement of creditors’ rights generally, and (B) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law;


 


(v) the Special Servicer is not in violation of, and its execution and delivery of this Agreement and its performance and compliance with the terms of this Agreement will not constitute a violation of, any law, order or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Special Servicer’s reasonable judgment, is likely to affect materially and adversely either the ability of the Special Servicer to perform its obligations under this Agreement or the financial condition of the Special Servicer;


 


(vi) no litigation is pending or, to the best of the Special Servicer’s knowledge, threatened against the Special Servicer the outcome of which, in the Special Servicer’s reasonable judgment, could reasonably be expected to prohibit the Special Servicer from entering into this Agreement or that, in the Special Servicer’s reasonable judgment, is likely to materially and adversely affect the ability of the Special Servicer to perform its obligations under this Agreement;


 


(vii) the Special Servicer has errors and omissions insurance coverage which is in full force and effect and complies with the requirements of Section 9.2 hereof; and


 


(viii) no consent, approval, authorization or order, registration or filing with or notice to, any governmental authority or court is required, under federal or state law, for  the execution, delivery and performance of or compliance by the Special Servicer with this Agreement, or the consummation by the Special Servicer of any transaction contemplated hereby, other than (1) such consents, approvals, authorizations, qualifications, registrations, filings, or notices as have been obtained or made and (2) where the lack of such consent, approval, authorization, qualification, registration, filing or notice would not have a material adverse effect on the performance by the Special Servicer under this Agreement.


 


(b) It is understood that the representations and warranties set forth in this Section 9.8 shall survive the execution and delivery of this Agreement.


 


(c) Any cause of action against the Special Servicer arising out of the breach of any representations and warranties made in this Section shall accrue upon the giving of written notice to the Special Servicer by any of the Trustee, the Master Servicer or the Paying Agent.  The Special Servicer shall give prompt notice to the Trustee, the Paying Agent, the Depositor, the Operating Adviser and the Master Servicer of the occurrence, or the failure to occur, of any event that, with notice, or the passage of time or both, would cause any representation or warranty in this Section to be untrue or inaccurate in any respect.


 









  





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Section 9.9 Standard Hazard, Flood and Comprehensive General Liability Insurance Policies


 


(a) For all REO Property, the Special Servicer shall use reasonable efforts, consistent with the Servicing Standard, to maintain with a Qualified Insurer a Standard Hazard Insurance Policy which does not provide for reduction due to depreciation in an amount which is not less than the full replacement cost of the improvements of such REO Property or in an amount not less than the unpaid Principal Balance plus all unpaid interest and the cumulative amount of Servicing Advances (plus Advance Interest) made with respect to such Mortgage Loan, whichever is less, but, in any event, in an amount sufficient to avoid the application of any co-insurance clause.  If the improvements to the Mortgaged Property are in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available), the Special Servicer shall maintain a flood insurance policy meeting the requirements of the current guidelines of the Federal Insurance Administration in an amount representing coverage equal to the lesser of the then outstanding Principal Balance of the Specially Serviced Mortgage Loan and unpaid Advances (plus Advance Interest) and the maximum insurance coverage required under such current guidelines.  It is understood and agreed that the Special Servicer has no obligation to obtain earthquake or other additional insurance on REO Property, except as required by law and, nevertheless, at its sole discretion and at the Trust’s expense, it (if required at origination and is available at commercially reasonable rates) may obtain such earthquake insurance.  The Special Servicer shall use its reasonable efforts, consistent with the Servicing Standard, to obtain a comprehensive general liability insurance policy for all REO Properties.  The Special Servicer shall, to the extent available at commercially reasonable rates (as determined by the Special Servicer in accordance with the Servicing Standard) and to the extent consistent with the Servicing Standard, use its reasonable efforts to maintain a Rent Loss Policy covering revenues for a period of at least twelve months and a comprehensive general liability policy with coverage comparable to prudent lending requirements in an amount not less than $1,000,000 per occurrence.  All applicable policies required to be maintained by the Special Servicer pursuant to this Section 9.9(a) shall name the Trustee as loss payee.  The costs of such insurance shall be paid by the Master Servicer as a Servicing Advance pursuant to Section 4.2, subject to the provisions of Section 4.4 hereof.


 


(b) Any amounts collected by the Special Servicer under any insurance policies maintained pursuant to this Section 9.9 (other than amounts to be applied to the restoration or repair of the REO Property) shall be deposited into the applicable REO Account.  Any cost incurred in maintaining the insurance required hereby for any REO Property shall be a Servicing Advance, subject to the provisions of Section 4.4 hereof.


 


(c) Notwithstanding the above, the Special Servicer shall not be required in any event to maintain or obtain insurance coverage beyond what is reasonably available at commercially reasonable rates consistent with the Servicing Standard.  The Special Servicer shall notify the Trustee of any such determination.


 


The Special Servicer shall conclusively be deemed to have satisfied its obligations as set forth in this Section 9.9 either (i) if the Special Servicer shall have obtained and maintained a master force placed or blanket insurance policy insuring against hazard losses on all


 









  





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of the applicable REO Property serviced by it, it being understood and agreed that such policy may contain a deductible clause on terms substantially equivalent to those commercially available and maintained by comparable servicers consistent with the Servicing Standard, and provided that such policy is issued by a Qualified Insurer or (ii) if the Special Servicer (or its corporate parent) self-insures for its obligations, provided that the rating of such Person’s long-term debt is not less than [“A” by S&P and “A2” by Moody’s].  In the event that the Special Servicer shall cause any REO Property to be covered by such a master force placed or blanket insurance policy, the incremental cost of such insurance allocable to such REO Property (i.e., other than any minimum or standby premium payable for such policy whether or not any REO Property is then covered thereby), shall be paid by the Special Servicer, at its option, or by the Master Servicer, as a Servicing Advance, subject to the provisions of Section 4.4 hereof.  If such policy contains a deductible clause, the Special Servicer shall, if there shall not have been maintained on the related REO Property a policy complying with this Section 9.9 and there shall have been a loss that would have been covered by such policy, deposit in the applicable Certificate Account the amount not otherwise payable under such master force placed or blanket insurance policy because of such deductible clause to the extent that such deductible exceeds (i) the deductible under the related Mortgage Loan or (ii) if there is no deductible limitation required under the Mortgage Loan, the deductible amount with respect to insurance policies generally available on properties similar to the related REO Property which is consistent with the Servicing Standard, and deliver to the Trustee an Officer’s Certificate describing the calculation of such amount.  In connection with its activities as administrator and servicer of the REO Properties, the Special Servicer agrees to present, on its behalf and on behalf of the Trustee, claims under any such master force placed or blanket insurance policy.


 


Section 9.10 Presentment of Claims and Collection of Proceeds


 


The Special Servicer will prepare and present or cause to be prepared and presented on behalf of the Trustee all claims under the Insurance Policies with respect to REO Property, and take such actions (including the negotiation, settlement, compromise or enforcement of the insured’s claim) as shall be necessary to recover under such policies.  Any proceeds disbursed to the Special Servicer in respect of such policies shall be promptly remitted to the applicable Certificate Account, upon receipt, except for any amounts realized that are to be applied to the repair or restoration of the applicable REO Property in accordance with the Servicing Standard.  Any extraordinary expenses (but not ordinary and routine or anticipated expenses) incurred by the Special Servicer in fulfilling its obligations under this Section 9.10 shall be paid by the Trust.


 


Section 9.11 Compensation to the Special Servicer


 


(a) As compensation for its activities hereunder, the Special Servicer shall be entitled to (i) the Special Servicing Fee, (ii) the Liquidation Fee and (iii) the Work-Out Fee.  Such amounts, if any, collected by the Special Servicer from the related Mortgagor shall be transferred by the Special Servicer to the Master Servicer within one Business Day of receipt thereof, and deposited by the Master Servicer in the Certificate Account.  The Special Servicer shall be entitled to receive a Liquidation Fee from the proceeds received in connection with a full or partial liquidation (net of related costs and expenses of such liquidation) of a Specially Serviced Mortgage Loan or REO Property (whether arising pursuant to a sale, condemnation,


 









  





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casualty or otherwise).  With respect to each REO Mortgage Loan that is a successor to a Mortgage Loan secured by two or more Mortgaged Properties, the reference to “REO Property” in the preceding sentence shall be construed on a property-by-property basis to refer separately to the acquired real property that is a successor to each of such Mortgaged Properties, thereby entitling the Special Servicer to a Liquidation Fee from the Liquidation Proceeds received in connection with a final disposition of, and Condemnation Proceeds or Insurance Proceeds received in connection with, each such acquired property as the Liquidation Proceeds, Condemnation Proceeds or Insurance Proceeds related to that property are received.


 


(b) The Special Servicer shall be entitled to cause the Master Servicer to withdraw from the applicable Certificate Account, the Special Servicer Compensation in respect of each Mortgage Loan, in the time and manner set forth in Section 5.2 of this Agreement.  The Special Servicer shall be required to pay all expenses incurred by it in connection with its servicing activities hereunder and shall not be entitled to reimbursement therefor except as expressly provided in this Agreement.


 


(c) Additional Special Servicer Compensation in the form of net interest or income on any REO Account, assumption fees, extension fees, servicing fees, Modification Fees, forbearance fees, Late Fees and default interest payable at a rate above the Mortgage Rate (net of amounts used to pay Advance Interest, Additional Trust Fund Expenses, Special Servicing Fees, Liquidation Fees and Workout Fees relating to the subject Mortgage Loan as provided in Section 4.5) or other usual and customary charges and fees actually received from the Mortgagor in connection with any Specially Serviced Mortgage Loan shall be retained by the Special Servicer, to the extent not required to be deposited in the applicable Certificate Account pursuant to the terms of this Agreement.  The Special Servicer shall also be permitted to receive 50% of any assumption fees on Mortgage Loans which are not Specially Serviced Mortgage Loans and for which with respect to the assignment, assumption or substitution (a) the consent of the Special Servicer was required or (b) is not “expressly permitted” pursuant to the terms of the related Mortgage Loan as payable under Section 8.7(a) or 8.7(d), and, to the extent deposited into a Certificate Account, [100%] of all assumption fees relating to Specially Serviced Mortgage Loans and, to the extent provided in Section 9.5(a), Late Fees, Modification Fees and other fees collected on Specially Serviced Mortgage Loans, in each case to the extent provided for herein from funds paid by the applicable Mortgagor.  To the extent any component of the Special Servicer Compensation is in respect of amounts usually and customarily paid by Mortgagors, the Special Servicer shall use reasonable good faith efforts to collect such amounts from the related Mortgagor, and to the extent so collected, in full or in part, the Special Servicer shall not be entitled to compensation for the portion so collected therefor hereunder out of the Trust.


 


Section 9.12 Realization Upon Defaulted Mortgage Loans


 


(a) The Special Servicer, in accordance with the Servicing Standard and subject to Sections 9.4(a), 9.36 and 9.39, shall use its reasonable efforts to foreclose upon, repossess or otherwise comparably convert the ownership of Mortgaged Properties securing such of the Specially Serviced Mortgage Loans as come into and continue in default and as to which no satisfactory arrangements can be made for collection of delinquent payments of such Mortgage Loan, the sale of such Mortgage Loan in accordance with this Agreement or the modification of such Mortgage Loan in accordance with this Agreement.  In connection with


 









  





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such foreclosure or other conversion of ownership, the Special Servicer shall follow the Servicing Standard.


 


(b) The Special Servicer shall not acquire any personal property relating to any Specially Serviced Mortgage Loan pursuant hereto unless either:


 


(i) such personal property is incidental to real property (within the meaning of Section 856(e)(1) of the Code) so acquired by the Special Servicer; or


 


(ii) the Special Servicer shall have received a Nondisqualification Opinion (the cost of which shall be reimbursed by the Trust) to the effect that the holding of such personal property by any REMIC Pool will not cause the imposition of a tax on such REMIC Pool under the Code or cause such REMIC Pool to fail to qualify as a REMIC.


 


(c) Notwithstanding anything to the contrary in this Agreement, the Special Servicer shall not, on behalf of the Trust, obtain title to a Mortgaged Property as a result of or in lieu of foreclosure or otherwise, and shall not otherwise acquire possession of, or take any other action with respect to, any Mortgaged Property, if, as a result of any such action the Trust would be considered to hold title to, to be a “mortgagee-in-possession” of, or to be an “owner” or “operator” of such Mortgaged Property within the meaning of CERCLA, or any applicable comparable federal, state or local law, or a “discharger” or “responsible party” thereunder, unless the Special Servicer has also previously determined in accordance with the Servicing Standard, based on a Phase I Environmental Report prepared by a Person (who may be an employee or Affiliate of the Master Servicer or the Special Servicer) who regularly conducts environmental site assessments in accordance with the standards of FNMA in the case of multi-family mortgage loans and customary servicing practices in the case of commercial loans for environmental assessments, which report shall be delivered to the Trustee, that:


 


(i) such Mortgaged Property is in compliance with applicable Environmental Laws or, if not, after consultation with an environmental expert that taking such actions as are necessary to bring the Mortgaged Property in compliance therewith is reasonably likely to produce a greater recovery on a net present value basis than not taking such actions;


 


(ii) taking such actions as are necessary to bring the Mortgaged Property in compliance with applicable Environmental Laws is reasonably likely to produce a greater recovery on a net present value basis than pursuing a claim under the Environmental Insurance Policy; and


 


(iii) there are no circumstances or conditions present or threatened at such Mortgaged Property relating to the use, management, disposal or release of any hazardous substances, hazardous materials, hazardous wastes, or petroleum-based materials for which investigation, testing, monitoring, removal, clean-up or remediation could be required under any federal, state or local law or regulation, or that, if any such materials are present for which such action could be required, after consultation with an environmental expert taking such actions with respect to the affected Mortgaged Property is reasonably likely to produce a greater recovery on a net present value basis than not


 









  





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taking such actions (after taking into account the projected costs of such actions); provided, however, that such compliance pursuant to clause (i) and (ii) above or the taking of such action pursuant to this clause (iii) shall only be required to the extent that the cost thereof is a Servicing Advance of the Master Servicer pursuant to this Agreement, subject to the provisions of Section 4.4 hereof.


 


(d) The cost of the Phase I Environmental Report contemplated by Section 9.12(c) may be treated as a Liquidation Expense, or in the event the related Specially Serviced Mortgage Loan is not liquidated and a Final Recovery Determination has been made with respect to such Specially Serviced Mortgage Loan, the Master Servicer shall treat such cost as a Servicing Advance subject to the provisions of Section 4.4 hereof; provided that, in the latter event, the Special Servicer shall use its good faith reasonable business efforts to recover such cost from the Mortgagor.


 


(e) If the Special Servicer determines, pursuant to Section 9.12(c), that taking such actions as are necessary to bring any Mortgaged Property into compliance with applicable Environmental Laws, or taking such actions with respect to the containment, removal, clean-up or remediation of hazardous substances, hazardous materials, hazardous wastes, or petroleum-based materials affecting any such Mortgaged Property, is not reasonably likely to produce a greater recovery on a net present value basis than not taking such actions (after taking into account the projected costs of such actions) or than not pursuing a claim under the Environmental Insurance Policy, then the Special Servicer shall take such action as it deems to be in the best economic interest of the Trust, including, without limitation, releasing the lien of the related Mortgage.  If the Special Servicer determines that a material possibility exists that Liquidation Expenses with respect to Mortgaged Property (taking into account the cost of bringing it into compliance with applicable Environmental Laws) would exceed the Principal Balance of the related Mortgage Loan, the Special Servicer shall not attempt to bring such Mortgaged Property into compliance and shall not acquire title to such Mortgaged Property unless it has received the written consent of the Trustee to such action.


 


Notwithstanding any provision of this Agreement to the contrary, the Special Servicer shall not foreclose on any Mortgaged Property in anticipation of pursuing a claim under the related Environmental Insurance Policy, unless the Special Servicer shall have first reviewed such Environmental Insurance Policy.


 


(f) The Special Servicer shall have the right to determine, in accordance with the Servicing Standard, the advisability of maintaining any action with respect to any Specially Serviced Mortgage Loan, including, without limitation, any action to obtain a deficiency judgment with respect to any Specially Serviced Mortgage Loan.


 


Section 9.13 Foreclosure


 


In the event that the Trust obtains, through foreclosure on a Mortgage or otherwise, the right to receive title to a Mortgaged Property, the Special Servicer, as its agent, shall direct the appropriate party to deliver title to the REO Property to the Trustee or its nominee.


 









  





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The Special Servicer may consult with counsel to determine when an Acquisition Date shall be deemed to occur under the REMIC Provisions with respect to the Mortgaged Property, the expense of such consultation being treated as a Servicing Advance related to the foreclosure, subject to the provisions of Section 4.4 hereof.  The Special Servicer, on behalf of the Trust, shall sell the REO Property expeditiously, but in any event within the time period, and subject to the conditions, set forth in Section 9.15.  Subject to Section 9.15, the Special Servicer shall manage, conserve, protect and operate the REO Property for the holders of beneficial interests in the Trust solely for the purpose of its prompt disposition and sale.


 


Section 9.14 Operation of REO Property


 


(a) The Special Servicer shall segregate and hold all funds collected and received in connection with the operation of each REO Property separate and apart from its own funds and general assets and shall establish and maintain with respect to each REO Property one or more accounts held in trust for the benefit of the Certificateholders in the name of “_______, as Trustee for the Holders of Morgan Stanley Capital I Inc. Commercial Mortgage Securities Inc. Commercial Mortgage Pass-Through Certificates Series 20__-__” (each, an “REO Account”), which shall be an Eligible Account.  Amounts in any REO Account shall be invested in Eligible Investments.  The Special Servicer shall deposit all funds received with respect to an REO Property in the applicable REO Accounts within two days of receipt.  The Special Servicer shall account separately for funds received or expended with respect to each REO Property.  All funds in each REO Account may be invested only in Eligible Investments.  The Special Servicer shall notify the Trustee and the Master Servicer in writing of the location and account number of each REO Account and shall notify the Trustee prior to any subsequent change thereof.


 


(b) On or before [2:00 p.m.] on the Special Servicer Remittance Date, the Special Servicer shall withdraw from the applicable REO Account and remit to the Master Servicer for deposit in the applicable Certificate Account, the REO Income received or collected during the Collection Period immediately preceding the Special Servicer Remittance Date on or with respect to the related REO Properties; provided, however, that (i) the Special Servicer may retain in such REO Account such portion of such proceeds and collections as may be necessary to maintain in such REO Account sufficient funds for the proper operation, management and maintenance of the related REO Property, including, without limitation, the creation of reasonable reserves for repairs, replacements, and necessary capital improvements and other related expenses.  The Special Servicer shall notify the Master Servicer of all such remittances (and the REO Properties to which the remittances relate) made into the applicable Certificate Account and (ii) the Special Servicer shall be entitled to withdraw from the REO Account and pay itself as additional special servicing compensation any interest or net reinvestment income earned on funds deposited in the applicable REO Account.  The amount of any losses incurred in respect of any such investments shall be for the account of the Special Servicer which shall deposit the amount of such loss (to the extent not offset by income from other investments) in the applicable REO Account, out of its own funds immediately as realized.  If the Special Servicer deposits in any REO Account any amount not required to be deposited therein, it may at any time withdraw such amount from such REO Account, any provision herein to the contrary notwithstanding.


 









  





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(c) If the Trust acquires the Mortgaged Property, the Special Servicer shall have full power and authority, in consultation with the Operating Adviser, and subject to the specific requirements and prohibitions of this Agreement to do any and all things in connection therewith as are consistent with the Servicing Standard, subject to the REMIC Provisions, and in such manner as the Special Servicer deems to be in the best interest of the Trust, and, consistent therewith, may advance from its own funds to pay for the following items (which amounts shall be reimbursed by the Master Servicer or the Trust subject to Sections 4.4 in accordance with Section 4.6(d)), to the extent such amounts cannot be paid from REO Income:


 


(i) all insurance premiums due and payable in respect of such REO Property;


 


(ii) all real estate taxes and assessments in respect of such REO Property that could result or have resulted in the imposition of a lien thereon; and


 


(iii) all costs and expenses necessary to maintain, operate, lease and sell such REO Property (other than capital expenditures).


 


(d) The Special Servicer may, and to the extent necessary to (i) preserve the status of the REO Property as “foreclosure property” under the REMIC Provisions or (ii) avoid the imposition of a tax on “income from nonpermitted assets” within the meaning of the REMIC Provisions, shall contract with any Independent Contractor for the operation and management of the REO Property, provided that:


 


(i) the terms and conditions of any such contract shall not be inconsistent herewith;


 


(ii) the terms of such contract shall be consistent with the provisions of Section 856 of the Code and Treasury Regulations Section 1.856-4(b)(5);


 


(iii) only to the extent consistent with (ii) above, any such contract shall require, or shall be administered to require, that the Independent Contractor (A) pay all costs and expenses incurred in connection with the operation and management of such Mortgaged Property underlying the REO Property and (B) deposit on a daily basis all amounts payable to the Trust in accordance with the contract between the Trust and the Independent Contractor in an Eligible Account;


 


(iv) none of the provisions of this Section 9.14 relating to any such contract or to actions taken through any such Independent Contractor shall be deemed to relieve the Special Servicer of any of its duties and obligations to the Trustee with respect to the operation and management of any such REO Property;


 


(v) if the Independent Contractor is an Affiliate of the Special Servicer, the consent of the Operating Adviser and a Nondisqualification Opinion must be obtained; and


 


(vi) the Special Servicer shall be obligated with respect thereto to the same extent as if it alone were performing all duties and obligations in connection with the operation and management of such REO Property.


 









  





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(e) The Special Servicer shall be entitled to enter into any agreement with any Independent Contractor performing services for the Trust pursuant to this subsection (d) for indemnification of the Special Servicer by such Independent Contractor, and nothing in this Agreement shall be deemed to limit or modify such indemnification.  All fees of the Independent Contractor (other than fees paid for performing services within the ordinary duties of the Special Servicer which shall be paid by the Special Servicer) shall be paid from the income derived from the REO Property.  To the extent that the income from the REO Property is insufficient, such fees shall be advanced by the Master Servicer as a Servicing Advance, subject to the provisions of Section 4.4 and Section 4.6(d) hereof.


 


(f) Notwithstanding any other provision of this Agreement, the Special Servicer shall not rent, lease, or otherwise earn income on behalf of the Trust or the beneficial owners thereof with respect to REO Property which might cause the REO Property to fail to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) or result in the receipt by any REMIC of any “income from nonpermitted assets” within the meaning of Section 860F(a)(2) of the Code or any “net income from foreclosure property” which is subject to tax under the REMIC Provisions unless (i) the Trustee and the Special Servicer have received an Opinion of Counsel (at the Trust’s sole expense) to the effect that, under the REMIC Provisions and any relevant proposed legislation, any income generated for REMIC I by the REO Property would not result in the imposition of a tax upon REMIC I or (ii) in accordance with the Servicing Standard, the Special Servicer determines the income or earnings with respect to such REO Property will offset any tax under the REMIC Provisions relating to such income or earnings and will maximize the net recovery from the REO Property to the Certificateholders.  The Special Servicer shall notify the Trustee, the Paying Agent and the Master Servicer of any election by it to incur such tax, and the Special Servicer (i) shall hold in escrow in an Eligible Account an amount equal to the tax payable thereby from revenues collected from the related REO Property, (ii) provide the Paying Agent with all information for the Paying Agent to file the necessary tax returns in connection therewith and (iii) upon request from the Paying Agent, pay from such account to the Paying Agent the amount of the applicable tax.  The Paying Agent shall file the applicable tax returns based on the information supplied by the Special Servicer and pay the applicable tax from the amounts collected by the Special Servicer.


 


Subject to, and without limiting the generality of the foregoing, the Special Servicer, on behalf of the Trust, shall not:


 


(i) permit the Trust to enter into, renew or extend any New Lease with respect to the REO Property, if the New Lease by its terms will give rise to any income that does not constitute Rents from Real Property;


 


(ii) permit any amount to be received or accrued under any New Lease other than amounts that will constitute Rents from Real Property;


 


(iii) authorize or permit any construction on the REO Property, other than the completion of a building or other improvement thereon, and then only if more than ten percent of the construction of such building or other improvement was completed before


 









  





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default on the Mortgage Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or


 


(iv) Directly Operate, other than through an Independent Contractor, or allow any other Person to Directly Operate, other than through an Independent Contractor, the REO Property on any date more than 90 days after the Acquisition Date; unless, in any such case, the Special Servicer has requested and received an Opinion of Counsel at the Trust’s sole expense to the effect that such action will not cause such REO Property to fail to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code (without giving effect to the final sentence thereof) at any time that it is held by the applicable REMIC Pool, in which case the Special Servicer may take such actions as are specified in such Opinion of Counsel.


 


Section 9.15 Sale of REO Property


 


(a) In the event that title to any REO Property is acquired by the Trust in respect of any Specially Serviced Mortgage Loan, the deed or certificate of sale shall be issued to the Trust, the Trustee or to its nominees.  The Special Servicer, after notice to the Operating Adviser, shall sell any REO Property as soon as practicable consistent with the objective of maximizing proceeds for all Certificateholders, but in no event later than the end of the third calendar year following the end of the year of its acquisition, and in any event prior to the Final Rated Distribution Date, unless (i) the Trustee, on behalf of the applicable REMIC Pool, has been granted an extension of time (an “Extension”) (which extension shall be applied for at least 60 days prior to the expiration of the period specified above) by the Internal Revenue Service to sell such REO Property (a copy of which shall be delivered to the Paying Agent upon request), in which case the Special Servicer shall continue to attempt to sell the REO Property for its fair market value for such period longer than the period specified above as such Extension permits or (ii) the Special Servicer seeks and subsequently receives, at the expense of the Trust, a Nondisqualification Opinion, addressed to the Trustee and the Special Servicer, to the effect that the holding by the Trust of such REO Property subsequent to the period specified above after its acquisition will not result in the imposition of taxes on “prohibited transactions” of a REMIC, as defined in Section 860F(a)(2) of the Code, or cause the related REMIC Pool to fail to qualify as a REMIC at any time that any Certificates are outstanding.  If the Trustee has not received an Extension or such Opinion of Counsel and the Special Servicer is not able to sell such REO Property within the period specified above, or if an Extension has been granted and the Special Servicer is unable to sell such REO Property within the extended time period, the Special Servicer shall, after consultation with the Operating Adviser, before the end of such period or extended period, as the case may be, auction the REO Property to the highest bidder (which may be the Special Servicer) in accordance with the Servicing Standard; provided, however, that if an Interested Person intends to bid on the REO Property, (i) the Special Servicer (or, if such Interested Person is the Special Servicer or an Affiliate of the Special Servicer, the Trustee) shall promptly obtain, at the expense of the Trust, an Appraisal of such REO Property (or internal valuation in accordance with the procedures specified in Section 6.9) and (ii) the Interested Person shall not bid less than the fair market value set forth in such Appraisal.  The Depositor may not purchase REO Property at a price in excess of the fair market value thereof.


 


 


 









  





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Notwithstanding the foregoing, no Interested Person shall be permitted to purchase the REO Property at a price less than an amount equal to the fair value of the REO Property, as determined by the Special Servicer (or, if such Interested Person is the Special Servicer or an Affiliate of the Special Servicer, the Trustee).  Prior to the Special Servicer’s or Trustee’s, as applicable, determination of fair value referred to above, the fair value of an REO Property shall be deemed to be an amount equal to the Purchase Price.  The Special Servicer or Trustee, as applicable, shall determine the fair value of an REO Property as soon as reasonably practical after receipt of notice of an Interested Party’s desire to purchase such REO Property, and the Special Servicer or Trustee, as applicable, shall promptly notify such Interested Party (and the Trustee, if applicable) of the fair value.  The Special Servicer or Trustee, as applicable, is required to recalculate the fair value of the REO Property if there has been a material change in circumstances or the Special Servicer or Trustee, as applicable, has received new information (including the receipt of a third party bid to purchase the REO Property), either of which has a material effect on the fair value, provided that the Special Servicer or Trustee, as applicable, shall be required to recalculate the fair value of the REO Property if the time between the date of last determination of the fair value of the REO Property and the date of the purchase of the REO Property by such Interested Party has exceeded 60 days.  Upon any recalculation, the Special Servicer or Trustee, as applicable, shall be required to promptly notify in writing such Interested Party (and the Trustee, if applicable) of the revised fair value.  In determining fair value, the Special Servicer or Trustee, as applicable, shall take into account, among other factors, the results of any appraisal or updated appraisal that it or the Master Servicer may have obtained in accordance with this Agreement within the prior twelve months; the physical condition of the REO Property; the state of the local economy; any other bids received with respect to the REO Property; and the Trust’s obligation to dispose of any REO Property as soon as practicable consistent with the objective of maximizing proceeds for all Certificateholders, but in no event later than the three-year period (or such extended period) specified in this Section 9.15.  In performing its obligations under this Section 9.15(a), the Special Servicer or the Trustee, as applicable, may, at the expense of the party desiring to purchase the REO Property, engage an appraiser or other expert in real estate matters to determine the fair value of an REO Property and may rely conclusively upon such Person’s determination, which determination shall take into account the factors set forth in the preceding sentence.


 


(b) Within 30 days of the sale of the REO Property, the Special Servicer shall provide to the Trustee, the Paying Agent and the Master Servicer a statement of accounting for such REO Property, including without limitation, (i) the Acquisition Date for the REO Property, (ii) the date of disposition of the REO Property, (iii) the sale price and related selling and other expenses, (iv) accrued interest (including interest deemed to have accrued) on the Specially Serviced Mortgage Loan to which the REO Property related, calculated from the Acquisition Date to the disposition date, (v) final property operating statements, and (vi) such other information as the Trustee or the Paying Agent may reasonably request in writing.


 


(c) The Liquidation Proceeds from the final disposition of the REO Property shall be deposited in the applicable Certificate Account within one Business Day of receipt.


 


 









  





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Section 9.16 Realization on Collateral Security


 


In connection with the enforcement of the rights of the Trust to any property securing any Specially Serviced Mortgage Loan other than the related Mortgaged Property, the Special Servicer shall consult with counsel to determine how best to enforce such rights in a manner consistent with the REMIC Provisions and shall not, based on a Nondisqualification Opinion addressed to the Special Servicer and the Trustee (the cost of which shall be an expense of the Trust) take any action that could result in the failure of any REMIC Pool to qualify as a REMIC while any Certificates are outstanding, unless such action has been approved by a vote of 100% of each Class of Certificateholders (including the Class R-I, Class R-II and Class [R-III] Certificateholders).


 


Section 9.17 [Reserved]


 


Section 9.18 [Reserved]


 


Section 9.19 [Reserved]


 


Section 9.20 Merger or Consolidation


 


Any Person into which the Special Servicer may be merged or consolidated, or any Person resulting from any merger, conversion, other change in form or consolidation to which the Special Servicer shall be a party, or any Person succeeding to substantially all of the servicing business of the Special Servicer, shall be the successor of the Special Servicer hereunder, without the execution or filing of any paper or any further act on the part of any of the parties hereto; provided, however, that each of the Rating Agencies provides a Rating Agency Confirmation; provided, further, that for so long as the Trust is subject to the reporting requirements of the Exchange Act, the Depositor shall have consented thereto (which consent shall not be unreasonably withheld).  If the conditions to the proviso in the foregoing sentence are not met, the Trustee may terminate the Special Servicer’s servicing of the Specially Serviced Mortgage Loans pursuant hereto, such termination to be effected in the manner set forth in Section 9.31.


 


Section 9.21 Resignation of the Special Servicer


 


(a) Except as otherwise provided in Section 9.20 or this Section 9.21, the Special Servicer shall not resign from the obligations and duties hereby imposed on it unless it determines that the Special Servicer’s duties hereunder are no longer permissible under applicable law or are in material conflict by reason of applicable law with any other activities carried on by it.  Any such determination permitting the resignation of the Special Servicer shall be evidenced by an Opinion of Counsel to such effect delivered to the Master Servicer, the Operating Adviser and the Trustee.  No such resignation shall become effective until a successor servicer designated by the Operating Adviser and the Trustee shall have (i) assumed the Special Servicer’s responsibilities and obligations under this Agreement and (ii) Rating Agency Confirmation shall have been obtained.  Notice of such resignation shall be given promptly by the Special Servicer to the Master Servicer, the Trustee and the Paying Agent.  Notwithstanding the foregoing, if the Special Servicer shall cease to serve as such in accordance with this Section 9.21(a) and a successor servicer shall not have been engaged, the Trustee or an agent of the


 


 









  





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Trustee shall assume the duties and obligations of the Special Servicer under this Agreement.  If the Trustee or an agent of the Trustee assumes the duties and obligations of the Special Servicer pursuant to this Section 9.21(a), the Trustee or such agent shall be permitted to resign as special servicer if it has been replaced by a successor servicer satisfying the criteria in the third preceding sentence above.


 


(b) The Special Servicer may resign from the obligations and duties hereby imposed on it, upon 30 days notice to the Trustee and the Paying Agent, provided that (i) a successor Special Servicer is (x) available, (y) reasonably acceptable to the Operating Adviser, the Depositor, and the Trustee, and (z) willing to assume the obligations, responsibilities and covenants to be performed hereunder by the Special Servicer on substantially the same terms and conditions, and for not more than equivalent compensation as that herein provided, (ii) the successor Special Servicer has assets of at least $15,000,000 and (iii) Rating Agency Confirmation is obtained with respect to such resignation, as evidenced by a letter from each Rating Agency delivered to the Trustee.  Any costs of such resignation and of obtaining a replacement Special Servicer shall be borne by the Special Servicer and shall not be an expense of the Trust.


 


(c) No such resignation under paragraph (b) above shall become effective unless and until such successor Special Servicer enters into a servicing agreement with the Trustee assuming the obligations and responsibilities of the Special Servicer hereunder in form and substance reasonably satisfactory to the Trustee.


 


(d) Upon any resignation or termination of the Special Servicer, it shall retain the right to receive any and all Work-Out Fees payable in respect of (i) Mortgage Loans for which it acted as Special Servicer that became Rehabilitated Mortgage Loans during the period that it acted as Special Servicer and that were still Rehabilitated Mortgage Loans at the time of such resignation or termination or (ii) any Specially Serviced Mortgage Loan for which the Special Servicer has cured the event of default under such Specially Serviced Mortgage Loan through a modification, restructuring or workout negotiated by the Special Servicer and evidenced by a signed writing, but which had not as of the time the Special Servicer was terminated, become a Rehabilitated Mortgage Loan solely because it had not been a performing loan for 90 consecutive days and which subsequently becomes a Rehabilitated Mortgage Loan as a result of the loan being a performing loan for such 90 consecutive day period (and the successor Special Servicer shall not be entitled to any portion of such Work-Out Fees), in each case until such time (if any) as such Mortgage Loan again becomes a Specially Serviced Mortgage Loan or are no longer included in the Trust or if the related Mortgaged Property becomes an REO Property.


 


Section 9.22 Assignment or Delegation of Duties by the Special Servicer


 


The Special Servicer shall have the right without the prior written consent of the Trustee to (A) delegate or subcontract with or authorize or appoint anyone, or delegate certain duties to other professionals such as attorneys and appraisers, as an agent of the Special Servicer or Sub-Servicers (as provided in Section 9.3) to perform and carry out any duties, covenants or obligations to be performed and carried out by the Special Servicer hereunder or (B) assign and


 


 









  





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delegate all of its duties hereunder to a single Person.  In the case of any such assignment and delegation in accordance with the requirements of clause (A) of this Section, the Special Servicer shall not be released from its obligations under this Agreement.  In the case of any such assignment and delegation in accordance with the requirements of clause (B) of this Section, the Special Servicer shall be released from its obligations under this Agreement, except that the Special Servicer shall remain liable for all liabilities and obligations incurred by it as the Special Servicer hereunder prior to the satisfaction of the following conditions:  (i) the Special Servicer gives the Depositor, the Master Servicer, the Operating Adviser and the Trustee notice of such assignment and delegation; (ii) such purchaser or transferee accepting such assignment and delegation executes and delivers to the Depositor and the Trustee an agreement accepting such assignment, which contains an assumption by such Person of the rights, powers, duties, responsibilities, obligations and liabilities of the Special Servicer, with like effect as if originally named as a party to this Agreement; (iii) the purchaser or transferee has assets in excess of $15,000,000; (iv) such assignment and delegation is the subject of a Rating Agency Confirmation; and (v) the Depositor consents to such assignment and delegation, such consent not be unreasonably withheld.  Notwithstanding the above, the Special Servicer may appoint Sub-Servicers in accordance with Section 9.3 hereof.


 


Section 9.23 Limitation on Liability of the Special Servicer and Others


 


(a) Neither the Special Servicer nor any of the partners, representatives, Affiliates, members, managers, directors, officers, employees or agents of the Special Servicer shall be under any liability to the Certificateholders or the Trustee for any action taken or for refraining from the taking of any action in good faith and using reasonable business judgment, consistent with the Servicing Standard; provided that this provision shall not protect the Special Servicer or any such Person against any breach of a representation or warranty contained herein or any liability which would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in its performance of duties hereunder or by reason of negligent disregard of obligations and duties hereunder.  The Special Servicer and any partner, representative, Affiliate, member, manager, director, officer, employee or agent of the Special Servicer may rely in good faith on any document of any kind prima facie properly executed and submitted by any Person (including, without limitation, the information and reports delivered by or at the direction of the Master Servicer or any partner, representative, Affiliate, member, manager, director, officer, employee or agent of the Master Servicer) respecting any matters arising hereunder.  The Special Servicer shall not be under any obligation to appear in, prosecute or defend any legal action which is not incidental to its duties to service the Specially Serviced Mortgage Loans in accordance with this Agreement; provided that the Special Servicer may in its sole discretion undertake any such action which it may reasonably deem necessary or desirable in order to protect the interests of the Certificateholders and the Trustee in the Specially Serviced Mortgage Loans.  In such event, all legal expenses and costs of such action (other than those that are connected with the routine performance by the Special Servicer of its duties hereunder) shall be expenses and costs of the Trust, and the Special Servicer shall be entitled to be reimbursed therefor as provided by Section 5.2 hereof.  Notwithstanding any term in this Agreement, the Special Servicer shall not be relieved from the requirement that it act in accordance with the Servicing Standard by virtue of taking any action at the direction of the Operating Adviser and shall not be relieved from liability otherwise imposed on the Special Servicer pursuant to Section 6.3 of this Agreement.


 


 









  





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(b) In addition, the Special Servicer shall have no liability with respect to, and shall be entitled to conclusively rely on as to the truth of the statements and the correctness of the opinions expressed in any certificates or opinions furnished to the Special Servicer and conforming to the requirements of this Agreement.  The Special Servicer, or any partner, representative, Affiliate, member, manager, director, officer, employee or agent, shall not be personally liable for any error of judgment made in good faith by any officer, unless it shall be proved that the Special Servicer or such officer was negligent in ascertaining the pertinent facts.  The Special Servicer, or any partner, representative, Affiliate, member, manager, director, officer, employee or agent, shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion, rights or powers conferred upon it by this Agreement.  The Special Servicer shall be entitled to rely on reports and information supplied to it by the Master Servicer and the related Mortgagors and shall have no duty to investigate or confirm the accuracy of any such report or information.


 


(c) The Special Servicer shall not be obligated to incur any liabilities, costs, charges, fees or other expenses which relate to or arise from any breach of any representation, warranty or covenant made by the Depositor, the Master Servicer or the Trustee in this Agreement.  The Trust shall indemnify and hold harmless the Special Servicer from any and all claims, liabilities, costs, charges, fees or other expenses which relate to or arise from any such breach of representation, warranty or covenant to the extent such amounts are not recoverable from the party committing such breach.


 


(d) Except as otherwise specifically provided herein:


 


(i) the Special Servicer may rely, and shall be protected in acting or refraining from acting upon, any resolution, officer’s certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper or document (in paper or electronic format) believed or in good faith believed by it to be genuine and to have been signed or presented by the proper party or parties;


 


(ii) the Special Servicer may consult with counsel, and any written advice or Opinion of Counsel shall be full and complete authorization and protection with respect to any action taken or suffered or omitted by it hereunder in good faith and in accordance with such advice or Opinion of Counsel;


 


(iii) the Special Servicer shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion, rights or powers conferred upon it by this Agreement; and


 


(iv) the Special Servicer, in preparing any reports hereunder, may rely, and shall be protected in acting or refraining from acting upon any information (financial or other), statement, certificate, document, agreement, covenant, notice, request or other paper (in paper or electronic format) reasonably believed or in good faith believed by it to be genuine.


 


 









  





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(e) The Special Servicer and any partner, representative, Affiliate, member, manager, director, officer, employee or agent of the Special Servicer shall be indemnified by the Master Servicer, the Trustee and the Paying Agent, as the case may be, and held harmless against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses incurred in connection with any legal action or claim relating to the Master Servicer’s, the Trustee’s or the Paying Agent’s, as the case may be, respective willful misfeasance, bad faith or negligence in the performance of its respective duties hereunder or by reason of negligent disregard by such Person of its respective duties hereunder, other than any loss, liability or expense incurred by reason of willful misfeasance, bad faith or negligence in the performance of any of the Special Servicer’s duties hereunder or by reason of negligent disregard of the Special Servicer’s obligations and duties hereunder.  The Special Servicer shall promptly notify the Master Servicer, the Trustee and the Paying Agent, if a claim is made by a third party entitling the Special Servicer to indemnification hereunder, whereupon the Master Servicer, the Trustee or the Paying Agent, in each case, to the extent the claim was made in connection with its willful misfeasance, bad faith or negligence, shall assume the defense of any such claim (with counsel reasonably satisfactory to the Special Servicer).  Any failure to so notify the Master Servicer, the Trustee or the Paying Agent, shall not affect any rights the Special Servicer may have to indemnification hereunder or otherwise, unless the interest of the Master Servicer, the Trustee or the Paying Agent is materially prejudiced thereby.  The indemnification provided herein shall survive the termination of this Agreement and the termination or resignation of the Special Servicer.  Such indemnity shall survive the termination of this Agreement or the resignation or removal of the Special Servicer hereunder.  Any payment hereunder made by the Master Servicer, the Trustee or the Paying Agent, as the case may be, pursuant to this paragraph to the Special Servicer shall be paid from the Master Servicer’s, the Trustee’s or the Paying Agent’s, as the case may be, own funds, without reimbursement from the Trust therefor, except achieved through subrogation as provided in this Agreement.  Any expenses incurred or indemnification payments made by the Trustee, the Paying Agent or the Master Servicer shall be reimbursed by the party so paid if a court of competent jurisdiction makes a final judgment that the conduct of the Trustee, the Paying Agent or the Master Servicer, as the case may be, was not culpable of willful misfeasance, bad faith or negligence in the performance of its respective duties hereunder or of negligent disregard of its respective duties hereunder or the indemnified party is found to have acted with willful misfeasance, bad faith or negligence.


 


Section 9.24 Indemnification; Third-Party Claims


 


(a) The Special Servicer and any partner, representative, Affiliate, member, manager, director, officer, employee or agent of each the Special Servicer shall be indemnified by the Trust, and held harmless against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any other costs, liabilities, fees and expenses incurred in connection with any legal action or claim relating to (i) this Agreement, any Mortgage Loan, any REO Property or the Certificates or any exercise of any right under this Agreement, and (ii) any action taken by the Special Servicer in accordance with the instruction delivered in writing to the Special Servicer by the Trustee or the Master Servicer pursuant to any provision of this Agreement, and the Special Servicer and each of its partners, representatives, Affiliates, members, managers, directors, officers, employees or agents shall in each case be entitled to indemnification from the Trust for any loss, liability or expense (including attorneys’ fees)


 









  





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incurred in connection with the provision by the Special Servicer of any information included by the Special Servicer in the report required to be provided by the Special Servicer pursuant to this Agreement, other than any loss, liability or expense incurred by reason of willful misfeasance, bad faith or negligence in the performance of duties hereunder or by reason of negligent disregard of obligations and duties hereunder.  The Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Special Servicer) and the Trust shall pay, from amounts on deposit in the applicable Certificate Account pursuant to Section 5.2, all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim.  The indemnification provided herein shall survive the termination of this Agreement and the termination or resignation of the Special Servicer.  Any expenses incurred or indemnification payments made by the Trust shall be reimbursed by the Special Servicer, if a court of competent jurisdiction makes a final, non-appealable judgment that the Special Servicer was found to have acted with willful misfeasance, bad faith or negligence.


 


(b) The Special Servicer agrees to indemnify the Trust, and the Trustee, the Depositor, the Master Servicer, the Paying Agent and any partner, representative, Affiliate, member, manager, director, officer, employee, agent or Controlling Person of the Trustee, the Depositor and the Master Servicer, and hold them harmless against any and all claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments, and any other costs, liabilities, fees and expenses that the Trust or the Trustee, the Depositor, the Paying Agent or the Master Servicer may sustain arising from or as a result of the willful misfeasance, bad faith or negligence in the performance of the Special Servicer’s duties hereunder or by reason of negligent disregard of the Special Servicer’s obligations and duties hereunder by the Special Servicer.  The Trustee, the Depositor, the Paying Agent or the Master Servicer shall immediately notify the Special Servicer if a claim is made by a third party with respect to this Agreement or the Specially Serviced Mortgage Loans entitling the Trust or the Trustee, the Depositor, the Paying Agent or the Master Servicer, as the case may be, to indemnification hereunder, whereupon the Special Servicer shall assume the defense of any such claim (with counsel reasonably satisfactory to the Trustee, the Depositor, the Paying Agent or the Master Servicer, as the case may be) and pay all expenses in connection therewith, including counsel fees, and promptly pay, discharge and satisfy any judgment or decree which may be entered against it or them in respect of such claim.  Any failure to so notify the Special Servicer shall not affect any rights the Trust or the Trustee, the Depositor, the Paying Agent or the Master Servicer may have to indemnification under this Agreement or otherwise, unless Special Servicer’s defense of such claim is materially prejudiced thereby.  The indemnification provided herein shall survive the termination of this Agreement and the termination or resignation of the Special Servicer, the Paying Agent or the Trustee.  Any expenses incurred or indemnification payments made by the Special Servicer shall be reimbursed by the party so paid, if a court of competent jurisdiction makes a final, non-appealable judgment that the conduct of the Special Servicer was not culpable of willful misfeasance, bad faith or negligence in the performance of its respective duties hereunder or of negligent disregard of its respective duties hereunder or the indemnified party is found to have acted with willful misfeasance, bad faith or negligence.


 


(c) The Special Servicer and the Depositor expressly agree that the only information furnished by or on behalf of the Special Servicer for inclusion in the Free Writing Prospectus and the Final Prospectus Supplement is the information set forth in the paragraph


 









  





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under the caption [“TRANSACTION PARTIES—Special Servicer”] of the Free Writing Prospectus and Final Prospectus Supplement.


 


Section 9.25 Reserved


 


Section 9.26 Special Servicer May Own Certificates


 


The Special Servicer or any agent of the Special Servicer in its individual capacity or in any other capacity may become the owner or pledgee of Certificates with the same rights as it would have if they were not the Special Servicer or such agent.  Any such interest of the Special Servicer or such agent in the Certificates shall not be taken into account when evaluating whether actions of the Special Servicer are consistent with its obligations in accordance with the Servicing Standard regardless of whether such actions may have the effect of benefiting the Class or Classes of Certificates owned by the Special Servicer.


 


Section 9.27 Tax Reporting


 


The Special Servicer shall notify the Master Servicer of (i) any abandoned Mortgaged Property, (ii) any foreclosure upon a Mortgaged Property or (iii) any indebtedness that is forgiven, which require reporting to the IRS.  The Special Servicer shall provide the necessary information to the Master Servicer to allow the Master Servicer to comply with the Mortgagor tax reporting requirements imposed by Sections 6050H, 6050J and 6050P of the Code with respect to any Specially Serviced Mortgage Loan.  The Special Servicer shall provide to the Master Servicer copies of any such reports.  The Master Servicer shall forward such reports to the Trustee and the Paying Agent.


 


Section 9.28 Application of Funds Received


 


It is anticipated that the Master Servicer will be collecting all payments with respect to the Mortgage Loans (other than payments with respect to REO Income).  If, however, the Special Servicer should receive any payments with respect to any Mortgage Loan (other than REO Income), it shall, within two Business Days of receipt from the Mortgagor or otherwise of any amounts attributable to payments with respect to or the sale of any Mortgage Loan or any Specially Serviced Mortgage Loan, if any (but not including REO Income, which shall be deposited in the applicable REO Account as provided in Section 9.14 hereof), forward such payment (endorsed, if applicable, to the order of the Master Servicer) to the Master Servicer.  The Special Servicer shall notify the Master Servicer of each such amount received on or before the date required for the making of such deposit or transfer, as the case may be, indicating the Mortgage Loan or Specially Serviced Mortgage Loan to which the amount is to be applied and the type of payment made by or on behalf of the related Mortgagor.


 


Section 9.29 Compliance with REMIC Provisions and Grantor Trust Provisions


 


The Special Servicer shall act in accordance with this Agreement and the provisions of the Code relating to REMICs in order to create or maintain the status of any REMIC Pool as a REMIC under the Code or, as appropriate, cooperate with the Trustee to adopt a plan of complete liquidation.  The Special Servicer shall not take any action or (A) cause any REMIC Pool to take any action that would (i) endanger the status of any REMIC Pool as a


 









  





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REMIC or the status of the Class EI Grantor Trust or the Class A-3-1FL Grantor Trust as a grantor trust or (ii) subject to Section 9.14(e), result in the imposition of a tax upon any REMIC Pool (including, but not limited to, the tax on prohibited transactions as defined in Section 860F(a)(2) of the Code or on prohibited contributions pursuant to Section 860G(d) of the Code) or (B) cause either the Class A-3-1FL Grantor Trust or Class EI Grantor Trust to take any action that could (i) endanger its status as a grantor trust or (ii) result in the imposition of any tax upon the Class A-3-1FL Grantor Trust or Class EI Grantor Trust unless the Master Servicer and the Trustee have received a Nondisqualification Opinion (at the expense of the party seeking to take such action) to the effect that the contemplated action will not endanger such status or result in the imposition of such tax.  The Special Servicer shall comply with the provisions of Article XII hereof.


 


Section 9.30 Termination


 


(a) The obligations and responsibilities of the Special Servicer created hereby (other than the obligation of the Special Servicer to make payments to the Master Servicer as set forth in Section 9.28 and the obligations of the Special Servicer pursuant to Sections 9.8 and 9.24 hereof) shall terminate on the date which is the earliest of (i) the later of (A) the final payment or other liquidation of the last Mortgage Loan remaining outstanding (and final distribution to the Certificateholders) or, (B) the disposition of all REO Property in respect of any Specially Serviced Mortgage Loan (and final distribution to the Certificateholders), (ii) 60 days following the date on which the Trustee or the Operating Adviser has given written notice to the Special Servicer that this Agreement is terminated pursuant to Section 9.30(b) or 9.30(c), respectively and (iii) the effective date of any resignation of the Special Servicer effected pursuant to and in accordance with Section 9.21 or delegation of the Special Servicer’s duties pursuant to clause B of Section 9.22 (but only to the extent specifically set forth in Section 9.22).


 


(b) The Trustee may terminate the Special Servicer in the event that (i) the Special Servicer has failed to remit any amount required to be remitted to the Trustee, the Master Servicer, the Paying Agent or the Depositor within one Business Day following the date such amount was required to have been remitted under the terms of this Agreement, (ii) the Special Servicer has failed to deposit into any account any amount required to be so deposited or remitted under the terms of this Agreement which failure continues unremedied for one Business Day following the date on which such deposit or remittance was first required to be made; (iii) the Special Servicer has failed to duly observe or perform in any material respect any of the other covenants or agreements of the Special Servicer set forth in this Agreement, and the Special Servicer has failed to remedy such failure within thirty (30) days after written notice of such failure, requiring the same to be remedied, shall have been given to the Special Servicer by the Depositor or the Trustee, provided, however, that if the Special Servicer certifies to the Trustee and the Depositor that the Special Servicer is in good faith attempting to remedy such failure, and the Certificateholders would not be affected thereby, such cure period will be extended to the extent necessary to permit the Special Servicer to cure such failure; provided, however, that such cure period may not exceed 90 days; (iv) the Special Servicer has made one or more false or misleading representations or warranties herein that materially and adversely affects the interest of any Class of Certificates and has failed to cure such breach within thirty (30) days after notice of such breach, requiring the same to be remedied, shall have been given to the Special Servicer by the Depositor or the Trustee, provided, however, that if the Special


 









  





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Servicer certifies to the Trustee and the Depositor that the Special Servicer is in good faith attempting to remedy such failure, such cure period may be extended to the extent necessary to permit the Special Servicer to cure such failure; provided, however, that such cure period may not exceed 90 days; (v) a decree or order of a court or agency or supervisory authority having jurisdiction in the premises in an involuntary case under any present or future federal or state bankruptcy, insolvency or similar law for the appointment of a conservator, receiver, liquidator, trustee or similar official in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Special Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; (vi) the Special Servicer shall consent to the appointment of a conservator, receiver, liquidator, trustee or similar official in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings relating to the Special Servicer or of or relating to all or substantially all of its property; (vii) the Special Servicer thereof shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make an assignment for the benefit of its creditors, voluntarily suspend payment of its obligations, or take any corporate action in furtherance of the foregoing; (viii) [a Servicing Officer of the Special Servicer obtains actual knowledge that Moody’s has (a) qualified, downgraded or withdrawn any rating then assigned by it to any class of certificates, or (b) placed any class of certificates on “watch status” in contemplation of possible rating downgrade or withdrawal (and that “watch status” placement has not have been withdrawn by it within 60 days of such Servicing Officer obtaining such knowledge), and, in either case, cited servicing concerns with the Special Servicer as the sole or a material factor in such rating action] or (ix) [such special servicer is no longer listed on S&P’s Select Servicer List as a U.S. Commercial Mortgage Special Servicer and is not reinstated to such status within 60 days] [other Rating Agency Default], or (x) the Special Servicer shall fail to comply with any of its obligations under Article XIII of this Agreement; provided, however, that if, following the Special Servicer’s failure to comply with any of such obligations under Section 13.7, 13.8, 13.9, 13.11, 13.12 or 13.13 on or prior to the dates by which such obligations are to be performed pursuant to, and as set forth in, such Sections, (a) the Special Servicer subsequently complies with such obligations before the Trustee or the Depositor gives written notice to it that it is terminated in accordance with this Section 9.30 and (b) the Special Servicer’s failure to comply does not cause the Paying Agent to fail in its obligations to timely file the related Form 8-K, Form 10-D or Form 10-K, as the case may be, by the related 8-K Filing Deadline, 10-D Filing Deadline or 10-K Filing Deadline, then such failure to comply shall cease to be an Event of Default under this Section 9.30(a)(x) on the date on which such Form 8-K, Form 10-D or Form 10-K is so filed.  Such termination shall be effective on the date after the date of any of the above events that the Trustee specifies in a written notice to the Special Servicer specifying the reason for such termination.  The Operating Adviser shall have the right to appoint a successor if the Trustee terminates the Special Servicer.  The Special Servicer being terminated pursuant to this Section 9.30(b) shall bear all costs of the transfer of servicing arising from such termination.


 


(c) The Operating Adviser shall have the right to direct the Trustee to terminate the Special Servicer, provided that the Operating Adviser shall appoint a successor Special Servicer who will (i) be reasonably satisfactory to the Trustee and to the Depositor, and (ii) execute and deliver to the Trustee an agreement, in form and substance reasonably satisfactory to the Trustee, whereby the successor Special Servicer agrees to assume and perform


 









  





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punctually the duties of such terminated Special Servicer specified in this Agreement; and provided, further, that the Trustee shall have received Rating Agency Confirmation from each Rating Agency prior to the termination of the Special Servicer.  The Special Servicer shall not be terminated pursuant to this subsection (c) until a successor Special Servicer shall have been appointed.  The Operating Adviser shall pay any costs and expenses incurred by the Trust in connection with the removal and appointment of the Special Servicer (unless such removal is based on any of the events or circumstances set forth in Section 9.30(b)).  The Special Servicer being terminated shall execute and deliver such document acknowledging its termination as may be reasonably required by any Rating Agency.


 


Section 9.31 Procedure Upon Termination


 


(a) Notice of any termination pursuant to clause (i)(B) of Section 9.30(a), specifying the Distribution Date upon which the final distribution shall be made, shall be given promptly by the Special Servicer to the Trustee and the Paying Agent no later than the later of (i) five Business Days after the liquidation of the last REO Property or (ii) the sixth day of the month in which the final Distribution Date will occur.  Upon any such termination, the rights and duties of the Special Servicer (other than the rights and duties of the Special Servicer pursuant to Sections 9.8, 9.21, 9.23 and 9.24 hereof) shall terminate and the Special Servicer shall transfer to the Master Servicer the amounts remaining in each REO Account and shall thereafter terminate each REO Account and any other account or fund maintained with respect to the Specially Serviced Mortgage Loans.


 


(b) On the date specified in a written notice of termination given to the Special Servicer pursuant to clause (ii) of Section 9.30(a), all authority, power and rights of the Special Servicer under this Agreement, whether with respect to the Specially Serviced Mortgage Loans or otherwise, shall terminate; provided that in no event shall the termination of the Special Servicer be effective until the Trustee or other successor Special Servicer shall have succeeded the Special Servicer as successor Special Servicer, notified the Special Servicer of such designation, and such successor Special Servicer shall have assumed the Special Servicer’s obligations and responsibilities, as set forth in an agreement substantially in the form hereof, with respect to the Specially Serviced Mortgage Loans.  The Trustee or other successor Special Servicer may not succeed the Special Servicer as Special Servicer until and unless it has satisfied the provisions that would apply to a Person succeeding to the business of the Special Servicer pursuant to Section 9.20 hereof.  The Trustee is hereby authorized and empowered to execute and deliver, on behalf of the Special Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of termination.  The Special Servicer agrees to cooperate with the Trustee in effecting the termination of the Special Servicer’s responsibilities and rights hereunder as Special Servicer including, without limitation, providing the Trustee all documents and records in electronic or other form reasonably requested by it to enable the successor Special Servicer designated by the Trustee to assume the Special Servicer’s functions hereunder and to effect the transfer to such successor for administration by it of all amounts which shall at the time be or should have been deposited by the Special Servicer in the applicable REO Account and any other account or fund maintained or thereafter received with respect to the Specially Serviced Mortgage Loans.


 


 









  





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Section 9.32 Certain Special Servicer Reports


 


(a) The Special Servicer, for each Specially Serviced Mortgage Loan, shall provide to the Master Servicer by [2:00 p.m.] (New York time) on the date that is one Business Day after the Determination Date for each month, the CMSA Special Servicer Loan File in such electronic format as is mutually acceptable to the Master Servicer and the Special Servicer and in CMSA format.  The Master Servicer may use such reports or information contained therein to prepare its reports and the Master Servicer may, at its option, forward such reports directly to the Depositor and the Rating Agencies.


 


(b) The Special Servicer shall maintain accurate records, prepared by a Servicing Officer, of each Final Recovery Determination with respect to any Mortgage Loan or REO Property and the basis thereof.  Each Final Recovery Determination shall be evidenced by an Officer’s Certificate delivered to the Trustee, the Operating Adviser, the Paying Agent and the Master Servicer no later than the tenth Business Day following such Final Recovery Determination.


 


(c) The Special Servicer shall provide to the Master Servicer or the Paying Agent at the reasonable request in writing of the Master Servicer or the Paying Agent, any information in its possession with respect to the Specially Serviced Mortgage Loans which the Master Servicer or Paying Agent, as the case may be, shall require in order for the Master Servicer or the Paying Agent to comply with its obligations under this Agreement; provided that the Special Servicer shall not be required to take any action or provide any information that the Special Servicer determines will result in any material cost or expense to which it is not entitled to reimbursement hereunder or will result in any material liability for which it is not indemnified hereunder.  The Master Servicer shall provide the Special Servicer at the reasonable request of the Special Servicer any information in its possession with respect to the Mortgage Loans which the Special Servicer shall require in order for the Special Servicer to comply with its obligations under this Agreement.


 


(d) Not later than 20 days after the Special Servicer Remittance Date, the Special Servicer shall forward to the Master Servicer a statement setting forth the status of each REO Account as of the close of business on the Special Servicer Remittance Date, stating that all remittances required to be made by it as required by this Agreement to be made by the Special Servicer have been made (or, if any required distribution has not been made by the Special Servicer, specifying the nature and status thereof) and showing, for the period from the day following the preceding Special Servicer Remittance Date to the Special Servicer Remittance Date, the aggregate of deposits into and withdrawals from each REO Account for each category of deposit specified in Section 5.1 of this Agreement and each category of withdrawal specified in Section 5.2 of this Agreement.


 


(e) With respect to Specially Serviced Mortgage Loans, the Special Servicer shall use reasonable efforts to obtain and, to the extent obtained, to deliver electronically to the Master Servicer (subject to Section 8.14 herein), the Paying Agent, the Rating Agencies and the Operating Adviser, on or before April 15 of each year, commencing with April 15, 20__, (i) copies of the prior year operating statements and, except with respect to the Co-op Loans, quarterly statements, if available, for each Mortgaged Property underlying a Specially Serviced


 









  





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Mortgage Loan or REO Property as of its fiscal year end, provided that either the related Mortgage Note or Mortgage requires the Mortgagor to provide such information, or if the related Mortgage Loan has become an REO Property, (ii) a copy of the most recent rent roll with respect to Mortgage Loans other than Co-op Mortgage Loans, available for each Mortgaged Property, and (iii) a table, setting forth the Debt Service Coverage Ratio and occupancy with respect to each Mortgaged Property covered by the operating statements delivered above.


 


(f) The Special Servicer shall deliver to the Master Servicer, the Depositor, the Paying Agent and the Trustee all such other information with respect to the Specially Serviced Mortgage Loans at such times and to such extent as the Master Servicer, the Trustee, the Paying Agent or the Depositor may from time to time reasonably request; provided, however, that the Special Servicer shall not be required to produce any ad hoc non-standard written reports with respect to such Mortgage Loans except if any Person (other than the Paying Agent or the Trustee) requesting such report pays a reasonable fee to be determined by the Special Servicer.


 


(g) The Special Servicer shall deliver electronically a written Inspection Report of each Specially Serviced Mortgage Loan in accordance with Section 9.4(b) to the Operating Adviser.


 


(h) Notwithstanding anything to the contrary herein, as a condition to the Special Servicer making any report or information available upon request to any Person other than the parties hereto or any Operating Adviser, the Special Servicer may require that the recipient of such information acknowledge that the Special Servicer may contemporaneously provide such information to the Depositor, the Trustee, the Paying Agent, the Master Servicer, the Primary Servicer, the Sellers, the Placement Agent, any Underwriter, any Rating Agency, and/or the Certificateholders or Certificate Owners, as applicable.  Any transmittal of information by the Special Servicer to any Person other than the Trustee, the Paying Agent, the Master Servicer, any Primary Servicer, the Rating Agencies, the Operating Adviser or the Depositor may be accompanied by a letter from the Special Servicer containing the following provision:


 


“By receiving the information set forth herein, you hereby acknowledge and agree that the United States securities laws restrict any Person who possesses material, non-public information regarding the Trust which issued Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 20__-__ from purchasing or selling such Certificates in circumstances where the other party to the transaction is not also in possession of such information.  You also acknowledge and agree that such information is being provided to you for the purpose of, and such information may be used only in connection with, evaluation by you or another Certificateholder, Certificate Owner or prospective purchaser of such Certificates or beneficial interest therein.”


 









  





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Section 9.33 Special Servicer to Cooperate with the Master Servicer and Paying Agent


 


(a) The Special Servicer shall furnish on a timely basis such reports, certifications, and information as are reasonably requested by the Master Servicer, the Trustee, the Paying Agent or any Primary Servicer to enable it to perform its duties under this Agreement or any Primary Servicing Agreement, as applicable; provided that no such request shall (i) require or cause the Special Servicer to violate the Code, any provision of this Agreement, including the Special Servicer’s obligation to act in accordance with the servicing standards set forth in this Agreement and to maintain the REMIC status of any REMIC Pool or (ii) expose the Special Servicer, the Trust, the Paying Agent or the Trustee to liability or materially expand the scope of the Special Servicer’s responsibilities under this Agreement.  In addition, the Special Servicer shall notify the Master Servicer of all expenditures incurred by it with respect to the Specially Serviced Mortgage Loans which are required to be made by the Master Servicer as Servicing Advances as provided herein, subject to the provisions of Section 4.4 hereof.  The Special Servicer shall also remit all invoices relating to Servicing Advances promptly upon receipt of such invoices.


 


(b) The Special Servicer shall from time to time make reports, recommendations and analyses to the Operating Adviser with respect to the following matters, the expense of which shall not be an expense of the Trust:


 


(i) whether the foreclosure of a Mortgaged Property relating to a Specially Serviced Mortgage Loan would be in the best economic interest of the Trust;


 


(ii) if the Special Servicer elects to proceed with a foreclosure, whether a deficiency judgment should or should not be sought because the likely recovery will or will not be sufficient to warrant the cost, time and exposure of pursuing such judgment;


 


(iii) whether the waiver or enforcement of any “due-on-sale” clause or “due-on-encumbrance” clause contained in a Mortgage Loan or a Specially Serviced Mortgage Loan is in the best economic interest of the Trust;


 


(iv) in connection with entering into an assumption agreement from or with a Person to whom a Mortgaged Property securing a Specially Serviced Mortgage Loan has been or is about to be conveyed, or to release the original Mortgagor from liability upon a Specially Serviced Mortgage Loan and substitute a new Mortgagor, and whether the credit status of the prospective new Mortgagor is in compliance with the Special Servicer’s regular commercial mortgage origination or servicing standard;


 


(v) in connection with the foreclosure on a Specially Serviced Mortgage Loan secured by a Mortgaged Property which is not in compliance with CERCLA, or any comparable environmental law, whether it is in the best economic interest of the Trust to bring the Mortgaged Property into compliance therewith and an estimate of the cost to do so; and


 


(vi) with respect to any proposed modification (which shall include any proposed release, substitution or addition of collateral), extension, waiver (except a


 









  





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waiver with respect to immaterial covenants, Late Fees or default interest), amendment, discounted payoff or sale of a Mortgage Loan, prepare a summary of such proposed action and an analysis of whether or not such action is reasonably likely to produce a greater recovery on a present value basis than liquidation of such Mortgage Loan; such analysis shall specify the basis on which the Special Servicer made such determination, including the status of any existing material default or the grounds for concluding that a payment default is imminent.


 


Section 9.34 Reserved


 


Section 9.35 Reserved


 


Section 9.36 Sale of Defaulted Mortgage Loans


 


(a) The holder of Certificates evidencing the greatest percentage interest in the Controlling Class and the Special Servicer (each in such capacity, together with any assignee, the “Option Holder”) shall, in that order, have the right, at its option (the “Option”), to purchase a Mortgage Loan  from the Trust at a price equal to the Option Purchase Price upon receipt of notice from the Special Servicer that such Mortgage Loan has become at least 60 days delinquent as to any monthly debt service payment (or is 90 days delinquent as to its Balloon Payment).  The Option is exercisable, subject to the related Seller’s right (after receiving notice from the Trustee that an Option Holder intends to exercise its Option) set forth in Section 2.3 to first repurchase such Mortgage Loan, from that date until terminated pursuant to clause (e) below, and during that period the Option shall be exercisable in any month only during the period from the 10th calendar day of such month through the 25th calendar day, inclusive, of such month.  The Trustee on behalf of the Trust shall be obligated to sell such Mortgage Loan upon the exercise of the Option (whether exercised by the original holder thereof or by a holder that acquired such Option by assignment), but shall have no authority to sell such Mortgage Loan other than in connection with the exercise of an Option (or in connection with a repurchase of a Mortgage Loan under Article II, an optional termination pursuant to Section 10.1 or a qualified liquidation of the REMIC Pools).  Any Option Holder that exercises the Option shall be required to purchase the applicable Mortgage Loan within 4 Business Days following such exercise.  If any Option Holder desires to waive its right to exercise the Option, then it shall so notify the Trustee in writing, and the Trustee shall promptly notify the next party eligible to hold the Option set forth above of its rights hereunder.  Any of the other parties eligible to hold the Option set forth above may at any time notify the Trustee in writing of its desire to exercise the Option, and the Trustee shall promptly notify the current Option Holder (and the other parties eligible to hold the Option).  If the Option Holder neither (i) exercises the Option nor (ii) surrenders its right to exercise the Option within 3 Business Days of its receipt of that notice, then the Option Holder’s right to exercise the Option shall lapse, and the Trustee shall promptly notify the next party eligible to hold the Option (and the other parties eligible to hold the Option) of its rights thereunder.


 


(b) The “Option Purchase Price” shall be an amount equal to the fair value of the related Mortgage Loan, as determined by the Special Servicer upon the request of any holder of the Option.  The reasonable, out-of-pocket expenses of the Special Servicer incurred in connection with any such determination of the fair value of a Mortgage Loan shall be payable


 









  





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and reimbursed to the Special Servicer as an expense of the Trust.  Prior to the Special Servicer’s determination of fair value referred to above, the fair value of a Mortgage Loan shall be deemed to be an amount equal to the Purchase Price plus (i) any prepayment penalty or yield maintenance charge then payable upon the prepayment of such Mortgage Loan and (ii) the reasonable fees and expenses of the Special Servicer, the Master Servicer and the Trustee incurred in connection with the sale of the Mortgage Loan.  The Special Servicer shall determine the fair value of a Mortgage Loan on the later of (A) as soon as reasonably practical upon the Mortgage Loan becoming 60 days delinquent or upon the Balloon Payment becoming delinquent and (B) the date that is 75 days after the Special Servicer’s receipt of the Servicer Mortgage File relating to such Mortgage Loan, and the Special Servicer shall promptly notify the Option Holder (and the Trustee and each of the other parties set forth above that could become the Option Holder) of the Option Purchase Price.  The Special Servicer is required to recalculate the fair value of the Mortgage Loan if there has been a material change in circumstances or the Special Servicer has received new information (including the receipt of a third party bid to purchase the Option), either of which has a material effect on the fair value, provided that the Special Servicer shall be required to recalculate the fair value of the Mortgage Loan if the time between the date of last determination of the fair value of the Mortgage Loan and the date of the exercise of the Option has exceeded 60 days.  Upon any recalculation, the Special Servicer shall be required to promptly notify in writing each Option Holder (and the Trustee and each of the other parties set forth above that could become the Option Holder) of the revised Option Purchase Price.  Any such recalculation of the fair value of the Mortgage Loan shall be deemed to renew the Option in its original priority at the recalculated price with respect to any party as to which the Option had previously expired or been waived, unless the Option has previously been exercised by an Option Holder at a higher Option Purchase Price.  In determining fair value, the Special Servicer shall take into account, among other factors, the results of any Appraisal or updated Appraisal that it or the Master Servicer may have obtained in accordance with this Agreement within the prior twelve months; any views on fair value expressed by Independent investors in mortgage loans comparable to the Mortgage Loan (provided that the Special Servicer shall not be obligated to solicit such views); the period and amount of any delinquency on the affected Mortgage Loan; whether to the Special Servicer’s actual knowledge, the Mortgage Loan is in default to avoid a prepayment restriction; the physical condition of the related Mortgaged Property; the state of the local economy; the expected recoveries from the Mortgage Loan if the Special Servicer were to pursue a workout or foreclosure strategy instead of the Option being exercised; and the Trust’s obligation to dispose of any REO Property as soon as practicable consistent with the objective of maximizing proceeds for all Certificateholders, but in no event later than the three-year period (or such extended period) specified in Section 9.15.


 


(c) Any Option relating to a Mortgage Loan shall be assignable to a third party by the Option Holder at its discretion at any time after its receipt of notice from the Special Servicer that an Option is exercisable with respect to a specified Mortgage Loan, and upon such assignment such third party shall have all of the rights granted to the Option Holder hereunder in respect of the Option.  Such assignment shall only be effective upon written notice (together with a copy of the executed assignment and assumption agreement) being delivered to the Trustee, the Master Servicer and the Special Servicer, and none of such parties shall be obligated to recognize any entity as an Option Holder absent such notice.


 









  





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(d) If the Special Servicer, the holder of Certificates representing the greatest percentage interest in the Controlling Class or an Affiliate of either thereof elects to exercise the Option, the Trustee shall be required to determine whether the Option Purchase Price constitutes a fair price for the Mortgage Loan.  Upon request of the Special Servicer to make such a determination, the Trustee will do so within a reasonable period of time (but in no event more than 15 Business Days).  In doing so, the Trustee may rely on the opinion of an Appraiser or other expert in real estate matters retained by the Trustee at the expense of the party exercising the Option.  The Trustee may also rely on the most recent Appraisal of the related Mortgaged Property that was prepared in accordance with this Agreement.  If the Trustee were to determine that the Option Purchase Price does not constitute a fair price, then the Special Servicer shall redetermine the fair value taking into account the objections of the Trustee.


 


(e) The Option shall terminate, and shall not be exercisable as set forth in clause (a) above (or if exercised, but the purchase of the related Mortgage Loan has not yet occurred, shall terminate and be of no further force or effect) if the Mortgage Loan to which it relates is no longer delinquent as set forth above because the Mortgage Loan has (i) become a Rehabilitated Mortgage Loan, (ii) been subject to a work-out arrangement, (iii) been foreclosed upon or otherwise resolved (including by a full or discounted pay-off) or (iv) been purchased by the related Seller pursuant to Section 2.3.


 


(f) Unless and until an Option Holder exercises an Option, the Special Servicer shall continue to service and administer the related Mortgage Loan in accordance with the Servicing Standard and this Agreement, and shall pursue such other resolution or recovery strategies, including workout or foreclosure, as is consistent with this Agreement and the Servicing Standard.


 


Section 9.37 Operating Adviser; Elections


 


(a) In accordance with Section 9.37(c), the Certificateholders representing more than 50% of the Certificate Balance of the Certificates of the then Controlling Class may elect the operating adviser with respect to Specially Serviced Mortgage Loans (the “Operating Adviser”).  The Operating Adviser shall be elected for the purpose of receiving reports and information from the Special Servicer in respect of the Specially Serviced Mortgage Loans.


 


(b) The initial Operating Adviser is ____________.  The Controlling Class shall give written notice to the Trustee, the Paying Agent and the Master Servicer of the appointment of any subsequent Operating Adviser (in order to receive notices hereunder).  If a subsequent Operating Adviser is not so appointed, an election of an Operating Adviser also shall be held.  Notice of the meeting of the Holders of the Controlling Class shall be mailed or delivered to each Holder by the Paying Agent, not less than 10 nor more than 60 days prior to the meeting.  The notice shall state the place and the time of the meeting, which may be held by telephone.  A majority of Certificate Balance of the Certificates of the then Controlling Class, present in person or represented by proxy, shall constitute a quorum for the nomination of an Operating Adviser.  At the meeting, each Holder shall be entitled to nominate one Person to act as Operating Adviser.  The Paying Agent shall cause the election of the Operating Adviser to be held as soon thereafter as is reasonably practicable.


 









  





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(c) Each Holder of the Certificates of the Controlling Class shall be entitled to vote in each election of the Operating Adviser.  The voting in each election of the Operating Adviser shall be in writing mailed, telecopied, delivered or sent by courier and actually received by the Paying Agent on or prior to the date of such election.  Immediately upon receipt by the Paying Agent of votes (which have not been rescinded) from the Holders of Certificates representing more than 50% of the Certificate Balance of the Certificates of the then Controlling Class which are cast for a single Person, such Person shall be, upon such Person’s acceptance, the Operating Adviser.  The Paying Agent shall not be required to recognize any Person as an Operating Adviser until the Operating Adviser provides the Paying Agent with written confirmation of its acceptance of such appointment, written confirmation that it will keep confidential all information received by it as Operating Adviser hereunder or otherwise with respect to the Certificates, the Trust and/or this Agreement, an address and telecopy number for the delivery of notices and other correspondence and a list of officers or employees of such Person with whom the parties to this Agreement may deal (including their names, titles, work addresses and telecopy numbers).  The Paying Agent hereby recognizes _________________ as the initial Operating Adviser.  The Paying Agent shall promptly notify the Trustee of the identity of the Operating Adviser.  The Trustee shall promptly deliver such information to the Master Servicer and the Special Servicer.  The Master Servicer and the Special Servicer shall not be required to recognize any Person as an Operating Adviser until such information has been delivered by the Trustee.  In the event that an Operating Adviser shall have resigned or been removed and a successor Operating Adviser shall not have been elected, there shall be no Operating Adviser.


 


(d) The Operating Adviser may be removed at any time by the written vote, copies of which must be delivered to the Paying Agent, of more than 50% of the Certificate Balance of the Holders of the Certificates of the then Controlling Class.


 


(e) The Paying Agent shall act as judge of each election and, absent manifest error, the determination of the results of any election by the Paying Agent shall be conclusive.  Notwithstanding any other provisions of this Section 9.37, the Paying Agent may make such reasonable regulations as it may deem advisable for any election.


 


(f) Notwithstanding any provision of this Section 9.37 or any other provision of this Agreement to the contrary, at any time that the Special Servicer has been elected as Operating Adviser or no Operating Adviser has been elected, (i) the Special Servicer shall not be required to deliver notices or information to, or obtain the consent or approval of, the Operating Adviser and (ii) to the extent any Person other than the Special Servicer is otherwise required hereunder to provide notices or information to, or obtain the consent or approval of, the Operating Adviser, such Person shall be required to provide such notices or information to, or obtain the consent or approval of, the Special Servicer.


 


Section 9.38 Limitation on Liability of Operating Adviser


 


The Operating Adviser shall have no liability to the Trust, the Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying Agent or the Certificateholders for any action taken, or for refraining from the taking of any action, in good faith and using reasonable business judgment pursuant to this Agreement.  By its acceptance of a Certificate,


 









  





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each Certificateholder (and Certificate Owner) confirms its understanding that the Operating Adviser may take actions that favor the interests of one or more Classes of the Certificates over other Classes of the Certificates and that the Operating Adviser may have special relationships and interests that conflict with those of Holders of some Classes of the Certificates, and each Certificateholder (and Certificate Owner) agrees to take no action against the Operating Adviser based upon such special relationship or conflict.


 


Section 9.39 Rights of Operating Adviser


 


(a) Notwithstanding anything to the contrary herein, including but not limited to Article 8 hereof, the Operating Adviser will receive notice of and may advise the Special Servicer with respect to the following actions of the Special Servicer with respect to any Mortgage Loan:


 


(i) any proposed modification of a Money Term of a Mortgage Loan other than an extension of the original maturity date for 2 years or less;


 


(ii) with respect to notice only, any proposed sale of a Defaulted Mortgage Loan, pursuant to Section 9.36;


 


(iii) any determination to bring an REO Property into compliance with Environmental Laws;


 


(iv) any acceptance of substitute or additional collateral for a Mortgage Loan not expressly required under such Mortgage Loan (except with respect to a Defeasance Loan);


 


(v) any waiver of a “due on-sale” or “due on-encumbrance” clause;


 


(vi) any acceptance of an assumption agreement; and


 


(vii) any release of collateral for a Specially Serviced Mortgage Loan (other than in accordance with the terms of or upon satisfaction of such Mortgage Loan).


 


(b) In addition, notwithstanding anything to the contrary herein, including but not limited to Article 8 hereof, the Operating Adviser shall have the right to approve any of the following actions by the Special Servicer:


 


(i) any actual or proposed foreclosure upon or comparable conversion (which may include acquisition of an REO Property) of the ownership of properties securing such of the Specially Serviced Mortgage Loans as come into and continue in default;


 


(ii) any acceptance of a discounted payoff; and


 


(iii) any release of “earn out” or performance reserves listed on Schedule XI hereof, on deposit in an Escrow Account, other than where such release does not require the consent of the lender.


 









  





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In the event that the Special Servicer determines that immediate action is necessary to protect the interests of the Certificateholders, the Special Servicer may take any such action without waiting for the Operating Adviser’s advice or approval.  No advice or approval or lack of approval of the Operating Adviser may (and the Special Servicer shall ignore and act without regard to any such advice or approval or lack of approval that the Special Servicer has determined, in its reasonable, good faith judgment, would) (A) require or cause the Special Servicer to violate applicable law, the terms of any Mortgage Loan or any other Section of this Agreement, including the Special Servicer’s obligation to act in accordance with the Servicing Standard, (B) result in Adverse REMIC Event with respect to any REMIC Pool, (C) endanger the status of the Class A-3-1FL Grantor Trust or the Class EI Grantor Trust as a grantor trust, (D) expose the Trust, the Depositor, the Master Servicer, the Special Servicer, the Trustee or any of their respective Affiliates, members, managers, partners, representatives, officers, directors, employees or agents, to any material claim, suit or liability, or (E) expand the scope of the Master Servicer’s or Special Servicer’s responsibilities under this Agreement.


 


Any notices required to be delivered to the Special Servicer with respect to items (i) through (vii) of subsection (a) above and items (i) through (iii) of subsection (b) above by any other party to this Agreement shall be simultaneously delivered to the Operating Adviser.  With respect to items (v), (vi) and (vii) of subsection (a) above, the Operating Adviser shall be subject to the same time periods for advising the Special Servicer with respect to any such matters as are afforded to the Special Servicer pursuant to Section 8.7, which periods shall be co-terminus with those of the Special Servicer.  The Special Servicer shall provide the Operating Adviser with its recommendations with respect to the matters set forth in both (a) and (b) above within 5 Business Days of the Special Servicer’s receipt of notice thereof.  In addition, the Operating Adviser may direct the Trustee to remove the Special Servicer at any time upon the appointment and acceptance of such appointment by a successor to the Special Servicer; provided that, prior to the effectiveness of any such appointment, the Trustee and the Paying Agent shall have received Rating Agency Confirmation from each Rating Agency.  The Operating Adviser shall pay any costs and expenses incurred by the Trust in connection with the removal and appointment of the Special Servicer (unless such removal is based on any of the events or circumstances set forth in Section 9.30(b)).  The Trustee shall notify the Paying Agent promptly upon its receipt of the direction set forth above.  Notwithstanding any other provision in this Agreement, the Operating Adviser shall have the right to appoint a sub-operating adviser with respect to any particular Mortgage Loan.  Such sub-operating adviser shall have the right, subject to Rating Agency confirmation, to appoint, or serve as, the Special Servicer with respect to such Mortgage Loan.  All references in this Agreement to the “Operating Adviser” and the “Special Servicer” shall refer to the sub-operating adviser or the special servicer appointed by the sub-operating adviser, as applicable; provided, however, that the Special Servicer shall not have any advancing obligations with respect to such Mortgage Loans.


 









  





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ARTICLE X


 


PURCHASE AND TERMINATION OF THE TRUST


 


Section 10.1 Termination of Trust Upon Repurchase or Liquidation of All Mortgage Loans


 


(a) The obligations and responsibilities of the Trustee and the Paying Agent created hereby (other than the obligation of the Paying Agent, to make payments to the Class [R-I] Certificateholders, the Class [R-II] Certificateholders and the REMIC III Certificateholders, as set forth in Section 10.2 and other than the obligations in the nature of information or tax reporting) shall terminate on the earliest of (i) the later of (A) the final payment or other liquidation of the last Mortgage Loan remaining in the Trust (and final distribution to the Certificateholders) and (B) the disposition of all REO Property (and final distribution to the Certificateholders), (ii) the sale of the property held by the Trust in accordance with Section 10.1(b), (iii) the termination of the Trust pursuant to Section 10.1(c) or (iv) the transfer of the property held in the Trust in accordance with Section 10.1(d); provided that in no event shall the Trust created hereby continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the Court of St. James, living on the date hereof.


 


(b) The Master Servicer shall give the Trustee and the Paying Agent notice of the date when the aggregate Principal Balance of the Mortgage Loans, after giving effect to distributions of principal made on the next Distribution Date, is less than or equal to [1%] of the initial Aggregate Certificate Balance of the Certificates as of the Closing Date.  The Paying Agent shall promptly forward such notice to the Trustee, the Depositor, the Holder of a majority of the Controlling Class, the Master Servicer, the Special Servicer and the Holders of the Class [R-I] Certificates; and the Holder of a majority of the Controlling Class, the Master Servicer, the Special Servicer and the Holders of the Class [R-I] Certificates, in such priority (and in the case of the Class [R-I] Certificateholders, a majority of the Class [R-I] Certificateholders), may purchase, in whole only, the Mortgage Loans and any other property, if any, remaining in the Trust.  If any party desires to exercise such option, it will notify the Trustee who will notify any party with a prior right to exercise such option.  If any party that has been provided notice by the Trustee (excluding the Depositor) notifies the Trustee within ten Business Days after receiving notice of the proposed purchase that it wishes to purchase the assets of the Trust, then such party (or, in the event that more than one of such parties notifies the Trustee that it wishes to purchase the assets of the Trust, the party with the first right to purchase the assets of the Trust) may purchase the assets of the Trust in accordance with this Agreement.  Upon the Paying Agent’s receipt of the Termination Price set forth below, the Trustee shall promptly release or cause to be released to the Master Servicer for the benefit of the Holder of the majority of the Class [R-I] Certificates, the Special Servicer or the Master Servicer, as the case may be, the Mortgage Files pertaining to the Mortgage Loans.  The “Termination Price” shall equal 100% of the aggregate Principal Balances of the Mortgage Loans (other than Mortgage Loans as to which a Final Recovery Determination has been made) on the day of such purchase plus accrued and unpaid interest thereon (other than any accrued and unpaid interest thereon that has been the subject of an Advance) at the applicable Mortgage Rates (or Mortgage Rates less the Master Servicing Fee Rate if the Master Servicer is the purchaser), with respect to the Mortgage


 









  





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Loans to the Due Date for each Mortgage Loan ending in the Collection Period with respect to which such purchase occurs, plus unreimbursed Advances and interest on such unreimbursed Advances at the Advance Rate, and the fair market value of any other property remaining in REMIC I.  The Trustee shall consult with the Placement Agent and the Underwriters or their respective successors, as advisers, in order for the Trustee to determine whether the fair market value of the property constituting the Trust has been offered; provided that, if the Placement Agent or any Underwriter or an Affiliate of the Placement Agent or the Underwriters is exercising its right to purchase the Trust assets, the Trustee shall consult with the Operating Adviser in order for the Trustee to determine the fair market value, provided that the Operating Adviser is not an Affiliate of the Class R-I Holder, the Special Servicer or the Master Servicer, or the Trustee (the fees and expenses of which shall be paid for by buyer of the property).  As a condition to the purchase of the Trust pursuant to this Section 10.1(b), the Holder of the majority of the Class [R-I] Certificates, the Special Servicer or the Master Servicer, as the case may be, must deliver to the Trustee an Opinion of Counsel, which shall be at the expense of such Holders, the Special Servicer or the Master Servicer, as the case may be, stating that such termination will be a “qualified liquidation” under Section 860F(a)(4) of the Code.  Such purchase shall be made in accordance with Section 10.3.


 


(c) If at any time the Holders of the Class [R-I] Certificates own 100% of the REMIC III Certificates, the Class [A-3-1FL] Certificates and the Class [EI] Certificates, such Holders may terminate REMIC I (which will in turn result in the termination of REMIC II and REMIC III), the Class A-3-1FL Grantor Trust and the Class EI Grantor Trust upon (i) the delivery to the Trustee and the Depositor of an Opinion of Counsel (which opinion shall be at the expense of such Holders) stating that such termination will be a “qualified liquidation” of each REMIC Pool under Section 860F of the Code, and (ii) the payment of any and all costs associated with such termination.  Such termination shall be made in accordance with Section 10.3.


 


(d) [Following the date on which the aggregate Certificate Balance of the Class [A-1], Class [A-1A], Class [A-2], Class [A-3-1], Class [A-3-2], Class [A-AB], Class [A-4A], Class [A-4B], Class [A-J], Class [B], Class [C], Class [D], Class [E], Class [F], Class [G] and Class [H] Certificates and the Class A-3-1FL Regular Interest is reduced to zero, the Sole Certificateholder shall have the right to exchange all of its Certificates (other than the Residual Certificates) for all of the Mortgage Loans and each REO Property remaining in the Trust as contemplated by clause (iv) of Section 10.1(a) by giving written notice to all the parties hereto no later than 60 days prior to the anticipated date of exchange and upon the delivery to the Trustee and the Depositor of an Opinion of Counsel (which opinion shall be at the expense of such Sole Certificateholders) stating that such exchange will be a “qualified liquidation” of each REMIC Pool under Section 860F of the Code.  In the event that the Sole Certificateholder elects to exchange all of its Certificates (other than the Residual Certificates) for all of the Mortgage Loans and each REO Property remaining in the Trust in accordance with the preceding sentence, such Sole Certificateholder, not later than the Distribution Date on which the final distribution on the Certificates is to occur, shall deposit in the Certificate Account an amount in immediately available funds equal to all amounts due and owing to the Depositor, the Master Servicer, the Special Servicer and the Trustee hereunder through the date of the liquidation of the Trust that may be withdrawn from the Certificate Account, or an escrow account acceptable to the respective parties hereto or that may be withdrawn from the Distribution Accounts pursuant to


 


 




  





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this Agreement but only to the extent that such amounts are not already on deposit in the Certificate Account. Upon confirmation that such final deposits have been made and following the surrender of all its Certificates (other than the Residual Certificates) on such Distribution Date, the Trustee shall, upon receipt of a Request for Release from the Master Servicer, release or cause to be released to the Sole Certificateholder or any designee thereof, the Mortgage Files for the remaining Mortgage Loans and shall execute all assignments, endorsements and other instruments furnished to it by the Sole Certificateholder as shall be necessary to effectuate transfer of the Mortgage Loans and REO Properties remaining in the Trust, and the Trust shall be liquidated in accordance with Section 10.2. For federal income tax purposes, the Sole Certificateholder shall be deemed to have purchased the assets of REMIC I, the Class A-3-1FL Grantor Trust and the Class EI Grantor Trust, to the extent then outstanding, for an amount equal to the remaining Certificate Balance of its Certificates (other than the Residual Certificates), plus accrued, unpaid interest with respect thereto, and the Trustee shall credit such amounts against amounts distributed in respect of such Certificates.  The remaining Mortgage Loans and REO Properties are deemed distributed to the Sole Certificateholder in liquidation of the Trust pursuant to Section 10.2.]


 


(e) Upon the termination of the Trust, any funds or other property held by the Class A-3-1FL Grantor Trust shall be distributed to the Holders of the Class A-3-1FL Regular Interest and any Excess Interest held by the Class EI Grantor Trust shall be distributed to the Class [EI] Certificateholders, on a pro rata basis.


 


Section 10.2 Procedure Upon Termination of Trust


 


(a) Notice of any termination pursuant to the provisions of Section 10.1, specifying the Distribution Date upon which the final distribution shall be made, shall be given promptly by the Trustee by first class mail to the Paying Agent, the Rating Agencies, the Swap Counterparty, the Class R-I, Class R-II, REMIC Regular, Class [A-3-1FL] and Class [EI] Certificateholders mailed no later than ten days prior to the date of such termination.  Such notice shall specify (A) the Distribution Date upon which final distribution on the Class R-I, Class R-II, REMIC Regular, Class [A-3-1FL] and Class [EI] Certificates will be made, and upon presentation and surrender of the Class [R-I], Class [R-II], REMIC Regular, Class [A-3-1FL] and Class [EI] Certificates at the office or agency of the Certificate Registrar therein specified, and (B) that the Record Date otherwise applicable to such Distribution Date is not applicable, distribution being made only upon presentation and surrender of the Class [R-I], Class [R-II], REMIC Regular, Class [A-3-1FL] and Class [EI] Certificates at the office or agency of the Certificate Registrar therein specified.  The Trustee shall give such notice to the Depositor and the Certificate Registrar at the time such notice is given to Holders of the Class [R-I], Class [R-II], REMIC Regular, Class [A-3-1FL] and Class [EI] Certificates.  Upon any such termination, the duties of the Certificate Registrar with respect to the Class [R-I], Class [R-II], REMIC Regular, Class [A-3-1FL] and Class [EI] Certificates shall terminate and the Trustee shall terminate, or request the Master Servicer and the Paying Agent to terminate, the Certificate Accounts and the Distribution Account and any other account or fund maintained with respect to the Certificates, subject to the Paying Agent’s obligation hereunder to hold all amounts payable to the Class [R-I], Class [R-II], REMIC Regular, Class [A-3-1FL] and Class [EI] Certificateholders in trust without interest pending such payment.


 









  





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(b) In the event that all of the Holders do not surrender their certificates evidencing the Class [R-I], Class [R-II], REMIC Regular, Class [A-3-1FL] and Class [EI] Certificates for cancellation within three months after the time specified in the above-mentioned written notice, the Certificate Registrar shall give a second written notice to the remaining Class [R-I], Class [R-II], REMIC Regular, Class [A-3-1FL] and Class [EI] Certificateholders to surrender their certificates evidencing the Class [R-I], Class [R-II], REMIC Regular, Class [A-3-1FL] and Class [EI] Certificates for cancellation and receive the final distribution with respect thereto.  If within one year after the second notice any Class [R-I], Class [R-II], REMIC Regular, Class [A-3-1FL] and Class [EI] Certificates shall not have been surrendered for cancellation, the Certificate Registrar may take appropriate steps to contact the remaining Class [R-I], Class [R-II], REMIC Regular, Class [A-3-1FL] and Class [EI] Certificateholders concerning surrender of such certificates, and the cost thereof shall be paid out of the amounts distributable to such Holders.  If within two years after the second notice any such Class [R-I], Class [R-II], REMIC Regular, Class [A-3-1FL] and Class [EI] Certificates shall not have been surrendered for cancellation, the Paying Agent shall, subject to applicable state law relating to escheatment, hold all amounts distributable to such Holders for the benefit of such Holders.  No interest shall accrue on any amount held by the Trustee and not distributed to a Class [R-I], Class [R-II], REMIC Regular, Class [A-3-1FL] or Class [EI] Certificateholder due to such Certificateholder’s failure to surrender its Certificate(s) for payment of the final distribution thereon in accordance with this Section.  Any money held by the Paying Agent pending distribution under this Section 10.2 after 90 days after the adoption of a plan of complete liquidation shall be deemed for tax purposes to have been distributed from the REMIC Pools, the Class A-3-1FL Grantor Trust and the Class EI Grantor Trust and shall be beneficially owned by the related Holder.


 


Section 10.3 Additional Trust Termination Requirements


 


(a) The Trust and each REMIC Pool shall be terminated in accordance with the following additional requirements, unless at the request of the Master Servicer or the Class [R-I] Certificateholders, as the case may be, the Trustee seeks, and the Paying Agent subsequently receives an Opinion of Counsel (at the expense of the Master Servicer or the Class [R-I] Certificateholders, as the case may be), addressed to the Depositor, the Trustee and the Paying Agent to the effect that the failure of the Trust to comply with the requirements of this Section 10.3 will not (i) result in the imposition of taxes on “prohibited transactions” on any REMIC Pool under the REMIC Provisions or (ii) cause any REMIC Pool to fail to qualify as a REMIC at any time that any Certificates are outstanding:


 


(i) Within 89 days prior to the time of the making of the final payment on the REMIC III, Class [A-3-1FL] and Class [EI] Certificates the Trustee shall prepare and (on behalf of REMIC I, REMIC II and REMIC III) shall adopt a plan of complete liquidation of each REMIC Pool, meeting the requirements of a qualified liquidation under the REMIC Provisions, which plan need not be in any special form and the date of which, in general, shall be the date of the notice specified in Section 10.2(a) and shall be specified in a statement attached to the final federal income tax return of each REMIC Pool;


 


(ii) At or after the date of adoption of such a plan of complete liquidation and at or prior to the time of making of the final payment on the REMIC III, Class [A-3-1FL]


 









  





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and Class [EI] Certificates, the Trustee shall sell all of the assets of the Trust for cash at the Termination Price; provided that if the Holders of the Class [R-I] Certificates are purchasing the assets of the Trust, the amount to be paid by such Holders may be paid net of the amount to be paid to such Holders as final distributions on any Certificates held by such Holders;


 


(iii) At the time of the making of the final payment on the Certificates, the Paying Agent shall distribute or credit, or cause to be distributed or credited, (A) to the Holders of the Class [R-I] Certificates all assets of REMIC I remaining after such final payment of the REMIC I Regular Interests, (B) to the Holders of the Class [R-II] Certificates all remaining assets of REMIC II after such final payment of the REMIC II Regular Interests and (C) to the Holders of the Class [R-III] Certificates all remaining assets of REMIC III (in each case other than cash retained to meet claims), and the Trust shall terminate at that time; and


 


(iv) In no event may the final payment on the REMIC I Regular Interests, REMIC II Regular Interests, REMIC Regular Certificates and the Class A-3-1FL Regular Interest or the final distribution or credit to the Holders of the Residual Certificates, respectively, be made after the 89th day from the date on which the plan of complete liquidation is adopted.


 


(b) By their acceptance of the Class [R-I], Class [R-II] or [R-III] Certificates, respectively, the Holders thereof hereby (i) authorize the Trustee to take such action as may be necessary to adopt a plan of complete liquidation of each REMIC Pool and (ii) agree to take such other action as may be necessary to adopt a plan of complete liquidation of the Trust upon the written request of the Depositor, which authorization shall be binding upon all successor Class [R-I], Class [R-II] and Class [R-III] Certificateholders, respectively.


 


ARTICLE XI


 


RIGHTS OF CERTIFICATEHOLDERS


 


The provisions of this Article XI shall apply to each of the REMIC Regular Certificateholders, Class [A-3-1FL] Certificateholders and Residual Certificateholders to the extent appropriate.


 


Section 11.1 Limitation on Rights of Holders


 


(a) The death or incapacity of any Certificateholder shall not operate to terminate this Agreement or the Trust, nor entitle such Certificateholder’s legal representatives or heirs to claim an accounting or take any action or proceeding in any court for a partition or winding up of the Trust, nor otherwise affect the rights, obligations and liabilities of the parties hereto or any of them.


 


(b) Except as otherwise expressly provided herein, no Certificateholder, solely by virtue of its status as a Certificateholder, shall have any right to vote or in any manner otherwise control the Master Servicer or operation and management of the Trust, or the


 









  





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obligations of the parties hereto, nor shall anything herein set forth, or contained in the terms of the Certificates, be construed so as to constitute the Certificateholders from time to time as partners or members of an association, nor shall any Certificateholder be under any liability to any third Person by reason of any action taken by the parties to this Agreement pursuant to any provision hereof.


 


(c) If a Certificateholder is also a Mortgagor with respect to any Mortgage Loan, such Certificateholder shall have no right to vote with respect to any matters concerning such Mortgage Loan.  In addition, if a Certificateholder is also the Special Servicer, such Certificateholder shall have no right to vote, in its capacity as a Certificateholder, with respect to compensation to the Special Servicer or any waiver of a default with respect to a Mortgage Loan.


 


(d) No Certificateholder, solely by virtue of its status as Certificateholder, shall have any right by virtue or by availing of any provision of this Agreement to institute any suit, action or proceeding in equity or at law upon or under or with respect to this Agreement unless the Holders of Certificates evidencing not less than 50% of the Aggregate Principal Amount of the Certificates then outstanding shall have made written request upon the Trustee to institute such action, suit or proceeding in its own name as Trustee hereunder and shall have offered to the Trustee such reasonable indemnity as it may require against the cost, expenses and liabilities to be incurred therein or thereby, and the Trustee, for sixty days after its receipt of such notice, request and offer of indemnity, shall have neglected or refused to institute any such action, suit or proceeding and no direction inconsistent with such written request has been given the Trustee during such sixty-day period by such Certificateholders; it being understood and intended, and being expressly covenanted by each Certificateholder with every other Certificateholder and the Trustee, that no one or more Holders of Certificates shall have any right in any manner whatever by virtue or by availing of any provision of this Agreement to affect, disturb or prejudice the rights of the Holders of any other of such Certificates, or to obtain or seek to obtain priority over or preference to any other such Holder, or to enforce any right under this Agreement, except in the manner herein provided and for the benefit of all Certificateholders.  For the protection and enforcement of the provisions of this Section, each and every Certificateholder and the Trustee shall be entitled to such relief as can be given either at law or in equity.


 


Section 11.2 Access to List of Holders


 


(a) If the Paying Agent is not acting as Certificate Registrar, the Certificate Registrar will furnish or cause to be furnished to the Trustee and the Paying Agent, within 15 days after receipt by the Certificate Registrar of a request by the Trustee or the Paying Agent, as the case may be, in writing, a list, in such form as the Trustee or the Paying Agent, as the case may be, may reasonably require, of the names and addresses of the Certificateholders of each Class as of the most recent Record Date.


 


(b) If the Depositor, the Operating Adviser, the Special Servicer, the Master Servicer, the Trustee or three or more Holders (hereinafter referred to as “applicants,” with a single Person which (together with its Affiliates) is the Holder of more than one Class of Certificates being viewed as a single “applicant” for these purposes) apply in writing to the Paying Agent and such application states that the applicants desire to communicate with other


 









  





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Holders with respect to their rights under this Agreement or under the Certificates and is accompanied by a copy of the communication which such applicants propose to transmit, then the Paying Agent shall, within five Business Days after the receipt of such application, send, at such Person’s expense, the written communication proffered by the applicants to all Certificateholders at their addresses as they appear in the Certificate Register.


 


(c) Every Holder, by receiving and holding a Certificate, agrees with the Depositor, the Certificate Registrar, the Paying Agent, the Master Servicer, the Special Servicer and the Trustee that neither the Depositor, the Certificate Registrar, the Paying Agent, the Master Servicer, the Special Servicer nor the Trustee shall be held accountable by reason of the disclosure of any such information as to the names and addresses of the Certificateholders hereunder, regardless of the source from which such information was derived.


 


Section 11.3 Acts of Holders of Certificates


 


(a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Agreement to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Depositor and the Paying Agent.  Such instrument or instruments (as the action embodies therein and evidenced thereby) are herein sometimes referred to as an “Act” of the Holders signing such instrument or instruments.  Proof of execution of any such instrument or of a writing appointing any such agents shall be sufficient for any purpose of this Agreement and conclusive in favor of the Trustee, the Depositor and the Paying Agent, if made in the manner provided in this Section.  The Trustee agrees to promptly notify the Depositor of any such instrument or instruments received by it, and to promptly forward copies of the same.


 


(b) The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by the certificate of any notary public or other officer authorized by law to take acknowledgments or deeds, certifying that the individual signing such instrument or writing acknowledged to such notary public or other officer the execution thereof.  Whenever such execution is by an officer of a corporation or a member of a partnership on behalf of such corporation or partnership, such certificate or affidavit shall also constitute sufficient proof of such officer’s or member’s authority.  The fact and date of the execution of any such instrument or writing, or the authority of the individual executing the same, may also be proved in any other manner which the Trustee deems sufficient.


 


(c) The ownership of Certificates (notwithstanding any notation of ownership or other writing thereon made by anyone other than the Trustee) shall be proved by the Certificate Register, and neither the Trustee nor the Depositor nor the Paying Agent shall be affected by any notice to the contrary.


 


(d) Any request, demand, authorization, direction, notice, consent, waiver or other action by the Holder of any Certificate shall bind every future Holder of the same Certificate and the Holder of every Certificate issued upon the registration of transfer thereof or


 


 




  





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in exchange therefor or in lieu thereof, in respect of anything done, omitted or suffered to be done by the Trustee, the Paying Agent or the Depositor in reliance thereon, whether or not notation of such action is made upon such Certificate.


 


ARTICLE XII


 


REMIC AND GRANTOR TRUST ADMINISTRATION


 


The provisions of this Article XII shall apply to each REMIC Pool, the Class A-3-1FL Grantor Trust and the Class EI Grantor Trust, as applicable.


 


Section 12.1 REMIC Administration


 


(a) An election will be made by the Paying Agent on behalf of the Trustee to treat the segregated pool of assets consisting of the Mortgage Loans (other than Excess Interest payable thereon), such amounts with respect thereto as shall from time to time be held in the Certificate Accounts, the Interest Reserve Accounts, the Distribution Account and the Reserve Account, the Insurance Policies and any related amounts REO Account and any related REO Properties as a REMIC (“REMIC I”) under the Code.  Such election will be made on Form 1066 or other appropriate federal tax or information return or any appropriate state return for the taxable year ending on the last day of the calendar year in which the REMIC I Interests are issued.  For purposes of such election, the REMIC I Regular Interests shall each be designated as a separate class of “regular interests” in REMIC I and the Class [R-I] Certificates shall be designated as the sole class of “residual interests” in REMIC I.


 


An election will be made by the Paying Agent to treat the segregated pool of assets consisting of the REMIC I Regular Interests as a REMIC (“REMIC II”) under the Code.  Such election will be made on Form 1066 or other appropriate federal tax or information return or any appropriate state return for the taxable year ending on the last day of the calendar year in which the REMIC II Interests are issued.  For the purposes of such election, the REMIC II Regular Interests shall be designated as the “regular interests” in REMIC II and the Class [R-II] Certificates shall be designated as the sole class of the “residual interests” in REMIC II.


 


An election will be made by the Paying Agent to treat the segregated pool of assets consisting of the REMIC II Regular Interests as a REMIC (“REMIC III”) under the Code.  Such election will be made on Form 1066 or other appropriate federal tax or information return or any appropriate state return for the taxable year ending on the last day of the calendar year in which the REMIC III Certificates are issued.  For purposes of such election, the Class [A-1], Class [A-1A], Class [A-2], Class [A-3-1], Class [A-3-2], Class [A-AB], Class [A-4A], Class [A-4B], Class [A-1A], Class [A-J], Class [B], Class [C], Class [D], Class [E], Class [F], Class [G], Class [H], Class [J], Class [K], Class [L], Class [M], Class [N], Class [O], Class [P], Class [X-1], Class [X-2] and Class [X-Y] Certificates and the Class A-3-1FL Regular Interest, shall be designated as the “regular interests” in REMIC III and the Class [R-III] Certificates shall be designated as the sole class of “residual interests” in REMIC III.


 









  





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The Trustee and the Paying Agent shall not permit the creation of any “interests” (within the meaning of Section 860G of the Code) in any of the REMIC Pools other than the REMIC I Regular Interests, the REMIC II Regular Interests, the REMIC III Regular Interests and the Residual Certificates.


 


(b) The Closing Date is hereby designated as the “Startup Day” of each REMIC Pool within the meaning of Section 860G(a)(9) of the Code.


 


(c) The Paying Agent shall pay all routine tax related expenses (not including any taxes, however denominated, including any additions to tax, penalties and interest) of each REMIC Pool, excluding any professional fees or extraordinary expenses related to audits or any administrative or judicial proceedings with respect to each REMIC Pool that involve the Internal Revenue Service or state tax authorities.


 


(d) The Paying Agent shall cause to be prepared, signed, and timely filed with the Internal Revenue Service, on behalf of each REMIC Pool, an application for a taxpayer identification number for such REMIC Pool on Internal Revenue Service Form SS-4.  The Paying Agent, upon receipt from the Internal Revenue Service of the Notice of Taxpayer Identification Number Assigned, shall promptly forward a copy of such notice to the Depositor and the Master Servicer.  The Paying Agent shall prepare and file Form 8811 on behalf of each REMIC Pool and shall designate an appropriate Person to respond to inquiries by or on behalf of Certificateholders for original issue discount and related information in accordance with applicable provisions of the Code.


 


(e) The Paying Agent shall prepare and file, or cause to be prepared and filed, all of each REMIC Pool’s federal and state income or franchise tax and information returns as such REMIC Pool’s direct representative, and the Trustee shall sign such returns; the expenses of preparing and filing such returns shall be borne by the Paying Agent, except that if additional state tax returns are required to be filed in more than three states, the Paying Agent shall be entitled, with respect to any such additional filings, to (i) be paid a reasonable fee and (ii) receive its reasonable costs and expenses, both as amounts reimbursable pursuant to Section 5.2(a)(vi) hereof.  The Depositor, the Master Servicer and the Special Servicer shall provide on a timely basis to the Paying Agent or its designee such information with respect to the Trust or any REMIC Pool as is in its possession, which the Depositor or the Master Servicer and the Special Servicer has received or prepared by virtue of its role as Depositor or Master Servicer and Special Servicer hereunder and reasonably requested by the Paying Agent to enable it to perform its obligations under this subsection, and the Paying Agent shall be entitled to conclusively rely on such information in the performance of its obligations hereunder.  The Depositor shall indemnify the Trust, the Trustee and the Paying Agent or any liability or assessment against any of them or cost or expense (including attorneys’ fees) incurred by them resulting from any error resulting from bad faith, negligence, or willful malfeasance of the Depositor in providing any information for which the Depositor is responsible for preparing.  The Master Servicer and the Special Servicer shall indemnify the Trustee, the Paying Agent, and the Depositor for any liability or assessment against the Trustee, the Depositor, the Paying Agent or any REMIC Pool and any expenses incurred in connection with such liability or assessment (including attorneys’ fees) resulting from any error in any of such tax or information returns resulting from errors in the information provided by the Master Servicer or the Special Servicer, as the case may be,


 









  





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which errors were caused by the negligence, willful misconduct or bad faith of the Master Servicer or the Special Servicer, as the case may be.  The Paying Agent shall indemnify the Master Servicer, the Special Servicer, the Depositor or any REMIC Pool for any expense incurred by the Master Servicer, the Special Servicer, the Depositor and any REMIC Pool resulting from any error in any of such tax or information returns resulting from errors in the preparation of such returns caused by the negligence, willful misconduct or bad faith of the Paying Agent.  Each indemnified party shall immediately notify the indemnifying party or parties of the existence of a claim for indemnification under this Section 12.1(e), and provide the indemnifying party or parties, at the expense of such indemnifying party or parties, an opportunity to contest the tax or assessment or expense giving rise to such claim, provided that the failure to give such notification rights shall not affect the indemnification rights in favor of any REMIC Pool under this Section 12.1(e).  Any such indemnification shall survive the resignation or termination of the Master Servicer, the Paying Agent or the Special Servicer, or the termination of this Agreement.


 


(f) The Paying Agent shall perform on behalf of each REMIC Pool all reporting and other tax compliance duties that are the responsibility of such REMIC Pool under the Code, REMIC Provisions, or other compliance guidance issued by the Internal Revenue Service or any state or local taxing authority.  Among its other duties, the Paying Agent shall provide (i) to the Internal Revenue Service or other Persons (including, but not limited to, the Transferor of a Residual Certificate, to a Disqualified Organization or to an agent that has acquired a Residual Certificate on behalf of a Disqualified Organization) such information as is necessary for the application of any tax relating to the transfer of a Residual Certificate to any Disqualified Organization and (ii) to the Certificateholders such information or reports as are required by the Code or REMIC Provisions.


 


(g) The Paying Agent shall forward to the Depositor copies of quarterly and annual REMIC tax returns and Internal Revenue Service Form 1099 information returns and such other information within the control of the Paying Agent as the Depositor may reasonably request in writing.  Moreover, the Paying Agent shall forward to each Certificateholder such forms and furnish such information within its control as are required by the Code to be furnished to them, shall prepare and file with the appropriate state authorities as may to the actual knowledge of a Responsible Officer of the Paying Agent be required by applicable law and shall prepare and disseminate to Certificateholders Internal Revenue Service Forms 1099 (or otherwise furnish information within the control of the Paying Agent) to the extent required by applicable law.  The Paying Agent will make available to any Certificateholder any tax related information required to be made available to Certificateholders pursuant to the Code and any regulations thereunder.


 


(h) The Holder of more than 50% of the Percentage Interests in Class [R-I], Class [R-II] and Class [R-III] Certificates, respectively (or of the greatest percentage of such Class [R-I], Class [R-II] and Class [R-III] Certificates if no Holder holds more than 50% thereof), shall be the applicable REMIC Pool’s Tax Matters Person.  The duties of the Tax Matters Person for each of the REMIC Pools are hereby delegated to the Paying Agent and each Residual Certificateholder, by acceptance of its Residual Certificate, agrees, on behalf of itself and all successor holders of such Residual Certificate, to such delegation to the Paying Agent as their agent and attorney in fact.  If the Code or applicable regulations prohibits the Paying Agent


 


 




  





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from signing any applicable Internal Revenue Service, court or other administrative documents or from acting as Tax Matters Person (as an agent or otherwise), the Paying Agent shall take whatever action is necessary for the signing of such documents and designation of a Tax Matters Person, including the designation of such Residual Certificateholder.  The Paying Agent shall not be required to expend or risk its own funds or otherwise incur any other financial liability in the performance of its duties hereunder or in the exercise of any of its rights or powers (except to the extent of the ordinary expenses of performing its duties under this Agreement), if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.


 


(i) The Trustee, the Paying Agent, the Holders of the Residual Certificates, the Master Servicer and the Special Servicer shall each exercise reasonable care, to the extent within its control, and with respect to each of the Trustee, Paying Agent, the Master Servicer and the Special Servicer, within the scope of its express duties, and shall each act in accordance with this Agreement and the REMIC Provisions in order to create and maintain the status of each REMIC Pool as a REMIC and each of the Class A-3-1FL Grantor Trust and the Class EI Grantor Trust as a grantor trust or, as appropriate, adopt a plan of complete liquidation with respect to each REMIC Pool.


 


(j) The Trustee, the Paying Agent, the Master Servicer, the Special Servicer, and the Holders of Residual Certificates shall not take any action or fail to take any action or cause any REMIC Pool to take any action or fail to take any action if any of such Persons knows or could, upon the exercise of reasonable diligence, know, that, under the REMIC Provisions such action or failure, as the case may be, could (i) endanger the status of any REMIC Pool as a REMIC or (ii) result in the imposition of a tax upon any REMIC Pool (including but not limited to the tax on prohibited transactions as defined in Section 860F(a)(2)) of the Code or (iii) endanger the status of the Class A-3-1FL Grantor Trust or the Class EI Grantor Trust as a grantor trust unless the Trustee and the Paying Agent have received an Opinion of Counsel (at the expense of the party seeking to take such action) to the effect that the contemplated action will not endanger such status or result in the imposition of such a tax.  Any action required under this section which would result in an unusual or unexpected expense shall be undertaken at the expense of the party seeking the Trustee, the Paying Agent or the Holders of the Residual Certificates to undertake such action.


 


(k) In the event that any tax is imposed on the REMIC I, REMIC II or REMIC III, including, without limitation, “prohibited transactions” taxes as defined in Section 860F(a)(2) of the Code, any tax on “net income from foreclosure property” as defined in Section 860G(c) of the Code, any taxes on contributions to the REMIC I, REMIC II or REMIC III after the Startup Day pursuant to Section 860G(d) of the Code, and any other tax imposed by the Code or any applicable provisions of state or local tax laws (other than any tax permitted to be incurred by the Special Servicer pursuant to Section 9.14(e)), such tax, together with all incidental costs and expenses (including, without limitation, penalties and reasonable attorneys’ fees), shall be charged to and paid by:  (i) the Paying Agent, if such tax arises out of or results from a breach of any of its obligations under this Agreement, which breach constitutes negligence, willful misconduct or bad faith; (ii) the Special Servicer, if such tax arises out of or results from a breach by the Special Servicer of any of its obligations under this Agreement, which breach constitutes negligence, willful misconduct or bad faith; (iii) the Master Servicer, if such tax


 









  





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arises out of or results from a breach by the Master Servicer of any of its obligations under this Agreement, which breach constitutes negligence, willful misconduct or bad faith; and (iv) the Trust in all other instances.  Any tax permitted to be incurred by the Special Servicer pursuant to Section 9.14(e) shall be charged to and paid by the Trust from the net income generated on the related REO Property.  Any such amounts payable by the Trust in respect of taxes shall be paid by the Paying Agent out of amounts on deposit in the Distribution Account.


 


(l) The Paying Agent and, to the extent that records are maintained by the Master Servicer or the Special Servicer in the normal course of their businesses, the Master Servicer and the Special Servicer shall, for federal income tax purposes, maintain books and records with respect to each REMIC Pool on a calendar year and on an accrual basis, and with respect to the Class A-3-1FL Grantor Trust and the Class EI Grantor Trust on the cash or accrual method and so as to enable reporting to Holders of the Class [A-3-1FL] Certificates and the Class [EI] Certificates, respectively, based on their annual accounting period.  Notwithstanding anything to the contrary contained herein, except to the extent provided otherwise in the Mortgage Loans or in the Mortgages, all amounts collected on the Mortgage Loans shall, for federal income tax purposes, be allocated first to interest due and payable on the Mortgage Loans (including interest on overdue interest, other than additional interest at a penalty rate payable following a default).  The books and records must be sufficient concerning the nature and amount of each REMIC Pool’s investments to show that such REMIC Pool has complied with the REMIC Provisions.


 


(m) Neither the Trustee, the Paying Agent, the Master Servicer nor the Special Servicer shall enter into any arrangement by which any REMIC Pool will receive a fee or other compensation for services.


 


(n) In order to enable the Paying Agent to perform its duties as set forth herein, the Depositor shall provide, or cause to be provided, to the Paying Agent within ten days after the Closing Date all information or data that the Paying Agent reasonably determines to be relevant for tax purposes on the valuations and offering prices of the Certificates, including, without limitation, the yield, prepayment assumption, issue prices and projected cash flows of the Certificates, as applicable, and the projected cash flows of the Mortgage Loans.  Thereafter, the Depositor shall provide to the Paying Agent or its designee, promptly upon request therefor, any such additional information or data within the Depositor’s possession or knowledge that the Paying Agent may, from time to time, reasonably request in order to enable the Paying Agent to perform its duties as set forth herein.  The Paying Agent is hereby directed to use any and all such information or data provided by the Depositor in the preparation of all federal and state income or franchise tax and information returns and reports for each REMIC Pool to Certificateholders as required herein.  The Depositor hereby indemnifies the Trustee, the Paying Agent and each REMIC Pool for any losses, liabilities, damages, claims, expenses (including attorneys’ fees) or assessments against the Trustee, the Paying Agent and each REMIC Pool arising from any errors or miscalculations of the Paying Agent pursuant to this Section that result from any failure of the Depositor to provide, or to cause to be provided, accurate information or data to the Paying Agent (but not resulting from the methodology employed by the Paying Agent) on a timely basis and such indemnification shall survive the termination of this Agreement and the termination or resignation of the Paying Agent.


 


 




  





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The Paying Agent agrees that all such information or data so obtained by it are to be regarded as confidential information and agrees that it shall use its reasonable best efforts to retain in confidence, and shall ensure that its officers, employees and representatives retain in confidence, and shall not disclose, without the prior written consent of the Depositor, any or all of such information or data, or make any use whatsoever (other than for the purposes contemplated by this Agreement) of any such information or data without the prior written consent of the Depositor, unless such information is generally available to the public (other than as a result of a breach of this Section 12.1(n)) or is required by law or applicable regulations to be disclosed or is disclosed (i) to independent auditors and accountants, counsel and other professional advisers of the Paying Agent and its parent, or (ii) in connection with its rights and obligations under this Agreement.


 


(o) At all times as may be required by the Code, the Master Servicer will to the extent within its control and the scope of its duties more specifically set forth herein, maintain substantially all of the assets of each REMIC Pool as “qualified mortgages” as defined in Section 860G(a)(3) of the Code and “permitted investments” as defined in Section 860G(a)(5) of the Code.


 


(p) For the purposes of Treasury Regulations Section 1.860G-1(a)(4)(iii), the “latest possible maturity date” for each Class of REMIC I Regular Interests, each Class of REMIC II Regular Interests and each Class of REMIC III Regular Interests is the Final Rated Distribution Date.


 


Section 12.2 Prohibited Transactions and Activities


 


Neither the Trustee, the Paying Agent, the Master Servicer nor the Special Servicer shall permit the sale, disposition or substitution of any of the Mortgage Loans (except in a disposition pursuant to (i) the foreclosure or default of a Mortgage Loan, (ii) the bankruptcy or insolvency of any REMIC Pool, (iii) the termination of any REMIC Pool in a “qualified liquidation” as defined in Section 860F(a)(4) of the Code, or (iv) a substitution pursuant to Article II hereof), nor acquire any assets for the Trust, except as provided in Article II hereof, nor sell or dispose of any investments in the Certificate Accounts or Distribution Account for gain, nor accept any contributions to any REMIC Pool (other than a cash contribution during the 3-month period beginning on the Startup Day), unless it has received an Opinion of Counsel (at the expense of the Person requesting such action) to the effect that such disposition, acquisition, substitution, or acceptance will not (A) affect adversely the status of any REMIC Pool as a REMIC or of the regular interests therein, (B) affect the distribution of interest or principal on the Certificates, (C) result in the encumbrance of the assets transferred or assigned to any REMIC Pool (except pursuant to the provisions of this Agreement) or (D) cause any REMIC Pool to be subject to a tax on “prohibited transactions” or “prohibited contributions” or other tax pursuant to the REMIC Provisions.


 


Section 12.3 Modifications of Mortgage Loans


 


Notwithstanding anything to the contrary in this Agreement, neither the Trustee, the Paying Agent, the Master Servicer nor the Special Servicer shall permit any modification of a Money Term of a Mortgage Loan that is not in default or as to which default is not reasonably


 









  





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foreseeable unless (i) the Trustee, the Special Servicer, Paying Agent and the Master Servicer have received a Nondisqualification Opinion or a ruling from the Internal Revenue Service (at the expense of the party making the request that the Master Servicer or the Special Servicer modify the Mortgage Loan or a Specially Serviced Mortgage Loan) to the effect that such modification would not be treated as an exchange pursuant to Section 1001 of the Code (or, if it would be so treated, would not be treated as a “significant modification” for purposes of Treasury Regulations Section 1.860G-2(b) of the Code) or (ii) such modification meets the requirements set forth in Sections 8.18 or 9.5.


 


Section 12.4 Liability with Respect to Certain Taxes and Loss of REMIC Status


 


In the event that any REMIC Pool fails to qualify as a REMIC, loses its status as a REMIC, or incurs state or local taxes, or tax as a result of a prohibited transaction or prohibited contribution subject to taxation under the REMIC Provisions due to the negligent performance by either the Trustee or the Paying Agent of its respective duties and obligations set forth herein, the Trustee or the Paying Agent, as the case may be, shall be liable to the REMIC Pools and the Holders of the Residual Certificates for any and all losses, claims, damages, liabilities or expenses (“Losses”) resulting from such negligence and relating to the Residual Certificates; provided, however, that the Trustee, or the Paying Agent, as applicable, shall not be liable for any such Losses attributable to the action or inaction of the Master Servicer, the Special Servicer, the Trustee (with respect to the Paying Agent), the Paying Agent (with respect to the Trustee), the Depositor or the Holders of such Residual Certificates nor for any such Losses resulting from any actions or failure to act based upon reliance on an Opinion of Counsel or from misinformation provided by the Master Servicer, the Special Servicer, the Trustee (with respect to the Paying Agent), the Paying Agent (with respect to the Trustee), the Depositor or such Holders of the Residual Certificates on which the Trustee or the Paying Agent, as the case may be, has relied.  The foregoing shall not be deemed to limit or restrict the rights and remedies of the Holders of the Residual Certificates now or hereafter existing at law or in equity.  The Trustee or the Paying Agent shall be entitled to intervene in any litigation in connection with the foregoing and to maintain control over its defense.


 


Section 12.5 Grantor Trust Administration


 


The assets of the Class EI Grantor Trust, consisting of the right to any Excess Interest in respect of the ARD Loan (in the case of the Class [EI] Certificates) and the related amounts in the Excess Interest Sub-account, shall be held by the Trustee for the benefit of the Holders of the Class [EI] Certificates, which Class [EI] Certificates will evidence 100% beneficial ownership of the related assets from and after the Closing Date.  The assets of the Class A-3-1FL Grantor Trust, consisting of the Class A-3-1FL Regular Interest, the Swap Contract and the related amounts in the Floating Rate Account, shall be held by the Trustee for the benefit of the Holders of the Class [A-3-1FL] Certificates, which Class [A-3-1FL] Certificates will evidence 100% beneficial ownership of the related assets from and after the Closing Date.  It is intended that the portions of the Trust consisting of the Class A-3-1FL Grantor Trust and the Class EI Grantor Trust will be treated as grantor trusts for federal income tax purposes, within the meaning of subpart E, part I of subchapter J of the Code, and each of the parties to this Agreement agrees that it will not take any action that is inconsistent with establishing or maintaining such treatment.  Under no circumstances may the Trustee vary the


 









  





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assets of the Class A-3-1FL Grantor Trust or Class EI Grantor Trust so as to take advantage of variations in the market so as to improve the rate of return of Holders of the Class A-3-1FL or Class [EI] Certificates.  The Trustee and the Paying Agent shall be deemed to hold and shall account for the Class A-3-1FL Grantor Trust and the Class EI Grantor Trust separate and apart from the assets of the REMIC I, REMIC II and REMIC III created hereunder.  In furtherance of such intention, the Paying Agent shall furnish or cause to be furnished to the Class A-3-1FL and Class [EI] Certificateholders and shall file, or cause to be filed with the Internal Revenue Service, together with Form 1041 or such other form as may be applicable, information returns with respect to income relating to their shares of the income and expenses of the Class A-3-1FL Grantor Trust and the Class EI Grantor Trust, at the time or times and in the manner required by the Code.


 


ARTICLE XIII


 


EXCHANGE ACT REPORTING AND REGULATION AB COMPLIANCE


 


Section 13.1 Intent of the Parties; Reasonableness


 


Except with respect to Section 13.11, Section 13.12 and Section 13.13, the parties hereto acknowledge and agree that the purpose of Article XIII of this Agreement is to facilitate compliance by the Depositor with the provisions of Regulation AB and related rules and regulations of the Commission.  Neither the Depositor nor the Master Servicer shall exercise its rights to request delivery of information or other performance under these provisions other than in good faith, or (except with respect to Section 13.11, Section 13.12 or Section 13.13) for purposes other than compliance with the Securities Act, the Exchange Act, the Sarbanes-Oxley Act and, in each case, the rules and regulations of the Commission thereunder.  The parties hereto acknowledge that interpretations of the requirements of Regulation AB may change over time, whether due to interpretive guidance provided by the Commission or its staff, consensus among participants in the asset-backed securities markets, advice of counsel, or otherwise, and agree to comply with requests made by the Depositor or the Master Servicer in good faith for delivery of information under these provisions on the basis of evolving interpretations of the requirements of Regulation AB.  In connection with the Certificates, each of the Master Servicer, the Special Servicer, the Primary Servicer, the Trustee and the Paying Agent shall cooperate fully with the Depositor and the Master Servicer, as applicable, to deliver or make available to the Depositor or the Master Servicer, as applicable (including any of their assignees or designees), any and all statements, reports, certifications, records and any other information in its possession and necessary in the good faith determination of the Depositor or the Master Servicer, as applicable, to permit the Depositor to comply with the provisions of Regulation AB, together with such disclosure relating to the Master Servicer, the Special Servicer, or the Primary Servicer, the Trustee and the Paying Agent, as applicable, and any Sub-Servicer, or the Servicing of the Mortgage Loans, reasonably believed by the Depositor or the Master Servicer, as applicable, to be necessary in order to effect such compliance.


 









  





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Section 13.2 Additional Representations and Warranties of the Master Servicer, the Special Servicer, the Primary Servicer and the Paying Agent


 


(a) Each of the Master Servicer, the Special Servicer, the Primary Servicer and the Paying Agent, as applicable, hereby represents and warrants, each as to itself only, to the Depositor and the Underwriters, as of the Time of Sale and as of the date of the Prospectus Supplement under Section 13.3 that, except as disclosed in writing to the Depositor, on or prior to such date:  (i) the Master Servicer, the Special Servicer, the Primary Servicer or the Paying Agent, as applicable, is not aware and has not received notice that any default, early amortization or other performance triggering event has occurred as to any other securitization due to any act or failure to act of the Master Servicer, the Special Servicer, the Primary Servicer or the Paying Agent, respectively, other than as disclosed in the Disclosure Documents; (ii) the Master Servicer, the Special Servicer or the Primary Servicer, as applicable, has not been terminated as servicer, and the Paying Agent has not been terminated, as paying agent, in a commercial mortgage loan securitization, either due to (A) in the case of the Master Servicer, Special Servicer or Primary Servicer, (I) a servicing default, (II) an application of a servicing performance test or trigger or (III) a default in any of its Servicing duties, or (B) in the case of the Paying Agent, a default in any of its Servicing duties, in either case other than as disclosed in the Final Prospectus Supplement; (iii) no material noncompliance with the Servicing Criteria applicable to it under any other commercial mortgage loan securitizations has been disclosed or reported by the Master Servicer, the Special Servicer, the Primary Servicer or the Paying Agent, as applicable, other than as disclosed in the Disclosure Documents; (iv) there is no material risk that the effect on one or more aspects of Servicing resulting from the financial condition of the Master Servicer, the Special Servicer, the Primary Servicer or the Paying Agent, as applicable, could have a material impact on the performance of the Mortgage Loans or the performance of the Certificates, other than as disclosed in the Final Prospectus Supplement; (v) there are no legal or governmental proceedings pending (or known to be contemplated) against the Master Servicer, the Special Servicer, the Primary Servicer, the Paying Agent, or any Sub-Servicer, as applicable, or with respect to any of its property that, in each case, would be material to Certificateholders, other than as disclosed in the Final Prospectus Supplement; (vi) there are no affiliations, relationships or transactions relating to the Master Servicer, the Special Servicer, the Primary Servicer, the Paying Agent or any Sub-Servicer, as applicable, on the one hand, and any of the Depositor, the Trust, any sponsor (as defined in Regulation AB), any Servicer, the Trustee, any originator (as defined in Regulation AB), any significant obligor (as defined in Regulation AB), any enhancement or credit support provider for the Certificates or any other material parties related to the Certificates, as provided for in Item 1119(a) of Regulation AB, on the other hand, other than as disclosed in the Final Prospectus Supplement; and (vii) the Master Servicer, the Special Servicer, the Primary Servicer or the Paying Agent, as applicable, has not failed, in any other commercial mortgage loan securitization, to deliver to the related master servicer or depositor, in a timely, complete and accurate manner, (i) any disclosure of the type required to be delivered pursuant to Section 13.13 or (ii) any reports, certifications and other information of the type required to be delivered by it pursuant to this Article XIII.


 


(b) If so requested by the Depositor on any date following the Time of Sale and the date of the Prospectus Supplement, the Master Servicer, the Special Servicer, the Primary Servicer and the Paying Agent, as the case may be, shall, within five Business Days following such request, confirm in writing the accuracy of the representations and warranties set


 









  





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forth in paragraph (a) of this Section 13.2 or, if any such representation and warranty is not accurate as of the date of such request, provide reasonably adequate disclosure of the pertinent facts, in writing, to the Depositor.


 


Section 13.3 Information to be Provided by the Master Servicer, the Special Servicer, the Primary Servicer and the Paying Agent


 


(a) In connection with the Free Writing Prospectus and the Final Prospectus Supplement (whether delivered by itself or as part of the Private Placement Memorandum), the Master Servicer, the Special Servicer, the Primary Servicer and the Paying Agent (i) as of the Time of Sale and as of the date of the Prospectus Supplement, have each provided to the Depositor, in writing, the information and materials specified in paragraph (b) of this Section 13.3, and (ii) for so long as the Trust is subject to the reporting requirements of the Exchange Act, as promptly as practicable following written notice to or discovery by the Master Servicer, the Special Servicer, the Primary Servicer, the Trustee or the Paying Agent, in each case as to itself, shall provide (and, the Master Servicer, the Special Servicer, the Primary Servicer and the Paying Agent as applicable, shall (a) use reasonable efforts to cause each Sub-Servicer (other than any party to this Agreement) with which it has entered into a servicing relationship on or prior to the Closing Date with respect to the Mortgage Loans and (b) cause each Sub-Servicer (other than any party to this Agreement) with which it has entered into a servicing relationship after the Closing Date with respect to the Mortgage Loans, to provide) to the Depositor (in writing and in form and substance reasonably satisfactory to the Depositor) the information specified in paragraph (c) of this Section 13.3.


 


(b) The Master Servicer, the Special Servicer, the Primary Servicer, the Paying Agent and each Sub-Servicer hereby represents and warrants, each as to itself only, that it has provided such information (as of the Time of Sale and as of the date of the Prospectus Supplement) regarding itself as a servicer of the Mortgage Loans (each of the Master Servicer, the Special Servicer, the Primary Servicer, the Paying Agent and each Sub-Servicer, for purposes of this paragraph, a “Servicer”), as was reasonably requested by the Depositor for the purpose of compliance with Items 1108(b), 1108(c), 1117 and 1119 of Regulation AB.  Such information included:


 


(i) the Servicer’s form of organization;


 


(ii) a description of how long the Servicer has been servicing commercial mortgage loans; to the extent material a general discussion of the Servicer’s experience in servicing assets of any type as well as a more detailed discussion of the Servicer’s experience in, and procedures for, the Servicing function it will perform under this Agreement; to the extent material, information regarding the size, composition and growth of the Servicer’s portfolio of commercial mortgage loans of a type similar to the Mortgage Loans and information on factors related to the Servicer that may be material to any analysis of the Servicing of the Mortgage Loans or the Certificates, as applicable, including, without limitation:


 


(A) whether any prior securitizations of mortgage loans of a type similar to the Mortgage Loans involving the Master Servicer, the Primary


 









  





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Servicer (if applicable) or the Special Servicer have defaulted or experienced an early amortization or other performance triggering event because of the Servicing activities of such Servicer during the three-year period immediately preceding the Closing Date;


 


(B) the extent to which the Servicer outsources any of its Servicing activities;


 


(C) whether there has been previous disclosure of material noncompliance by the Servicer with any Servicing Criteria applicable to them with respect to other securitizations of commercial mortgage loans involving the Servicer as a servicer during the three-year period immediately preceding the Closing Date;


 


(D) whether the Servicer has been terminated as servicer in a commercial mortgage loan securitization, either due to a servicing default or to application of a servicing performance test or trigger or, in the case of the Paying Agent, a default in the performance of its Servicing duties; and


 


(E) such other information as the Depositor reasonably requested for the purpose of compliance with Items 1108(b), 1108(c), 1117 and 1119 of Regulation AB;


 


(iii) a description of any material changes during the three-year period immediately preceding the Closing Date to the Servicer’s policies or procedures with respect to the Servicing function it will perform under this Agreement for mortgage loans of a type similar to the Mortgage Loans;


 


(iv) information regarding the Servicer’s financial condition, to the extent that there is a material risk that an adverse financial event or circumstance involving the Servicer could affect one or more aspects of servicing so as to have a material adverse effect on the performance of the Mortgage Loans or the Certificates;


 


(v) to the extent material, information regarding advances made by the Master Servicer, the Primary Servicer (if applicable) or the Special Servicer on such Servicer’s overall servicing portfolio of commercial mortgage loans for the three-year period immediately preceding the Closing Date, which may be limited to a statement by an authorized officer of such Servicer to the effect that such Servicer has made all advances required to be made on commercial mortgage loans serviced by it during such period, or, if such statement would not be accurate, information regarding the percentage and type of advances not made as required, and the reasons for such failure to advance;


 


(vi) a description, to the extent material, of the Master Servicer, the Primary Servicer (if applicable) or the Special Servicer’s processes and procedures designed to address any special or unique factors involved in servicing loans of a similar type as the Mortgage Loans; and


 









  





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(vii) a description, to the extent material, of the Master Servicer, the Primary Servicer (if applicable) or the Special Servicer’s processes for handling delinquencies, losses, bankruptcies and recoveries, such as through liquidation of mortgaged properties, sale of defaulted mortgage loans or workouts.


 


(c) For so long as the Trust is subject to the reporting requirements of the Exchange Act, the Master Servicer, the Special Servicer, the Primary Servicer, the Trustee and the Paying Agent shall (and each of the Master Servicer, the Special Servicer, the Primary Servicer, the Trustee and the Paying Agent, as applicable, shall (a) use reasonable efforts to cause each Sub-Servicer (other than any party to this Agreement) with which it has entered into a servicing relationship on or prior to the Closing Date with respect to the Mortgage Loans and (b) cause each Sub-Servicer (other than any party to this Agreement) with which it has entered into a servicing relationship after the Closing Date with respect to the Mortgage Loans, to) (i) notify the Depositor in writing of (A) any litigation or governmental proceedings pending against the Master Servicer, the Special Servicer, the Primary Servicer, the Trustee, the Paying Agent or such Sub-Servicer, as the case may be, or with respect to any of its property, that, in each such case, would be material to Certificateholders and (B) any affiliations or relationships that develop following the Closing Date between the Master Servicer, the Special Servicer, the Primary Servicer, the Trustee or the Paying Agent (or, if applicable, any Sub-Servicer) (and any other parties identified in writing by the requesting party) and the Master Servicer, the Special Servicer, the Primary Servicer, the Trustee or the Paying Agent (or, if applicable, any Sub-Servicer) (and any other parties identified in writing by the requesting party), as the case may be, as such affiliation or relationship relates to the Certificates and (ii) provide to the Depositor a description of such legal proceedings, affiliations or relationships, in each case, in a form that would enable the Depositor to satisfy its reporting obligations under Item 1117 or 1119 of Regulation AB, as applicable.


 


(d) In connection with the succession to the Master Servicer, the Special Servicer, the Primary Servicer, any Additional Servicer, any Sub-Servicer or the Trustee as servicer or trustee under this Agreement by any Person (i) into which the Master Servicer, the Special Servicer, the Primary Servicer, any Additional Servicer, any Sub-Servicer or the Trustee, as the case may be, may be merged or consolidated, or (ii) which may be appointed as a successor to the Master Servicer, the Special Servicer, the Primary Servicer, any Additional Servicer, any Sub-Servicer or the Trustee, as the case may be, the Master Servicer, the Special Servicer, the Primary Servicer, any Additional Servicer, any Sub-Servicer or the Trustee, as the case may be, shall (and each of the Master Servicer, the Special Servicer, the Primary Servicer or the Trustee, as applicable, shall (a) use reasonable efforts to cause each Additional Servicer and each Sub-Servicer (other than any party to this Agreement) with which it has entered into a servicing relationship on or prior to the Closing Date with respect to the Mortgage Loans and (b) cause each Additional Servicer and each Sub-Servicer (other than any party to this Agreement) with which it has entered into a servicing relationship after the Closing Date with respect to the Mortgage Loans, to) provide to the Depositor, at least 15 calendar days prior to the effective date of such succession or appointment, as long as such disclosure prior to such effective date would not be violative of any applicable law or confidentiality agreement, otherwise no later than the effective date of such succession or appointment, (x) written notice to the Depositor of such succession or appointment and (y) in writing and in form and substance reasonably satisfactory to the Depositor, all information reasonably requested by the Depositor so that it may comply


 









  





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with its reporting obligation under Item 6.02 of Form 8-K as it relates to the Servicing Function with respect to any class of Certificates.


 


(e) On the Closing Date, each Servicer shall deliver to the Depositor and the Underwriters, with respect to the disclosure provided by such Servicer for inclusion in the Disclosure Documents pursuant to this Section 13.3, (i) a 10b-5 legal opinion addressed to the Depositor and the Underwriters, in form and from counsel reasonably acceptable to the Depositor and the Underwriters, as to such disclosure and (ii) a legal opinion addressed to the Depositor and the Underwriters, in form and from counsel reasonably acceptable to the Depositor and the Underwriters, that such disclosure complies as to form with the applicable requirements of Regulation AB.


 


Section 13.4 Information to be Provided by the Trustee


 


(a) In connection with the Disclosure Documents, the Trustee has provided the information and materials specified in paragraph (b) of this Section 13.4.


 


(b) The Trustee provided such information regarding the Trustee as the Depositor requested for the purpose of compliance with Item 1108(c)(7) and Item 1109 of Regulation AB.  Such information included:


 


(i) the Trustee’s name and form of organization;


 


(ii) a description of the extent to which the Trustee has had prior experience serving as a trustee for asset-backed securities transactions involving similar pool assets, if applicable;


 


(iii) a description of the Trustee’s duties and responsibilities regarding the Certificates under applicable law; and


 


(iv) a description of the Trustee’s material arrangements regarding the safekeeping and preservation of the assets, such as the physical promissory notes, and procedures to reflect the segregation of the assets from other serviced assets of the Trust.


 


(c) On the Closing Date, the Trustee shall deliver to the Depositor and the Underwriters, with respect to the disclosure provided by the Trustee for inclusion in the Disclosure Documents pursuant to this Section 13.4, (i) a 10b-5 legal opinion addressed to the Depositor and the Underwriters, in form and from counsel reasonably acceptable to the Depositor and the Underwriters, as to such disclosure and (ii) a legal opinion addressed to the Depositor and the Underwriters, in form and from counsel reasonably acceptable to the Depositor and the Underwriters, that such disclosure complies as to form with the applicable requirements of Regulation AB.


 


Section 13.5 Filing Obligations


 


The Master Servicer, the Special Servicer, the Primary Servicer, the Paying Agent, the Trustee and each Sub-Servicer shall, and the Master Servicer, the Special Servicer, the Primary Servicer, the Paying Agent, the Trustee and each Sub-Servicer, as applicable, shall


 









  





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(a) use reasonable efforts to cause each Sub-Servicer (other than any party to this Agreement) with which it has entered into a servicing relationship on or prior to the Closing Date with respect to the Mortgage Loans and (b) cause each Sub-Servicer (other than any party to this Agreement) with which it has entered into a servicing relationship after the Closing Date with respect to the Mortgage Loans, to, reasonably cooperate with the Depositor in connection with the satisfaction of the Trust’s reporting requirements under the Exchange Act.  Such cooperation shall include, without limitation, allowing the Depositor to perform such due diligence, at such times and in such manner as the Depositor may reasonably request, regarding, with respect to each of the Master Servicer, the Special Servicer, the Primary Servicer, the Paying Agent, the Trustee and each Sub-Servicer, such Person’s performance of its obligations under this Agreement, and such Person’s compliance with the Relevant Servicing Criteria, as the Depositor may determine to be necessary or desirable in connection with its delivery of the Sarbanes-Oxley Certification.


 


Section 13.6 Form 10-D Filings


 


Within 15 days after each Distribution Date (the “10-D Filing Deadline”) (subject to permitted extensions under the Exchange Act), the Paying Agent shall prepare and file on behalf of the Trust any Form 10-D required by the Exchange Act, in form and substance as required by the Exchange Act.  The Paying Agent shall file each Form 10-D with a copy of the related Monthly Certificateholder’s Report attached thereto.  Any necessary disclosure in addition to the Monthly Certificateholder’s Report that is required to be included on Form 10-D (“Additional Form 10-D Disclosure”) shall, pursuant to the paragraph immediately below, be reported by the parties set forth on Schedule V and directed to the Depositor and the Paying Agent for approval by the Depositor.  The Paying Agent will have no duty or liability for any failure hereunder to determine or prepare any Additional Form 10-D Disclosure (other than such Additional Form 10-D Disclosure which is to be reported by it as set forth on Schedule V) absent such reporting, direction and approval.


 


For so long as the Trust is subject to the reporting requirements of the Exchange Act, as set forth on Schedule V hereto, within ___ calendar days after the related Distribution Date, each Person identified on Schedule V shall be required to provide to the Depositor and the Paying Agent, to the extent known by such person, the form and substance of the corresponding Additional Form 10-D Disclosure set forth on Schedule V, if applicable, and in form readily convertible to an EDGAR-compatible form, or in such other form as otherwise agreed by the Depositor, the Paying Agent and such party.  Unless otherwise directed by the Depositor, and subject to any comments received to such disclosure from the Depositor by the ___ calendar day after such ___ calendar day after the related Distribution Date, the Paying Agent shall include the form and substance of the Additional Form 10-D Disclosure on the related Form 10-D.  The Depositor will be responsible for any reasonable fees charged and out-of-pocket expenses incurred by the Paying Agent in connection with including any Additional Form 10-D Disclosure on Form 10-D pursuant to this paragraph.  Any notice delivered to the Paying Agent pursuant to this paragraph shall be delivered by facsimile to [insert facsimile no.] and by email to [insert email address], or such other address as may hereafter be furnished by the Paying Agent to the other parties in writing.


 









  





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On or prior to the ___ calendar day after the related Distribution Date the Paying Agent shall prepare and deliver electronically the Form 10-D to the Depositor for review.  No later than the end of business on the ___ calendar day after the related Distribution Date, the Depositor shall sign the Form 10-D and return an electronic or fax copy of such signed Form 10-D (with an original executed hard copy to follow by overnight mail) to the Paying Agent.  The Paying Agent shall file such Form 10-D, upon signature thereof as provided in Section 13.16, not later than 5:00 pm (New York City time) on [___ Business Day prior to] the 15th calendar day after the related Distribution Date.  If a Form 10-D cannot be filed on time or if a previously filed Form 10-D needs to be amended, the Paying Agent will follow the procedures set forth in Section 13.10(b).  After filing with the Commission, the Paying Agent shall promptly, pursuant to Section 5.4, make available on its internet website a final executed copy of each Form 10-D.  The parties to this Agreement acknowledge (and each Additional Servicer and each Servicing Function Participant shall be required to acknowledge) that the performance by the Paying Agent of its duties under this Section 13.6 related to the timely preparation and filing of Form 10-D is contingent upon such parties (and, to the extent applicable, any Additional Servicer or Servicing Function Participant) observing all applicable deadlines in the performance of their duties under this Section 13.6.  The Paying Agent shall have no liability for any loss, expense, damage, claim arising out of or with respect to any failure to properly prepare, arrange for execution or file such Form 10-D where such failure results from the Paying Agent’s inability or failure to receive on a timely basis any information from any other party hereto needed to prepare, arrange for execution or file such Form 10-D, not resulting from its own negligence, bad faith or willful misconduct.


 


Section 13.7 Form 10-K Filings


 


Within 90 days after the end of each fiscal year of the Trust or such earlier date as may be required by the Exchange Act (the “10-K Filing Deadline”) (it being understood that the fiscal year for the Trust ends on December 31st of each year), commencing in March 20___, the Paying Agent shall prepare and file on behalf of the Trust a Form 10-K, in form and substance as required by the Exchange Act.  Each such Form 10-K shall include the following items, in each case to the extent they have been delivered to the Paying Agent within the applicable time frames set forth in this Agreement, (i) an annual compliance statement for each Reporting Servicer, as described under Section 13.11, (ii)(A) the annual reports on assessment of compliance with Servicing Criteria for each Reporting Servicer, as described under Section 13.12, and (B) if any Reporting Servicer’s report on assessment of compliance with Servicing Criteria described under Section 13.12 identifies any material instance of noncompliance, disclosure identifying such instance of noncompliance, or if any Reporting Servicer’s report on assessment of compliance with Servicing Criteria described under Section 13.12 is not included as an exhibit to such Form 10-K, disclosure that such report is not included and an explanation as to why such report is not included, (iii)(A) the registered public accounting firm attestation report for each Reporting Servicer, as described under Section 13.13, and (B) if any registered public accounting firm attestation report described under Section 13.13 identifies any material instance of noncompliance, disclosure identifying such instance of noncompliance, or if any such registered public accounting firm attestation report is not included as an exhibit to such Form 10-K,  disclosure that such report is not included and an explanation as to why such report is not included, and (iv) a Sarbanes-Oxley Certification as described in Section 13.8.  Any disclosure or information in addition to (i) through (iv) above that is required to be included on Form 10-K


 









  





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(“Additional Form 10-K Disclosure”) shall, pursuant to the paragraph immediately below, be reported by the parties set forth on Schedule VI and directed to the Depositor and the Paying Agent for approval by the Depositor.  The Paying Agent will have no duty or liability for any failure hereunder to determine or prepare any Additional Form 10-K Disclosure (other than such Additional Form 10-K Disclosure which is to be reported by it as set forth on Schedule VI) absent such reporting, direction and approval.


 


For so long as the Trust is subject to the reporting requirements of the Exchange Act, as set forth on Schedule VI hereto, no later than March ___ of each year subsequent to the fiscal year that the Trust is subject to the Exchange Act reporting requirements, commencing in 20___, each Person identified on such schedule shall be required to provide to the Depositor and the Paying Agent, to the extent known by such Person, the form and substance of the corresponding Additional Form 10-K Disclosure as set forth on Schedule VI, if applicable, and in form readily convertible to an EDGAR-compatible form, or in such other form as otherwise agreed by the Depositor, the Paying Agent and such Person.  Unless otherwise directed by the Depositor, and subject to any comments received to such disclosure from the Depositor by March ___, the Paying Agent shall include the form and substance of the Additional Form 10-K Disclosure on the related Form 10-K.  The Depositor will be responsible for any reasonable fees charged and out-of-pocket expenses incurred by the Paying Agent in connection with including any Additional Form 10-K Disclosure on Form 10-K pursuant to this paragraph.  Any notice delivered to the Paying Agent pursuant to this paragraph shall be delivered by facsimile to [insert facsimile no.] and by email to [insert email address], or such other address as may hereafter be furnished by the Paying Agent to the other parties in writing.


 


On or prior to noon (New York City time) on March 23rd, the Paying Agent shall prepare and deliver electronically a draft copy of the Form 10-K to the Depositor for review.  No later than 5:00 pm (New York City time) on the ___ Business Day prior to the 10-K Filing Deadline, a senior officer in charge of securitization of the Depositor shall sign the Form 10-K and return an electronic or fax copy of such signed Form 10-K (with an original executed hard copy to follow by overnight mail) to the Paying Agent.  If a Form 10-K cannot be filed on time or if a previously filed Form 10-K needs to be amended, the Paying Agent will follow the procedures set forth in Section 13.10(b).  After filing with the Commission, the Paying Agent shall, pursuant to Section 5.4, make available on its internet website a final executed copy of each Form 10-K.  The signing party at the Depositor can be contacted at [insert address].  The parties to this Agreement acknowledge (and each Additional Servicer and each Servicing Function Participant shall be required to acknowledge) that the performance by the Paying Agent of its duties under this Section 13.7 related to the timely preparation and filing of Form 10-K is contingent upon such parties (and, to the extent applicable, any Additional Servicer or Servicing Function Participant) observing all applicable deadlines in the performance of their duties under this Article XIII.  The Paying Agent shall have no liability with respect to any failure to properly prepare, arrange for execution or file such Form 10-K resulting from the Paying Agent’s inability or failure to receive on a timely basis any information from any other party hereto needed to prepare, arrange for execution or file such Form 10-K on a timely basis, not resulting from its own negligence, bad faith or willful misconduct.


 









  





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Section 13.8 Sarbanes-Oxley Certification


 


Each Form 10-K shall include a certification (the “Sarbanes-Oxley Certification”), exactly as set forth in Exhibit K attached hereto, required to be included therewith pursuant to the Sarbanes-Oxley Act.  Each Reporting Servicer shall, and each Reporting Servicer shall (a) use reasonable efforts to cause each Servicing Function Participant (other than any party to this Agreement) with which it has entered into a servicing relationship on or prior to the Closing Date with respect to the Mortgage Loans and (b) cause each Servicing Function Participant (other than any party to this Agreement) with which it has entered into a servicing relationship after the Closing Date with respect to the Mortgage Loans, to, provide to the Person who signs the Sarbanes-Oxley Certification (the “Certifying Person”), by noon (New York City time) on March ___ of each year subsequent to the fiscal year in which the Trust is subject to the reporting requirements of the Exchange Act and otherwise within a reasonable period of time upon request, a certification (each, a “Performance Certification”), in the form attached hereto as Exhibit K-1, upon which the Certifying Person, the entity for which the Certifying Person acts as an officer, and such entity’s officers, directors and Affiliates (collectively with the Certifying Person, “Certification Parties”) can reasonably rely.  The senior officer in charge of securitization of the Depositor shall serve as the Certifying Person on behalf of the Trust.  Such officer of the Certifying Person can be contacted at [insert contact information].  If any Reporting Servicer is terminated or resigns pursuant to the terms of this Agreement, or any applicable sub-servicing agreement or primary servicing agreement, as the case may be, such Reporting Servicer shall provide a Performance Certification and a reliance certificate to the Certifying Person pursuant to this Section 13.8 with respect to the period of time it was subject to this Agreement or the applicable sub-servicing or primary servicing agreement, as the case may be.


 


Each Performance Certification shall include a reasonable reliance provision enabling the Certification Parties to rely upon each (i) annual compliance statement provided pursuant to Section 13.11, (ii) annual report on assessment of compliance with Servicing Criteria provided pursuant to Section 13.12 and (iii) registered public accounting firm attestation report provided pursuant to Section 13.13 and shall include a certification that each such annual report on assessment of compliance discloses any material instances of noncompliance described to the registered public accountants of such Reporting Servicer to enable such accountants to render the attestation provided for in Section 13.13.


 


In the event that any Servicing Function Participant (that is not a party to this Agreement) shall fail to deliver a Performance Certification by the date that is __ Business Days prior to the 10-K Filing Deadline, whichever of the Master Servicer, Special Servicer, Primary Servicer or Paying Agent that has directly or indirectly (through a Sub-Servicer) retained such Servicing Function Participant, shall include in its own Performance Certification a Performance Certification regarding the performance of the Servicing Function Participant that failed to deliver such Performance Certification.


 


Section 13.9 Form 8-K Filings


 


Within four (4) Business Days after the occurrence of an event requiring disclosure (the “8-K Filing Deadline”) under Form 8-K (each a “Reportable Event”), the


 









  





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Paying Agent shall prepare and file on behalf of the Trust any Form 8-K, as required by the Exchange Act, provided that the Depositor shall file the initial Form 8-K in connection with the issuance of the Certificates.  Any disclosure or information related to a Reportable Event or that is otherwise required to be included on Form 8-K (“Form 8-K Disclosure Information”) shall, pursuant to the paragraph immediately below, be reported by any party set forth on Schedule VII to which such Reportable Event relates and such Form 8-K Disclosure Information shall be directed to the Depositor and the Paying Agent for approval by the Depositor.  The Paying Agent will have no duty or liability for any failure hereunder to determine or prepare any Form 8-K Disclosure Information (other than such Form 8-K Disclosure Information which is to be reported by it as set forth on Schedule VII) absent such reporting, direction and approval.


 


As set forth on Schedule VII hereto, for so long as the Trust is subject to the Exchange Act reporting requirements, no later than noon (New York City time) on the [2nd] Business Day after the occurrence of a Reportable Event the applicable Person identified on such Schedule VII shall be required to provide written notice to the Depositor and the Paying Agent of, to the extent known by such Person, the form and substance of the corresponding Form 8-K Disclosure Information, as set forth on Schedule VII, if applicable, and in form readily convertible to an EDGAR-compatible form, or in such other form as otherwise agreed by the Depositor, the Paying Agent and such Party.  Unless otherwise directed by the Depositor, and subject to any comments received to such disclosure from the Depositor by noon on the [3rd] Business Day after such Reportable Event, the Paying Agent shall include the form and substance of the Form 8-K Disclosure Information on the related Form 8-K.  The Depositor will be responsible for any reasonable fees charged and out-of-pocket expenses incurred by the Paying Agent in connection with including any Form 8-K Disclosure Information on Form 8-K pursuant to this paragraph.  Any notice delivered to the Paying Agent pursuant to this paragraph shall be delivered by facsimile to [insert facsimile no.] and by email to [insert email address], or such other address as may hereafter be furnished by the Paying Agent to the other parties in writing.


 


No later than noon (New York City time) on the [4th] Business Day after the Reportable Event, the Paying Agent shall prepare and the Depositor shall sign the Form 8-K.  If so directed by the Depositor, the Paying Agent shall file such Form 8-K, not later than [5:00] pm (New York City time) on the [4th] Business Day after the related Reportable Event.  If a Form 8-K cannot be filed on time or if a previously filed Form 8-K needs to be amended, the Paying Agent will follow the procedures set forth in Section 13.10(b).  After filing with the Commission, the Paying Agent will, pursuant to Section 5.4, make available on its internet website a final executed copy of each Form 8-K.  The parties to this Agreement acknowledge (and each Additional Servicer and each Servicing Function Participant shall be required to acknowledge) that the performance by the Paying Agent of its duties under this Section 13.9 related to the timely preparation and filing of Form 8-K is contingent upon such parties (and, to the extent applicable, any Additional Servicer or Servicing Function Participant) observing all applicable deadlines in the performance of their duties under this Section 13.9.  The Paying Agent shall have no liability for any loss, expense, damage, claim arising out of or with respect to any failure to properly prepare and/or timely file such Form 8-K, where such failure results from the Paying Agent’s inability or failure to receive, on a timely basis, any information from any other party hereto needed to prepare, arrange for execution or file such Form 8-K, not resulting from its own negligence, bad faith or willful misconduct.


 









  





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Notwithstanding the second preceding paragraph, the Master Servicer, the Special Servicer, the Primary Servicer, the Paying Agent, the Trustee, each Sub-Servicer and each Servicing Function Participant, shall promptly notify (and the Master Servicer, the Special Servicer, the Primary Servicer, the Paying Agent, the Trustee each Sub-Servicer and each Servicing Function Participant shall (a) use reasonable efforts to cause each Sub-Servicer and each Servicing Function Participant (other than any party to this Agreement) with which it has entered into a servicing relationship on or prior to the Closing Date with respect to the Mortgage Loans and (b) cause each Sub-Servicer and each Servicing Function Participant (other than any party to this Agreement) with which it has entered into a servicing relationship after the Closing Date with respect to the Mortgage Loans, to promptly notify) the Depositor and the Paying Agent, but in no event later than noon on the [2nd] Business Day after its occurrence, of any Reportable Event of which it has actual knowledge.


 


Section 13.10 Form 15 Filing; Incomplete Exchange Act Filings; Amendments to Exchange Act Reports


 


(a) On or before January 30 of the first year in which the Paying Agent is able to do so under applicable law, the Paying Agent shall file a Form 15 Suspension Notification relating to the automatic suspension of reporting in respect of the Trust under the Exchange Act.  After the filing of Form 15, the obligations of the parties to this Agreement under Sections 13.6, 13.7 and 13.9 (and the obligations of the Primary Servicer under clauses (i), (ii) and (iii) of Section _____ of the Primary Servicing Agreement) shall be suspended for so long as the Trust is not subject to the reporting requirements of the Exchange Act.


 


(b) The Paying Agent shall promptly notify the Depositor (which notice may be sent by facsimile or by email and which shall include the identity of those Reporting Servicers who did not deliver such information) and each Reporting Servicer that failed to deliver such information required to be delivered by it under this Agreement, if all, or any portion of, any required disclosure information to be included in any Form 8-K, Form 10-D or Form 10-K required to be filed pursuant to this Agreement is not delivered to it within the delivery deadlines set forth in this Agreement.  If the Paying Agent is unable to timely file with the Commission all or any required portion of any Form 8-K, Form 10-D or Form 10-K required to be filed by this Agreement because required disclosure information either was not delivered to it or was delivered to it after the delivery deadlines set forth in this Agreement or for any other reason, the Paying Agent shall promptly notify the Depositor (which may be sent by facsimile or by email, and which notice shall include the identity of those Reporting Servicers who either did not deliver such information or delivered such information to it after the delivery deadlines set forth in this Agreement) and each Reporting Servicer that failed to make such delivery.  In the case of Form 10-D and Form 10-K, each such Reporting Servicer shall cooperate with the Depositor and the Paying Agent to prepare and file a Form 12b-25 and a Form 10-DA and Form 10-KA as applicable, pursuant to Rule 12b-25 of the Exchange Act.  In the case of Form 8-K, the Paying Agent shall, upon receipt of all required Form 8-K Disclosure Information and upon the approval and direction of the Depositor, include such disclosure information on the Form 10-D that is required to be filed on behalf of the Trust.  In the event that any previously filed Form 8-K, Form 10-D or Form 10-K needs to be amended, the Paying Agent shall notify the Depositor and such other parties as may be required and such parties shall cooperate to prepare any necessary Form 8-KA, Form 10-DA or Form 10-KA.  Any Form 15, Form 12b-25 or any amendment to Form 8-


 









  





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K, Form 10-D or Form 10-K shall be signed by a senior officer of the Depositor in charge of securitization.  The parties to this Agreement acknowledge that the performance by the Paying Agent of its duties under this Section 13.10 related to the timely preparation and filing of Form 15, a Form 12b-25 or any amendment to Form 8-K, Form 10-D or Form 10-K is contingent upon such parties (and, to the extent applicable, any Additional Servicer or Servicing Function Participant) performing their duties under this Section.  The Paying Agent shall have no liability for any loss, expense, damage, claim arising out of or with respect to any failure to properly prepare and/or timely file any such Form 15, Form 12b-25 or any amendments to Forms 8-K, Form 10-D or Form 10-K, where such failure results from the Paying Agent’s inability or failure to receive, on a timely basis, any information from any other party hereto needed to prepare, arrange for execution or file such Form 15, Form 12b-25 or any amendments to Forms 8-K, 10-D or 10-K, not resulting from its own negligence, bad faith or willful misconduct.


 


Section 13.11 Annual Compliance Statements


 


The Master Servicer, the Special Servicer, the Primary Servicer and the Paying Agent and each Sub-Servicer (each a “Certifying Servicer”) shall (and the Master Servicer, the Special Servicer, the Primary Servicer and the Paying Agent shall (a) use reasonable efforts to cause each Additional Servicer and each Sub-Servicer with which it has entered into a servicing relationship on or prior to the Closing Date with respect to the Mortgage Loans and (b) cause each Additional Servicer and each Sub-Servicer with which it has entered into a servicing relationship after the Closing Date with respect to the Mortgage Loans, to) deliver to the Depositor, the Paying Agent and the Trustee on or before March ___, with respect to any Additional Servicer and each Sub-Servicer (excluding the Primary Servicer), or March ___ or if such day is not a Business Day, the immediately preceding Business Day (with no cure period), with respect to the Master Servicer, the Special Servicer, the Primary Servicer or the Paying Agent, of each year, commencing in March 20___, an Officer’s Certificate stating, as to the signer thereof, that (A) a review of such Certifying Servicer’s activities during the preceding calendar year or portion thereof and of such Certifying Servicer’s performance under this Agreement, or the applicable sub-servicing agreement or primary servicing agreement in the case of an Additional Servicer, has been made under such officer’s supervision and (B) to the best of such officer’s knowledge, based on such review, such Certifying Servicer has fulfilled all its obligations under this Agreement, or the applicable sub-servicing agreement or primary servicing agreement in the case of an Additional Servicer, in all material respects throughout such year or portion thereof, or, if there has been a failure to fulfill any such obligation in any material respect, specifying each such failure known to such officer and the nature and status thereof.  Each Certifying Servicer shall, and the Master Servicer, the Special Servicer, the Primary Servicer and the Paying Agent shall (a) use reasonable efforts to cause each Additional Servicer and each Sub-Servicer with which it has entered into a servicing relationship on or prior to the Closing Date with respect to the Mortgage Loans and (b) cause each Additional Servicer and each Sub-Servicer with which it has entered into a servicing relationship after the Closing Date with respect to the Mortgage Loans, to, forward a copy of each such statement to the Rating Agencies and the Operating Adviser.  Promptly after receipt of each such Officer’s Certificate, the Depositor shall have the right to review such Officer’s Certificate and, if applicable, consult with each Certifying Servicer, as applicable, as to the nature of any failures by such Certifying Servicer, in the fulfillment of any of the Certifying Servicer’s obligations hereunder or under the applicable sub-servicing or primary servicing agreement.  None of the Certifying Servicers or


 









  





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any Additional Servicer or any Sub-Servicer shall be required to deliver, or to endeavor to cause the delivery of, any such Officer’s Certificate until April ___, in the case of a Certifying Servicer, or April ___, in the case of any Additional Servicer (excluding the Primary Servicer) or any Sub-Servicer (excluding the Primary Servicer), in any given year so long as it has received written confirmation from the Depositor that a Form 10-K is not required to be filed in respect of the Trust for the preceding calendar year.


 


Section 13.12 Annual Reports on Assessment of Compliance with Servicing Criteria


 


By March 15 or if such day is not a Business Day, the immediately preceding Business Day (with no cure period), with respect to the Master Servicer, the Special Servicer, the Primary Servicer, the Paying Agent and the Trustee, of each year, commencing in March 20___, the Master Servicer, the Special Servicer (regardless of whether the Special Servicer has commenced special servicing of any Mortgage Loan), the Paying Agent, the Primary Servicer and the Trustee, each at its own expense, shall furnish (and each of the preceding parties, as applicable, shall (a) use reasonable efforts to cause, by March ___, each Servicing Function Participant (other than a party to this Agreement) with which it has entered into a servicing relationship on or prior to the Closing Date with respect to the Mortgage Loans and (b) cause, by March ___, each Servicing Function Participant (other than a party to this Agreement) with which it has entered into a servicing relationship after the Closing Date with respect to the Mortgage Loans, to furnish, each at its own expense), to the Trustee, the Paying Agent and the Depositor, with a copy to the Rating Agencies and the Operating Adviser, a report on an assessment of compliance with the Relevant Servicing Criteria with respect to commercial mortgage backed securities transactions taken as a whole involving such party that contains (A) a statement by such Reporting Servicer of its responsibility for assessing compliance with the Relevant Servicing Criteria, (B) a statement that such Reporting Servicer used the Servicing Criteria to assess compliance with the Relevant Servicing Criteria, (C) such Reporting Servicer’s assessment of compliance with the Relevant Servicing Criteria as of and for the period ending the end of the fiscal year covered by the Form 10-K required to be filed pursuant to Section 13.7, including, if there has been any material instance of noncompliance with the Relevant Servicing Criteria, a discussion of each such failure and the nature and status thereof, and (D) a statement that a registered public accounting firm has issued an attestation report on such Reporting Servicer’s assessment of compliance with the Relevant Servicing Criteria as of and for such period.


 


No later than the end of each fiscal year for the Trust for which a 10-K is required to be filed, the Master Servicer, the Special Servicer, the Primary Servicer and the Trustee shall each forward to the Paying Agent and the Depositor the name and address of each Servicing Function Participant engaged by it and what Relevant Servicing Criteria will be addressed in the report on assessment of compliance prepared by such Servicing Function Participant.  When the Master Servicer, the Special Servicer, the Primary Servicer, the Trustee and each Sub-Servicer submit their respective assessments by March ___ or March ___, as applicable, to the Paying Agent, each such party shall also at such time include, in its submission to the Paying Agent, the assessment (and attestation pursuant to Section 13.13) of each Servicing Function Participant engaged by it.


 









  





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Promptly after receipt of each such report on assessment of compliance, (i) the Depositor shall have the right to review each such report and, if applicable, consult with the Master Servicer, the Special Servicer, the Primary Servicer, the Paying Agent, the Trustee and any Servicing Function Participant as to the nature of any material instance of noncompliance with the Relevant Servicing Criteria by the Master Servicer, the Special Servicer, the Paying Agent, the Trustee or any Servicing Function Participant, respectively, and (ii) the Paying Agent shall confirm that the assessments taken individually address the Relevant Servicing Criteria for each party as set forth on Schedule IV and notify the Depositor of any exceptions.  None of the Master Servicer, the Special Servicer, the Primary Servicer, the Trustee or any Servicing Function Participant shall be required to deliver, or to endeavor to cause the delivery of, any such reports until April ___ in the case of the Master Servicer, the Special Servicer, the Primary Servicer or the Trustee, or April ___ in the case of any Servicing Function Participant, in any given year so long as it has received written confirmation from the Depositor that a Form 10-K is not required to be filed in respect of the Trust for the preceding calendar year.  The parties hereto acknowledge that a material instance of noncompliance with the Relevant Servicing Criteria reported on an assessment of compliance pursuant to this Section 13.12 by the Master Servicer, the Special Servicer, the Primary Servicer, the Paying Agent or the Trustee shall not, as a result of being so reported, in and of itself, constitute a breach of such parties’ obligations, as applicable, under this Agreement unless otherwise provided for in this Agreement.


 


Section 13.13 Annual Independent Public Accountants’ Servicing Report


 


By March ___ or if such day is not a Business Day, the immediately preceding Business Day (with no cure period), in respect of the Master Servicer, the Special Servicer, the Primary Servicer, the Paying Agent and the Trustee, of each year, commencing in March 20___, the Master Servicer, the Special Servicer, the Primary Servicer, the Paying Agent and the Trustee, each at its own expense, shall cause (and each of the preceding parties, as applicable, shall (a) use reasonable efforts to cause, by March ___, each Servicing Function Participant (other than a party to this Agreement) with which it has entered into a servicing relationship on or prior to the Closing Date with respect to the Mortgage Loans and (b) cause, by March ___, each Servicing Function Participant (other than a party to this Agreement) with which it has entered into a servicing relationship after the Closing Date with respect to the Mortgage Loans, to cause, each at its own expense) a registered public accounting firm (which may also render other services to the Master Servicer, the Special Servicer, the Paying Agent, the Trustee, such Sub-Servicer or such other Servicing Function Participant, as the case may be) that is a member of the American Institute of Certified Public Accountants to furnish a report to the Trustee, the Paying Agent and the Depositor, with a copy to the Rating Agencies and the Operating Adviser, to the effect that (i) it has obtained a representation regarding certain matters from the management of such Reporting Servicer, which includes an assessment from such Reporting Servicer of its compliance with the Relevant Servicing Criteria, and (ii) on the basis of an examination conducted by such firm in accordance with standards for attestation engagements issued or adopted by the PCAOB, it is expressing an opinion as to whether such Reporting Servicer’s compliance with the Relevant Servicing Criteria was fairly stated in all material respects, or it cannot express an overall opinion regarding such Reporting Servicer’s assessment of compliance with the Relevant Servicing Criteria.  If an overall opinion cannot be expressed, such registered public accounting firm shall state in such report why it was unable to express


 









  





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such an opinion.  Such report must be available for general use and not contain restricted use language.


 


Promptly after receipt of such report from the Master Servicer, the Special Servicer, the Primary Servicer, the Paying Agent or the Trustee (or any Sub-Servicer or Servicing Function Participant with which the Master Servicer, the Special Servicer, the Primary Servicer, the Paying Agent or the Trustee has entered into a servicing relationship with respect to the Mortgage Loans (other than a party to this Agreement)), (i) the Depositor shall have the right to review the report and, if applicable, consult with the Master Servicer, the Special Servicer, the Primary Servicer, the Paying Agent, the Trustee, any Sub-Servicer or any such Servicing Function Participant as to the nature of any material instance of noncompliance by the Master Servicer, the Special Servicer, the Primary Servicer, the Paying Agent, the Trustee or any such Servicing Function Participant with the Servicing Criteria applicable to such Person, and (ii) the Paying Agent shall confirm that each assessment submitted pursuant to Section 13.12 is coupled with an attestation meeting the requirements of this Section and notify the Depositor of any exceptions.  The Master Servicer, the Special Servicer, the Paying Agent, the Primary Servicer, the Trustee or any Servicing Function Participant shall not be required to deliver, or to endeavor to cause the delivery of, such reports until April ___ in the case of the Master Servicer, the Special Servicer, the Paying Agent, the Primary Servicer or the Trustee, or April ___ in the case of any Servicing Function Participant, in any given year so long as it has received written confirmation from the Depositor that a Form 10-K is not required to be filed in respect of the Trust for the preceding fiscal year.


 


Section 13.14 Indemnification


 


Each of the Master Servicer, the Special Servicer, the Primary Servicer, the Trustee and the Paying Agent (each an “Indemnifying Party”) shall indemnify and hold harmless each Certification Party and its affiliates, their respective directors and officers, and each other person who controls any such entity within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act (each a “Certification Indemnitee”), and each of the Underwriters, their respective directors and officers, and each other Person who controls any such entity within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act (each an “Underwriter Indemnitee”), against any and all expenses, losses, claims, damages and other liabilities, including without limitation the costs of investigation, legal defense and any amounts paid in settlement of any claim or litigation arising out of or based upon (a) in the case of each Certification Indemnitee (i) an actual breach by the Indemnifying Party of such Indemnifying Party’s representations under this Article XIII, (ii) failure to perform its obligations under this Article XIII, (iii) negligence, bad faith or willful misconduct on the part of the Indemnifying Party in the performance of such obligations or (iv) any untrue statement or alleged untrue statement of a material fact, or any omission or alleged omission to state therein a material fact necessary to make the statements therein, in light of the circumstances in which they were made, not misleading, contained in the Free Writing Prospectus and the Prospectus Supplement (whether delivered by itself or as part of the Private Placement Memorandum) but only if and to the extent that any such untrue statement or alleged untrue statement or omission or alleged omission relates to information provided by the Indemnifying Party to the Depositor in accordance with Section 13.3 or Section 13.4, as the case may be, or (b) in the case of each Underwriter Indemnitee any untrue statement or alleged untrue statement of a material fact, or


 









  





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any omission or alleged omission to state therein a material fact necessary to make the statements therein, in light of the circumstances in which they were made, not misleading, contained in the Free Writing Prospectus and the Prospectus Supplement (whether delivered by itself or as part of the Private Placement Memorandum) but only if and to the extent that any such untrue statement or alleged untrue statement or omission or alleged omission relates to information provided by the Indemnifying Party to the Depositor in accordance with Section 13.3 or Section 13.4, as the case may be.  The Master Servicer, the Special Servicer, the Primary Servicer, the Paying Agent and the Trustee shall (a) use reasonable efforts to cause each Additional Servicer (other than a party to this Agreement) with which it has entered into a servicing relationship on or prior to the Closing Date with respect to the Mortgage Loans and (b) cause each Additional Servicer (other than a party to this Agreement) with which it has entered into a servicing relationship after the Closing Date with respect to the Mortgage Loans, to indemnify and hold harmless each Certification Party from and against any losses, damages, penalties, fines, forfeitures, legal fees and expenses and related costs, judgments and other costs and expenses incurred by such Certification Party arising out of (i) a breach of its obligations to provide any of the annual compliance statements or annual assessment of servicing criteria or attestation reports pursuant to this Agreement, or the applicable sub-servicing or primary servicing agreement, as applicable, or (ii) negligence, bad faith or willful misconduct its part in the performance of such obligations thereunder.


 


If the indemnification provided for herein is unavailable or insufficient to hold harmless any Certification Party, then the Master Servicer, the Special Servicer, the Primary Servicer and the Paying Agent, each Additional Servicer or other Servicing Function Participant (the “Performing Party”) shall (and the Master Servicer, the Special Servicer, the Primary Servicer, the Paying Agent and the Trustee shall (a) use reasonable efforts to cause each Additional Servicer or other Servicing Function Participant with which it has entered into a servicing relationship on or prior to the Closing Date with respect to the Mortgage Loans (other than a party to this Agreement) and (b) cause each Additional Servicing or other Servicing Function Participant with which it has entered into a servicing relationship after the Closing Date with respect to the Mortgage Loans (other than a party to this Agreement), to) contribute to the amount paid or payable to the Certification Party as a result of the losses, claims, damages or liabilities of the Certification Party in such proportion as is appropriate to reflect the relative fault of the Certification Party on the one hand and the Performing Party on the other in connection with a breach of the Performing Party’s obligations pursuant to this Article XIII (or breach of its representations or obligations under the applicable sub-servicing or primary servicing agreement to provide any of the annual compliance statements or annual servicing criteria compliance reports or attestation reports or otherwise comply with the requirements of this Article XIII) or the Performing Party’s negligence, bad faith or willful misconduct in connection therewith.  The Master Servicer, the Special Servicer, the Primary Servicer, the Paying Agent and the Trustee shall (a) use reasonable efforts to cause each Additional Servicer or Servicing Function Participant with which it has entered into a servicing relationship on or prior to the Closing Date with respect to the Mortgage Loans (other than a party to this Agreement) and (b) cause each Additional Servicer or Servicing Function Participant with which it has entered into a servicing relationship after the Closing Date with respect to the Mortgage Loans (other than a party to this Agreement), to agree to the foregoing indemnification and contribution obligations.


 









  





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Section 13.15 Amendments


 


This Article XIII may be amended by the parties hereto pursuant to Section 14.3 (without, in each case, any Opinions of Counsel, Officer’s Certificates, Rating Agency Confirmations or the consent of any Certificateholder, notwithstanding anything to the contrary contained in this Agreement) for purposes of complying with Regulation AB and/or to conform to standards developed within the commercial mortgage backed securities market


 


Section 13.16 Exchange Act Report Signatures


 


Each Form 8-K report and Form 10-D report shall be signed by the Depositor, or, if so directed by the Depositor, by the Paying Agent pursuant to a power of attorney provided to the Paying Agent by the Depositor in accordance with procedures to be agreed upon by the Depositor and the Paying Agent and meeting the requirements of Regulation S-K.  The Depositor shall provide its signature or power of attorney to the Paying Agent by electronic or fax transmission (with hard copy to follow by overnight mail) no later than the ___ calendar day following the related Distribution Date for Form 10-D, and not later than [noon] on the [date of filing] for Form 8-K (provided, that in each case the Paying Agent shall not file the related form until the Depositor has given its approval thereof).  If a Form 8-K or Form 10-D cannot be filed on time or if a previously filed Form 8-K or Form 10-D needs to be amended, the Paying Agent will follow the procedures set forth in this Article XIII.  The signing party at the Depositor can be contacted at [insert contact information] and the signing party at the Paying Agent, if applicable, can be contacted at [insert contact information].


 


The Paying Agent shall have no liability for any loss, expense, damage or claim arising out of or with respect to its having signed any Form 8-K or Form 10-D if the power of attorney provided to it by the Depositor pursuant to the immediately preceding paragraph was not properly prepared, not resulting from its own negligence, bad faith or willful misconduct.


 


Section 13.17 Termination of the Paying Agent and Sub-Servicers


 


(a) Each of the Master Servicer, the Special Servicer, the Primary Servicer, the Paying Agent and the Trustee shall terminate, in accordance with the related sub-servicing agreement, any Sub-Servicer with which it has entered into such sub-servicing agreement, and the Master Servicer shall terminate the Primary Servicer in accordance with the terms of the Primary Servicing Agreement, if such Sub-Servicer or the Primary Servicer, as the case may be, is in breach of any of its obligations under such sub-servicing agreement or the Primary Servicing Agreement, as the case may be, whose purpose is to facilitate compliance by the Depositor of the reporting requirements of the Exchange Act or with the provisions of Regulation AB and the related rules and regulations of the Commission.


 


(b) Notwithstanding anything to the contrary contained in this Agreement, the Depositor may immediately terminate the Paying Agent if the Paying Agent fails to comply with any of its obligations under this Article XIII; provided that (a) such termination shall not be effective until a successor paying agent shall have accepted the appointment, (b) the Paying Agent may not be terminated due to its failure to properly prepare or file on a timely basis any Form 8-K, Form 10-K or Form 10-D or any amendments to such forms or any Form 12b-25


 









  





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where such failure results from the Paying Agent’s inability or failure to receive, within the exact time frames set forth in this Agreement any information, approval, direction or signature from any other party hereto needed to prepare, arrange for execution or file any such Form 8-K, Form 10-K or Form 10-D or any amendments to such forms or any form 12b-25 not resulting from its own negligence, bad faith or willful misconduct and (c) if, following the Paying Agent’s failure to comply with any of such obligations under Sections 13.6, 13.7, 13.9, 13.11, 13.12 or 13.13 on or prior to the dates by which such obligations are to be performed pursuant to, and as set forth in, such Sections, (i) the Paying Agent subsequently complies with such obligations before the Trustee or the Depositor gives written notice to it that it is terminated in accordance with this Section 13.17(b) and (ii) the Paying Agent’s failure to comply does not cause it to fail in its obligations to timely file the related Form 8-K, Form 10-D or Form 10-K, as the case may be, by the related 8-K Filing Deadline, 10-D Filing Deadline or 10-K Filing Deadline, then the Depositor shall cease to have the right to terminate the Paying Agent under this Section 13.17(b) on the date on which such Form 8-K, Form 10-D or Form 10-K is so filed.


 


ARTICLE XIV


 


MISCELLANEOUS PROVISIONS


 


Section 14.1 Binding Nature of Agreement


 


This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.


 


Section 14.2 Entire Agreement


 


This Agreement contains the entire agreement and understanding between the parties hereto with respect to the subject matter hereof, and supersedes all prior and contemporaneous agreements, understandings, inducements and conditions, express or implied, oral or written, of any nature whatsoever with respect to the subject matter hereof.  The express terms hereof control and supersede any course of performance or usage of the trade inconsistent with any of the terms hereof.


 


Section 14.3 Amendment


 


(a) This Agreement may be amended from time to time by the parties hereto, without notice to or the consent of any of the Holders, (i) to cure any ambiguity, (ii) to cause the provisions herein to conform to or be consistent with or in furtherance of the statements made with respect to the Certificates, the Trust or this Agreement in the Private Placement Memorandum, the Free Writing Prospectus, the Final Prospectus Supplement or the Prospectus, or to correct or supplement any provision herein which may be inconsistent with any other provisions herein, (iii) to amend any provision hereof to the extent necessary or desirable to maintain the status of each REMIC Pool as a REMIC, or the Class EI Grantor Trust or the Class A-3-1FL Grantor Trust as a grantor trust) for the purposes of federal income tax law (or comparable provisions of state income tax law), (iv) to make any other provisions with respect to matters or questions arising under or with respect to this Agreement not inconsistent with the provisions hereof, (v) to modify, add to or eliminate the provisions of Article III relating to


 









  





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transfers of Residual Certificates, (vi) to amend any provision herein to the extent necessary or desirable to list the Certificates on a stock exchange, including, without limitation, the appointment of one or more sub-paying agents and the requirement that certain information be delivered to such sub-paying agents, (vii) to cause the provisions herein to conform to the provisions of the Swap Contract and the related documents, or (viii) to make any other amendment which does not adversely affect in any material respect the interests of any Certificateholder (unless such Certificateholder consents).  No such amendment effected pursuant to clause (i), (ii) or (iv) of the preceding sentence shall (A) adversely affect in any material respect the interests of any Holder not consenting thereto, without the consent of 100% of the Certificateholders adversely affected thereby or (B) adversely affect the status of any REMIC Pool as a REMIC (or the Class EI Grantor Trust or the Class A-3-1FL Grantor Trust as a grantor trust).  Prior to entering into any amendment without the consent of Holders pursuant to this paragraph, the Trustee may require an Opinion of Counsel and a Nondisqualification Opinion (in the case of clauses (i), (ii) and (iii), at the expense of the Depositor, and otherwise at the expense of the party requesting such amendment, except that if the Trustee requests such amendment, such amendment shall be at the expense of the Depositor, if the Depositor consents), to the effect that such amendment is permitted under this paragraph.  Any such amendment shall be deemed not to adversely affect in any material economic respect any Holder if the Trustee receives a Rating Agency Confirmation from each Rating Agency (and any Opinion of Counsel requested by the Trustee in connection with any such amendment may rely expressly on such confirmation as the basis therefor).


 


(b) This Agreement may also be amended from time to time by the agreement of the parties hereto (without the consent of the Certificateholders) and with the written confirmation of the Rating Agencies that such amendment would not cause the ratings on any Class of Certificates to be qualified, withdrawn or downgraded; provided, however, that such amendment may not effect any of the items set forth in clauses (i) through (iv) of the proviso in paragraph (c) of this Section 14.3.  The Trustee may request, at its option, to receive a Nondisqualification Opinion and/or an Opinion of Counsel that such amendment will not result in an Adverse Grantor Trust Event, as applicable, and an Opinion of Counsel that any amendment pursuant to this Section 14.3(b) is permitted by this Agreement at the expense of the party requesting the amendment.


 


(c) This Agreement may also be amended from time to time by the parties with the consent of the Holders of not less than 51% of the Aggregate Certificate Balance of the Certificates then outstanding, for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Agreement or of modifying in any manner the rights of the Holders; provided that no such amendment may (i) reduce in any manner the amount of, or delay the timing of the distributions required to be made on any Certificate without the consent of the Holder of such Certificate, (ii) reduce the aforesaid percentages of Aggregate Certificate Percentage or Certificate Balance, the Holders of which are required to consent to any such amendment without the consent of all the Holders of each Class of Certificates affected thereby, (iii) no such amendment shall eliminate or reduce the Master Servicer’s or the Trustee’s obligation to make an Advance or alter the Servicing Standard except as may be necessary or desirable to comply with the REMIC Provisions, (iv) adversely affect the status of any REMIC Pool as a REMIC for federal income tax purposes (as evidenced by a Nondisqualification Opinion) and the Class A-3-1FL Grantor Trust or the Class EI Grantor Trust as grantor trusts


 









  





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without the consent of 100% of the Certificateholders (including the Class [R-I], Class [R-II] and Class [R-III] Certificateholders), (v) adversely affect in any material respect the interests of the Holders of the Certificates in a manner other than as described in the immediately preceding clause (i), without the consent of the Holders of all Certificates affected thereby, (vi) significantly change the activities of the Trust, without the consent of the Holders of Certificates representing more than 50% of all the Voting Rights or (vii) modify the provisions of this Section 14.3 without the consent of the Holders of all Certificates then outstanding; provided that no such amendment may modify Section 8.18 of this Agreement without Rating Agency Confirmation.  The Trustee shall not consent to any amendment to this Agreement pursuant to this subsection (c) unless it shall have first received a Nondisqualification Opinion and/or an Opinion of Counsel that such amendment will not result in an Adverse REMIC Event or an Adverse Grantor Trust Event, as applicable, and an Opinion of Counsel that any amendment pursuant to this Section 14.3(c) is permitted by this Agreement at the expense of the party requesting the amendment.


 


(d) The costs and expenses associated with any such amendment shall be borne by the Depositor in the case the Trustee is the party requesting such amendment or if pursuant to clauses (i), (ii) and (iii) of Section 14.3(a).  In all other cases, the costs and expenses shall be borne by the party requesting the amendment.


 


(e) Promptly after the execution of any such amendment, the Trustee shall furnish written notification of the substance of such amendment to each Holder, the Depositor and to the Rating Agencies.


 


(f) It shall not be necessary for the consent of Holders under this Section 14.3 to approve the particular form of any proposed amendment, but it shall be sufficient if such consent shall approve the substance thereof.  The manner of obtaining such consents and of evidencing the authorization of the execution thereof by Holders shall be in the affirmative and in writing and shall be subject to such reasonable regulations as the Trustee may prescribe.


 


(g) Notwithstanding anything to the contrary contained in this Section 14.3, the parties hereto agree that this Agreement may not be amended in any manner that is reasonably likely to have an adverse effect on any Primary Servicer without first obtaining the written consent of such Primary Servicer.  Furthermore, notwithstanding any contrary provisions of this Agreement, this Agreement may not be amended in a manner that would adversely affect the distributions to the Swap Counterparty or the rights of the Swap Counterparty under the Swap Contract without the consent of the Swap Counterparty (which shall not be unreasonably withheld).


 


(h) Notwithstanding the fact that the provisions in Section 14.3(c) would otherwise apply, with respect to any amendment that significantly modifies the permitted activities of the Trustee, the Master Servicer or the Special Servicer, any Certificate beneficially owned by a Seller or any of its Affiliates shall be deemed not to be outstanding (and shall not be considered when determining the percentage of Certificateholders consenting or when calculating the total number of Certificates entitled to consent) for purposes of determining if the requisite consents of Certificateholders under this Section 14.3 have been obtained.


 









  





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(i) Notwithstanding anything to the contrary contained in this Section 14.3, the parties hereto agree that this Agreement may be amended pursuant to Section 8.26(d) herein without any notice to or consent of any of the Certificateholders, Opinions of Counsel, Officer’s Certificates or Rating Agency Confirmation.


 


Section 14.4 GOVERNING LAW


 


THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.


 


Section 14.5 Notices


 


All demands, notices and communications hereunder shall be in writing and shall be deemed to have been duly given when received by (A) in the case of the Depositor, Morgan Stanley Capital I Inc., 1585 Broadway, New York, New York 10036, Attention:  Warren Friend, with a copy to General Counsel; (B) in the case of the Trustee, Paying Agent and Certificate Registrar at the Corporate Trust Office; (C) in the case of the Master Servicer, _______, telecopy number: (__) _______, Attention: _______; (D) in the case of the Special Servicer, _______, Attention: _______, telecopy number: (__) _______; (E) in the case of MSMC, 1585 Broadway, New York, New York 10036, Attention:  Warren Friend, with a copy to General Counsel; (F) in the case of [identify names and addresses of other Sellers]; and (G) in the case of the Swap Counterparty, [Morgan Stanley Capital Services Inc., 1585 Broadway, New York, New York 10036, Attn: Chief Legal Officer].  Any notice required or permitted to be mailed to a Holder shall be given by first class mail, postage prepaid, at the address of such Holder as shown in the Certificate Register.  Any notice so mailed within the time prescribed in this Agreement shall be conclusively presumed to have been duly given, whether or not the Holder receives such notice.


 


Section 14.6 Severability of Provisions


 


If any one or more of the covenants, agreements, provisions or terms of this Agreement shall be for any reason whatsoever held invalid, then such covenants, agreements, provisions or terms shall be deemed severable from the remaining covenants, agreements, provisions or terms of this Agreement and shall in no way affect the validity or enforceability of the other provisions of this Agreement or of the Certificates or the rights of the Holders thereof.


 


Section 14.7 Indulgences; No Waivers


 


Neither the failure nor any delay on the part of a party to exercise any right, remedy, power or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege preclude any other or further exercise of the same or of any other right, remedy, power or privilege, nor shall any waiver of any right, remedy, power or privilege with respect to any occurrence be construed as a waiver of such right, remedy, power or privilege with respect to any other occurrence.  No waiver shall be effective unless it is in writing and is signed by the party asserted to have granted such waiver.


 









  





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Section 14.8 Headings Not to Affect Interpretation


 


The headings contained in this Agreement are for convenience of reference only, and shall not be used in the interpretation hereof.


 


Section 14.9 Benefits of Agreement


 


Nothing in this Agreement or in the Certificates, express or implied, shall give to any Person, other than the parties to this Agreement (including any Primary Servicer to the extent applicable to such Primary Servicer) and their successors hereunder and the Holders of the Certificates, any benefit or any legal or equitable right, power, remedy or claim under this Agreement; provided, however, that Swap Counterparty and its permitted successors and assigns shall be intended third-party beneficiaries of this Agreement and the Swap Counterparty may directly enforce such rights, and the Underwriters are third party beneficiaries of Sections 13.2, 13.3, 13.4 and 13.14.  This Agreement may not be amended in any manner that would adversely affect the rights of any third party beneficiary without its reasonable consent.  Each holder of a right to receive Excess Servicing Fees shall be a third party beneficiary to this Agreement with respect to its right to receive such Excess Servicing Fees.


 


Section 14.10 Special Notices to the Rating Agencies


 


(a) The Trustee (or the Master Servicer in the case of clauses (vi) and (vii) below) shall give prompt notice to the Rating Agencies, the Special Servicer and the Operating Adviser of the occurrence of any of the following events of which it has notice:


 


(i) any amendment to this Agreement pursuant to Section 14.3 hereof;


 


(ii) the Interim Certification and the Final Certification required pursuant to Section 2.2 hereof;


 


(iii) notice of the repurchase of any Mortgage Loan pursuant to Section 2.3(a) hereof;


 


(iv) any resignation of the Master Servicer, the Special Servicer, the Paying Agent, the Operating Adviser or the Trustee pursuant to this Agreement;


 


(v) the appointment of any successor to the Master Servicer, the Trustee, the Paying Agent, the Operating Adviser or the Special Servicer pursuant to Section 7.7, 7.14 or 9.37 hereof;


 


(vi) waiver of a due-on-sale clause as provided in Section 8.7;


 


(vii) waiver of a prohibition on subordinate liens on the Mortgaged Properties;


 


(viii) the making of a final payment pursuant to Section 10.3 hereof;


 


(ix) a Servicing Transfer Event; and


 









  





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(x) an Event of Default.


 


(b) All notices to the Rating Agencies shall be in writing and sent by first class mail, telecopy or overnight courier, as follows:


 



	
  

	
[If to Moody’s, to:







 







 



	
  

	
Moody’s Investors Service, Inc.








	
  

	
99 Church Street








	
  

	
New York, NY  10009








	
  

	
Fax:  (212) 553 0300








	
  

	
Attention:  Structured Finance Commercial Real Estate Monitoring







 



	
  

	
If to S&P, to:







 







 



	
  

	
Standard & Poor’s Ratings Services








	
  

	
55 Water Street








	
  

	
New York, NY  10041








	
  

	
Fax:  (212) 438-2662








	
  

	
Attention:  Commercial Mortgage Surveillance Manager]







 


or at such address as shall be provided in writing to the Depositor by such Rating Agency.


 


(c) The Trustee, or in the case of clauses (i) and (ii), the successor trustee shall give prompt notice to the Rating Agencies of the occurrence of any of the following events:


 


(i) the resignation or removal of the Trustee pursuant to Section 7.6; or


 


(ii) the appointment of a successor trustee pursuant to Section 7.7; or


 


(iii) the appointment of a successor Operating Adviser pursuant to Section 9.37.


 


(d) The Master Servicer shall deliver to the Rating Agencies and the Depositor any other information as reasonably requested by the Rating Agencies and the Depositor, and the Master Servicer shall deliver to the Primary Servicers and the Special Servicer each of the reports required to be delivered by the Master Servicer to the Primary Servicers and the Special Servicer pursuant to the terms of this Agreement.  The Trustee, the Paying Agent and the Special Servicer shall deliver to the Rating Agencies and the Depositor any information as reasonably requested by the Rating Agencies and Depositor, as the case may be.


 


(e) Any notice or other document required to be delivered or mailed by the Depositor, the Master Servicer, the Paying Agent or the Trustee shall be given by such parties, respectively, on a best efforts basis and only as a matter of courtesy and accommodation to the Rating Agencies, unless otherwise specifically required herein, and such parties, respectively, shall have no liability for failure to deliver any such notice or document to the Rating Agencies.


 









  





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Section 14.11 Counterparts


 


This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, and all of which together shall constitute one and the same instrument.


 


Section 14.12 Intention of Parties


 


It is the express intent of the parties hereto that the conveyance of the Mortgage Loans and related rights and property to the Trustee, for the benefit of the Certificateholders, by the Depositor as provided in Section 2.1 be, and be construed as, an absolute sale of the Mortgage Loans and related property.  It is, further, not the intention of the parties that such conveyance be deemed a pledge of the Mortgage Loans and related property by the Depositor to the Trustee to secure a debt or other obligation of the Depositor.  However, in the event that, notwithstanding the intent of the parties, the Mortgage Loans or any related property is held to be the property of the Depositor, or if for any other reason this Agreement is held or deemed to create a security interest in the Mortgage Loans or any related property, then this Agreement shall be deemed to be a security agreement; and the conveyance provided for in Section 2.1 shall be deemed to be a grant by the Depositor to the Trustee, for the benefit of the Certificateholders, of a security interest in all of the Depositor’s right, title, and interest, whether now owned or hereafter acquired, in and to:


 


(i) All accounts, general intangibles, chattel paper, instruments, documents, money, deposit accounts, certificates of deposit, goods, letters of credit, advices of credit and investment property consisting of, arising from or relating to any of the property described in clauses (1)-(4) below:  (1) the Mortgage Loans (including the related Mortgage Notes, Mortgages, security agreements, and title, hazard and other insurance policies) identified on the Mortgage Loan Schedule, including all Qualifying Substitute Mortgage Loans, all distributions with respect thereto payable on and after the Cut-Off Date, and the Mortgage Files; (2) the Distribution Account, the Floating Rate Account, the Interest Reserve Accounts, the Reserve Account, all REO Accounts, and the Certificate Accounts, including all property therein and all income from the investment of funds therein (including any accrued discount realized on liquidation of any investment purchased at a discount); (3) the REMIC I Regular Interests, the REMIC II Regular Interests and the Class A-3-1FL Regular Interest; and (4) the Mortgage Loan Purchase Agreements;


 


(ii) All accounts, general intangibles, chattel paper, instruments, documents, money, deposit accounts, certificates of deposit, goods, letters of credit, advices of credit, investment property, and other rights arising from or by virtue of the disposition of, or collections with respect to, or insurance proceeds payable with respect to, or claims against other Persons with respect to, all or any part of the collateral described in clause (A) above (including any accrued discount realized on liquidation of any investment purchased at a discount); and


 


(iii) All cash and non-cash proceeds of the collateral described in clauses (i) and (ii) above.


 


 









  





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The possession by the Trustee of the Mortgage Notes, the Mortgages and such other goods, letters of credit, advices of credit, instruments, money, documents, chattel paper or certificated securities shall be deemed to be possession by the secured party or possession by a purchaser for purposes of perfecting the security interest pursuant to the Uniform Commercial Code (including, without limitation, Sections 9-115 and 9-305 thereof) as in force in the relevant jurisdiction.


 


Notifications to Persons holding such property, and acknowledgments, receipts or confirmations from Persons holding such property, shall be deemed to be notifications to, or acknowledgments, receipts or confirmations from, securities intermediaries, bailees or agents of, or Persons holding for, the Trustee, as applicable, for the purpose of perfecting such security interest under applicable law.


 


The Depositor and, at the Depositor’s direction, the Master Servicer and the Trustee, shall, to the extent consistent with this Agreement, take such reasonable actions as may be necessary to ensure that, if this Agreement were deemed to create a security interest in the property described above, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of the Agreement.  The Master Servicer shall file, at the expense of the Trust as an Additional Trust Expense all filings necessary to maintain the effectiveness of any original filings necessary under the Uniform Commercial Code as in effect in any jurisdiction to perfect the Trustee’s security interest in such property, including without limitation (i) continuation statements, and (ii) such other statements as may be occasioned by any transfer of any interest of the Master Servicer or the Depositor in such property.  In connection herewith, the Trustee shall have all of the rights and remedies of a secured party and creditor under the Uniform Commercial Code as in force in the relevant jurisdiction.


 


Section 14.13 Recordation of Agreement


 


This Agreement is subject to recordation in all appropriate public offices for real property records in all the counties or other comparable jurisdictions in which any or all of the properties subject to the Mortgages are situated, and in any other appropriate public recording office or elsewhere.  Such recordation, if any, shall be effected by the Master Servicer at the expense of the Trust as an Additional Trust Expense, but only upon direction of the Depositor accompanied by an Opinion of Counsel to the effect that such recordation materially and beneficially affects the interests of the Certificateholders of the Trust.


 


Section 14.14 Rating Agency Monitoring Fees


 


The parties hereto acknowledge that on the Closing Date the Sellers will pay the ongoing monitoring fees of the Rating Agencies relating to the rating of the Certificates and that no monitoring fees are payable subsequent to the Closing Date in respect of the rating of the Certificates.  The Master Servicer shall not be required to pay any such fees or any fees charged for any Rating Agency Confirmation (except any confirmation required under Section 8.22, Section 8.23 or in connection with a termination and replacement of the Master Servicer following an Event of Default of the Master Servicer).


 









  





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IN WITNESS WHEREOF, the Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying Agent and the Certificate Registrar have caused their names to be signed hereto by their respective officers thereunto duly authorized as of the day and year first above written.


 



	
  

	
MORGAN STANLEY CAPITAL I INC.,








	
  

	
as Depositor







 



	
By:

	 	 






	
  

	
Name:








	
  

	
Title:







 



	
  

	
_______,







 



	
  

	
as Master Servicer







 



	
By:

	 	 






	
  

	
Name:








	
  

	
Title:







 



	
  

	
_______,







 



	
  

	
as Special Servicer







 



	
By:

	 	 






	
  

	
Name:








	
  

	
Title:







 



	
  

	
_______, as Trustee, Paying Agent and Certificate Registrar







 



	
By:

	 	 






	
  

	
Name:








	
  

	
Title:







 


 


 




  





  











  






 



 



	STATE OF	)	 	 
	 	:	 ss.:	 
	COUNTY OF	)	 	 







                                           


 


On the ______ day of _____ in the year 20__, before me, the undersigned, personally appeared _________________________________________________, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her capacity, and that by his/her signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument, and that such individual made such appearance before the undersigned in the ___________________________ (insert the city or other political subdivision and the state or county or other place the acknowledgment was taken).


 







 


Signature and Office of individual taking acknowledgment


 


 




  





  











  








 


 


EXHIBIT A-1


 


[FORM OF CLASS A-1 CERTIFICATE]


 


THIS CLASS A-1 CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE PAYING AGENT, THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.


 


THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR INCREASED AS SET FORTH ON THE SCHEDULE OF EXCHANGES ATTACHED HERETO.


 


IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST BE AN ACCREDITED INVESTOR.


 


THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS, REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS CLASS A-1 CERTIFICATE.  ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW.  ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.


 


UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.


 


THIS CERTIFICATE REPRESENTS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, 


 


 


 


 




  





A-1-1











  






RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”).


 


 


 




  





A-1-2











  






 


MORGAN STANLEY CAPITAL I INC.


 


COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,


 


SERIES [_____]


 








	
INITIAL PASS-THROUGH RATE:  [_]%

	
MASTER SERVICER:  [_____]


	
DATE OF POOLING AND SERVICING AGREEMENT:  [_____], 20[_]

	
SPECIAL SERVICER:  [_____]


	
CUT-OFF DATE:  [_____], 20[_]

	
PAYING AGENT:  [_____]


	
CLOSING DATE:  [_____], 20[_]

	
TRUSTEE:  [_____]


	
FIRST DISTRIBUTION DATE:  [_____], 20[_]

	  
	
AGGREGATE CERTIFICATE BALANCE OF THE CLASS A-1 CERTIFICATES AS OF THE CLOSING DATE:  $[_____]

	  
	
CERTIFICATE BALANCE OF THIS CLASS A-1 CERTIFICATE AS OF THE CLOSING DATE:  $[_____] (SUBJECT TO SCHEDULE OF EXCHANGES ATTACHED)

	  
	  	  
	
No.  A-1-1

	
CUSIP No.: [_____]


	  	  





 







 


 


 


 




  





A-1-3











  






CLASS A-1 CERTIFICATE


 


evidencing a beneficial ownership interest in a Trust, consisting primarily of a pool of commercial and multifamily mortgage loans (the “Mortgage Loans”) and certain other property, formed and sold by


 


MORGAN STANLEY CAPITAL I INC.


 


THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced by this Certificate in the Class A-1 Certificates issued by the Trust created pursuant to the Pooling and Servicing Agreement, dated as specified above (the “Pooling and Servicing Agreement”), among Morgan Stanley Capital I Inc. (hereinafter called the “Depositor”, which term includes any successor entity under the Pooling and Servicing Agreement), the Trustee, the Paying Agent, the Certificate Registrar, the Master Servicer and the Special Servicer, a summary of certain of the pertinent provisions of which is set forth hereafter.  The Trust consists primarily of the Mortgage Loans, such amounts as shall from time to time be held in the Certificate Account and Distribution Account, the Insurance Policies and any REO Properties.  To the extent not defined herein, the capitalized terms used herein have the meanings assigned in the Pooling and Servicing Agreement.


 


This Certificate is one of a duly authorized issue of Certificates designated as Certificates of the series specified on the face hereof (herein called the “Certificates”) and representing an interest in the Class of Certificates specified on the face hereof equal to the quotient expressed as a percentage obtained by dividing the Certificate Balance of this Certificate specified on the face hereof by the aggregate initial Certificate Balance of the Class A-1 Certificates.  The Certificates are designated as the Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series [_____] and are issued in the Classes specified in the Pooling and Servicing Agreement.  The Certificates will evidence in the aggregate 100% of the beneficial ownership of the Trust.


 


This Certificate does not purport to summarize the Pooling and Servicing Agreement and reference is made to that Agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the Trustee and the Paying Agent.  This Certificate is issued under and is subject to the terms, provisions and conditions of the Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as amended from time to time, the Certificateholder by virtue of the acceptance hereof assents and by which the Certificateholder is bound.  In the case of any conflict between terms specified in this Certificate and terms specified in the Pooling and Servicing Agreement, the terms of the Pooling and Servicing Agreement shall govern.


 


Distributions of principal of and interest on this Certificate will be made out of the Available Distribution Amount, to the extent and subject to the limitations set forth in the Pooling and Servicing Agreement, on the 15th day of each month or, if such 15th day is not a Business Day, the next succeeding Business Day (a “Distribution Date”) commencing on the first Distribution Date specified above, to the Person in whose name this Certificate is registered at the close of business on the last Business Day of the month immediately preceding the month 


 


 


 


 




  





A-1-4











  






of such distribution (the “Record Date”).  All sums distributable on this Certificate are payable in the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.


 


Interest on this Certificate will accrue (computed as if each year consisted of 360 days and each month consisted of 30 days) during the Interest Accrual Period relating to such Distribution Date at the Pass-Through Rate on the Certificate Balance of this Certificate immediately prior to each Distribution Date.  Principal and interest allocated to this Certificate on any Distribution Date will be in an amount due to this Certificate’s pro rata share of the amount to be distributed on the Certificates of this Class as of such Distribution Date, with a final distribution to be made upon retirement of this Certificate as set forth in the Pooling and Servicing Agreement.


 


Unless the certificate of authentication hereon has been executed by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.


 


Realized Losses, Expense Losses and interest shortfalls on the Mortgage Loans shall be allocated on the applicable Distribution Date to Certificateholders in the manner set forth in the Pooling and Servicing Agreement.  All Realized Losses, Expense Losses and interest shortfalls on the Mortgage Loans allocated to any Class of Certificates will be allocated pro rata among the outstanding Certificates of such Class.


 


The Certificates are limited in right of payment to certain collections and recoveries respecting the Mortgage Loans, all as more specifically set forth in the Pooling and Servicing Agreement.  As provided in the Pooling and Servicing Agreement, withdrawals from the Certificate Account shall be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of certain expenses incurred with respect to the servicing of the Mortgage Loans and administration of the Trust.


 


All distributions under the Pooling and Servicing Agreement to a nominee of The Depository Trust Company (“DTC”) will be made by or on behalf of the Paying Agent by wire transfer in immediately available funds to an account specified in the request of such Certificateholder.  All distributions under the Pooling and Servicing Agreement to Certificateholders will be made by wire transfer in immediately available funds to the account specified by the Certificateholder, at a bank or other entity having appropriate facilities therefor, if such Certificateholder will have provided the Paying Agent with wiring instructions on or prior to the related Record Date or otherwise by check mailed to such Certificateholder. Notwithstanding the above, the final distribution on any Certificate will be made only upon presentation and surrender of such Certificate at the location that will be specified in a notice of the pendency of such final distribution.


 


The Pooling and Servicing Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Certificateholders under the Pooling and Servicing Agreement at any time by the parties thereto with the consent of the Holders of not less than 51% of the Aggregate Certificate Balance of the Certificates then outstanding (and under certain circumstances, without regard to Certificates 


 


 


 


 




  





A-1-5











  






held by the Depositor, any of the Depositor’s Affiliates and/or agents or any Seller), as specified in the Pooling and Servicing Agreement.  Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange therefor or in lieu hereof whether or not notation of such consent is made upon the Certificate.  The Pooling and Servicing Agreement also permits the amendment thereof, in certain circumstances, without the consent of the Holders of any of the Certificates.


 


As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the Corporate Trust Office of the Certificate Registrar, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Certificate Registrar duly executed by the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized denominations will be issued to the designated transferee or transferees.


 


Subject to the terms of the Pooling and Servicing Agreement, the Certificates are issuable in fully registered form only, without coupons, in minimum denominations specified in the Pooling and Servicing Agreement.


 


As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, Certificates are exchangeable for new Certificates of the same Class in authorized denominations as requested by the Holder surrendering the same.  No service charge will be made to a Certificateholder for any such registration of transfer or exchange, but the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.


 


Notwithstanding the foregoing, for so long as this Certificate is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC, transfers of interests in this Certificate shall be made through the book entry facilities of DTC.


 


The Trustee, the Paying Agent, the Master Servicer, the Special Servicer or the Operating Adviser may treat the Person in whose name this Certificate is registered as of the related Record Date as the owner hereof for the purpose of receiving distributions as provided in the Pooling and Servicing Agreement and for all other purposes whatsoever, and none of the Trustee, the Paying Agent, the Master Servicer, the Special Servicer or the Operating Adviser shall be affected by notice to the contrary.


 


The obligations and responsibilities of the Trustee and the Paying Agent created hereby (other than the obligation of the Paying Agent, to make payments to the Class R-I Certificateholders, Class R-II Certificateholders and the REMIC III Certificateholders as set forth in Section 10.2 of the Pooling and Servicing Agreement and other than the obligations in the nature of information or tax reporting) shall terminate on the earliest of (i) the later of (A) the final payment or other liquidation of the last Mortgage Loan remaining in the Trust (and final 


 


 


 


 




  





A-1-6











  






distribution to the Certificateholders) and (B) the disposition of all REO Property (and final distribution to the Certificateholders), (ii) the sale of the property held by the Trust in accordance with Section 10.1(b) of the Pooling and Servicing Agreement, (iii) the termination of the Trust pursuant to Section 10.1(c) of the Pooling and Servicing Agreement or (iv) the transfer of the property held in the Trust in accordance with Section 10.1(d) of the Pooling and Servicing Agreement; provided that in no event shall the Trust continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the Court of St. James, living on the date hereof.  The parties designated in the Pooling and Servicing Agreement may exercise their option to purchase, in whole only, the Mortgage Loans and any other property, if any, remaining in the Trust and cause the termination of the Trust in accordance with the requirements set forth in the Pooling and Servicing Agreement.  Upon termination of the Trust and payment of the Certificates and of all administrative expenses associated with the Trust, any remaining assets of the Trust shall be distributed to the holders of the Residual Certificates.


 


The Certificate Registrar has executed this Certificate under the Pooling and Servicing Agreement.


 


THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.


 


 


 


 


 




  





A-1-7











  






IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to be duly executed under this official seal.


 




	 	[__________],	 	 
	 	 	as Certificate Registrar,	 
	 	 	 	 
	 	 	 	 
	
 

	
By: 

	 	 
	 	 	AUTHORIZED SIGNATORY	 







 


Dated:  [_____], 20[__]


 


CERTIFICATE OF AUTHENTICATION


 


THIS IS ONE OF THE CLASS A-1 CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.



 




	 	[__________],	 	 
	 	 	AUTHENTICATING AGENT	 
	 	 	 	 
	 	 	 	 
	
 

	
By: 

	 	 
	 	 	AUTHORIZED SIGNATORY	 







 




 


 


 


 


 


 


 


 




  





A-1-8











  






ABBREVIATIONS


 


The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as though they were written out in full according to applicable laws or regulations:


 




	
TEN COM

	
-

	
as tenant in common

	  	
UNIF GIFT MIN ACT.........Custodian


	
TEN ENT

	
-

	
as tenants by the entireties

	  	
(Cust)


	
JT TEN

	
-

	
as joint tenants with rights of survivorship and not as tenants in common

	  	
Under Uniform Gifts to Minors


Act..........................


(State)









 


Additional abbreviations may also be used though not in the above list.


FORM OF TRANSFER


 


FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto



	  



 


	  	
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE


	  



 


	  
	
Please print or typewrite name and address of assignee


 


	
the within Certificate and does hereby or irrevocably constitute and appoint


 


	
to transfer the said Certificate in the Certificate Register of the within-named Trust, with full power of substitution in the premises.


 








 



	Dated:                            	 	 
	 	NOTICE:  The signature to this assignment must correspond with the name as written upon the face of this Certificate in every particular without alteration or enlargement or any change whatever.	 
	                                              	 	 
	 	 	 
	 	 	 
	
SIGNATURE GUARANTEED

	 	 
	
The signature must be guaranteed by a commercial bank or trust company or by a member firm of the New York Stock Exchange or another national securities exchange.  Notarized or witnessed signatures are not acceptable.

	 	 





 




 







 


 




  





A-1-9











  






DISTRIBUTION INSTRUCTIONS


 


The assignee should include the following for purposes of distribution:


 


Distributions shall be made, by wire transfer or otherwise, in immediately available funds to_____________ for the account of ___________________________ account number ______________ or, if mailed by check, to ______________________________.  Statements should be mailed to ____________________.  This information is provided by assignee named above, or _______________________, as its agent.


 


 


 


 


 




  





A-1-10











  






[TO BE ATTACHED TO GLOBAL CERTIFICATES]


 


SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES


 


The following exchanges of a part of this Global Certificate have been made:












 


 


 




 




  





A-1-11











  






 


EXHIBIT A-2


 


[FORM OF CLASS A-1A CERTIFICATE]


 


THIS CLASS A-1A CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE PAYING AGENT, THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.


 


THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR INCREASED AS SET FORTH ON THE SCHEDULE OF EXCHANGES ATTACHED HERETO.


 


IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST BE AN ACCREDITED INVESTOR.


 


THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS, REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS CLASS A-1A CERTIFICATE.  ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW.  ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.


 


UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.


 


THIS CERTIFICATE REPRESENTS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,


 


 


 


 




  





A-2-1











  






RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”).


 


 


 


 


 


 


 


 


 


 




  





A-2-2











  






MORGAN STANLEY CAPITAL I INC.


 


COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,


 


SERIES [_____]


 








	
INITIAL PASS-THROUGH RATE:  [_]%

	
MASTER SERVICER:  [_____]


	
DATE OF POOLING AND SERVICING AGREEMENT:  [_____], 20[_]

	
SPECIAL SERVICER:  [_____]


	
CUT-OFF DATE:  [_____], 20[_]

	
PAYING AGENT:  [_____]


	
CLOSING DATE:  [_____], 20[_]

	
TRUSTEE:  [_____]


	
FIRST DISTRIBUTION DATE:  [_____], 20[_]

	  
	
AGGREGATE CERTIFICATE BALANCE OF THE CLASS A-1A CERTIFICATES AS OF THE CLOSING DATE:  $[_____]

	  
	
CERTIFICATE BALANCE OF THIS CLASS A-1A CERTIFICATE AS OF THE CLOSING DATE:  $[_____] (SUBJECT TO SCHEDULE OF EXCHANGES ATTACHED)

	  
	  	  
	
No.  A-1A-1

	
CUSIP No.: [_____]


	  	  





 







 


 


 




  





A-2-3











  






CLASS A-1A CERTIFICATE


 


evidencing a beneficial ownership interest in a Trust, consisting primarily of a pool of commercial and multifamily mortgage loans (the “Mortgage Loans”) and certain other property, formed and sold by


 


MORGAN STANLEY CAPITAL I INC.


 


THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced by this Certificate in the Class A-1A Certificates issued by the Trust created pursuant to the Pooling and Servicing Agreement, dated as specified above (the “Pooling and Servicing Agreement”), among Morgan Stanley Capital I Inc. (hereinafter called the “Depositor”, which term includes any successor entity under the Pooling and Servicing Agreement), the Trustee, the Paying Agent, the Certificate Registrar, the Master Servicer and the Special Servicer, a summary of certain of the pertinent provisions of which is set forth hereafter.  The Trust consists primarily of the Mortgage Loans, such amounts as shall from time to time be held in the Certificate Account and Distribution Account, the Insurance Policies and any REO Properties.  To the extent not defined herein, the capitalized terms used herein have the meanings assigned in the Pooling and Servicing Agreement.


 


This Certificate is one of a duly authorized issue of Certificates designated as Certificates of the series specified on the face hereof (herein called the “Certificates”) and representing an interest in the Class of Certificates specified on the face hereof equal to the quotient expressed as a percentage obtained by dividing the Certificate Balance of this Certificate specified on the face hereof by the aggregate initial Certificate Balance of the Class A-1A Certificates.  The Certificates are designated as the Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series [_____] and are issued in the Classes specified in the Pooling and Servicing Agreement.  The Certificates will evidence in the aggregate 100% of the beneficial ownership of the Trust.


 


This Certificate does not purport to summarize the Pooling and Servicing Agreement and reference is made to that Agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the Trustee and the Paying Agent.  This Certificate is issued under and is subject to the terms, provisions and conditions of the Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as amended from time to time, the Certificateholder by virtue of the acceptance hereof assents and by which the Certificateholder is bound.  In the case of any conflict between terms specified in this Certificate and terms specified in the Pooling and Servicing Agreement, the terms of the Pooling and Servicing Agreement shall govern.


 


Distributions of principal of and interest on this Certificate will be made out of the Available Distribution Amount, to the extent and subject to the limitations set forth in the Pooling and Servicing Agreement, on the 15th day of each month or, if such 15th day is not a Business Day, the next succeeding Business Day (a “Distribution Date”) commencing on the first Distribution Date specified above, to the Person in whose name this Certificate is registered at the close of business on the last Business Day of the month immediately preceding the month 


 


 


 




  





A-2-4











  






 


of such distribution (the “Record Date”).  All sums distributable on this Certificate are payable in the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.


 


Interest on this Certificate will accrue (computed as if each year consisted of 360 days and each month consisted of 30 days) during the Interest Accrual Period relating to such Distribution Date at the Pass-Through Rate on the Certificate Balance of this Certificate immediately prior to each Distribution Date.  Principal and interest allocated to this Certificate on any Distribution Date will be in an amount due to this Certificate’s pro rata share of the amount to be distributed on the Certificates of this Class as of such Distribution Date, with a final distribution to be made upon retirement of this Certificate as set forth in the Pooling and Servicing Agreement.


 


Unless the certificate of authentication hereon has been executed by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.


 


Realized Losses, Expense Losses and interest shortfalls on the Mortgage Loans shall be allocated on the applicable Distribution Date to Certificateholders in the manner set forth in the Pooling and Servicing Agreement.  All Realized Losses, Expense Losses and interest shortfalls on the Mortgage Loans allocated to any Class of Certificates will be allocated pro rata among the outstanding Certificates of such Class.


 


The Certificates are limited in right of payment to certain collections and recoveries respecting the Mortgage Loans, all as more specifically set forth in the Pooling and Servicing Agreement.  As provided in the Pooling and Servicing Agreement, withdrawals from the Certificate Account shall be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of certain expenses incurred with respect to the servicing of the Mortgage Loans and administration of the Trust.


 


All distributions under the Pooling and Servicing Agreement to a nominee of The Depository Trust Company (“DTC”) will be made by or on behalf of the Paying Agent by wire transfer in immediately available funds to an account specified in the request of such Certificateholder.  All distributions under the Pooling and Servicing Agreement to Certificateholders will be made by wire transfer in immediately available funds to the account specified by the Certificateholder, at a bank or other entity having appropriate facilities therefor, if such Certificateholder will have provided the Paying Agent with wiring instructions on or prior to the related Record Date or otherwise by check mailed to such Certificateholder. Notwithstanding the above, the final distribution on any Certificate will be made only upon presentation and surrender of such Certificate at the location that will be specified in a notice of the pendency of such final distribution.


 


The Pooling and Servicing Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Certificateholders under the Pooling and Servicing Agreement at any time by the parties thereto with the consent of the Holders of not less than 51% of the Aggregate Certificate Balance of the Certificates then outstanding (and under certain circumstances, without regard to Certificates 


 


 


 




  





A-2-5











  






held by the Depositor, any of the Depositor’s Affiliates and/or agents or any Seller), as specified in the Pooling and Servicing Agreement.  Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange therefor or in lieu hereof whether or not notation of such consent is made upon the Certificate.  The Pooling and Servicing Agreement also permits the amendment thereof, in certain circumstances, without the consent of the Holders of any of the Certificates.


 


As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the Corporate Trust Office of the Certificate Registrar, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Certificate Registrar duly executed by the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized denominations will be issued to the designated transferee or transferees.


 


Subject to the terms of the Pooling and Servicing Agreement, the Certificates are issuable in fully registered form only, without coupons, in minimum denominations specified in the Pooling and Servicing Agreement.


 


As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, Certificates are exchangeable for new Certificates of the same Class in authorized denominations as requested by the Holder surrendering the same.  No service charge will be made to a Certificateholder for any such registration of transfer or exchange, but the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.


 


Notwithstanding the foregoing, for so long as this Certificate is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC, transfers of interests in this Certificate shall be made through the book entry facilities of DTC.


 


The Trustee, the Paying Agent, the Master Servicer, the Special Servicer or the Operating Adviser may treat the Person in whose name this Certificate is registered as of the related Record Date as the owner hereof for the purpose of receiving distributions as provided in the Pooling and Servicing Agreement and for all other purposes whatsoever, and none of the Trustee, the Paying Agent, the Master Servicer, the Special Servicer or the Operating Adviser shall be affected by notice to the contrary.


 


The obligations and responsibilities of the Trustee and the Paying Agent created hereby (other than the obligation of the Paying Agent, to make payments to the Class R-I Certificateholders, Class R-II Certificateholders and the REMIC III Certificateholders as set forth in Section 10.2 of the Pooling and Servicing Agreement and other than the obligations in the nature of information or tax reporting) shall terminate on the earliest of (i) the later of (A) the final payment or other liquidation of the last Mortgage Loan remaining in the Trust (and final 


 


 


 




  





A-2-6











  






distribution to the Certificateholders) and (B) the disposition of all REO Property (and final distribution to the Certificateholders), (ii) the sale of the property held by the Trust in accordance with Section 10.1(b) of the Pooling and Servicing Agreement, (iii) the termination of the Trust pursuant to Section 10.1(c) of the Pooling and Servicing Agreement or (iv) the transfer of the property held in the Trust in accordance with Section 10.1(d) of the Pooling and Servicing Agreement; provided that in no event shall the Trust continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the Court of St. James, living on the date hereof.  The parties designated in the Pooling and Servicing Agreement may exercise their option to purchase, in whole only, the Mortgage Loans and any other property, if any, remaining in the Trust and cause the termination of the Trust in accordance with the requirements set forth in the Pooling and Servicing Agreement.  Upon termination of the Trust and payment of the Certificates and of all administrative expenses associated with the Trust, any remaining assets of the Trust shall be distributed to the holders of the Residual Certificates.


 


The Certificate Registrar has executed this Certificate under the Pooling and Servicing Agreement.


 


THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.


 


 


 


 




  





A-2-7











  






IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to be duly executed under this official seal.



 




	 	[__________],	 	 
	 	 	as Certificate Registrar	 
	 	 	 	 
	 	 	 	 
	
 

	
By: 

	 	 
	 	 	AUTHORIZED SIGNATORY	 







 


Dated:  [_____], 20[__]


 


CERTIFICATE OF AUTHENTICATION


 


THIS IS ONE OF THE CLASS A-1A CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.



 




	 	[__________],	 	 
	 	 	AUTHENTICATING AGENT	 
	 	 	 	 
	 	 	 	 
	
 

	
By: 

	 	 
	 	 	AUTHORIZED SIGNATORY	 







 




 


 




  





A-2-8











  








 


ABBREVIATIONS


 


The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as though they were written out in full according to applicable laws or regulations:



 




	
TEN COM

	
-

	
as tenant in common

	  	
UNIF GIFT MIN ACT.........Custodian


	
TEN ENT

	
-

	
as tenants by the entireties

	  	
(Cust)


	
JT TEN

	
-

	
as joint tenants with rights of survivorship and not as tenants in common

	  	
Under Uniform Gifts to Minors


Act..........................


(State)









 


Additional abbreviations may also be used though not in the above list.


FORM OF TRANSFER


 


FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto



	  



 


	  	
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE


	  



 


	  
	
Please print or typewrite name and address of assignee


 


	
the within Certificate and does hereby or irrevocably constitute and appoint


 


	
to transfer the said Certificate in the Certificate Register of the within-named Trust, with full power of substitution in the premises.


 








 



	Dated:                            	 	 
	 	NOTICE:  The signature to this assignment must correspond with the name as written upon the face of this Certificate in every particular without alteration or enlargement or any change whatever.	 
	                                              	 	 
	 	 	 
	 	 	 
	
SIGNATURE GUARANTEED

	 	 
	
The signature must be guaranteed by a commercial bank or trust company or by a member firm of the New York Stock Exchange or another national securities exchange.  Notarized or witnessed signatures are not acceptable.

	 	 





 




 




 




  





A-2-9











  






DISTRIBUTION INSTRUCTIONS


 


The assignee should include the following for purposes of distribution:


 


Distributions shall be made, by wire transfer or otherwise, in immediately available funds to_____________ for the account of ___________________________ account number ______________ or, if mailed by check, to ______________________________.  Statements should be mailed to ____________________.  This information is provided by assignee named above, or _______________________, as its agent.


 


 


 


 


 


 


 


 




  





A-2-10











  






[TO BE ATTACHED TO GLOBAL CERTIFICATES]


 


SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES


 


The following exchanges of a part of this Global Certificate have been made:


 


 


 


 




 




  





A-2-11











  






 


EXHIBIT A-3


 


[FORM OF CLASS A-2 CERTIFICATE]


 


THIS CLASS A-2 CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE PAYING AGENT, THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.


 


THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR INCREASED AS SET FORTH ON THE SCHEDULE OF EXCHANGES ATTACHED HERETO.


 


IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST BE AN ACCREDITED INVESTOR.


 


THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS, REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS CLASS A-2 CERTIFICATE.  ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW.  ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.


 


UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.


 


THIS CERTIFICATE REPRESENTS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, 


 


 


 


 


 




  





A-3-1











  






RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”).


 


 


 


 


 




  





A-3-2











  






MORGAN STANLEY CAPITAL I INC.


COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,


SERIES [_____]


 








	
INITIAL PASS-THROUGH RATE:  [_]%

	
MASTER SERVICER:  [_____]


	
DATE OF POOLING AND SERVICING AGREEMENT:  [_____], 20[_]

	
SPECIAL SERVICER:  [_____]


	
CUT-OFF DATE:  [_____], 20[_]

	
PAYING AGENT:  [_____]


	
CLOSING DATE:  [_____], 20[_]

	
TRUSTEE:  [_____]


	
FIRST DISTRIBUTION DATE:  [_____], 20[_]

	  
	
AGGREGATE CERTIFICATE BALANCE OF THE CLASS A-2 CERTIFICATES AS OF THE CLOSING DATE:  $[_____]

	  
	
CERTIFICATE BALANCE OF THIS CLASS A-2 CERTIFICATE AS OF THE CLOSING DATE:  $[_____] (SUBJECT TO SCHEDULE OF EXCHANGES ATTACHED)

	  
	  	  
	
No.  A-2-1

	
CUSIP No.: [_____]







 







 




  





A-3-3











  






CLASS A-2 CERTIFICATE


 


evidencing a beneficial ownership interest in a Trust, consisting primarily of a pool of commercial and multifamily mortgage loans (the “Mortgage Loans”) and certain other property, formed and sold by


 


MORGAN STANLEY CAPITAL I INC.


 


THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced by this Certificate in the Class A-2 Certificates issued by the Trust created pursuant to the Pooling and Servicing Agreement, dated as specified above (the “Pooling and Servicing Agreement”), among Morgan Stanley Capital I Inc. (hereinafter called the “Depositor”, which term includes any successor entity under the Pooling and Servicing Agreement), the Trustee, the Paying Agent, the Certificate Registrar, the Master Servicer and the Special Servicer, a summary of certain of the pertinent provisions of which is set forth hereafter.  The Trust consists primarily of the Mortgage Loans, such amounts as shall from time to time be held in the Certificate Account and Distribution Account, the Insurance Policies and any REO Properties.  To the extent not defined herein, the capitalized terms used herein have the meanings assigned in the Pooling and Servicing Agreement.


 


This Certificate is one of a duly authorized issue of Certificates designated as Certificates of the series specified on the face hereof (herein called the “Certificates”) and representing an interest in the Class of Certificates specified on the face hereof equal to the quotient expressed as a percentage obtained by dividing the Certificate Balance of this Certificate specified on the face hereof by the aggregate initial Certificate Balance of the Class A-2 Certificates.  The Certificates are designated as the Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series [_____] and are issued in the Classes specified in the Pooling and Servicing Agreement.  The Certificates will evidence in the aggregate 100% of the beneficial ownership of the Trust.


 


This Certificate does not purport to summarize the Pooling and Servicing Agreement and reference is made to that Agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the Trustee and the Paying Agent.  This Certificate is issued under and is subject to the terms, provisions and conditions of the Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as amended from time to time, the Certificateholder by virtue of the acceptance hereof assents and by which the Certificateholder is bound.  In the case of any conflict between terms specified in this Certificate and terms specified in the Pooling and Servicing Agreement, the terms of the Pooling and Servicing Agreement shall govern.


 


Distributions of principal of and interest on this Certificate will be made out of the Available Distribution Amount, to the extent and subject to the limitations set forth in the Pooling and Servicing Agreement, on the 15th day of each month or, if such 15th day is not a Business Day, the next succeeding Business Day (a “Distribution Date”) commencing on the first Distribution Date specified above, to the Person in whose name this Certificate is registered at the close of business on the last Business Day of the month immediately preceding the month 


 


 


 


 




  





A-3-4











  






of such distribution (the “Record Date”).  All sums distributable on this Certificate are payable in the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.


 


Interest on this Certificate will accrue (computed as if each year consisted of 360 days and each month consisted of 30 days) during the Interest Accrual Period relating to such Distribution Date at the Pass-Through Rate on the Certificate Balance of this Certificate immediately prior to each Distribution Date.  Principal and interest allocated to this Certificate on any Distribution Date will be in an amount due to this Certificate’s pro rata share of the amount to be distributed on the Certificates of this Class as of such Distribution Date, with a final distribution to be made upon retirement of this Certificate as set forth in the Pooling and Servicing Agreement.


 


Unless the certificate of authentication hereon has been executed by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.


 


Realized Losses, Expense Losses and interest shortfalls on the Mortgage Loans shall be allocated on the applicable Distribution Date to Certificateholders in the manner set forth in the Pooling and Servicing Agreement.  All Realized Losses, Expense Losses and interest shortfalls on the Mortgage Loans allocated to any Class of Certificates will be allocated pro rata among the outstanding Certificates of such Class.


 


The Certificates are limited in right of payment to certain collections and recoveries respecting the Mortgage Loans, all as more specifically set forth in the Pooling and Servicing Agreement.  As provided in the Pooling and Servicing Agreement, withdrawals from the Certificate Account shall be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of certain expenses incurred with respect to the servicing of the Mortgage Loans and administration of the Trust.


 


All distributions under the Pooling and Servicing Agreement to a nominee of The Depository Trust Company (“DTC”) will be made by or on behalf of the Paying Agent by wire transfer in immediately available funds to an account specified in the request of such Certificateholder.  All distributions under the Pooling and Servicing Agreement to Certificateholders will be made by wire transfer in immediately available funds to the account specified by the Certificateholder, at a bank or other entity having appropriate facilities therefor, if such Certificateholder will have provided the Paying Agent with wiring instructions on or prior to the related Record Date or otherwise by check mailed to such Certificateholder. Notwithstanding the above, the final distribution on any Certificate will be made only upon presentation and surrender of such Certificate at the location that will be specified in a notice of the pendency of such final distribution.


 


The Pooling and Servicing Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Certificateholders under the Pooling and Servicing Agreement at any time by the parties thereto with the consent of the Holders of not less than 51% of the Aggregate Certificate Balance of the Certificates then outstanding (and under certain circumstances, without regard to Certificates 


 


 


 




  





A-3-5











  






held by the Depositor, any of the Depositor’s Affiliates and/or agents or any Seller), as specified in the Pooling and Servicing Agreement.  Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange therefor or in lieu hereof whether or not notation of such consent is made upon the Certificate.  The Pooling and Servicing Agreement also permits the amendment thereof, in certain circumstances, without the consent of the Holders of any of the Certificates.


 


As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the Corporate Trust Office of the Certificate Registrar, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Certificate Registrar duly executed by the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized denominations will be issued to the designated transferee or transferees.


 


Subject to the terms of the Pooling and Servicing Agreement, the Certificates are issuable in fully registered form only, without coupons, in minimum denominations specified in the Pooling and Servicing Agreement.


 


As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, Certificates are exchangeable for new Certificates of the same Class in authorized denominations as requested by the Holder surrendering the same.  No service charge will be made to a Certificateholder for any such registration of transfer or exchange, but the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.


 


Notwithstanding the foregoing, for so long as this Certificate is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC, transfers of interests in this Certificate shall be made through the book entry facilities of DTC.


 


The Trustee, the Paying Agent, the Master Servicer, the Special Servicer or the Operating Adviser may treat the Person in whose name this Certificate is registered as of the related Record Date as the owner hereof for the purpose of receiving distributions as provided in the Pooling and Servicing Agreement and for all other purposes whatsoever, and none of the Trustee, the Paying Agent, the Master Servicer, the Special Servicer or the Operating Adviser shall be affected by notice to the contrary.


 


The obligations and responsibilities of the Trustee and the Paying Agent created hereby (other than the obligation of the Paying Agent, to make payments to the Class R-I Certificateholders, Class R-II Certificateholders and the REMIC III Certificateholders as set forth in Section 10.2 of the Pooling and Servicing Agreement and other than the obligations in the nature of information or tax reporting) shall terminate on the earliest of (i) the later of (A) the final payment or other liquidation of the last Mortgage Loan remaining in the Trust (and final 


 


 


 




  





A-3-6











  






distribution to the Certificateholders) and (B) the disposition of all REO Property (and final distribution to the Certificateholders), (ii) the sale of the property held by the Trust in accordance with Section 10.1(b) of the Pooling and Servicing Agreement, (iii) the termination of the Trust pursuant to Section 10.1(c) of the Pooling and Servicing Agreement or (iv) the transfer of the property held in the Trust in accordance with Section 10.1(d) of the Pooling and Servicing Agreement; provided that in no event shall the Trust continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the Court of St. James, living on the date hereof.  The parties designated in the Pooling and Servicing Agreement may exercise their option to purchase, in whole only, the Mortgage Loans and any other property, if any, remaining in the Trust and cause the termination of the Trust in accordance with the requirements set forth in the Pooling and Servicing Agreement.  Upon termination of the Trust and payment of the Certificates and of all administrative expenses associated with the Trust, any remaining assets of the Trust shall be distributed to the holders of the Residual Certificates.


 


The Certificate Registrar has executed this Certificate under the Pooling and Servicing Agreement.


 


THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.


 


 


 


 


 




  





A-3-7











  






IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to be duly executed under this official seal.



 




	 	[__________],	 	 
	 	 	as Certificate Registrar	 
	 	 	 	 
	 	 	 	 
	
 

	
By: 

	 	 
	 	 	AUTHORIZED SIGNATORY	 







 


Dated:  [_____], 20[__]


 


CERTIFICATE OF AUTHENTICATION


 


THIS IS ONE OF THE CLASS A-2 CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.



 




	 	[__________],	 	 
	 	 	AUTHENTICATING AGENT	 
	 	 	 	 
	 	 	 	 
	
 

	
By: 

	 	 
	 	 	AUTHORIZED SIGNATORY	 







 




 




 




  





A-3-8











  






 


ABBREVIATIONS


 


The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as though they were written out in full according to applicable laws or regulations:



 




	
TEN COM

	
-

	
as tenant in common

	  	
UNIF GIFT MIN ACT.........Custodian


	
TEN ENT

	
-

	
as tenants by the entireties

	  	
(Cust)


	
JT TEN

	
-

	
as joint tenants with rights of survivorship and not as tenants in common

	  	
Under Uniform Gifts to Minors


Act..........................


(State)









 


Additional abbreviations may also be used though not in the above list.


FORM OF TRANSFER


 


FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto



	  



 


	  	
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE


	  



 


	  
	
Please print or typewrite name and address of assignee


 


	
the within Certificate and does hereby or irrevocably constitute and appoint


 


	
to transfer the said Certificate in the Certificate Register of the within-named Trust, with full power of substitution in the premises.


 








 



	Dated:                            	 	 
	 	NOTICE:  The signature to this assignment must correspond with the name as written upon the face of this Certificate in every particular without alteration or enlargement or any change whatever.	 
	                                              	 	 
	 	 	 
	 	 	 
	
SIGNATURE GUARANTEED

	 	 
	
The signature must be guaranteed by a commercial bank or trust company or by a member firm of the New York Stock Exchange or another national securities exchange.  Notarized or witnessed signatures are not acceptable.

	 	 





 


 


 


 




  





A-3-9











  






 






 


DISTRIBUTION INSTRUCTIONS


 


The assignee should include the following for purposes of distribution:


 


Distributions shall be made, by wire transfer or otherwise, in immediately available funds to_____________ for the account of ___________________________ account number ______________ or, if mailed by check, to ______________________________.  Statements should be mailed to ____________________.  This information is provided by assignee named above, or _______________________, as its agent.


 


 


 


 




  





A-3-10











  






[TO BE ATTACHED TO GLOBAL CERTIFICATES]


 


SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES


 


The following exchanges of a part of this Global Certificate have been made:


 


 


 


 


 


 


 




  





A-3-11











  






EXHIBIT A-4




 


FORM OF CLASS A-3-1FL CERTIFICATE


 


THIS CLASS A-3-1FL CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE PAYING AGENT, THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.


 


THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR INCREASED AS SET FORTH ON THE SCHEDULE OF EXCHANGES ATTACHED HERETO.


 


IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST BE AN ACCREDITED INVESTOR.


 


THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS, REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS CLASS A-3-1FL CERTIFICATE.  ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW.  ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.


 


UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.


 


THIS CERTIFICATE REPRESENTS BENEFICIAL OWNERSHIP OF A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF 


 


 


 


 


 




  





A-4-1











  






THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") AND CERTAIN OTHER ASSETS.


 


 


 


 




  





A-4-2











  






MORGAN STANLEY CAPITAL I INC.


COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,


SERIES [_____]


 



	
INITIAL PASS-THROUGH RATE: LIBOR + [_]%


 


DATE OF POOLING AND SERVICING AGREEMENT:  [_____], 20[_]


 


CUT-OFF DATE: [_____], 20[_]


 


CLOSING DATE: [_____], 20[_]


 


FIRST DISTRIBUTION DATE: [_____], 20[_]


 


AGGREGATE CERTIFICATE BALANCE OF THE CLASS A-3-1FL CERTIFICATES AS OF THE CLOSING DATE:  $[_____]


 


CERTIFICATE BALANCE OF THIS CLASS A-3-1FL CERTIFICATE AS OF THE CLOSING DATE:  $[_____] (SUBJECT TO THE SCHEDULE OF EXCHANGES ATTACHED)


 


No.  A-3-1FL-1

	
MASTER SERVICER:  [_____]


 


SPECIAL SERVICER:  [_____]


 


PAYING AGENT:  [_____]


 


TRUSTEE:  [_____]


 


CUSIP NO.:  [_____]







 


CLASS A-3-1FL CERTIFICATE


 


evidencing a beneficial ownership interest in a Trust, consisting primarily of a pool of commercial and multifamily mortgage loans (the “Mortgage Loans”) and certain other property, formed and sold by


 


 


MORGAN STANLEY CAPITAL I INC.


 


THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced by this Certificate in the Class A-3-1FL Certificates issued by the Trust created pursuant to the Pooling and Servicing Agreement, dated as specified above (the “Pooling and Servicing Agreement”), among Morgan Stanley Capital I Inc. (hereinafter called the “Depositor”, which term includes any successor entity under the Pooling and Servicing Agreement), the Trustee, the Paying Agent, the Certificate Registrar, the Master Servicer and the Special Servicer, a summary of certain of the pertinent provisions of  which is set forth hereafter.  The Trust consists primarily of the Mortgage Loans, such amounts as shall from time to time be held in the Certificate Account and Distribution Account, the Insurance Policies and any REO Properties.  To the extent not defined herein, the capitalized terms used herein have the meanings assigned in the Pooling and Servicing Agreement.


 


This Certificate is one of a duly authorized issue of Certificates designated as Certificates of the series specified on the face hereof (herein called the “Certificates”) and representing an interest in the Class of Certificates specified on the face hereof equal to the quotient expressed as 


 


 


 


 


 




  





A-4-3











  






a percentage obtained by dividing the Certificate Balance of this Certificate specified on the face hereof by the aggregate initial Certificate Balance of the Class A-3-1FL Certificates.  The Certificates are designated as the Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series [_____] and are issued in the Classes specified in the Pooling and Servicing Agreement.  The Certificates will evidence in the aggregate 100% of the beneficial ownership of the Trust.


 


This Certificate does not purport to summarize the Pooling and Servicing Agreement and reference is made to that Agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the Trustee and the Paying Agent.  This Certificate is issued under and is subject to the terms, provisions and conditions of the Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as amended from time to time, the Certificateholder by virtue of the acceptance hereof assents and by which the Certificateholder is bound.  In the case of any conflict between terms specified in this Certificate and terms specified in the Pooling and Servicing Agreement, the terms of the Pooling and Servicing Agreement shall govern.


 


Distributions of principal of and interest on this Certificate will be made out of the Available Distribution Amount, to the extent and subject to the limitations set forth in the Pooling and Servicing Agreement, on the 15th day of each month or, if such 15th day is not a Business Day, the next succeeding Business Day (a “Distribution Date”) commencing on the first Distribution Date specified above, to the Person in whose name this Certificate is registered at the close of business on the last Business Day of the month immediately preceding the month of such distribution (the “Record Date”).  All sums distributable on this Certificate are payable in the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.


 


Interest on this Certificate will accrue (computed on the basis of the actual number of days elapsed during the related Interest Accrual Period and a 360-day year) during the Interest Accrual Period relating to such Distribution Date at the Pass-Through Rate on the Certificate Balance of this Certificate immediately prior to each Distribution Date.  Principal and interest allocated to this Certificate on any Distribution Date will be in an amount due to this Certificate’s pro rata share of the amount to be distributed on the Certificates of this Class as of such Distribution Date, with a final distribution to be made upon retirement of this Certificate as set forth in the Pooling and Servicing Agreement.


 


Unless the certificate of authentication hereon has been executed by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.


 


Realized Losses, Expense Losses and interest shortfalls on the Mortgage Loans shall be allocated on the applicable Distribution Date to Certificateholders in the manner set forth in the Pooling and Servicing Agreement.  All Realized Losses, Expense Losses and interest shortfalls on the Mortgage Loans allocated to any Class of Certificates will be allocated pro rata among the outstanding Certificates of such Class.


 


 




  





A-4-4











  






The Certificates are limited in right of payment to certain collections and recoveries respecting the Mortgage Loans, all as more specifically set forth in the Pooling and Servicing Agreement.  As provided in the Pooling and Servicing Agreement, withdrawals from the Certificate Account shall be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of certain expenses incurred with respect to the servicing of the Mortgage Loans and administration of the Trust.


 


All distributions under the Pooling and Servicing Agreement to a nominee of The Depository Trust Company (“DTC”) will be made by or on behalf of the Paying Agent by wire transfer in immediately available funds to an account specified in the request of such Certificateholder.  All distributions under the Pooling and Servicing Agreement to Certificateholders will be made by wire transfer in immediately available funds to the account specified by the Certificateholder, at a bank or other entity having appropriate facilities therefor, if such Certificateholder will have provided the Paying Agent with wiring instructions on or prior to the related Record Date or otherwise by check mailed to such Certificateholder. Notwithstanding the above, the final distribution on any Certificate will be made only upon presentation and surrender of such Certificate at the location that will be specified in a notice of the pendency of such final distribution.


 


The Pooling and Servicing Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Certificateholders under the Pooling and Servicing Agreement at any time by the parties thereto with the consent of the Holders of not less than 51% of the Aggregate Certificate Balance of the Certificates then outstanding (and under certain circumstances, without regard to Certificates held by the Depositor, any of the Depositor's Affiliates and/or agents or any Seller), as specified in the Pooling and Servicing Agreement.  Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange therefor or in lieu hereof whether or not notation of such consent is made upon the Certificate.  The Pooling and Servicing Agreement also permits the amendment thereof, in certain circumstances, without the consent of the Holders of any of the Certificates.


 


As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the Corporate Trust Office of the Certificate Registrar, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Certificate Registrar duly executed by the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized denominations will be issued to the designated transferee or transferees.


 


Subject to the terms of the Pooling and Servicing Agreement, the Certificates are issuable in fully registered form only, without coupons, in minimum denominations specified in the Pooling and Servicing Agreement.


 


As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, Certificates are exchangeable for new Certificates of the same Class in 


 


 


 




  





A-4-5











  






authorized denominations as requested by the Holder surrendering the same.  No service charge will be made to a Certificateholder for any such registration of transfer or exchange, but the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.


 


Notwithstanding the foregoing, for so long as this Certificate is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC, transfers of interests in this Certificate shall be made through the book entry facilities of DTC.


 


The Trustee, the Paying Agent, the Master Servicer, the Special Servicer or the Operating Adviser may treat the Person in whose name this Certificate is registered as of the related Record Date as the owner hereof for the purpose of receiving distributions as provided in the Pooling and Servicing Agreement and for all other purposes whatsoever, and none of the Trustee, the Paying Agent, the Master Servicer, the Special Servicer or the Operating Adviser shall be affected by notice to the contrary.


 


The obligations and responsibilities of the Trustee and the Paying Agent created hereby (other than the obligation of the Paying Agent to make payments to the Class R-I Certificateholders, Class R-II Certificateholders and the REMIC III Certificateholders as set forth in Section 10.2 of the Pooling and Servicing Agreement and other than the obligations in the nature of information or tax reporting) shall terminate on the earliest of (i) the later of (A) the final payment or other liquidation of the last Mortgage Loan remaining in the Trust (and final distribution to the Certificateholders) and (B) the disposition of all REO Property (and final distribution to the Certificateholders), (ii) the sale of the property held by the Trust in accordance with Section 10.1(b) of the Pooling and Servicing Agreement, (iii) the termination of the Trust pursuant to Section 10.1(c) of the Pooling and Servicing Agreement or (iv) the transfer of the property held in the Trust in accordance with Section 10.1(d) of the Pooling and Servicing Agreement; provided that in no event shall the Trust continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the Court of St. James, living on the date hereof.  The parties designated in the Pooling and Servicing Agreement may exercise their option to purchase, in whole only, the Mortgage Loans and any other property, if any, remaining in the Trust and cause the termination of the Trust in accordance with the requirements set forth in the Pooling and Servicing Agreement.  Upon termination of the Trust and payment of the Certificates and of all administrative expenses associated with the Trust, any remaining assets of the Trust shall be distributed to the holders of the Residual Certificates.


 


The Certificate Registrar has executed this Certificate under the Pooling and Servicing Agreement.


 


THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.


 


 


 


 




  





A-4-6











  






IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to be duly executed under this official seal.


 




 




	 	[__________], as Certificate Registrar	 
	 	 	 	 
	 	 	 	 
	
 

	
By: 

	 	 
	 	 	AUTHORIZED SIGNATORY	 







 


Dated:  [_____], 20[__]


 


CERTIFICATE OF AUTHENTICATION


 


THIS IS ONE OF THE CLASS A-3-1FL CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.



 




	 	[__________],

AUTHENTICATING AGENT	 
	 	 	 	 
	 	 	 	 
	
 

	
By: 

	 	 
	 	 	AUTHORIZED SIGNATORY	 







 




 






 


 




  





A-4-7











  






 


ABBREVIATIONS


 


The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as though they were written out in full according to applicable laws or regulations:



 




	
TEN COM

	
-

	
as tenant in common

	  	
UNIF GIFT MIN ACT.........Custodian


	
TEN ENT

	
-

	
as tenants by the entireties

	  	
(Cust)


	
JT TEN

	
-

	
as joint tenants with rights of survivorship and not as tenants in common

	  	
Under Uniform Gifts to Minors


Act..........................


(State)









 


Additional abbreviations may also be used though not in the above list.


FORM OF TRANSFER


 


FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto



	  



 


	  	
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE


	  



 


	  
	
Please print or typewrite name and address of assignee


 


	
the within Certificate and does hereby or irrevocably constitute and appoint


 


	
to transfer the said Certificate in the Certificate Register of the within-named Trust, with full power of substitution in the premises.


 








 



	Dated:                            	 	 
	 	NOTICE:  The signature to this assignment must correspond with the name as written upon the face of this Certificate in every particular without alteration or enlargement or any change whatever.	 
	                                              	 	 
	 	 	 
	 	 	 
	
SIGNATURE GUARANTEED

	 	 
	
The signature must be guaranteed by a commercial bank or trust company or by a member firm of the New York Stock Exchange or another national securities exchange.  Notarized or witnessed signatures are not acceptable.

	 	 





 


 






 




  





A-4-8











  






 


DISTRIBUTION INSTRUCTIONS


 


The assignee should include the following for purposes of distribution:


 


Distributions shall be made, by wire transfer or otherwise, in immediately available funds to_____________ for the account of ___________________________ account number ______________ or, if mailed by check, to ______________________________.  Statements should be mailed to ____________________.  This information is provided by assignee named above, or _______________________, as its agent.


 


 


 


 


 


 


 




  





A-4-9











  






[TO BE ATTACHED TO GLOBAL CERTIFICATES]


 


SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES


 


The following exchanges of a part of this Global Certificate have been made:


 


 


 


 









  





A-4-10











  






 


EXHIBIT A-5


 


[FORM OF CLASS A-3-1 CERTIFICATE]


 


THIS CLASS A-3-1 CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE PAYING AGENT, THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.


 


THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR INCREASED AS SET FORTH ON THE SCHEDULE OF EXCHANGES ATTACHED HERETO.


 


IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST BE AN ACCREDITED INVESTOR.


 


THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS, REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS CLASS A-3-1 CERTIFICATE.  ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW.  ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.


 


UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.


 


THIS CERTIFICATE REPRESENTS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, 


 


 


 


 




  





A-5-1











  






RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”).


 


 


 


 




  





A-5-2











  






MORGAN STANLEY CAPITAL I INC.


COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,


SERIES [_____]


 








	
INITIAL PASS-THROUGH RATE:  [_]%

	
MASTER SERVICER:  [_____]


	
DATE OF POOLING AND SERVICING AGREEMENT:  [_____], 20[_]

	
SPECIAL SERVICER:  [_____]


	
CUT-OFF DATE:  [_____], 20[_]

	
PAYING AGENT:  [_____]


	
CLOSING DATE:  [_____], 20[_]

	
TRUSTEE:  [_____]


	
FIRST DISTRIBUTION DATE:  [_____], 20[_]

	  
	
AGGREGATE CERTIFICATE BALANCE OF THE CLASS A-3-1 CERTIFICATES AS OF THE CLOSING DATE:  $[_____]

	  
	
CERTIFICATE BALANCE OF THIS CLASS A-3-1 CERTIFICATE AS OF THE CLOSING DATE:  $[_____] (SUBJECT TO SCHEDULE OF EXCHANGES ATTACHED)

	  
	  	  
	
No.  A-3-1-1

	
CUSIP No.: [_____]







 


 


 




 


 




  





A-5-3











  






CLASS A-3-1 CERTIFICATE


 


evidencing a beneficial ownership interest in a Trust, consisting primarily of a pool of commercial and multifamily mortgage loans (the “Mortgage Loans”) and certain other property, formed and sold by


 


MORGAN STANLEY CAPITAL I INC.


 


THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced by this Certificate in the Class A-3-1 Certificates issued by the Trust created pursuant to the Pooling and Servicing Agreement, dated as specified above (the “Pooling and Servicing Agreement”), among Morgan Stanley Capital I Inc. (hereinafter called the “Depositor”, which term includes any successor entity under the Pooling and Servicing Agreement), the Trustee, the Paying Agent, the Certificate Registrar, the Master Servicer and the Special Servicer, a summary of certain of the pertinent provisions of which is set forth hereafter.  The Trust consists primarily of the Mortgage Loans, such amounts as shall from time to time be held in the Certificate Account and Distribution Account, the Insurance Policies and any REO Properties.  To the extent not defined herein, the capitalized terms used herein have the meanings assigned in the Pooling and Servicing Agreement.


 


This Certificate is one of a duly authorized issue of Certificates designated as Certificates of the series specified on the face hereof (herein called the “Certificates”) and representing an interest in the Class of Certificates specified on the face hereof equal to the quotient expressed as a percentage obtained by dividing the Certificate Balance of this Certificate specified on the face hereof by the aggregate initial Certificate Balance of the Class A-3-1 Certificates.  The Certificates are designated as the Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series [_____] and are issued in the Classes specified in the Pooling and Servicing Agreement.  The Certificates will evidence in the aggregate 100% of the beneficial ownership of the Trust.


 


This Certificate does not purport to summarize the Pooling and Servicing Agreement and reference is made to that Agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the Trustee and the Paying Agent.  This Certificate is issued under and is subject to the terms, provisions and conditions of the Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as amended from time to time, the Certificateholder by virtue of the acceptance hereof assents and by which the Certificateholder is bound.  In the case of any conflict between terms specified in this Certificate and terms specified in the Pooling and Servicing Agreement, the terms of the Pooling and Servicing Agreement shall govern.


 


Distributions of principal of and interest on this Certificate will be made out of the Available Distribution Amount, to the extent and subject to the limitations set forth in the Pooling and Servicing Agreement, on the 15th day of each month or, if such 15th day is not a Business Day, the next succeeding Business Day (a “Distribution Date”) commencing on the first Distribution Date specified above, to the Person in whose name this Certificate is registered at the close of business on the last Business Day of the month immediately preceding the month 


 


 


 


 




  





A-5-4











  






 


of such distribution (the “Record Date”).  All sums distributable on this Certificate are payable in the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.


 


Interest on this Certificate will accrue (computed as if each year consisted of 360 days and each month consisted of 30 days) during the Interest Accrual Period relating to such Distribution Date at the Pass-Through Rate on the Certificate Balance of this Certificate immediately prior to each Distribution Date.  Principal and interest allocated to this Certificate on any Distribution Date will be in an amount due to this Certificate’s pro rata share of the amount to be distributed on the Certificates of this Class as of such Distribution Date, with a final distribution to be made upon retirement of this Certificate as set forth in the Pooling and Servicing Agreement.


 


Unless the certificate of authentication hereon has been executed by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.


 


Realized Losses, Expense Losses and interest shortfalls on the Mortgage Loans shall be allocated on the applicable Distribution Date to Certificateholders in the manner set forth in the Pooling and Servicing Agreement.  All Realized Losses, Expense Losses and interest shortfalls on the Mortgage Loans allocated to any Class of Certificates will be allocated pro rata among the outstanding Certificates of such Class.


 


The Certificates are limited in right of payment to certain collections and recoveries respecting the Mortgage Loans, all as more specifically set forth in the Pooling and Servicing Agreement.  As provided in the Pooling and Servicing Agreement, withdrawals from the Certificate Account shall be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of certain expenses incurred with respect to the servicing of the Mortgage Loans and administration of the Trust.


 


All distributions under the Pooling and Servicing Agreement to a nominee of The Depository Trust Company (“DTC”) will be made by or on behalf of the Paying Agent by wire transfer in immediately available funds to an account specified in the request of such Certificateholder.  All distributions under the Pooling and Servicing Agreement to Certificateholders will be made by wire transfer in immediately available funds to the account specified by the Certificateholder, at a bank or other entity having appropriate facilities therefor, if such Certificateholder will have provided the Paying Agent with wiring instructions on or prior to the related Record Date or otherwise by check mailed to such Certificateholder. Notwithstanding the above, the final distribution on any Certificate will be made only upon presentation and surrender of such Certificate at the location that will be specified in a notice of the pendency of such final distribution.


 


The Pooling and Servicing Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Certificateholders under the Pooling and Servicing Agreement at any time by the parties thereto with the consent of the Holders of not less than 51% of the Aggregate Certificate Balance of the Certificates then outstanding (and under certain circumstances, without regard to Certificates 


 


 


 




  





A-5-5











  






held by the Depositor, any of the Depositor’s Affiliates and/or agents or any Seller), as specified in the Pooling and Servicing Agreement.  Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange therefor or in lieu hereof whether or not notation of such consent is made upon the Certificate.  The Pooling and Servicing Agreement also permits the amendment thereof, in certain circumstances, without the consent of the Holders of any of the Certificates.


 


As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the Corporate Trust Office of the Certificate Registrar, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Certificate Registrar duly executed by the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized denominations will be issued to the designated transferee or transferees.


 


Subject to the terms of the Pooling and Servicing Agreement, the Certificates are issuable in fully registered form only, without coupons, in minimum denominations specified in the Pooling and Servicing Agreement.


 


As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, Certificates are exchangeable for new Certificates of the same Class in authorized denominations as requested by the Holder surrendering the same.  No service charge will be made to a Certificateholder for any such registration of transfer or exchange, but the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.


 


Notwithstanding the foregoing, for so long as this Certificate is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC, transfers of interests in this Certificate shall be made through the book entry facilities of DTC.


 


The Trustee, the Paying Agent, the Master Servicer, the Special Servicer or the Operating Adviser may treat the Person in whose name this Certificate is registered as of the related Record Date as the owner hereof for the purpose of receiving distributions as provided in the Pooling and Servicing Agreement and for all other purposes whatsoever, and none of the Trustee, the Paying Agent, the Master Servicer, the Special Servicer or the Operating Adviser shall be affected by notice to the contrary.


 


The obligations and responsibilities of the Trustee and the Paying Agent created hereby (other than the obligation of the Paying Agent, to make payments to the Class R-I Certificateholders, Class R-II Certificateholders and the REMIC III Certificateholders as set forth in Section 10.2 of the Pooling and Servicing Agreement and other than the obligations in the nature of information or tax reporting) shall terminate on the earliest of (i) the later of (A) the final payment or other liquidation of the last Mortgage Loan remaining in the Trust (and final 


 


 


 




  





A-5-6











  






distribution to the Certificateholders) and (B) the disposition of all REO Property (and final distribution to the Certificateholders), (ii) the sale of the property held by the Trust in accordance with Section 10.1(b) of the Pooling and Servicing Agreement, (iii) the termination of the Trust pursuant to Section 10.1(c) of the Pooling and Servicing Agreement or (iv) the transfer of the property held in the Trust in accordance with Section 10.1(d) of the Pooling and Servicing Agreement; provided that in no event shall the Trust continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the Court of St. James, living on the date hereof.  The parties designated in the Pooling and Servicing Agreement may exercise their option to purchase, in whole only, the Mortgage Loans and any other property, if any, remaining in the Trust and cause the termination of the Trust in accordance with the requirements set forth in the Pooling and Servicing Agreement.  Upon termination of the Trust and payment of the Certificates and of all administrative expenses associated with the Trust, any remaining assets of the Trust shall be distributed to the holders of the Residual Certificates.


 


The Certificate Registrar has executed this Certificate under the Pooling and Servicing Agreement.


 


THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.


 


 


 


 




  





A-5-7











  






IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to be duly executed under this official seal.




 




	 	[__________],	 	 
	 	 	as Certificate Registrar	 
	 	 	 	 
	 	 	 	 
	
 

	
By: 

	 	 
	 	 	AUTHORIZED SIGNATORY	 







 


Dated:  [_____], 20[__]


 


CERTIFICATE OF AUTHENTICATION


 


THIS IS ONE OF THE CLASS A-3-1 CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.



 




	 	[__________],	 	 
	 	 	AUTHENTICATING AGENT	 
	 	 	 	 
	 	 	 	 
	
 

	
By: 

	 	 
	 	 	AUTHORIZED SIGNATORY	 







 




 






 




  





A-5-8











  






 


ABBREVIATIONS


 


The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as though they were written out in full according to applicable laws or regulations:




 




	
TEN COM

	
-

	
as tenant in common

	  	
UNIF GIFT MIN ACT.........Custodian


	
TEN ENT

	
-

	
as tenants by the entireties

	  	
(Cust)


	
JT TEN

	
-

	
as joint tenants with rights of survivorship and not as tenants in common

	  	
Under Uniform Gifts to Minors


Act..........................


(State)









 


Additional abbreviations may also be used though not in the above list.


FORM OF TRANSFER


 


FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto



	  



 


	  	
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE


	  



 


	  
	
Please print or typewrite name and address of assignee


 


	
the within Certificate and does hereby or irrevocably constitute and appoint


 


	
to transfer the said Certificate in the Certificate Register of the within-named Trust, with full power of substitution in the premises.


 








 



	Dated:                            	 	 
	 	NOTICE:  The signature to this assignment must correspond with the name as written upon the face of this Certificate in every particular without alteration or enlargement or any change whatever.	 
	                                              	 	 
	 	 	 
	 	 	 
	
SIGNATURE GUARANTEED

	 	 
	
The signature must be guaranteed by a commercial bank or trust company or by a member firm of the New York Stock Exchange or another national securities exchange.  Notarized or witnessed signatures are not acceptable.

	 	 





 


 








 


 




  





A-5-9











  






 


DISTRIBUTION INSTRUCTIONS


 


The assignee should include the following for purposes of distribution:


 


Distributions shall be made, by wire transfer or otherwise, in immediately available funds to_____________ for the account of ___________________________ account number ______________ or, if mailed by check, to ______________________________.  Statements should be mailed to ____________________.  This information is provided by assignee named above, or _______________________, as its agent.


 


 


 


 


 


 




  





A-5-10











  






[TO BE ATTACHED TO GLOBAL CERTIFICATES]


 


SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES


 


The following exchanges of a part of this Global Certificate have been made:


 














  





A-5-11











  






 


EXHIBIT A-6


 


[FORM OF CLASS A-3-2 CERTIFICATE]


 


THIS CLASS A-3-2 CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE PAYING AGENT, THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.


 


THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR INCREASED AS SET FORTH ON THE SCHEDULE OF EXCHANGES ATTACHED HERETO.


 


IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST BE AN ACCREDITED INVESTOR.


 


THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS, REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS CLASS A-3-2 CERTIFICATE.  ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW.  ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.


 


UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.


 


THIS CERTIFICATE REPRESENTS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, 


 


 


 




  





A-6-1











  






RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”).


 


 


 


 




  





A-6-2











  






MORGAN STANLEY CAPITAL I INC.


COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,


SERIES [_____]


 








	
INITIAL PASS-THROUGH RATE:  [_]%

	
MASTER SERVICER:  [_____]


	
DATE OF POOLING AND SERVICING AGREEMENT:  [_____], 20[_]

	
SPECIAL SERVICER:  [_____]


	
CUT-OFF DATE:  [_____], 20[_]

	
PAYING AGENT:  [_____]


	
CLOSING DATE:  [_____], 20[_]

	
TRUSTEE:  [_____]


	
FIRST DISTRIBUTION DATE:  [_____], 20[_]

	  
	
AGGREGATE CERTIFICATE BALANCE OF THE CLASS A-3-2 CERTIFICATES AS OF THE CLOSING DATE:  $[_____]

	  
	
CERTIFICATE BALANCE OF THIS CLASS A-3-2 CERTIFICATE AS OF THE CLOSING DATE:  $[_____] (SUBJECT TO SCHEDULE OF EXCHANGES ATTACHED)

	  
	  	  
	
No.  A-3-2-1

	
CUSIP No.: [_____]







 


 


 




 




  





A-6-3











  






 


CLASS A-3-2 CERTIFICATE


 


evidencing a beneficial ownership interest in a Trust, consisting primarily of a pool of commercial and multifamily mortgage loans (the “Mortgage Loans”) and certain other property, formed and sold by


 


MORGAN STANLEY CAPITAL I INC.


 


THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced by this Certificate in the Class A-3-2 Certificates issued by the Trust created pursuant to the Pooling and Servicing Agreement, dated as specified above (the “Pooling and Servicing Agreement”), among Morgan Stanley Capital I Inc. (hereinafter called the “Depositor”, which term includes any successor entity under the Pooling and Servicing Agreement), the Trustee, the Paying Agent, the Certificate Registrar, the Master Servicer and the Special Servicer, a summary of certain of the pertinent provisions of which is set forth hereafter.  The Trust consists primarily of the Mortgage Loans, such amounts as shall from time to time be held in the Certificate Account and Distribution Account, the Insurance Policies and any REO Properties.  To the extent not defined herein, the capitalized terms used herein have the meanings assigned in the Pooling and Servicing Agreement.


 


This Certificate is one of a duly authorized issue of Certificates designated as Certificates of the series specified on the face hereof (herein called the “Certificates”) and representing an interest in the Class of Certificates specified on the face hereof equal to the quotient expressed as a percentage obtained by dividing the Certificate Balance of this Certificate specified on the face hereof by the aggregate initial Certificate Balance of the Class A-3-2 Certificates.  The Certificates are designated as the Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series [_____] and are issued in the Classes specified in the Pooling and Servicing Agreement.  The Certificates will evidence in the aggregate 100% of the beneficial ownership of the Trust.


 


This Certificate does not purport to summarize the Pooling and Servicing Agreement and reference is made to that Agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the Trustee and the Paying Agent.  This Certificate is issued under and is subject to the terms, provisions and conditions of the Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as amended from time to time, the Certificateholder by virtue of the acceptance hereof assents and by which the Certificateholder is bound.  In the case of any conflict between terms specified in this Certificate and terms specified in the Pooling and Servicing Agreement, the terms of the Pooling and Servicing Agreement shall govern.


 


Distributions of principal of and interest on this Certificate will be made out of the Available Distribution Amount, to the extent and subject to the limitations set forth in the Pooling and Servicing Agreement, on the 15th day of each month or, if such 15th day is not a Business Day, the next succeeding Business Day (a “Distribution Date”) commencing on the first Distribution Date specified above, to the Person in whose name this Certificate is registered at the close of business on the last Business Day of the month immediately preceding the month 


 


 


 




  





A-6-4











  






of such distribution (the “Record Date”).  All sums distributable on this Certificate are payable in the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.


 


Interest on this Certificate will accrue (computed as if each year consisted of 360 days and each month consisted of 30 days) during the Interest Accrual Period relating to such Distribution Date at the Pass-Through Rate on the Certificate Balance of this Certificate immediately prior to each Distribution Date.  Principal and interest allocated to this Certificate on any Distribution Date will be in an amount due to this Certificate’s pro rata share of the amount to be distributed on the Certificates of this Class as of such Distribution Date, with a final distribution to be made upon retirement of this Certificate as set forth in the Pooling and Servicing Agreement.


 


Unless the certificate of authentication hereon has been executed by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.


 


Realized Losses, Expense Losses and interest shortfalls on the Mortgage Loans shall be allocated on the applicable Distribution Date to Certificateholders in the manner set forth in the Pooling and Servicing Agreement.  All Realized Losses, Expense Losses and interest shortfalls on the Mortgage Loans allocated to any Class of Certificates will be allocated pro rata among the outstanding Certificates of such Class.


 


The Certificates are limited in right of payment to certain collections and recoveries respecting the Mortgage Loans, all as more specifically set forth in the Pooling and Servicing Agreement.  As provided in the Pooling and Servicing Agreement, withdrawals from the Certificate Account shall be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of certain expenses incurred with respect to the servicing of the Mortgage Loans and administration of the Trust.


 


All distributions under the Pooling and Servicing Agreement to a nominee of The Depository Trust Company (“DTC”) will be made by or on behalf of the Paying Agent by wire transfer in immediately available funds to an account specified in the request of such Certificateholder.  All distributions under the Pooling and Servicing Agreement to Certificateholders will be made by wire transfer in immediately available funds to the account specified by the Certificateholder, at a bank or other entity having appropriate facilities therefor, if such Certificateholder will have provided the Paying Agent with wiring instructions on or prior to the related Record Date or otherwise by check mailed to such Certificateholder. Notwithstanding the above, the final distribution on any Certificate will be made only upon presentation and surrender of such Certificate at the location that will be specified in a notice of the pendency of such final distribution.


 


The Pooling and Servicing Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Certificateholders under the Pooling and Servicing Agreement at any time by the parties thereto with the consent of the Holders of not less than 51% of the Aggregate Certificate Balance of the Certificates then outstanding (and under certain circumstances, without regard to Certificates 


 


 


 




  





A-6-5











  






held by the Depositor, any of the Depositor’s Affiliates and/or agents or any Seller), as specified in the Pooling and Servicing Agreement.  Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange therefor or in lieu hereof whether or not notation of such consent is made upon the Certificate.  The Pooling and Servicing Agreement also permits the amendment thereof, in certain circumstances, without the consent of the Holders of any of the Certificates.


 


As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the Corporate Trust Office of the Certificate Registrar, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Certificate Registrar duly executed by the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized denominations will be issued to the designated transferee or transferees.


 


Subject to the terms of the Pooling and Servicing Agreement, the Certificates are issuable in fully registered form only, without coupons, in minimum denominations specified in the Pooling and Servicing Agreement.


 


As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, Certificates are exchangeable for new Certificates of the same Class in authorized denominations as requested by the Holder surrendering the same.  No service charge will be made to a Certificateholder for any such registration of transfer or exchange, but the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.


 


Notwithstanding the foregoing, for so long as this Certificate is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC, transfers of interests in this Certificate shall be made through the book entry facilities of DTC.


 


The Trustee, the Paying Agent, the Master Servicer, the Special Servicer or the Operating Adviser may treat the Person in whose name this Certificate is registered as of the related Record Date as the owner hereof for the purpose of receiving distributions as provided in the Pooling and Servicing Agreement and for all other purposes whatsoever, and none of the Trustee, the Paying Agent, the Master Servicer, the Special Servicer or the Operating Adviser shall be affected by notice to the contrary.


 


The obligations and responsibilities of the Trustee and the Paying Agent created hereby (other than the obligation of the Paying Agent, to make payments to the Class R-I Certificateholders, Class R-II Certificateholders and the REMIC III Certificateholders as set forth in Section 10.2 of the Pooling and Servicing Agreement and other than the obligations in the nature of information or tax reporting) shall terminate on the earliest of (i) the later of (A) the final payment or other liquidation of the last Mortgage Loan remaining in the Trust (and final 


 


 


 


 




  





A-6-6











  






distribution to the Certificateholders) and (B) the disposition of all REO Property (and final distribution to the Certificateholders), (ii) the sale of the property held by the Trust in accordance with Section 10.1(b) of the Pooling and Servicing Agreement, (iii) the termination of the Trust pursuant to Section 10.1(c) of the Pooling and Servicing Agreement or (iv) the transfer of the property held in the Trust in accordance with Section 10.1(d) of the Pooling and Servicing Agreement; provided that in no event shall the Trust continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the Court of St. James, living on the date hereof.  The parties designated in the Pooling and Servicing Agreement may exercise their option to purchase, in whole only, the Mortgage Loans and any other property, if any, remaining in the Trust and cause the termination of the Trust in accordance with the requirements set forth in the Pooling and Servicing Agreement.  Upon termination of the Trust and payment of the Certificates and of all administrative expenses associated with the Trust, any remaining assets of the Trust shall be distributed to the holders of the Residual Certificates.


 


The Certificate Registrar has executed this Certificate under the Pooling and Servicing Agreement.


 


THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.


 


 


 




  





A-6-7











  






IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to be duly executed under this official seal.





 




	 	[__________],	 	 
	 	 	as Certificate Registrar	 
	 	 	 	 
	 	 	 	 
	
 

	
By: 

	 	 
	 	 	AUTHORIZED SIGNATORY	 







 


Dated:  [_____], 20[__]


 


CERTIFICATE OF AUTHENTICATION


 


THIS IS ONE OF THE CLASS A-3-2 CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.



 




	 	[__________],	 	 
	 	 	AUTHENTICATING AGENT	 
	 	 	 	 
	 	 	 	 
	
 

	
By: 

	 	 
	 	 	AUTHORIZED SIGNATORY	 







 




 


 




  





A-6-8











  












 


ABBREVIATIONS


 


The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as though they were written out in full according to applicable laws or regulations:



 




	
TEN COM

	
-

	
as tenant in common

	  	
UNIF GIFT MIN ACT.........Custodian


	
TEN ENT

	
-

	
as tenants by the entireties

	  	
(Cust)


	
JT TEN

	
-

	
as joint tenants with rights of survivorship and not as tenants in common

	  	
Under Uniform Gifts to Minors


Act..........................


(State)









 


Additional abbreviations may also be used though not in the above list.


FORM OF TRANSFER


 


FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto



	  



 


	  	
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE


	  



 


	  
	
Please print or typewrite name and address of assignee


 


	
the within Certificate and does hereby or irrevocably constitute and appoint


 


	
to transfer the said Certificate in the Certificate Register of the within-named Trust, with full power of substitution in the premises.


 








 



	Dated:                            	 	 
	 	NOTICE:  The signature to this assignment must correspond with the name as written upon the face of this Certificate in every particular without alteration or enlargement or any change whatever.	 
	                                              	 	 
	 	 	 
	 	 	 
	
SIGNATURE GUARANTEED

	 	 
	
The signature must be guaranteed by a commercial bank or trust company or by a member firm of the New York Stock Exchange or another national securities exchange.  Notarized or witnessed signatures are not acceptable.

	 	 





 






 




  





A-6-9











  






DISTRIBUTION INSTRUCTIONS


 


The assignee should include the following for purposes of distribution:


 


Distributions shall be made, by wire transfer or otherwise, in immediately available funds to_____________ for the account of ___________________________ account number ______________ or, if mailed by check, to ______________________________.  Statements should be mailed to ____________________.  This information is provided by assignee named above, or _______________________, as its agent.


 


 


 


 


 




  





A-6-10











  






[TO BE ATTACHED TO GLOBAL CERTIFICATES]


 


SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES


 


The following exchanges of a part of this Global Certificate have been made:


 














  





A-6-11











  






 


EXHIBIT A-7


 


[FORM OF CLASS A-AB CERTIFICATE]


 


THIS CLASS A-AB CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE PAYING AGENT, THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.


 


THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR INCREASED AS SET FORTH ON THE SCHEDULE OF EXCHANGES ATTACHED HERETO.


 


IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST BE AN ACCREDITED INVESTOR.


 


THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS, REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS CLASS A-AB CERTIFICATE.  ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW.  ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.


 


UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.


 


THIS CERTIFICATE REPRESENTS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, 


 


 


 


 




  





A-7-1











  






RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”).


 


 


 


 


 




  





A-7-2











  






MORGAN STANLEY CAPITAL I INC.


COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,


SERIES [_____]


 



	
INITIAL PASS-THROUGH RATE:  [_]%

	
MASTER SERVICER:  [_____]


	
DATE OF POOLING AND SERVICING AGREEMENT:  [_____], 20[_]

	
SPECIAL SERVICER:  [_____]


	
CUT-OFF DATE:  [_____], 20[_]

	
PAYING AGENT:  [_____]


	
CLOSING DATE:  [_____], 20[_]

	
TRUSTEE:  [_____]


	
FIRST DISTRIBUTION DATE:  [_____], 20[_]

	  
	
AGGREGATE CERTIFICATE BALANCE OF THE CLASS A-AB CERTIFICATES AS OF THE CLOSING DATE:  $[_____]

	  
	
CERTIFICATE BALANCE OF THIS CLASS A-AB CERTIFICATE AS OF THE CLOSING DATE:  $[_____] (SUBJECT TO SCHEDULE OF EXCHANGES ATTACHED)

	  
	  	  
	
No.  A-AB-1

	
CUSIP No.:  [_____]


	  	  





 


 


 




 




  





A-7-3











  






 


CLASS A-AB CERTIFICATE


 


evidencing a beneficial ownership interest in a Trust, consisting primarily of a pool of commercial and multifamily mortgage loans (the “Mortgage Loans”) and certain other property, formed and sold by


 


MORGAN STANLEY CAPITAL I INC.


 


THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced by this Certificate in the Class A-AB Certificates issued by the Trust created pursuant to the Pooling and Servicing Agreement, dated as specified above (the “Pooling and Servicing Agreement”), among Morgan Stanley Capital I Inc. (hereinafter called the “Depositor”, which term includes any successor entity under the Pooling and Servicing Agreement), the Trustee, the Paying Agent, the Certificate Registrar, the Master Servicer and the Special Servicer, a summary of certain of the pertinent provisions of which is set forth hereafter.  The Trust consists primarily of the Mortgage Loans, such amounts as shall from time to time be held in the Certificate Account and Distribution Account, the Insurance Policies and any REO Properties.  To the extent not defined herein, the capitalized terms used herein have the meanings assigned in the Pooling and Servicing Agreement.


 


This Certificate is one of a duly authorized issue of Certificates designated as Certificates of the series specified on the face hereof (herein called the “Certificates”) and representing an interest in the Class of Certificates specified on the face hereof equal to the quotient expressed as a percentage obtained by dividing the Certificate Balance of this Certificate specified on the face hereof by the aggregate initial Certificate Balance of the Class A-AB Certificates.  The Certificates are designated as the Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series [_____] and are issued in the Classes specified in the Pooling and Servicing Agreement.  The Certificates will evidence in the aggregate 100% of the beneficial ownership of the Trust.


 


This Certificate does not purport to summarize the Pooling and Servicing Agreement and reference is made to that Agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the Trustee and the Paying Agent.  This Certificate is issued under and is subject to the terms, provisions and conditions of the Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as amended from time to time, the Certificateholder by virtue of the acceptance hereof assents and by which the Certificateholder is bound.  In the case of any conflict between terms specified in this Certificate and terms specified in the Pooling and Servicing Agreement, the terms of the Pooling and Servicing Agreement shall govern.


 


Distributions of principal of and interest on this Certificate will be made out of the Available Distribution Amount, to the extent and subject to the limitations set forth in the Pooling and Servicing Agreement, on the 15th day of each month or, if such 15th day is not a Business Day, the next succeeding Business Day (a “Distribution Date”) commencing on the first Distribution Date specified above, to the Person in whose name this Certificate is registered at the close of business on the last Business Day of the month immediately preceding the month 


 


 


 




  





A-7-4











  






of such distribution (the “Record Date”).  All sums distributable on this Certificate are payable in the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.


 


Interest on this Certificate will accrue (computed as if each year consisted of 360 days and each month consisted of 30 days) during the Interest Accrual Period relating to such Distribution Date at the Pass-Through Rate on the Certificate Balance of this Certificate immediately prior to each Distribution Date.  Principal and interest allocated to this Certificate on any Distribution Date will be in an amount due to this Certificate’s pro rata share of the amount to be distributed on the Certificates of this Class as of such Distribution Date, with a final distribution to be made upon retirement of this Certificate as set forth in the Pooling and Servicing Agreement.


 


Unless the certificate of authentication hereon has been executed by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.


 


Realized Losses, Expense Losses and interest shortfalls on the Mortgage Loans shall be allocated on the applicable Distribution Date to Certificateholders in the manner set forth in the Pooling and Servicing Agreement.  All Realized Losses, Expense Losses and interest shortfalls on the Mortgage Loans allocated to any Class of Certificates will be allocated pro rata among the outstanding Certificates of such Class.


 


The Certificates are limited in right of payment to certain collections and recoveries respecting the Mortgage Loans, all as more specifically set forth in the Pooling and Servicing Agreement.  As provided in the Pooling and Servicing Agreement, withdrawals from the Certificate Account shall be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of certain expenses incurred with respect to the servicing of the Mortgage Loans and administration of the Trust.


 


All distributions under the Pooling and Servicing Agreement to a nominee of The Depository Trust Company (“DTC”) will be made by or on behalf of the Paying Agent by wire transfer in immediately available funds to an account specified in the request of such Certificateholder.  All distributions under the Pooling and Servicing Agreement to Certificateholders will be made by wire transfer in immediately available funds to the account specified by the Certificateholder, at a bank or other entity having appropriate facilities therefor, if such Certificateholder will have provided the Paying Agent with wiring instructions on or prior to the related Record Date or otherwise by check mailed to such Certificateholder. Notwithstanding the above, the final distribution on any Certificate will be made only upon presentation and surrender of such Certificate at the location that will be specified in a notice of the pendency of such final distribution.


 


The Pooling and Servicing Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Certificateholders under the Pooling and Servicing Agreement at any time by the parties thereto with the consent of the Holders of not less than 51% of the Aggregate Certificate Balance of the Certificates then outstanding (and under certain circumstances, without regard to Certificates 


 


 


 




  





A-7-5











  






held by the Depositor, any of the Depositor’s Affiliates and/or agents or any Seller), as specified in the Pooling and Servicing Agreement.  Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange therefor or in lieu hereof whether or not notation of such consent is made upon the Certificate.  The Pooling and Servicing Agreement also permits the amendment thereof, in certain circumstances, without the consent of the Holders of any of the Certificates.


 


As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the Corporate Trust Office of the Certificate Registrar, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Certificate Registrar duly executed by the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized denominations will be issued to the designated transferee or transferees.


 


Subject to the terms of the Pooling and Servicing Agreement, the Certificates are issuable in fully registered form only, without coupons, in minimum denominations specified in the Pooling and Servicing Agreement.


 


As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, Certificates are exchangeable for new Certificates of the same Class in authorized denominations as requested by the Holder surrendering the same.  No service charge will be made to a Certificateholder for any such registration of transfer or exchange, but the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.


 


Notwithstanding the foregoing, for so long as this Certificate is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC, transfers of interests in this Certificate shall be made through the book entry facilities of DTC.


 


The Trustee, the Paying Agent, the Master Servicer, the Special Servicer or the Operating Adviser may treat the Person in whose name this Certificate is registered as of the related Record Date as the owner hereof for the purpose of receiving distributions as provided in the Pooling and Servicing Agreement and for all other purposes whatsoever, and none of the Trustee, the Paying Agent, the Master Servicer, the Special Servicer or the Operating Adviser shall be affected by notice to the contrary.


 


The obligations and responsibilities of the Trustee and the Paying Agent created hereby (other than the obligation of the Paying Agent, to make payments to the Class R-I Certificateholders, Class R-II Certificateholders and the REMIC III Certificateholders as set forth in Section 10.2 of the Pooling and Servicing Agreement and other than the obligations in the nature of information or tax reporting) shall terminate on the earliest of (i) the later of (A) the final payment or other liquidation of the last Mortgage Loan remaining in the Trust (and final 


 


 


 


 




  





A-7-6











  






distribution to the Certificateholders) and (B) the disposition of all REO Property (and final distribution to the Certificateholders), (ii) the sale of the property held by the Trust in accordance with Section 10.1(b) of the Pooling and Servicing Agreement, (iii) the termination of the Trust pursuant to Section 10.1(c) of the Pooling and Servicing Agreement or (iv) the transfer of the property held in the Trust in accordance with Section 10.1(d) of the Pooling and Servicing Agreement; provided that in no event shall the Trust continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the Court of St. James, living on the date hereof.  The parties designated in the Pooling and Servicing Agreement may exercise their option to purchase, in whole only, the Mortgage Loans and any other property, if any, remaining in the Trust and cause the termination of the Trust in accordance with the requirements set forth in the Pooling and Servicing Agreement.  Upon termination of the Trust and payment of the Certificates and of all administrative expenses associated with the Trust, any remaining assets of the Trust shall be distributed to the holders of the Residual Certificates.


 


The Certificate Registrar has executed this Certificate under the Pooling and Servicing Agreement.


 


THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.


 


 


 


 




  





A-7-7











  






IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to be duly executed under this official seal.



 




	 	[__________],	 	 
	 	 	as Certificate Registrar	 
	 	 	 	 
	 	 	 	 
	
 

	
By: 

	 	 
	 	 	AUTHORIZED SIGNATORY	 







 


Dated:  [_____], 20[__]


 


CERTIFICATE OF AUTHENTICATION


 


THIS IS ONE OF THE CLASS A-AB CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.



 




	 	[__________],	 	 
	 	 	AUTHENTICATING AGENT	 
	 	 	 	 
	 	 	 	 
	
 

	
By: 

	 	 
	 	 	AUTHORIZED SIGNATORY	 







 






 


 


 


 




  





A-7-8











  






ABBREVIATIONS


 


The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as though they were written out in full according to applicable laws or regulations:




 




	
TEN COM

	
-

	
as tenant in common

	  	
UNIF GIFT MIN ACT.........Custodian


	
TEN ENT

	
-

	
as tenants by the entireties

	  	
(Cust)


	
JT TEN

	
-

	
as joint tenants with rights of survivorship and not as tenants in common

	  	
Under Uniform Gifts to Minors


Act..........................


(State)









 


Additional abbreviations may also be used though not in the above list.


FORM OF TRANSFER


 


FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto



	  



 


	  	
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE


	  



 


	  
	
Please print or typewrite name and address of assignee


 


	
the within Certificate and does hereby or irrevocably constitute and appoint


 


	
to transfer the said Certificate in the Certificate Register of the within-named Trust, with full power of substitution in the premises.


 








 



	Dated:                            	 	 
	 	NOTICE:  The signature to this assignment must correspond with the name as written upon the face of this Certificate in every particular without alteration or enlargement or any change whatever.	 
	                                              	 	 
	 	 	 
	 	 	 
	
SIGNATURE GUARANTEED

	 	 
	
The signature must be guaranteed by a commercial bank or trust company or by a member firm of the New York Stock Exchange or another national securities exchange.  Notarized or witnessed signatures are not acceptable.

	 	 





 








 


 




  





A-7-9











  






 


 


DISTRIBUTION INSTRUCTIONS


 


The assignee should include the following for purposes of distribution:


 


Distributions shall be made, by wire transfer or otherwise, in immediately available funds to_____________ for the account of ___________________________ account number ______________ or, if mailed by check, to ______________________________.  Statements should be mailed to ____________________.  This information is provided by assignee named above, or _______________________, as its agent.


 


 


 


 


 




  





A-7-10











  






[TO BE ATTACHED TO GLOBAL CERTIFICATES]


 


SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES


 


The following exchanges of a part of this Global Certificate have been made:


 







 









  





A-7-11











  






 


EXHIBIT A-8


 


[FORM OF CLASS A-4A CERTIFICATE]


 


THIS CLASS A-4A CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE PAYING AGENT, THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.


 


THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR INCREASED AS SET FORTH ON THE SCHEDULE OF EXCHANGES ATTACHED HERETO.


 


IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST BE AN ACCREDITED INVESTOR.


 


THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS, REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS CLASS A-4A CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW.  ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.


 


UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.


 


 


 




  





A-8-1











  






THIS CERTIFICATE REPRESENTS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”).


 


 


 


 




  





A-8-2











  






MORGAN STANLEY CAPITAL I INC.


COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,


SERIES [_____]


 



	
INITIAL PASS-THROUGH RATE:  [_]%

	
MASTER SERVICER:  [_____]


	
DATE OF POOLING AND SERVICING AGREEMENT:  [_____], 20[_]

	
SPECIAL SERVICER:  [_____]


	
CUT-OFF DATE:  [_____], 20[_]

	
PAYING AGENT:  [_____]


	
CLOSING DATE:  [_____], 20[_]

	
TRUSTEE:  [_____]


	
FIRST DISTRIBUTION DATE:  [_____], 20[_]

	  
	
AGGREGATE CERTIFICATE BALANCE OF THE CLASS A-4A CERTIFICATES AS OF THE CLOSING DATE:  $[_____]

	  
	
CERTIFICATE BALANCE OF THIS CLASS A-4A CERTIFICATE AS OF THE CLOSING DATE:  $[_____] (SUBJECT TO SCHEDULE OF EXCHANGES ATTACHED)

	  
	  	  
	
No.  A-4A-1

	
CUSIP No.:  [_____]


	  	  





 







 




 




  





A-8-3











  






 


CLASS A-4A CERTIFICATE


 


evidencing a beneficial ownership interest in a Trust, consisting primarily of a pool of commercial and multifamily mortgage loans (the “Mortgage Loans”) and certain other property, formed and sold by


 


MORGAN STANLEY CAPITAL I INC.


 


THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced by this Certificate in the Class A-4A Certificates issued by the Trust created pursuant to the Pooling and Servicing Agreement, dated as specified above (the “Pooling and Servicing Agreement”), among Morgan Stanley Capital I Inc. (hereinafter called the “Depositor”, which term includes any successor entity under the Pooling and Servicing Agreement), the Trustee, the Paying Agent, the Certificate Registrar, the Master Servicer and the Special Servicer, a summary of certain of the pertinent provisions of which is set forth hereafter.  The Trust consists primarily of the Mortgage Loans, such amounts as shall from time to time be held in the Certificate Account and Distribution Account, the Insurance Policies and any REO Properties.  To the extent not defined herein, the capitalized terms used herein have the meanings assigned in the Pooling and Servicing Agreement.


 


This Certificate is one of a duly authorized issue of Certificates designated as Certificates of the series specified on the face hereof (herein called the “Certificates”) and representing an interest in the Class of Certificates specified on the face hereof equal to the quotient expressed as a percentage obtained by dividing the Certificate Balance of this Certificate specified on the face hereof by the aggregate initial Certificate Balance of the Class A-4A Certificates.  The Certificates are designated as the Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series [_____] and are issued in the Classes specified in the Pooling and Servicing Agreement.  The Certificates will evidence in the aggregate 100% of the beneficial ownership of the Trust.


 


This Certificate does not purport to summarize the Pooling and Servicing Agreement and reference is made to that Agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the Trustee and the Paying Agent.  This Certificate is issued under and is subject to the terms, provisions and conditions of the Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as amended from time to time, the Certificateholder by virtue of the acceptance hereof assents and by which the Certificateholder is bound.  In the case of any conflict between terms specified in this Certificate and terms specified in the Pooling and Servicing Agreement, the terms of the Pooling and Servicing Agreement shall govern.


 


Distributions of principal of and interest on this Certificate will be made out of the Available Distribution Amount, to the extent and subject to the limitations set forth in the Pooling and Servicing Agreement, on the 15th day of each month or, if such 15th day is not a Business Day, the next succeeding Business Day (a “Distribution Date”) commencing on the first Distribution Date specified above, to the Person in whose name this Certificate is registered at the close of business on the last Business Day of the month immediately preceding the month 


 


 


 


 


 




  





A-8-4











  






of such distribution (the “Record Date”).  All sums distributable on this Certificate are payable in the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.


 


Interest on this Certificate will accrue (computed as if each year consisted of 360 days and each month consisted of 30 days) during the Interest Accrual Period relating to such Distribution Date at the Pass-Through Rate on the Certificate Balance of this Certificate immediately prior to each Distribution Date.  Principal and interest allocated to this Certificate on any Distribution Date will be in an amount due to this Certificate’s pro rata share of the amount to be distributed on the Certificates of this Class as of such Distribution Date, with a final distribution to be made upon retirement of this Certificate as set forth in the Pooling and Servicing Agreement.


 


Unless the certificate of authentication hereon has been executed by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.


 


Realized Losses, Expense Losses and interest shortfalls on the Mortgage Loans shall be allocated on the applicable Distribution Date to Certificateholders in the manner set forth in the Pooling and Servicing Agreement.  All Realized Losses, Expense Losses and interest shortfalls on the Mortgage Loans allocated to any Class of Certificates will be allocated pro rata among the outstanding Certificates of such Class.


 


The Certificates are limited in right of payment to certain collections and recoveries respecting the Mortgage Loans, all as more specifically set forth in the Pooling and Servicing Agreement.  As provided in the Pooling and Servicing Agreement, withdrawals from the Certificate Account shall be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of certain expenses incurred with respect to the servicing of the Mortgage Loans and administration of the Trust.


 


All distributions under the Pooling and Servicing Agreement to a nominee of The Depository Trust Company (“DTC”) will be made by or on behalf of the Paying Agent by wire transfer in immediately available funds to an account specified in the request of such Certificateholder.  All distributions under the Pooling and Servicing Agreement to Certificateholders will be made by wire transfer in immediately available funds to the account specified by the Certificateholder, at a bank or other entity having appropriate facilities therefor, if such Certificateholder will have provided the Paying Agent with wiring instructions on or prior to the related Record Date or otherwise by check mailed to such Certificateholder. Notwithstanding the above, the final distribution on any Certificate will be made only upon presentation and surrender of such Certificate at the location that will be specified in a notice of the pendency of such final distribution.


 


The Pooling and Servicing Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Certificateholders under the Pooling and Servicing Agreement at any time by the parties thereto with the consent of the Holders of not less than 51% of the Aggregate Certificate Balance of the Certificates then outstanding (and under certain circumstances, without regard to Certificates 


 


 


 


 




  





A-8-5











  






held by the Depositor, any of the Depositor’s Affiliates and/or agents or any Seller), as specified in the Pooling and Servicing Agreement.  Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange therefor or in lieu hereof whether or not notation of such consent is made upon the Certificate.  The Pooling and Servicing Agreement also permits the amendment thereof, in certain circumstances, without the consent of the Holders of any of the Certificates.


 


As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the Corporate Trust Office of the Certificate Registrar, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Certificate Registrar duly executed by the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized denominations will be issued to the designated transferee or transferees.


 


Subject to the terms of the Pooling and Servicing Agreement, the Certificates are issuable in fully registered form only, without coupons, in minimum denominations specified in the Pooling and Servicing Agreement.


 


As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, Certificates are exchangeable for new Certificates of the same Class in authorized denominations as requested by the Holder surrendering the same.  No service charge will be made to a Certificateholder for any such registration of transfer or exchange, but the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.


 


Notwithstanding the foregoing, for so long as this Certificate is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC, transfers of interests in this Certificate shall be made through the book entry facilities of DTC.


 


The Trustee, the Paying Agent, the Master Servicer, the Special Servicer or the Operating Adviser may treat the Person in whose name this Certificate is registered as of the related Record Date as the owner hereof for the purpose of receiving distributions as provided in the Pooling and Servicing Agreement and for all other purposes whatsoever, and none of the Trustee, the Paying Agent, the Master Servicer, the Special Servicer or the Operating Adviser shall be affected by notice to the contrary.


 


The obligations and responsibilities of the Trustee and the Paying Agent created hereby (other than the obligation of the Paying Agent, to make payments to the Class R-I Certificateholders, Class R-II Certificateholders and the REMIC III Certificateholders as set forth in Section 10.2 of the Pooling and Servicing Agreement and other than the obligations in the nature of information or tax reporting) shall terminate on the earliest of (i) the later of (A) the final payment or other liquidation of the last Mortgage Loan remaining in the Trust (and final 


 


 


 


 




  





A-8-6











  






distribution to the Certificateholders) and (B) the disposition of all REO Property (and final distribution to the Certificateholders), (ii) the sale of the property held by the Trust in accordance with Section 10.1(b) of the Pooling and Servicing Agreement, (iii) the termination of the Trust pursuant to Section 10.1(c) of the Pooling and Servicing Agreement or (iv) the transfer of the property held in the Trust in accordance with Section 10.1(d) of the Pooling and Servicing Agreement; provided that in no event shall the Trust continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the Court of St. James, living on the date hereof.  The parties designated in the Pooling and Servicing Agreement may exercise their option to purchase, in whole only, the Mortgage Loans and any other property, if any, remaining in the Trust and cause the termination of the Trust in accordance with the requirements set forth in the Pooling and Servicing Agreement.  Upon termination of the Trust and payment of the Certificates and of all administrative expenses associated with the Trust, any remaining assets of the Trust shall be distributed to the holders of the Residual Certificates.


 


The Certificate Registrar has executed this Certificate under the Pooling and Servicing Agreement.


 


THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.


 


 


 


 




  





A-8-7











  






IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to be duly executed under this official seal.




 




	 	[__________],	 	 
	 	 	as Certificate Registrar	 
	 	 	 	 
	 	 	 	 
	
 

	
By: 

	 	 
	 	 	AUTHORIZED SIGNATORY	 







 


Dated:  [_____], 20[__]


 


CERTIFICATE OF AUTHENTICATION


 


THIS IS ONE OF THE CLASS A-4A CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.



 




	 	[__________],	 	 
	 	 	AUTHENTICATING AGENT	 
	 	 	 	 
	 	 	 	 
	
 

	
By: 

	 	 
	 	 	AUTHORIZED SIGNATORY	 







 






 


 




  





A-8-8











  








 


ABBREVIATIONS


 


The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as though they were written out in full according to applicable laws or regulations:




 




	
TEN COM

	
-

	
as tenant in common

	  	
UNIF GIFT MIN ACT.........Custodian


	
TEN ENT

	
-

	
as tenants by the entireties

	  	
(Cust)


	
JT TEN

	
-

	
as joint tenants with rights of survivorship and not as tenants in common

	  	
Under Uniform Gifts to Minors


Act..........................


(State)









 


Additional abbreviations may also be used though not in the above list.


FORM OF TRANSFER


 


FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto



	  



 


	  	
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE


	  



 


	  
	
Please print or typewrite name and address of assignee


 


	
the within Certificate and does hereby or irrevocably constitute and appoint


 


	
to transfer the said Certificate in the Certificate Register of the within-named Trust, with full power of substitution in the premises.


 








 



	Dated:                            	 	 
	 	NOTICE:  The signature to this assignment must correspond with the name as written upon the face of this Certificate in every particular without alteration or enlargement or any change whatever.	 
	                                              	 	 
	 	 	 
	 	 	 
	
SIGNATURE GUARANTEED

	 	 
	
The signature must be guaranteed by a commercial bank or trust company or by a member firm of the New York Stock Exchange or another national securities exchange.  Notarized or witnessed signatures are not acceptable.

	 	 





 








 


 




  





A-8-9











  






DISTRIBUTION INSTRUCTIONS


 


The assignee should include the following for purposes of distribution:


 


Distributions shall be made, by wire transfer or otherwise, in immediately available funds to_____________ for the account of ___________________________ account number ______________ or, if mailed by check, to ______________________________.  Statements should be mailed to ____________________.  This information is provided by assignee named above, or _______________________, as its agent.


 


 


 


 




  





A-8-10











  






[TO BE ATTACHED TO GLOBAL CERTIFICATES]


 


SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES


 


The following exchanges of a part of this Global Certificate have been made:


 


 


 


 




  





A-8-11











  






 


EXHIBIT A-9


 


[FORM OF CLASS A-4B CERTIFICATE]


 


THIS CLASS A-4B CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE PAYING AGENT, THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.


 


THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR INCREASED AS SET FORTH ON THE SCHEDULE OF EXCHANGES ATTACHED HERETO.


 


IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST BE AN ACCREDITED INVESTOR.


 


THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS, REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS CLASS A-4B CERTIFICATE.  ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW.  ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.


 


UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.


 


THIS CERTIFICATE REPRESENTS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, 


 


 


 


 




  





A-9-1











  






RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”).


 


 


 


 




  





A-9-2











  






MORGAN STANLEY CAPITAL I INC.


COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,


SERIES [_____]


 








	
INITIAL PASS-THROUGH RATE:  [_]%

	
MASTER SERVICER:  [_____]


	
DATE OF POOLING AND SERVICING AGREEMENT:  [_____], 20[_]

	
SPECIAL SERVICER:  [_____]


	
CUT-OFF DATE:  [_____], 20[_]

	
PAYING AGENT:  [_____]


	
CLOSING DATE:  [_____], 20[_]

	
TRUSTEE:  [_____]


	
FIRST DISTRIBUTION DATE:  [_____], 20[_]

	  
	
AGGREGATE CERTIFICATE BALANCE OF THE CLASS A-4B CERTIFICATES AS OF THE CLOSING DATE:  $[_____]

	  
	
CERTIFICATE BALANCE OF THIS CLASS A-4B CERTIFICATE AS OF THE CLOSING DATE:  $[_____] (SUBJECT TO SCHEDULE OF EXCHANGES ATTACHED)

	  
	  	  
	
No.  A-4B-1

	
CUSIP No.:  [_____]







 









 




  





A-9-3











  






CLASS A-4B CERTIFICATE


 


evidencing a beneficial ownership interest in a Trust, consisting primarily of a pool of commercial and multifamily mortgage loans (the “Mortgage Loans”) and certain other property, formed and sold by


 


MORGAN STANLEY CAPITAL I INC.


 


THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced by this Certificate in the Class A-4B Certificates issued by the Trust created pursuant to the Pooling and Servicing Agreement, dated as specified above (the “Pooling and Servicing Agreement”), among Morgan Stanley Capital I Inc. (hereinafter called the “Depositor”, which term includes any successor entity under the Pooling and Servicing Agreement), the Trustee, the Paying Agent, the Certificate Registrar, the Master Servicer and the Special Servicer, a summary of certain of the pertinent provisions of which is set forth hereafter.  The Trust consists primarily of the Mortgage Loans, such amounts as shall from time to time be held in the Certificate Account and Distribution Account, the Insurance Policies and any REO Properties.  To the extent not defined herein, the capitalized terms used herein have the meanings assigned in the Pooling and Servicing Agreement.


 


This Certificate is one of a duly authorized issue of Certificates designated as Certificates of the series specified on the face hereof (herein called the “Certificates”) and representing an interest in the Class of Certificates specified on the face hereof equal to the quotient expressed as a percentage obtained by dividing the Certificate Balance of this Certificate specified on the face hereof by the aggregate initial Certificate Balance of the Class A-4B Certificates.  The Certificates are designated as the Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series [_____] and are issued in the Classes specified in the Pooling and Servicing Agreement.  The Certificates will evidence in the aggregate 100% of the beneficial ownership of the Trust.


 


This Certificate does not purport to summarize the Pooling and Servicing Agreement and reference is made to that Agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the Trustee and the Paying Agent.  This Certificate is issued under and is subject to the terms, provisions and conditions of the Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as amended from time to time, the Certificateholder by virtue of the acceptance hereof assents and by which the Certificateholder is bound.  In the case of any conflict between terms specified in this Certificate and terms specified in the Pooling and Servicing Agreement, the terms of the Pooling and Servicing Agreement shall govern.


 


Distributions of principal of and interest on this Certificate will be made out of the Available Distribution Amount, to the extent and subject to the limitations set forth in the Pooling and Servicing Agreement, on the 15th day of each month or, if such 15th day is not a Business Day, the next succeeding Business Day (a “Distribution Date”) commencing on the first Distribution Date specified above, to the Person in whose name this Certificate is registered at the close of business on the last Business Day of the month immediately preceding the month 


 


 


 


 




  





A-9-4











  






of such distribution (the “Record Date”).  All sums distributable on this Certificate are payable in the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.


 


Interest on this Certificate will accrue (computed as if each year consisted of 360 days and each month consisted of 30 days) during the Interest Accrual Period relating to such Distribution Date at the Pass-Through Rate on the Certificate Balance of this Certificate immediately prior to each Distribution Date.  Principal and interest allocated to this Certificate on any Distribution Date will be in an amount due to this Certificate’s pro rata share of the amount to be distributed on the Certificates of this Class as of such Distribution Date, with a final distribution to be made upon retirement of this Certificate as set forth in the Pooling and Servicing Agreement.


 


Unless the certificate of authentication hereon has been executed by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.


 


Realized Losses, Expense Losses and interest shortfalls on the Mortgage Loans shall be allocated on the applicable Distribution Date to Certificateholders in the manner set forth in the Pooling and Servicing Agreement.  All Realized Losses, Expense Losses and interest shortfalls on the Mortgage Loans allocated to any Class of Certificates will be allocated pro rata among the outstanding Certificates of such Class.


 


The Certificates are limited in right of payment to certain collections and recoveries respecting the Mortgage Loans, all as more specifically set forth in the Pooling and Servicing Agreement.  As provided in the Pooling and Servicing Agreement, withdrawals from the Certificate Account shall be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of certain expenses incurred with respect to the servicing of the Mortgage Loans and administration of the Trust.


 


All distributions under the Pooling and Servicing Agreement to a nominee of The Depository Trust Company (“DTC”) will be made by or on behalf of the Paying Agent by wire transfer in immediately available funds to an account specified in the request of such Certificateholder.  All distributions under the Pooling and Servicing Agreement to Certificateholders will be made by wire transfer in immediately available funds to the account specified by the Certificateholder, at a bank or other entity having appropriate facilities therefor, if such Certificateholder will have provided the Paying Agent with wiring instructions on or prior to the related Record Date or otherwise by check mailed to such Certificateholder. Notwithstanding the above, the final distribution on any Certificate will be made only upon presentation and surrender of such Certificate at the location that will be specified in a notice of the pendency of such final distribution.


 


The Pooling and Servicing Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Certificateholders under the Pooling and Servicing Agreement at any time by the parties thereto with the consent of the Holders of not less than 51% of the Aggregate Certificate Balance of the Certificates then outstanding (and under certain circumstances, without regard to Certificates 


 


 


 




  





A-9-5











  






held by the Depositor, any of the Depositor’s Affiliates and/or agents or any Seller), as specified in the Pooling and Servicing Agreement.  Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange therefor or in lieu hereof whether or not notation of such consent is made upon the Certificate.  The Pooling and Servicing Agreement also permits the amendment thereof, in certain circumstances, without the consent of the Holders of any of the Certificates.


 


As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the Corporate Trust Office of the Certificate Registrar, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Certificate Registrar duly executed by the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized denominations will be issued to the designated transferee or transferees.


 


Subject to the terms of the Pooling and Servicing Agreement, the Certificates are issuable in fully registered form only, without coupons, in minimum denominations specified in the Pooling and Servicing Agreement.


 


As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, Certificates are exchangeable for new Certificates of the same Class in authorized denominations as requested by the Holder surrendering the same.  No service charge will be made to a Certificateholder for any such registration of transfer or exchange, but the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.


 


Notwithstanding the foregoing, for so long as this Certificate is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC, transfers of interests in this Certificate shall be made through the book entry facilities of DTC.


 


The Trustee, the Paying Agent, the Master Servicer, the Special Servicer or the Operating Adviser may treat the Person in whose name this Certificate is registered as of the related Record Date as the owner hereof for the purpose of receiving distributions as provided in the Pooling and Servicing Agreement and for all other purposes whatsoever, and none of the Trustee, the Paying Agent, the Master Servicer, the Special Servicer or the Operating Adviser shall be affected by notice to the contrary.


 


The obligations and responsibilities of the Trustee and the Paying Agent created hereby (other than the obligation of the Paying Agent, to make payments to the Class R-I Certificateholders, Class R-II Certificateholders and the REMIC III Certificateholders as set forth in Section 10.2 of the Pooling and Servicing Agreement and other than the obligations in the nature of information or tax reporting) shall terminate on the earliest of (i) the later of (A) the final payment or other liquidation of the last Mortgage Loan remaining in the Trust (and final distribution to the Certificateholders) and (B) the disposition of all REO Property (and final 


 


 


 


 




  





A-9-6











  






distribution to the Certificateholders), (ii) the sale of the property held by the Trust in accordance with Section 10.1(b) of the Pooling and Servicing Agreement, (iii) the termination of the Trust pursuant to Section 10.1(c) of the Pooling and Servicing Agreement or (iv) the transfer of the property held in the Trust in accordance with Section 10.1(d) of the Pooling and Servicing Agreement; provided that in no event shall the Trust continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the Court of St. James, living on the date hereof.  The parties designated in the Pooling and Servicing Agreement may exercise their option to purchase, in whole only, the Mortgage Loans and any other property, if any, remaining in the Trust and cause the termination of the Trust in accordance with the requirements set forth in the Pooling and Servicing Agreement.  Upon termination of the Trust and payment of the Certificates and of all administrative expenses associated with the Trust, any remaining assets of the Trust shall be distributed to the holders of the Residual Certificates.


 


The Certificate Registrar has executed this Certificate under the Pooling and Servicing Agreement.


 


THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.


 


 


 


 




  





A-9-7











  






IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to be duly executed under this official seal.





 




	 	[__________],	 	 
	 	 	as Certificate Registrar	 
	 	 	 	 
	 	 	 	 
	
 

	
By: 

	 	 
	 	 	AUTHORIZED SIGNATORY	 







 


Dated:  [_____], 20[__]


 


CERTIFICATE OF AUTHENTICATION


 


THIS IS ONE OF THE CLASS A-4B CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.



 




	 	[__________],	 	 
	 	 	AUTHENTICATING AGENT	 
	 	 	 	 
	 	 	 	 
	
 

	
By: 

	 	 
	 	 	AUTHORIZED SIGNATORY	 







 






 


 




  





A-9-8











  








 


ABBREVIATIONS


 


The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as though they were written out in full according to applicable laws or regulations:




 




	
TEN COM

	
-

	
as tenant in common

	  	
UNIF GIFT MIN ACT.........Custodian


	
TEN ENT

	
-

	
as tenants by the entireties

	  	
(Cust)


	
JT TEN

	
-

	
as joint tenants with rights of survivorship and not as tenants in common

	  	
Under Uniform Gifts to Minors


Act..........................


(State)









 


Additional abbreviations may also be used though not in the above list.


FORM OF TRANSFER


 


FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto



	  



 


	  	
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE


	  



 


	  
	
Please print or typewrite name and address of assignee


 


	
the within Certificate and does hereby or irrevocably constitute and appoint


 


	
to transfer the said Certificate in the Certificate Register of the within-named Trust, with full power of substitution in the premises.


 








 



	Dated:                            	 	 
	 	NOTICE:  The signature to this assignment must correspond with the name as written upon the face of this Certificate in every particular without alteration or enlargement or any change whatever.	 
	                                              	 	 
	 	 	 
	 	 	 
	
SIGNATURE GUARANTEED

	 	 
	
The signature must be guaranteed by a commercial bank or trust company or by a member firm of the New York Stock Exchange or another national securities exchange.  Notarized or witnessed signatures are not acceptable.

	 	 





 










 


 




  





A-9-9











  






 


DISTRIBUTION INSTRUCTIONS


 


The assignee should include the following for purposes of distribution:


 


Distributions shall be made, by wire transfer or otherwise, in immediately available funds to_____________ for the account of ___________________________ account number ______________ or, if mailed by check, to ______________________________.  Statements should be mailed to ____________________.  This information is provided by assignee named above, or _______________________, as its agent.


 


 


 


 




  





A-9-10











  






[TO BE ATTACHED TO GLOBAL CERTIFICATES]


 


SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES


 


The following exchanges of a part of this Global Certificate have been made:


 


 


 




 




  





A-9-11











  






 


EXHIBIT A-10


 


[FORM OF CLASS X-2 CERTIFICATE]


 


THIS CLASS X-2 CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE PAYING AGENT, THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.


 


THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR INCREASED AS SET FORTH ON THE SCHEDULE OF EXCHANGES ATTACHED HERETO.


 


IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST BE AN ACCREDITED INVESTOR.


 


THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS, REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS CLASS X-2 CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW.  ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.


 


UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.


 


THIS CERTIFICATE REPRESENTS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, 


 


 


 




  





A-10-1











  






RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”).


 


 


 


 


 




  





A-10-2











  






MORGAN STANLEY CAPITAL I INC.


COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,


SERIES [_____]


 



	
INITIAL PASS-THROUGH RATE:  [_]%

	
MASTER SERVICER:  [_____]


	
DATE OF POOLING AND SERVICING AGREEMENT:  [_____], 20[_]

	
SPECIAL SERVICER:  [_____]


	
CUT-OFF DATE:  [_____], 20[_]

	
PAYING AGENT:  [_____]


	
CLOSING DATE:  [_____], 20[_]

	
TRUSTEE:  [_____]


	
FIRST DISTRIBUTION DATE:  [_____], 20[_]

	  
	
AGGREGATE NOTIONAL AMOUNT OF THE CLASS X-2 CERTIFICATES AS OF THE CLOSING DATE:  $[_____]

	  
	
NOTIONAL AMOUNT OF THIS CLASS X-2 CERTIFICATE AS OF THE CLOSING DATE: $[_____] (SUBJECT TO SCHEDULE OF EXCHANGES ATTACHED)

	  
	  	  
	
No.  X-2-1

	
CUSIP No.:  [_____]


	  	  





 







 




  





A-10-3











  






CLASS X-2 CERTIFICATE


 


evidencing a beneficial ownership interest in a Trust, consisting primarily of a pool of commercial and multifamily mortgage loans (the “Mortgage Loans”) and certain other property, formed and sold by


 


MORGAN STANLEY CAPITAL I INC.


 


THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced by this Certificate in the Class X-2 Certificates issued by the Trust created pursuant to the Pooling and Servicing Agreement, dated as specified above (the “Pooling and Servicing Agreement”), among Morgan Stanley Capital I Inc. (hereinafter called the “Depositor”, which term includes any successor entity under the Pooling and Servicing Agreement), the Trustee, the Paying Agent, the Certificate Registrar, the Master Servicer and the Special Servicer, a summary of certain of the pertinent provisions of which is set forth hereafter.  The Trust consists primarily of the Mortgage Loans, such amounts as shall from time to time be held in the Certificate Account and Distribution Account, the Insurance Policies and any REO Properties.  To the extent not defined herein, the capitalized terms used herein have the meanings assigned in the Pooling and Servicing Agreement.


 


This Certificate is one of a duly authorized issue of Certificates designated as Certificates of the series specified on the face hereof (herein called the “Certificates”) and representing an interest in the Class of Certificates specified on the face hereof equal to the quotient expressed as a percentage obtained by dividing the Certificate Balance of this Certificate specified on the face hereof by the aggregate initial Certificate Balance of the Class X-2 Certificates.  The Certificates are designated as the Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series [_____] and are issued in the Classes specified in the Pooling and Servicing Agreement.  The Certificates will evidence in the aggregate 100% of the beneficial ownership of the Trust.


 


This Certificate does not purport to summarize the Pooling and Servicing Agreement and reference is made to that Agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the Trustee and the Paying Agent.  This Certificate is issued under and is subject to the terms, provisions and conditions of the Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as amended from time to time, the Certificateholder by virtue of the acceptance hereof assents and by which the Certificateholder is bound.  In the case of any conflict between terms specified in this Certificate and terms specified in the Pooling and Servicing Agreement, the terms of the Pooling and Servicing Agreement shall govern.


 


Distributions of principal of and interest on this Certificate will be made out of the Available Distribution Amount, to the extent and subject to the limitations set forth in the Pooling and Servicing Agreement, on the 15th day of each month or, if such 15th day is not a Business Day, the next succeeding Business Day (a “Distribution Date”) commencing on the first Distribution Date specified above, to the Person in whose name this Certificate is registered at the close of business on the last Business Day of the month immediately preceding the month 


 


 


 


 




  





A-10-4











  






of such distribution (the “Record Date”).  All sums distributable on this Certificate are payable in the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.


 


Interest on this Certificate will accrue (computed as if each year consisted of 360 days and each month consisted of 30 days) during the Interest Accrual Period relating to such Distribution Date at the Pass-Through Rate on the Certificate Balance of this Certificate immediately prior to each Distribution Date.  Principal and interest allocated to this Certificate on any Distribution Date will be in an amount due to this Certificate’s pro rata share of the amount to be distributed on the Certificates of this Class as of such Distribution Date, with a final distribution to be made upon retirement of this Certificate as set forth in the Pooling and Servicing Agreement.


 


Unless the certificate of authentication hereon has been executed by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.


 


Realized Losses, Expense Losses and interest shortfalls on the Mortgage Loans shall be allocated on the applicable Distribution Date to Certificateholders in the manner set forth in the Pooling and Servicing Agreement.  All Realized Losses, Expense Losses and interest shortfalls on the Mortgage Loans allocated to any Class of Certificates will be allocated pro rata among the outstanding Certificates of such Class.


 


The Certificates are limited in right of payment to certain collections and recoveries respecting the Mortgage Loans, all as more specifically set forth in the Pooling and Servicing Agreement.  As provided in the Pooling and Servicing Agreement, withdrawals from the Certificate Account shall be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of certain expenses incurred with respect to the servicing of the Mortgage Loans and administration of the Trust.


 


All distributions under the Pooling and Servicing Agreement to a nominee of The Depository Trust Company (“DTC”) will be made by or on behalf of the Paying Agent by wire transfer in immediately available funds to an account specified in the request of such Certificateholder.  All distributions under the Pooling and Servicing Agreement to Certificateholders will be made by wire transfer in immediately available funds to the account specified by the Certificateholder, at a bank or other entity having appropriate facilities therefor, if such Certificateholder will have provided the Paying Agent with wiring instructions on or prior to the related Record Date or otherwise by check mailed to such Certificateholder. Notwithstanding the above, the final distribution on any Certificate will be made only upon presentation and surrender of such Certificate at the location that will be specified in a notice of the pendency of such final distribution.


 


The Pooling and Servicing Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Certificateholders under the Pooling and Servicing Agreement at any time by the parties thereto with the consent of the Holders of not less than 51% of the Aggregate Certificate Balance of the Certificates then outstanding (and under certain circumstances, without regard to Certificates 


 


 


 




  





A-10-5











  






held by the Depositor, any of the Depositor’s Affiliates and/or agents or any Seller), as specified in the Pooling and Servicing Agreement.  Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange therefor or in lieu hereof whether or not notation of such consent is made upon the Certificate.  The Pooling and Servicing Agreement also permits the amendment thereof, in certain circumstances, without the consent of the Holders of any of the Certificates.


 


As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the Corporate Trust Office of the Certificate Registrar, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Certificate Registrar duly executed by the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized denominations will be issued to the designated transferee or transferees.


 


Subject to the terms of the Pooling and Servicing Agreement, the Certificates are issuable in fully registered form only, without coupons, in minimum denominations specified in the Pooling and Servicing Agreement.


 


As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, Certificates are exchangeable for new Certificates of the same Class in authorized denominations as requested by the Holder surrendering the same.  No service charge will be made to a Certificateholder for any such registration of transfer or exchange, but the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.


 


Notwithstanding the foregoing, for so long as this Certificate is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC, transfers of interests in this Certificate shall be made through the book entry facilities of DTC.


 


The Trustee, the Paying Agent, the Master Servicer, the Special Servicer or the Operating Adviser may treat the Person in whose name this Certificate is registered as of the related Record Date as the owner hereof for the purpose of receiving distributions as provided in the Pooling and Servicing Agreement and for all other purposes whatsoever, and none of the Trustee, the Paying Agent, the Master Servicer, the Special Servicer or the Operating Adviser shall be affected by notice to the contrary.


 


The obligations and responsibilities of the Trustee and the Paying Agent created hereby (other than the obligation of the Paying Agent, to make payments to the Class R-I Certificateholders, Class R-II Certificateholders and the REMIC III Certificateholders as set forth in Section 10.2 of the Pooling and Servicing Agreement and other than the obligations in the nature of information or tax reporting) shall terminate on the earliest of (i) the later of (A) the final payment or other liquidation of the last Mortgage Loan remaining in the Trust (and final 


 


 


 




  





A-10-6











  






distribution to the Certificateholders) and (B) the disposition of all REO Property (and final distribution to the Certificateholders), (ii) the sale of the property held by the Trust in accordance with Section 10.1(b) of the Pooling and Servicing Agreement, (iii) the termination of the Trust pursuant to Section 10.1(c) of the Pooling and Servicing Agreement or (iv) the transfer of the property held in the Trust in accordance with Section 10.1(d) of the Pooling and Servicing Agreement; provided that in no event shall the Trust continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the Court of St. James, living on the date hereof.  The parties designated in the Pooling and Servicing Agreement may exercise their option to purchase, in whole only, the Mortgage Loans and any other property, if any, remaining in the Trust and cause the termination of the Trust in accordance with the requirements set forth in the Pooling and Servicing Agreement.  Upon termination of the Trust and payment of the Certificates and of all administrative expenses associated with the Trust, any remaining assets of the Trust shall be distributed to the holders of the Residual Certificates.


 


The Certificate Registrar has executed this Certificate under the Pooling and Servicing Agreement.


 


THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.


 


 


 


 




  





A-10-7











  






IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to be duly executed under this official seal.





 




	 	[__________],	 	 
	 	 	as Certificate Registrar	 
	 	 	 	 
	 	 	 	 
	
 

	
By: 

	 	 
	 	 	AUTHORIZED SIGNATORY	 







 


Dated:  [_____], 20[__]


 


CERTIFICATE OF AUTHENTICATION


 


THIS IS ONE OF THE CLASS X-2 CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.



 




	 	[__________],	 	 
	 	 	AUTHENTICATING AGENT	 
	 	 	 	 
	 	 	 	 
	
 

	
By: 

	 	 
	 	 	AUTHORIZED SIGNATORY	 







 






 


 




  





A-10-8











  








 


ABBREVIATIONS


 


The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as though they were written out in full according to applicable laws or regulations:




 




	
TEN COM

	
-

	
as tenant in common

	  	
UNIF GIFT MIN ACT.........Custodian


	
TEN ENT

	
-

	
as tenants by the entireties

	  	
(Cust)


	
JT TEN

	
-

	
as joint tenants with rights of survivorship and not as tenants in common

	  	
Under Uniform Gifts to Minors


Act..........................


(State)









 


Additional abbreviations may also be used though not in the above list.


FORM OF TRANSFER


 


FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto



	  



 


	  	
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE


	  



 


	  
	
Please print or typewrite name and address of assignee


 


	
the within Certificate and does hereby or irrevocably constitute and appoint


 


	
to transfer the said Certificate in the Certificate Register of the within-named Trust, with full power of substitution in the premises.


 








 



	Dated:                            	 	 
	 	NOTICE:  The signature to this assignment must correspond with the name as written upon the face of this Certificate in every particular without alteration or enlargement or any change whatever.	 
	                                              	 	 
	 	 	 
	 	 	 
	
SIGNATURE GUARANTEED

	 	 
	
The signature must be guaranteed by a commercial bank or trust company or by a member firm of the New York Stock Exchange or another national securities exchange.  Notarized or witnessed signatures are not acceptable.

	 	 





 










 


 




  





A-10-9











  






 


DISTRIBUTION INSTRUCTIONS


 


The assignee should include the following for purposes of distribution:


 


Distributions shall be made, by wire transfer or otherwise, in immediately available funds to_____________ for the account of ___________________________ account number ______________ or, if mailed by check, to ______________________________.  Statements should be mailed to ____________________.  This information is provided by assignee named above, or _______________________, as its agent.


 


 


 




 




  





A-10-10











  






[TO BE ATTACHED TO GLOBAL CERTIFICATES]


 


SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES


 


The following exchanges of a part of this Global Certificate have been made:


 














  





A-10-11











  






 


EXHIBIT A-11


 


[FORM OF CLASS A-J CERTIFICATE]


 


THIS CLASS A-J CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE PAYING AGENT, THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.


 


THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR INCREASED AS SET FORTH ON THE SCHEDULE OF EXCHANGES ATTACHED HERETO.


 


IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST BE AN ACCREDITED INVESTOR.


 


THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS, REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS CLASS A-J CERTIFICATE.  ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW.  ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.


 


UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.


 


THIS CERTIFICATE REPRESENTS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, 


 


 


 


 




  





A-11-1











  






RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”).


 


 


 


 




  





A-11-2











  






MORGAN STANLEY CAPITAL I INC.


COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,


SERIES [_____]


 








	
INITIAL PASS-THROUGH RATE:  [_]%

	
MASTER SERVICER:  [_____]


	
DATE OF POOLING AND SERVICING AGREEMENT:  [_____], 20[_]

	
SPECIAL SERVICER:  [_____]


	
CUT-OFF DATE:  [_____], 20[_]

	
PAYING AGENT:  [_____]


	
CLOSING DATE:  [_____], 20[_]

	
TRUSTEE:  [_____]


	
FIRST DISTRIBUTION DATE:  [_____], 20[_]

	  
	
AGGREGATE CERTIFICATE BALANCE OF THE CLASS A-J CERTIFICATES AS OF THE CLOSING DATE:  $[_____]

	  
	
CERTIFICATE BALANCE OF THIS CLASS A-J CERTIFICATE AS OF THE CLOSING DATE: $[_____] (SUBJECT TO SCHEDULE OF EXCHANGES ATTACHED)

	  
	  	  
	
No.  A-J-1

	
CUSIP No.:  [_____]







 







 


 




  





A-11-3











  






CLASS A-J CERTIFICATE


 


evidencing a beneficial ownership interest in a Trust, consisting primarily of a pool of commercial and multifamily mortgage loans (the “Mortgage Loans”) and certain other property, formed and sold by


 


MORGAN STANLEY CAPITAL I INC.


 


THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced by this Certificate in the Class A-J Certificates issued by the Trust created pursuant to the Pooling and Servicing Agreement, dated as specified above (the “Pooling and Servicing Agreement”), among Morgan Stanley Capital I Inc. (hereinafter called the “Depositor”, which term includes any successor entity under the Pooling and Servicing Agreement), the Trustee, the Paying Agent, the Certificate Registrar, the Master Servicer and the Special Servicer, a summary of certain of the pertinent provisions of which is set forth hereafter.  The Trust consists primarily of the Mortgage Loans, such amounts as shall from time to time be held in the Certificate Account and Distribution Account, the Insurance Policies and any REO Properties.  To the extent not defined herein, the capitalized terms used herein have the meanings assigned in the Pooling and Servicing Agreement.


 


This Certificate is one of a duly authorized issue of Certificates designated as Certificates of the series specified on the face hereof (herein called the “Certificates”) and representing an interest in the Class of Certificates specified on the face hereof equal to the quotient expressed as a percentage obtained by dividing the Certificate Balance of this Certificate specified on the face hereof by the aggregate initial Certificate Balance of the Class A-J Certificates.  The Certificates are designated as the Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series [_____] and are issued in the Classes specified in the Pooling and Servicing Agreement.  The Certificates will evidence in the aggregate 100% of the beneficial ownership of the Trust.


 


This Certificate does not purport to summarize the Pooling and Servicing Agreement and reference is made to that Agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the Trustee and the Paying Agent.  This Certificate is issued under and is subject to the terms, provisions and conditions of the Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as amended from time to time, the Certificateholder by virtue of the acceptance hereof assents and by which the Certificateholder is bound.  In the case of any conflict between terms specified in this Certificate and terms specified in the Pooling and Servicing Agreement, the terms of the Pooling and Servicing Agreement shall govern.


 


Distributions of principal of and interest on this Certificate will be made out of the Available Distribution Amount, to the extent and subject to the limitations set forth in the Pooling and Servicing Agreement, on the 15th day of each month or, if such 15th day is not a Business Day, the next succeeding Business Day (a “Distribution Date”) commencing on the first Distribution Date specified above, to the Person in whose name this Certificate is registered at the close of business on the last Business Day of the month immediately preceding the month 


 


 


 




  





A-11-4











  






of such distribution (the “Record Date”).  All sums distributable on this Certificate are payable in the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.


 


Interest on this Certificate will accrue (computed as if each year consisted of 360 days and each month consisted of 30 days) during the Interest Accrual Period relating to such Distribution Date at the Pass-Through Rate on the Certificate Balance of this Certificate immediately prior to each Distribution Date.  Principal and interest allocated to this Certificate on any Distribution Date will be in an amount due to this Certificate’s pro rata share of the amount to be distributed on the Certificates of this Class as of such Distribution Date, with a final distribution to be made upon retirement of this Certificate as set forth in the Pooling and Servicing Agreement.


 


Unless the certificate of authentication hereon has been executed by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.


 


Realized Losses, Expense Losses and interest shortfalls on the Mortgage Loans shall be allocated on the applicable Distribution Date to Certificateholders in the manner set forth in the Pooling and Servicing Agreement.  All Realized Losses, Expense Losses and interest shortfalls on the Mortgage Loans allocated to any Class of Certificates will be allocated pro rata among the outstanding Certificates of such Class.


 


The Certificates are limited in right of payment to certain collections and recoveries respecting the Mortgage Loans, all as more specifically set forth in the Pooling and Servicing Agreement.  As provided in the Pooling and Servicing Agreement, withdrawals from the Certificate Account shall be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of certain expenses incurred with respect to the servicing of the Mortgage Loans and administration of the Trust.


 


All distributions under the Pooling and Servicing Agreement to a nominee of The Depository Trust Company (“DTC”) will be made by or on behalf of the Paying Agent by wire transfer in immediately available funds to an account specified in the request of such Certificateholder.  All distributions under the Pooling and Servicing Agreement to Certificateholders will be made by wire transfer in immediately available funds to the account specified by the Certificateholder, at a bank or other entity having appropriate facilities therefor, if such Certificateholder will have provided the Paying Agent with wiring instructions on or prior to the related Record Date or otherwise by check mailed to such Certificateholder. Notwithstanding the above, the final distribution on any Certificate will be made only upon presentation and surrender of such Certificate at the location that will be specified in a notice of the pendency of such final distribution.


 


The Pooling and Servicing Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Certificateholders under the Pooling and Servicing Agreement at any time by the parties thereto with the consent of the Holders of not less than 51% of the Aggregate Certificate Balance of the Certificates then outstanding (and under certain circumstances, without regard to Certificates 


 


 


 




  





A-11-5











  






held by the Depositor, any of the Depositor’s Affiliates and/or agents or any Seller), as specified in the Pooling and Servicing Agreement.  Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange therefor or in lieu hereof whether or not notation of such consent is made upon the Certificate.  The Pooling and Servicing Agreement also permits the amendment thereof, in certain circumstances, without the consent of the Holders of any of the Certificates.


 


As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the Corporate Trust Office of the Certificate Registrar, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Certificate Registrar duly executed by the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized denominations will be issued to the designated transferee or transferees.


 


Subject to the terms of the Pooling and Servicing Agreement, the Certificates are issuable in fully registered form only, without coupons, in minimum denominations specified in the Pooling and Servicing Agreement.


 


As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, Certificates are exchangeable for new Certificates of the same Class in authorized denominations as requested by the Holder surrendering the same.  No service charge will be made to a Certificateholder for any such registration of transfer or exchange, but the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.


 


Notwithstanding the foregoing, for so long as this Certificate is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC, transfers of interests in this Certificate shall be made through the book entry facilities of DTC.


 


The Trustee, the Paying Agent, the Master Servicer, the Special Servicer or the Operating Adviser may treat the Person in whose name this Certificate is registered as of the related Record Date as the owner hereof for the purpose of receiving distributions as provided in the Pooling and Servicing Agreement and for all other purposes whatsoever, and none of the Trustee, the Paying Agent, the Master Servicer, the Special Servicer or the Operating Adviser shall be affected by notice to the contrary.


 


The obligations and responsibilities of the Trustee and the Paying Agent created hereby (other than the obligation of the Paying Agent, to make payments to the Class R-I Certificateholders, Class R-II Certificateholders and the REMIC III Certificateholders as set forth in Section 10.2 of the Pooling and Servicing Agreement and other than the obligations in the nature of information or tax reporting) shall terminate on the earliest of (i) the later of (A) the final payment or other liquidation of the last Mortgage Loan remaining in the Trust (and final 


 


 


 




  





A-11-6











  






distribution to the Certificateholders) and (B) the disposition of all REO Property (and final distribution to the Certificateholders), (ii) the sale of the property held by the Trust in accordance with Section 10.1(b) of the Pooling and Servicing Agreement, (iii) the termination of the Trust pursuant to Section 10.1(c) of the Pooling and Servicing Agreement or (iv) the transfer of the property held in the Trust in accordance with Section 10.1(d) of the Pooling and Servicing Agreement; provided that in no event shall the Trust continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the Court of St. James, living on the date hereof.  The parties designated in the Pooling and Servicing Agreement may exercise their option to purchase, in whole only, the Mortgage Loans and any other property, if any, remaining in the Trust and cause the termination of the Trust in accordance with the requirements set forth in the Pooling and Servicing Agreement.  Upon termination of the Trust and payment of the Certificates and of all administrative expenses associated with the Trust, any remaining assets of the Trust shall be distributed to the holders of the Residual Certificates.


 


The Certificate Registrar has executed this Certificate under the Pooling and Servicing Agreement.


 


THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.


 


 


 


 


 




  





A-11-7











  






IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to be duly executed under this official seal.


 





 




	 	[__________],	 	 
	 	 	as Certificate Registrar	 
	 	 	 	 
	 	 	 	 
	
 

	
By: 

	 	 
	 	 	AUTHORIZED SIGNATORY	 







 


Dated:  [_____], 20[__]


 


CERTIFICATE OF AUTHENTICATION


 


THIS IS ONE OF THE CLASS A-J CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.



 




	 	[__________],	 	 
	 	 	AUTHENTICATING AGENT	 
	 	 	 	 
	 	 	 	 
	
 

	
By: 

	 	 
	 	 	AUTHORIZED SIGNATORY	 







 






 


 




  





A-11-8











  








 


ABBREVIATIONS


 


The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as though they were written out in full according to applicable laws or regulations:




 




	
TEN COM

	
-

	
as tenant in common

	  	
UNIF GIFT MIN ACT.........Custodian


	
TEN ENT

	
-

	
as tenants by the entireties

	  	
(Cust)


	
JT TEN

	
-

	
as joint tenants with rights of survivorship and not as tenants in common

	  	
Under Uniform Gifts to Minors


Act..........................


(State)









 


Additional abbreviations may also be used though not in the above list.


FORM OF TRANSFER


 


FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto



	  



 


	  	
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE


	  



 


	  
	
Please print or typewrite name and address of assignee


 


	
the within Certificate and does hereby or irrevocably constitute and appoint


 


	
to transfer the said Certificate in the Certificate Register of the within-named Trust, with full power of substitution in the premises.


 








 



	Dated:                            	 	 
	 	NOTICE:  The signature to this assignment must correspond with the name as written upon the face of this Certificate in every particular without alteration or enlargement or any change whatever.	 
	                                              	 	 
	 	 	 
	 	 	 
	
SIGNATURE GUARANTEED

	 	 
	
The signature must be guaranteed by a commercial bank or trust company or by a member firm of the New York Stock Exchange or another national securities exchange.  Notarized or witnessed signatures are not acceptable.

	 	 





 










 


 




  





A-11-9











  






 


DISTRIBUTION INSTRUCTIONS


 


The assignee should include the following for purposes of distribution:


 


Distributions shall be made, by wire transfer or otherwise, in immediately available funds to_____________ for the account of ___________________________ account number ______________ or, if mailed by check, to ______________________________.  Statements should be mailed to ____________________.  This information is provided by assignee named above, or _______________________, as its agent.


 


 


 


 


 




  





A-11-10











  






[TO BE ATTACHED TO GLOBAL CERTIFICATES]


 


SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES


 


The following exchanges of a part of this Global Certificate have been made:


 


 


 




 




  





A-11-11











  






 


EXHIBIT A-12


 


[FORM OF CLASS B CERTIFICATE]


 


THIS CLASS B CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE PAYING AGENT, THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.


 


THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR INCREASED AS SET FORTH ON THE SCHEDULE OF EXCHANGES ATTACHED HERETO.


 


THIS CLASS B CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.


 


IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST BE AN ACCREDITED INVESTOR.


 


THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS, REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS CLASS B CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW.  ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.


 


UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR 


 


 


 




  





A-12-1











  






OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.


 


THIS CERTIFICATE REPRESENTS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”).


 


 


 


 


 


 


 




  





A-12-2











  






MORGAN STANLEY CAPITAL I INC.


COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,


SERIES [_____]


 


 



	
INITIAL PASS-THROUGH RATE:  [_]%

	
MASTER SERVICER:  [_____]


	
DATE OF POOLING AND SERVICING AGREEMENT:  [_____], 20[_]

	
SPECIAL SERVICER:  [_____]


	
CUT-OFF DATE:  [_____], 20[_]

	
PAYING AGENT:  [_____]


	
CLOSING DATE:  [_____], 20[_]

	
TRUSTEE:  [_____]


	
FIRST DISTRIBUTION DATE:  [_____], 20[_]

	  
	
AGGREGATE CERTIFICATE BALANCE OF THE CLASS B CERTIFICATES AS OF THE CLOSING DATE:  $[_____]

	  
	
CERTIFICATE BALANCE OF THIS CLASS B CERTIFICATE AS OF THE CLOSING DATE:  $[_____] (SUBJECT TO SCHEDULE OF EXCHANGES ATTACHED)

	  
	  	  
	
No.  B-1

	
CUSIP No.:  [_____]


	  	  





 







 


 


 




  





A-12-3











  






 


CLASS B CERTIFICATE


 


evidencing a beneficial ownership interest in a Trust, consisting primarily of a pool of commercial and multifamily mortgage loans (the “Mortgage Loans”) and certain other property, formed and sold by


 


MORGAN STANLEY CAPITAL I INC.


 


THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced by this Certificate in the Class B Certificates issued by the Trust created pursuant to the Pooling and Servicing Agreement, dated as specified above (the “Pooling and Servicing Agreement”), among Morgan Stanley Capital I Inc. (hereinafter called the “Depositor”, which term includes any successor entity under the Pooling and Servicing Agreement), the Trustee, the Paying Agent, the Certificate Registrar, the Master Servicer and the Special Servicer, a summary of certain of the pertinent provisions of which is set forth hereafter.  The Trust consists primarily of the Mortgage Loans, such amounts as shall from time to time be held in the Certificate Account and Distribution Account, the Insurance Policies and any REO Properties.  To the extent not defined herein, the capitalized terms used herein have the meanings assigned in the Pooling and Servicing Agreement.


 


This Certificate is one of a duly authorized issue of Certificates designated as Certificates of the series specified on the face hereof (herein called the “Certificates”) and representing an interest in the Class of Certificates specified on the face hereof equal to the quotient expressed as a percentage obtained by dividing the Certificate Balance of this Certificate specified on the face hereof by the aggregate initial Certificate Balance of the Class B Certificates.  The Certificates are designated as the Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series [_____] and are issued in the Classes specified in the Pooling and Servicing Agreement.  The Certificates will evidence in the aggregate 100% of the beneficial ownership of the Trust.


 


This Certificate does not purport to summarize the Pooling and Servicing Agreement and reference is made to that Agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the Trustee and the Paying Agent.  This Certificate is issued under and is subject to the terms, provisions and conditions of the Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as amended from time to time, the Certificateholder by virtue of the acceptance hereof assents and by which the Certificateholder is bound.  In the case of any conflict between terms specified in this Certificate and terms specified in the Pooling and Servicing Agreement, the terms of the Pooling and Servicing Agreement shall govern.


 


Distributions of principal of and interest on this Certificate will be made out of the Available Distribution Amount, to the extent and subject to the limitations set forth in the Pooling and Servicing Agreement, on the 15th day of each month or, if such 15th day is not a Business Day, the next succeeding Business Day (a “Distribution Date”) commencing on the first Distribution Date specified above, to the Person in whose name this Certificate is registered at the close of business on the last Business Day of the month immediately preceding the month 


 


 


 


 




  





A-12-4











  






of such distribution (the “Record Date”).  All sums distributable on this Certificate are payable in the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.


 


Interest on this Certificate will accrue (computed as if each year consisted of 360 days and each month consisted of 30 days) during the Interest Accrual Period relating to such Distribution Date at the Pass-Through Rate on the Certificate Balance of this Certificate immediately prior to each Distribution Date.  Principal and interest allocated to this Certificate on any Distribution Date will be in an amount due to this Certificate’s pro rata share of the amount to be distributed on the Certificates of this Class as of such Distribution Date, with a final distribution to be made upon retirement of this Certificate as set forth in the Pooling and Servicing Agreement.


 


Unless the certificate of authentication hereon has been executed by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.


 


Realized Losses, Expense Losses and interest shortfalls on the Mortgage Loans shall be allocated on the applicable Distribution Date to Certificateholders in the manner set forth in the Pooling and Servicing Agreement.  All Realized Losses, Expense Losses and interest shortfalls on the Mortgage Loans allocated to any Class of Certificates will be allocated pro rata among the outstanding Certificates of such Class.


 


The Certificates are limited in right of payment to certain collections and recoveries respecting the Mortgage Loans, all as more specifically set forth in the Pooling and Servicing Agreement.  As provided in the Pooling and Servicing Agreement, withdrawals from the Certificate Account shall be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of certain expenses incurred with respect to the servicing of the Mortgage Loans and administration of the Trust.


 


All distributions under the Pooling and Servicing Agreement to a nominee of The Depository Trust Company (“DTC”) will be made by or on behalf of the Paying Agent by wire transfer in immediately available funds to an account specified in the request of such Certificateholder.  All distributions under the Pooling and Servicing Agreement to Certificateholders will be made by wire transfer in immediately available funds to the account specified by the Certificateholder, at a bank or other entity having appropriate facilities therefor, if such Certificateholder will have provided the Paying Agent with wiring instructions on or prior to the related Record Date or otherwise by check mailed to such Certificateholder. Notwithstanding the above, the final distribution on any Certificate will be made only upon presentation and surrender of such Certificate at the location that will be specified in a notice of the pendency of such final distribution.


 


The Pooling and Servicing Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Certificateholders under the Pooling and Servicing Agreement at any time by the parties thereto with the consent of the Holders of not less than 51% of the Aggregate Certificate Balance of the Certificates then outstanding (and under certain circumstances, without regard to Certificates 


 


 


 


 




  





A-12-5











  






held by the Depositor, any of the Depositor’s Affiliates and/or agents or any Seller), as specified in the Pooling and Servicing Agreement.  Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange therefor or in lieu hereof whether or not notation of such consent is made upon the Certificate.  The Pooling and Servicing Agreement also permits the amendment thereof, in certain circumstances, without the consent of the Holders of any of the Certificates.


 


As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the Corporate Trust Office of the Certificate Registrar, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Certificate Registrar duly executed by the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized denominations will be issued to the designated transferee or transferees.


 


Subject to the terms of the Pooling and Servicing Agreement, the Certificates are issuable in fully registered form only, without coupons, in minimum denominations specified in the Pooling and Servicing Agreement.


 


As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, Certificates are exchangeable for new Certificates of the same Class in authorized denominations as requested by the Holder surrendering the same.  No service charge will be made to a Certificateholder for any such registration of transfer or exchange, but the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.


 


Notwithstanding the foregoing, for so long as this Certificate is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC, transfers of interests in this Certificate shall be made through the book entry facilities of DTC.


 


The Trustee, the Paying Agent, the Master Servicer, the Special Servicer or the Operating Adviser may treat the Person in whose name this Certificate is registered as of the related Record Date as the owner hereof for the purpose of receiving distributions as provided in the Pooling and Servicing Agreement and for all other purposes whatsoever, and none of the Trustee, the Paying Agent, the Master Servicer, the Special Servicer or the Operating Adviser shall be affected by notice to the contrary.


 


The obligations and responsibilities of the Trustee and the Paying Agent created hereby (other than the obligation of the Paying Agent, to make payments to the Class R-I Certificateholders, Class R-II Certificateholders and the REMIC III Certificateholders as set forth in Section 10.2 of the Pooling and Servicing Agreement and other than the obligations in the nature of information or tax reporting) shall terminate on the earliest of (i) the later of (A) the final payment or other liquidation of the last Mortgage Loan remaining in the Trust (and final 


 


 


 




  





A-12-6











  






distribution to the Certificateholders) and (B) the disposition of all REO Property (and final distribution to the Certificateholders), (ii) the sale of the property held by the Trust in accordance with Section 10.1(b) of the Pooling and Servicing Agreement, (iii) the termination of the Trust pursuant to Section 10.1(c) of the Pooling and Servicing Agreement or (iv) the transfer of the property held in the Trust in accordance with Section 10.1(d) of the Pooling and Servicing Agreement; provided that in no event shall the Trust continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the Court of St. James, living on the date hereof.  The parties designated in the Pooling and Servicing Agreement may exercise their option to purchase, in whole only, the Mortgage Loans and any other property, if any, remaining in the Trust and cause the termination of the Trust in accordance with the requirements set forth in the Pooling and Servicing Agreement.  Upon termination of the Trust and payment of the Certificates and of all administrative expenses associated with the Trust, any remaining assets of the Trust shall be distributed to the holders of the Residual Certificates.


 


The Certificate Registrar has executed this Certificate under the Pooling and Servicing Agreement.


 


THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.


 


 


 


 




  





A-12-7











  






IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to be duly executed under this official seal.


 





 




	 	[__________],	 	 
	 	 	as Certificate Registrar	 
	 	 	 	 
	 	 	 	 
	
 

	
By: 

	 	 
	 	 	AUTHORIZED SIGNATORY	 







 


Dated:  [_____], 20[__]


 


CERTIFICATE OF AUTHENTICATION


 


THIS IS ONE OF THE CLASS B CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.



 




	 	[__________],	 	 
	 	 	AUTHENTICATING AGENT	 
	 	 	 	 
	 	 	 	 
	
 

	
By: 

	 	 
	 	 	AUTHORIZED SIGNATORY	 







 






 


 




  





A-12-8











  








 


ABBREVIATIONS


 


The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as though they were written out in full according to applicable laws or regulations:




 




	
TEN COM

	
-

	
as tenant in common

	  	
UNIF GIFT MIN ACT.........Custodian


	
TEN ENT

	
-

	
as tenants by the entireties

	  	
(Cust)


	
JT TEN

	
-

	
as joint tenants with rights of survivorship and not as tenants in common

	  	
Under Uniform Gifts to Minors


Act..........................


(State)









 


Additional abbreviations may also be used though not in the above list.


FORM OF TRANSFER


 


FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto



	  



 


	  	
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE


	  



 


	  
	
Please print or typewrite name and address of assignee


 


	
the within Certificate and does hereby or irrevocably constitute and appoint


 


	
to transfer the said Certificate in the Certificate Register of the within-named Trust, with full power of substitution in the premises.


 








 



	Dated:                            	 	 
	 	NOTICE:  The signature to this assignment must correspond with the name as written upon the face of this Certificate in every particular without alteration or enlargement or any change whatever.	 
	                                              	 	 
	 	 	 
	 	 	 
	
SIGNATURE GUARANTEED

	 	 
	
The signature must be guaranteed by a commercial bank or trust company or by a member firm of the New York Stock Exchange or another national securities exchange.  Notarized or witnessed signatures are not acceptable.

	 	 





 


 


 




  





A-12-9











  














 


DISTRIBUTION INSTRUCTIONS


 


The assignee should include the following for purposes of distribution:


 


Distributions shall be made, by wire transfer or otherwise, in immediately available funds to_____________ for the account of ___________________________ account number ______________ or, if mailed by check, to ______________________________.  Statements should be mailed to ____________________.  This information is provided by assignee named above, or _______________________, as its agent.


 


 


 


 


 


 




  





A-12-10











  






[TO BE ATTACHED TO GLOBAL CERTIFICATES]


 


SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES


 


The following exchanges of a part of this Global Certificate have been made:


 


 


 


 


 


 




 




  





A-12-11











  






 


EXHIBIT A-13


 


[FORM OF CLASS C CERTIFICATE]


 


THIS CLASS C CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE PAYING AGENT, THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.


 


THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR INCREASED AS SET FORTH ON THE SCHEDULE OF EXCHANGES ATTACHED HERETO.


 


THIS CLASS C CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.


 


IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST BE AN ACCREDITED INVESTOR.


 


THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS, REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS CLASS C CERTIFICATE.  ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW.  ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.


 


UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR 


 


 


 


 




  





A-13-1











  






OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.


 


THIS CERTIFICATE REPRESENTS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”).


 


 


 


 


 


 




  





A-13-2











  






MORGAN STANLEY CAPITAL I INC.


COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,


SERIES [_____]


 








	
INITIAL PASS-THROUGH RATE:  [_]%

	
MASTER SERVICER:  [_____]


	
DATE OF POOLING AND SERVICING AGREEMENT:  [_____], 20[_]

	
SPECIAL SERVICER:  [_____]


	
CUT-OFF DATE:  [_____], 20[_]

	
PAYING AGENT:  [_____]


	
CLOSING DATE:  [_____], 20[_]

	
TRUSTEE:  [_____]


	
FIRST DISTRIBUTION DATE:  [_____], 20[_]

	  
	
AGGREGATE CERTIFICATE BALANCE OF THE CLASS C CERTIFICATES AS OF THE CLOSING DATE:  $[_____]

	  
	
CERTIFICATE BALANCE OF THIS CLASS C CERTIFICATE AS OF THE CLOSING DATE:  $[_____] (SUBJECT TO SCHEDULE OF EXCHANGES ATTACHED)

	  
	  	  
	
No.  C-1

	
CUSIP No.:  [_____]


	  	  





 


 


 


 


 




 




  





A-13-3











  






 


CLASS C CERTIFICATE


 


evidencing a beneficial ownership interest in a Trust, consisting primarily of a pool of commercial and multifamily mortgage loans (the “Mortgage Loans”) and certain other property, formed and sold by


 


MORGAN STANLEY CAPITAL I INC.


 


THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced by this Certificate in the Class C Certificates issued by the Trust created pursuant to the Pooling and Servicing Agreement, dated as specified above (the “Pooling and Servicing Agreement”), among Morgan Stanley Capital I Inc. (hereinafter called the “Depositor”, which term includes any successor entity under the Pooling and Servicing Agreement), the Trustee, the Paying Agent, the Certificate Registrar, the Master Servicer and the Special Servicer, a summary of certain of the pertinent provisions of which is set forth hereafter.  The Trust consists primarily of the Mortgage Loans, such amounts as shall from time to time be held in the Certificate Account and Distribution Account, the Insurance Policies and any REO Properties.  To the extent not defined herein, the capitalized terms used herein have the meanings assigned in the Pooling and Servicing Agreement.


 


This Certificate is one of a duly authorized issue of Certificates designated as Certificates of the series specified on the face hereof (herein called the “Certificates”) and representing an interest in the Class of Certificates specified on the face hereof equal to the quotient expressed as a percentage obtained by dividing the Certificate Balance of this Certificate specified on the face hereof by the aggregate initial Certificate Balance of the Class C Certificates.  The Certificates are designated as the Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series [_____] and are issued in the Classes specified in the Pooling and Servicing Agreement.  The Certificates will evidence in the aggregate 100% of the beneficial ownership of the Trust.


 


This Certificate does not purport to summarize the Pooling and Servicing Agreement and reference is made to that Agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the Trustee and the Paying Agent.  This Certificate is issued under and is subject to the terms, provisions and conditions of the Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as amended from time to time, the Certificateholder by virtue of the acceptance hereof assents and by which the Certificateholder is bound.  In the case of any conflict between terms specified in this Certificate and terms specified in the Pooling and Servicing Agreement, the terms of the Pooling and Servicing Agreement shall govern.


 


Distributions of principal of and interest on this Certificate will be made out of the Available Distribution Amount, to the extent and subject to the limitations set forth in the Pooling and Servicing Agreement, on the 15th day of each month or, if such 15th day is not a Business Day, the next succeeding Business Day (a “Distribution Date”) commencing on the first Distribution Date specified above, to the Person in whose name this Certificate is registered at the close of business on the last Business Day of the month immediately preceding the month 


 


 


 


 




  





A-13-4











  






of such distribution (the “Record Date”).  All sums distributable on this Certificate are payable in the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.


 


Interest on this Certificate will accrue (computed as if each year consisted of 360 days and each month consisted of 30 days) during the Interest Accrual Period relating to such Distribution Date at the Pass-Through Rate on the Certificate Balance of this Certificate immediately prior to each Distribution Date.  Principal and interest allocated to this Certificate on any Distribution Date will be in an amount due to this Certificate’s pro rata share of the amount to be distributed on the Certificates of this Class as of such Distribution Date, with a final distribution to be made upon retirement of this Certificate as set forth in the Pooling and Servicing Agreement.


 


Unless the certificate of authentication hereon has been executed by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.


 


Realized Losses, Expense Losses and interest shortfalls on the Mortgage Loans shall be allocated on the applicable Distribution Date to Certificateholders in the manner set forth in the Pooling and Servicing Agreement.  All Realized Losses, Expense Losses and interest shortfalls on the Mortgage Loans allocated to any Class of Certificates will be allocated pro rata among the outstanding Certificates of such Class.


 


The Certificates are limited in right of payment to certain collections and recoveries respecting the Mortgage Loans, all as more specifically set forth in the Pooling and Servicing Agreement.  As provided in the Pooling and Servicing Agreement, withdrawals from the Certificate Account shall be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of certain expenses incurred with respect to the servicing of the Mortgage Loans and administration of the Trust.


 


All distributions under the Pooling and Servicing Agreement to a nominee of The Depository Trust Company (“DTC”) will be made by or on behalf of the Paying Agent by wire transfer in immediately available funds to an account specified in the request of such Certificateholder.  All distributions under the Pooling and Servicing Agreement to Certificateholders will be made by wire transfer in immediately available funds to the account specified by the Certificateholder, at a bank or other entity having appropriate facilities therefor, if such Certificateholder will have provided the Paying Agent with wiring instructions on or prior to the related Record Date or otherwise by check mailed to such Certificateholder. Notwithstanding the above, the final distribution on any Certificate will be made only upon presentation and surrender of such Certificate at the location that will be specified in a notice of the pendency of such final distribution.


 


The Pooling and Servicing Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Certificateholders under the Pooling and Servicing Agreement at any time by the parties thereto with the consent of the Holders of not less than 51% of the Aggregate Certificate Balance of the Certificates then outstanding (and under certain circumstances, without regard to Certificates 


 


 


 


 




  





A-13-5











  






held by the Depositor, any of the Depositor’s Affiliates and/or agents or any Seller), as specified in the Pooling and Servicing Agreement.  Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange therefor or in lieu hereof whether or not notation of such consent is made upon the Certificate.  The Pooling and Servicing Agreement also permits the amendment thereof, in certain circumstances, without the consent of the Holders of any of the Certificates.


 


As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the Corporate Trust Office of the Certificate Registrar, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Certificate Registrar duly executed by the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized denominations will be issued to the designated transferee or transferees.


 


Subject to the terms of the Pooling and Servicing Agreement, the Certificates are issuable in fully registered form only, without coupons, in minimum denominations specified in the Pooling and Servicing Agreement.


 


As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, Certificates are exchangeable for new Certificates of the same Class in authorized denominations as requested by the Holder surrendering the same.  No service charge will be made to a Certificateholder for any such registration of transfer or exchange, but the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.


 


Notwithstanding the foregoing, for so long as this Certificate is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC, transfers of interests in this Certificate shall be made through the book entry facilities of DTC.


 


The Trustee, the Paying Agent, the Master Servicer, the Special Servicer or the Operating Adviser may treat the Person in whose name this Certificate is registered as of the related Record Date as the owner hereof for the purpose of receiving distributions as provided in the Pooling and Servicing Agreement and for all other purposes whatsoever, and none of the Trustee, the Paying Agent, the Master Servicer, the Special Servicer or the Operating Adviser shall be affected by notice to the contrary.


 


The obligations and responsibilities of the Trustee and the Paying Agent created hereby (other than the obligation of the Paying Agent, to make payments to the Class R-I Certificateholders, Class R-II Certificateholders and the REMIC III Certificateholders as set forth in Section 10.2 of the Pooling and Servicing Agreement and other than the obligations in the nature of information or tax reporting) shall terminate on the earliest of (i) the later of (A) the final payment or other liquidation of the last Mortgage Loan remaining in the Trust (and final distribution to the Certificateholders) and (B) the disposition of all REO Property (and final 


 


 


 


 




  





A-13-6











  






distribution to the Certificateholders), (ii) the sale of the property held by the Trust in accordance with Section 10.1(b) of the Pooling and Servicing Agreement, (iii) the termination of the Trust pursuant to Section 10.1(c) of the Pooling and Servicing Agreement or (iv) the transfer of the property held in the Trust in accordance with Section 10.1(d) of the Pooling and Servicing Agreement; provided that in no event shall the Trust continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the Court of St. James, living on the date hereof.  The parties designated in the Pooling and Servicing Agreement may exercise their option to purchase, in whole only, the Mortgage Loans and any other property, if any, remaining in the Trust and cause the termination of the Trust in accordance with the requirements set forth in the Pooling and Servicing Agreement.  Upon termination of the Trust and payment of the Certificates and of all administrative expenses associated with the Trust, any remaining assets of the Trust shall be distributed to the holders of the Residual Certificates.


 


The Certificate Registrar has executed this Certificate under the Pooling and Servicing Agreement.


 


THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.


 


 


 


 


 




  





A-13-7











  






IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to be duly executed under this official seal.





 




	 	[__________],	 	 
	 	 	as Certificate Registrar	 
	 	 	 	 
	 	 	 	 
	
 

	
By: 

	 	 
	 	 	AUTHORIZED SIGNATORY	 







 


Dated:  [_____], 20[__]


 


CERTIFICATE OF AUTHENTICATION


 


THIS IS ONE OF THE CLASS C CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.



 




	 	[__________],	 	 
	 	 	AUTHENTICATING AGENT	 
	 	 	 	 
	 	 	 	 
	
 

	
By: 

	 	 
	 	 	AUTHORIZED SIGNATORY	 







 






 


 




  





A-13-8











  








 


ABBREVIATIONS


 


The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as though they were written out in full according to applicable laws or regulations:




 




	
TEN COM

	
-

	
as tenant in common

	  	
UNIF GIFT MIN ACT.........Custodian


	
TEN ENT

	
-

	
as tenants by the entireties

	  	
(Cust)


	
JT TEN

	
-

	
as joint tenants with rights of survivorship and not as tenants in common

	  	
Under Uniform Gifts to Minors


Act..........................


(State)









 


Additional abbreviations may also be used though not in the above list.


FORM OF TRANSFER


 


FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto



	  



 


	  	
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE


	  



 


	  
	
Please print or typewrite name and address of assignee


 


	
the within Certificate and does hereby or irrevocably constitute and appoint


 


	
to transfer the said Certificate in the Certificate Register of the within-named Trust, with full power of substitution in the premises.


 








 



	Dated:                            	 	 
	 	NOTICE:  The signature to this assignment must correspond with the name as written upon the face of this Certificate in every particular without alteration or enlargement or any change whatever.	 
	                                              	 	 
	 	 	 
	 	 	 
	
SIGNATURE GUARANTEED

	 	 
	
The signature must be guaranteed by a commercial bank or trust company or by a member firm of the New York Stock Exchange or another national securities exchange.  Notarized or witnessed signatures are not acceptable.

	 	 





 










 


 


 




  





A-13-9











  






 


DISTRIBUTION INSTRUCTIONS


 


The assignee should include the following for purposes of distribution:


 


Distributions shall be made, by wire transfer or otherwise, in immediately available funds to_____________ for the account of ___________________________ account number ______________ or, if mailed by check, to ______________________________.  Statements should be mailed to ____________________.  This information is provided by assignee named above, or _______________________, as its agent.


 


 


 


 




  





A-13-10











  






[TO BE ATTACHED TO GLOBAL CERTIFICATES]


 


SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES


 


The following exchanges of a part of this Global Certificate have been made:


 


 


 


 




 




  





A-13-11











  






 


EXHIBIT A-14


 


[FORM OF CLASS D CERTIFICATE]


 


THIS CLASS D CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE PAYING AGENT, THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.


 


THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR INCREASED AS SET FORTH ON THE SCHEDULE OF EXCHANGES ATTACHED HERETO.


 


THIS CLASS D CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.


 


IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST BE AN ACCREDITED INVESTOR.


 


THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS, REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS CLASS D CERTIFICATE.  ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW.  ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.


 


UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR 


 


 


 


 




  





A-14-1











  






OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.


 


THIS CERTIFICATE REPRESENTS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”).


 


 


 


 


 




 




  





A-14-2











  






 


MORGAN STANLEY CAPITAL I INC.


COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,


SERIES [_____]


 








	
INITIAL PASS-THROUGH RATE:  [_]%

	
MASTER SERVICER:  [_____]


	
DATE OF POOLING AND SERVICING AGREEMENT:  [_____], 20[_]

	
SPECIAL SERVICER:  [_____]


	
CUT-OFF DATE:  [_____], 20[_]

	
PAYING AGENT:  [_____]


	
CLOSING DATE:  [_____], 20[_]

	
TRUSTEE:  [_____]


	
FIRST DISTRIBUTION DATE:  [_____], 20[_]

	  
	
AGGREGATE CERTIFICATE BALANCE OF THE CLASS D CERTIFICATES AS OF THE CLOSING DATE:  $[_____]

	  
	
CERTIFICATE BALANCE OF THIS CLASS D CERTIFICATE AS OF THE CLOSING DATE:  $[_____] (SUBJECT TO SCHEDULE OF EXCHANGES ATTACHED)

	  
	  	  
	
No. D-1

	
CUSIP No.:  [_____]







 







 


 


 




  





A-14-3











  






CLASS D CERTIFICATE


 


evidencing a beneficial ownership interest in a Trust, consisting primarily of a pool of commercial and multifamily mortgage loans (the “Mortgage Loans”) and certain other property, formed and sold by


 


MORGAN STANLEY CAPITAL I INC.


 


THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced by this Certificate in the Class D Certificates issued by the Trust created pursuant to the Pooling and Servicing Agreement, dated as specified above (the “Pooling and Servicing Agreement”), among Morgan Stanley Capital I Inc. (hereinafter called the “Depositor”, which term includes any successor entity under the Pooling and Servicing Agreement), the Trustee, the Paying Agent, the Certificate Registrar, the Master Servicer and the Special Servicer, a summary of certain of the pertinent provisions of which is set forth hereafter.  The Trust consists primarily of the Mortgage Loans, such amounts as shall from time to time be held in the Certificate Account and Distribution Account, the Insurance Policies and any REO Properties.  To the extent not defined herein, the capitalized terms used herein have the meanings assigned in the Pooling and Servicing Agreement.


 


This Certificate is one of a duly authorized issue of Certificates designated as Certificates of the series specified on the face hereof (herein called the “Certificates”) and representing an interest in the Class of Certificates specified on the face hereof equal to the quotient expressed as a percentage obtained by dividing the Certificate Balance of this Certificate specified on the face hereof by the aggregate initial Certificate Balance of the Class D Certificates.  The Certificates are designated as the Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series [_____] and are issued in the Classes specified in the Pooling and Servicing Agreement.  The Certificates will evidence in the aggregate 100% of the beneficial ownership of the Trust.


 


This Certificate does not purport to summarize the Pooling and Servicing Agreement and reference is made to that Agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the Trustee and the Paying Agent.  This Certificate is issued under and is subject to the terms, provisions and conditions of the Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as amended from time to time, the Certificateholder by virtue of the acceptance hereof assents and by which the Certificateholder is bound.  In the case of any conflict between terms specified in this Certificate and terms specified in the Pooling and Servicing Agreement, the terms of the Pooling and Servicing Agreement shall govern.


 


Distributions of principal of and interest on this Certificate will be made out of the Available Distribution Amount, to the extent and subject to the limitations set forth in the Pooling and Servicing Agreement, on the 15th day of each month or, if such 15th day is not a Business Day, the next succeeding Business Day (a “Distribution Date”) commencing on the first Distribution Date specified above, to the Person in whose name this Certificate is registered at the close of business on the last Business Day of the month immediately preceding the month 


 


 


 


 




  





A-14-4











  






of such distribution (the “Record Date”).  All sums distributable on this Certificate are payable in the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.


 


Interest on this Certificate will accrue (computed as if each year consisted of 360 days and each month consisted of 30 days) during the Interest Accrual Period relating to such Distribution Date at the Pass-Through Rate on the Certificate Balance of this Certificate immediately prior to each Distribution Date.  Principal and interest allocated to this Certificate on any Distribution Date will be in an amount due to this Certificate’s pro rata share of the amount to be distributed on the Certificates of this Class as of such Distribution Date, with a final distribution to be made upon retirement of this Certificate as set forth in the Pooling and Servicing Agreement.


 


Unless the certificate of authentication hereon has been executed by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.


 


Realized Losses, Expense Losses and interest shortfalls on the Mortgage Loans shall be allocated on the applicable Distribution Date to Certificateholders in the manner set forth in the Pooling and Servicing Agreement.  All Realized Losses, Expense Losses and interest shortfalls on the Mortgage Loans allocated to any Class of Certificates will be allocated pro rata among the outstanding Certificates of such Class.


 


The Certificates are limited in right of payment to certain collections and recoveries respecting the Mortgage Loans, all as more specifically set forth in the Pooling and Servicing Agreement.  As provided in the Pooling and Servicing Agreement, withdrawals from the Certificate Account shall be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of certain expenses incurred with respect to the servicing of the Mortgage Loans and administration of the Trust.


 


All distributions under the Pooling and Servicing Agreement to a nominee of The Depository Trust Company (“DTC”) will be made by or on behalf of the Paying Agent by wire transfer in immediately available funds to an account specified in the request of such Certificateholder.  All distributions under the Pooling and Servicing Agreement to Certificateholders will be made by wire transfer in immediately available funds to the account specified by the Certificateholder, at a bank or other entity having appropriate facilities therefor, if such Certificateholder will have provided the Paying Agent with wiring instructions on or prior to the related Record Date or otherwise by check mailed to such Certificateholder. Notwithstanding the above, the final distribution on any Certificate will be made only upon presentation and surrender of such Certificate at the location that will be specified in a notice of the pendency of such final distribution.


 


The Pooling and Servicing Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Certificateholders under the Pooling and Servicing Agreement at any time by the parties thereto with the consent of the Holders of not less than 51% of the Aggregate Certificate Balance of the Certificates then outstanding (and under certain circumstances, without regard to Certificates 


 


 


 




  





A-14-5











  






held by the Depositor, any of the Depositor’s Affiliates and/or agents or any Seller), as specified in the Pooling and Servicing Agreement.  Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange therefor or in lieu hereof whether or not notation of such consent is made upon the Certificate.  The Pooling and Servicing Agreement also permits the amendment thereof, in certain circumstances, without the consent of the Holders of any of the Certificates.


 


As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the Corporate Trust Office of the Certificate Registrar, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Certificate Registrar duly executed by the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized denominations will be issued to the designated transferee or transferees.


 


Subject to the terms of the Pooling and Servicing Agreement, the Certificates are issuable in fully registered form only, without coupons, in minimum denominations specified in the Pooling and Servicing Agreement.


 


As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, Certificates are exchangeable for new Certificates of the same Class in authorized denominations as requested by the Holder surrendering the same.  No service charge will be made to a Certificateholder for any such registration of transfer or exchange, but the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.


 


Notwithstanding the foregoing, for so long as this Certificate is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC, transfers of interests in this Certificate shall be made through the book entry facilities of DTC.


 


The Trustee, the Paying Agent, the Master Servicer, the Special Servicer or the Operating Adviser may treat the Person in whose name this Certificate is registered as of the related Record Date as the owner hereof for the purpose of receiving distributions as provided in the Pooling and Servicing Agreement and for all other purposes whatsoever, and none of the Trustee, the Paying Agent, the Master Servicer, the Special Servicer or the Operating Adviser shall be affected by notice to the contrary.


 


The obligations and responsibilities of the Trustee and the Paying Agent created hereby (other than the obligation of the Paying Agent, to make payments to the Class R-I Certificateholders, Class R-II Certificateholders and the REMIC III Certificateholders as set forth in Section 10.2 of the Pooling and Servicing Agreement and other than the obligations in the nature of information or tax reporting) shall terminate on the earliest of (i) the later of (A) the final payment or other liquidation of the last Mortgage Loan remaining in the Trust (and final 


 


 


 


 




  





A-14-6











  






distribution to the Certificateholders) and (B) the disposition of all REO Property (and final distribution to the Certificateholders), (ii) the sale of the property held by the Trust in accordance with Section 10.1(b) of the Pooling and Servicing Agreement, (iii) the termination of the Trust pursuant to Section 10.1(c) of the Pooling and Servicing Agreement or (iv) the transfer of the property held in the Trust in accordance with Section 10.1(d) of the Pooling and Servicing Agreement; provided that in no event shall the Trust continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the Court of St. James, living on the date hereof.  The parties designated in the Pooling and Servicing Agreement may exercise their option to purchase, in whole only, the Mortgage Loans and any other property, if any, remaining in the Trust and cause the termination of the Trust in accordance with the requirements set forth in the Pooling and Servicing Agreement.  Upon termination of the Trust and payment of the Certificates and of all administrative expenses associated with the Trust, any remaining assets of the Trust shall be distributed to the holders of the Residual Certificates.


 


The Certificate Registrar has executed this Certificate under the Pooling and Servicing Agreement.


 


THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.


 


 


 


 




  





A-14-7











  






IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to be duly executed under this official seal.


 





 




	 	[__________],	 	 
	 	 	as Certificate Registrar	 
	 	 	 	 
	 	 	 	 
	
 

	
By: 

	 	 
	 	 	AUTHORIZED SIGNATORY	 







 


Dated:  [_____], 20[__]


 


CERTIFICATE OF AUTHENTICATION


 


THIS IS ONE OF THE CLASS D CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.



 




	 	[__________],	 	 
	 	 	AUTHENTICATING AGENT	 
	 	 	 	 
	 	 	 	 
	
 

	
By: 

	 	 
	 	 	AUTHORIZED SIGNATORY	 







 






 


 




  





A-14-8











  








 


ABBREVIATIONS


 


The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as though they were written out in full according to applicable laws or regulations:




 




	
TEN COM

	
-

	
as tenant in common

	  	
UNIF GIFT MIN ACT.........Custodian


	
TEN ENT

	
-

	
as tenants by the entireties

	  	
(Cust)


	
JT TEN

	
-

	
as joint tenants with rights of survivorship and not as tenants in common

	  	
Under Uniform Gifts to Minors


Act..........................


(State)









 


Additional abbreviations may also be used though not in the above list.


FORM OF TRANSFER


 


FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto



	  



 


	  	
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE


	  



 


	  
	
Please print or typewrite name and address of assignee


 


	
the within Certificate and does hereby or irrevocably constitute and appoint


 


	
to transfer the said Certificate in the Certificate Register of the within-named Trust, with full power of substitution in the premises.


 








 



	Dated:                            	 	 
	 	NOTICE:  The signature to this assignment must correspond with the name as written upon the face of this Certificate in every particular without alteration or enlargement or any change whatever.	 
	                                              	 	 
	 	 	 
	 	 	 
	
SIGNATURE GUARANTEED

	 	 
	
The signature must be guaranteed by a commercial bank or trust company or by a member firm of the New York Stock Exchange or another national securities exchange.  Notarized or witnessed signatures are not acceptable.

	 	 





 










 




  





A-14-9











  






 


DISTRIBUTION INSTRUCTIONS


 


The assignee should include the following for purposes of distribution:


 


Distributions shall be made, by wire transfer or otherwise, in immediately available funds to_____________ for the account of ___________________________ account number ______________ or, if mailed by check, to ______________________________.  Statements should be mailed to ____________________.  This information is provided by assignee named above, or _______________________, as its agent.


 


 


 




 




  





A-14-10











  






[TO BE ATTACHED TO GLOBAL CERTIFICATES]


 


SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES


 


The following exchanges of a part of this Global Certificate have been made:


 




 




  





A-14-11











  






 


EXHIBIT A-15


 


[FORM OF CLASS E CERTIFICATE]


 


THIS CLASS E CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASER, THE TRUSTEE, THE PAYING AGENT, THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.


 


THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.


 


THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.


 


IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST BE AN ACCREDITED INVESTOR.


 


THIS CLASS E CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.


 


THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS, REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS CLASS E CERTIFICATE.  ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW.  ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.


 


 


 


 




  





A-15-1











  






UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.


 


THIS CERTIFICATE REPRESENTS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”).


 


[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) AND, PRIOR TO THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.]1




 


 


 


 


 








 









1 For Reg S Book-Entry Certificates only


 


2 For 144A Book-Entry Certificates only






 







 




  





A-15-2











  






MORGAN STANLEY CAPITAL I INC.


COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,


SERIES [_____]


 








	
INITIAL PASS-THROUGH RATE:  [_]%

	
MASTER SERVICER:  [_____]


	
DATE OF POOLING AND SERVICING AGREEMENT:  [_____], 20[_]

	
SPECIAL SERVICER:  [_____]


	
CUT-OFF DATE:  [_____], 20[_]

	
PAYING AGENT:  [_____]


	
CLOSING DATE:  [_____], 20[_]

	
TRUSTEE:  [_____]


	
FIRST DISTRIBUTION DATE:  [_____], 20[_]

	  
	
AGGREGATE CERTIFICATE BALANCE OF THE CLASS E CERTIFICATES AS OF THE CLOSING DATE:  $[_____]

	  
	
CERTIFICATE BALANCE OF THIS CLASS E CERTIFICATE AS OF THE CLOSING DATE:  $[_____] (SUBJECT TO SCHEDULE OF EXCHANGES ATTACHED)

	  
	  	  
	
No.  E-1

	
CUSIP No.:  [_____]







 







 


 


 




  





A-15-3











  






CLASS E CERTIFICATE


 


evidencing a beneficial ownership interest in a Trust, consisting primarily of a pool of commercial and multifamily mortgage loans (the “Mortgage Loans”) and certain other property, formed and sold by


 


MORGAN STANLEY CAPITAL I INC.


 


THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced by this Certificate in the Class E Certificates issued by the Trust created pursuant to the Pooling and Servicing Agreement, dated as specified above (the “Pooling and Servicing Agreement”), among Morgan Stanley Capital I Inc. (hereinafter called the “Depositor”, which term includes any successor entity under the Pooling and Servicing Agreement), the Trustee, the Paying Agent, the Certificate Registrar, the Master Servicer and the Special Servicer, a summary of certain of the pertinent provisions of which is set forth hereafter.  The Trust consists primarily of the Mortgage Loans, such amounts as shall from time to time be held in the Certificate Account and Distribution Account, the Insurance Policies and any REO Properties.  To the extent not defined herein, the capitalized terms used herein have the meanings assigned in the Pooling and Servicing Agreement.


 


This Certificate is one of a duly authorized issue of Certificates designated as Certificates of the series specified on the face hereof (herein called the “Certificates”) and representing an interest in the Class of Certificates specified on the face hereof equal to the quotient expressed as a percentage obtained by dividing the Certificate Balance of this Certificate specified on the face hereof by the aggregate initial Certificate Balance of the Class E Certificates.  The Certificates are designated as the Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series [_____] and are issued in the Classes specified in the Pooling and Servicing Agreement.  The Certificates will evidence in the aggregate 100% of the beneficial ownership of the Trust.


 


This Certificate does not purport to summarize the Pooling and Servicing Agreement and reference is made to that Agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the Trustee and the Paying Agent.  This Certificate is issued under and is subject to the terms, provisions and conditions of the Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as amended from time to time, the Certificateholder by virtue of the acceptance hereof assents and by which the Certificateholder is bound.  In the case of any conflict between terms specified in this Certificate and terms specified in the Pooling and Servicing Agreement, the terms of the Pooling and Servicing Agreement shall govern.


 


Distributions of principal of and interest on this Certificate will be made out of the Available Distribution Amount, to the extent and subject to the limitations set forth in the Pooling and Servicing Agreement, on the 15th day of each month or, if such 15th day is not a Business Day, the next succeeding Business Day (a “Distribution Date”) commencing on the first Distribution Date specified above, to the Person in whose name this Certificate is registered at the close of business on the last Business Day of the month immediately preceding the month 


 


 


 


 




  





A-15-4











  






of such distribution (the “Record Date”).  All sums distributable on this Certificate are payable in the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.


 


Interest on this Certificate will accrue (computed as if each year consisted of 360 days and each month consisted of 30 days) during the Interest Accrual Period relating to such Distribution Date at the Pass-Through Rate on the Certificate Balance of this Certificate immediately prior to each Distribution Date.  Principal and interest allocated to this Certificate on any Distribution Date will be in an amount due to this Certificate’s pro rata share of the amount to be distributed on the Certificates of this Class as of such Distribution Date, with a final distribution to be made upon retirement of this Certificate as set forth in the Pooling and Servicing Agreement.


 


Unless the certificate of authentication hereon has been executed by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.


 


Realized Losses, Expense Losses and interest shortfalls on the Mortgage Loans shall be allocated on the applicable Distribution Date to Certificateholders in the manner set forth in the Pooling and Servicing Agreement.  All Realized Losses, Expense Losses and interest shortfalls on the Mortgage Loans allocated to any Class of Certificates will be allocated pro rata among the outstanding Certificates of such Class.


 


The Certificates are limited in right of payment to certain collections and recoveries respecting the Mortgage Loans, all as more specifically set forth in the Pooling and Servicing Agreement.  As provided in the Pooling and Servicing Agreement, withdrawals from the Certificate Account shall be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of certain expenses incurred with respect to the servicing of the Mortgage Loans and administration of the Trust.


 


All distributions under the Pooling and Servicing Agreement to a nominee of The Depository Trust Company (“DTC”) will be made by or on behalf of the Paying Agent by wire transfer in immediately available funds to an account specified in the request of such Certificateholder.  All distributions under the Pooling and Servicing Agreement to Certificateholders will be made by wire transfer in immediately available funds to the account specified by the Certificateholder, at a bank or other entity having appropriate facilities therefor, if such Certificateholder will have provided the Paying Agent with wiring instructions on or prior to the related Record Date or otherwise by check mailed to such Certificateholder. Notwithstanding the above, the final distribution on any Certificate will be made only upon presentation and surrender of such Certificate at the location that will be specified in a notice of the pendency of such final distribution.


 


The Pooling and Servicing Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Certificateholders under the Pooling and Servicing Agreement at any time by the parties thereto with the consent of the Holders of not less than 51% of the Aggregate Certificate Balance of the Certificates then outstanding (and under certain circumstances, without regard to Certificates 


 


 


 


 




  





A-15-5











  






held by the Depositor, any of the Depositor’s Affiliates and/or agents or any Seller), as specified in the Pooling and Servicing Agreement.  Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange therefor or in lieu hereof whether or not notation of such consent is made upon the Certificate.  The Pooling and Servicing Agreement also permits the amendment thereof, in certain circumstances, without the consent of the Holders of any of the Certificates.


 


As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the Corporate Trust Office of the Certificate Registrar, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Certificate Registrar duly executed by the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized denominations will be issued to the designated transferee or transferees.


 


Subject to the terms of the Pooling and Servicing Agreement, the Certificates are issuable in fully registered form only, without coupons, in minimum denominations specified in the Pooling and Servicing Agreement.


 


As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, Certificates are exchangeable for new Certificates of the same Class in authorized denominations as requested by the Holder surrendering the same.  No service charge will be made to a Certificateholder for any such registration of transfer or exchange, but the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.


 


Notwithstanding the foregoing, for so long as this Certificate is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC, transfers of interests in this Certificate shall be made through the book entry facilities of DTC.


 


The Trustee, the Paying Agent, the Master Servicer, the Special Servicer or the Operating Adviser may treat the Person in whose name this Certificate is registered as of the related Record Date as the owner hereof for the purpose of receiving distributions as provided in the Pooling and Servicing Agreement and for all other purposes whatsoever, and none of the Trustee, the Paying Agent, the Master Servicer, the Special Servicer or the Operating Adviser shall be affected by notice to the contrary.


 


The obligations and responsibilities of the Trustee and the Paying Agent created hereby (other than the obligation of the Paying Agent, to make payments to the Class R-I Certificateholders, Class R-II Certificateholders and the REMIC III Certificateholders as set forth in Section 10.2 of the Pooling and Servicing Agreement and other than the obligations in the nature of information or tax reporting) shall terminate on the earliest of (i) the later of (A) the final payment or other liquidation of the last Mortgage Loan remaining in the Trust (and final 


 


 


 


 




  





A-15-6











  






distribution to the Certificateholders) and (B) the disposition of all REO Property (and final distribution to the Certificateholders), (ii) the sale of the property held by the Trust in accordance with Section 10.1(b) of the Pooling and Servicing Agreement, (iii) the termination of the Trust pursuant to Section 10.1(c) of the Pooling and Servicing Agreement or (iv) the transfer of the property held in the Trust in accordance with Section 10.1(d) of the Pooling and Servicing Agreement; provided that in no event shall the Trust continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the Court of St. James, living on the date hereof.  The parties designated in the Pooling and Servicing Agreement may exercise their option to purchase, in whole only, the Mortgage Loans and any other property, if any, remaining in the Trust and cause the termination of the Trust in accordance with the requirements set forth in the Pooling and Servicing Agreement.  Upon termination of the Trust and payment of the Certificates and of all administrative expenses associated with the Trust, any remaining assets of the Trust shall be distributed to the holders of the Residual Certificates.


 


The Certificate Registrar has executed this Certificate under the Pooling and Servicing Agreement.


 


THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.


 


 


 




  





A-15-7











  






 


IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to be duly executed under this official seal.





 




	 	[__________],	 	 
	 	 	as Certificate Registrar	 
	 	 	 	 
	 	 	 	 
	
 

	
By: 

	 	 
	 	 	AUTHORIZED SIGNATORY	 







 


Dated:  [_____], 20[__]


 


CERTIFICATE OF AUTHENTICATION


 


THIS IS ONE OF THE CLASS E CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.



 




	 	[__________],	 	 
	 	 	AUTHENTICATING AGENT	 
	 	 	 	 
	 	 	 	 
	
 

	
By: 

	 	 
	 	 	AUTHORIZED SIGNATORY	 







 






 


 




  





A-15-8











  








 


ABBREVIATIONS


 


The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as though they were written out in full according to applicable laws or regulations:




 




	
TEN COM

	
-

	
as tenant in common

	  	
UNIF GIFT MIN ACT.........Custodian


	
TEN ENT

	
-

	
as tenants by the entireties

	  	
(Cust)


	
JT TEN

	
-

	
as joint tenants with rights of survivorship and not as tenants in common

	  	
Under Uniform Gifts to Minors


Act..........................


(State)









 


Additional abbreviations may also be used though not in the above list.


FORM OF TRANSFER


 


FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto



	  



 


	  	
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE


	  



 


	  
	
Please print or typewrite name and address of assignee


 


	
the within Certificate and does hereby or irrevocably constitute and appoint


 


	
to transfer the said Certificate in the Certificate Register of the within-named Trust, with full power of substitution in the premises.


 








 



	Dated:                            	 	 
	 	NOTICE:  The signature to this assignment must correspond with the name as written upon the face of this Certificate in every particular without alteration or enlargement or any change whatever.	 
	                                              	 	 
	 	 	 
	 	 	 
	
SIGNATURE GUARANTEED

	 	 
	
The signature must be guaranteed by a commercial bank or trust company or by a member firm of the New York Stock Exchange or another national securities exchange.  Notarized or witnessed signatures are not acceptable.

	 	 





 










 


 


 




  





A-15-9











  






 


 


DISTRIBUTION INSTRUCTIONS


 


The assignee should include the following for purposes of distribution:


 


Distributions shall be made, by wire transfer or otherwise, in immediately available funds to_____________ for the account of ___________________________ account number ______________ or, if mailed by check, to ______________________________.  Statements should be mailed to ____________________.  This information is provided by assignee named above, or _______________________, as its agent.


 


 


 


 


 


 




  





A-15-10











  






[TO BE ATTACHED TO GLOBAL CERTIFICATES]


 


SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES


 


The following exchanges of a part of this Global Certificate have been made:







 


 


 


 




  





A-15-11











  






EXHIBIT A-16


 


[FORM OF CLASS F CERTIFICATE]


 


THIS CLASS F CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASER, THE TRUSTEE, THE PAYING AGENT, THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.


 


THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.


 


THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.


 


IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST BE AN ACCREDITED INVESTOR.


 


THIS CLASS F CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.


 


THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS, REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS CLASS F CERTIFICATE.  ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW.  ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.


 


 


 


 




  





A-16-1











  






UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.


 


THIS CERTIFICATE REPRESENTS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”).


 


[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) AND, PRIOR TO THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.]1


 


 


 


 


 




 



 









1 For Reg S Book-Entry Certificates only


 


2 For 144A Book-Entry Certificates only




 


 


 


 


 




  





A-16-2











  











 


MORGAN STANLEY CAPITAL I INC.


COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,


SERIES [_____]


 








	
INITIAL PASS-THROUGH RATE:  [_]%

	
MASTER SERVICER:  [_____]


	
DATE OF POOLING AND SERVICING AGREEMENT:  [_____], 20[_]

	
SPECIAL SERVICER:  [_____]


	
CUT-OFF DATE:  [_____], 20[_]

	
PAYING AGENT:  [_____]


	
CLOSING DATE:  [_____], 20[_]

	
TRUSTEE:  [_____]


	
FIRST DISTRIBUTION DATE:  [_____], 20[_]

	  
	
AGGREGATE CERTIFICATE BALANCE OF THE CLASS F CERTIFICATES AS OF THE CLOSING DATE:  $[_____]

	  
	
CERTIFICATE BALANCE OF THIS CLASS F CERTIFICATE AS OF THE CLOSING DATE:  $[_____] (SUBJECT TO SCHEDULE OF EXCHANGES ATTACHED)

	  
	  	  
	
No.  F-1

	
CUSIP No.:  [_____]







 







 


 


 


 




  





A-16-3











  






CLASS F CERTIFICATE


 


evidencing a beneficial ownership interest in a Trust, consisting primarily of a pool of commercial and multifamily mortgage loans (the “Mortgage Loans”) and certain other property, formed and sold by


 


MORGAN STANLEY CAPITAL I INC.


 


THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced by this Certificate in the Class F Certificates issued by the Trust created pursuant to the Pooling and Servicing Agreement, dated as specified above (the “Pooling and Servicing Agreement”), among Morgan Stanley Capital I Inc. (hereinafter called the “Depositor”, which term includes any successor entity under the Pooling and Servicing Agreement), the Trustee, the Paying Agent, the Certificate Registrar, the Master Servicer and the Special Servicer, a summary of certain of the pertinent provisions of which is set forth hereafter.  The Trust consists primarily of the Mortgage Loans, such amounts as shall from time to time be held in the Certificate Account and Distribution Account, the Insurance Policies and any REO Properties.  To the extent not defined herein, the capitalized terms used herein have the meanings assigned in the Pooling and Servicing Agreement.


 


This Certificate is one of a duly authorized issue of Certificates designated as Certificates of the series specified on the face hereof (herein called the “Certificates”) and representing an interest in the Class of Certificates specified on the face hereof equal to the quotient expressed as a percentage obtained by dividing the Certificate Balance of this Certificate specified on the face hereof by the aggregate initial Certificate Balance of the Class F Certificates.  The Certificates are designated as the Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series [_____] and are issued in the Classes specified in the Pooling and Servicing Agreement.  The Certificates will evidence in the aggregate 100% of the beneficial ownership of the Trust.


 


This Certificate does not purport to summarize the Pooling and Servicing Agreement and reference is made to that Agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the Trustee and the Paying Agent.  This Certificate is issued under and is subject to the terms, provisions and conditions of the Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as amended from time to time, the Certificateholder by virtue of the acceptance hereof assents and by which the Certificateholder is bound.  In the case of any conflict between terms specified in this Certificate and terms specified in the Pooling and Servicing Agreement, the terms of the Pooling and Servicing Agreement shall govern.


 


Distributions of principal of and interest on this Certificate will be made out of the Available Distribution Amount, to the extent and subject to the limitations set forth in the Pooling and Servicing Agreement, on the 15th day of each month or, if such 15th day is not a Business Day, the next succeeding Business Day (a “Distribution Date”) commencing on the first Distribution Date specified above, to the Person in whose name this Certificate is registered at the close of business on the last Business Day of the month immediately preceding the month 


 


 


 


 




  





A-16-4











  






of such distribution (the “Record Date”).  All sums distributable on this Certificate are payable in the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.


 


Interest on this Certificate will accrue (computed as if each year consisted of 360 days and each month consisted of 30 days) during the Interest Accrual Period relating to such Distribution Date at the Pass-Through Rate on the Certificate Balance of this Certificate immediately prior to each Distribution Date.  Principal and interest allocated to this Certificate on any Distribution Date will be in an amount due to this Certificate’s pro rata share of the amount to be distributed on the Certificates of this Class as of such Distribution Date, with a final distribution to be made upon retirement of this Certificate as set forth in the Pooling and Servicing Agreement.


 


Unless the certificate of authentication hereon has been executed by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.


 


Realized Losses, Expense Losses and interest shortfalls on the Mortgage Loans shall be allocated on the applicable Distribution Date to Certificateholders in the manner set forth in the Pooling and Servicing Agreement.  All Realized Losses, Expense Losses and interest shortfalls on the Mortgage Loans allocated to any Class of Certificates will be allocated pro rata among the outstanding Certificates of such Class.


 


The Certificates are limited in right of payment to certain collections and recoveries respecting the Mortgage Loans, all as more specifically set forth in the Pooling and Servicing Agreement.  As provided in the Pooling and Servicing Agreement, withdrawals from the Certificate Account shall be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of certain expenses incurred with respect to the servicing of the Mortgage Loans and administration of the Trust.


 


All distributions under the Pooling and Servicing Agreement to a nominee of The Depository Trust Company (“DTC”) will be made by or on behalf of the Paying Agent by wire transfer in immediately available funds to an account specified in the request of such Certificateholder.  All distributions under the Pooling and Servicing Agreement to Certificateholders will be made by wire transfer in immediately available funds to the account specified by the Certificateholder, at a bank or other entity having appropriate facilities therefor, if such Certificateholder will have provided the Paying Agent with wiring instructions on or prior to the related Record Date or otherwise by check mailed to such Certificateholder. Notwithstanding the above, the final distribution on any Certificate will be made only upon presentation and surrender of such Certificate at the location that will be specified in a notice of the pendency of such final distribution.


 


The Pooling and Servicing Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Certificateholders under the Pooling and Servicing Agreement at any time by the parties thereto with the consent of the Holders of not less than 51% of the Aggregate Certificate Balance of the Certificates then outstanding (and under certain circumstances, without regard to Certificates 


 


 


 


 




  





A-16-5











  






held by the Depositor, any of the Depositor’s Affiliates and/or agents or any Seller), as specified in the Pooling and Servicing Agreement.  Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange therefor or in lieu hereof whether or not notation of such consent is made upon the Certificate.  The Pooling and Servicing Agreement also permits the amendment thereof, in certain circumstances, without the consent of the Holders of any of the Certificates.


 


As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the Corporate Trust Office of the Certificate Registrar, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Certificate Registrar duly executed by the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized denominations will be issued to the designated transferee or transferees.


 


Subject to the terms of the Pooling and Servicing Agreement, the Certificates are issuable in fully registered form only, without coupons, in minimum denominations specified in the Pooling and Servicing Agreement.


 


As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, Certificates are exchangeable for new Certificates of the same Class in authorized denominations as requested by the Holder surrendering the same.  No service charge will be made to a Certificateholder for any such registration of transfer or exchange, but the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.


 


Notwithstanding the foregoing, for so long as this Certificate is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC, transfers of interests in this Certificate shall be made through the book entry facilities of DTC.


 


The Trustee, the Paying Agent, the Master Servicer, the Special Servicer or the Operating Adviser may treat the Person in whose name this Certificate is registered as of the related Record Date as the owner hereof for the purpose of receiving distributions as provided in the Pooling and Servicing Agreement and for all other purposes whatsoever, and none of the Trustee, the Paying Agent, the Master Servicer, the Special Servicer or the Operating Adviser shall be affected by notice to the contrary.


 


The obligations and responsibilities of the Trustee and the Paying Agent created hereby (other than the obligation of the Paying Agent, to make payments to the Class R-I Certificateholders, Class R-II Certificateholders and the REMIC III Certificateholders as set forth in Section 10.2 of the Pooling and Servicing Agreement and other than the obligations in the nature of information or tax reporting) shall terminate on the earliest of (i) the later of (A) the final payment or other liquidation of the last Mortgage Loan remaining in the Trust (and final 


 


 


 


 




  





A-16-6











  






distribution to the Certificateholders) and (B) the disposition of all REO Property (and final distribution to the Certificateholders), (ii) the sale of the property held by the Trust in accordance with Section 10.1(b) of the Pooling and Servicing Agreement, (iii) the termination of the Trust pursuant to Section 10.1(c) of the Pooling and Servicing Agreement or (iv) the transfer of the property held in the Trust in accordance with Section 10.1(d) of the Pooling and Servicing Agreement; provided that in no event shall the Trust continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the Court of St. James, living on the date hereof.  The parties designated in the Pooling and Servicing Agreement may exercise their option to purchase, in whole only, the Mortgage Loans and any other property, if any, remaining in the Trust and cause the termination of the Trust in accordance with the requirements set forth in the Pooling and Servicing Agreement.  Upon termination of the Trust and payment of the Certificates and of all administrative expenses associated with the Trust, any remaining assets of the Trust shall be distributed to the holders of the Residual Certificates.


 


The Certificate Registrar has executed this Certificate under the Pooling and Servicing Agreement.


 


THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.


 


 


 


 


 




  





A-16-7











  






IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to be duly executed under this official seal.


 







	 	[__________],	 	 
	 	 	as Certificate Registrar	 
	 	 	 	 
	 	 	 	 
	
 

	
By: 

	 	 
	 	 	AUTHORIZED SIGNATORY	 







 


Dated:  [_____], 20[__]


 


CERTIFICATE OF AUTHENTICATION


 


THIS IS ONE OF THE CLASS F CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.



 




	 	[__________],	 	 
	 	 	AUTHENTICATING AGENT	 
	 	 	 	 
	 	 	 	 
	
 

	
By: 

	 	 
	 	 	AUTHORIZED SIGNATORY	 







 






 


 




  





A-16-8











  








 


ABBREVIATIONS


 


The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as though they were written out in full according to applicable laws or regulations:




 




	
TEN COM

	
-

	
as tenant in common

	  	
UNIF GIFT MIN ACT.........Custodian


	
TEN ENT

	
-

	
as tenants by the entireties

	  	
(Cust)


	
JT TEN

	
-

	
as joint tenants with rights of survivorship and not as tenants in common

	  	
Under Uniform Gifts to Minors


Act..........................


(State)









 


Additional abbreviations may also be used though not in the above list.


FORM OF TRANSFER


 


FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto



	  



 


	  	
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE


	  



 


	  
	
Please print or typewrite name and address of assignee


 


	
the within Certificate and does hereby or irrevocably constitute and appoint


 


	
to transfer the said Certificate in the Certificate Register of the within-named Trust, with full power of substitution in the premises.


 








 



	Dated:                            	 	 
	 	NOTICE:  The signature to this assignment must correspond with the name as written upon the face of this Certificate in every particular without alteration or enlargement or any change whatever.	 
	                                              	 	 
	 	 	 
	 	 	 
	
SIGNATURE GUARANTEED

	 	 
	
The signature must be guaranteed by a commercial bank or trust company or by a member firm of the New York Stock Exchange or another national securities exchange.  Notarized or witnessed signatures are not acceptable.

	 	 





 










 


 


 




  





A-16-9











  






 


DISTRIBUTION INSTRUCTIONS


 


The assignee should include the following for purposes of distribution:


 


Distributions shall be made, by wire transfer or otherwise, in immediately available funds to_____________ for the account of ___________________________ account number ______________ or, if mailed by check, to ______________________________.  Statements should be mailed to ____________________.  This information is provided by assignee named above, or _______________________, as its agent.


 


 


 


 


 




  





A-16-10











  






[TO BE ATTACHED TO GLOBAL CERTIFICATES]


 


SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES


 


The following exchanges of a part of this Global Certificate have been made:


 


 


 


 


 




 




  





A-16-11











  






 


EXHIBIT A-17


 


[FORM OF CLASS G CERTIFICATE]


 


THIS CLASS G CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASER, THE TRUSTEE, THE PAYING AGENT, THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.


 


THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.


 


THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR INCREASED AS SET FORTH ON THE SCHEDULE OF EXCHANGES ATTACHED HERETO.


 


IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST BE AN ACCREDITED INVESTOR.


 


THIS CLASS G CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.


 


THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS, REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS CLASS G CERTIFICATE.  ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW.  ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.


 


 


 


 


 


 




  





A-17-1











  






UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.


 


THIS CERTIFICATE REPRESENTS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”).


 


[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) AND, PRIOR TO THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.]1




 


 


 




 



 









1 For Reg S Book-Entry Certificates only


 


2 For 144A Book-Entry Certificates only




 


 


 


 


 




  





A-17-2











  











 


MORGAN STANLEY CAPITAL I INC.


COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,


SERIES [_____]


 








	
INITIAL PASS-THROUGH RATE:  [_]%

	
MASTER SERVICER:  [_____]


	
DATE OF POOLING AND SERVICING AGREEMENT:  [_____], 20[_]

	
SPECIAL SERVICER:  [_____]


	
CUT-OFF DATE:  [_____], 20[_]

	
PAYING AGENT:  [_____]


	
CLOSING DATE:  [_____], 20[_]

	
TRUSTEE:  [_____]


	
FIRST DISTRIBUTION DATE:  [_____], 20[_]

	  
	
AGGREGATE CERTIFICATE BALANCE OF THE CLASS G CERTIFICATES AS OF THE CLOSING DATE:  $[_____]

	  
	
CERTIFICATE BALANCE OF THIS CLASS G CERTIFICATE AS OF THE CLOSING DATE:  $[_____] (SUBJECT TO SCHEDULE OF EXCHANGES ATTACHED)

	  
	  	  
	
No.  G-1

	
CUSIP No.:  [_____]







 


 




 


 




  





A-17-3











  






CLASS G CERTIFICATE


 


evidencing a beneficial ownership interest in a Trust, consisting primarily of a pool of commercial and multifamily mortgage loans (the “Mortgage Loans”) and certain other property, formed and sold by


 


MORGAN STANLEY CAPITAL I INC.


 


THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced by this Certificate in the Class G Certificates issued by the Trust created pursuant to the Pooling and Servicing Agreement, dated as specified above (the “Pooling and Servicing Agreement”), among Morgan Stanley Capital I Inc. (hereinafter called the “Depositor”, which term includes any successor entity under the Pooling and Servicing Agreement), the Trustee, the Paying Agent, the Certificate Registrar, the Master Servicer and the Special Servicer, a summary of certain of the pertinent provisions of which is set forth hereafter.  The Trust consists primarily of the Mortgage Loans, such amounts as shall from time to time be held in the Certificate Account and Distribution Account, the Insurance Policies and any REO Properties.  To the extent not defined herein, the capitalized terms used herein have the meanings assigned in the Pooling and Servicing Agreement.


 


This Certificate is one of a duly authorized issue of Certificates designated as Certificates of the series specified on the face hereof (herein called the “Certificates”) and representing an interest in the Class of Certificates specified on the face hereof equal to the quotient expressed as a percentage obtained by dividing the Certificate Balance of this Certificate specified on the face hereof by the aggregate initial Certificate Balance of the Class G Certificates.  The Certificates are designated as the Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series [_____] and are issued in the Classes specified in the Pooling and Servicing Agreement.  The Certificates will evidence in the aggregate 100% of the beneficial ownership of the Trust.


 


This Certificate does not purport to summarize the Pooling and Servicing Agreement and reference is made to that Agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the Trustee and the Paying Agent.  This Certificate is issued under and is subject to the terms, provisions and conditions of the Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as amended from time to time, the Certificateholder by virtue of the acceptance hereof assents and by which the Certificateholder is bound.  In the case of any conflict between terms specified in this Certificate and terms specified in the Pooling and Servicing Agreement, the terms of the Pooling and Servicing Agreement shall govern.


 


Distributions of principal of and interest on this Certificate will be made out of the Available Distribution Amount, to the extent and subject to the limitations set forth in the Pooling and Servicing Agreement, on the 15th day of each month or, if such 15th day is not a Business Day, the next succeeding Business Day (a “Distribution Date”) commencing on the first Distribution Date specified above, to the Person in whose name this Certificate is registered at the close of business on the last Business Day of the month immediately preceding the month 


 


 


 


 




  





A-17-4











  






of such distribution (the “Record Date”).  All sums distributable on this Certificate are payable in the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.


 


Interest on this Certificate will accrue (computed as if each year consisted of 360 days and each month consisted of 30 days) during the Interest Accrual Period relating to such Distribution Date at the Pass-Through Rate on the Certificate Balance of this Certificate immediately prior to each Distribution Date.  Principal and interest allocated to this Certificate on any Distribution Date will be in an amount due to this Certificate’s pro rata share of the amount to be distributed on the Certificates of this Class as of such Distribution Date, with a final distribution to be made upon retirement of this Certificate as set forth in the Pooling and Servicing Agreement.


 


Unless the certificate of authentication hereon has been executed by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.


 


Realized Losses, Expense Losses and interest shortfalls on the Mortgage Loans shall be allocated on the applicable Distribution Date to Certificateholders in the manner set forth in the Pooling and Servicing Agreement.  All Realized Losses, Expense Losses and interest shortfalls on the Mortgage Loans allocated to any Class of Certificates will be allocated pro rata among the outstanding Certificates of such Class.


 


The Certificates are limited in right of payment to certain collections and recoveries respecting the Mortgage Loans, all as more specifically set forth in the Pooling and Servicing Agreement.  As provided in the Pooling and Servicing Agreement, withdrawals from the Certificate Account shall be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of certain expenses incurred with respect to the servicing of the Mortgage Loans and administration of the Trust.


 


All distributions under the Pooling and Servicing Agreement to a nominee of The Depository Trust Company (“DTC”) will be made by or on behalf of the Paying Agent by wire transfer in immediately available funds to an account specified in the request of such Certificateholder.  All distributions under the Pooling and Servicing Agreement to Certificateholders will be made by wire transfer in immediately available funds to the account specified by the Certificateholder, at a bank or other entity having appropriate facilities therefor, if such Certificateholder will have provided the Paying Agent with wiring instructions on or prior to the related Record Date or otherwise by check mailed to such Certificateholder. Notwithstanding the above, the final distribution on any Certificate will be made only upon presentation and surrender of such Certificate at the location that will be specified in a notice of the pendency of such final distribution.


 


The Pooling and Servicing Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Certificateholders under the Pooling and Servicing Agreement at any time by the parties thereto with the consent of the Holders of not less than 51% of the Aggregate Certificate Balance of the Certificates then outstanding (and under certain circumstances, without regard to Certificates 


 


 


 


 




  





A-17-5











  






held by the Depositor, any of the Depositor’s Affiliates and/or agents or any Seller), as specified in the Pooling and Servicing Agreement.  Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange therefor or in lieu hereof whether or not notation of such consent is made upon the Certificate.  The Pooling and Servicing Agreement also permits the amendment thereof, in certain circumstances, without the consent of the Holders of any of the Certificates.


 


As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the Corporate Trust Office of the Certificate Registrar, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Certificate Registrar duly executed by the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized denominations will be issued to the designated transferee or transferees.


 


Subject to the terms of the Pooling and Servicing Agreement, the Certificates are issuable in fully registered form only, without coupons, in minimum denominations specified in the Pooling and Servicing Agreement.


 


As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, Certificates are exchangeable for new Certificates of the same Class in authorized denominations as requested by the Holder surrendering the same.  No service charge will be made to a Certificateholder for any such registration of transfer or exchange, but the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.


 


Notwithstanding the foregoing, for so long as this Certificate is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC, transfers of interests in this Certificate shall be made through the book entry facilities of DTC.


 


The Trustee, the Paying Agent, the Master Servicer, the Special Servicer or the Operating Adviser may treat the Person in whose name this Certificate is registered as of the related Record Date as the owner hereof for the purpose of receiving distributions as provided in the Pooling and Servicing Agreement and for all other purposes whatsoever, and none of the Trustee, the Paying Agent, the Master Servicer, the Special Servicer or the Operating Adviser shall be affected by notice to the contrary.


 


The obligations and responsibilities of the Trustee and the Paying Agent created hereby (other than the obligation of the Paying Agent, to make payments to the Class R-I Certificateholders, Class R-II Certificateholders and the REMIC III Certificateholders as set forth in Section 10.2 of the Pooling and Servicing Agreement and other than the obligations in the nature of information or tax reporting) shall terminate on the earliest of (i) the later of (A) the final payment or other liquidation of the last Mortgage Loan remaining in the Trust (and final distribution to the Certificateholders) and (B) the disposition of all REO Property (and final 


 


 


 


 




  





A-17-6











  






distribution to the Certificateholders), (ii) the sale of the property held by the Trust in accordance with Section 10.1(b) of the Pooling and Servicing Agreement, (iii) the termination of the Trust pursuant to Section 10.1(c) of the Pooling and Servicing Agreement or (iv) the transfer of the property held in the Trust in accordance with Section 10.1(d) of the Pooling and Servicing Agreement; provided that in no event shall the Trust continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the Court of St. James, living on the date hereof.  The parties designated in the Pooling and Servicing Agreement may exercise their option to purchase, in whole only, the Mortgage Loans and any other property, if any, remaining in the Trust and cause the termination of the Trust in accordance with the requirements set forth in the Pooling and Servicing Agreement.  Upon termination of the Trust and payment of the Certificates and of all administrative expenses associated with the Trust, any remaining assets of the Trust shall be distributed to the holders of the Residual Certificates.


 


The Certificate Registrar has executed this Certificate under the Pooling and Servicing Agreement.


 


THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.


 


 


 


 


 




  





A-17-7











  






IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to be duly executed under this official seal.





 




	 	[__________],	 	 
	 	 	as Certificate Registrar	 
	 	 	 	 
	 	 	 	 
	
 

	
By: 

	 	 
	 	 	AUTHORIZED SIGNATORY	 







 


Dated:  [_____], 20[__]


 


CERTIFICATE OF AUTHENTICATION


 


THIS IS ONE OF THE CLASS G CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.



 




	 	[__________],	 	 
	 	 	AUTHENTICATING AGENT	 
	 	 	 	 
	 	 	 	 
	
 

	
By: 

	 	 
	 	 	AUTHORIZED SIGNATORY	 







 






 


 




  





A-17-8











  








 


ABBREVIATIONS


 


The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as though they were written out in full according to applicable laws or regulations:




 




	
TEN COM

	
-

	
as tenant in common

	  	
UNIF GIFT MIN ACT.........Custodian


	
TEN ENT

	
-

	
as tenants by the entireties

	  	
(Cust)


	
JT TEN

	
-

	
as joint tenants with rights of survivorship and not as tenants in common

	  	
Under Uniform Gifts to Minors


Act..........................


(State)









 


Additional abbreviations may also be used though not in the above list.


FORM OF TRANSFER


 


FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto



	  



 


	  	
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE


	  



 


	  
	
Please print or typewrite name and address of assignee


 


	
the within Certificate and does hereby or irrevocably constitute and appoint


 


	
to transfer the said Certificate in the Certificate Register of the within-named Trust, with full power of substitution in the premises.


 








 



	Dated:                            	 	 
	 	NOTICE:  The signature to this assignment must correspond with the name as written upon the face of this Certificate in every particular without alteration or enlargement or any change whatever.	 
	                                              	 	 
	 	 	 
	 	 	 
	
SIGNATURE GUARANTEED

	 	 
	
The signature must be guaranteed by a commercial bank or trust company or by a member firm of the New York Stock Exchange or another national securities exchange.  Notarized or witnessed signatures are not acceptable.

	 	 





 










 


 


 




  





A-17-9











  






 


DISTRIBUTION INSTRUCTIONS


 


The assignee should include the following for purposes of distribution:


 


Distributions shall be made, by wire transfer or otherwise, in immediately available funds to_____________ for the account of ___________________________ account number ______________ or, if mailed by check, to ______________________________.  Statements should be mailed to ____________________.  This information is provided by assignee named above, or _______________________, as its agent.


 


 


 


 




 




  





A-17-10











  






[TO BE ATTACHED TO GLOBAL CERTIFICATES]


 


SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES


 


The following exchanges of a part of this Global Certificate have been made:


 


 


 


 




 




  





A-17-11











  






 


EXHIBIT A-18


 


 [FORM OF CLASS H CERTIFICATE]


 


THIS CLASS H CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASER, THE TRUSTEE, THE PAYING AGENT, THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.


 


THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE.  ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.


 


THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.


 


IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST BE AN ACCREDITED INVESTOR.


 


THIS CLASS H CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.


 


THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS, REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS CLASS H CERTIFICATE.  ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW.  ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.


 


 


 


 


 




  





A-18-1











  






UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.


 


THIS CERTIFICATE REPRESENTS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”).


 


[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) AND, PRIOR TO THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.]1




 


 


 




 



 









1 For Reg S Book-Entry Certificates only


 


2 For 144A Book-Entry Certificates only




 


 


 


 




  





A-18-2











  











 


MORGAN STANLEY CAPITAL I INC.


COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,


SERIES [_____]


 








	
INITIAL PASS-THROUGH RATE:  [_]%

	
MASTER SERVICER:  [_____]


	
DATE OF POOLING AND SERVICING AGREEMENT:  [_____], 20[_]

	
SPECIAL SERVICER:  [_____]


	
CUT-OFF DATE:  [_____], 20[_]

	
PAYING AGENT:  [_____]


	
CLOSING DATE:  [_____], 20[_]

	
TRUSTEE:  [_____]


	
FIRST DISTRIBUTION DATE:  [_____], 20[_]

	  
	
AGGREGATE CERTIFICATE BALANCE OF THE CLASS H CERTIFICATES AS OF THE CLOSING DATE:  $[_____]

	  
	
CERTIFICATE BALANCE OF THIS CLASS H CERTIFICATE AS OF THE CLOSING DATE:  $[_____] (SUBJECT TO SCHEDULE OF EXCHANGES ATTACHED)

	  
	  	  
	
No.  H-1

	
CUSIP No.:  [_____]







 







 


 


 




  





A-18-3











  






CLASS H CERTIFICATE


 


evidencing a beneficial ownership interest in a Trust, consisting primarily of a pool of commercial and multifamily mortgage loans (the “Mortgage Loans”) and certain other property, formed and sold by


 


MORGAN STANLEY CAPITAL I INC.


 


THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced by this Certificate in the Class H Certificates issued by the Trust created pursuant to the Pooling and Servicing Agreement, dated as specified above (the “Pooling and Servicing Agreement”), among Morgan Stanley Capital I Inc. (hereinafter called the “Depositor”, which term includes any successor entity under the Pooling and Servicing Agreement), the Trustee, the Paying Agent, the Certificate Registrar, the Master Servicer, the Special Servicer, a summary of certain of the pertinent provisions of which is set forth hereafter.  The Trust consists primarily of the Mortgage Loans, such amounts as shall from time to time be held in the Certificate Account and Distribution Account, the Insurance Policies and any REO Properties.  To the extent not defined herein, the capitalized terms used herein have the meanings assigned in the Pooling and Servicing Agreement.


 


This Certificate is one of a duly authorized issue of Certificates designated as Certificates of the series specified on the face hereof (herein called the “Certificates”) and representing an interest in the Class of Certificates specified on the face hereof equal to the quotient expressed as a percentage obtained by dividing the Certificate Balance of this Certificate specified on the face hereof by the aggregate initial Certificate Balance of the Class H Certificates.  The Certificates are designated as the Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series [_____] and are issued in the Classes specified in the Pooling and Servicing Agreement.  The Certificates will evidence in the aggregate 100% of the beneficial ownership of the Trust.


 


This Certificate does not purport to summarize the Pooling and Servicing Agreement and reference is made to that Agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the Trustee and the Paying Agent.  This Certificate is issued under and is subject to the terms, provisions and conditions of the Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as amended from time to time, the Certificateholder by virtue of the acceptance hereof assents and by which the Certificateholder is bound.  In the case of any conflict between terms specified in this Certificate and terms specified in the Pooling and Servicing Agreement, the terms of the Pooling and Servicing Agreement shall govern.


 


Distributions of principal of and interest on this Certificate will be made out of the Available Distribution Amount, to the extent and subject to the limitations set forth in the Pooling and Servicing Agreement, on the 15th day of each month or, if such 15th day is not a Business Day, the next succeeding Business Day (a “Distribution Date”) commencing on the first Distribution Date specified above, to the Person in whose name this Certificate is registered at the close of business on the last Business Day of the month immediately preceding the month 


 


 


 




  





A-18-4











  






of such distribution (the “Record Date”).  All sums distributable on this Certificate are payable in the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.


 


Interest on this Certificate will accrue (computed as if each year consisted of 360 days and each month consisted of 30 days) during the Interest Accrual Period relating to such Distribution Date at the Pass-Through Rate on the Certificate Balance of this Certificate immediately prior to each Distribution Date.  Principal and interest allocated to this Certificate on any Distribution Date will be in an amount due to this Certificate’s pro rata share of the amount to be distributed on the Certificates of this Class as of such Distribution Date, with a final distribution to be made upon retirement of this Certificate as set forth in the Pooling and Servicing Agreement.


 


Unless the certificate of authentication hereon has been executed by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.


 


Realized Losses, Expense Losses and interest shortfalls on the Mortgage Loans shall be allocated on the applicable Distribution Date to Certificateholders in the manner set forth in the Pooling and Servicing Agreement.  All Realized Losses, Expense Losses and interest shortfalls on the Mortgage Loans allocated to any Class of Certificates will be allocated pro rata among the outstanding Certificates of such Class.


 


The Certificates are limited in right of payment to certain collections and recoveries respecting the Mortgage Loans, all as more specifically set forth in the Pooling and Servicing Agreement.  As provided in the Pooling and Servicing Agreement, withdrawals from the Certificate Account shall be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of certain expenses incurred with respect to the servicing of the Mortgage Loans and administration of the Trust.


 


All distributions under the Pooling and Servicing Agreement to a nominee of The Depository Trust Company (“DTC”) will be made by or on behalf of the Paying Agent by wire transfer in immediately available funds to an account specified in the request of such Certificateholder.  All distributions under the Pooling and Servicing Agreement to Certificateholders will be made by wire transfer in immediately available funds to the account specified by the Certificateholder, at a bank or other entity having appropriate facilities therefor, if such Certificateholder will have provided the Paying Agent with wiring instructions on or prior to the related Record Date or otherwise by check mailed to such Certificateholder. Notwithstanding the above, the final distribution on any Certificate will be made only upon presentation and surrender of such Certificate at the location that will be specified in a notice of the pendency of such final distribution.


 


The Pooling and Servicing Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Certificateholders under the Pooling and Servicing Agreement at any time by the parties thereto with the consent of the Holders of not less than 51% of the Aggregate Certificate Balance of the Certificates then outstanding (and under certain circumstances, without regard to Certificates 


 


 


 




  





A-18-5











  






held by the Depositor, any of the Depositor’s Affiliates and/or agents or any Seller), as specified in the Pooling and Servicing Agreement.  Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange therefor or in lieu hereof whether or not notation of such consent is made upon the Certificate.  The Pooling and Servicing Agreement also permits the amendment thereof, in certain circumstances, without the consent of the Holders of any of the Certificates.


 


As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the Corporate Trust Office of the Certificate Registrar, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Certificate Registrar duly executed by the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized denominations will be issued to the designated transferee or transferees.


 


Subject to the terms of the Pooling and Servicing Agreement, the Certificates are issuable in fully registered form only, without coupons, in minimum denominations specified in the Pooling and Servicing Agreement.


 


As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, Certificates are exchangeable for new Certificates of the same Class in authorized denominations as requested by the Holder surrendering the same.  No service charge will be made to a Certificateholder for any such registration of transfer or exchange, but the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.


 


Notwithstanding the foregoing, for so long as this Certificate is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC, transfers of interests in this Certificate shall be made through the book entry facilities of DTC.


 


The Trustee, the Paying Agent, the Master Servicer, the Special Servicer or the Operating Adviser may treat the Person in whose name this Certificate is registered as of the related Record Date as the owner hereof for the purpose of receiving distributions as provided in the Pooling and Servicing Agreement and for all other purposes whatsoever, and none of the Trustee, the Paying Agent, the Master Servicer, the Special Servicer or the Operating Adviser shall be affected by notice to the contrary.


 


The obligations and responsibilities of the Trustee and the Paying Agent created hereby (other than the obligation of the Paying Agent, to make payments to the Class R-I Certificateholders, Class R-II Certificateholders and the REMIC III Certificateholders as set forth in Section 10.2 of the Pooling and Servicing Agreement and other than the obligations in the nature of information or tax reporting) shall terminate on the earliest of (i) the later of (A) the final payment or other liquidation of the last Mortgage Loan remaining in the Trust (and final distribution to the Certificateholders) and (B) the disposition of all REO Property (and final 


 


 


 




  





A-18-6











  






distribution to the Certificateholders), (ii) the sale of the property held by the Trust in accordance with Section 10.1(b) of the Pooling and Servicing Agreement, (iii) the termination of the Trust pursuant to Section 10.1(c) of the Pooling and Servicing Agreement or (iv) the transfer of the property held in the Trust in accordance with Section 10.1(d) of the Pooling and Servicing Agreement; provided that in no event shall the Trust continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the Court of St. James, living on the date hereof.  The parties designated in the Pooling and Servicing Agreement may exercise their option to purchase, in whole only, the Mortgage Loans and any other property, if any, remaining in the Trust and cause the termination of the Trust in accordance with the requirements set forth in the Pooling and Servicing Agreement.  Upon termination of the Trust and payment of the Certificates and of all administrative expenses associated with the Trust, any remaining assets of the Trust shall be distributed to the holders of the Residual Certificates.


 


The Certificate Registrar has executed this Certificate under the Pooling and Servicing Agreement.


 


THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.


 


 


 


 




  





A-18-7











  






IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to be duly executed under this official seal.


 





 




	 	[__________],	 	 
	 	 	as Certificate Registrar	 
	 	 	 	 
	 	 	 	 
	
 

	
By: 

	 	 
	 	 	AUTHORIZED SIGNATORY	 







 


Dated:  [_____], 20[__]


 


CERTIFICATE OF AUTHENTICATION


 


THIS IS ONE OF THE CLASS H CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.



 




	 	[__________],	 	 
	 	 	AUTHENTICATING AGENT	 
	 	 	 	 
	 	 	 	 
	
 

	
By: 

	 	 
	 	 	AUTHORIZED SIGNATORY	 







 






 


 




  





A-18-8











  








 


ABBREVIATIONS


 


The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as though they were written out in full according to applicable laws or regulations:




 




	
TEN COM

	
-

	
as tenant in common

	  	
UNIF GIFT MIN ACT.........Custodian


	
TEN ENT

	
-

	
as tenants by the entireties

	  	
(Cust)


	
JT TEN

	
-

	
as joint tenants with rights of survivorship and not as tenants in common

	  	
Under Uniform Gifts to Minors


Act..........................


(State)









 


Additional abbreviations may also be used though not in the above list.


FORM OF TRANSFER


 


FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto



	  



 


	  	
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE


	  



 


	  
	
Please print or typewrite name and address of assignee


 


	
the within Certificate and does hereby or irrevocably constitute and appoint


 


	
to transfer the said Certificate in the Certificate Register of the within-named Trust, with full power of substitution in the premises.


 








 



	Dated:                            	 	 
	 	NOTICE:  The signature to this assignment must correspond with the name as written upon the face of this Certificate in every particular without alteration or enlargement or any change whatever.	 
	                                              	 	 
	 	 	 
	 	 	 
	
SIGNATURE GUARANTEED

	 	 
	
The signature must be guaranteed by a commercial bank or trust company or by a member firm of the New York Stock Exchange or another national securities exchange.  Notarized or witnessed signatures are not acceptable.

	 	 





 










 


 


 




  





A-18-9











  






 


 


DISTRIBUTION INSTRUCTIONS


 


The assignee should include the following for purposes of distribution:


 


Distributions shall be made, by wire transfer or otherwise, in immediately available funds to_____________ for the account of ___________________________ account number ______________ or, if mailed by check, to ______________________________.  Statements should be mailed to ____________________.  This information is provided by assignee named above, or _______________________, as its agent.


 


 


 


 


 




  





A-18-10











  






[TO BE ATTACHED TO GLOBAL CERTIFICATES]


 


SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES


 


The following exchanges of a part of this Global Certificate have been made:


 


 


 




 




  





A-18-11











  






 


EXHIBIT A-19


 


[FORM OF CLASS J CERTIFICATE]


 


THIS CLASS J CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASER, THE TRUSTEE, THE PAYING AGENT, THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.


 


THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE.  ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.


 


THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.


 


THIS CLASS J CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.


 


THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS, REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS CLASS J CERTIFICATE.  ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW.  ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.


 


NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH RETIREMENT 


 


 


 


 




  





A-19-1











  






PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.


 


UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.


 


THIS CERTIFICATE REPRESENTS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”).


 


[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) AND, PRIOR TO THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.]1




 


 


 


 




 



 









1 For Reg S Book-Entry Certificates only


 


2 For 144A Book-Entry Certificates only




 


 


 


 




  





A-19-2











  






MORGAN STANLEY CAPITAL I INC.


COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,


SERIES [_____]


 



	
INITIAL PASS-THROUGH RATE:  [_]%

	
MASTER SERVICER:  [_____]


	
DATE OF POOLING AND SERVICING AGREEMENT:  [_____], 20[_]

	
SPECIAL SERVICER:  [_____]


	
CUT-OFF DATE:  [_____], 20[_]

	
PAYING AGENT:  [_____]


	
CLOSING DATE:  [_____], 20[_]

	
TRUSTEE:  [_____]


	
FIRST DISTRIBUTION DATE:  [_____], 20[_]

	  
	
AGGREGATE CERTIFICATE BALANCE OF THE CLASS J CERTIFICATES AS OF THE CLOSING DATE:  $[_____]

	  
	
CERTIFICATE BALANCE OF THIS CLASS J CERTIFICATE AS OF THE CLOSING DATE:  $[_____] (SUBJECT TO SCHEDULE OF EXCHANGES ATTACHED)

	  
	  	  
	
No.  J-1

	
CUSIP No.:  [_____]







 







 


 


 




  





A-19-3











  






CLASS J CERTIFICATE


 


evidencing a beneficial ownership interest in a Trust, consisting primarily of a pool of commercial and multifamily mortgage loans (the “Mortgage Loans”) and certain other property, formed and sold by


 


MORGAN STANLEY CAPITAL I INC.


 


THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced by this Certificate in the Class J Certificates issued by the Trust created pursuant to the Pooling and Servicing Agreement, dated as specified above (the “Pooling and Servicing Agreement”), among Morgan Stanley Capital I Inc. (hereinafter called the “Depositor”, which term includes any successor entity under the Pooling and Servicing Agreement), the Trustee, the Paying Agent, the Certificate Registrar, the Master Servicer and the Special Servicer, a summary of certain of the pertinent provisions of which is set forth hereafter.  The Trust consists primarily of the Mortgage Loans, such amounts as shall from time to time be held in the Certificate Account and Distribution Account, the Insurance Policies and any REO Properties.  To the extent not defined herein, the capitalized terms used herein have the meanings assigned in the Pooling and Servicing Agreement.


 


This Certificate is one of a duly authorized issue of Certificates designated as Certificates of the series specified on the face hereof (herein called the “Certificates”) and representing an interest in the Class of Certificates specified on the face hereof equal to the quotient expressed as a percentage obtained by dividing the Certificate Balance of this Certificate specified on the face hereof by the aggregate initial Certificate Balance of the Class J Certificates.  The Certificates are designated as the Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series [_____] and are issued in the Classes specified in the Pooling and Servicing Agreement.  The Certificates will evidence in the aggregate 100% of the beneficial ownership of the Trust.


 


This Certificate does not purport to summarize the Pooling and Servicing Agreement and reference is made to that Agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the Trustee and the Paying Agent.  This Certificate is issued under and is subject to the terms, provisions and conditions of the Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as amended from time to time, the Certificateholder by virtue of the acceptance hereof assents and by which the Certificateholder is bound.  In the case of any conflict between terms specified in this Certificate and terms specified in the Pooling and Servicing Agreement, the terms of the Pooling and Servicing Agreement shall govern.


 


Distributions of principal of and interest on this Certificate will be made out of the Available Distribution Amount, to the extent and subject to the limitations set forth in the Pooling and Servicing Agreement, on the 15th day of each month or, if such 15th day is not a Business Day, the next succeeding Business Day (a “Distribution Date”) commencing on the first Distribution Date specified above, to the Person in whose name this Certificate is registered at the close of business on the last Business Day of the month immediately preceding the month 


 


 


 


 




  





A-19-4











  






of such distribution (the “Record Date”).  All sums distributable on this Certificate are payable in the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.


 


Interest on this Certificate will accrue (computed as if each year consisted of 360 days and each month consisted of 30 days) during the Interest Accrual Period relating to such Distribution Date at the Pass-Through Rate on the Certificate Balance of this Certificate immediately prior to each Distribution Date.  Principal and interest allocated to this Certificate on any Distribution Date will be in an amount due to this Certificate’s pro rata share of the amount to be distributed on the Certificates of this Class as of such Distribution Date, with a final distribution to be made upon retirement of this Certificate as set forth in the Pooling and Servicing Agreement.


 


Unless the certificate of authentication hereon has been executed by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.


 


Realized Losses, Expense Losses and interest shortfalls on the Mortgage Loans shall be allocated on the applicable Distribution Date to Certificateholders in the manner set forth in the Pooling and Servicing Agreement.  All Realized Losses, Expense Losses and interest shortfalls on the Mortgage Loans allocated to any Class of Certificates will be allocated pro rata among the outstanding Certificates of such Class.


 


The Certificates are limited in right of payment to certain collections and recoveries respecting the Mortgage Loans, all as more specifically set forth in the Pooling and Servicing Agreement.  As provided in the Pooling and Servicing Agreement, withdrawals from the Certificate Account shall be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of certain expenses incurred with respect to the servicing of the Mortgage Loans and administration of the Trust.


 


All distributions under the Pooling and Servicing Agreement to a nominee of The Depository Trust Company (“DTC”) will be made by or on behalf of the Paying Agent by wire transfer in immediately available funds to an account specified in the request of such Certificateholder.  All distributions under the Pooling and Servicing Agreement to Certificateholders will be made by wire transfer in immediately available funds to the account specified by the Certificateholder, at a bank or other entity having appropriate facilities therefor, if such Certificateholder will have provided the Paying Agent with wiring instructions on or prior to the related Record Date or otherwise by check mailed to such Certificateholder. Notwithstanding the above, the final distribution on any Certificate will be made only upon presentation and surrender of such Certificate at the location that will be specified in a notice of the pendency of such final distribution.


 


The Pooling and Servicing Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Certificateholders under the Pooling and Servicing Agreement at any time by the parties thereto with the consent of the Holders of not less than 51% of the Aggregate Certificate Balance of the Certificates then outstanding (and under certain circumstances, without regard to Certificates 


 


 


 




  





A-19-5











  






held by the Depositor, any of the Depositor’s Affiliates and/or agents or any Seller), as specified in the Pooling and Servicing Agreement.  Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange therefor or in lieu hereof whether or not notation of such consent is made upon the Certificate.  The Pooling and Servicing Agreement also permits the amendment thereof, in certain circumstances, without the consent of the Holders of any of the Certificates.


 


As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the Corporate Trust Office of the Certificate Registrar, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Certificate Registrar duly executed by the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized denominations will be issued to the designated transferee or transferees.


 


Subject to the terms of the Pooling and Servicing Agreement, the Certificates are issuable in fully registered form only, without coupons, in minimum denominations specified in the Pooling and Servicing Agreement.


 


As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, Certificates are exchangeable for new Certificates of the same Class in authorized denominations as requested by the Holder surrendering the same.  No service charge will be made to a Certificateholder for any such registration of transfer or exchange, but the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.


 


Notwithstanding the foregoing, for so long as this Certificate is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC, transfers of interests in this Certificate shall be made through the book entry facilities of DTC.


 


The Trustee, the Paying Agent, the Master Servicer, the Special Servicer or the Operating Adviser may treat the Person in whose name this Certificate is registered as of the related Record Date as the owner hereof for the purpose of receiving distributions as provided in the Pooling and Servicing Agreement and for all other purposes whatsoever, and none of the Trustee, the Paying Agent, the Master Servicer, the Special Servicer or the Operating Adviser shall be affected by notice to the contrary.


 


The obligations and responsibilities of the Trustee and the Paying Agent created hereby (other than the obligation of the Paying Agent, to make payments to the Class R-I Certificateholders, Class R-II Certificateholders and the REMIC III Certificateholders as set forth in Section 10.2 of the Pooling and Servicing Agreement and other than the obligations in the nature of information or tax reporting) shall terminate on the earliest of (i) the later of (A) the final payment or other liquidation of the last Mortgage Loan remaining in the Trust (and final distribution to the Certificateholders) and (B) the disposition of all REO Property (and final 


 


 


 




  





A-19-6











  






distribution to the Certificateholders), (ii) the sale of the property held by the Trust in accordance with Section 10.1(b) of the Pooling and Servicing Agreement, (iii) the termination of the Trust pursuant to Section 10.1(c) of the Pooling and Servicing Agreement or (iv) the transfer of the property held in the Trust in accordance with Section 10.1(d) of the Pooling and Servicing Agreement; provided that in no event shall the Trust continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the Court of St. James, living on the date hereof.  The parties designated in the Pooling and Servicing Agreement may exercise their option to purchase, in whole only, the Mortgage Loans and any other property, if any, remaining in the Trust and cause the termination of the Trust in accordance with the requirements set forth in the Pooling and Servicing Agreement.  Upon termination of the Trust and payment of the Certificates and of all administrative expenses associated with the Trust, any remaining assets of the Trust shall be distributed to the holders of the Residual Certificates.


 


The Certificate Registrar has executed this Certificate under the Pooling and Servicing Agreement.


 


THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.


 


 


 


 




  





A-19-7











  






IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to be duly executed under this official seal.


 





 




	 	[__________],	 	 
	 	 	as Certificate Registrar	 
	 	 	 	 
	 	 	 	 
	
 

	
By: 

	 	 
	 	 	AUTHORIZED SIGNATORY	 







 


Dated:  [_____], 20[__]


 


CERTIFICATE OF AUTHENTICATION


 


THIS IS ONE OF THE CLASS J CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.



 




	 	[__________],	 	 
	 	 	AUTHENTICATING AGENT	 
	 	 	 	 
	 	 	 	 
	
 

	
By: 

	 	 
	 	 	AUTHORIZED SIGNATORY	 







 






 


 




  





A-19-8











  








 


ABBREVIATIONS


 


The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as though they were written out in full according to applicable laws or regulations:




 




	
TEN COM

	
-

	
as tenant in common

	  	
UNIF GIFT MIN ACT.........Custodian


	
TEN ENT

	
-

	
as tenants by the entireties

	  	
(Cust)


	
JT TEN

	
-

	
as joint tenants with rights of survivorship and not as tenants in common

	  	
Under Uniform Gifts to Minors


Act..........................


(State)









 


Additional abbreviations may also be used though not in the above list.


FORM OF TRANSFER


 


FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto



	  



 


	  	
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE


	  



 


	  
	
Please print or typewrite name and address of assignee


 


	
the within Certificate and does hereby or irrevocably constitute and appoint


 


	
to transfer the said Certificate in the Certificate Register of the within-named Trust, with full power of substitution in the premises.


 








 



	Dated:                            	 	 
	 	NOTICE:  The signature to this assignment must correspond with the name as written upon the face of this Certificate in every particular without alteration or enlargement or any change whatever.	 
	                                              	 	 
	 	 	 
	 	 	 
	
SIGNATURE GUARANTEED

	 	 
	
The signature must be guaranteed by a commercial bank or trust company or by a member firm of the New York Stock Exchange or another national securities exchange.  Notarized or witnessed signatures are not acceptable.

	 	 





 










 


 


 




  





A-19-9











  






 


 


DISTRIBUTION INSTRUCTIONS


 


The assignee should include the following for purposes of distribution:


 


Distributions shall be made, by wire transfer or otherwise, in immediately available funds to_____________ for the account of ___________________________ account number ______________ or, if mailed by check, to ______________________________.  Statements should be mailed to ____________________.  This information is provided by assignee named above, or _______________________, as its agent.


 


 


 


 


 




  





A-19-10











  






[TO BE ATTACHED TO GLOBAL CERTIFICATES]


 


SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES


 


The following exchanges of a part of this Global Certificate have been made:


 


 


 


 




 




  





A-19-11











  






 


EXHIBIT A-20


 


[FORM OF CLASS K CERTIFICATE]


 


THIS CLASS K CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASER, THE TRUSTEE, THE PAYING AGENT, THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.


 


THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE.  ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.


 


THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.


 


THIS CLASS K CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.


 


THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS, REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS CLASS K CERTIFICATE.  ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW.  ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.


 


NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH RETIREMENT 


 


 


 


 




  





A-20-1











  






PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.


 


UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.


 


THIS CERTIFICATE REPRESENTS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”).


 


[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) AND, PRIOR TO THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.]1




 


 


 


 




 



 









1 For Reg S Book-Entry Certificates only


 


2 For 144A Book-Entry Certificates only




 


 




  





A-20-2











  






MORGAN STANLEY CAPITAL I INC.


COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,


SERIES [_____]


 



	
INITIAL PASS-THROUGH RATE:  [_]%

	
MASTER SERVICER:  [_____]


	
DATE OF POOLING AND SERVICING AGREEMENT:  [_____], 20[_]

	
SPECIAL SERVICER:  [_____]


	
CUT-OFF DATE:  [_____], 20[_]

	
PAYING AGENT:  [_____]


	
CLOSING DATE:  [_____], 20[_]

	
TRUSTEE:  [_____]


	
FIRST DISTRIBUTION DATE:  [_____], 20[_]

	  
	
AGGREGATE CERTIFICATE BALANCE OF THE CLASS K CERTIFICATES AS OF THE CLOSING DATE:  $[_____]

	  
	
CERTIFICATE BALANCE OF THIS CLASS K CERTIFICATE AS OF THE CLOSING DATE:  $[_____] (SUBJECT TO SCHEDULE OF EXCHANGES ATTACHED)

	  
	  	  
	
No.  K-1

	
CUSIP No.:  [_____]







 







 


 




  





A-20-3











  






 


CLASS K CERTIFICATE


 


evidencing a beneficial ownership interest in a Trust, consisting primarily of a pool of commercial and multifamily mortgage loans (the “Mortgage Loans”) and certain other property, formed and sold by


 


MORGAN STANLEY CAPITAL I INC.


 


THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced by this Certificate in the Class K Certificates issued by the Trust created pursuant to the Pooling and Servicing Agreement, dated as specified above (the “Pooling and Servicing Agreement”), among Morgan Stanley Capital I Inc. (hereinafter called the “Depositor”, which term includes any successor entity under the Pooling And Servicing Agreement), the Trustee, the Paying Agent, the Certificate Registrar, the Master Servicer and the Special Servicer, a summary of certain of the pertinent provisions of which is set forth hereafter.  The Trust consists primarily of the Mortgage Loans, such amounts as shall from time to time be held in the Certificate Account and Distribution Account, the Insurance Policies and any REO Properties.  To the extent not defined herein, the capitalized terms used herein have the meanings assigned in the Pooling and Servicing Agreement.


 


This Certificate is one of a duly authorized issue of Certificates designated as Certificates of the series specified on the face hereof (herein called the “Certificates”) and representing an interest in the Class of Certificates specified on the face hereof equal to the quotient expressed as a percentage obtained by dividing the Certificate Balance of this Certificate specified on the face hereof by the aggregate initial Certificate Balance of the Class K Certificates.  The Certificates are designated as the Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series [_____] and are issued in the Classes specified in the Pooling and Servicing Agreement.  The Certificates will evidence in the aggregate 100% of the beneficial ownership of the Trust.


 


This Certificate does not purport to summarize the Pooling and Servicing Agreement and reference is made to that Agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the Trustee and the Paying Agent.  This Certificate is issued under and is subject to the terms, provisions and conditions of the Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as amended from time to time, the Certificateholder by virtue of the acceptance hereof assents and by which the Certificateholder is bound.  In the case of any conflict between terms specified in this Certificate and terms specified in the Pooling and Servicing Agreement, the terms of the Pooling and Servicing Agreement shall govern.


 


Distributions of principal of and interest on this Certificate will be made out of the Available Distribution Amount, to the extent and subject to the limitations set forth in the Pooling and Servicing Agreement, on the 15th day of each month or, if such 15th day is not a Business Day, the next succeeding Business Day (a “Distribution Date”) commencing on the first Distribution Date specified above, to the Person in whose name this Certificate is registered at the close of business on the last Business Day of the month immediately preceding the month 


 


 


 




  





A-20-4











  






of such distribution (the “Record Date”).  All sums distributable on this Certificate are payable in the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.


 


Interest on this Certificate will accrue (computed as if each year consisted of 360 days and each month consisted of 30 days) during the Interest Accrual Period relating to such Distribution Date at the Pass-Through Rate on the Certificate Balance of this Certificate immediately prior to each Distribution Date.  Principal and interest allocated to this Certificate on any Distribution Date will be in an amount due to this Certificate’s pro rata share of the amount to be distributed on the Certificates of this Class as of such Distribution Date, with a final distribution to be made upon retirement of this Certificate as set forth in the Pooling and Servicing Agreement.


 


Unless the certificate of authentication hereon has been executed by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.


 


Realized Losses, Expense Losses and interest shortfalls on the Mortgage Loans shall be allocated on the applicable Distribution Date to Certificateholders in the manner set forth in the Pooling and Servicing Agreement.  All Realized Losses, Expense Losses and interest shortfalls on the Mortgage Loans allocated to any Class of Certificates will be allocated pro rata among the outstanding Certificates of such Class.


 


The Certificates are limited in right of payment to certain collections and recoveries respecting the Mortgage Loans, all as more specifically set forth in the Pooling and Servicing Agreement.  As provided in the Pooling and Servicing Agreement, withdrawals from the Certificate Account shall be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of certain expenses incurred with respect to the servicing of the Mortgage Loans and administration of the Trust.


 


All distributions under the Pooling and Servicing Agreement to a nominee of The Depository Trust Company (“DTC”) will be made by or on behalf of the Paying Agent by wire transfer in immediately available funds to an account specified in the request of such Certificateholder.  All distributions under the Pooling and Servicing Agreement to Certificateholders will be made by wire transfer in immediately available funds to the account specified by the Certificateholder, at a bank or other entity having appropriate facilities therefor, if such Certificateholder will have provided the Paying Agent with wiring instructions on or prior to the related Record Date or otherwise by check mailed to such Certificateholder. Notwithstanding the above, the final distribution on any Certificate will be made only upon presentation and surrender of such Certificate at the location that will be specified in a notice of the pendency of such final distribution.


 


The Pooling and Servicing Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Certificateholders under the Pooling and Servicing Agreement at any time by the parties thereto with the consent of the Holders of not less than 51% of the Aggregate Certificate Balance of the Certificates then outstanding (and under certain circumstances, without regard to Certificates 


 


 


 




  





A-20-5











  






held by the Depositor, any of the Depositor’s Affiliates and/or agents or any Seller), as specified in the Pooling and Servicing Agreement.  Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange therefor or in lieu hereof whether or not notation of such consent is made upon the Certificate.  The Pooling and Servicing Agreement also permits the amendment thereof, in certain circumstances, without the consent of the Holders of any of the Certificates.


 


As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the Corporate Trust Office of the Certificate Registrar, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Certificate Registrar duly executed by the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized denominations will be issued to the designated transferee or transferees.


 


Subject to the terms of the Pooling and Servicing Agreement, the Certificates are issuable in fully registered form only, without coupons, in minimum denominations specified in the Pooling and Servicing Agreement.


 


As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, Certificates are exchangeable for new Certificates of the same Class in authorized denominations as requested by the Holder surrendering the same.  No service charge will be made to a Certificateholder for any such registration of transfer or exchange, but the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.


 


Notwithstanding the foregoing, for so long as this Certificate is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC, transfers of interests in this Certificate shall be made through the book entry facilities of DTC.


 


The Trustee, the Paying Agent, the Master Servicer, the Special Servicer or the Operating Adviser may treat the Person in whose name this Certificate is registered as of the related Record Date as the owner hereof for the purpose of receiving distributions as provided in the Pooling and Servicing Agreement and for all other purposes whatsoever, and none of the Trustee, the Paying Agent, the Master Servicer, the Special Servicer or the Operating Adviser shall be affected by notice to the contrary.


 


The obligations and responsibilities of the Trustee and the Paying Agent created hereby (other than the obligation of the Paying Agent, to make payments to the Class R-I Certificateholders, Class R-II Certificateholders and the REMIC III Certificateholders as set forth in Section 10.2 of the Pooling and Servicing Agreement and other than the obligations in the nature of information or tax reporting) shall terminate on the earliest of (i) the later of (A) the final payment or other liquidation of the last Mortgage Loan remaining in the Trust (and final distribution to the Certificateholders) and (B) the disposition of all REO Property (and final 


 


 


 




  





A-20-6











  






distribution to the Certificateholders), (ii) the sale of the property held by the Trust in accordance with Section 10.1(b) of the Pooling and Servicing Agreement, (iii) the termination of the Trust pursuant to Section 10.1(c) of the Pooling and Servicing Agreement or (iv) the transfer of the property held in the Trust in accordance with Section 10.1(d) of the Pooling and Servicing Agreement; provided that in no event shall the Trust continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the Court of St. James, living on the date hereof.  The parties designated in the Pooling and Servicing Agreement may exercise their option to purchase, in whole only, the Mortgage Loans and any other property, if any, remaining in the Trust and cause the termination of the Trust in accordance with the requirements set forth in the Pooling and Servicing Agreement.  Upon termination of the Trust and payment of the Certificates and of all administrative expenses associated with the Trust, any remaining assets of the Trust shall be distributed to the holders of the Residual Certificates.


 


The Certificate Registrar has executed this Certificate under the Pooling and Servicing Agreement.


 


THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.


 


 


 


 


 




  





A-20-7











  






IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to be duly executed under this official seal.


 





 




	 	[__________],	 	 
	 	 	as Certificate Registrar	 
	 	 	 	 
	 	 	 	 
	
 

	
By: 

	 	 
	 	 	AUTHORIZED SIGNATORY	 







 


Dated:  [_____], 20[__]


 


CERTIFICATE OF AUTHENTICATION


 


THIS IS ONE OF THE CLASS K CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.



 




	 	[__________],	 	 
	 	 	AUTHENTICATING AGENT	 
	 	 	 	 
	 	 	 	 
	
 

	
By: 

	 	 
	 	 	AUTHORIZED SIGNATORY	 







 






 


 




  





A-20-8











  








 


ABBREVIATIONS


 


The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as though they were written out in full according to applicable laws or regulations:




 




	
TEN COM

	
-

	
as tenant in common

	  	
UNIF GIFT MIN ACT.........Custodian


	
TEN ENT

	
-

	
as tenants by the entireties

	  	
(Cust)


	
JT TEN

	
-

	
as joint tenants with rights of survivorship and not as tenants in common

	  	
Under Uniform Gifts to Minors


Act..........................


(State)









 


Additional abbreviations may also be used though not in the above list.


FORM OF TRANSFER


 


FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto



	  



 


	  	
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE


	  



 


	  
	
Please print or typewrite name and address of assignee


 


	
the within Certificate and does hereby or irrevocably constitute and appoint


 


	
to transfer the said Certificate in the Certificate Register of the within-named Trust, with full power of substitution in the premises.


 








 



	Dated:                            	 	 
	 	NOTICE:  The signature to this assignment must correspond with the name as written upon the face of this Certificate in every particular without alteration or enlargement or any change whatever.	 
	                                              	 	 
	 	 	 
	 	 	 
	
SIGNATURE GUARANTEED

	 	 
	
The signature must be guaranteed by a commercial bank or trust company or by a member firm of the New York Stock Exchange or another national securities exchange.  Notarized or witnessed signatures are not acceptable.

	 	 





 










 


 


 




  





A-20-9











  






 


 


DISTRIBUTION INSTRUCTIONS


 


The assignee should include the following for purposes of distribution:


 


Distributions shall be made, by wire transfer or otherwise, in immediately available funds to_____________ for the account of ___________________________ account number ______________ or, if mailed by check, to ______________________________.  Statements should be mailed to ____________________.  This information is provided by assignee named above, or _______________________, as its agent.


 


 


 


 




  





A-20-10











  






[TO BE ATTACHED TO GLOBAL CERTIFICATES]


 


SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES


 


The following exchanges of a part of this Global Certificate have been made:


 


 


 


 




 




  





A-20-11











  






 


EXHIBIT A-21


 


[FORM OF CLASS L CERTIFICATE]


 


THIS CLASS L CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASER, THE TRUSTEE, THE PAYING AGENT, THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.


 


THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE.  ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.


 


THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.


 


THIS CLASS L CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.


 


THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS, REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS CLASS L CERTIFICATE.  ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW.  ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.


 


NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH RETIREMENT 


 


 


 




  





A-21-1











  






PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.


 


UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.


 


THIS CERTIFICATE REPRESENTS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”).


 


[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) AND, PRIOR TO THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.]1






 



 









1 For Reg S Book-Entry Certificates only


 


2 For 144A Book-Entry Certificates only




 


 


 


 




  





A-21-2











  






 


MORGAN STANLEY CAPITAL I INC.


COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,


SERIES [_____]


 



	
INITIAL PASS-THROUGH RATE:  [_]%

	
MASTER SERVICER:  [_____]


	
DATE OF POOLING AND SERVICING AGREEMENT:  [_____], 20[_]

	
SPECIAL SERVICER:  [_____]


	
CUT-OFF DATE:  [_____], 20[_]

	
PAYING AGENT:  [_____]


	
CLOSING DATE:  [_____], 20[_]

	
TRUSTEE:  [_____]


	
FIRST DISTRIBUTION DATE:  [_____], 20[_]

	  
	
AGGREGATE CERTIFICATE BALANCE OF THE CLASS L CERTIFICATES AS OF THE CLOSING DATE: $[_____]

	  
	
CERTIFICATE BALANCE OF THIS CLASS L CERTIFICATE AS OF THE CLOSING DATE:  $[_____] (SUBJECT TO SCHEDULE OF EXCHANGES ATTACHED)

	  
	  	  
	
No.  L-1

	
CUSIP No.:  [_____]







 







 


 


 


 




  





A-21-3











  






CLASS L CERTIFICATE


 


evidencing a beneficial ownership interest in a Trust, consisting primarily of a pool of commercial and multifamily mortgage loans (the “Mortgage Loans”) and certain other property, formed and sold by


 


MORGAN STANLEY CAPITAL I INC.


 


THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced by this Certificate in the Class L Certificates issued by the Trust created pursuant to the Pooling and Servicing Agreement, dated as specified above (the “Pooling and Servicing Agreement”), among Morgan Stanley Capital I Inc. (hereinafter called the “Depositor”, which term includes any successor entity under the Pooling and Servicing Agreement), the Trustee, the Paying Agent, the Certificate Registrar, the Master Servicer and the Special Servicer, a summary of certain of the pertinent provisions of which is set forth hereafter.  The Trust consists primarily of the Mortgage Loans, such amounts as shall from time to time be held in the Certificate Account and Distribution Account, the Insurance Policies and any REO Properties.  To the extent not defined herein, the capitalized terms used herein have the meanings assigned in the Pooling and Servicing Agreement.


 


This Certificate is one of a duly authorized issue of Certificates designated as Certificates of the series specified on the face hereof (herein called the “Certificates”) and representing an interest in the Class of Certificates specified on the face hereof equal to the quotient expressed as a percentage obtained by dividing the Certificate Balance of this Certificate specified on the face hereof by the aggregate initial Certificate Balance of the Class L Certificates.  The Certificates are designated as the Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series [_____] and are issued in the Classes specified in the Pooling and Servicing Agreement.  The Certificates will evidence in the aggregate 100% of the beneficial ownership of the Trust.


 


This Certificate does not purport to summarize the Pooling and Servicing Agreement and reference is made to that Agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the Trustee and the Paying Agent.  This Certificate is issued under and is subject to the terms, provisions and conditions of the Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as amended from time to time, the Certificateholder by virtue of the acceptance hereof assents and by which the Certificateholder is bound.  In the case of any conflict between terms specified in this Certificate and terms specified in the Pooling and Servicing Agreement, the terms of the Pooling and Servicing Agreement shall govern.


 


Distributions of principal of and interest on this Certificate will be made out of the Available Distribution Amount, to the extent and subject to the limitations set forth in the Pooling and Servicing Agreement, on the 15th day of each month or, if such 15th day is not a Business Day, the next succeeding Business Day (a “Distribution Date”) commencing on the first Distribution Date specified above, to the Person in whose name this Certificate is registered at the close of business on the last Business Day of the month immediately preceding the month 


 


 


 


 




  





A-21-4











  






of such distribution (the “Record Date”).  All sums distributable on this Certificate are payable in the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.


 


Interest on this Certificate will accrue (computed as if each year consisted of 360 days and each month consisted of 30 days) during the Interest Accrual Period relating to such Distribution Date at the Pass-Through Rate on the Certificate Balance of this Certificate immediately prior to each Distribution Date.  Principal and interest allocated to this Certificate on any Distribution Date will be in an amount due to this Certificate’s pro rata share of the amount to be distributed on the Certificates of this Class as of such Distribution Date, with a final distribution to be made upon retirement of this Certificate as set forth in the Pooling and Servicing Agreement.


 


Unless the certificate of authentication hereon has been executed by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.


 


Realized Losses, Expense Losses and interest shortfalls on the Mortgage Loans shall be allocated on the applicable Distribution Date to Certificateholders in the manner set forth in the Pooling and Servicing Agreement.  All Realized Losses, Expense Losses and interest shortfalls on the Mortgage Loans allocated to any Class of Certificates will be allocated pro rata among the outstanding Certificates of such Class.


 


The Certificates are limited in right of payment to certain collections and recoveries respecting the Mortgage Loans, all as more specifically set forth in the Pooling and Servicing Agreement.  As provided in the Pooling and Servicing Agreement, withdrawals from the Certificate Account shall be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of certain expenses incurred with respect to the servicing of the Mortgage Loans and administration of the Trust.


 


All distributions under the Pooling and Servicing Agreement to a nominee of The Depository Trust Company (“DTC”) will be made by or on behalf of the Paying Agent by wire transfer in immediately available funds to an account specified in the request of such Certificateholder.  All distributions under the Pooling and Servicing Agreement to Certificateholders will be made by wire transfer in immediately available funds to the account specified by the Certificateholder, at a bank or other entity having appropriate facilities therefor, if such Certificateholder will have provided the Paying Agent with wiring instructions on or prior to the related Record Date or otherwise by check mailed to such Certificateholder. Notwithstanding the above, the final distribution on any Certificate will be made only upon presentation and surrender of such Certificate at the location that will be specified in a notice of the pendency of such final distribution.


 


The Pooling and Servicing Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Certificateholders under the Pooling and Servicing Agreement at any time by the parties thereto with the consent of the Holders of not less than 51% of the Aggregate Certificate Balance of the Certificates then outstanding (and under certain circumstances, without regard to Certificates 


 


 


 


 




  





A-21-5











  






held by the Depositor, any of the Depositor’s Affiliates and/or agents or any Seller), as specified in the Pooling and Servicing Agreement.  Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange therefor or in lieu hereof whether or not notation of such consent is made upon the Certificate.  The Pooling and Servicing Agreement also permits the amendment thereof, in certain circumstances, without the consent of the Holders of any of the Certificates.


 


As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the Corporate Trust Office of the Certificate Registrar, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Certificate Registrar duly executed by the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized denominations will be issued to the designated transferee or transferees.


 


Subject to the terms of the Pooling and Servicing Agreement, the Certificates are issuable in fully registered form only, without coupons, in minimum denominations specified in the Pooling and Servicing Agreement.


 


As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, Certificates are exchangeable for new Certificates of the same Class in authorized denominations as requested by the Holder surrendering the same.  No service charge will be made to a Certificateholder for any such registration of transfer or exchange, but the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.


 


Notwithstanding the foregoing, for so long as this Certificate is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC, transfers of interests in this Certificate shall be made through the book entry facilities of DTC.


 


The Trustee, the Paying Agent, the Master Servicer, the Special Servicer or the Operating Adviser may treat the Person in whose name this Certificate is registered as of the related Record Date as the owner hereof for the purpose of receiving distributions as provided in the Pooling and Servicing Agreement and for all other purposes whatsoever, and none of the Trustee, the Paying Agent, the Master Servicer, the Special Servicer or the Operating Adviser shall be affected by notice to the contrary.


 


The obligations and responsibilities of the Trustee and the Paying Agent created hereby (other than the obligation of the Paying Agent, to make payments to the Class R-I Certificateholders, Class R-II Certificateholders and the REMIC III Certificateholders as set forth in Section 10.2 of the Pooling and Servicing Agreement and other than the obligations in the nature of information or tax reporting) shall terminate on the earliest of (i) the later of (A) the final payment or other liquidation of the last Mortgage Loan remaining in the Trust (and final distribution to the Certificateholders) and (B) the disposition of all REO Property (and final 


 


 


 


 




  





A-21-6











  






distribution to the Certificateholders), (ii) the sale of the property held by the Trust in accordance with Section 10.1(b) of the Pooling and Servicing Agreement, (iii) the termination of the Trust pursuant to Section 10.1(c) of the Pooling and Servicing Agreement or (iv) the transfer of the property held in the Trust in accordance with Section 10.1(d) of the Pooling and Servicing Agreement; provided that in no event shall the Trust continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the Court of St. James, living on the date hereof.  The parties designated in the Pooling and Servicing Agreement may exercise their option to purchase, in whole only, the Mortgage Loans and any other property, if any, remaining in the Trust and cause the termination of the Trust in accordance with the requirements set forth in the Pooling and Servicing Agreement.  Upon termination of the Trust and payment of the Certificates and of all administrative expenses associated with the Trust, any remaining assets of the Trust shall be distributed to the holders of the Residual Certificates.


 


The Certificate Registrar has executed this Certificate under the Pooling and Servicing Agreement.


 


THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.


 


 


 


 




  





A-21-7











  






IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to be duly executed under this official seal.


 





 




	 	[__________],	 	 
	 	 	as Certificate Registrar	 
	 	 	 	 
	 	 	 	 
	
 

	
By: 

	 	 
	 	 	AUTHORIZED SIGNATORY	 







 


Dated:  [_____], 20[__]


 


CERTIFICATE OF AUTHENTICATION


 


THIS IS ONE OF THE CLASS L CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.



 




	 	[__________],	 	 
	 	 	AUTHENTICATING AGENT	 
	 	 	 	 
	 	 	 	 
	
 

	
By: 

	 	 
	 	 	AUTHORIZED SIGNATORY	 







 






 


 




  





A-21-8











  








 


ABBREVIATIONS


 


The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as though they were written out in full according to applicable laws or regulations:




 




	
TEN COM

	
-

	
as tenant in common

	  	
UNIF GIFT MIN ACT.........Custodian


	
TEN ENT

	
-

	
as tenants by the entireties

	  	
(Cust)


	
JT TEN

	
-

	
as joint tenants with rights of survivorship and not as tenants in common

	  	
Under Uniform Gifts to Minors


Act..........................


(State)









 


Additional abbreviations may also be used though not in the above list.


FORM OF TRANSFER


 


FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto



	  



 


	  	
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE


	  



 


	  
	
Please print or typewrite name and address of assignee


 


	
the within Certificate and does hereby or irrevocably constitute and appoint


 


	
to transfer the said Certificate in the Certificate Register of the within-named Trust, with full power of substitution in the premises.


 








 



	Dated:                            	 	 
	 	NOTICE:  The signature to this assignment must correspond with the name as written upon the face of this Certificate in every particular without alteration or enlargement or any change whatever.	 
	                                              	 	 
	 	 	 
	 	 	 
	
SIGNATURE GUARANTEED

	 	 
	
The signature must be guaranteed by a commercial bank or trust company or by a member firm of the New York Stock Exchange or another national securities exchange.  Notarized or witnessed signatures are not acceptable.

	 	 





 










 


 




  





A-21-9











  






 


DISTRIBUTION INSTRUCTIONS


 


The assignee should include the following for purposes of distribution:


 


Distributions shall be made, by wire transfer or otherwise, in immediately available funds to_____________ for the account of ___________________________ account number ______________ or, if mailed by check, to ______________________________.  Statements should be mailed to ____________________.  This information is provided by assignee named above, or _______________________, as its agent.


 


 


 


 


 




  





A-21-10











  






[TO BE ATTACHED TO GLOBAL CERTIFICATES]


 


SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES


 


The following exchanges of a part of this Global Certificate have been made:


 


 


 




 




  





A-21-11











  






 


EXHIBIT A-22


 


[FORM OF CLASS M CERTIFICATE]


 


THIS CLASS M CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASER, THE TRUSTEE, THE PAYING AGENT, THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.


 


THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE.  ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.


 


THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.


 


THIS CLASS M CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.


 


THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS, REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS CLASS M CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.


 


NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR APPLICABLE FEDERAL, STATE OR LOCAL LAW (“SIMILAR LAW”) MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH RETIREMENT 


 


 


 


 




  





A-22-1











  






PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.


 


UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.


 


THIS CERTIFICATE REPRESENTS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”).


 


[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) AND, PRIOR TO THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.]1


 


 


 




 



 









1 For Reg S Book-Entry Certificates only


 


2 For 144A Book-Entry Certificates only




 


 


 




  





A-22-2











  






 


MORGAN STANLEY CAPITAL I INC.


COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,


SERIES [_____]


 



	
INITIAL PASS-THROUGH RATE:  [_]%

	
MASTER SERVICER:  [_____]


	
DATE OF POOLING AND SERVICING AGREEMENT:  [_____], 20[_]

	
SPECIAL SERVICER:  [_____]


	
CUT-OFF DATE:  [_____], 20[_]

	
PAYING AGENT:  [_____]


	
CLOSING DATE:  [_____], 20[_]

	
TRUSTEE:  [_____]


	
FIRST DISTRIBUTION DATE:  [_____], 20[_]

	  
	
AGGREGATE CERTIFICATE BALANCE OF THE CLASS M CERTIFICATES AS OF THE CLOSING DATE:  $[_____]

	  
	
CERTIFICATE BALANCE OF THIS CLASS M CERTIFICATE AS OF THE CLOSING DATE:  $[_____] (SUBJECT TO SCHEDULE OF EXCHANGES ATTACHED)

	  
	  	  
	
No.  M-1

	
CUSIP No.:  [_____]







 







 


 


 




  





A-22-3











  






CLASS M  CERTIFICATE


 


evidencing a beneficial ownership interest in a Trust, consisting primarily of a pool of commercial and multifamily mortgage loans (the “Mortgage Loans”) and certain other property, formed and sold by


 


MORGAN STANLEY CAPITAL I INC.


 


THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced by this Certificate in the Class M  Certificates issued by the Trust created pursuant to the Pooling and Servicing Agreement, dated as specified above (the “Pooling and Servicing Agreement”), among Morgan Stanley Capital I Inc. (hereinafter called the “Depositor”, which term includes any successor entity under the Pooling and Servicing Agreement), the Trustee, the Paying Agent, the Certificate Registrar, the Master Servicer and the Special Servicer, a summary of certain of the pertinent provisions of which is set forth hereafter.  The Trust consists primarily of the Mortgage Loans, such amounts as shall from time to time be held in the Certificate Account and Distribution Account, the Insurance Policies and any REO Properties.  To the extent not defined herein, the capitalized terms used herein have the meanings assigned in the Pooling and Servicing Agreement.


 


This Certificate is one of a duly authorized issue of Certificates designated as Certificates of the series specified on the face hereof (herein called the “Certificates”) and representing an interest in the Class of Certificates specified on the face hereof equal to the quotient expressed as a percentage obtained by dividing the Certificate Balance of this Certificate specified on the face hereof by the aggregate initial Certificate Balance of the Class M Certificates.  The Certificates are designated as the Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series [_____] and are issued in the Classes specified in the Pooling and Servicing Agreement.  The Certificates will evidence in the aggregate 100% of the beneficial ownership of the Trust.


 


This Certificate does not purport to summarize the Pooling and Servicing Agreement and reference is made to that Agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the Trustee and the Paying Agent.  This Certificate is issued under and is subject to the terms, provisions and conditions of the Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as amended from time to time, the Certificateholder by virtue of the acceptance hereof assents and by which the Certificateholder is bound.  In the case of any conflict between terms specified in this Certificate and terms specified in the Pooling and Servicing Agreement, the terms of the Pooling and Servicing Agreement shall govern.


 


Distributions of principal of and interest on this Certificate will be made out of the Available Distribution Amount, to the extent and subject to the limitations set forth in the Pooling and Servicing Agreement, on the 15th day of each month or, if such 15th day is not a Business Day, the next succeeding Business Day (a “Distribution Date”) commencing on the first Distribution Date specified above, to the Person in whose name this Certificate is registered at the close of business on the last Business Day of the month immediately preceding the month 


 


 


 


 




  





A-22-4











  






of such distribution (the “Record Date”).  All sums distributable on this Certificate are payable in the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.


 


Interest on this Certificate will accrue (computed as if each year consisted of 360 days and each month consisted of 30 days) during the Interest Accrual Period relating to such Distribution Date at the Pass-Through Rate on the Certificate Balance of this Certificate immediately prior to each Distribution Date.  Principal and interest allocated to this Certificate on any Distribution Date will be in an amount due to this Certificate’s pro rata share of the amount to be distributed on the Certificates of this Class as of such Distribution Date, with a final distribution to be made upon retirement of this Certificate as set forth in the Pooling and Servicing Agreement.


 


Unless the certificate of authentication hereon has been executed by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.


 


Realized Losses, Expense Losses and interest shortfalls on the Mortgage Loans shall be allocated on the applicable Distribution Date to Certificateholders in the manner set forth in the Pooling and Servicing Agreement.  All Realized Losses, Expense Losses and interest shortfalls on the Mortgage Loans allocated to any Class of Certificates will be allocated pro rata among the outstanding Certificates of such Class.


 


The Certificates are limited in right of payment to certain collections and recoveries respecting the Mortgage Loans, all as more specifically set forth in the Pooling and Servicing Agreement.  As provided in the Pooling and Servicing Agreement, withdrawals from the Certificate Account shall be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of certain expenses incurred with respect to the servicing of the Mortgage Loans and administration of the Trust.


 


All distributions under the Pooling and Servicing Agreement to a nominee of The Depository Trust Company (“DTC”) will be made by or on behalf of the Paying Agent by wire transfer in immediately available funds to an account specified in the request of such Certificateholder.  All distributions under the Pooling and Servicing Agreement to Certificateholders will be made by wire transfer in immediately available funds to the account specified by the Certificateholder, at a bank or other entity having appropriate facilities therefor, if such Certificateholder will have provided the Paying Agent with wiring instructions on or prior to the related Record Date or otherwise by check mailed to such Certificateholder. Notwithstanding the above, the final distribution on any Certificate will be made only upon presentation and surrender of such Certificate at the location that will be specified in a notice of the pendency of such final distribution.


 


The Pooling and Servicing Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Certificateholders under the Pooling and Servicing Agreement at any time by the parties thereto with the consent of the Holders of not less than 51% of the Aggregate Certificate Balance of the Certificates then outstanding (and under certain circumstances, without regard to Certificates 


 


 


 


 




  





A-22-5











  






held by the Depositor, any of the Depositor’s Affiliates and/or agents or any Seller), as specified in the Pooling and Servicing Agreement.  Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange therefor or in lieu hereof whether or not notation of such consent is made upon the Certificate.  The Pooling and Servicing Agreement also permits the amendment thereof, in certain circumstances, without the consent of the Holders of any of the Certificates.


 


As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the Corporate Trust Office of the Certificate Registrar, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Certificate Registrar duly executed by the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized denominations will be issued to the designated transferee or transferees.


 


Subject to the terms of the Pooling and Servicing Agreement, the Certificates are issuable in fully registered form only, without coupons, in minimum denominations specified in the Pooling and Servicing Agreement.


 


As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, Certificates are exchangeable for new Certificates of the same Class in authorized denominations as requested by the Holder surrendering the same.  No service charge will be made to a Certificateholder for any such registration of transfer or exchange, but the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.


 


Notwithstanding the foregoing, for so long as this Certificate is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC, transfers of interests in this Certificate shall be made through the book entry facilities of DTC.


 


The Trustee, the Paying Agent, the Master Servicer, the Special Servicer or the Operating Adviser may treat the Person in whose name this Certificate is registered as of the related Record Date as the owner hereof for the purpose of receiving distributions as provided in the Pooling and Servicing Agreement and for all other purposes whatsoever, and none of the Trustee, the Paying Agent, the Master Servicer, the Special Servicer or the Operating Adviser shall be affected by notice to the contrary.


 


The obligations and responsibilities of the Trustee and the Paying Agent created hereby (other than the obligation of the Paying Agent, to make payments to the Class R-I Certificateholders, Class R-II Certificateholders and the REMIC III Certificateholders as set forth in Section 10.2 of the Pooling and Servicing Agreement and other than the obligations in the nature of information or tax reporting) shall terminate on the earliest of (i) the later of (A) the final payment or other liquidation of the last Mortgage Loan remaining in the Trust (and final distribution to the Certificateholders) and (B) the disposition of all REO Property (and final 


 


 


 


 




  





A-22-6











  






distribution to the Certificateholders), (ii) the sale of the property held by the Trust in accordance with Section 10.1(b) of the Pooling and Servicing Agreement, (iii) the termination of the Trust pursuant to Section 10.1(c) of the Pooling and Servicing Agreement or (iv) the transfer of the property held in the Trust in accordance with Section 10.1(d) of the Pooling and Servicing Agreement; provided that in no event shall the Trust continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the Court of St. James, living on the date hereof.  The parties designated in the Pooling and Servicing Agreement may exercise their option to purchase, in whole only, the Mortgage Loans and any other property, if any, remaining in the Trust and cause the termination of the Trust in accordance with the requirements set forth in the Pooling and Servicing Agreement.  Upon termination of the Trust and payment of the Certificates and of all administrative expenses associated with the Trust, any remaining assets of the Trust shall be distributed to the holders of the Residual Certificates.


 


The Certificate Registrar has executed this Certificate under the Pooling and Servicing Agreement.


 


THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.


 


 


 


 




  





A-22-7











  






IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to be duly executed under this official seal.


 





 




	 	[__________],	 	 
	 	 	as Certificate Registrar	 
	 	 	 	 
	 	 	 	 
	
 

	
By: 

	 	 
	 	 	AUTHORIZED SIGNATORY	 







 


Dated:  [_____], 20[__]


 


CERTIFICATE OF AUTHENTICATION


 


THIS IS ONE OF THE CLASS M CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.



 




	 	[__________],	 	 
	 	 	AUTHENTICATING AGENT	 
	 	 	 	 
	 	 	 	 
	
 

	
By: 

	 	 
	 	 	AUTHORIZED SIGNATORY	 







 






 


 




  





A-22-8











  








 


ABBREVIATIONS


 


The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as though they were written out in full according to applicable laws or regulations:




 




	
TEN COM

	
-

	
as tenant in common

	  	
UNIF GIFT MIN ACT.........Custodian


	
TEN ENT

	
-

	
as tenants by the entireties

	  	
(Cust)


	
JT TEN

	
-

	
as joint tenants with rights of survivorship and not as tenants in common

	  	
Under Uniform Gifts to Minors


Act..........................


(State)









 


Additional abbreviations may also be used though not in the above list.


FORM OF TRANSFER


 


FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto



	  



 


	  	
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE


	  



 


	  
	
Please print or typewrite name and address of assignee


 


	
the within Certificate and does hereby or irrevocably constitute and appoint


 


	
to transfer the said Certificate in the Certificate Register of the within-named Trust, with full power of substitution in the premises.


 








 



	Dated:                            	 	 
	 	NOTICE:  The signature to this assignment must correspond with the name as written upon the face of this Certificate in every particular without alteration or enlargement or any change whatever.	 
	                                              	 	 
	 	 	 
	 	 	 
	
SIGNATURE GUARANTEED

	 	 
	
The signature must be guaranteed by a commercial bank or trust company or by a member firm of the New York Stock Exchange or another national securities exchange.  Notarized or witnessed signatures are not acceptable.

	 	 





 










 


 


 




  





A-22-9











  






 


DISTRIBUTION INSTRUCTIONS


 


The assignee should include the following for purposes of distribution:


 


Distributions shall be made, by wire transfer or otherwise, in immediately available funds to_____________ for the account of ___________________________ account number ______________ or, if mailed by check, to ______________________________.  Statements should be mailed to ____________________.  This information is provided by assignee named above, or _______________________, as its agent.


 


 


 


 


 




  





A-22-10











  






[TO BE ATTACHED TO GLOBAL CERTIFICATES]


 


SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES


 


The following exchanges of a part of this Global Certificate have been made:


 


 


 




 




  





A-22-11











  






 


EXHIBIT A-23


 


[FORM OF CLASS N CERTIFICATE]


 


THIS CLASS N CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASER, THE TRUSTEE, THE PAYING AGENT, THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.


 


THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE.  ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.


 


THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.


 


THIS CLASS N CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.


 


THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS, REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS CLASS N CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.


 


NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR APPLICABLE FEDERAL, STATE OR LOCAL LAW (“SIMILAR LAW”) MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH RETIREMENT 


 


 


 


 




  





A-23-1











  






PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.


 


UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.


 


THIS CERTIFICATE REPRESENTS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”).


 


[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) AND, PRIOR TO THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.]1




 



 


 


 


 









1 For Reg S Book-Entry Certificates only


 


2 For 144A Book-Entry Certificates only




 


 


 


 




  





A-23-2











  






MORGAN STANLEY CAPITAL I INC.


COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,


SERIES [_____]


 



	
INITIAL PASS-THROUGH RATE:  [_]%

	
MASTER SERVICER:  [_____]


	
DATE OF POOLING AND SERVICING AGREEMENT:  [_____], 20[_]

	
SPECIAL SERVICER:  [_____]


	
CUT-OFF DATE:  [_____], 20[_]

	
PAYING AGENT:  [_____]


	
CLOSING DATE:  [_____], 20[_]

	
TRUSTEE:  [_____]


	
FIRST DISTRIBUTION DATE:  [_____], 20[_]

	  
	
AGGREGATE CERTIFICATE BALANCE OF THE CLASS N CERTIFICATES AS OF THE CLOSING DATE:  $[_____]

	  
	
CERTIFICATE BALANCE OF THIS CLASS N CERTIFICATE AS OF THE CLOSING DATE:  $[_____] (SUBJECT TO SCHEDULE OF EXCHANGES ATTACHED)

	  
	  	  
	
No.  N-1

	
CUSIP No.:  [_____]







 







 


 


 




  





A-23-3











  






CLASS N CERTIFICATE


 


evidencing a beneficial ownership interest in a Trust, consisting primarily of a pool of commercial and multifamily mortgage loans (the “Mortgage Loans”) and certain other property, formed and sold by


 


MORGAN STANLEY CAPITAL I INC.


 


THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced by this Certificate in the Class N Certificates issued by the Trust created pursuant to the Pooling and Servicing Agreement, dated as specified above (the “Pooling and Servicing Agreement”), among Morgan Stanley Capital I Inc. (hereinafter called the “Depositor”, which term includes any successor entity under the Pooling and Servicing Agreement), the Trustee, the Paying Agent, the Certificate Registrar, the Master Servicer and the Special Servicer, a summary of certain of the pertinent provisions of which is set forth hereafter.  The Trust consists primarily of the Mortgage Loans, such amounts as shall from time to time be held in the Certificate Account and Distribution Account, the Insurance Policies and any REO Properties.  To the extent not defined herein, the capitalized terms used herein have the meanings assigned in the Pooling and Servicing Agreement.


 


This Certificate is one of a duly authorized issue of Certificates designated as Certificates of the series specified on the face hereof (herein called the “Certificates”) and representing an interest in the Class of Certificates specified on the face hereof equal to the quotient expressed as a percentage obtained by dividing the Certificate Balance of this Certificate specified on the face hereof by the aggregate initial Certificate Balance of the Class N Certificates.  The Certificates are designated as the Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series [_____] and are issued in the Classes specified in the Pooling and Servicing Agreement.  The Certificates will evidence in the aggregate 100% of the beneficial ownership of the Trust.


 


This Certificate does not purport to summarize the Pooling and Servicing Agreement and reference is made to that Agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the Trustee and the Paying Agent.  This Certificate is issued under and is subject to the terms, provisions and conditions of the Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as amended from time to time, the Certificateholder by virtue of the acceptance hereof assents and by which the Certificateholder is bound.  In the case of any conflict between terms specified in this Certificate and terms specified in the Pooling and Servicing Agreement, the terms of the Pooling and Servicing Agreement shall govern.


 


Distributions of principal of and interest on this Certificate will be made out of the Available Distribution Amount, to the extent and subject to the limitations set forth in the Pooling and Servicing Agreement, on the 15th day of each month or, if such 15th day is not a Business Day, the next succeeding Business Day (a “Distribution Date”) commencing on the first Distribution Date specified above, to the Person in whose name this Certificate is registered at the close of business on the last Business Day of the month immediately preceding the month 


 


 


 


 




  





A-23-4











  






of such distribution (the “Record Date”).  All sums distributable on this Certificate are payable in the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.


 


Interest on this Certificate will accrue (computed as if each year consisted of 360 days and each month consisted of 30 days) during the Interest Accrual Period relating to such Distribution Date at the Pass-Through Rate on the Certificate Balance of this Certificate immediately prior to each Distribution Date.  Principal and interest allocated to this Certificate on any Distribution Date will be in an amount due to this Certificate’s pro rata share of the amount to be distributed on the Certificates of this Class as of such Distribution Date, with a final distribution to be made upon retirement of this Certificate as set forth in the Pooling and Servicing Agreement.


 


Unless the certificate of authentication hereon has been executed by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.


 


Realized Losses, Expense Losses and interest shortfalls on the Mortgage Loans shall be allocated on the applicable Distribution Date to Certificateholders in the manner set forth in the Pooling and Servicing Agreement.  All Realized Losses, Expense Losses and interest shortfalls on the Mortgage Loans allocated to any Class of Certificates will be allocated pro rata among the outstanding Certificates of such Class.


 


The Certificates are limited in right of payment to certain collections and recoveries respecting the Mortgage Loans, all as more specifically set forth in the Pooling and Servicing Agreement.  As provided in the Pooling and Servicing Agreement, withdrawals from the Certificate Account shall be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of certain expenses incurred with respect to the servicing of the Mortgage Loans and administration of the Trust.


 


All distributions under the Pooling and Servicing Agreement to a nominee of The Depository Trust Company (“DTC”) will be made by or on behalf of the Paying Agent by wire transfer in immediately available funds to an account specified in the request of such Certificateholder.  All distributions under the Pooling and Servicing Agreement to Certificateholders will be made by wire transfer in immediately available funds to the account specified by the Certificateholder, at a bank or other entity having appropriate facilities therefor, if such Certificateholder will have provided the Paying Agent with wiring instructions on or prior to the related Record Date or otherwise by check mailed to such Certificateholder. Notwithstanding the above, the final distribution on any Certificate will be made only upon presentation and surrender of such Certificate at the location that will be specified in a notice of the pendency of such final distribution.


 


The Pooling and Servicing Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Certificateholders under the Pooling and Servicing Agreement at any time by the parties thereto with the consent of the Holders of not less than 51% of the Aggregate Certificate Balance of the Certificates then outstanding (and under certain circumstances, without regard to Certificates 


 


 


 




  





A-23-5











  






held by the Depositor, any of the Depositor’s Affiliates and/or agents or any Seller), as specified in the Pooling and Servicing Agreement.  Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange therefor or in lieu hereof whether or not notation of such consent is made upon the Certificate.  The Pooling and Servicing Agreement also permits the amendment thereof, in certain circumstances, without the consent of the Holders of any of the Certificates.


 


As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the Corporate Trust Office of the Certificate Registrar, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Certificate Registrar duly executed by the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized denominations will be issued to the designated transferee or transferees.


 


Subject to the terms of the Pooling and Servicing Agreement, the Certificates are issuable in fully registered form only, without coupons, in minimum denominations specified in the Pooling and Servicing Agreement.


 


As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, Certificates are exchangeable for new Certificates of the same Class in authorized denominations as requested by the Holder surrendering the same.  No service charge will be made to a Certificateholder for any such registration of transfer or exchange, but the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.


 


Notwithstanding the foregoing, for so long as this Certificate is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC, transfers of interests in this Certificate shall be made through the book entry facilities of DTC.


 


The Trustee, the Paying Agent, the Master Servicer, the Special Servicer or the Operating Adviser may treat the Person in whose name this Certificate is registered as of the related Record Date as the owner hereof for the purpose of receiving distributions as provided in the Pooling and Servicing Agreement and for all other purposes whatsoever, and none of the Trustee, the Paying Agent, the Master Servicer, the Special Servicer or the Operating Adviser shall be affected by notice to the contrary.


 


The obligations and responsibilities of the Trustee and the Paying Agent created hereby (other than the obligation of the Paying Agent, to make payments to the Class R-I Certificateholders, Class R-II Certificateholders and the REMIC III Certificateholders as set forth in Section 10.2 of the Pooling and Servicing Agreement and other than the obligations in the nature of information or tax reporting) shall terminate on the earliest of (i) the later of (A) the final payment or other liquidation of the last Mortgage Loan remaining in the Trust (and final distribution to the Certificateholders) and (B) the disposition of all REO Property (and final 


 


 


 




  





A-23-6











  






distribution to the Certificateholders), (ii) the sale of the property held by the Trust in accordance with Section 10.1(b) of the Pooling and Servicing Agreement, (iii) the termination of the Trust pursuant to Section 10.1(c) of the Pooling and Servicing Agreement or (iv) the transfer of the property held in the Trust in accordance with Section 10.1(d) of the Pooling and Servicing Agreement; provided that in no event shall the Trust continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the Court of St. James, living on the date hereof.  The parties designated in the Pooling and Servicing Agreement may exercise their option to purchase, in whole only, the Mortgage Loans and any other property, if any, remaining in the Trust and cause the termination of the Trust in accordance with the requirements set forth in the Pooling and Servicing Agreement.  Upon termination of the Trust and payment of the Certificates and of all administrative expenses associated with the Trust, any remaining assets of the Trust shall be distributed to the holders of the Residual Certificates.


 


The Certificate Registrar has executed this Certificate under the Pooling and Servicing Agreement.


 


THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.


 


 


 


 


 




  





A-23-7











  






IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to be duly executed under this official seal.





 




	 	[__________],	 	 
	 	 	as Certificate Registrar	 
	 	 	 	 
	 	 	 	 
	
 

	
By: 

	 	 
	 	 	AUTHORIZED SIGNATORY	 







 


Dated:  [_____], 20[__]


 


CERTIFICATE OF AUTHENTICATION


 


THIS IS ONE OF THE CLASS N CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.



 




	 	[__________],	 	 
	 	 	AUTHENTICATING AGENT	 
	 	 	 	 
	 	 	 	 
	
 

	
By: 

	 	 
	 	 	AUTHORIZED SIGNATORY	 







 






 


 




  





A-23-8











  








 


ABBREVIATIONS


 


The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as though they were written out in full according to applicable laws or regulations:




 




	
TEN COM

	
-

	
as tenant in common

	  	
UNIF GIFT MIN ACT.........Custodian


	
TEN ENT

	
-

	
as tenants by the entireties

	  	
(Cust)


	
JT TEN

	
-

	
as joint tenants with rights of survivorship and not as tenants in common

	  	
Under Uniform Gifts to Minors


Act..........................


(State)









 


Additional abbreviations may also be used though not in the above list.


FORM OF TRANSFER


 


FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto



	  



 


	  	
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE


	  



 


	  
	
Please print or typewrite name and address of assignee


 


	
the within Certificate and does hereby or irrevocably constitute and appoint


 


	
to transfer the said Certificate in the Certificate Register of the within-named Trust, with full power of substitution in the premises.


 








 



	Dated:                            	 	 
	 	NOTICE:  The signature to this assignment must correspond with the name as written upon the face of this Certificate in every particular without alteration or enlargement or any change whatever.	 
	                                              	 	 
	 	 	 
	 	 	 
	
SIGNATURE GUARANTEED

	 	 
	
The signature must be guaranteed by a commercial bank or trust company or by a member firm of the New York Stock Exchange or another national securities exchange.  Notarized or witnessed signatures are not acceptable.

	 	 





 










 


 




  





A-23-9











  






 


DISTRIBUTION INSTRUCTIONS


 


The assignee should include the following for purposes of distribution:


 


Distributions shall be made, by wire transfer or otherwise, in immediately available funds to_____________ for the account of ___________________________ account number ______________ or, if mailed by check, to ______________________________.  Statements should be mailed to ____________________.  This information is provided by assignee named above, or _______________________, as its agent.


 


 


 


 




  





A-23-10











  






[TO BE ATTACHED TO GLOBAL CERTIFICATES]


 


SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES


 


The following exchanges of a part of this Global Certificate have been made:


 


 


 




 




  





A-23-11











  






 


EXHIBIT A-24


 


[FORM OF CLASS O CERTIFICATE]


 


THIS CLASS O CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASER, THE TRUSTEE, THE PAYING AGENT, THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.


 


THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE.  ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.


 


THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.


 


THIS CLASS O CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.


 


THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS, REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS CLASS O CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.


 


NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR APPLICABLE FEDERAL, STATE OR LOCAL LAW (“SIMILAR LAW”) MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH RETIREMENT 


 


 


 


 




  





A-24-1











  






PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.


 


UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.


 


THIS CERTIFICATE REPRESENTS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”).


 


[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) AND, PRIOR TO THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.]1




 


 




 



 









1 For Reg S Book-Entry Certificates only


 


2 For 144A Book-Entry Certificates only


 


 


 




  





A-24-2











  








 


MORGAN STANLEY CAPITAL I INC.


COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,


SERIES [_____]


 



	
INITIAL PASS-THROUGH RATE:  [_]%

	
MASTER SERVICER:  [_____]


	
DATE OF POOLING AND SERVICING AGREEMENT:  [_____], 20[_]

	
SPECIAL SERVICER:  [_____]


	
CUT-OFF DATE:  [_____], 20[_]

	
PAYING AGENT:  [_____]


	
CLOSING DATE:  [_____], 20[_]

	
TRUSTEE:  [_____]


	
FIRST DISTRIBUTION DATE:  [_____], 20[_]

	  
	
AGGREGATE CERTIFICATE BALANCE OF THE CLASS O CERTIFICATES AS OF THE CLOSING DATE:  $[_____]

	  
	
CERTIFICATE BALANCE OF THIS CLASS O CERTIFICATE AS OF THE CLOSING DATE:  $[_____] (SUBJECT TO SCHEDULE OF EXCHANGES ATTACHED)

	  
	  	  
	
No.  O-1

	
CUSIP No.:  [_____]







 







 




  





A-24-3











  






CLASS O CERTIFICATE


 


evidencing a beneficial ownership interest in a Trust, consisting primarily of a pool of commercial and multifamily mortgage loans (the “Mortgage Loans”) and certain other property, formed and sold by


 


MORGAN STANLEY CAPITAL I INC.


 


THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced by this Certificate in the Class O Certificates issued by the Trust created pursuant to the Pooling and Servicing Agreement, dated as specified above (the “Pooling and Servicing Agreement”), among Morgan Stanley Capital I Inc. (hereinafter called the “Depositor”, which term includes any successor entity under the Pooling and Servicing Agreement), the Trustee, the Paying Agent, the Certificate Registrar, the Master Servicer and the Special Servicer, a summary of certain of the pertinent provisions of which is set forth hereafter.  The Trust consists primarily of the Mortgage Loans, such amounts as shall from time to time be held in the Certificate Account and Distribution Account, the Insurance Policies and any REO Properties.  To the extent not defined herein, the capitalized terms used herein have the meanings assigned in the Pooling and Servicing Agreement.


 


This Certificate is one of a duly authorized issue of Certificates designated as Certificates of the series specified on the face hereof (herein called the “Certificates”) and representing an interest in the Class of Certificates specified on the face hereof equal to the quotient expressed as a percentage obtained by dividing the Certificate Balance of this Certificate specified on the face hereof by the aggregate initial Certificate Balance of the Class O Certificates.  The Certificates are designated as the Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series [_____] and are issued in the Classes specified in the Pooling and Servicing Agreement.  The Certificates will evidence in the aggregate 100% of the beneficial ownership of the Trust.


 


This Certificate does not purport to summarize the Pooling and Servicing Agreement and reference is made to that Agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the Trustee and the Paying Agent.  This Certificate is issued under and is subject to the terms, provisions and conditions of the Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as amended from time to time, the Certificateholder by virtue of the acceptance hereof assents and by which the Certificateholder is bound.  In the case of any conflict between terms specified in this Certificate and terms specified in the Pooling and Servicing Agreement, the terms of the Pooling and Servicing Agreement shall govern.


 


Distributions of principal of and interest on this Certificate will be made out of the Available Distribution Amount, to the extent and subject to the limitations set forth in the Pooling and Servicing Agreement, on the 15th day of each month or, if such 15th day is not a Business Day, the next succeeding Business Day (a “Distribution Date”) commencing on the first Distribution Date specified above, to the Person in whose name this Certificate is registered at the close of business on the last Business Day of the month immediately preceding the month 


 


 


 




  





A-24-4











  






of such distribution (the “Record Date”).  All sums distributable on this Certificate are payable in the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.


 


Interest on this Certificate will accrue (computed as if each year consisted of 360 days and each month consisted of 30 days) during the Interest Accrual Period relating to such Distribution Date at the Pass-Through Rate on the Certificate Balance of this Certificate immediately prior to each Distribution Date.  Principal and interest allocated to this Certificate on any Distribution Date will be in an amount due to this Certificate’s pro rata share of the amount to be distributed on the Certificates of this Class as of such Distribution Date, with a final distribution to be made upon retirement of this Certificate as set forth in the Pooling and Servicing Agreement.


 


Unless the certificate of authentication hereon has been executed by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.


 


Realized Losses, Expense Losses and interest shortfalls on the Mortgage Loans shall be allocated on the applicable Distribution Date to Certificateholders in the manner set forth in the Pooling and Servicing Agreement.  All Realized Losses, Expense Losses and interest shortfalls on the Mortgage Loans allocated to any Class of Certificates will be allocated pro rata among the outstanding Certificates of such Class.


 


The Certificates are limited in right of payment to certain collections and recoveries respecting the Mortgage Loans, all as more specifically set forth in the Pooling and Servicing Agreement.  As provided in the Pooling and Servicing Agreement, withdrawals from the Certificate Account shall be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of certain expenses incurred with respect to the servicing of the Mortgage Loans and administration of the Trust.


 


All distributions under the Pooling and Servicing Agreement to a nominee of The Depository Trust Company (“DTC”) will be made by or on behalf of the Paying Agent by wire transfer in immediately available funds to an account specified in the request of such Certificateholder.  All distributions under the Pooling and Servicing Agreement to Certificateholders will be made by wire transfer in immediately available funds to the account specified by the Certificateholder, at a bank or other entity having appropriate facilities therefor, if such Certificateholder will have provided the Paying Agent with wiring instructions on or prior to the related Record Date or otherwise by check mailed to such Certificateholder. Notwithstanding the above, the final distribution on any Certificate will be made only upon presentation and surrender of such Certificate at the location that will be specified in a notice of the pendency of such final distribution.


 


The Pooling and Servicing Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Certificateholders under the Pooling and Servicing Agreement at any time by the parties thereto with the consent of the Holders of not less than 51% of the Aggregate Certificate Balance of the Certificates then outstanding (and under certain circumstances, without regard to Certificates 


 


 


 




  





A-24-5











  






held by the Depositor, any of the Depositor’s Affiliates and/or agents or any Seller), as specified in the Pooling and Servicing Agreement.  Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange therefor or in lieu hereof whether or not notation of such consent is made upon the Certificate.  The Pooling and Servicing Agreement also permits the amendment thereof, in certain circumstances, without the consent of the Holders of any of the Certificates.


 


As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the Corporate Trust Office of the Certificate Registrar, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Certificate Registrar duly executed by the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized denominations will be issued to the designated transferee or transferees.


 


Subject to the terms of the Pooling and Servicing Agreement, the Certificates are issuable in fully registered form only, without coupons, in minimum denominations specified in the Pooling and Servicing Agreement.


 


As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, Certificates are exchangeable for new Certificates of the same Class in authorized denominations as requested by the Holder surrendering the same.  No service charge will be made to a Certificateholder for any such registration of transfer or exchange, but the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.


 


Notwithstanding the foregoing, for so long as this Certificate is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC, transfers of interests in this Certificate shall be made through the book entry facilities of DTC.


 


The Trustee, the Paying Agent, the Master Servicer, the Special Servicer or the Operating Adviser may treat the Person in whose name this Certificate is registered as of the related Record Date as the owner hereof for the purpose of receiving distributions as provided in the Pooling and Servicing Agreement and for all other purposes whatsoever, and none of the Trustee, the Paying Agent, the Master Servicer, the Special Servicer or the Operating Adviser shall be affected by notice to the contrary.


 


The obligations and responsibilities of the Trustee and the Paying Agent created hereby (other than the obligation of the Paying Agent, to make payments to the Class R-I Certificateholders, Class R-II Certificateholders and the REMIC III Certificateholders as set forth in Section 10.2 of the Pooling and Servicing Agreement and other than the obligations in the nature of information or tax reporting) shall terminate on the earliest of (i) the later of (A) the final payment or other liquidation of the last Mortgage Loan remaining in the Trust (and final distribution to the Certificateholders) and (B) the disposition of all REO Property (and final 


 


 


 




  





A-24-6











  






distribution to the Certificateholders), (ii) the sale of the property held by the Trust in accordance with Section 10.1(b) of the Pooling and Servicing Agreement, (iii) the termination of the Trust pursuant to Section 10.1(c) of the Pooling and Servicing Agreement or (iv) the transfer of the property held in the Trust in accordance with Section 10.1(d) of the Pooling and Servicing Agreement; provided that in no event shall the Trust continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the Court of St. James, living on the date hereof.  The parties designated in the Pooling and Servicing Agreement may exercise their option to purchase, in whole only, the Mortgage Loans and any other property, if any, remaining in the Trust and cause the termination of the Trust in accordance with the requirements set forth in the Pooling and Servicing Agreement.  Upon termination of the Trust and payment of the Certificates and of all administrative expenses associated with the Trust, any remaining assets of the Trust shall be distributed to the holders of the Residual Certificates.


 


The Certificate Registrar has executed this Certificate under the Pooling and Servicing Agreement.


 


THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.


 


 


 


 




  





A-24-7











  






IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to be duly executed under this official seal.


 





 




	 	[__________],	 	 
	 	 	as Certificate Registrar	 
	 	 	 	 
	 	 	 	 
	
 

	
By: 

	 	 
	 	 	AUTHORIZED SIGNATORY	 







 


Dated:  [_____], 20[__]


 


CERTIFICATE OF AUTHENTICATION


 


THIS IS ONE OF THE CLASS O CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.



 




	 	[__________],	 	 
	 	 	AUTHENTICATING AGENT	 
	 	 	 	 
	 	 	 	 
	
 

	
By: 

	 	 
	 	 	AUTHORIZED SIGNATORY	 







 






 


 




  





A-24-8











  








 


ABBREVIATIONS


 


The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as though they were written out in full according to applicable laws or regulations:




 




	
TEN COM

	
-

	
as tenant in common

	  	
UNIF GIFT MIN ACT.........Custodian


	
TEN ENT

	
-

	
as tenants by the entireties

	  	
(Cust)


	
JT TEN

	
-

	
as joint tenants with rights of survivorship and not as tenants in common

	  	
Under Uniform Gifts to Minors


Act..........................


(State)









 


Additional abbreviations may also be used though not in the above list.


FORM OF TRANSFER


 


FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto



	  



 


	  	
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE


	  



 


	  
	
Please print or typewrite name and address of assignee


 


	
the within Certificate and does hereby or irrevocably constitute and appoint


 


	
to transfer the said Certificate in the Certificate Register of the within-named Trust, with full power of substitution in the premises.


 








 



	Dated:                            	 	 
	 	NOTICE:  The signature to this assignment must correspond with the name as written upon the face of this Certificate in every particular without alteration or enlargement or any change whatever.	 
	                                              	 	 
	 	 	 
	 	 	 
	
SIGNATURE GUARANTEED

	 	 
	
The signature must be guaranteed by a commercial bank or trust company or by a member firm of the New York Stock Exchange or another national securities exchange.  Notarized or witnessed signatures are not acceptable.

	 	 





 










 


 




  





A-24-9











  






 


DISTRIBUTION INSTRUCTIONS


 


The assignee should include the following for purposes of distribution:


 


Distributions shall be made, by wire transfer or otherwise, in immediately available funds to_____________ for the account of ___________________________ account number ______________ or, if mailed by check, to ______________________________.  Statements should be mailed to ____________________.  This information is provided by assignee named above, or _______________________, as its agent.


 


 


 


 


 




  





A-24-10











  






[TO BE ATTACHED TO GLOBAL CERTIFICATES]


 


SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES


 


The following exchanges of a part of this Global Certificate have been made:


 







 


 


 




 




  





A-24-11











  






 


EXHIBIT A-25


 


[FORM OF CLASS P CERTIFICATE]


 


THIS CLASS P CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASER, THE TRUSTEE, THE PAYING AGENT, THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.


 


THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE.  ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.


 


THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.


 


THIS CLASS P CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.


 


THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS, REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS CLASS P CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.


 


NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR APPLICABLE FEDERAL, STATE OR LOCAL LAW (“SIMILAR LAW”) MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH RETIREMENT 


 


 


 




  





A-25-1











  






PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.


 


UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.


 


THIS CERTIFICATE REPRESENTS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”).


 


[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) AND, PRIOR TO THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.]1


 


 


 


 


 




 



 









1 For Reg S Book-Entry Certificates only


 


2 For 144A Book-Entry Certificates only




 


 


 


 




  





A-25-2











  






MORGAN STANLEY CAPITAL I INC.


COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,


SERIES [_____]


 



	
INITIAL PASS-THROUGH RATE:  [_]%

	
MASTER SERVICER:  [_____]


	
DATE OF POOLING AND SERVICING AGREEMENT:  [_____], 20[_]

	
SPECIAL SERVICER:  [_____]


	
CUT-OFF DATE:  [_____], 20[_]

	
PAYING AGENT:  [_____]


	
CLOSING DATE:  [_____], 20[_]

	
TRUSTEE:  [_____]


	
FIRST DISTRIBUTION DATE:  [_____], 20[_]

	  
	
AGGREGATE CERTIFICATE BALANCE OF THE CLASS P CERTIFICATES AS OF THE CLOSING DATE:  $[_____]

	  
	
CERTIFICATE BALANCE OF THIS CLASS P CERTIFICATE AS OF THE CLOSING DATE:  $[_____] (SUBJECT TO SCHEDULE OF EXCHANGES ATTACHED)

	  
	  	  
	
No.  P-1

	
CUSIP No.:  [_____]







 







 


 




  





A-25-3











  






CLASS P CERTIFICATE


 


evidencing a beneficial ownership interest in a Trust, consisting primarily of a pool of commercial and multifamily mortgage loans (the “Mortgage Loans”) and certain other property, formed and sold by


 


MORGAN STANLEY CAPITAL I INC.


 


THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced by this Certificate in the Class P Certificates issued by the Trust created pursuant to the Pooling and Servicing Agreement, dated as specified above (the “Pooling and Servicing Agreement”), among Morgan Stanley Capital I Inc. (hereinafter called the “Depositor”, which term includes any successor entity under the Pooling and Servicing Agreement), the Trustee, the Paying Agent, the Certificate Registrar, the Master Servicer and the Special Servicer, a summary of certain of the pertinent provisions of which is set forth hereafter.  The Trust consists primarily of the Mortgage Loans, such amounts as shall from time to time be held in the Certificate Account and Distribution Account, the Insurance Policies and any REO Properties.  To the extent not defined herein, the capitalized terms used herein have the meanings assigned in the Pooling and Servicing Agreement.


 


This Certificate is one of a duly authorized issue of Certificates designated as Certificates of the series specified on the face hereof (herein called the “Certificates”) and representing an interest in the Class of Certificates specified on the face hereof equal to the quotient expressed as a percentage obtained by dividing the Certificate Balance of this Certificate specified on the face hereof by the aggregate initial Certificate Balance of the Class P  Certificates.  The Certificates are designated as the Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series [_____] and are issued in the Classes specified in the Pooling and Servicing Agreement.  The Certificates will evidence in the aggregate 100% of the beneficial ownership of the Trust.


 


This Certificate does not purport to summarize the Pooling and Servicing Agreement and reference is made to that Agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the Trustee and the Paying Agent.  This Certificate is issued under and is subject to the terms, provisions and conditions of the Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as amended from time to time, the Certificateholder by virtue of the acceptance hereof assents and by which the Certificateholder is bound.  In the case of any conflict between terms specified in this Certificate and terms specified in the Pooling and Servicing Agreement, the terms of the Pooling and Servicing Agreement shall govern.


 


Distributions of principal of and interest on this Certificate will be made out of the Available Distribution Amount, to the extent and subject to the limitations set forth in the Pooling and Servicing Agreement, on the 15th day of each month or, if such 15th day is not a Business Day, the next succeeding Business Day (a “Distribution Date”) commencing on the first Distribution Date specified above, to the Person in whose name this Certificate is registered at the close of business on the last Business Day of the month immediately preceding the month 


 


 


 




  





A-25-4











  






of such distribution (the “Record Date”).  All sums distributable on this Certificate are payable in the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.


 


Interest on this Certificate will accrue (computed as if each year consisted of 360 days and each month consisted of 30 days) during the Interest Accrual Period relating to such Distribution Date at the Pass-Through Rate on the Certificate Balance of this Certificate immediately prior to each Distribution Date.  Principal and interest allocated to this Certificate on any Distribution Date will be in an amount due to this Certificate’s pro rata share of the amount to be distributed on the Certificates of this Class as of such Distribution Date, with a final distribution to be made upon retirement of this Certificate as set forth in the Pooling and Servicing Agreement.


 


Unless the certificate of authentication hereon has been executed by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.


 


Realized Losses, Expense Losses and interest shortfalls on the Mortgage Loans shall be allocated on the applicable Distribution Date to Certificateholders in the manner set forth in the Pooling and Servicing Agreement.  All Realized Losses, Expense Losses and interest shortfalls on the Mortgage Loans allocated to any Class of Certificates will be allocated pro rata among the outstanding Certificates of such Class.


 


The Certificates are limited in right of payment to certain collections and recoveries respecting the Mortgage Loans, all as more specifically set forth in the Pooling and Servicing Agreement.  As provided in the Pooling and Servicing Agreement, withdrawals from the Certificate Account shall be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of certain expenses incurred with respect to the servicing of the Mortgage Loans and administration of the Trust.


 


All distributions under the Pooling and Servicing Agreement to a nominee of The Depository Trust Company (“DTC”) will be made by or on behalf of the Paying Agent by wire transfer in immediately available funds to an account specified in the request of such Certificateholder.  All distributions under the Pooling and Servicing Agreement to Certificateholders will be made by wire transfer in immediately available funds to the account specified by the Certificateholder, at a bank or other entity having appropriate facilities therefor, if such Certificateholder will have provided the Paying Agent with wiring instructions on or prior to the related Record Date or otherwise by check mailed to such Certificateholder. Notwithstanding the above, the final distribution on any Certificate will be made only upon presentation and surrender of such Certificate at the location that will be specified in a notice of the pendency of such final distribution.


 


The Pooling and Servicing Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Certificateholders under the Pooling and Servicing Agreement at any time by the parties thereto with the consent of the Holders of not less than 51% of the Aggregate Certificate Balance of the Certificates then outstanding (and under certain circumstances, without regard to Certificates 


 


 


 




  





A-25-5











  






held by the Depositor, any of the Depositor’s Affiliates and/or agents or any Seller), as specified in the Pooling and Servicing Agreement.  Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange therefor or in lieu hereof whether or not notation of such consent is made upon the Certificate.  The Pooling and Servicing Agreement also permits the amendment thereof, in certain circumstances, without the consent of the Holders of any of the Certificates.


 


As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the Corporate Trust Office of the Certificate Registrar, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Certificate Registrar duly executed by the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized denominations will be issued to the designated transferee or transferees.


 


Subject to the terms of the Pooling and Servicing Agreement, the Certificates are issuable in fully registered form only, without coupons, in minimum denominations specified in the Pooling and Servicing Agreement.


 


As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, Certificates are exchangeable for new Certificates of the same Class in authorized denominations as requested by the Holder surrendering the same.  No service charge will be made to a Certificateholder for any such registration of transfer or exchange, but the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.


 


Notwithstanding the foregoing, for so long as this Certificate is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC, transfers of interests in this Certificate shall be made through the book entry facilities of DTC.


 


The Trustee, the Paying Agent, the Master Servicer, the Special Servicer or the Operating Adviser may treat the Person in whose name this Certificate is registered as of the related Record Date as the owner hereof for the purpose of receiving distributions as provided in the Pooling and Servicing Agreement and for all other purposes whatsoever, and none of the Trustee, the Paying Agent, the Master Servicer, the Special Servicer or the Operating Adviser shall be affected by notice to the contrary.


 


The obligations and responsibilities of the Trustee and the Paying Agent created hereby (other than the obligation of the Paying Agent, to make payments to the Class R-I Certificateholders, Class R-II Certificateholders and the REMIC III Certificateholders as set forth in Section 10.2 of the Pooling and Servicing Agreement and other than the obligations in the nature of information or tax reporting) shall terminate on the earliest of (i) the later of (A) the final payment or other liquidation of the last Mortgage Loan remaining in the Trust (and final distribution to the Certificateholders) and (B) the disposition of all REO Property (and final 


 


 


 




  





A-25-6











  






distribution to the Certificateholders), (ii) the sale of the property held by the Trust in accordance with Section 10.1(b) of the Pooling and Servicing Agreement, (iii) the termination of the Trust pursuant to Section 10.1(c) of the Pooling and Servicing Agreement or (iv) the transfer of the property held in the Trust in accordance with Section 10.1(d) of the Pooling and Servicing Agreement; provided that in no event shall the Trust continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the Court of St. James, living on the date hereof.  The parties designated in the Pooling and Servicing Agreement may exercise their option to purchase, in whole only, the Mortgage Loans and any other property, if any, remaining in the Trust and cause the termination of the Trust in accordance with the requirements set forth in the Pooling and Servicing Agreement.  Upon termination of the Trust and payment of the Certificates and of all administrative expenses associated with the Trust, any remaining assets of the Trust shall be distributed to the holders of the Residual Certificates.


 


The Certificate Registrar has executed this Certificate under the Pooling and Servicing Agreement.


 


THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.


 


 


 


 




  





A-25-7











  






IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to be duly executed under this official seal.





 




	 	[__________],	 	 
	 	 	as Certificate Registrar	 
	 	 	 	 
	 	 	 	 
	
 

	
By: 

	 	 
	 	 	AUTHORIZED SIGNATORY	 







 


Dated:  [_____], 20[__]


 


CERTIFICATE OF AUTHENTICATION


 


THIS IS ONE OF THE CLASS P CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.



 




	 	[__________],	 	 
	 	 	AUTHENTICATING AGENT	 
	 	 	 	 
	 	 	 	 
	
 

	
By: 

	 	 
	 	 	AUTHORIZED SIGNATORY	 







 






 


 




  





A-25-8











  








 


ABBREVIATIONS


 


The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as though they were written out in full according to applicable laws or regulations:




 




	
TEN COM

	
-

	
as tenant in common

	  	
UNIF GIFT MIN ACT.........Custodian


	
TEN ENT

	
-

	
as tenants by the entireties

	  	
(Cust)


	
JT TEN

	
-

	
as joint tenants with rights of survivorship and not as tenants in common

	  	
Under Uniform Gifts to Minors


Act..........................


(State)









 


Additional abbreviations may also be used though not in the above list.


FORM OF TRANSFER


 


FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto



	  



 


	  	
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE


	  



 


	  
	
Please print or typewrite name and address of assignee


 


	
the within Certificate and does hereby or irrevocably constitute and appoint


 


	
to transfer the said Certificate in the Certificate Register of the within-named Trust, with full power of substitution in the premises.


 








 



	Dated:                            	 	 
	 	NOTICE:  The signature to this assignment must correspond with the name as written upon the face of this Certificate in every particular without alteration or enlargement or any change whatever.	 
	                                              	 	 
	 	 	 
	 	 	 
	
SIGNATURE GUARANTEED

	 	 
	
The signature must be guaranteed by a commercial bank or trust company or by a member firm of the New York Stock Exchange or another national securities exchange.  Notarized or witnessed signatures are not acceptable.

	 	 





 










 


 




  





A-25-9











  






 


DISTRIBUTION INSTRUCTIONS


 


The assignee should include the following for purposes of distribution:


 


Distributions shall be made, by wire transfer or otherwise, in immediately available funds to_____________ for the account of ___________________________ account number ______________ or, if mailed by check, to ______________________________.  Statements should be mailed to ____________________.  This information is provided by assignee named above, or _______________________, as its agent.


 


 


 


 




  





A-25-10











  






[TO BE ATTACHED TO GLOBAL CERTIFICATES]


 


SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES


 


The following exchanges of a part of this Global Certificate have been made:


 


 




 




  





A-25-11











  






 


EXHIBIT A-26


 


[FORM OF CLASS EI CERTIFICATE]


 


THIS CLASS EI CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASER, THE TRUSTEE, THE PAYING AGENT, THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.


 


THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE.  ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.


 


NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR APPLICABLE FEDERAL, STATE OR LOCAL LAW (“SIMILAR LAW”) MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.


 


 


 


 




  





A-26-1











  






MORGAN STANLEY CAPITAL I INC.


COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,


SERIES [_____]


 



	
PERCENTAGE INTEREST OF THIS CLASS EI CERTIFICATE:  [_]%

	
MASTER SERVICER:  [_____]


	
DATE OF POOLING AND SERVICING AGREEMENT:  [_____], 20[_]

	
SPECIAL SERVICER:  [_____]


	
CUT-OFF DATE:  [_____], 20[_]

	
PAYING AGENT:  [_____]


	
CLOSING DATE:  [_____], 20[_]

	
TRUSTEE:  [_____]


	
FIRST DISTRIBUTION DATE:  [_____], 20[_]

	  
	  	  
	  	  
	  	  
	
No.  EI-1

	
CUSIP No.:  [_____]







 







 




  





A-26-2











  






CLASS EI CERTIFICATE


 


evidencing a beneficial ownership interest in a Trust, consisting primarily of a pool of commercial and multifamily mortgage loans (the “Mortgage Loans”) and certain other property, formed and sold by


 


MORGAN STANLEY CAPITAL I INC.


 


THIS CERTIFIES THAT [_____] is the registered owner of the interest evidenced by this Certificate in the Class EI Certificates issued by the Trust created pursuant to the Pooling and Servicing Agreement, dated as specified above (the “Pooling and Servicing Agreement”), among Morgan Stanley Capital I Inc. (hereinafter called the “Depositor”, which term includes any successor entity under the Pooling and Servicing Agreement), the Trustee, the Paying Agent, the Certificate Registrar, the Master Servicer and the Special Servicer, a summary of certain of the pertinent provisions of which is set forth hereafter.  The Trust consists primarily of the Mortgage Loans, such amounts as shall from time to time be held in the Certificate Account and Distribution Account, the Insurance Policies and any REO Properties.  To the extent not defined herein, the capitalized terms used herein have the meanings assigned in the Pooling and Servicing Agreement.


 


This Certificate is one of a duly authorized issue of Certificates designated as Certificates of the series specified on the face hereof (herein called the “Certificates”) and representing the Percentage Interest in the Class EI Certificates specified on the face hereof.  The Certificates are designated as the Morgan Stanley Capital I Inc. Commercial Mortgage Pass-Through Certificates, Series [_____] and are issued in the Classes specified in the Pooling and Servicing Agreement.  The Certificates will evidence in the aggregate 100% of the beneficial ownership of the Trust.


 


This Certificate does not purport to summarize the Pooling and Servicing Agreement and reference is made to that Agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the Trustee and the Paying Agent.  This Certificate is issued under and is subject to the terms, provisions and conditions of the Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as amended from time to time, the Certificateholder by virtue of the acceptance hereof assents and by which the Certificateholder is bound.  In the case of any conflict between terms specified in this Certificate and terms specified in the Pooling and Servicing Agreement, the terms of the Pooling and Servicing Agreement shall govern.


 


Class EI Certificate represents a beneficial ownership interest in a portion of the Trust that is treated as grantor trust for federal income tax purposes, and represents a beneficial ownership of Excess Interest in respect of Mortgage Loans having a hyper-amortization feature.  Any amount of Excess Interest on deposit in the Excess Interest Sub-account for the related Collection Period will be paid to the holders of the Class EI Certificates, to the extent and subject to the limitations set forth in the Pooling and Servicing Agreement, on the 15th day of each month or, if such 15th day is not a Business Day, the next succeeding Business Day (a “Distribution Date”) commencing on the first Distribution Date specified above, to the Person in 


 


 


 




  





A-26-3











  






whose name this Certificate is registered at the close of business on the last Business Day of the month immediately preceding the month of such distribution (the “Record Date”).  All sums distributable on this Certificate are payable in the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.


 


Unless the certificate of authentication hereon has been executed by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.


 


The Certificates are limited in right of payment to certain collections and recoveries respecting the Mortgage Loans, all as more specifically set forth in the Pooling and Servicing Agreement.  As provided in the Pooling and Servicing Agreement, withdrawals from the Certificate Account shall be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of certain expenses incurred with respect to the servicing of the Mortgage Loans and administration of the Trust.


 


All distributions under the Pooling and Servicing Agreement to Certificateholders will be made by wire transfer in immediately available funds to the account specified by the Certificateholder, at a bank or other entity having appropriate facilities therefor, if such Certificateholder will have provided the Paying Agent with wiring instructions on or prior to the related Record Date or otherwise by check mailed to such Certificateholder. Notwithstanding the above, the final distribution on any Certificate will be made only upon presentation and surrender of such Certificate at the location that will be specified in a notice of the pendency of such final distribution.


 


The Pooling and Servicing Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Certificateholders under the Pooling and Servicing Agreement at any time by the parties thereto with the consent of the Holders of not less than 51% of the Aggregate Certificate Balance of the Certificates then outstanding (and under certain circumstances, without regard to Certificates held by the Depositor, any of the Depositor’s Affiliates and/or agents or any Seller), as specified in the Pooling and Servicing Agreement.  Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange therefor or in lieu hereof whether or not notation of such consent is made upon the Certificate.  The Pooling and Servicing Agreement also permits the amendment thereof, in certain circumstances, without the consent of the Holders of any of the Certificates.


 


As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the Corporate Trust Office of the Certificate Registrar, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Certificate Registrar duly executed by the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized denominations will be issued to the designated transferee or transferees.


 


 


 




  





A-26-4











  






Subject to the terms of the Pooling and Servicing Agreement, the Certificates are issuable in fully registered form only, without coupons, in minimum denominations specified in the Pooling and Servicing Agreement.


 


As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, Certificates are exchangeable for new Certificates of the same Class in authorized denominations as requested by the Holder surrendering the same.  No service charge will be made to a Certificateholder for any such registration of transfer or exchange, but the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.


 


The Trustee, the Paying Agent, the Master Servicer, the Special Servicer or the Operating Adviser may treat the Person in whose name this Certificate is registered as of the related Record Date as the owner hereof for the purpose of receiving distributions as provided in the Pooling and Servicing Agreement and for all other purposes whatsoever, and none of the Trustee, the Paying Agent, the Master Servicer, the Special Servicer or the Operating Adviser shall be affected by notice to the contrary.


 


The obligations and responsibilities of the Trustee and the Paying Agent created hereby (other than the obligation of the Paying Agent, to make payments to the Class R-I Certificateholders, Class R-II Certificateholders and the REMIC III Certificateholders as set forth in Section 10.2 of the Pooling and Servicing Agreement and other than the obligations in the nature of information or tax reporting) shall terminate on the earliest of (i) the later of (A) the final payment or other liquidation of the last Mortgage Loan remaining in the Trust (and final distribution to the Certificateholders) and (B) the disposition of all REO Property (and final distribution to the Certificateholders), (ii) the sale of the property held by the Trust in accordance with Section 10.1(b) of the Pooling and Servicing Agreement, (iii) the termination of the Trust pursuant to Section 10.1(c) of the Pooling and Servicing Agreement or (iv) the transfer of the property held in the Trust in accordance with Section 10.1(d) of the Pooling and Servicing Agreement; provided that in no event shall the Trust continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the Court of St. James, living on the date hereof.  The parties designated in the Pooling and Servicing Agreement may exercise their option to purchase, in whole only, the Mortgage Loans and any other property, if any, remaining in the Trust and cause the termination of the Trust in accordance with the requirements set forth in the Pooling and Servicing Agreement.  Upon termination of the Trust and payment of the Certificates and of all administrative expenses associated with the Trust, any remaining assets of the Trust shall be distributed to the holders of the Residual Certificates.


 


The Certificate Registrar has executed this Certificate under the Pooling and Servicing Agreement.


 


THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.


 


 


 


 




  





A-26-5











  






IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to be duly executed under this official seal.





 




	 	[__________],	 	 
	 	 	as Certificate Registrar	 
	 	 	 	 
	 	 	 	 
	
 

	
By: 

	 	 
	 	 	AUTHORIZED SIGNATORY	 







 


Dated:  [_____], 20[__]


 


CERTIFICATE OF AUTHENTICATION


 


THIS IS ONE OF THE CLASS E1 CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.



 




	 	[__________],	 	 
	 	 	AUTHENTICATING AGENT	 
	 	 	 	 
	 	 	 	 
	
 

	
By: 

	 	 
	 	 	AUTHORIZED SIGNATORY	 







 






 


 




  





A-26-6











  








 


ABBREVIATIONS


 


The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as though they were written out in full according to applicable laws or regulations:




 




	
TEN COM

	
-

	
as tenant in common

	  	
UNIF GIFT MIN ACT.........Custodian


	
TEN ENT

	
-

	
as tenants by the entireties

	  	
(Cust)


	
JT TEN

	
-

	
as joint tenants with rights of survivorship and not as tenants in common

	  	
Under Uniform Gifts to Minors


Act..........................


(State)









 


Additional abbreviations may also be used though not in the above list.


FORM OF TRANSFER


 


FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto



	  



 


	  	
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE


	  



 


	  
	
Please print or typewrite name and address of assignee


 


	
the within Certificate and does hereby or irrevocably constitute and appoint


 


	
to transfer the said Certificate in the Certificate Register of the within-named Trust, with full power of substitution in the premises.


 








 



	Dated:                            	 	 
	 	NOTICE:  The signature to this assignment must correspond with the name as written upon the face of this Certificate in every particular without alteration or enlargement or any change whatever.	 
	                                              	 	 
	 	 	 
	 	 	 
	
SIGNATURE GUARANTEED

	 	 
	
The signature must be guaranteed by a commercial bank or trust company or by a member firm of the New York Stock Exchange or another national securities exchange.  Notarized or witnessed signatures are not acceptable.

	 	 





 










 


 




  





A-26-7











  








 


DISTRIBUTION INSTRUCTIONS


 


The assignee should include the following for purposes of distribution:


 


Distributions shall be made, by wire transfer or otherwise, in immediately available funds to_____________ for the account of ___________________________ account number ______________ or, if mailed by check, to ______________________________.  Statements should be mailed to ____________________.  This information is provided by assignee named above, or _______________________, as its agent.


 







 







 




  





A-26-8











  






EXHIBIT A-27


 


[FORM OF CLASS R-I CERTIFICATE]


 


THIS CLASS R-I CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE SELLERS, THE TRUSTEE, THE PAYING AGENT, THE MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.


 


THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE.  ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.


 


SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS THE “RESIDUAL INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986 (THE “CODE”).  THIS CERTIFICATE MAY NOT BE TRANSFERRED TO A PERSON OTHER THAN A UNITED STATES TAX PERSON (AS DEFINED IN THE POOLING AND SERVICING AGREEMENT).


 


THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED TO “DISQUALIFIED ORGANIZATIONS” WITHIN THE MEANING OF THE CODE.


 


NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO  TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), SECTION 4975 OF THE CODE OR APPLICABLE FEDERAL, STATE OR LOCAL LAW (“SIMILAR LAW”) MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.


 


A SALE, TRANSFER OR OTHER DISPOSITION OF THIS CLASS R-I CERTIFICATE MAY BE MADE ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE CERTIFICATE REGISTRAR TO THE EFFECT THAT (1) SUCH 


 


 


 


 




  





A-27-1











  






TRANSFEREE AGREES TO BE BOUND BY THE TERMS OF THE POOLING AND SERVICING AGREEMENT AND ALL RESTRICTIONS SET FORTH ON THE FACE HEREOF, (2) SUCH TRANSFEREE IS NOT (A) THE UNITED STATES, ANY STATE OR POLITICAL SUBDIVISION THEREOF, OR ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE FOREGOING (OTHER THAN AN INSTRUMENTALITY WHICH IS A CORPORATION IF ALL OF ITS ACTIVITIES ARE SUBJECT TO TAX AND, EXCEPT FOR FHLMC, A MAJORITY OF ITS BOARD OF DIRECTORS IS NOT SELECTED BY ANY SUCH GOVERNMENTAL UNIT), (B) AN ORGANIZATION (OTHER THAN CERTAIN FARMERS’ COOPERATIVES DESCRIBED IN SECTION 521 OF THE CODE) WHICH IS EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE (UNLESS SUCH ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE CODE ON UNRELATED BUSINESS TAXABLE INCOME), (C) A RURAL ELECTRIC OR TELEPHONE COOPERATIVE DESCRIBED IN SECTION 1381 OF THE CODE (ANY SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES (A), (B) OR (C) BEING HEREINAFTER REFERRED TO AS A “DISQUALIFIED ORGANIZATION”), (D) A PERSON THAT IS NOT A “UNITED STATES TAX PERSON,” (E) AN AGENT OF A DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES TAX PERSON OR (F) A PERSON WITH RESPECT TO WHOM INCOME FROM THIS CLASS R-I CERTIFICATE IS ATTRIBUTABLE TO A FOREIGN PERMANENT ESTABLISHMENT OR FIXED BASE, WITHIN THE MEANING OF AN APPLICABLE INCOME TAX TREATY, OF SUCH PERSON OR ANY OTHER UNITED STATES TAX PERSON, AND (3) NO PURPOSE OF SUCH TRANSFER IS TO ENABLE THE TRANSFEROR TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX.  NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE REGISTER OF ANY TRANSFER, SALE OR OTHER DISPOSITION OF THIS CLASS R-I CERTIFICATE TO A DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES PERSON OR AN AGENT OF A DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES TAX PERSON, OR TO ANY OTHER PROHIBITED TRANSFEREE AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE.  EACH HOLDER OF A CLASS R-I CERTIFICATE BY ACCEPTANCE OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF THIS PARAGRAPH.


 


 


 


 




  





A-27-2











  






MORGAN STANLEY CAPITAL I INC.


COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,


SERIES [_____]


 








	
PERCENTAGE INTEREST OF THIS CLASS R-I CERTIFICATE:  [_]%

	
MASTER SERVICER:  [_____]


	
DATE OF POOLING AND SERVICING AGREEMENT:  [_____], 20[_]

	
SPECIAL SERVICER:  [_____]


	
CUT-OFF DATE:  [_____], 20[_]

	
PAYING AGENT:  [_____]


	
CLOSING DATE:  [_____], 20[_]

	
TRUSTEE:  [_____]


	
FIRST DISTRIBUTION DATE:  [_____], 20[_]

	  
	  	  
	
No.  R-I-I

	  





 







 


 




  





A-27-3











  






CLASS R-I CERTIFICATE


 


evidencing a beneficial ownership interest in a Trust, consisting primarily of a pool of commercial and multifamily mortgage loans (the “Mortgage Loans”) and certain other property, formed and sold by


 


MORGAN STANLEY CAPITAL I INC.


 


THIS CERTIFIES THAT [_____] is the registered owner of the interest evidenced by this Certificate in the Class R-I Certificates issued by the Trust created pursuant to the Pooling and Servicing Agreement, dated as specified above (the “Pooling and Servicing Agreement”), among Morgan Stanley Capital I Inc. (hereinafter called the “Depositor”, which term includes any successor entity under the Pooling and Servicing Agreement), the Trustee, the Paying Agent, the Certificate Registrar, the Master Servicer and the Special Servicer, a summary of certain of the pertinent provisions of which is set forth hereafter.  The Trust consists primarily of the Mortgage Loans, such amounts as shall from time to time be held in the Certificate Account and Distribution Account, the Insurance Policies and any REO Properties.  To the extent not defined herein, the capitalized terms used herein have the meanings assigned in the Pooling and Servicing Agreement.


 


This Certificate is one of a duly authorized issue of Certificates designated as Certificates of the series specified on the face hereof (herein called the “Certificates”) and representing the Percentage Interest in the Class R-I Certificates specified on the face hereof.  The Certificates are designated as the Morgan Stanley Capital I Inc. Commercial Mortgage Pass-Through Certificates, Series [_____] and are issued in the Classes specified in the Pooling and Servicing Agreement.  The Certificates will evidence in the aggregate 100% of the beneficial ownership of the Trust.


 


This Certificate does not purport to summarize the Pooling and Servicing Agreement and reference is made to that Agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the Trustee and the Paying Agent.  This Certificate is issued under and is subject to the terms, provisions and conditions of the Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as amended from time to time, the Certificateholder by virtue of the acceptance hereof assents and by which the Certificateholder is bound.  In the case of any conflict between terms specified in this Certificate and terms specified in the Pooling and Servicing Agreement, the terms of the Pooling and Servicing Agreement shall govern.


 


The Holder of this Certificate shall be entitled to receive only certain amounts set forth in the Pooling and Servicing Agreement, including as distribution upon termination of the Pooling and Servicing Agreement and the related REMIC created thereby of the amounts which remain on deposit in the Distribution Account after payment to the holders of all other Certificates of all amounts set forth in the Pooling and Servicing Agreement.  Distributions on this Certificate will be made out of the Available Distribution Amount, to the extent and subject to the limitations set forth in the Pooling and Servicing Agreement, on the 15th day of each month or, if such 15th day is not a Business Day, the next succeeding Business Day (a 


 


 


 




  





A-27-4











  






“Distribution Date”) commencing on the first Distribution Date specified above, to the Person in whose name this Certificate is registered at the close of business on the last Business Day of the month immediately preceding the month of such distribution (the “Record Date”).  All sums distributable on this Certificate are payable in the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.


 


Unless the certificate of authentication hereon has been executed by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.


 


Realized Losses, Expense Losses and interest shortfalls on the Mortgage Loans shall be allocated on the applicable Distribution Date to Certificateholders in the manner set forth in the Pooling and Servicing Agreement.  All Realized Losses, Expense Losses and interest shortfalls on the Mortgage Loans allocated to any Class of Certificates will be allocated pro rata among the outstanding Certificates of such Class.


 


The Certificates are limited in right of payment to certain collections and recoveries respecting the Mortgage Loans, all as more specifically set forth in the Pooling and Servicing Agreement.  As provided in the Pooling and Servicing Agreement, withdrawals from the Certificate Account shall be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of certain expenses incurred with respect to the servicing of the Mortgage Loans and administration of the Trust.


 


All distributions under the Pooling and Servicing Agreement to Certificateholders will be made by wire transfer in immediately available funds to the account specified by the Certificateholder, at a bank or other entity having appropriate facilities therefor, if such Certificateholder will have provided the Paying Agent with wiring instructions on or prior to the related Record Date or otherwise by check mailed to such Certificateholder. Notwithstanding the above, the final distribution on any Certificate will be made only upon presentation and surrender of such Certificate at the location that will be specified in a notice of the pendency of such final distribution.


 


The Pooling and Servicing Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Certificateholders under the Pooling and Servicing Agreement at any time by the parties thereto with the consent of the Holders of not less than 51% of the Aggregate Certificate Balance of the Certificates then outstanding (and under certain circumstances, without regard to Certificates held by the Depositor, any of the Depositor’s Affiliates and/or agents or any Seller), as specified in the Pooling and Servicing Agreement.  Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange therefor or in lieu hereof whether or not notation of such consent is made upon the Certificate.  The Pooling and Servicing Agreement also permits the amendment thereof, in certain limited circumstances, without the consent of the Holders of any of the Certificates.


 


As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate 


 


 


 




  





A-27-5











  






Register upon surrender of this Certificate for registration of transfer at the Corporate Trust Office of the Certificate Registrar, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Certificate Registrar duly executed by the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized denominations will be issued to the designated transferee or transferees.


 


The Residual Certificates will be issued in fully registered, certificated form in minimum percentage interests of 10% and in multiples of 10% in excess thereof.


 


As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, Certificates are exchangeable for new Certificates of the same Class in authorized denominations as requested by the Holder surrendering the same.  No service charge will be made to a Certificateholder for any such registration of transfer or exchange, but the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.


 


The Trustee, the Paying Agent, the Master Servicer, the Special Servicer or the Operating Adviser may treat the Person in whose name this Certificate is registered as of the related Record Date as the owner hereof for the purpose of receiving distributions as provided in the Pooling and Servicing Agreement and for all other purposes whatsoever, and none of the Trustee, the Paying Agent, the Master Servicer, the Special Servicer or the Operating Adviser shall be affected by notice to the contrary.


 


The obligations and responsibilities of the Trustee and the Paying Agent created hereby (other than the obligation of the Paying Agent, to make payments to the Class R-I Certificateholders, Class R-II Certificateholders and the REMIC III Certificateholders as set forth in Section 10.2 of the Pooling and Servicing Agreement and other than the obligations in the nature of information or tax reporting) shall terminate on the earliest of (i) the later of (A) the final payment or other liquidation of the last Mortgage Loan remaining in the Trust (and final distribution to the Certificateholders) and (B) the disposition of all REO Property (and final distribution to the Certificateholders), (ii) the sale of the property held by the Trust in accordance with Section 10.1(b) of the Pooling and Servicing Agreement, (iii) the termination of the Trust pursuant to Section 10.1(c) of the Pooling and Servicing Agreement or (iv) the transfer of the property held in the Trust in accordance with Section 10.1(d) of the Pooling and Servicing Agreement; provided that in no event shall the Trust continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the Court of St. James, living on the date hereof.  The parties designated in the Pooling and Servicing Agreement may exercise their option to purchase, in whole only, the Mortgage Loans and any other property, if any, remaining in the Trust and cause the termination of the Trust in accordance with the requirements set forth in the Pooling and Servicing Agreement.  Upon termination of the Trust and payment of the Certificates and of all administrative expenses associated with the Trust, any remaining assets of the Trust shall be distributed to the holders of the Residual Certificates.


 


 


 




  





A-27-6











  






The Certificate Registrar has executed this Certificate under the Pooling and Servicing Agreement.


 


THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.


 


 


 




  





A-27-7











  






IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to be duly executed under this official seal.


 





 




	 	[__________],	 	 
	 	 	as Certificate Registrar	 
	 	 	 	 
	 	 	 	 
	
 

	
By: 

	 	 
	 	 	AUTHORIZED SIGNATORY	 







 


Dated:  [_____], 20[__]


 


CERTIFICATE OF AUTHENTICATION


 


THIS IS ONE OF THE CLASS R-I CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.



 




	 	[__________],	 	 
	 	 	AUTHENTICATING AGENT	 
	 	 	 	 
	 	 	 	 
	
 

	
By: 

	 	 
	 	 	AUTHORIZED SIGNATORY	 







 






 


 




  





A-27-8











  








 


ABBREVIATIONS


 


The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as though they were written out in full according to applicable laws or regulations:




 




	
TEN COM

	
-

	
as tenant in common

	  	
UNIF GIFT MIN ACT.........Custodian


	
TEN ENT

	
-

	
as tenants by the entireties

	  	
(Cust)


	
JT TEN

	
-

	
as joint tenants with rights of survivorship and not as tenants in common

	  	
Under Uniform Gifts to Minors


Act..........................


(State)









 


Additional abbreviations may also be used though not in the above list.


FORM OF TRANSFER


 


FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto



	  



 


	  	
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE


	  



 


	  
	
Please print or typewrite name and address of assignee


 


	
the within Certificate and does hereby or irrevocably constitute and appoint


 


	
to transfer the said Certificate in the Certificate Register of the within-named Trust, with full power of substitution in the premises.


 








 



	Dated:                            	 	 
	 	NOTICE:  The signature to this assignment must correspond with the name as written upon the face of this Certificate in every particular without alteration or enlargement or any change whatever.	 
	                                              	 	 
	 	 	 
	 	 	 
	
SIGNATURE GUARANTEED

	 	 
	
The signature must be guaranteed by a commercial bank or trust company or by a member firm of the New York Stock Exchange or another national securities exchange.  Notarized or witnessed signatures are not acceptable.

	 	 





 










 


 


 




  





A-27-9











  






 


DISTRIBUTION INSTRUCTIONS


 


The assignee should include the following for purposes of distribution:


 


Distributions shall be made, by wire transfer or otherwise, in immediately available funds to_____________ for the account of ___________________________ account number ______________ or, if mailed by check, to ______________________________.  Statements should be mailed to ____________________.  This information is provided by assignee named above, or _______________________, as its agent.


 







 









  





A-27-10











  






 


EXHIBIT A-28


 


[FORM OF CLASS R-II CERTIFICATE]


 


THIS CLASS R-II CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE SELLERS, THE TRUSTEE, THE PAYING AGENT, THE MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.


 


THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE.  ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.


 


SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS THE “RESIDUAL INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986 (THE “CODE”).  THIS CERTIFICATE MAY NOT BE TRANSFERRED TO A PERSON OTHER THAN A UNITED STATES TAX PERSON (AS DEFINED IN THE POOLING AND SERVICING AGREEMENT).


 


THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED TO “DISQUALIFIED ORGANIZATIONS” WITHIN THE MEANING OF THE CODE.


 


NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO  TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), SECTION 4975 OF THE CODE OR APPLICABLE FEDERAL, STATE OR LOCAL LAW (“SIMILAR LAW”) MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.


 


A SALE, TRANSFER OR OTHER DISPOSITION OF THIS CLASS R-II CERTIFICATE MAY BE MADE ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE CERTIFICATE REGISTRAR TO THE EFFECT THAT (1) SUCH 


 


 


 




  





A-28-1











  






TRANSFEREE AGREES TO BE BOUND BY THE TERMS OF THE POOLING AND SERVICING AGREEMENT AND ALL RESTRICTIONS SET FORTH ON THE FACE HEREOF, (2) SUCH TRANSFEREE IS NOT (A) THE UNITED STATES, ANY STATE OR POLITICAL SUBDIVISION THEREOF, OR ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE FOREGOING (OTHER THAN AN INSTRUMENTALITY WHICH IS A CORPORATION IF ALL OF ITS ACTIVITIES ARE SUBJECT TO TAX AND, EXCEPT FOR FHLMC, A MAJORITY OF ITS BOARD OF DIRECTORS IS NOT SELECTED BY ANY SUCH GOVERNMENTAL UNIT), (B) AN ORGANIZATION (OTHER THAN CERTAIN FARMERS’ COOPERATIVES DESCRIBED IN SECTION 521 OF THE CODE) WHICH IS EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE (UNLESS SUCH ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE CODE ON UNRELATED BUSINESS TAXABLE INCOME), (C) A RURAL ELECTRIC OR TELEPHONE COOPERATIVE DESCRIBED IN SECTION 1381 OF THE CODE (ANY SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES (A), (B) OR (C) BEING HEREINAFTER REFERRED TO AS A “DISQUALIFIED ORGANIZATION”), (D) A PERSON THAT IS NOT A “UNITED STATES TAX PERSON,” (E) AN AGENT OF A DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES TAX PERSON OR (F) A PERSON WITH RESPECT TO WHOM INCOME FROM THIS CLASS R-II CERTIFICATE IS ATTRIBUTABLE TO A FOREIGN PERMANENT ESTABLISHMENT OR FIXED BASE, WITHIN THE MEANING OF AN APPLICABLE INCOME TAX TREATY, OF SUCH PERSON OR ANY OTHER UNITED STATES TAX PERSON, AND (3) NO PURPOSE OF SUCH TRANSFER IS TO ENABLE THE TRANSFEROR TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX.  NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE REGISTER OF ANY TRANSFER, SALE OR OTHER DISPOSITION OF THIS CLASS R-II CERTIFICATE TO A DISQUALIFIED ORGANIZATION OR A NON-UNITED TAX STATES PERSON OR AN AGENT OF A DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES PERSON, OR TO ANY OTHER PROHIBITED TRANSFEREE AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE.  EACH HOLDER OF A CLASS R-II CERTIFICATE BY ACCEPTANCE OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF THIS PARAGRAPH.


 


 


 


 




  





A-28-2











  






MORGAN STANLEY CAPITAL I INC.


COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,


SERIES [_____]


 








	
PERCENTAGE INTEREST OF THIS CLASS R-II CERTIFICATE:  [_]%

	
MASTER SERVICER:  [_____]


	
DATE OF POOLING AND SERVICING AGREEMENT:  [_____], 20[_]

	
SPECIAL SERVICER:  [_____]


	
CUT-OFF DATE:  [_____], 20[_]

	
PAYING AGENT:  [_____]


	
CLOSING DATE:  [_____], 20[_]

	
TRUSTEE:  [_____]


	
FIRST DISTRIBUTION DATE:  [_____], 20[_]

	  
	  	  
	
No.  R-II-I

	  





 







 




  





A-28-3











  






CLASS R-II CERTIFICATE


 


evidencing a beneficial ownership interest in a Trust, consisting primarily of a pool of commercial and multifamily mortgage loans (the “Mortgage Loans”) and certain other property, formed and sold by


 


MORGAN STANLEY CAPITAL I INC.


 


THIS CERTIFIES THAT [_____] is the registered owner of the interest evidenced by this Certificate in the Class R-II Certificates issued by the Trust created pursuant to the Pooling and Servicing Agreement, dated as specified above (the “Pooling and Servicing Agreement”), among Morgan Stanley Capital I Inc. (hereinafter called the “Depositor”, which term includes any successor entity under the Pooling and Servicing Agreement), the Trustee, the Paying Agent, the Certificate Registrar, the Master Servicer and the Special Servicer, a summary of certain of the pertinent provisions of which is set forth hereafter.  The Trust consists primarily of the Mortgage Loans, such amounts as shall from time to time be held in the Certificate Account and Distribution Account, the Insurance Policies and any REO Properties.  To the extent not defined herein, the capitalized terms used herein have the meanings assigned in the Pooling and Servicing Agreement.


 


This Certificate is one of a duly authorized issue of Certificates designated as Certificates of the series specified on the face hereof (herein called the “Certificates”) and representing the Percentage Interest in the Class R-II Certificates specified on the face hereof.  The Certificates are designated as the Morgan Stanley Capital I Inc. Commercial Mortgage Pass-Through Certificates, Series [_____] and are issued in the Classes specified in the Pooling and Servicing Agreement.  The Certificates will evidence in the aggregate 100% of the beneficial ownership of the Trust.


 


This Certificate does not purport to summarize the Pooling and Servicing Agreement and reference is made to that Agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the Trustee and the Paying Agent.  This Certificate is issued under and is subject to the terms, provisions and conditions of the Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as amended from time to time, the Certificateholder by virtue of the acceptance hereof assents and by which the Certificateholder is bound.  In the case of any conflict between terms specified in this Certificate and terms specified in the Pooling and Servicing Agreement, the terms of the Pooling and Servicing Agreement shall govern.


 


The Holder of this Certificate shall be entitled to receive only certain amounts set forth in the Pooling and Servicing Agreement, including a distribution upon termination of the Pooling and Servicing Agreement and the related REMIC created thereby of the amounts which remain on deposit in the Distribution Account after payment to the holders of all other Certificates of all amounts set forth in the Pooling and Servicing Agreement.  Distributions on this Certificate will be made out of the Available Distribution Amount, to the extent and subject to the limitations set forth in the Pooling and Servicing Agreement, on the 15th day of each month or, if such 15th day is not a Business Day, the next succeeding Business Day (a 


 


 


 




  





A-28-4











  






“Distribution Date”) commencing on the first Distribution Date specified above, to the Person in whose name this Certificate is registered at the close of business on the last Business Day of the month immediately preceding the month of such distribution (the “Record Date”).  All sums distributable on this Certificate are payable in the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.


 


Unless the certificate of authentication hereon has been executed by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.


 


Realized Losses, Expense Losses and interest shortfalls on the Mortgage Loans shall be allocated on the applicable Distribution Date to Certificateholders in the manner set forth in the Pooling and Servicing Agreement.  All Realized Losses, Expense Losses and interest shortfalls on the Mortgage Loans allocated to any Class of Certificates will be allocated pro rata among the outstanding Certificates of such Class.


 


The Certificates are limited in right of payment to certain collections and recoveries respecting the Mortgage Loans, all as more specifically set forth in the Pooling and Servicing Agreement.  As provided in the Pooling and Servicing Agreement, withdrawals from the Certificate Account shall be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of certain expenses incurred with respect to the servicing of the Mortgage Loans and administration of the Trust.


 


All distributions under the Pooling and Servicing Agreement to Certificateholders will be made by wire transfer in immediately available funds to the account specified by the Certificateholder, at a bank or other entity having appropriate facilities therefor, if such Certificateholder will have provided the Paying Agent with wiring instructions on or prior to the related Record Date or otherwise by check mailed to such Certificateholder. Notwithstanding the above, the final distribution on any Certificate will be made only upon presentation and surrender of such Certificate at the location that will be specified in a notice of the pendency of such final distribution.


 


The Pooling and Servicing Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Certificateholders under the Pooling and Servicing Agreement at any time by the parties thereto with the consent of the Holders of not less than 51% of the Aggregate Certificate Balance of the Certificates then outstanding (and under certain circumstances, without regard to Certificates held by the Depositor, any of the Depositor’s Affiliates and/or agents or any Seller), as specified in the Pooling and Servicing Agreement.  Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange therefor or in lieu hereof whether or not notation of such consent is made upon the Certificate.  The Pooling and Servicing Agreement also permits the amendment thereof, in certain limited circumstances, without the consent of the Holders of any of the Certificates.


 


As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate 


 


 


 


 




  





A-28-5











  






Register upon surrender of this Certificate for registration of transfer at the Corporate Trust Office of the Certificate Registrar, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Certificate Registrar duly executed by the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized denominations will be issued to the designated transferee or transferees.


 


The Residual Certificates will be issued in fully registered, certificated form in minimum percentage interests of 10% and in multiples of 10% in excess thereof.


 


As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, Certificates are exchangeable for new Certificates of the same Class in authorized denominations as requested by the Holder surrendering the same.  No service charge will be made to a Certificateholder for any such registration of transfer or exchange, but the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.


 


The Trustee, the Paying Agent, the Master Servicer, the Special Servicer or the Operating Adviser may treat the Person in whose name this Certificate is registered as of the related Record Date as the owner hereof for the purpose of receiving distributions as provided in the Pooling and Servicing Agreement and for all other purposes whatsoever, and none of the Trustee, the Paying Agent, the Master Servicer, the Special Servicer or the Operating Adviser shall be affected by notice to the contrary.


 


The obligations and responsibilities of the Trustee and the Paying Agent created hereby (other than the obligation of the Paying Agent, to make payments to the Class R-I Certificateholders, Class R-II Certificateholders and the REMIC III Certificateholders as set forth in Section 10.2 of the Pooling and Servicing Agreement and other than the obligations in the nature of information or tax reporting) shall terminate on the earliest of (i) the later of (A) the final payment or other liquidation of the last Mortgage Loan remaining in the Trust (and final distribution to the Certificateholders) and (B) the disposition of all REO Property (and final distribution to the Certificateholders), (ii) the sale of the property held by the Trust in accordance with Section 10.1(b) of the Pooling and Servicing Agreement, (iii) the termination of the Trust pursuant to Section 10.1(c) of the Pooling and Servicing Agreement or (iv) the transfer of the property held in the Trust in accordance with Section 10.1(d) of the Pooling and Servicing Agreement; provided that in no event shall the Trust continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the Court of St. James, living on the date hereof.  The parties designated in the Pooling and Servicing Agreement may exercise their option to purchase, in whole only, the Mortgage Loans and any other property, if any, remaining in the Trust and cause the termination of the Trust in accordance with the requirements set forth in the Pooling and Servicing Agreement.  Upon termination of the Trust and payment of the Certificates and of all administrative expenses associated with the Trust, any remaining assets of the Trust shall be distributed to the holders of the Residual Certificates.


 


 


 




  





A-28-6











  






The Certificate Registrar has executed this Certificate under the Pooling and Servicing Agreement.


 


THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.


 


 


 


 




  





A-28-7











  






IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to be duly executed under this official seal.





 




	 	[__________],	 	 
	 	 	as Certificate Registrar	 
	 	 	 	 
	 	 	 	 
	
 

	
By: 

	 	 
	 	 	AUTHORIZED SIGNATORY	 







 


Dated:  [_____], 20[__]


 


CERTIFICATE OF AUTHENTICATION


 


THIS IS ONE OF THE CLASS R-II CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.



 




	 	[__________],	 	 
	 	 	AUTHENTICATING AGENT	 
	 	 	 	 
	 	 	 	 
	
 

	
By: 

	 	 
	 	 	AUTHORIZED SIGNATORY	 







 






 


 




  





A-28-8











  








 


ABBREVIATIONS


 


The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as though they were written out in full according to applicable laws or regulations:




 




	
TEN COM

	
-

	
as tenant in common

	  	
UNIF GIFT MIN ACT.........Custodian


	
TEN ENT

	
-

	
as tenants by the entireties

	  	
(Cust)


	
JT TEN

	
-

	
as joint tenants with rights of survivorship and not as tenants in common

	  	
Under Uniform Gifts to Minors


Act..........................


(State)









 


Additional abbreviations may also be used though not in the above list.


FORM OF TRANSFER


 


FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto



	  



 


	  	
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE


	  



 


	  
	
Please print or typewrite name and address of assignee


 


	
the within Certificate and does hereby or irrevocably constitute and appoint


 


	
to transfer the said Certificate in the Certificate Register of the within-named Trust, with full power of substitution in the premises.


 








 



	Dated:                            	 	 
	 	NOTICE:  The signature to this assignment must correspond with the name as written upon the face of this Certificate in every particular without alteration or enlargement or any change whatever.	 
	                                              	 	 
	 	 	 
	 	 	 
	
SIGNATURE GUARANTEED

	 	 
	
The signature must be guaranteed by a commercial bank or trust company or by a member firm of the New York Stock Exchange or another national securities exchange.  Notarized or witnessed signatures are not acceptable.

	 	 





 










 


 




  





A-28-9











  






 


 


DISTRIBUTION INSTRUCTIONS


 


The assignee should include the following for purposes of distribution:


 


Distributions shall be made, by wire transfer or otherwise, in immediately available funds to_____________ for the account of ___________________________ account number ______________ or, if mailed by check, to ______________________________.  Statements should be mailed to ____________________.  This information is provided by assignee named above, or _______________________, as its agent.


 







 







 







 







 




  





A-28-10











  






 


EXHIBIT A-29


 


[FORM OF CLASS R-III CERTIFICATE]


 


THIS CLASS R-III CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE SELLERS, THE TRUSTEE, THE MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.


 


THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE.  ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.


 


SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS THE “RESIDUAL INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986 (THE “CODE”).  THIS CERTIFICATE MAY NOT BE TRANSFERRED TO A PERSON OTHER THAN A UNITED STATES TAX PERSON (AS DEFINED IN THE POOLING AND SERVICING AGREEMENT).


 


THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED TO “DISQUALIFIED ORGANIZATIONS” WITHIN THE MEANING OF THE CODE.


 


NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO  TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), SECTION 4975 OF THE CODE OR APPLICABLE FEDERAL, STATE OR LOCAL LAW (“SIMILAR LAW”) MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.


 


A SALE, TRANSFER OR OTHER DISPOSITION OF THIS CLASS R-III CERTIFICATE MAY BE MADE ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE CERTIFICATE REGISTRAR TO 


 


 


 


 


 




  





A-29-1











  






THE EFFECT THAT (1) SUCH TRANSFEREE AGREES TO BE BOUND BY THE TERMS OF THE POOLING AND SERVICING AGREEMENT AND ALL RESTRICTIONS SET FORTH ON THE FACE HEREOF, (2) SUCH TRANSFEREE IS NOT (A) THE UNITED STATES, ANY STATE OR POLITICAL SUBDIVISION THEREOF, OR ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE FOREGOING (OTHER THAN AN INSTRUMENTALITY WHICH IS A CORPORATION IF ALL OF ITS ACTIVITIES ARE SUBJECT TO TAX AND, EXCEPT FOR FHLMC, A MAJORITY OF ITS BOARD OF DIRECTORS IS NOT SELECTED BY ANY SUCH GOVERNMENTAL UNIT), (B) AN ORGANIZATION (OTHER THAN CERTAIN FARMERS’ COOPERATIVES DESCRIBED IN SECTION 521 OF THE CODE) WHICH IS EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE (UNLESS SUCH ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE CODE ON UNRELATED BUSINESS TAXABLE INCOME), (C) A RURAL ELECTRIC OR TELEPHONE COOPERATIVE DESCRIBED IN SECTION 1381 OF THE CODE (ANY SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES (A), (B) OR (C) BEING HEREINAFTER REFERRED TO AS A “DISQUALIFIED ORGANIZATION”), (D) A PERSON THAT IS NOT A “UNITED STATES TAX PERSON,” (E) AN AGENT OF A DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES TAX PERSON OR (F) A PERSON WITH RESPECT TO WHOM THIS CLASS R-III CERTIFICATE IS ATTRIBUTABLE TO A FOREIGN PERMANENT ESTABLISHMENT OR FIXED BASE, WITHIN THE MEANING OF AN APPLICABLE INCOME TAX TREATY, OF SUCH PERSON OR ANY OTHER UNITED STATES TAX PERSON, AND (3) NO PURPOSE OF SUCH TRANSFER IS TO ENABLE THE TRANSFEROR TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX.  NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE REGISTER OF ANY TRANSFER, SALE OR OTHER DISPOSITION OF THIS CLASS R-III CERTIFICATE TO A DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES PERSON OR AN AGENT OF A DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES TAX PERSON, OR TO ANY OTHER PROHIBITED TRANSFEREE AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE.  EACH HOLDER OF A CLASS R-III CERTIFICATE BY ACCEPTANCE OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF THIS PARAGRAPH.


 


 


 


 




  





A-29-2











  






MORGAN STANLEY CAPITAL I INC.


COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,


SERIES [_____]


 








	
PERCENTAGE INTEREST OF THIS CLASS R-III CERTIFICATE:  [_]%

	
MASTER SERVICER:  [_____]


	
DATE OF POOLING AND SERVICING AGREEMENT:  [_____], 20[_]

	
SPECIAL SERVICER:  [_____]


	
CUT-OFF DATE:  [_____], 20[_]

	
PAYING AGENT:  [_____]


	
CLOSING DATE:  [_____], 20[_]

	
TRUSTEE:  [_____]


	
FIRST DISTRIBUTION DATE:  [_____], 20[_]

	  
	  	  
	
No.  R-III-I

	  





 







 


 


 




  





A-29-3











  






CLASS R-III CERTIFICATE


 


evidencing a beneficial ownership interest in a Trust, consisting primarily of a pool of commercial and multifamily mortgage loans (the “Mortgage Loans”) and certain other property, formed and sold by


 


MORGAN STANLEY CAPITAL I INC.


 


THIS CERTIFIES THAT [_____] is the registered owner of the interest evidenced by this Certificate in the Class R-III Certificates issued by the Trust created pursuant to the Pooling and Servicing Agreement, dated as specified above (the “Pooling and Servicing Agreement”), among Morgan Stanley Capital I Inc. (hereinafter called the “Depositor”, which term includes any successor entity under the Pooling and Servicing Agreement), the Trustee, the Paying Agent, the Certificate Registrar, the Master Servicer and the Special Servicer, a summary of certain of the pertinent provisions of which is set forth hereafter.  The Trust consists primarily of the Mortgage Loans, such amounts as shall from time to time be held in the Certificate Account and Distribution Account, the Insurance Policies and any REO Properties.  To the extent not defined herein, the capitalized terms used herein have the meanings assigned in the Pooling and Servicing Agreement.


 


This Certificate is one of a duly authorized issue of Certificates designated as Certificates of the series specified on the face hereof (herein called the “Certificates”) and representing the Percentage Interest in the Class R-III Certificates specified on the face hereof.  The Certificates are designated as the Morgan Stanley Capital I Inc. Commercial Mortgage Pass-Through Certificates, Series [_____] and are issued in the Classes specified in the Pooling and Servicing Agreement.  The Certificates will evidence in the aggregate 100% of the beneficial ownership of the Trust.


 


This Certificate does not purport to summarize the Pooling and Servicing Agreement and reference is made to that Agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the Trustee and the Paying Agent.  This Certificate is issued under and is subject to the terms, provisions and conditions of the Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as amended from time to time, the Certificateholder by virtue of the acceptance hereof assents and by which the Certificateholder is bound.  In the case of any conflict between terms specified in this Certificate and terms specified in the Pooling and Servicing Agreement, the terms of the Pooling and Servicing Agreement shall govern.


 


The Holder of this Certificate shall be entitled to receive only certain amounts set forth in the Pooling and Servicing Agreement, including a distribution upon termination of the Pooling and Servicing Agreement and the related REMIC created thereby of the amounts which remain on deposit in the Distribution Account after payment to the holders of all other Certificates of all amounts set forth in the Pooling and Servicing Agreement.  Distributions on this Certificate will be made out of the Available Distribution Amount, to the extent and subject to the limitations set forth in the Pooling and Servicing Agreement, on the 15th day of each month or, if such 15th day is not a Business Day, the next succeeding Business Day (a 


 


 


 




  





A-29-4











  






“Distribution Date”) commencing on the first Distribution Date specified above, to the Person in whose name this Certificate is registered at the close of business on the last Business Day of the month immediately preceding the month of such distribution (the “Record Date”).  All sums distributable on this Certificate are payable in the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.


 


Unless the certificate of authentication hereon has been executed by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.


 


Realized Losses, Expense Losses and interest shortfalls on the Mortgage Loans shall be allocated on the applicable Distribution Date to Certificateholders in the manner set forth in the Pooling and Servicing Agreement.  All Realized Losses, Expense Losses and interest shortfalls on the Mortgage Loans allocated to any Class of Certificates will be allocated pro rata among the outstanding Certificates of such Class.


 


The Certificates are limited in right of payment to certain collections and recoveries respecting the Mortgage Loans, all as more specifically set forth in the Pooling and Servicing Agreement.  As provided in the Pooling and Servicing Agreement, withdrawals from the Certificate Account shall be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of certain expenses incurred with respect to the servicing of the Mortgage Loans and administration of the Trust.


 


All distributions under the Pooling and Servicing Agreement to Certificateholders will be made by wire transfer in immediately available funds to the account specified by the Certificateholder, at a bank or other entity having appropriate facilities therefor, if such Certificateholder will have provided the Paying Agent with wiring instructions on or prior to the related Record Date or otherwise by check mailed to such Certificateholder. Notwithstanding the above, the final distribution on any Certificate will be made only upon presentation and surrender of such Certificate at the location that will be specified in a notice of the pendency of such final distribution.


 


The Pooling and Servicing Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Certificateholders under the Pooling and Servicing Agreement at any time by the parties thereto with the consent of the Holders of not less than 51% of the Aggregate Certificate Balance of the Certificates then outstanding (and under certain circumstances, without regard to Certificates held by the Depositor, any of the Depositor’s Affiliates and/or agents or any Seller), as specified in the Pooling and Servicing Agreement.  Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange therefor or in lieu hereof whether or not notation of such consent is made upon the Certificate.  The Pooling and Servicing Agreement also permits the amendment thereof, in certain limited circumstances, without the consent of the Holders of any of the Certificates.


 


As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate 


 


 


 




  





A-29-5











  






Register upon surrender of this Certificate for registration of transfer at the Corporate Trust Office of the Certificate Registrar, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Certificate Registrar duly executed by the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized denominations will be issued to the designated transferee or transferees.


 


The Residual Certificates will be issued in fully registered, certificated form in minimum percentage interests of 10% and in multiples of 10% in excess thereof.


 


As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, Certificates are exchangeable for new Certificates of the same Class in authorized denominations as requested by the Holder surrendering the same.  No service charge will be made to a Certificateholder for any such registration of transfer or exchange, but the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.


 


The Trustee, the Paying Agent, the Master Servicer, the Special Servicer or the Operating Adviser may treat the Person in whose name this Certificate is registered as of the related Record Date as the owner hereof for the purpose of receiving distributions as provided in the Pooling and Servicing Agreement and for all other purposes whatsoever, and none of the Trustee, the Paying Agent, the Master Servicer, the Special Servicer or the Operating Adviser shall be affected by notice to the contrary.


 


The obligations and responsibilities of the Trustee and the Paying Agent created hereby (other than the obligation of the Paying Agent, to make payments to the Class R-I Certificateholders, Class R-II Certificateholders and the REMIC III Certificateholders as set forth in Section 10.2 of the Pooling and Servicing Agreement and other than the obligations in the nature of information or tax reporting) shall terminate on the earliest of (i) the later of (A) the final payment or other liquidation of the last Mortgage Loan remaining in the Trust (and final distribution to the Certificateholders) and (B) the disposition of all REO Property (and final distribution to the Certificateholders), (ii) the sale of the property held by the Trust in accordance with Section 10.1(b) of the Pooling and Servicing Agreement, (iii) the termination of the Trust pursuant to Section 10.1(c) of the Pooling and Servicing Agreement or (iv) the transfer of the property held in the Trust in accordance with Section 10.1(d) of the Pooling and Servicing Agreement; provided that in no event shall the Trust continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the Court of St. James, living on the date hereof.  The parties designated in the Pooling and Servicing Agreement may exercise their option to purchase, in whole only, the Mortgage Loans and any other property, if any, remaining in the Trust and cause the termination of the Trust in accordance with the requirements set forth in the Pooling and Servicing Agreement.  Upon termination of the Trust and payment of the Certificates and of all administrative expenses associated with the Trust, any remaining assets of the Trust shall be distributed to the holders of the Residual Certificates.


 


 


 




  





A-29-6











  






The Certificate Registrar has executed this Certificate under the Pooling and Servicing Agreement.


 


THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.


 


 


 


 




  





A-29-7











  






IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to be duly executed under this official seal.


 





 




	 	[__________],	 	 
	 	 	as Certificate Registrar	 
	 	 	 	 
	 	 	 	 
	
 

	
By: 

	 	 
	 	 	AUTHORIZED SIGNATORY	 







 


Dated:  [_____], 20[__]


 


CERTIFICATE OF AUTHENTICATION


 


THIS IS ONE OF THE CLASS R-III CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.



 




	 	[__________],	 	 
	 	 	AUTHENTICATING AGENT	 
	 	 	 	 
	 	 	 	 
	
 

	
By: 

	 	 
	 	 	AUTHORIZED SIGNATORY	 







 






 


 




  





A-29-8











  








 


ABBREVIATIONS


 


The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as though they were written out in full according to applicable laws or regulations:




 




	
TEN COM

	
-

	
as tenant in common

	  	
UNIF GIFT MIN ACT.........Custodian


	
TEN ENT

	
-

	
as tenants by the entireties

	  	
(Cust)


	
JT TEN

	
-

	
as joint tenants with rights of survivorship and not as tenants in common

	  	
Under Uniform Gifts to Minors


Act..........................


(State)









 


Additional abbreviations may also be used though not in the above list.


FORM OF TRANSFER


 


FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto



	  



 


	  	
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE


	  



 


	  
	
Please print or typewrite name and address of assignee


 


	
the within Certificate and does hereby or irrevocably constitute and appoint


 


	
to transfer the said Certificate in the Certificate Register of the within-named Trust, with full power of substitution in the premises.


 








 



	Dated:                            	 	 
	 	NOTICE:  The signature to this assignment must correspond with the name as written upon the face of this Certificate in every particular without alteration or enlargement or any change whatever.	 
	                                              	 	 
	 	 	 
	 	 	 
	
SIGNATURE GUARANTEED

	 	 
	
The signature must be guaranteed by a commercial bank or trust company or by a member firm of the New York Stock Exchange or another national securities exchange.  Notarized or witnessed signatures are not acceptable.

	 	 





 


 


 




  





A-29-9











  






 










DISTRIBUTION INSTRUCTIONS


 


The assignee should include the following for purposes of distribution:


 


Distributions shall be made, by wire transfer or otherwise, in immediately available funds to_____________ for the account of ___________________________ account number ______________ or, if mailed by check, to ______________________________.  Statements should be mailed to ____________________.  This information is provided by assignee named above, or _______________________, as its agent.


 







 


 




 




  





A-29-10











  






 


EXHIBIT A-30


 


[FORM OF CLASS X-1 CERTIFICATE]


 


THIS CLASS X-1 CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE PAYING AGENT, THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.


 


THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.


 


IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST BE AN ACCREDITED INVESTOR.


 


THE INITIAL NOTIONAL AMOUNT HEREOF IS AS SET FORTH HEREIN, REDUCED OR INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.


 


THE PORTION OF THE NOTIONAL AMOUNT OF THE CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL PAYMENTS, REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE MORTGAGE LOANS ALLOCABLE TO THE NOTIONAL AMOUNT OF THIS CLASS X-1 CERTIFICATE. ACCORDINGLY, THE NOTIONAL AMOUNT OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW.  ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT NOTIONAL AMOUNT BY INQUIRY OF THE PAYING AGENT.


 


UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE


 


 


 




  





A-30-1











  






OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.


 


THIS CERTIFICATE REPRESENTS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”).


 


[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.]1


 


--------


 


(1) For Reg S Book-Entry Certificates only


 


(2) For 144A Book-Entry Certificates only


 







 


 




  





A-30-2











  






MORGAN STANLEY CAPITAL I INC.


COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,


SERIES [_____]


 



	
INITIAL PASS-THROUGH RATE:  [_]%

	
MASTER SERVICER:  [_____]


	
DATE OF POOLING AND SERVICING AGREEMENT:  [_____], 20[_]

	
SPECIAL SERVICER:  [_____]


	
CUT-OFF DATE:  [_____], 20[_]

	
PAYING AGENT:  [_____]


	
CLOSING DATE:  [_____], 20[_]

	
TRUSTEE:  [_____]


	
FIRST DISTRIBUTION DATE:  [_____], 20[_]

	  
	
AGGREGATE NOTIONAL AMOUNT OF THE CLASS X-1 CERTIFICATES AS OF THE CLOSING DATE:  $[_____]

	  
	
NOTIONAL AMOUNT OF THIS CLASS X-1 CERTIFICATE AS OF THE CLOSING DATE: $[_____] (SUBJECT TO SCHEDULE OF EXCHANGES ATTACHED)

	  
	  	  
	
No.  X-1-1

	
CUSIP No.:  [_____]


	  	  





 







 




  





A-30-3











  






CLASS X-1 CERTIFICATE


 


evidencing a beneficial ownership interest in a Trust, consisting primarily of a pool of commercial and multifamily mortgage loans (the “Mortgage Loans”) and certain other property, formed and sold by


 


MORGAN STANLEY CAPITAL I INC.


 


THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced by this Certificate in the Class X-1 Certificates issued by the Trust created pursuant to the Pooling and Servicing Agreement, dated as specified above (the “Pooling and Servicing Agreement”), among Morgan Stanley Capital I Inc. (hereinafter called the “Depositor”, which term includes any successor entity under the Pooling and Servicing Agreement), the Trustee, the Paying Agent, the Certificate Registrar, the Master Servicer and the Special Servicer, a summary of certain of the pertinent provisions of which is set forth hereafter.  The Trust consists primarily of the Mortgage Loans, such amounts as shall from time to time be held in the Certificate Account and Distribution Account, the Insurance Policies and any REO Properties.  To the extent not defined herein, the capitalized terms used herein have the meanings assigned in the Pooling and Servicing Agreement.


 


This Certificate is one of a duly authorized issue of Certificates designated as Certificates of the series specified on the face hereof (herein called the “Certificates”) and representing an interest in the Class of Certificates specified on the face hereof equal to the quotient expressed as a percentage obtained by dividing the Notional Amount of this Certificate specified on the face hereof by the initial aggregate Notional Amount of the Class X-1 Certificates.  The Certificates are designated as the Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series [_____] and are issued in the Classes specified in the Pooling and Servicing Agreement.  The Certificates will evidence in the aggregate 100% of the beneficial ownership of the Trust.


 


This Certificate does not purport to summarize the Pooling and Servicing Agreement and reference is made to that Agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the Trustee and the Paying Agent.  This Certificate is issued under and is subject to the terms, provisions and conditions of the Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as amended from time to time, the Certificateholder by virtue of the acceptance hereof assents and by which the Certificateholder is bound.  In the case of any conflict between terms specified in this Certificate and terms specified in the Pooling and Servicing Agreement, the terms of the Pooling and Servicing Agreement shall govern.


 


Distributions of interest on this Certificate will be made out of the Available Distribution Amount, to the extent and subject to the limitations set forth in the Pooling and Servicing Agreement, on the 15th day of each month or, if such 15th day is not a Business Day, the next succeeding Business Day (a “Distribution Date”) commencing on the first Distribution Date specified above, to the Person in whose name this Certificate is registered at the close of business on the last Business Day of the month immediately preceding the month of such 


 


 


 




  





A-30-4











  






distribution (the “Record Date”).  All sums distributable on this Certificate are payable in the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.


 


Interest on this Certificate will accrue (computed as if each year consisted of 360 days and each month consisted of 30 days) during the Interest Accrual Period relating to such Distribution Date at the Pass-Through Rate on the Notional Amount of this Certificate immediately prior to each Distribution Date.  Interest allocated to this Certificate on any Distribution Date will be in an amount due to this Certificate’s pro rata share of the amount to be distributed on the Certificates of this Class as of such Distribution Date, with a final distribution to be made upon retirement of this Certificate as set forth in the Pooling and Servicing Agreement.


 


Unless the certificate of authentication hereon has been executed by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.


 


Realized Losses, Expense Losses and interest shortfalls on the Mortgage Loans shall be allocated on the applicable Distribution Date to Certificateholders in the manner set forth in the Pooling and Servicing Agreement.  All Realized Losses, Expense Losses and interest shortfalls on the Mortgage Loans allocated to any Class of Certificates will be allocated pro rata among the outstanding Certificates of such Class.


 


The Certificates are limited in right of payment to certain collections and recoveries respecting the Mortgage Loans, all as more specifically set forth in the Pooling and Servicing Agreement.  As provided in the Pooling and Servicing Agreement, withdrawals from the Certificate Account shall be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of certain expenses incurred with respect to the servicing of the Mortgage Loans and administration of the Trust.


 


All distributions under the Pooling and Servicing Agreement to a nominee of The Depository Trust Company (“DTC”) will be made by or on behalf of the Paying Agent by wire transfer in immediately available funds to an account specified in the request of such Certificateholder.  All distributions under the Pooling and Servicing Agreement to Certificateholders will be made by wire transfer in immediately available funds to the account specified by the Certificateholder, at a bank or other entity having appropriate facilities therefor, if such Certificateholder will have provided the Paying Agent with wiring instructions on or prior to the related Record Date or otherwise by check mailed to such Certificateholder. Notwithstanding the above, the final distribution on any Certificate will be made only upon presentation and surrender of such Certificate at the location that will be specified in a notice of the pendency of such final distribution.


 


The Pooling and Servicing Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Certificateholders under the Pooling and Servicing Agreement at any time by the parties thereto with the consent of the Holders of not less than 51% of the Aggregate Certificate Balance of the Certificates then outstanding (and under certain circumstances, without regard to Certificates 


 


 


 




  





A-30-5











  






held by the Depositor, any of the Depositor’s Affiliates and/or agents or any Seller), as specified in the Pooling and Servicing Agreement.  Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange therefor or in lieu hereof whether or not notation of such consent is made upon the Certificate.  The Pooling and Servicing Agreement also permits the amendment thereof, in certain circumstances, without the consent of the Holders of any of the Certificates.


 


As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the Corporate Trust Office of the Certificate Registrar, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Certificate Registrar duly executed by the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized denominations will be issued to the designated transferee or transferees.


 


Subject to the terms of the Pooling and Servicing Agreement, the Class X-1 Certificates will be issued in denominations of $100,000 initial Notional Amount and in any whole dollar denomination in excess thereof.


 


As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, Certificates are exchangeable for new Certificates of the same Class in authorized denominations as requested by the Holder surrendering the same.  No service charge will be made to a Certificateholder for any such registration of transfer or exchange, but the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.


 


Notwithstanding the foregoing, for so long as this Certificate is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC, transfers of interests in this Certificate shall be made through the book entry facilities of DTC.


 


The Trustee, the Paying Agent, the Master Servicer, the Special Servicer or the Operating Adviser may treat the Person in whose name this Certificate is registered as of the related Record Date as the owner hereof for the purpose of receiving distributions as provided in the Pooling and Servicing Agreement and for all other purposes whatsoever, and none of the Trustee, the Paying Agent, the Master Servicer, the Special Servicer or the Operating Adviser shall be affected by notice to the contrary.


 


The obligations and responsibilities of the Trustee and the Paying Agent created hereby (other than the obligation of the Paying Agent, to make payments to the Class R-I Certificateholders, Class R-II Certificateholders and the REMIC III Certificateholders as set forth in Section 10.2 of the Pooling and Servicing Agreement and other than the obligations in the nature of information or tax reporting) shall terminate on the earliest of (i) the later of (A) the final payment or other liquidation of the last Mortgage Loan remaining in the Trust (and final distribution to the Certificateholders) and (B) the disposition of all REO Property (and final 


 


 


 




  





A-30-6











  






distribution to the Certificateholders), (ii) the sale of the property held by the Trust in accordance with Section 10.1(b) of the Pooling and Servicing Agreement, (iii) the termination of the Trust pursuant to Section 10.1(c) of the Pooling and Servicing Agreement or (iv) the transfer of the property held in the Trust in accordance with Section 10.1(d) of the Pooling and Servicing Agreement; provided that in no event shall the Trust continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the Court of St. James, living on the date hereof.  The parties designated in the Pooling and Servicing Agreement may exercise their option to purchase, in whole only, the Mortgage Loans and any other property, if any, remaining in the Trust and cause the termination of the Trust in accordance with the requirements set forth in the Pooling and Servicing Agreement.  Upon termination of the Trust and payment of the Certificates and of all administrative expenses associated with the Trust, any remaining assets of the Trust shall be distributed to the holders of the Residual Certificates.


 


The Certificate Registrar has executed this Certificate under the Pooling and Servicing Agreement.


 


THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.


 


 


 




  





A-30-7











  






IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to be duly executed under this official seal.





 




	 	[__________],	 	 
	 	 	as Certificate Registrar	 
	 	 	 	 
	 	 	 	 
	
 

	
By: 

	 	 
	 	 	AUTHORIZED SIGNATORY	 







 


Dated:  [_____], 20[__]


 


CERTIFICATE OF AUTHENTICATION


 


THIS IS ONE OF THE CLASS X-1 CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.



 




	 	[__________],	 	 
	 	 	AUTHENTICATING AGENT	 
	 	 	 	 
	 	 	 	 
	
 

	
By: 

	 	 
	 	 	AUTHORIZED SIGNATORY	 







 






 


 




  





A-30-8











  








 


ABBREVIATIONS


 


The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as though they were written out in full according to applicable laws or regulations:




 




	
TEN COM

	
-

	
as tenant in common

	  	
UNIF GIFT MIN ACT.........Custodian


	
TEN ENT

	
-

	
as tenants by the entireties

	  	
(Cust)


	
JT TEN

	
-

	
as joint tenants with rights of survivorship and not as tenants in common

	  	
Under Uniform Gifts to Minors


Act..........................


(State)









 


Additional abbreviations may also be used though not in the above list.


FORM OF TRANSFER


 


FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto



	  



 


	  	
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE


	  



 


	  
	
Please print or typewrite name and address of assignee


 


	
the within Certificate and does hereby or irrevocably constitute and appoint


 


	
to transfer the said Certificate in the Certificate Register of the within-named Trust, with full power of substitution in the premises.


 








 



	Dated:                            	 	 
	 	NOTICE:  The signature to this assignment must correspond with the name as written upon the face of this Certificate in every particular without alteration or enlargement or any change whatever.	 
	                                              	 	 
	 	 	 
	 	 	 
	
SIGNATURE GUARANTEED

	 	 
	
The signature must be guaranteed by a commercial bank or trust company or by a member firm of the New York Stock Exchange or another national securities exchange.  Notarized or witnessed signatures are not acceptable.

	 	 





 










 


 




  





A-30-9











  






 


DISTRIBUTION INSTRUCTIONS


 


The assignee should include the following for purposes of distribution:


 


Distributions shall be made, by wire transfer or otherwise, in immediately available funds to_____________ for the account of ___________________________ account number ______________ or, if mailed by check, to ______________________________.  Statements should be mailed to ____________________.  This information is provided by assignee named above, or _______________________, as its agent.


 


 


 


 


 




  





A-30-10











  






[TO BE ATTACHED TO GLOBAL CERTIFICATES]


 


SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES


 


The following exchanges of a part of this Global Certificate have been made:


 







 


 




 




  





A-30-11











  






 


EXHIBIT A-31


 


[FORM OF CLASS X-Y CERTIFICATE]


 


THIS CLASS X-Y CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE PAYING AGENT, THE CERTIFICATE REGISTRAR, THE MASTER SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.


 


THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.


 


IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST BE AN ACCREDITED INVESTOR.


 


THE INITIAL NOTIONAL AMOUNT HEREOF IS AS SET FORTH HEREIN, REDUCED OR INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.


 


THE PORTION OF THE NOTIONAL AMOUNT OF THE CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL PAYMENTS, REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE MORTGAGE LOANS ALLOCABLE TO THE NOTIONAL AMOUNT OF THIS CLASS X-Y CERTIFICATE. ACCORDINGLY, THE NOTIONAL AMOUNT OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW.  ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT NOTIONAL AMOUNT BY INQUIRY OF THE PAYING AGENT.


 


UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE CERTIFICATE REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE 


 


 


 


 




  





A-31-1











  






OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.


 


THIS CERTIFICATE REPRESENTS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”).


 


[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.]1


 


--------


 


(1) For Reg S Book-Entry Certificates only


 


(2) For 144A Book-Entry Certificates only


 







 


 


 




  





A-31-2











  






MORGAN STANLEY CAPITAL I INC.


COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,


SERIES [_____]


 



	
INITIAL PASS-THROUGH RATE:  [_]%

	
MASTER SERVICER:  [_____]


	
DATE OF POOLING AND SERVICING AGREEMENT:  [_____], 20[_]

	
SPECIAL SERVICER:  [_____]


	
CUT-OFF DATE:  [_____], 20[_]

	
PAYING AGENT:  [_____]


	
CLOSING DATE:  [_____], 20[_]

	
TRUSTEE:  [_____]


	
FIRST DISTRIBUTION DATE:  [_____], 20[_]

	  
	
AGGREGATE NOTIONAL AMOUNT OF THE CLASS X-Y CERTIFICATES AS OF THE CLOSING DATE:  $[_____]

	  
	
NOTIONAL AMOUNT OF THIS CLASS X-Y CERTIFICATE AS OF THE CLOSING DATE: $[_____] (SUBJECT TO SCHEDULE OF EXCHANGES ATTACHED)

	  
	  	  
	
No.  X-Y-1

	
CUSIP No.:  [_____]


	  	  





 







 


 




  





A-31-3











  






CLASS X-Y CERTIFICATE


 


evidencing a beneficial ownership interest in a Trust, consisting primarily of a pool of commercial and multifamily mortgage loans (the “Mortgage Loans”) and certain other property, formed and sold by


 


MORGAN STANLEY CAPITAL I INC.


 


THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced by this Certificate in the Class X-Y Certificates issued by the Trust created pursuant to the Pooling and Servicing Agreement, dated as specified above (the “Pooling and Servicing Agreement”), among Morgan Stanley Capital I Inc. (hereinafter called the “Depositor”, which term includes any successor entity under the Pooling and Servicing Agreement), the Trustee, the Paying Agent, the Certificate Registrar, the Master Servicer and the Special Servicer, a summary of certain of the pertinent provisions of which is set forth hereafter.  The Trust consists primarily of the Mortgage Loans, such amounts as shall from time to time be held in the Certificate Account and Distribution Account, the Insurance Policies and any REO Properties.  To the extent not defined herein, the capitalized terms used herein have the meanings assigned in the Pooling and Servicing Agreement.


 


This Certificate is one of a duly authorized issue of Certificates designated as Certificates of the series specified on the face hereof (herein called the “Certificates”) and representing an interest in the Class of Certificates specified on the face hereof equal to the quotient expressed as a percentage obtained by dividing the Notional Amount of this Certificate specified on the face hereof by the initial aggregate Notional Amount of the Class X-Y Certificates.  The Certificates are designated as the Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series [_____] and are issued in the Classes specified in the Pooling and Servicing Agreement.  The Certificates will evidence in the aggregate 100% of the beneficial ownership of the Trust.


 


This Certificate does not purport to summarize the Pooling and Servicing Agreement and reference is made to that Agreement for information with respect to the interests, rights, benefits, obligations, proceeds, and duties evidenced hereby and the rights, duties and obligations of the Trustee and the Paying Agent.  This Certificate is issued under and is subject to the terms, provisions and conditions of the Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as amended from time to time, the Certificateholder by virtue of the acceptance hereof assents and by which the Certificateholder is bound.  In the case of any conflict between terms specified in this Certificate and terms specified in the Pooling and Servicing Agreement, the terms of the Pooling and Servicing Agreement shall govern.


 


Distributions of interest on this Certificate will be made out of the Available Distribution Amount, to the extent and subject to the limitations set forth in the Pooling and Servicing Agreement, on the 15th day of each month or, if such 15th day is not a Business Day, the next succeeding Business Day (a “Distribution Date”) commencing on the first Distribution Date specified above, to the Person in whose name this Certificate is registered at the close of business on the last Business Day of the month immediately preceding the month of such 


 


 


 


 




  





A-31-4











  






distribution (the “Record Date”).  All sums distributable on this Certificate are payable in the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.


 


Interest on this Certificate will accrue (computed as if each year consisted of 360 days and each month consisted of 30 days) during the Interest Accrual Period relating to such Distribution Date at the Pass-Through Rate on the Notional Amount of this Certificate immediately prior to each Distribution Date.  Interest allocated to this Certificate on any Distribution Date will be in an amount due to this Certificate’s pro rata share of the amount to be distributed on the Certificates of this Class as of such Distribution Date, with a final distribution to be made upon retirement of this Certificate as set forth in the Pooling and Servicing Agreement.


 


Unless the certificate of authentication hereon has been executed by the Authenticating Agent, by manual signature, this Certificate shall not be entitled to any benefit under the Pooling and Servicing Agreement or be valid for any purpose.


 


Realized Losses, Expense Losses and interest shortfalls on the Mortgage Loans shall be allocated on the applicable Distribution Date to Certificateholders in the manner set forth in the Pooling and Servicing Agreement.  All Realized Losses, Expense Losses and interest shortfalls on the Mortgage Loans allocated to any Class of Certificates will be allocated pro rata among the outstanding Certificates of such Class.


 


The Certificates are limited in right of payment to certain collections and recoveries respecting the Mortgage Loans, all as more specifically set forth in the Pooling and Servicing Agreement.  As provided in the Pooling and Servicing Agreement, withdrawals from the Certificate Account shall be made from time to time for purposes other than distributions to Certificateholders, such purposes including reimbursement of certain expenses incurred with respect to the servicing of the Mortgage Loans and administration of the Trust.


 


All distributions under the Pooling and Servicing Agreement to a nominee of The Depository Trust Company (“DTC”) will be made by or on behalf of the Paying Agent by wire transfer in immediately available funds to an account specified in the request of such Certificateholder.  All distributions under the Pooling and Servicing Agreement to Certificateholders will be made by wire transfer in immediately available funds to the account specified by the Certificateholder, at a bank or other entity having appropriate facilities therefor, if such Certificateholder will have provided the Paying Agent with wiring instructions on or prior to the related Record Date or otherwise by check mailed to such Certificateholder. Notwithstanding the above, the final distribution on any Certificate will be made only upon presentation and surrender of such Certificate at the location that will be specified in a notice of the pendency of such final distribution.


 


The Pooling and Servicing Agreement permits, with certain exceptions therein provided, the amendment thereof and the modification of the rights and obligations of the Certificateholders under the Pooling and Servicing Agreement at any time by the parties thereto with the consent of the Holders of not less than 51% of the Aggregate Certificate Balance of the Certificates then outstanding (and under certain circumstances, without regard to Certificates 


 


 


 


 




  





A-31-5











  






held by the Depositor, any of the Depositor’s Affiliates and/or agents or any Seller), as specified in the Pooling and Servicing Agreement.  Any such consent by the Holder of this Certificate shall be conclusive and binding on such Holder and upon all future Holders of this Certificate and of any Certificate issued upon the transfer hereof or in exchange therefor or in lieu hereof whether or not notation of such consent is made upon the Certificate.  The Pooling and Servicing Agreement also permits the amendment thereof, in certain circumstances, without the consent of the Holders of any of the Certificates.


 


As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, the transfer of this Certificate is registrable in the Certificate Register upon surrender of this Certificate for registration of transfer at the Corporate Trust Office of the Certificate Registrar, duly endorsed by, or accompanied by an assignment in the form below or other written instrument of transfer in form satisfactory to the Certificate Registrar duly executed by the Holder hereof or such Holder’s attorney duly authorized in writing, and thereupon one or more new Certificates of the same Class in authorized denominations will be issued to the designated transferee or transferees.


 


Subject to the terms of the Pooling and Servicing Agreement, the Class X-Y Certificates will be issued in denominations of $100,000 initial Notional Amount and in any whole dollar denomination in excess thereof.


 


As provided in the Pooling and Servicing Agreement and subject to certain limitations therein set forth, Certificates are exchangeable for new Certificates of the same Class in authorized denominations as requested by the Holder surrendering the same.  No service charge will be made to a Certificateholder for any such registration of transfer or exchange, but the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.


 


Notwithstanding the foregoing, for so long as this Certificate is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC, transfers of interests in this Certificate shall be made through the book entry facilities of DTC.


 


The Trustee, the Paying Agent, the Master Servicer, the Special Servicer or the Operating Adviser may treat the Person in whose name this Certificate is registered as of the related Record Date as the owner hereof for the purpose of receiving distributions as provided in the Pooling and Servicing Agreement and for all other purposes whatsoever, and none of the Trustee, the Paying Agent, the Master Servicer, the Special Servicer or the Operating Adviser shall be affected by notice to the contrary.


 


The obligations and responsibilities of the Trustee and the Paying Agent created hereby (other than the obligation of the Paying Agent, to make payments to the Class R-I Certificateholders, Class R-II Certificateholders and the REMIC III Certificateholders as set forth in Section 10.2 of the Pooling and Servicing Agreement and other than the obligations in the nature of information or tax reporting) shall terminate on the earliest of (i) the later of (A) the final payment or other liquidation of the last Mortgage Loan remaining in the Trust (and final distribution to the Certificateholders) and (B) the disposition of all REO Property (and final 


 


 


 




  





A-31-6











  






distribution to the Certificateholders), (ii) the sale of the property held by the Trust in accordance with Section 10.1(b) of the Pooling and Servicing Agreement, (iii) the termination of the Trust pursuant to Section 10.1(c) of the Pooling and Servicing Agreement or (iv) the transfer of the property held in the Trust in accordance with Section 10.1(d) of the Pooling and Servicing Agreement; provided that in no event shall the Trust continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late Ambassador of the United States to the Court of St. James, living on the date hereof.  The parties designated in the Pooling and Servicing Agreement may exercise their option to purchase, in whole only, the Mortgage Loans and any other property, if any, remaining in the Trust and cause the termination of the Trust in accordance with the requirements set forth in the Pooling and Servicing Agreement.  Upon termination of the Trust and payment of the Certificates and of all administrative expenses associated with the Trust, any remaining assets of the Trust shall be distributed to the holders of the Residual Certificates.


 


The Certificate Registrar has executed this Certificate under the Pooling and Servicing Agreement.


 


THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.


 


 


 


 


 




  





A-31-7











  






IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to be duly executed under this official seal.





 




	 	[__________],	 	 
	 	 	as Certificate Registrar	 
	 	 	 	 
	 	 	 	 
	
 

	
By: 

	 	 
	 	 	AUTHORIZED SIGNATORY	 







 


Dated:  [_____], 20[__]


 


CERTIFICATE OF AUTHENTICATION


 


THIS IS ONE OF THE CLASS X-Y CERTIFICATES REFERRED TO IN THE WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.



 




	 	[__________],	 	 
	 	 	AUTHENTICATING AGENT	 
	 	 	 	 
	 	 	 	 
	
 

	
By: 

	 	 
	 	 	AUTHORIZED SIGNATORY	 







 






 


 




  





A-31-8











  








 


ABBREVIATIONS


 


The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as though they were written out in full according to applicable laws or regulations:




 




	
TEN COM

	
-

	
as tenant in common

	  	
UNIF GIFT MIN ACT.........Custodian


	
TEN ENT

	
-

	
as tenants by the entireties

	  	
(Cust)


	
JT TEN

	
-

	
as joint tenants with rights of survivorship and not as tenants in common

	  	
Under Uniform Gifts to Minors


Act..........................


(State)









 


Additional abbreviations may also be used though not in the above list.


FORM OF TRANSFER


 


FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto



	  



 


	  	
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE


	  



 


	  
	
Please print or typewrite name and address of assignee


 


	
the within Certificate and does hereby or irrevocably constitute and appoint


 


	
to transfer the said Certificate in the Certificate Register of the within-named Trust, with full power of substitution in the premises.


 








 



	Dated:                            	 	 
	 	NOTICE:  The signature to this assignment must correspond with the name as written upon the face of this Certificate in every particular without alteration or enlargement or any change whatever.	 
	                                              	 	 
	 	 	 
	 	 	 
	
SIGNATURE GUARANTEED

	 	 
	
The signature must be guaranteed by a commercial bank or trust company or by a member firm of the New York Stock Exchange or another national securities exchange.  Notarized or witnessed signatures are not acceptable.

	 	 





 










 


 




  





A-31-9











  






 


DISTRIBUTION INSTRUCTIONS


 


The assignee should include the following for purposes of distribution:


 


Distributions shall be made, by wire transfer or otherwise, in immediately available funds to_____________ for the account of ___________________________ account number ______________ or, if mailed by check, to ______________________________.  Statements should be mailed to ____________________.  This information is provided by assignee named above, or _______________________, as its agent.


 


 


 


 


 


 


 


 




  





A-31-10











  






 









 


EXHIBIT B-1


 


FORM OF INITIAL CERTIFICATION OF TRUSTEE


 


______ __, 20__







 


 


 


 



	Morgan Stanley Capital I Inc.	 	 	[Name of Master Servicer] 
	1585 Broadway	 	 	[address]
	New York, NY 10036	 	 	 
	 	 	 	[Name of Special Servicer] 
	Morgan Stanley Mortgage 	 	 	[address]
	Capital Holdings LLC	 	 	
 


	1585 Broadway	 	 	[Name of Paying Agent] 
	New York, NY 10036	 	 	
[address]


	 	 	 	 
	[Names and addresses of other sellers]	 	 	 





 


 


 



	 	
Re:

	
Pooling and Servicing Agreement (“Pooling and Servicing Agreement”) 


relating to Morgan Stanley Capital I Inc., Commercial Mortgage 


Pass-Through Certificates, Series 20__-__







 


Ladies and Gentlemen:


 


In accordance with the provisions of Section 2.2 of the Pooling and Servicing Agreement, the undersigned hereby certifies that, with respect to each Mortgage Loan listed in the Mortgage Loan Schedule and subject to the exceptions noted in the schedule of exceptions attached hereto, that:  (a) all documents specified in clause (i) of the definition of “Mortgage File” are in its possession, (b) such documents have been reviewed by it and have not been materially mutilated, damaged, defaced, torn or otherwise physically altered, and such documents relate to such Mortgage Loan and (c) each Mortgage Note has been endorsed as provided in clause (i) of the definition of “Mortgage File” of the Pooling and Servicing Agreement.  The Trustee makes no representations as to: (i) the validity, legality, sufficiency, enforceability or genuineness of any such documents contained in each Mortgage File or any of the Mortgage Loans identified in the Mortgage Loan Schedule, (ii) the collectability, insurability, effectiveness or suitability of any such Mortgage Loan or (iii) whether any such documents contained in each Mortgage File are appropriate for their represented purposes, or are other than what they purport to be on their face.


 


The Trustee acknowledges receipt of notice that the Depositor has assigned to the Trustee for the benefit of the Certificateholders all of the Depositor’s right, title and interest in and to the Mortgage Loans, the REMIC I Regular Interests, the REMIC II Regular Interests, and the assets of Class EI Grantor Trust and that, in the event such assignment is not upheld as an absolute sale, that the Depositor has granted to the Trustee for the benefit of Certificateholders a security interest in such items.


 


Capitalized words and phrases used herein and not otherwise defined herein shall have the respective meanings assigned to them in the Pooling and Servicing Agreement.  This 


 


 




  





B-1-1  











  






 


 


Certificate is subject in all respects to the terms of said Pooling and Servicing Agreement including but not limited to Section 2.2.


 




	 	
[Name of Trustee], as Trustee

	 
	 	 	 	 
	
 

	
By: 

	 	 
	 	 	Name:	 
	 	 	Title:	 
	 	 	 	 







 


 


 


 




  





B-1-2  











  






 


 


SCHEDULE OF EXCEPTIONS







 


 




 




  





  











  






 


EXHIBIT B-2


 


FORM OF FINAL CERTIFICATION OF TRUSTEE


 


______ __, 20__



 



 



	Morgan Stanley Capital I Inc.	 	 	[Name of Master Servicer] 
	1585 Broadway	 	 	[address]
	New York, NY 10036	 	 	 
	 	 	 	[Name of Special Servicer] 
	Morgan Stanley Mortgage 	 	 	[address]
	Capital Holdings LLC	 	 	
 


	1585 Broadway	 	 	[Name of Paying Agent] 
	New York, NY 10036	 	 	
[address]


	 	 	 	 
	[Names and addresses of other sellers]	 	 	 





 




 









 



	 	
Re:

	
Pooling and Servicing Agreement (“Pooling and Servicing Agreement”) 


relating to Morgan Stanley Capital I Inc., Commercial Mortgage 


Pass-Through Certificates, Series 20__-__ 







 


Ladies and Gentlemen:


 


In accordance with the provisions of Section 2.2 of the Pooling and Servicing Agreement, the undersigned hereby certifies that, with respect to each Mortgage Loan listed in the Mortgage Loan Schedule and subject to the exceptions noted in the schedule of exceptions attached hereto, that: (a) all documents required to be included in the Mortgage File pursuant to clauses (i), (ii), (iv), (vi), (viii) and (xii) of the definition of “Mortgage File” required to be in the Mortgage File, and any documents required to be included in the Mortgage File pursuant to all other clauses of the definition of “Mortgage File” (to the extent required to be delivered pursuant to the Pooling and Servicing Agreement and any applicable Primary Servicing Agreement), to the extent actually known by a Responsible Officer of the Trustee to be required pursuant to the Pooling and Servicing Agreement (assuming that, with respect to the documents referred to in clause (xii) of the definition of Mortgage File, an original letter of credit in the possession of the Trustee is not so required, unless a Responsible Officer of the Trustee has actual knowledge to the contrary), are in its possession, (b) such documents have been reviewed by it and have not been materially mutilated, damaged, defaced, torn or otherwise physically altered, and such documents relate to such Mortgage Loan, (c) based on its examination and only as to the Mortgage Note and the Mortgage or the appraisal of the related Mortgaged Property, the street address of the Mortgaged Property set forth in the Mortgage Loan Schedule accurately reflects the information contained in the documents in the Mortgage File, and (d) each Mortgage Note has been endorsed as required by the terms of the Pooling and Servicing Agreement.  The Trustee makes no representations as to: (i) the validity, legality, sufficiency, enforceability or genuineness of any of the documents contained in each Mortgage File identified in the Mortgage Loan Schedule, (ii) the collectability, insurability, effectiveness or suitability of any such Mortgage Loan or (iii) whether any of the documents contained in each Mortgage File are 


 


 




  





B-2-1  











  






 


 


appropriate for their represented purposes, or are other than what they purport to be on their face or are in recordable form.


 


The Trustee acknowledges receipt of notice that the Depositor has assigned to the Trustee for the benefit of the Certificateholders all of the Depositor’s right, title and interest in and to the Mortgage Loans, the REMIC I Regular Interests, the REMIC II Regular Interests, and the assets of Class EI Grantor Trust and that, in the event such assignment is not upheld as an absolute sale, that the Depositor has granted to the Trustee for the benefit of Certificateholders a security interest in such items.


 


Capitalized words and phrases used herein shall have the respective meanings assigned to them in the Pooling and Servicing Agreement.  This Certificate is qualified in all respects by the terms of said Pooling and Servicing Agreement including but not limited to Section 2.2.


 



 




	 	
[Name of Trustee], as Trustee

	 
	 	 	 	 
	
 

	
By: 

	 	 
	 	 	Name:	 
	 	 	Title:	 
	 	 	 	 







 




 


 




 




  





B-2-2  











  






 


SCHEDULE OF EXCEPTIONS







 









  





  











  






 


EXHIBIT C


 







 


FORM OF REQUEST FOR RELEASE


 


[Date]


 


[Name and Address of Trustee]


 


 Morgan Stanley Capital I Inc., Commercial


Mortgage Pass-Through Certificates, Series 20__-__


 


In connection with the administration of the Mortgage File held by or on behalf of you as trustee under a certain Pooling and Servicing Agreement, dated as of ______, 20__ (the “Pooling and Servicing Agreement”), among Morgan Stanley Capital I Inc., as depositor, [Name of Master Servicer], as master servicer (the “Master Servicer”), [Name of Special Servicer], as special servicer (the “Special Servicer”), and you as trustee, paying agent and certificate registrar (in such capacity, the “Trustee”), the undersigned as a [Master][Special] Servicer hereby requests a release of the Mortgage File (or the portion thereof specified below) held by or on behalf of you as Trustee with respect to the following described Mortgage Loan for the reason indicated below.


 


Property Name:


Address:


Prospectus No.:


 


If only particular documents in the Mortgage File are requested, please specify which:


 


Reason for requesting Mortgage File (or portion thereof):


 



	
  

	
______

	
1.

	
Mortgage Loan paid in full.







 


(Such [Master] [Special] Servicer hereby certifies that all amounts received in connection with ______________ the Mortgage Loan have been or will be, following such [Master] [Special] Servicer’s release ______________ of the Trustee Mortgage File, credited to the Certificate Account or the Distribution Account ______________ pursuant to the Pooling and Servicing Agreement.)


 



	
  

	
______

	
2.

	
Mortgage Loan repurchased.







 


(Such [Master] [Special] Servicer hereby certifies that the Purchase Price has been credited to the Distribution Account pursuant to the Pooling and Servicing Agreement.)


 


 




  





C-1  











  






 


 



	
  

	
______

	
3.

	
Mortgage Loan Defeased.







 



	
  

	
______

	
4.

	
Mortgage Loan substituted.







 


(Such [Master] [Special] Servicer hereby certifies that a Qualifying Substitute Mortgage Loan has been assigned and delivered to you along with the related Trustee Mortgage File pursuant to the Pooling and Servicing Agreement.)


 



	
  

	
______

	
5.

	
The Mortgage Loan is being foreclosed.







 



	
  

	
______

	
6.

	
Other.  (Describe)







 


The undersigned acknowledges that the above Mortgage File (or requested portion thereof) will be held by the undersigned in accordance with the provisions of the Pooling and Servicing Agreement and will be returned to you or your designee within ten days of our receipt thereof, unless the Mortgage Loan is being foreclosed, in which case the Mortgage File (or such portion thereof) will be returned when no longer required by us for such purpose.


 


Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Pooling and Servicing Agreement.


 


 



 




	 	

[Name of applicable [Master] [Special] Servicer]



	 
	 	 	 	 
	
 

	
By: 

	 	 
	 	 	Name:	 
	 	 	Title:	 
	 	 	 	 







 


 




  





C-2  











  













 


EXHIBIT D-1


 


FORM OF TRANSFEROR CERTIFICATE FOR


TRANSFERS TO DEFINITIVE PRIVATELY OFFERED CERTIFICATES


 


[Date]


 


[Name and address of Certificate Registrar]


 


Morgan Stanley Capital I Inc., as depositor, Commercial Mortgage Pass-ThroughCertificates, Series 20__-__


 







 







 



	
Re:  

	
Morgan Stanley Capital I Inc., Commercial Mortgage








	
  

	
Pass-Through Certificates, Series 20__-__, Class [__] (the “Certificates”)







 


Dear Sirs:


 


This letter is delivered to you in connection with the transfer by _________________ (the “Transferor”) to _________________ (the “Transferee”) of Class ___ Certificates [having an initial Certificate Balance or Notional Amount as of ______ __, 20__ (the “Closing Date”) of $__________] [evidencing a ____% Percentage Interest in the related Class] (the “Transferred Certificates”).  The Transferred Certificates were issued pursuant to the Pooling and Servicing Agreement, dated as of ______, 20__ (the “Pooling and Servicing Agreement”), among Morgan Stanley Capital I Inc., as depositor (the “Depositor”), [Name of Master Servicer], as master servicer, [Name of Special Servicer], as special servicer, and you as trustee, paying agent and certificate registrar.  All terms used herein and not otherwise defined shall have the meanings set forth in the Pooling and Servicing Agreement.  The Transferor hereby certifies, represents and warrants to you, as Certificate Registrar, that:


 


1.           The Transferor is the lawful owner of the Transferred Certificates with the full right to transfer such Certificates free from any and all claims and encumbrances whatsoever.


 


2.           Neither the Transferor nor anyone acting on its behalf has (a) offered, transferred, pledged, sold or otherwise disposed of any Transferred Certificate, any interest in any Transferred Certificate or any other similar security to any person in any manner, (b) solicited any offer to buy or accept a transfer, pledge or other disposition of any Transferred Certificate, any interest in any Transferred Certificate or any other similar security from any person in any manner, (c) otherwise approached or negotiated with respect to any Transferred Certificate, any interest in any Transferred Certificate or any other similar security with any person in any manner, (d) made any general solicitation by means of general advertising or in any other manner, or (e) taken any other action, which (in the case of any of the acts described in clauses (a) through (e) hereof) would constitute a distribution of any Transferred Certificate under the Securities Act of 1933, as amended (the “Securities Act”), or would render the disposition of any 


 




  





D-1-1  











  







 


Transferred Certificate a violation of Section 5 of the Securities Act or any state securities laws, or would require registration or qualification of any Transferred Certificate pursuant to the Securities Act or any state securities laws.




 


 






 



	 	Very truly yours,	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 
	 	(Transferor)	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	
 

	
By: 

	 	 
	 	 	Name:	 	 
	 	 	Title:	 	 
	 	 	 	 	 









 






 




  





D-1-2  











  








 


 


EXHIBIT D-2A


 


FORM I OF TRANSFEREE CERTIFICATE


FOR TRANSFERS OF DEFINITIVE


PRIVATELY OFFERED CERTIFICATES


 


[Date]


 


[Name and address of Certificate Registrar]




 




	
Attention:

	
Global Securitization Trust Services Group—








	
  

	
Morgan Stanley Capital I Inc., as depositor, Commercial Mortgage Pass-Through 


Certificates, Series 20__-__







 



	 	
Re:  

	
Morgan Stanley Capital I Inc., Commercial Mortgage








	
  

	
Pass-Through Certificates, Series 20__-__ (the “Certificates”)









 


 


Ladies and Gentlemen:


 


This letter is delivered to you in connection with the transfer by _________________ (the “Transferor”) to _________________ (the “Transferee”) of Class ______ Certificates [having an initial Certificate Principal Balance or Notional Amount as of ______ __, 20__ (the “Closing Date”) of [$__________] [evidencing a ____% Percentage Interest in the related Class] (the “Transferred Certificates”).  The Certificates, including the Transferred Certificates, were issued pursuant to the Pooling and Servicing Agreement, dated as of ______, 20__ (the “Pooling and Servicing Agreement”), among Morgan Stanley Capital I Inc., as depositor (the “Depositor”), [Name of Master Servicer], as master servicer, [Name of Special Servicer], as special servicer, and you as trustee, paying agent and certificate registrar.  All capitalized terms used but not otherwise defined herein shall have the respective meanings set forth in the Pooling and Servicing Agreement. The Transferee hereby certifies, represents and warrants to you, as Certificate Registrar, that:


 


1.           The Transferee is a “qualified institutional buyer” (a “Qualified Institutional Buyer”) as that term is defined in Rule 144A (“Rule 144A”) under the Securities Act of 1933, as amended (the “Securities Act”), and has completed one of the forms of certification to that effect attached hereto as Annex 1 and Annex 2. The Transferee is aware that the sale to it of the Transferred Certificates is being made in reliance on Rule 144A. The Transferee is acquiring the Transferred Certificates for its own account or for the account of a Qualified Institutional Buyer, and understands that such Transferred Certificates may be resold, pledged or transferred only (i) to a person reasonably believed to be a Qualified Institutional Buyer that purchases for its own account or for the account of a Qualified Institutional Buyer to whom notice is given that the resale, pledge or transfer is being made in reliance on Rule 144A, or (ii) pursuant to another exemption from registration under the Securities Act.


 


2.           The Transferee has been furnished with all information regarding (a) the Depositor, (b) the Transferred Certificates and distributions thereon, (c) the nature, 


 


 




  





D-2A-1  











  






performance and servicing of the Mortgage Loans, (d) the Pooling and Servicing Agreement, (e) any credit enhancement mechanism associated with the Transferred Certificates and (f) all related matters that it has requested.


 



 























 



	 	Very truly yours,	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 
	 	(Transferor)	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	
 

	
By: 

	 	 
	 	 	Name:	 	 
	 	 	Title:	 	 
	 	 	 	 	 









 






 




 




  





D-2A-2  











  






 


ANNEX 1 TO EXHIBIT D-2A


 


QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A


 


[For Transferees Other Than Registered Investment Companies]


 


The undersigned hereby certifies as follows to [name of Transferor] (the “Transferor”) and [Name of Certificate Registrar], as Certificate Registrar, with respect to the commercial mortgage pass-through certificate being transferred (the “Transferred Certificate”) as described in the Transferee Certificate to which this certification relates and to which this certification is an Annex:


 


1.           As indicated below, the undersigned is the chief financial officer, a person fulfilling an equivalent function, or other executive officer of the entity purchasing the Transferred Certificate (the “Transferee”).


 


2.           The Transferee is a “qualified institutional buyer” as that term is defined in Rule 144A under the Securities Act of 1933, as amended (“Rule 144A”), because (i) the Transferee owned and/or invested on a discretionary basis $____________________ in securities (other than the excluded securities referred to below) as of the end of the Transferee’s most recent fiscal year (such amount being calculated in accordance with Rule 144A) and (ii) the Transferee satisfies the criteria in the category marked below.


 



	
  

	
___

	
Corporation, etc.  The Transferee is a corporation (other than a bank, savings and loan association or similar institution), Massachusetts or similar business trust, partnership, or any organization described in Section 501(c)(3) of the Internal Revenue Code of 1986, as amended.







 



	
  

	
___

	
Bank.  The Transferee (a) is a national bank or a banking institution organized under the laws of any State, U.S. territory or the District of Columbia, the business of which is substantially confined to banking and is supervised by the State or territorial banking commission or similar official or is a foreign bank or equivalent institution, and (b) has an audited net worth of at least $25,000,000 as demonstrated in its latest annual financial statements, a copy of which is attached hereto, as of a date not more than 16 months preceding the date of sale of the Certificate in the case of a U.S. bank, and not more than 18 months preceding such date of sale for a foreign bank or equivalent institution.







 



	
  

	
___

	
Savings and Loan.  The Transferee (a) is a savings and loan association, building and loan association, cooperative bank, homestead association or similar institution, which is supervised and examined by a State or Federal authority having supervision over any such institutions or is a foreign savings and loan association or equivalent institution and (b) has an audited net worth of at least $25,000,000 as demonstrated in its latest annual financial statements, a copy of which is attached hereto, as of a 







 


 


 


 




  





D-2A-3  











  






 



 



	
  

	
 

	
date not more than 16 months preceding the date of sale of the Certificate in the case of a U.S. savings and loan association, and not more than 18 months preceding such date of sale for a foreign savings and loan association or equivalent institution.









 



	
  

	
___

	
Broker-dealer.  The Transferee is a dealer registered pursuant to Section 15 of the Securities Exchange Act of 1934, as amended.







 



	
  

	
___

	
Insurance Company.  The Transferee is an insurance company whose primary and predominant business activity is the writing of insurance or the reinsuring of risks underwritten by insurance companies and which is subject to supervision by the insurance commissioner or a similar official or agency of a State, U.S. territory or the District of Columbia.







 



	
  

	
___

	
State or Local Plan.  The Transferee is a plan established and maintained by a State, its political subdivisions, or any agency or instrumentality of the State or its political subdivisions, for the benefit of its employees.







 



	
  

	
___

	
ERISA Plan.  The Transferee is an employee benefit plan within the meaning of Title I of the Employee Retirement income Security Act of 1974, as amended.







 



	
  

	
___

	
Investment Advisor.  The Transferee is an investment advisor registered under the Investment Advisers Act of 1940, as amended.







 



	
  

	
___

	
Other. (Please supply a brief description of the entity and a cross-reference to the paragraph and subparagraph under subsection (a)(1) of Rule 144A pursuant to which it qualifies.  Note that registered investment companies should complete Annex 2 rather than this Annex 1.)


 



___________________________________________


 



___________________________________________


 



___________________________________________








 







 


3.           The term “securities” as used herein does not include (i) securities of issuers that are affiliated with the Transferee, (ii) securities that are part of an unsold allotment to or subscription by the Transferee, if the Transferee is a dealer, (iii) bank deposit notes and certificates of deposit, (iv) loan participations, (v) repurchase agreements, (vi) securities owned but subject to a repurchase agreement and (vii) currency, interest rate and commodity swaps.  For purposes of determining the aggregate amount of securities owned and/or invested on a discretionary basis by the Transferee, the Transferee did not include any of the securities referred to in this paragraph.


 


4.           For purposes of determining the aggregate amount of securities owned and/or invested on a discretionary basis by the Transferee, the Transferee used the cost of 


 


 




  





D-2A-4  











  






 


such securities to the Transferee, unless the Transferee reports its securities holdings in its financial statements on the basis of their market value, and no current information with respect to the cost of those securities has been published, in which case the securities were valued at market.  Further, in determining such aggregate amount, the Transferee may have included securities owned by subsidiaries of the Transferee, but only if such subsidiaries are consolidated with the Transferee in its financial statements prepared in accordance with generally accepted accounting principles and if the investments of such subsidiaries are managed under the Transferee’s direction.  However, such securities were not included if the Transferee is a majority-owned, consolidated subsidiary of another enterprise and the Transferee is not itself a reporting company under the Securities Exchange Act of 1934, as amended.


 


5.           The Transferee acknowledges that it is familiar with Rule 144A and understands that the Transferor and other parties related to the Transferred Certificate are relying and will continue to rely on the statements made herein because one or more sales to the Transferee may be in reliance on Rule 144A.


 


___           ___     Will the Transferee be purchasing the Transferred Certificate only for the


Yes           No       Transferee’s own account?


 


6.           If the answer to the foregoing question is “no”, then in each case where the Transferee is purchasing for an account other than its own, such account belongs to a third party that is itself a “qualified institutional buyer” within the meaning of Rule 144A, and the “qualified institutional buyer” status of such third party has been established by the Transferee through one or more of the appropriate methods contemplated by Rule 144A.


 


7.           The Transferee will notify each of the parties to which this certification is made of any changes in the information and conclusions herein.  Until such notice is given, the Transferee’s purchase of the Transferred Certificate will constitute a reaffirmation of this certification as of the date of such purchase.  In addition, if the Transferee is a bank or savings and loan as provided above, the Transferee agrees that it will furnish to such parties any updated annual financial statements that become available on or before the date of such purchase, promptly after they become available.


 


 




	 	 	 



	 	Print Name of Transferee	 	 



 


	
 

	
By: 

	 	 
	 	Name: 	 	 
	 	Title: 	 	 
	 	Date:	 	 







 




 




  





D-2A-5  











  






 


ANNEX 2 TO EXHIBIT D-2A


 


QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A


 


[for Transferees that are Registered Investment Companies]


 


The undersigned hereby certifies as follows to [name of Transferor] (the “Transferor”) and [Name of Certificate Registrar], as Certificate Registrar, with respect to the mortgage pass-through certificate being transferred (the “Transferred Certificates”) as described in the Transferee Certificate to which this certification relates and to which this certification is an Annex:


 


1.           As indicated below, the undersigned is the chief financial officer, a person fulfilling an equivalent function, or other executive officer of the entity purchasing the Transferred Certificates (the “Transferee”) or, if the Transferee is a “qualified institutional buyer” as that term is defined in Rule 144A under the Securities Act of 1933, as amended (“Rule 144A”) because the Transferee is part of a Family of Investment Companies (as defined below), is an executive officer of the investment adviser (the “Adviser”).


 


2.           The Transferee is a “qualified institutional buyer” as defined in Rule 144A because (i) the Transferee is an investment company registered under the Investment Company Act of 1940, as amended, and (ii) as marked below, the Transferee alone owned and/or invested on a discretionary basis, or the Transferee’s Family of Investment Companies owned, at least $100,000,000 in securities (other than the excluded securities referred to below) as of the end of the Transferee’s most recent fiscal year. For purposes of determining the amount of securities owned by the Transferee or the Transferee’s Family of Investment Companies, the cost of such securities was used, unless the Transferee or any member of the Transferee’s Family of Investment Companies, as the case may be, reports its securities holdings in its financial statements on the basis of their market value, and no current information with respect to the cost of those securities has been published, in which case the securities of such entity were valued at market.


 



	
  

	
____

	
The Transferee owned and/or invested on a discretionary basis $___________________ in securities (other than the excluded securities referred to below) as of the end of the Transferee’s most recent fiscal year (such amount being calculated in accordance with Rule 144A).







 



	
  

	
____

	
The Transferee is part of a Family of Investment Companies which owned in the aggregate $______________ in securities (other than the excluded securities referred to below) as of the end of the Transferee’s most recent fiscal year (such amount being calculated in accordance with Rule 144A).







 


3.           The term “Family of Investment Companies” as used herein means two or more registered investment companies (or series thereof) that have the same investment adviser or investment advisers that are affiliated (by virtue of being majority owned 


 



 




  





D-2A-6  











  






 


subsidiaries of the same parent or because one investment adviser is a majority owned subsidiary of the other).


 




4.           The term “securities” as used herein does not include (i) securities of issuers that are affiliated with the Transferee or are part of the Transferee’s Family of Investment Companies, (ii) bank deposit notes and certificates of deposit, (iii) loan participations, (iv) repurchase agreements, (v) securities owned but subject to a repurchase agreement and (vi) currency, interest rate and commodity swaps. For purposes of determining the aggregate amount of securities owned and/or invested on a discretionary basis by the Transferee, or owned by the Transferee’s Family of Investment Companies, the securities referred to in this paragraph were excluded.


 


5.           The Transferee is familiar with Rule 144A and understands that the parties to which this certification is being made are relying and will continue to rely on the statements made herein because one or more sales to the Transferee will be in reliance on Rule 144A.


 


___           ___     Will the Transferee be purchasing the Transferred Certificates only for the


Yes           No       Transferee’s own account?


 


6.           If the answer to the foregoing question is “no”, then in each case where the Transferee is purchasing for an account other than its own, such account belongs to a third party that is itself a “qualified institutional buyer” within the meaning of Rule 144A, and the “qualified institutional buyer” status of such third party has been established by the Transferee through one or more of the appropriate methods contemplated by Rule 144A.


 


7.           The undersigned will notify the parties to which this certification is made of any changes in the information and conclusions herein. Until such notice, the Transferee’s purchase of the Transferred Certificates will constitute a reaffirmation of this certification by the undersigned as of the date of such purchase.


 




 



 




	 	 	 






	 	Print Name of Transferee or Adviser	 	 





 



	
 

	
By: 

	 	 
	 	 	Name:	 
	 	 	Title:	 








 






	 	IF AN ADVISER: 	 
	 	 	 






	 	Print Name of Transferee	 	 
	 	 	 	 






	
 

	
Date:

	 	 
	 	 	 	 
	 	 	 	 








 


 






 




  





D-2A-7  











  






 




 




 


EXHIBIT D-2B


 


FORM II OF TRANSFEREE CERTIFICATE


FOR TRANSFERS OF DEFINITIVE


PRIVATELY OFFERED CERTIFICATES


 


[Date]


 



 


[Name and address of Certificate Registrar]




 




	
Attention:

	
Global Securitization Trust Services Group—







Morgan Stanley Capital I Inc., as depositor, Commercial Mortgage Pass-Through


Certificates, Series 20__-__


 



	
Re:  

	
Morgan Stanley Capital I Inc., Commercial Mortgage







Pass-Through Certificates, Series 20__-__ (the “Certificates”)


 






 


Ladies and Gentlemen:


 


This letter is delivered to you in connection with the transfer by _____________________ (the “Transferor”) to ________________________ (the “Transferee”) of Class ___ Certificates [having an initial Certificate Principal Balance as of ______ __, 20__ (the “Closing Date”) of $__________][evidencing a ____% Percentage Interest in the related Class] (the “Transferred Certificates”). The Certificates, including the Transferred Certificates, were issued pursuant to the Pooling and Servicing Agreement, dated as of ______, 20__ (the “Pooling and Servicing Agreement”), among Morgan Stanley Capital I Inc., as depositor (the “Depositor”), [Name of Master Servicer], as master servicer, [Name of Special Servicer], as special servicer, and you, as trustee, paying agent and certificate registrar.  All capitalized terms used but not otherwise defined herein shall have the respective meanings set forth in the Pooling and Servicing Agreement. The Transferee hereby certifies, represents and warrants to you, as Certificate Registrar, that:


 


1.           The Transferee is acquiring the Transferred Certificates for its own account for investment and not with a view to or for sale or transfer in connection with any distribution thereof, in whole or in part, in any manner which would violate the Securities Act of 1933, as amended (the “Securities Act”), or any applicable state securities laws.


 


2.           The Transferee understands that (a) the Class of Certificates to which the Transferred Certificates belong has not been and will not be registered under the Securities Act or registered or qualified under any applicable state securities laws, (b) none of the Depositor, the Trustee or the Certificate Registrar is obligated so to register or qualify the Class of Certificates to which the Transferred Certificates belong, and (c) no Transferred Certificate may be resold or transferred unless it is (i) registered pursuant to the Securities Act and registered or qualified pursuant any applicable state 


 



 




  





D-2B-1  











  






securities laws or (ii) sold or transferred in transactions which are exempt from such registration and qualification and the Certificate Registrar has received either: (A) a certificate from the Certificateholder desiring to effect such transfer substantially in the form attached as Exhibit D-1 to the Pooling and Servicing Agreement and a certificate from such Certificateholder’s prospective transferee substantially in the form attached either as Exhibit D-2A or as Exhibit D-2B to the Pooling and Servicing Agreement; or (B) an opinion of counsel satisfactory to the Certificate Registrar with respect to the availability of such exemption from registration under the Securities Act, together with copies of the written certification(s) from the transferor and/or transferee setting forth the facts surrounding the transfer upon which such opinion is based.


 




 


3.            The Transferee understands that it may not sell or otherwise transfer any Transferred Certificate except in compliance with the provisions of Section 3.3 of the Pooling and Servicing Agreement, which provisions it has carefully reviewed.


 


4.           Transferee understands that each Transferred Certificate will bear the following legends:


 


THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.


 


NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR APPLICABLE FEDERAL, STATE OR LOCAL LAW (“SIMILAR LAW”) MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE 


 




  





D-2B-2  











  







 


PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.




 


5.           Neither the Transferee nor anyone acting on its behalf has (a) offered, pledged, sold, disposed of or otherwise transferred any Transferred Certificate, any interest in any Transferred Certificate or any other similar security to any person in any manner, (b) solicited any offer to buy or accept a pledge, disposition or other transfer of any Transferred Certificate, any interest in any Transferred Certificate or any other similar security from any person in any manner, (c) otherwise approached or negotiated with respect to any Transferred Certificate, any interest in any Certificate or any other similar security with any person in any manner, (d) made any general solicitation by means of general advertising or in any other manner, or (e) taken any other action with respect to any Transferred Certificate, any interest in any Transferred Certificate or any other similar security, which (in the case of any of the acts described in clauses (a) through (e) above) would constitute a distribution of the Transferred Certificates under the Securities Act, would render the disposition of the Transferred Certificates a violation of Section 5 of the Securities Act or any state securities law or would require registration or qualification of the Transferred Certificates pursuant thereto. The Transferee will not act, nor has it authorized or will it authorize any Person to act, in any manner set forth in the foregoing sentence with respect to any Transferred Certificate, any interest in any Transferred Certificate or any other similar security.


 


6.           The Transferee acknowledges that it is familiar with Rule 144A and understands that the Transferor and other parties related to the Transferred Certificate are relying and will continue to rely on the statements made herein because one or more sales to the Transferee may be in reliance on Rule 144A.


 


 




  





D-2B-3  











  






 


7.           The Transferee is an “accredited investor” as defined in any of paragraphs (1), (2), (3) and (7) of Rule 501(a) under the Securities Act or an entity in which all of the equity owners come within such paragraphs. The Transferee has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Transferred Certificate; the Transferee has sought such accounting, legal and tax advice as it has considered necessary to make an informed investment decision; and the Transferee is able to bear the economic risks of such investment and can afford a complete loss of such investment.




 






 



	 	Very truly yours,	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 
	 	(Transferor)	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	
 

	
By: 

	 	 
	 	 	Name:	 	 
	 	 	Title:	 	 
	 	 	 	 	 









 






 


 


 


 


 






 


 


 


 


 




  





D-2B-4  











  








 


 


EXHIBIT D-3A


 


FORM I OF TRANSFEREE CERTIFICATE


FOR TRANSFERS OF INTERESTS IN


BOOK-ENTRY PRIVATELY OFFERED CERTIFICATES



 



	 	[Date]	 





 




 


 


[TRANSFEROR]


 



	
Re:  

	
Morgan Stanley Capital I Inc., Commercial Mortgage








	
  

	
Pass-Through Certificates, Series 20__-__, Class (the “Certificates”)







 


Dear Sirs:


 


This letter is delivered to you in connection with the transfer by _____________________ (the “Transferor”) to ______________________ (the “Transferee”) of a Certificate (the “Transferred Certificate”) having an initial principal balance or notional amount as of ______, 20__ (the “Closing Date”) of $__________.  The Certificates were issued pursuant to the Pooling and Servicing Agreement, dated as of ______, 20__ (the “Pooling and Servicing Agreement”), among Morgan Stanley Capital I Inc., as depositor (the “Depositor”), [Name of Master Servicer], as master servicer, [Name of Special Servicer], as special servicer, and [Name of Trustee/Paying Agent/Certificate Registrar], as trustee, paying agent and certificate registrar.  All terms used herein and not otherwise defined shall have the meanings set forth in the Pooling and Servicing Agreement.  The Transferee hereby certifies, represents and warrants to you, and for the benefit of the Depositor, the Certificate Registrar and the Trustee, that:


 


1.           The Transferee is acquiring the Transferred Certificate for its own account for investment and not with a view to or for sale or transfer in connection with any distribution thereof, in whole or in part, in any manner which would violate the Securities Act of 1933, as amended (the “Securities Act”), or any applicable state securities laws.


 


2.           The Transferee understands that (a) the Certificates have not been and will not be registered under the Securities Act or registered or qualified under any applicable state securities laws, (b) none of the Depositor, the Trustee or the Certificate Registrar is obligated so to register or qualify the Certificates and (c) no interest in the Certificates may be sold or transferred unless it is (i) registered pursuant to the Securities Act and registered or qualified pursuant to any applicable state securities laws or (ii) sold or transferred in transactions which are exempt from such registration and qualification and the Certificate Owner desiring to effect such transfer has received either (A) a certification from such Certificate Owner’s prospective transferee (substantially in the form attached to the Pooling and Servicing Agreement) setting forth the facts surrounding the transfer or (B) an opinion of counsel with respect to the availability of such exemption, together with copies of the certification(s) from the transferor and/or transferee setting forth the facts surrounding the transfer upon which such opinion is based.


 


 




  





D-3A-1  











  






 


3.           The Transferee understands that it may not sell or otherwise transfer any portion of its interest in the Transferred Certificate except in compliance with the provisions of Section 3.3 of the Pooling and Servicing Agreement, which provisions it has carefully reviewed.


 


4.           Transferee understands that the Transferred Certificate will bear legends substantially to the following effect:


 


THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE.  ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.


 


NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR APPLICABLE FEDERAL, STATE OR LOCAL LAW (“SIMILAR LAW”) MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.


 


5.           Neither the Transferee nor anyone acting on its behalf has (a) offered, pledged, sold, disposed of or otherwise transferred any Certificate, any interest in any Certificate or any other similar security to any person in any manner, (b) solicited any offer to buy or accept a pledge, disposition or other transfer of any Certificate, any interest in any Certificate or any other similar security from any person in any manner, (c) otherwise approached or negotiated with respect to any Certificate, any interest in any Certificate or any other similar security with any person in any manner, (d) made any general solicitation by means of general advertising or in any other manner, or (e) taken


 




  





D-3A-2  











  






 


 



 


any other action, that (in the case of any of the acts described in clauses (a) through (e) above) would constitute a distribution of any Certificate under the Securities Act, would render the disposition of any Certificate a violation of Section 5 of the Securities Act or any state securities law or would require registration or qualification of any Certificate pursuant thereto.  The Transferee will not act, nor has it authorized or will it authorize any person to act, in any manner set forth in the foregoing sentence with respect to any Certificate, any interest in any Certificate or any similar security.


 




 


6.           The Transferee acknowledges that it is familiar with Rule 144A and understands that the Transferor and other parties related to the Transferred Certificate are relying and will continue to rely on the statements made herein because one or more sales to the Transferee may be in reliance on Rule 144A.


 


7.           The Transferee is an institutional “accredited investor” as defined in Rule 501(a) (1), (2), (3) or (7) under the Securities Act and has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Certificates; the Transferee has sought such accounting, legal and tax advice as it has considered necessary to make an informed investment decision; and the Transferee is able to bear the economic risks of such an investment and can afford a complete loss of such investment.


 




 


 






 



	 	Very truly yours,	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 
	 	(Transferor)	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	
 

	
By: 

	 	 
	 	 	Name:	 	 
	 	 	Title:	 	 
	 	 	 	 	 









 






 




 




 








 


 




  





D-3A-3  











  






 


EXHIBIT D-3B


 


FORM II OF TRANSFEREE CERTIFICATE


FOR TRANSFERS OF INTERESTS IN


BOOK-ENTRY PRIVATELY OFFERED CERTIFICATES


 


[Date]


 


[TRANSFEROR]


 



	
Re:  

	
Morgan Stanley Capital I Inc., Commercial Mortgage








	
  

	
Pass-Through Certificates, Series 20__-__, Class (the “Certificates”)







 


Dear Sirs:


 


This letter is delivered to you in connection with the transfer by _____________ ________ (the “Transferor”) to ______________________ (the “Transferee”) of a Certificate (the “Transferred Certificate”) having an initial principal balance or notional amount as of ______ __, 20__ (the “Closing Date”) of $__________.  The Certificates were issued pursuant to the Pooling and Servicing Agreement, dated as of ______, 20__ (the “Pooling and Servicing Agreement”), among Morgan Stanley Capital I Inc., as depositor (the “Depositor”), [Name of Master Servicer], as master servicer, [Name of Special Servicer], as special servicer, and [Name of Trustee], as trustee, paying agent and certificate registrar. All terms used herein and not otherwise defined shall have the meanings set forth in the Pooling and Servicing Agreement.  The Transferee hereby certifies, represents and warrants to you, and for the benefit of the Depositor, the Certificate Registrar and the Trustee, that:


 


1.           The Transferee is a “qualified institutional buyer” as that term is defined in Rule 144A (“Rule 144A”) under the Securities Act of 1933, as amended (the “Securities Act”), and has completed one of the forms of certification to that effect attached hereto as Annex 1 and Annex 2.  The Transferee is aware that the sale to it is being made in reliance on Rule 144A.  The Transferee is acquiring the Transferred Certificate for its own account or for the account of a qualified institutional buyer, and understands that such Certificate or any interest therein may be resold, pledged or transferred only (i) to a person reasonably believed to be a qualified institutional buyer that purchases for its own account or for the account of a qualified institutional buyer to whom notice is given that the resale, pledge or transfer is being made in reliance on Rule 144A, or (ii) pursuant to another exemption from registration under the Securities Act.


 


2.           The Transferee understands that (a) the Class of Certificates to which the Transferred Certificate belongs have not been and will not be registered under the Securities Act or registered or qualified under any applicable state securities laws, (b) none of the Depositor, the Trustee or the Certificate Registrar is obligated so to register or qualify the Certificates and (c) no interest in the Certificates may be sold or transferred unless it is (i) registered pursuant to the Securities Act and registered or qualified pursuant to any applicable state securities laws or (ii) sold or transferred in transactions which are exempt from such registration and qualification and the Certificate 


 




  





D-3B-1  











  







 


Owner desiring to effect such transfer has received either (A) a certification from such Certificate Owner’s prospective transferee (substantially in the form attached to the Pooling and Servicing Agreement) setting forth the facts surrounding the transfer or (B) an opinion of counsel with respect to the availability of such exemption, together with copies of the certification(s) from the transferor and/or transferee setting forth the facts surrounding the transfer upon which such opinion is based.




 


3.            The Transferee understands that it may not sell or otherwise transfer any portion of its interest in the Transferred Certificate except in compliance with the provisions of Section 3.3 of the Pooling and Servicing Agreement, which provisions it has carefully reviewed.


 


4.           Transferee understands that the Transferred Certificate will bear legends substantially to the following effect:


 


THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE.  ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.


 


NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR APPLICABLE FEDERAL, STATE OR LOCAL LAW (“SIMILAR LAW”) MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.


 




  





D-3B-2  











  






5.           The Transferee acknowledges that it is familiar with Rule 144A and understands that the Transferor and other parties related to the Transferred Certificate are relying and will continue to rely on the statements made herein because one or more sales to the Transferee may be in reliance on Rule 144A.





 


 


 


 






 



	 	Very truly yours,	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 
	 	(Transferor)	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	
 

	
By: 

	 	 
	 	 	Name:	 	 
	 	 	Title:	 	 
	 	 	 	 	 









 






 




 




 










 




 




  





D-3B-3  











  






 


ANNEX 1 TO EXHIBIT D-3B


 


QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A


 


[For Transferees Other Than Registered Investment Companies]


 


The undersigned hereby certifies as follows to [name of Transferor] (the “Transferor”), and [Name of Certificate Registrar], as Certificate Registrar, with respect to the commercial mortgage pass-through certificate being transferred (the “Transferred Certificate”) as described in the Transferee Certificate to which this certification relates and to which this certification is an Annex:


 


1.           As indicated below, the undersigned is the chief financial officer, a person fulfilling an equivalent function, or other executive officer of the entity purchasing the Transferred Certificate (the “Transferee”).


 


2.           The Transferee is a “qualified institutional buyer” as that term is defined in Rule 144A under the Securities Act of 1933, as amended (“Rule 144A”), because (i) the Transferee owned and/or invested on a discretionary basis $____________________ in securities (other than the excluded securities referred to below) as of the end of the Transferee’s most recent fiscal year (such amount being calculated in accordance with Rule 144A) and (ii) the Transferee satisfies the criteria in the category marked below.


 



	
  

	
___

	
Corporation, etc.  The Transferee is a corporation (other than a bank, savings and loan association or similar institution), Massachusetts or similar business trust, partnership, or any organization described in Section 501(c)(3) of the Internal Revenue Code of 1986, as amended.







 



	
  

	
___

	
Bank.  The Transferee (a) is a national bank or a banking institution organized under the laws of any State, U.S. territory or the District of Columbia, the business of which is substantially confined to banking and is supervised by the State or territorial banking commission or similar official or is a foreign bank or equivalent institution, and (b) has an audited net worth of at least $25,000,000 as demonstrated in its latest annual financial statements, a copy of which is attached hereto, as of a date not more than 16 months preceding the date of sale of the Certificate in the case of a U.S. bank, and not more than 18 months preceding such date of sale for a foreign bank or equivalent institution.







 



	
  

	
___

	
Savings and Loan.  The Transferee (a) is a savings and loan association, building and loan association, cooperative bank, homestead association or similar institution, which is supervised and examined by a State or Federal authority having supervision over any such institutions or is a foreign savings and loan association or equivalent institution and (b) has an audited net worth of at least $25,000,000 as demonstrated in its latest annual financial statements, a copy of which is attached hereto, as of a 







 


 




  





D-3B-4  











  







 



	
  

	
 

	
date not more than 16 months preceding the date of sale of the Certificate in the case of a U.S. savings and loan association, and not more than 18 months preceding such date of sale for a foreign savings and loan association or equivalent institution.









 



	
  

	
___

	
Broker-dealer.  The Transferee is a dealer registered pursuant to Section 15 of the Securities Exchange Act of 1934, as amended.







 



	
  

	
___

	
Insurance Company.  The Transferee is an insurance company whose primary and predominant business activity is the writing of insurance or the reinsuring of risks underwritten by insurance companies and which is subject to supervision by the insurance commissioner or a similar official or agency of a State, U.S. territory or the District of Columbia.







 



	
  

	
___

	
State or Local Plan.  The Transferee is a plan established and maintained by a State, its political subdivisions, or any agency or instrumentality of the State or its political subdivisions, for the benefit of its employees.







 



	
  

	
___

	
ERISA Plan.  The Transferee is an employee benefit plan within the meaning of Title I of the Employee Retirement income Security Act of 1974, as amended.







 



	
  

	
___

	
Investment Advisor.  The Transferee is an investment advisor registered under the Investment Advisers Act of 1940, as amended.







 



	
  

	
___

	
Other. (Please supply a brief description of the entity and a cross-reference to the paragraph and subparagraph under subsection (a)(1) of Rule 144A pursuant to which it qualifies.  Note that registered investment companies should complete Annex 2 rather than this Annex 1.)


 


___________________________________________


 



___________________________________________


 


___________________________________________


 









 


3.           The term “securities” as used herein does not include (i) securities of issuers that are affiliated with the Transferee, (ii) securities that are part of an unsold allotment to or subscription by the Transferee, if the Transferee is a dealer, (iii) bank deposit notes and certificates of deposit, (iv) loan participations, (v) repurchase agreements, (vi) securities owned but subject to a repurchase agreement and (vii) currency, interest rate and commodity swaps.  For purposes of determining the aggregate amount of securities owned and/or invested on a discretionary basis by the Transferee, the Transferee did not include any of the securities referred to in this paragraph.


 


4.           For purposes of determining the aggregate amount of securities owned and/or invested on a discretionary basis by the Transferee, the Transferee used the cost of 


 




  





D-3B-5  











  







 


such securities to the Transferee, unless the Transferee reports its securities holdings in its financial statements on the basis of their market value, and no current information with respect to the cost of those securities has been published, in which case the securities were valued at market.  Further, in determining such aggregate amount, the Transferee may have included securities owned by subsidiaries of the Transferee, but only if such subsidiaries are consolidated with the Transferee in its financial statements prepared in accordance with generally accepted accounting principles and if the investments of such subsidiaries are managed under the Transferee’s direction.  However, such securities were not included if the Transferee is a majority-owned, consolidated subsidiary of another enterprise and the Transferee is not itself a reporting company under the Securities Exchange Act of 1934, as amended.


 




 


 


5.           The Transferee acknowledges that it is familiar with Rule 144A and understands that the Transferor and other parties related to the Transferred Certificate are relying and will continue to rely on the statements made herein because one or more sales to the Transferee may be in reliance on Rule 144A.


 


___           ___     Will the Transferee be purchasing the Transferred Certificate only for the


Yes           No       Transferee’s own account?


 


6.           If the answer to the foregoing question is “no”, then in each case where the Transferee is purchasing for an account other than its own, such account belongs to a third party that is itself a “qualified institutional buyer” within the meaning of Rule 144A, and the “qualified institutional buyer” status of such third party has been established by the Transferee through one or more of the appropriate methods contemplated by Rule 144A.


 


7.           The Transferee will notify each of the parties to which this certification is made of any changes in the information and conclusions herein.  Until such notice is given, the Transferee’s purchase of the Transferred Certificate will constitute a reaffirmation of this certification as of the date of such purchase.  In addition, if the Transferee is a bank or savings and loan as provided above, the Transferee agrees that it will furnish to such parties any updated annual financial statements that become available on or before the date of such purchase, promptly after they become available.



 



 




 


	 	 Print Name of Transferee	 
	 	 	 	 
	
 

	By:	 	 
	 	 	Name: 	 	 
	 	 	Title: 	 	 
	 	 	 	 	 







 





















  





D-3B-6  











  






 


ANNEX 2 TO EXHIBIT D-3B


 


QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A


 


[For Transferees That Are Registered Investment Companies]


 


The undersigned hereby certifies as follows to [name of Transferor] (the “Transferor”), and for the benefit of the Depositor, the Certificate Registrar and the Trustee, with respect to the commercial mortgage pass-through certificate being transferred (the “Transferred Certificate”) as described in the Transferee Certificate to which this certification relates and to which this certification is an Annex:


 


1.           As indicated below, the undersigned is the chief financial officer, a person fulfilling an equivalent function, or other executive officer of the entity purchasing the Transferred Certificate (the “Transferee”) or, if the Transferee is a “qualified institutional buyer” as that term is defined in Rule 144A under the Securities Act of 1933, as amended (“Rule 144A”), because the Transferee is part of a Family of Investment Companies (as defined below), is an executive officer of the investment adviser (the “Adviser”).


 


2.           The Transferee is a “qualified institutional buyer” as defined in Rule 144A because (i) the Transferee is an investment company registered under the Investment Company Act of 1940, as amended, and (ii) as marked below, the Transferee alone owned and/or invested on a discretionary basis, or the Transferee’s Family of Investment Companies owned, at least $100,000,000 in securities (other than the excluded securities referred to below) as of the end of the Transferee’s most recent fiscal year.  For purposes of determining the amount of securities owned by the Transferee or the Transferee’s Family of Investment Companies, the cost of such securities was used, unless the Transferee or any member of the Transferee’s Family of Investment Companies, as the case may be, reports its securities holdings in its financial statements on the basis of their market value, and no current information with respect to the cost of those securities has been published, in which case the securities of such entity were valued at market.


 



	
  

	
____

	
The Transferee owned and/or invested on a discretionary basis $___________________ in securities (other than the excluded securities referred to below) as of the end of the Transferee’s most recent fiscal year (such amount being calculated in accordance with Rule 144A).







 



	
  

	
____

	
The Transferee is part of a Family of Investment Companies which owned in the aggregate $______________ in securities (other than the excluded securities referred to below) as of the end of the Transferee’s most recent fiscal year (such amount being calculated in accordance with Rule 144A).







 


3.           The term “Family of Investment Companies” as used herein means two or more registered investment companies (or series thereof) that have the same investment adviser or investment advisers that are affiliated (by virtue of being majority owned subsidiaries of the same parent or because one investment adviser is a majority owned subsidiary of the other).


 


 




  





D-3B-7  











  






 


 


4.           The term “securities” as used herein does not include (i) securities of issuers that are affiliated with the Transferee or are part of the Transferee’s Family of Investment Companies, (ii) bank deposit notes and certificates of deposit, (iii) loan participations, (iv) repurchase agreements, (v) securities owned but subject to a repurchase agreement and (vi) currency, interest rate and commodity swaps.  For purposes of determining the aggregate amount of securities owned and/or invested on a discretionary basis by the Transferee, or owned by the Transferee’s Family of Investment Companies, the securities referred to in this paragraph were excluded.


 


5.           The Transferee is familiar with Rule 144A and understands that the parties to which this certification is being made are relying and will continue to rely on the statements made herein because one or more sales to the Transferee will be in reliance on Rule 144A.


 


___           ___     Will the Transferee be purchasing the Transferred Certificate only for the


Yes           No       Transferee’s own account?


 


6.           If the answer to the foregoing question is “no”, then in each case where the Transferee is purchasing for an account other than its own, such account belongs to a third party that is itself a “qualified institutional buyer” within the meaning of Rule 144A, and the “qualified institutional buyer” status of such third party has been established by the Transferee through one or more of the appropriate methods contemplated by Rule 144A.


 


7.           The undersigned will notify the parties to which this certification is made of any changes in the information and conclusions herein.  Until such notice, the Transferee’s purchase of the Transferred Certificate will constitute a reaffirmation of this certification by the undersigned as of the date of such purchase.


 




 




	 	 	 






	 	Print Name of Transferee or Adviser	 	 





 



	
 

	
By: 

	 	 
	 	 	Name:	 
	 	 	Title:	 








 






	 	IF AN ADVISER: 	 
	 	 	 






	 	Print Name of Transferee	 	 






	
 

	
Date:

	 	 
	 	 	 	 
	 	 	 	 








 










 




  





D-3B-8  











  








 


 


EXHIBIT E-1


 


FORM OF TRANSFER AFFIDAVIT AND AGREEMENT


FOR TRANSFERS OF REMIC RESIDUAL CERTIFICATES


 


 



	STATE OF	)	 	 
	 	ss:	 	 
	COUNTY OF	)	 	 



                                                                                      


 


____________________, being first duly sworn, deposes and says that:


 


1.           He/She is the ____________________ of ____________________ (the prospective transferee (the “Transferee”) of Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 20__-__, Class [R-I] [R-II] [R-III], evidencing a ____% Percentage Interest in such Class (the “Residual Certificates”)), a ________________ duly organized and validly existing under the laws of ____________________, on behalf of which he/she makes this affidavit. All capitalized terms used but not otherwise defined herein shall have the respective meanings set forth in the Pooling and Servicing Agreement as amended and restated pursuant to which the Residual Certificates were issued (the “Pooling and Servicing Agreement”).


 


2.           The Transferee (i) is, and as of the date of transfer will be, a “Permitted Transferee” and will endeavor to remain a “Permitted Transferee” for so long as it holds the Residual Certificates, and (ii) is acquiring the Residual Certificates for its own account or for the account of another prospective transferee from which it has received an affidavit in substantially the same form as this affidavit. A “Permitted Transferee” is any Person other than a “disqualified organization,” a possession of the United States or a person with respect to whom income from the Residual Certificate to be attributable to a foreign permanent establishment or fixed base, within the meaning of an applicable income tax treaty, of the Transferee or any other Person.  (For this purpose, a “disqualified organization” means the United States, any state or political subdivision thereof, any agency or instrumentality of any of the foregoing (other than an instrumentality, all of the activities of which are subject to tax and, except for the Federal Home Loan Mortgage Corporation, a majority of whose board of directors is not selected by any such governmental entity) or any foreign government, international organization or any agency or instrumentality of such foreign government or organization, any rural electric or telephone cooperative, or any organization (other than certain farmers’ cooperatives) that is generally exempt from federal income tax unless such organization is subject to the tax on unrelated business taxable income.


 


3.           The Transferee is aware (i) of the tax that would be imposed on transfers of the Residual Certificates to “disqualified organizations” under the Code that applies to all transfers of the Residual Certificates; (ii) that such tax would be on the transferor or, if such transfer is through an agent (which Person includes a broker, nominee or middleman) for a non-Permitted Transferee, on the agent; (iii) that the Person otherwise liable for the tax shall be relieved of liability for the tax if the transferee furnishes to such Person an affidavit that the 


 




  





E-1-1  











  







 


transferee is a Permitted Transferee and, at the time of transfer, such Person does not have actual knowledge that the affidavit is false; and (iv) that the Residual Certificates may be a “noneconomic residual interest” within the meaning of Treasury regulation Section 1.860E-1(c) and that the transferor of a “noneconomic residual interest” will remain liable for any taxes due with respect to the income on such residual interest, unless no significant purpose of the transfer is to enable the transferor to impede the assessment or collection of tax.


 




4.           The Transferee is aware of the tax imposed on a “pass-through entity” holding the Residual Certificates if at any time during the taxable year of the pass-through entity a non-Permitted Transferee is the record holder of an interest in such entity. (For this purpose, a “pass-through entity” includes a regulated investment company, a real estate investment trust or common trust fund, a partnership, trust or estate, and certain cooperatives.)


 


5.           The Transferee is aware that the Certificate Registrar will not register any transfer of the Residual Certificates by the Transferee unless the Transferee’s transferee, or such transferee’s agent, delivers to the Certificate Registrar, among other things, an affidavit and agreement in substantially the same form as this affidavit and agreement. The Transferee expressly agrees that it will not consummate any such transfer if it knows or believes that any representation contained in such affidavit and agreement is false.


 


6.           The Transferee consents to any additional restrictions or arrangements that shall be deemed necessary upon advice of counsel to constitute a reasonable arrangement to ensure that the Residual Certificate will only be owned, directly or indirectly, by a Permitted Transferee.


 


7.           The Transferee’s taxpayer identification number is _________________.


 


8.           The Transferee has reviewed the provisions of Section 3.3(e) of the Pooling and Servicing Agreement, a description of which provisions is set forth in the Residual Certificates (in particular, clause (F) of Section 3.3(e) which authorizes the Paying Agent or the Trustee to deliver payments on the Residual Certificate to a Person other than the Transferee and clause (G) of Section 3.3(e) which authorizes the Trustee to negotiate a mandatory sale of the Residual Certificates, in either case, in the event that the Transferee holds such Residual Certificates in violation of Section 3.3(e)); and the Transferee expressly agrees to be bound by and to comply with such provisions.


 


9.           No purpose of the Transferee relating to its purchase or any sale of the Residual Certificates is or will be to impede the assessment or collection of any tax.


 


10.           The Transferee hereby represents to and for the benefit of the transferor that the Transferee intends to pay any taxes associated with holding the Residual Certificates as they become due, fully understanding that it may incur tax liabilities in excess of any cash flows generated by the Residual Certificates.


 


11.           The Transferee will, in connection with any transfer that it makes of the Residual Certificates, deliver to the Certificate Registrar a representation letter substantially in the form of Exhibit E-2 to the Pooling and Servicing Agreement in which it will represent and warrant, among other things, that it is not transferring the Residual Certificates to impede the 


 




  





E-1-2  











  







 


assessment or collection of any tax and that it has at the time of such transfer conducted a reasonable investigation of the financial condition of the proposed transferee as contemplated by Treasury regulation Section 1.860E-1(c)(4)(i) and has satisfied the requirements of such provision.




 


12.           The Transferee is a United States Tax Person.  For this purpose, a United States Tax Person is a citizen or resident of the United States, a corporation or partnership (except to the extent provided in applicable Treasury Regulations) created or organized in or under the laws of the United States or any state thereof or the District of Columbia including any entity treated as such a corporation or partnership for federal income tax purposes, (iii) an estate the income of which is includible in gross income for United States tax purposes, regardless of its source or (iv) a trust if a court within the United States is able to exercise primary supervision over the administration of such trust, and one or more United States Tax Persons has the authority to control all substantial decisions of such trust (or to the extent provided in applicable Treasury Regulations, a trust in existence on August 20, 1996, which is eligible to be treated as a United States Tax Person).


 


13.           The Transferee will not cause income from the Residual Certificate to be attributable to a foreign permanent establishment or fixed base, within the meaning of an applicable income tax treaty, of the Transferee or any other United States Tax Person.


 


14.           Check the applicable paragraph:


 


o           The present value of the anticipated tax liabilities associated with holding the Residual Certificate, as applicable, does not exceed the sum of:


 



	
  

	
(i)

	
the present value of any consideration given to the Transferee to acquire such Residual Certificate;







 



	
  

	
(ii)

	
the present value of the expected future distributions on such Residual Certificate; and







 



	
  

	
(iii)

	
the present value of the anticipated tax savings associated with holding such Residual Certificate as the related REMIC generates losses.







 


For purposes of this calculation, (i) the Transferee is assumed to pay tax at the highest rate currently specified in Section 11(b) of the Code (but the tax rate in Section 55(b)(1)(B) of the Code may be used in lieu of the highest rate specified in Section 11(b) of the Code if the Transferee has been subject to the alternative minimum tax under Section 55 of the Code in the preceding two years and will compute its taxable income in the current taxable year using the alternative minimum tax rate) and (ii) present values are computed using a discount rate equal to the short-term Federal rate prescribed by Section 1274(d) of the Code for the month of the transfer and the compounding period used by the Transferee.


 


o           That the transfer of the Residual Certificate complies with U.S. Treasury Regulations Sections 1.860E-1(c)(5) and (6) and, accordingly,


 


 




  





E-1-3  











  






 


 



	
  

	
(i)

	
the Transferee is an “eligible corporation,” as defined in U.S. Treasury Regulations Section 1.860E-1(c)(6)(i), as to which income from the Residual Certificate will only be taxed in the United States;







 



	
  

	
(ii)

	
at the time of the transfer, and at the close of the Transferee’s two fiscal years preceding the year of the transfer, the Transferee had gross assets for financial reporting purposes (excluding any obligation of a person related to the Transferee within the meaning of U.S. Treasury Regulations Section 1.860E-1(c)(6)(ii)) in excess of $100 million and net assets in excess of $10 million;







 



	
  

	
(iii)

	
the Transferee will transfer the Residual Certificate only to another “eligible corporation,” as defined in U.S. Treasury Regulations Section 1.860E-1(c)(6)(i), in a transaction that satisfies the requirements of Sections 1.860E-1(c)(4)(i), (ii) and (iii) and Section 1.860E-1(c)(5) of the U.S. Treasury Regulations; and







 



	
  

	
(iv)

	
the Transferee determined the consideration paid to it to acquire the Residual Certificate based on reasonable market assumptions (including, but not limited to, borrowing and investment rates, prepayment and loss assumptions, expense and reinvestment assumptions, tax rates and other factors specific to the Transferee) that it has determined in good faith.







 



	
  

	
o

	
None of the above.







 


IN WITNESS WHEREOF, the Transferee has caused this instrument to be executed on its behalf, pursuant to the authority of its Board of Directors, by its ____________________ and its corporate seal to be hereunto attached this day of ___________, ____.


 




	 	
[NAME OF TRANSFEREE]

	 
	 	 	 	 
	 	 	 	 
	 	 	 	 
	
 

	
By: 

	 	 
	 	 	
[Name of Officer]

	 
	 	 	
[Title of Officer]

	 
	 	 	 	 







 








 


 




  





E-1-4  











  






 


EXHIBIT E-2


 


FORM OF TRANSFEROR CERTIFICATE FOR TRANSFERS OF


REMIC RESIDUAL CERTIFICATES


 


_______________, 20__



 


[Name of Certificate Registrar]


 








 



	
Attention:

	
Global Securitization Trust Services Group—








	
  

	
Morgan Stanley Capital I Inc., as depositor, Commercial Mortgage Pass-Through 


Certificates, Series 20__-__







 



	 	
Re:

	
Morgan Stanley Capital I Inc., Commercial Mortgage








	
  

	
Pass-Through Certificates, Series 20__-__, Class (the “Certificates”)









 


 




Dear Sirs:


 


This letter is delivered to you in connection with the transfer by _________________ (the “Transferor”) to _________________ (the “Transferee”) of [Class R-I] [Class R-II] [Class R-III] Certificates evidencing a ____% Percentage Interest in such Class (the “Residual Certificates”).  The Certificates, including the Residual Certificates, were issued pursuant to the Pooling and Servicing Agreement, dated as of ______, 20__ (the “Pooling and Servicing Agreement”), among Morgan Stanley Capital I Inc., as depositor (the “Depositor”), [Name of Master Servicer], as master servicer, [Name of Special Servicer], as special servicer, and you, as trustee, paying agent and certificate registrar.  All capitalized terms used but not otherwise defined herein shall have the respective meanings set forth in the Pooling and Servicing Agreement. The Transferor hereby certifies, represents and warrants to you, as Certificate Registrar, that:


 


1.           No purpose of the Transferor relating to the transfer of the Residual Certificates by the Transferor to the Transferee is or will be to impede the assessment or collection of any tax.


 


2.           The Transferor understands that the Transferee has delivered to you a Transfer Affidavit and Agreement in the form attached to the Pooling and Servicing Agreement. The Transferor does not know or believe that any representation contained therein is false.


 


3.           The Transferor has at the time of this transfer conducted a reasonable investigation of the financial condition of the Transferee as contemplated by Treasury regulation Section 1.860E-1(c)(4)(i) and, as a result of that investigation, the Transferor has determined that the Transferee has historically paid its debts as they became due and has found no significant evidence to indicate that the Transferee will not continue to pay its debts as they become due in the future. The Transferor understands that the transfer of the Residual Certificates may not be respected for United States income tax purposes (and the Transferor may continue to be liable for United States income taxes associated therewith) unless the Transferor has conducted such an investigation.


 


 




  





E-2-1  











  






 


 


4.           The Transferor does not know and has no reason to know that (i) any of the statements made by the Transferee under the Transfer Affidavit are false or (ii) the Transferee will not honor the restrictions on subsequent transfers by the Transferee under the Transfer Affidavit and Agreement, delivered in connection with this transfer.


 










 



	 	Very truly yours,	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 
	 	(Transferor)	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	
 

	
By: 

	 	 
	 	 	Name:	 	 
	 	 	Title:	 	 
	 	 	 	 	 









 






 


 


 


 





  





E-2-2  











  






 

















 


EXHIBIT F


 


FORM OF TRANSFEROR CERTIFICATE FOR TRANSFERS OF REGULATION S 


CERTIFICATES


 


Morgan Stanley Capital I Inc.


Commercial Mortgage Pass-Through Certificates,


Series 20__-__, Class     (the “Certificates”)


 



	TO: 	Morgan Guaranty Trust Company 

of New York, Brussels Office


Euroclear Operation Center


or


Clearstream Banking, société anonyme







 


This is to certify that as of the date hereof, and except as set forth below, the above-captioned Certificates held by you or on your behalf for our account are beneficially owned by (a) non-U.S person(s) or (b) U.S. person(s) who purchased the Certificates in transactions which did not require registration under the United States Securities Act of 1933, as amended (the “Securities Act”).  As used in this paragraph, the term “U.S. person” has the meaning given to it by Regulation S under the Securities Act.  To the extent that we hold an interest in any of the Certificates on behalf of person(s) other than ourselves, we have received certifications from such person(s) substantially identical to the certifications set forth herein.


 


We undertake to advise you promptly by tested telex on or prior to the date on which you intend to submit your certification relating to the Certificates held by you or on your behalf for our account in accordance with your operating procedures if any applicable statement herein is not correct on such date, and in the absence of any such notification it may be assumed that this certification applies as of such date.


 


This certification excepts and does not relate to $__________ of such beneficial interest in the above Certificates in respect of which we are not able to certify and as to which we understand the exercise of any rights to payments thereon and the exchange for definitive Certificates or for an interest in definitive Certificates in global form cannot be made until we do so certify.


 


 


 




  





F-1  











  






 


We understand that this certification is required in connection with certain securities laws of the United States. In connection therewith, if administrative or legal proceedings are commenced or threatened in connection with which this certification is or would be relevant, we irrevocably authorize you to produce this certification to any interested party in such proceedings.


 


Dated: __________, 20[__]


 


 



	 	By:	 	 
	 	 	
As, or as agent for, the beneficial owner(s) 


of the Certificates to which this certificate relates.

	 
	 	 	 	 





 


 


 




  





F-2  











  






EXHIBIT G


 


FORM OF EXCHANGE CERTIFICATION


 


__________ __, 200_


 



	
TO: 

	
The Depository Trust Company







 


CLEARSTREAM BANK, S. A. or


Morgan Guaranty Trust Company


of New York, Brussels Office


Euroclear Operation Center


 


[Name of Master Servicer], as Master Servicer


 


[Name of Special Servicer], as Special Servicer


 


[Name of Trustee/Paying Agent/Certfiicate Registrar], as Trustee, Paying Agent and Certificate Registrar


 


This is to notify you as to the transfer of the beneficial interest in $_______________ of Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 20__-__, Class __(the “Certificates”).


 


The undersigned is the owner of a beneficial interest in the Class __ [Rule 144A-IAI Global Certificate] [Regulation S Global Certificate] and requests that on [INSERT DATE], (i) [Euroclear] [CLEARSTREAM] [DTC] debit account #__________, with respect to $__________ principal denomination of the Class __ [Rule 144A-IAI Global Certificate] [Regulation S Global Certificate] and (ii) [DTC] [Euroclear] [CLEARSTREAM] credit the beneficial interest of the below-named purchaser, account #__________, in the Class __ [Rule 144A-IAI Global Certificate] [Regulation S Global Certificate] in the same principal denomination as follows:


 


Name:


 


Address:


 


Taxpayer ID No.:


 


The undersigned hereby represents that this transfer is being made in accordance with an exemption from the provisions of Section 5 of the United States Securities Act of 1933, as amended (the “Securities Act”), which representation is based upon the reasonable belief that the purchaser is [not a U.S. Person as defined in Regulation S under the Securities Act][a “qualified institutional buyer,” as defined in Rule 144A under the Securities Act, and that such purchaser has acquired the Certificates in a transaction effected in accordance with the exemption from the registration requirements of the Securities Act provided by Rule 144A and, if the purchaser has purchased the Certificates for one or more accounts for which it is acting as fiduciary or agent, each such account is a qualified institutional buyer or an institutional “accredited investor” within the meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D of the 1933 Act][an institutional “accredited investor” within the meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D of the


 




  





G-1  











  






 



 


1933 Act and in accordance with any applicable securities laws of any state of the United States and, if the purchaser has purchased the Certificates for one or more accounts for which it is acting as fiduciary or agent, each such account is a qualified institutional buyer or an institutional “accredited investor” within the meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D of the 1933 Act] and that the purchaser is acquiring beneficial interests in the applicable Certificate1 for its own account or for one or more institutional accounts for which it is acting as fiduciary or agent in a minimum amount equivalent to not less than U.S.[$25,000] [$100,000] and integral multiples of U.S. $1 in excess thereof for each such account.


 


 


 




	 	
Very truly yours,

	 
	 	 	 
	 	
[NAME OF HOLDER OF CERTIFICATE]

	 
	 	 	 
	 	 	 	 
	
 

	
By: 

	 	 
	 	 	
[Name], [Chief Financial

	 
	 	 	
or other Executive Officer]

	 
	 	 	 	 







 


 


 


 


 


 


 


 


 




 


 


_____________________________


 



1 [NOTE: INFORMATION PROVIDED ABOVE WITH RESPECT TO PURCHASER AND THE FOREGOING REPRESENTATION MUST BE PROVIDED TO THE CERTIFICATE REGISTRAR UPON ANY TRANSFER OF CERTIFICATES IF THE CERTIFICATES ARE NO LONGER HELD IN GLOBAL FORM.]




 


 


 




  





G-2  











  






 


EXHIBIT H


 


FORM OF EUROCLEAR OR CLEARSTREAM CERTIFICATE


 


Morgan Stanley Capital I Inc.


Commercial Mortgage Pass-Through Certificates,


Series 20__-__, Class      (the “Certificates”)








 



	
TO:

	
[Name of Certificate Registrar], as Certificate Registrar








	
  

	
Morgan Stanley Capital I Inc., as depositor, Commercial Mortgage Pass-


ThroughCertificates, Series 20__-__









 


           


This is to certify that, based solely on certifications we have received in writing, by tested telex or by electronic transmission from member organizations appearing in our records as persons being entitled to a portion of the principal amount of the Certificates set forth below (our “Member Organizations”) substantially to the effect set forth in the Pooling and Servicing Agreement dated as of ______, 20__ (the “Pooling and Servicing Agreement”) among you, Morgan Stanley Capital I Inc., [Name of Master Servicer], [Name of Special Servicer], and [Name of Trustee], U.S. $__________ principal amount of the above-captioned Certificates held by us or on our behalf are beneficially owned by (a) non-U.S. person(s) or (b) U.S. person(s) who purchased the Certificates in transactions that did not require registration under the United States Securities Act of 1933, as amended (the “Securities Act”).  As used in this paragraph, the term “U.S. person” has the meaning given to it by Regulation S under the Securities Act.


 


We further certify that as of the date hereof we have not received any notification from any of our Member Organizations to the effect that the statements made by such Member Organizations with respect to any interest in the Certificates identified above are no longer true and cannot be relied upon as of the date hereof.


 


[On Release Date: We hereby acknowledge that no portion of the Class __ Regulation S Temporary Global Certificate shall be exchanged for an interest in the Class __ Regulation S Permanent Global Certificate (as each such term is defined in the Pooling and Servicing Agreement) with respect to the portion thereof for which we have not received the applicable certifications from our Member Organizations.]


 


[Upon any payments under the Regulation S Temporary Global Certificate: We hereby agree to hold (and return to the Trustee upon request) any payments received by us on the Class __ Regulation S Temporary Global Certificate (as defined in the Pooling and Servicing Agreement) with respect to the portion thereof for which we have not received the applicable certifications from our Member Organizations.]


 


We understand that this certification is required in connection with certain securities laws of the United States.  In connection therewith, if administrative or legal proceedings are commenced or threatened in connection with which this certification is or would be relevant, we irrevocably authorize you to produce this certification to any interested party in such proceedings.


 


 




  





H-1  











  






 


 


Dated:


 


 



	 	 	
[MORGAN GUARANTY TRUST COMPANY 


OF NEW YORK, Brussels office,


as operator of the Euroclear System]


 


or  


 


[CLEARSTREAM BANK, S.A.]


	 	 	 	 
	 	 	 	 
	 	 	By:	 





 


 


 


 




  





H-2  











  






 


EXHIBIT  I


 


INVESTOR CERTIFICATION








 



	 	 	Date:





 









 


Name and address of Certificate Registrar







Morgan Stanley Capital I Inc., as depositor, Commercial Mortgage Pass-ThroughCertificates, Series 20__-__







In accordance with the Pooling and Servicing Agreement, dated as of ______, 20__ (the “Agreement”), by and among Morgan Stanley Capital I Inc., as Depositor, [Name of Master Servicer, as Master Servicer, [Name of Special Servicer], as Special Servicer, and [Name of Trustee/Paying Agent/Certificate Registrar], as Trustee, Paying Agent and Certificate Registrar (the “Paying Agent”), with respect to the above referenced certificates (the “Certificates”), the undersigned hereby certifies and agrees as follows:








	
1.

	
The undersigned is a beneficial owner or prospective purchaser of the Class ___ Certificates.













	
2.

	
The undersigned is requesting access to the Paying Agent’s internet website containing certain information (the “Information”) and/or is requesting the information identified on the schedule attached hereto (also, the “information”) pursuant to the provisions of the Agreement.













	
3.

	
In consideration of the Paying Agent’s disclosure to the undersigned of the Information, or access thereto, the undersigned will keep the Information confidential (except from such outside persons as are assisting it in making an evaluation in connection with purchasing the related Certificates, from its accountants and attorneys, and otherwise from such governmental or banking authorities or agencies to which the undersigned is subject), and such Information, will not, without the prior written consent of the Paying Agent, be otherwise disclosed by the undersigned or by its officers, directors, partners, employees, agents or representatives (collectively, the “Representative”) in any manner whatsoever, in whole or in part.













	
4.

	
The undersigned will not use or disclose the Information in any manner which could result in a violation of any provision of the Securities Act of 1933, as amended (the “Securities Act”), or the Securities Exchange Act of 1934, as amended, or would require registration of any Certificate pursuant to Section 5 of the Securities Act.













	
5.

	
The undersigned shall be fully liable for any breach of this agreement by itself or any of its Representatives and shall indemnify the Depositor, the Paying Agent and the Trust







 


 




  





I-1  











  







 


 Fund for any loss, liability or expense incurred thereby with respect to any such breach by the undersigned or any its Representative.


 





	
6.

	
Capitalized terms used but not defined herein shall have the respective meanings assigned thereto in the Agreement.












IN WITNESS WHEREOF, the undersigned has caused its name to be signed hereto by its duly authorized officer, as of the day and year written above.


 







 



	 	 	 	 
	 	 	Beneficial Owner or Prospective Purchaser	 



 



	 	By:	 	 
	 	 	 	 








	 	Title:	 	 
	 	 	 	 
	 	Company:	 	 
	 	 	 	 
	 	Phone:	 	 





 


 


 




  





I-2  











  






 







 


EXHIBIT J


 


FORM OF


NOTICE AND CERTIFICATION


REGARDING DEFEASANCE OF MORTGAGE LOAN


 


For loans having balance of (a) $20,000,000 or less, and (b) less than or equal to 5% of 


Aggregate Certificate Balance, whichever is less


 



	 To: 	
[Address]


Attn:

	 	 
	 	 	 	 
	 From:	
_____________________________________, in its capacity as Master Servicer (the “Master Servicer”) under the Pooling and Servicing Agreement dated as of ______, 20__ (the “Pooling and Servicing Agreement”), among the Servicer, [Name of Trustee], as Trustee, and others.

	 	 





 


Date:           _________, 20___


 



	 	
Re:

	
Morgan Stanley Capital I Inc., Commercial Mortgage








	 	Pass-Through Certificates, Series 20__-__                 





 


Mortgage Loan (the “Mortgage Loan”) identified by loan number _____ on the Mortgage Loan Schedule attached to the Pooling and Servicing Agreement and heretofore secured by the Mortgaged Properties identified on the Mortgage Loan Schedule by the following names:____________________


 


Reference is made to the Pooling and Servicing Agreement described above.  Capitalized terms used but not defined herein have the meanings assigned to such terms in the Pooling and Servicing Agreement


 


As Master Servicer under the Pooling and Servicing Agreement, we hereby:


 



	
  

	
1.

	
NOTIFY YOU THAT THE MORTGAGOR HAS CONSUMMATED A DEFEASANCE OF THE MORTGAGE LOAN PURSUANT TO THE TERMS OF THE MORTGAGE LOAN, OF THE TYPE CHECKED BELOW:







 



	
  

	
____

	
a full defeasance of the payments scheduled to be due in respect of the entire Principal Balance of the Mortgage Loan; or







 



	
  

	
____

	
a partial defeasance of the payments scheduled to be due in respect of a portion of the Principal Balance of the Mortgage Loan that represents ___% of the entire Principal Balance of the Mortgage Loan and, under the Mortgage, has an allocated loan amount of $____________ or _______% of the entire Principal Balance;







 


 




  





J-1  











  






 


 



	
  

	
2.

	
CERTIFY THAT EACH OF THE FOLLOWING IS TRUE, SUBJECT TO THOSE EXCEPTIONS SET FORTH WITH EXPLANATORY NOTES ON EXHIBIT A HERETO, WHICH EXCEPTIONS THE SERVICER HAS DETERMINED, CONSISTENT WITH THE SERVICING STANDARD, WILL HAVE NO MATERIAL ADVERSE EFFECT ON THE MORTGAGE LOAN OR THE DEFEASANCE TRANSACTION:







 



	
  

	
A.

	
THE MORTGAGE LOAN DOCUMENTS PERMIT THE DEFEASANCE, AND THE TERMS AND CONDITIONS FOR DEFEASANCE SPECIFIED THEREIN WERE SATISFIED IN ALL MATERIAL RESPECTS IN COMPLETING THE DEFEASANCE.







 



	
  

	
B.

	
THE DEFEASANCE WAS CONSUMMATED ON __________, 20__.







 



	
  

	
C.

	
THE DEFEASANCE COLLATERAL CONSISTS OF SECURITIES THAT (I) CONSTITUTE “GOVERNMENT SECURITIES” AS DEFINED IN SECTION 2(A)(16) OF THE INVESTMENT COMPANY ACT OF 1940 AS AMENDED (15 U.S.C. 80A-1), (II) ARE LISTED AS “QUALIFIED INVESTMENTS FOR ‘AAA’ FINANCINGS” UNDER PARAGRAPHS 1, 2 OR 3 OF “CASH FLOW APPROACH” IN STANDARD & POOR’S PUBLIC FINANCE CRITERIA 2000, AS AMENDED TO THE DATE OF THE DEFEASANCE, (III) ARE RATED ‘AAA’ BY STANDARD & POOR’S, (IV) IF THEY INCLUDE A PRINCIPAL OBLIGATION, THE PRINCIPAL DUE AT MATURITY CANNOT VARY OR CHANGE, AND (V) ARE NOT SUBJECT TO PREPAYMENT, CALL OR EARLY REDEMPTION.  SUCH SECURITIES HAVE THE CHARACTERISTICS SET FORTH BELOW:







 


CUSIP RATE MAT PAY DATES ISSUED


 



	
  

	
D.

	
THE SERVICER RECEIVED AN OPINION OF COUNSEL (FROM COUNSEL APPROVED BY SERVICER IN ACCORDANCE WITH THE SERVICING STANDARD) THAT THE DEFEASANCE WILL NOT RESULT IN AN ADVERSE REMIC EVENT.







 



	
  

	
E.

	
THE SERVICER DETERMINED THAT THE DEFEASANCE COLLATERAL WILL BE OWNED BY AN ENTITY (THE “DEFEASANCE OBLIGOR”) AS TO WHICH ONE OF THE STATEMENTS CHECKED BELOW IS TRUE:







 


 


 




  





J-2  











  






 



	
  

	
____

	
the related Mortgagor was a Single-Purpose Entity (as defined in Standard & Poor’s Structured Finance Ratings Real Estate Finance Criteria, as amended to the date of the defeasance (the “S&P Criteria”)) as of the date of the defeasance, and after the defeasance owns no assets other than the defeasance collateral and real property securing Mortgage Loans included in the pool.







 



	
  

	
____

	
the related Mortgagor designated a Single-Purpose Entity (as defined in the S&P Criteria) to own the defeasance collateral; or







 



	
  

	
____

	
the Servicer designated a Single-Purpose Entity (as defined in the S&P Criteria) established for the benefit of the Trust to own the defeasance collateral.







 



	
  

	
F.

	
THE SERVICER RECEIVED A BROKER OR SIMILAR CONFIRMATION OF THE CREDIT, OR THE ACCOUNTANT’S LETTER DESCRIBED BELOW CONTAINED STATEMENTS THAT IT REVIEWED A BROKER OR SIMILAR CONFIRMATION OF THE CREDIT, OF THE DEFEASANCE COLLATERAL TO AN ELIGIBLE ACCOUNT (AS DEFINED IN THE S&P CRITERIA) IN THE NAME OF THE DEFEASANCE OBLIGOR, WHICH ACCOUNT IS MAINTAINED AS A SECURITIES ACCOUNT BY THE TRUSTEE ACTING AS A SECURITIES INTERMEDIARY.







 



	
  

	
G.

	
AS SECURITIES INTERMEDIARY, TRUSTEE IS OBLIGATED TO MAKE THE SCHEDULED PAYMENTS ON THE MORTGAGE LOAN FROM THE PROCEEDS OF THE DEFEASANCE COLLATERAL DIRECTLY TO THE SERVICER’S CERTIFICATE ACCOUNT IN THE AMOUNTS AND ON THE DATES SPECIFIED IN THE MORTGAGE LOAN DOCUMENTS OR, IN A PARTIAL DEFEASANCE, THE PORTION OF SUCH SCHEDULED PAYMENTS ATTRIBUTED TO THE ALLOCATED LOAN AMOUNT FOR THE REAL PROPERTY DEFEASED, INCREASED BY ANY DEFEASANCE PREMIUM SPECIFIED IN THE MORTGAGE LOAN DOCUMENTS (THE “SCHEDULED PAYMENTS”).







 



	
  

	
H.

	
THE SERVICER RECEIVED FROM THE MORTGAGOR WRITTEN CONFIRMATION FROM A FIRM OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS, WHO WERE APPROVED BY SERVICER IN ACCORDANCE WITH THE SERVICING STANDARD, STATING THAT (I) REVENUES FROM PRINCIPAL AND INTEREST PAYMENTS MADE ON THE DEFEASANCE COLLATERAL (WITHOUT TAKING INTO ACCOUNT ANY EARNINGS ON 







 



 


 




  





J-3  











  






 



	
  

	
 

	
REINVESTMENT OF SUCH REVENUES) WILL BE SUFFICIENT TO TIMELY PAY EACH OF THE SCHEDULED PAYMENTS AFTER THE DEFEASANCE INCLUDING THE PAYMENT IN FULL OF THE MORTGAGE LOAN (OR THE ALLOCATED PORTION THEREOF IN CONNECTION WITH A PARTIAL DEFEASANCE) ON ITS MATURITY DATE (OR, IN THE CASE OF AN ARD LOAN, ON ITS ANTICIPATED REPAYMENT DATE), (II) THE REVENUES RECEIVED IN ANY MONTH FROM THE DEFEASANCE COLLATERAL WILL BE APPLIED TO MAKE SCHEDULED PAYMENTS WITHIN FOUR (4) MONTHS AFTER THE DATE OF RECEIPT, AND (III) INTEREST INCOME FROM THE DEFEASANCE COLLATERAL TO THE DEFEASANCE OBLIGOR IN ANY CALENDAR OR FISCAL YEAR WILL NOT EXCEED SUCH DEFEASANCE OBLIGOR’S INTEREST EXPENSE FOR THE MORTGAGE LOAN (OR THE ALLOCATED PORTION THEREOF IN A PARTIAL DEFEASANCE) FOR SUCH YEAR.









 



	
  

	
I.

	
THE SERVICER RECEIVED OPINIONS FROM COUNSEL, WHO WERE APPROVED BY SERVICER IN ACCORDANCE WITH THE SERVICING STANDARD, THAT (I) THE AGREEMENTS EXECUTED BY THE MORTGAGOR AND/OR THE DEFEASANCE OBLIGOR IN CONNECTION WITH THE DEFEASANCE ARE ENFORCEABLE AGAINST THEM IN ACCORDANCE WITH THEIR TERMS, AND (II) THE TRUSTEE WILL HAVE A PERFECTED, FIRST PRIORITY SECURITY INTEREST IN THE DEFEASANCE COLLATERAL DESCRIBED ABOVE.







 



	
  

	
J.

	
THE AGREEMENTS EXECUTED IN CONNECTION WITH THE DEFEASANCE (I) PERMIT REINVESTMENT OF PROCEEDS OF THE DEFEASANCE COLLATERAL ONLY IN PERMITTED INVESTMENTS (AS DEFINED IN THE S&P CRITERIA), (II) PERMIT RELEASE OF SURPLUS DEFEASANCE COLLATERAL AND EARNINGS ON REINVESTMENT TO THE DEFEASANCE OBLIGOR OR THE MORTGAGOR ONLY AFTER THE MORTGAGE LOAN HAS BEEN PAID IN FULL, IF ANY SUCH RELEASE IS PERMITTED, (III) PROHIBIT ANY SUBORDINATE LIENS AGAINST THE DEFEASANCE COLLATERAL, AND (IV) PROVIDE FOR PAYMENT FROM SOURCES OTHER THAN THE DEFEASANCE COLLATERAL OR OTHER ASSETS OF THE DEFEASANCE OBLIGOR OF ALL FEES AND EXPENSES OF THE SECURITIES INTERMEDIARY FOR ADMINISTERING THE DEFEASANCE AND THE SECURITIES ACCOUNT AND ALL FEES AND EXPENSES 







 


 


 




  





J-4  











  






 


 



 



	
  

	
 

	
OF MAINTAINING THE EXISTENCE OF THE DEFEASANCE OBLIGOR.







 





	
  

	
K.

	
THE ENTIRE PRINCIPAL BALANCE OF THE MORTGAGE LOAN AS OF THE DATE OF DEFEASANCE WAS $___________ [$20,000,000 OR LESS OR LESS THAN FIVE PERCENT OF POOL BALANCE, WHICHEVER IS LESS] WHICH IS LESS THAN 5% OF THE AGGREGATE CERTIFICATE BALANCE OF THE CERTIFICATES AS OF THE DATE OF THE MOST RECENT PAYING AGENT’S MONTHLY CERTIFICATEHOLDER REPORT RECEIVED BY US (THE “CURRENT REPORT”).







 



	
  

	
L.

	
THE DEFEASANCE DESCRIBED HEREIN, TOGETHER WITH ALL PRIOR AND SIMULTANEOUS DEFEASANCES OF MORTGAGE LOANS, BRINGS THE TOTAL OF ALL FULLY AND PARTIALLY DEFEASED MORTGAGE LOANS TO $__________________, WHICH IS _____% OF THE AGGREGATE CERTIFICATE BALANCE OF THE CERTIFICATES AS OF THE DATE OF THE CURRENT REPORT.







 



	
  

	
3.

	
CERTIFY THAT, IN ADDITION TO THE FOREGOING, SERVICER HAS IMPOSED SUCH ADDITIONAL CONDITIONS TO THE DEFEASANCE, SUBJECT TO THE LIMITATIONS IMPOSED BY THE MORTGAGE LOAN DOCUMENTS, AS ARE CONSISTENT WITH THE SERVICING STANDARD.







 



	
  

	
4.

	
CERTIFY THAT EXHIBIT B HERETO IS A LIST OF THE MATERIAL AGREEMENTS, INSTRUMENTS, ORGANIZATIONAL DOCUMENTS FOR THE DEFEASANCE OBLIGOR, AND OPINIONS OF COUNSEL AND INDEPENDENT ACCOUNTANTS EXECUTED AND DELIVERED IN CONNECTION WITH THE DEFEASANCE DESCRIBED ABOVE AND THAT ORIGINALS OR COPIES OF SUCH AGREEMENTS, INSTRUMENTS AND OPINIONS HAVE BEEN TRANSMITTED TO THE TRUSTEE FOR PLACEMENT IN THE RELATED MORTGAGE FILE OR, TO THE EXTENT NOT REQUIRED TO BE PART OF THE RELATED MORTGAGE FILE, ARE IN THE POSSESSION OF THE SERVICER AS PART OF THE SERVICER’S MORTGAGE FILE.







 



	
  

	
5.

	
CERTIFY AND CONFIRM THAT THE DETERMINATIONS AND CERTIFICATIONS DESCRIBED ABOVE WERE RENDERED IN ACCORDANCE WITH THE SERVICING STANDARD SET FORTH IN, AND THE OTHER APPLICABLE TERMS AND CONDITIONS OF, THE POOLING AND SERVICING AGREEMENT.







 


 


 




  





J-5  











  






 



	
  

	
6.

	
CERTIFY THAT THE INDIVIDUAL UNDER WHOSE HAND THE SERVICER HAS CAUSED THIS NOTICE AND CERTIFICATION TO BE EXECUTED DID CONSTITUTE A SERVICING OFFICER AS OF THE DATE OF THE DEFEASANCE DESCRIBED ABOVE.







 



	
  

	
7.

	
AGREE TO PROVIDE COPIES OF ALL ITEMS LISTED IN EXHIBIT B TO YOU UPON REQUEST.







 


IN WITNESS WHEREOF, the Master Servicer has caused this Notice and Certification to be executed as of the date captioned above.


 


 




	 	
 

	 
	 	
MASTER

	 	 
	 	SERVICER:	 	 
	 	By:     	 	 
	 	 	
Name:


Title:

	 







 


 


 


 


 


 


 


 


 


 


 


 




  





J-6  











  













 


EXHIBIT K







FORM OF EXCHANGE LETTER


(Depositable Certificates for Exchangeable Certificates)


 


 



	[___] 

[___]


[___]

	 	 	 ___, 20__
	Attention: [___]	   	 	 





 




	
  

	
Re:

	
[___],








	
  

	
Commercial Mortgage Pass-Through Certificates, Series 20[_]-[_]







 




Ladies and Gentlemen:


 


Pursuant to the terms of that certain Pooling and Servicing Agreement, dated as of [___], 20[_] (the “Pooling and Servicing Agreement”), between Morgan Stanley Capital I Inc., as Depositor, [___], as Master Servicer, [___], as Special Servicer, [___], as Certificate Administrator, [___], as Trustee and [___], as Trust Advisor, we hereby present and surrender the Depositable Certificates specified on Schedule I attached hereto (the “Depositable Certificates”) and transfer, assign, set over and otherwise convey to the Certificate Administrator, all of our right, title and interest in and to the Depositable Certificates, including all payments of interest thereon received after [date], in exchange for the Exchangeable Certificates specified on Schedule I attached hereto (the “Exchangeable Certificates”).


 


We agree that upon such exchange the portions of the Depositable Certificates designated for exchange shall be deemed cancelled and replaced by the Exchangeable Certificates issued in exchange therefor. We confirm that we have paid a fee to the Certificate Administrator in connection with such exchange equal to $5,000.


 


 


 


 


 


 


 


 


 


 


 


 


 


 




  





K-1  











  






 


 


 


 


 


 


 



	 	Sincerely,	 
	 	
 


By:

	 	 
	 	 	
Name:


Title:

	 





 


 


 


 


 


 


 


 


 


 


 




  





K-2  











  








 


Acknowledged by:


 


[_____],


as Certificate Administrator


 


By:  ___________________________________                                                              


Name:


Title:


 


 




  





K-3  











  






 


EXHIBIT L







FORM OF EXCHANGE LETTER


(Exchangeable Certificates for Depositable Certificates)


 


___, 20__


 


[___]


[___]


[___]


Attention: [___]


 


Re:           [___],


Commercial Mortgage Pass-Through Certificates, Series 20[_]-[_]


 


Ladies and Gentlemen:


 


Ladies and Gentlemen:


 


Pursuant to the terms of that certain Pooling and Servicing Agreement, dated as of [___], 20[_] (the “Pooling and Servicing Agreement”), between Morgan Stanley Capital I Inc., as Depositor, [___], as Master Servicer, [___], as Special Servicer, [___], as Certificate Administrator, [___], as Trustee and [___], as Trust Advisor, we hereby present and surrender the Exchangeable Certificates specified on Schedule I attached hereto (the “Exchangeable Certificates”) and transfer, assign, set over and otherwise convey to the Securities Administrator, all of our right, title and interest in and to the Exchangeable Certificates, including all payments of interest thereon received after [date], in exchange for the Depositable Certificates specified on Schedule I attached hereto (the “Depositable Certificates”).


 


We agree that upon such exchange the portions of the Exchangeable Certificates designated for exchange shall be deemed cancelled and replaced by the Depositable Certificates issued in exchange therefor. We confirm that we have paid a fee to the Certificate Administrator in connection with such exchange equal to $5,000.


 


 


 




  





L-1











  






 




	 	Sincerely,	 
	 	 	 
	 	 	 
	 	 	 
	
 

	
By: 

	 	 
	 	 	Name:	 
	 	 	Title :	 
	 	 	 	 







 


 


 


 


 




  





L-2











  






Acknowledged by:


 


[____],


as Certificate Administrator


                                                            



 



	By:	 	 
	Name:	 	 
	Title:	 	 





 




 


 


 


 




 




  





L-3











  






 


SCHEDULE I


 


LOAN SCHEDULE


 







 


 


 




 




  





I-1











  






 


SCHEDULE II


 


RATES USED IN DETERMINATION OF CLASS X-1 AND CLASS X-2 

PASS-THROUGH RATES







 


 


 


 


 


 


 


 


 


 


 


 


 


 




  





II-1











  






SCHEDULE III




 


CLASS A-AB PLANNED PRINCIPAL BALANCE


 


 


 


 


 


 


 


 


 




 




  





III-1











  






SCHEDULE IV


 


SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE


 


The assessment of compliance to be delivered shall address, at a minimum, the criteria identified below as “Relevant Servicing Criteria”:


 



	
Relevant Servicing Criteria

	
Applicable 

Party(ies)


	
Reference

	
Criteria

	  
	  	
General Servicing Considerations

	  
	  	  	  
	
1122(d)(1)(i)

	
Policies and procedures are instituted to monitor any performance or other triggers and events of default in accordance with the transaction agreements.

	  
	
1122(d)(1)(ii)

	
If any material servicing activities are outsourced to third parties, policies and procedures are instituted to monitor the third party’s performance and compliance with such servicing activities.

	  
	
1122(d)(1)(iii)

	
Any requirements in the transaction agreements to maintain a back-up servicer for the mortgage loans are maintained.

	  
	
1122(d)(1)(iv)

	
A fidelity bond and errors and omissions policy is in effect on the party participating in the servicing function throughout the reporting period in the amount of coverage required by and otherwise in accordance with the terms of the transaction agreements.

	  
	  	
Cash Collection and Administration

	  
	
1122(d)(2)(i)

	
Payments on mortgage loans are deposited into the appropriate custodial bank accounts and related bank clearing accounts no more than two business days following receipt, or such other number of days specified in the transaction agreements.

	  
	
1122(d)(2)(ii)

	
Disbursements made via wire transfer on behalf of an obligor or to an investor are made only by authorized personnel.

	  
	
1122(d)(2)(iii)

	
Advances of funds or guarantees regarding collections, cash flows or distributions, and any interest or other fees charged for such advances, are made, reviewed and approved as specified in the transaction agreements.

	  
	
1122(d)(2)(iv)

	
The related accounts for the transaction, such as cash reserve accounts or accounts established as a form of overcollateralization, are separately maintained (e.g., with respect to commingling of cash) as set forth in the transaction agreements.

	  
	
1122(d)(2)(v)

	
Each custodial account is maintained at a federally insured depository institution as set forth in the transaction agreements. For purposes of this criterion, “federally insured depository institution” with respect to a foreign financial institution means a foreign financial institution that meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange Act.

	  
	
1122(d)(2)(vi)

	
Unissued checks are safeguarded so as to prevent unauthorized access.

	  
	
1122(d)(2)(vii)

	
Reconciliations are prepared on a monthly basis for all asset-backed securities related bank accounts, including custodial accounts and related bank clearing accounts. These reconciliations are (A) mathematically accurate; (B) prepared within 30 calendar days after the bank statement cutoff date, or such other number of days specified in the transaction agreements; (C) reviewed and 

	  



 


 


 


 


 




  





IV-1











  






 



 



	
Relevant Servicing Criteria

	
Applicable 

Party(ies)


	
Reference

	
Criteria

	  
	  	approved by someone other than the person who prepared the reconciliation; and (D) contain explanations for reconciling items. These reconciling items are resolved within 90 calendar days of their original identification, or such other number of days specified in the transaction agreements.	  







	  	
Investor Remittances and Reporting

	  
	
1122(d)(3)(i)

	
Reports to investors, including those to be filed with the Commission, are maintained in accordance with the transaction agreements and applicable Commission requirements. Specifically, such reports (A) are prepared in accordance with timeframes and other terms set forth in the transaction agreements; (B) provide information calculated in accordance with the terms specified in the transaction agreements; (C) are filed with the Commission as required by its rules and regulations; and (D) agree with investors’ or the trustee’s records as to the total unpaid principal balance and number of mortgage loans serviced by the Servicer.

	  
	
1122(d)(3)(ii)

	
Amounts due to investors are allocated and remitted in accordance with timeframes, distribution priority and other terms set forth in the transaction agreements.

	  
	
1122(d)(3)(iii)

	
Disbursements made to an investor are posted within two business days to the Servicer’s investor records, or such other number of days specified in the transaction agreements.

	  
	
1122(d)(3)(iv)

	
Amounts remitted to investors per the investor reports agree with cancelled checks, or other form of payment, or custodial bank statements.

	  
	  	
Pool Asset Administration

	  
	
1122(d)(4)(i)

	
Collateral or security on mortgage loans is maintained as required by the transaction agreements or related mortgage loan documents.

	  
	
1122(d)(4)(ii)

	
Mortgage loan and related documents are safeguarded as required by the transaction agreements.

	  
	
1122(d)(4)(iii)

	
Any additions, removals or substitutions to the asset pool are made, reviewed and approved in accordance with any conditions or requirements in the transaction agreements.

	  
	
1122(d)(4)(iv)

	
Payments on mortgage loans, including any payoffs, made in accordance with the related mortgage loan documents are posted to the Servicer’s obligor records maintained no more than two business days after receipt, or such other number of days specified in the transaction agreements, and allocated to principal, interest or other items (e.g., escrow) in accordance with the related mortgage loan documents.

	  
	
1122(d)(4)(v)

	
The Servicer’s records regarding the mortgage loans agree with the Servicer’s records with respect to an obligor’s unpaid principal balance.

	  
	
1122(d)(4)(vi)

	
Changes with respect to the terms or status of an obligor’s mortgage loans (e.g., loan modifications or re-agings) are made, reviewed and approved by authorized personnel in accordance with the transaction agreements and related pool asset documents.

	  
	
1122(d)(4)(vii)

	
Loss mitigation or recovery actions (e.g., forbearance plans, modifications and deeds in lieu of foreclosure, foreclosures and repossessions, as applicable) are initiated, conducted and concluded in accordance with the timeframes or other requirements established by the transaction agreements.

	  



 


 


 


 




  





IV-2











  







 



	
Relevant Servicing Criteria

	
Applicable 

Party(ies)


	
Reference

	
Criteria

	  







	
1122(d)(4)(viii)

	
Records documenting collection efforts are maintained during the period a mortgage loan is delinquent in accordance with the transaction agreements. Such records are maintained on at least a monthly basis, or such other period specified in the transaction agreements, and describe the entity’s activities in monitoring delinquent mortgage loans including, for example, phone calls, letters and payment rescheduling plans in cases where delinquency is deemed temporary (e.g., illness or unemployment).

	  
	
1122(d)(4)(ix)

	
Adjustments to interest rates or rates of return for mortgage loans with variable rates are computed based on the related mortgage loan documents.

	  
	
1122(d)(4)(x)

	
Regarding any funds held in trust for an obligor (such as escrow accounts): (A) such funds are analyzed, in accordance with the obligor’s mortgage loan documents, on at least an annual basis, or such other period specified in the transaction agreements; (B) interest on such funds is paid, or credited, to obligors in accordance with applicable mortgage loan documents and state laws; and (C) such funds are returned to the obligor within 30 calendar days of full repayment of the related mortgage loans, or such other number of days specified in the transaction agreements.

	  
	
1122(d)(4)(xi)

	
Payments made on behalf of an obligor (such as tax or insurance payments) are made on or before the related penalty or expiration dates, as indicated on the appropriate bills or notices for such payments, provided that such support has been received by the servicer at least 30 calendar days prior to these dates, or such other number of days specified in the transaction agreements.

	  
	
1122(d)(4)(xii)

	
Any late payment penalties in connection with any payment to be made on behalf of an obligor are paid from the servicer’s funds and not charged to the obligor, unless the late payment was due to the obligor’s error or omission.

	  
	
1122(d)(4)(xiii)

	
Disbursements made on behalf of an obligor are posted within two business days to the obligor’s records maintained by the servicer, or such other number of days specified in the transaction agreements.

	  
	
1122(d)(4)(xiv)

	
Delinquencies, charge-offs and uncollectible accounts are recognized and recorded in accordance with the transaction agreements.

	  
	
1122(d)(4)(xv)

	
Any external enhancement or other support, identified in Item 1114(a)(1) through (3) or Item 1115 of Regulation AB, is maintained as set forth in the transaction agreements.

	  
	  	  	  










































  





IV-3











  






SCHEDULE V







ADDITIONAL FORM 10-D DISCLOSURE







The parties identified in the “Party Responsible” column are obligated pursuant to Section 13.3 of the Pooling and Servicing Agreement to disclose to the Depositor and the Paying Agent any information described in the corresponding Form 10-D Item described in the “Item on Form 10-D” column to the extent such party has knowledge (and in the case of financial statements required to be provided in connection with Item 6 below, possession) of such information (other than information as to itself).








	
Item on Form 10-D

	
Party Responsible


	
Item 1A: Distribution and Pool Performance Information:


· Item 1121(a)(13) of Regulation AB


 

	
· Master Servicer


· Paying Agent/Trustee


	
Item 1B: Distribution and Pool Performance Information:


· Item 1121 (a)(14) of Regulation AB


 

	
· Paying Agent/Trustee


· Depositor


	
Item 2: Legal Proceedings:


· Item 1117 of Regulation AB

	
· Master Servicer (as to itself)


· Special Servicer (as to itself)


· Paying Agent (as to itself)


· Trustee (as to itself)


· Depositor (as to itself)


· Primary Servicer (as to itself)


· Any other Reporting Servicer (as to itself)


· Trustee/Paying Agent/Master Servicer/Depositor/Special Servicer 


as to the Trust


· Each Seller as sponsor (as defined in Regulation AB)


· Originators under Item 1110 of Regulation AB


· Party under Item 1100(d)(1) of Regulation AB


	
Item 3:  Sale of Securities and Use of Proceeds


 

	
· Depositor


	
Item 4:  Defaults Upon Senior Securities


 

	
· Paying Agent


· Trustee


	
Item 5:  Submission of Matters to a Vote of Security Holders


 

	
· Paying Agent


· Trustee


	
Item 6:  Significant Obligors of Pool Assets

	
· Depositor

















 




  





V-1











  






 









	
 

	
· Sponsor


· Mortgage Loan Seller


· Master Servicer


· Primary Servicer (as to loans serviced by it)


	
Item 7:  Significant Enhancement Provider Information


 

	
· Depositor


· Each Seller as sponsor (as defined in Regulation AB)


	
Item 8:  Other Information

	
· Paying Agent


· Any other party responsible for disclosure items on Form 8-K


	
Item 9:  Exhibits

	
· Paying Agent


· Depositor


· Master Servicer


· Special Servicer


· Trustee


· Primary Servicer
















 




  





V-2











  






SCHEDULE VI







ADDITIONAL FORM 10-K DISCLOSURE







The parties identified in the “Party Responsible” column are obligated pursuant to Section 13.4 of the Pooling and Servicing Agreement to disclose to the Depositor and the Paying Agent any information described in the corresponding Form 10-K Item described in the “Item on Form 10-K” column to the extent such party has knowledge (and in the case of financial statements required to be provided in connection with 1112(b) below, possession) of such information (other than information as to itself).








	
Item on Form 10-K

	
Party Responsible


	
Item 1B: Unresolved Staff Comments


 


 

	
· 


	
Item 9B:  Other Information

	
· 


	
Item 15:  Exhibits, Financial Statement Schedules

	
· 


	
Additional Item:


 


Disclosure per Item 1117 of Regulation AB

	
· 


	
Additional Item:


Disclosure per Item 1119 of Regulation AB

	
· 


	
Additional Item:


Disclosure per Item 1112(b) of Regulation AB

	
· 


	
Additional Item:


Disclosure per Items 1114(b)(2) and 1115(b) of Regulation AB

	
· 


	  	  






















  





VI-1











  






SCHEDULE VII







Form 8-K Disclosure Information







The parties identified in the “Party Responsible” column are obligated pursuant to Section 13.6 of the Pooling and Servicing Agreement to report to the Depositor and the Paying Agent the occurrence of any event described in the corresponding Form 8-K Item described in the “Item on Form 8-K” column to the extent such party has knowledge of such information (other than information as to itself).








	
Item on Form 8-K

	
Party Responsible


	
Item 1.01- Entry into a Material Definitive Agreement

	
· 


	
Item 1.02- Termination of a Material Definitive Agreement

	
· 


	
Item 1.03- Bankruptcy or Receivership

	
· 


	
Item 2.04- Triggering Events that Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement

	
· 


	
Item 3.03- Material Modification to Rights of Security Holders

	
· 


	
Item 5.03- Amendments of Articles of Incorporation or Bylaws; Change of Fiscal Year

	
· 


	
Item 6.01- ABS Informational and Computational Material

	
· 


	
Item 6.02- Change of Servicer or Trustee

	
· 


	
Item 6.03- Change in Credit Enhancement or External Support

	
· 


	
Item 6.04- Failure to Make a Required Distribution

	
· 


	
Item 6.05- Securities Act Updating Disclosure

	
· 


	
Item 7.01- Regulation FD Disclosure

	
· 


	
Item 8.01

	
· 


	
Item 9.01

	
· 







 


 


 


 









  





VII-1











  






 


SCHEDULE VIII


 







AVAILABLE EXCHANGES OF DEPOSITABLE CERTIFICATES FOR 

EXCHANGEABLE CERTIFICATES(1)(2)














	
Classes of Exchangeable 


Certificates

	 	
Related Classes of Depositable Certificates


	
Class or


Classes of 


Exchangeable 


Certificates

	 	
Original 


Certificate 


Balance or 


Notional 


Amount

	 	
Class or 


Classes of 


Depositable 


Certificates

	 	
Original 


Certificate 


Balance or 


Notional 


Amount

	 	
Pass-Through Rate(3)


	
Recombination 1

	 	  	 	  	 	  
	
Class 2-A-3

	 	
  $50,000,000

	 	
Class 2-A-1

	 	
 $50,000,000

	 	
7.00000%


	  	 	  	 	
Class 2-A-2(4)

	 	
 $50,000,000

	 	
0.50000%


	  	 	  	 	  	 	  	 	  
	
Recombination 2

	 	  	 	  	 	  
	
Class 3-A-4

	 	
$100,000,000

	 	
Class 3-A-1

	 	
$100,000,000

	 	
7.00000%


	  	 	  	 	
Class 3-A-2(4)

	 	
$100,000,000

	 	
0.25000%


	  	 	  	 	
Class 3-A-3(4)

	 	
$100,000,000

	 	
0.25000%


	
Recombination 3

	 	  	 	  	 	  	 	  
	
Class 4-A-5

	 	
$200,000,000

	 	
Class 4-A-1

	 	
$100,000,000

	 	
7.00000%


	  	 	  	 	
Class 4-A-2

	 	
$100,000,000

	 	
7.00000%


	  	 	  	 	
Class 4-A-3(4)

	 	
$100,000,000

	 	
0.25000%


	  	 	  	 	
Class 4-A-4(4)

	 	
$100,000,000

	 	
0.25000%














______________


 



	(1)	
Depositable Certificates and Exchangeable Certificates may be exchanged only in the proportions shown in this Schedule XVI.  In any exchange, the relative proportions of the Depositable Certificates to be delivered (or, if applicable, received) in such exchange will equal the proportions reflected by the outstanding Class Principal Balances or Notional Amounts of the related Depositable Certificates at the time of exchange.


	(2)	
If, as a result of a proposed exchange, a Certificateholder would hold a Depositable Certificate or Exchangeable Certificate of a Class in an amount less than the applicable minimum denomination for that class, the Certificateholder will be unable to effect the proposed exchange.


	(3)	For a description of the Pass-Through Rates for these Classes of Certificates please see the [Preliminary Statement] of this Agreement.
	(4)	The Class 2-A-2, Class 3-A-2, Class 3-A-3, Class 4-A-3 and Class 4-A-4 Certificates are interest only Notional Amount Certificates.





 


 


 


 


 


 


 


 VIII-1