X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.,
Depositor
WACHOVIA BANK, NATIONAL ASSOCIATION,
Servicer
ARCAP SPECIAL SERVICING, INC.,
Special Servicer
XXXXX FARGO BANK MINNESOTA, N.A.,
Trustee
and
LASALLE BANK NATIONAL ASSOCIATION,
Paying Agent
POOLING AND SERVICING AGREEMENT
Dated as of
December 1, 2002
$1,051,299,658
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates
Series 2002-C2
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms.....................................................
Section 1.02 Certain Calculations..............................................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans......................................
Section 2.02 Acceptance by Trustee.............................................
Section 2.03 Representations, Warranties and Covenants of the
Depositor; Mortgage Loan Sellers' Repurchase or
Substitution of Mortgage Loans for Defects in Mortgage
Files and Breaches of Representations and Warranties.............
Section 2.04 Issuance of Simon Loan REMIC Regular Interests and the
Simon Loan REMIC Residual Interest...............................
Section 2.05 Issuance of Walgreens Loan REMIC Regular Interests and the
Walgreens Loan REMIC Residual Interest...........................
Section 2.06 Execution of Certificates; Issuance of Uncertificated
Lower-Tier Interests.............................................
Section 2.07 Grantor Trust Designations........................................
ARTICLE III
ADMINISTRATION AND
SERVICING OF THE TRUST FUND
Section 3.01 Servicer to Act as Servicer; Special Servicer to Act as
Special Servicer; Administration of the Mortgage Loans...........
Section 3.02 Collection of Mortgage Loan Payments..............................
Section 3.03 Collection of Taxes, Assessments and Similar Items;
Servicing Accounts...............................................
Section 3.04 The Certificate Account, the Simon Collection Account, the
Walgreens Collection Account, the Simon Loan REMIC
Distribution Account, the Walgreens Loan REMIC
Distribution Account, the Lower-Tier Distribution
Account, the Upper-Tier Distribution Accounts, the
Gain-on-Sale Reserve Account, the Excess Interest
Distribution Account and the Companion Distribution
Account..........................................................
Section 3.05 Permitted Withdrawals from the Certificate Account, the
Simon Collection Account, the Walgreens Collection
Account, the Distribution Accounts and the Companion
Distribution Account.............................................
Section 3.06 Investment of Funds in the Certificate Account and the
REO Account......................................................
Section 3.07 Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage............................................
Section 3.08 Enforcement of Due-On-Sale Clauses; Assumption Agreements.........
Section 3.09 Realization Upon Defaulted Mortgage Loans.........................
Section 3.10 Trustee to Cooperate; Release of Mortgage Files...................
Section 3.11 Servicing Compensation............................................
Section 3.12 Inspections; Collection of Financial Statements...................
Section 3.13 Annual Statement as to Compliance.................................
Section 3.14 Reports by Independent Public Accountants.........................
Section 3.15 Access to Certain Information.....................................
Section 3.16 Title to REO Property; REO Account................................
Section 3.17 Management of REO Property........................................
Section 3.18 Sale of Defaulted Mortgage Loans and REO Properties...............
Section 3.19 Additional Obligations of Servicer and Special Servicer...........
Section 3.20 Modifications, Waivers, Amendments and Consents...................
Section 3.21 Transfer of Servicing Between Servicer and Special
Servicer; Recordkeeping; Asset Status Report.....................
Section 3.22 Sub-Servicing Agreements..........................................
Section 3.23 Representations, Warranties and Covenants of the Servicer.........
Section 3.24 Representations, Warranties and Covenants of the Special
Servicer.........................................................
Section 3.25 Interest Reserve Account..........................................
Section 3.26 Excess Interest Distribution Account..............................
Section 3.27 Directing Certificateholder Contact with Servicer.................
Section 3.28 Controlling Class Certificateholders and Directing
Certificateholder; Certain Rights and Powers of Directing
Certificateholder................................................
Section 3.29 Provisions Relating to Servicing of the 00/000 Xxxxxxx
Xxxxxx Mortgage Loan.............................................
Section 3.30 Companion Paying Agent............................................
Section 3.31 Companion Register................................................
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
Section 4.01 Distributions.....................................................
Section 4.02 Statements to Certificateholders; CMSA Investor Reporting
Package (IRP)s...................................................
Section 4.03 P&I Advances......................................................
Section 4.04 Allocation of Collateral Support Deficit..........................
Section 4.05 Certificate Deferred Interest.....................................
Section 4.06 Grantor Trust Reporting...........................................
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates..................................................
Section 5.02 Registration of Transfer and Exchange of Certificates.............
Section 5.03 Book-Entry Certificates...........................................
Section 5.04 Mutilated, Destroyed, Lost or Stolen Certificates.................
Section 5.05 Persons Deemed Owners.............................................
Section 5.06 Appointment of Paying Agent.......................................
Section 5.07 Certificate Ownership Certification...............................
ARTICLE VI
THE DEPOSITOR, THE
SERVICER, THE SPECIAL SERVICER AND THE DIRECTING
CERTIFICATEHOLDER
Section 6.01 Liability of the Depositor, the Servicer and the Special
Servicer.........................................................
Section 6.02 Merger, Consolidation or Conversion of the Depositor, the
Servicer or the Special Servicer.................................
Section 6.03 Limitation on Liability of the Depositor, the Servicer,
the Special Servicer and Others..................................
Section 6.04 Depositor, Servicer and Special Servicer Not to Resign............
Section 6.05 Rights of the Depositor in Respect of the Servicer and the
Special Servicer
Section 6.06 The Directing Certificateholder, the Simon Representative.........
ARTICLE VII
DEFAULT
Section 7.01 Events of Default; Servicer and Special Servicer
Termination......................................................
Section 7.02 Trustee to Act; Appointment of Successor..........................
Section 7.03 Notification to Certificateholders................................
Section 7.04 Waiver of Events of Default.......................................
Section 7.05 Trustee as Maker of Advances......................................
ARTICLE VIII
CONCERNING THE TRUSTEE AND PAYING AGENT
Section 8.01 Duties of Trustee and the Paying Agent............................
Section 8.02 Certain Matters Affecting the Trustee and the Paying Agent........
Section 8.03 Trustee and Paying Agent Not Liable for Validity or
Sufficiency of Certificates or Mortgage Loans....................
Section 8.04 Trustee or Paying Agent May Own Certificates......................
Section 8.05 Fees and Expenses of Trustee and Paying Agent;
Indemnification of Trustee and the Paying Agent
Section 8.06 Eligibility Requirements for Trustee and the Paying Agent.........
Section 8.07 Resignation and Removal of the Trustee and Paying Agent...........
Section 8.08 Successor Trustee or Paying Agent.................................
Section 8.09 Merger or Consolidation of Trustee or Paying Agent................
Section 8.10 Appointment of Co-Trustee or Separate Trustee.....................
Section 8.11 Appointment of Custodians.........................................
Section 8.12 Access to Certain Information.....................................
Section 8.13 Representations and Warranties of the Trustee.....................
Section 8.14 Representations and Warranties of the Paying Agent................
ARTICLE IX
TERMINATION
Section 9.01 Termination upon Repurchase or Liquidation of All Mortgage
Loans............................................................
Section 9.02 Additional Termination Requirements...............................
ARTICLE X
ADDITIONAL REMIC PROVISIONS
Section 10.01 REMIC Administration..............................................
Section 10.02 Depositor, Servicer and Special Servicer to Cooperate with
Paying Agent.....................................................
Section 10.03 Use of Agents.....................................................
Section 10.04 Appointment of REMIC Administrators...............................
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment.........................................................
Section 11.02 Recordation of Agreement; Counterparts............................
Section 11.03 Limitation on Rights of Certificateholders........................
Section 11.04 Governing Law.....................................................
Section 11.05 Notices...........................................................
Section 11.06 Severability of Provisions........................................
Section 11.07 Grant of a Security Interest......................................
Section 11.08 Successors and Assigns; Beneficiaries.............................
Section 11.09 Article and Section Headings......................................
Section 11.10 Notices to the Rating Agencies....................................
EXHIBITS
Exhibit A-1 Form of Class A-1 Certificate
Exhibit A-2 Form of Class A-2 Certificate
Exhibit A-3 Form of Class X-1 Certificate
Exhibit A-4 Form of Class X-2 Certificate
Exhibit A-5 Form of Class B Certificate
Exhibit A-6 Form of Class C Certificate
Exhibit A-7 Form of Class D Certificate
Exhibit A-8 Form of Class E Certificate
Exhibit A-9 Form of Class F Certificate
Exhibit A-10 Form of Class G Certificate
Exhibit A-11 Form of Class H Certificate
Exhibit A-12 Form of Class J Certificate
Exhibit A-13 Form of Class K Certificate
Exhibit A-14 Form of Class L Certificate
Exhibit A-15 Form of Class M Certificate
Exhibit A-16 Form of Class N Certificate
Exhibit A-17 Form of Class NR Certificate
Exhibit A-18 Form of Class SP-1 Certificate
Exhibit A-19 Form of Class SP-2 Certificate
Exhibit A-20 Form of Class SP-3 Certificate
Exhibit A-21 Form of Class WM Certificate
Exhibit A-22 Form of Class R Certificate
Exhibit A-23 Form of Class LR Certificate
Exhibit B Mortgage Loan Schedule
Exhibit C Form of Investment Representation Letter
Exhibit D-1 Form of Transfer Affidavit
Exhibit D-2 Form of Transferor Letter
Exhibit E Form of Request for Release
Exhibit F Form of ERISA Representation Letter
Exhibit G Form of Statement to Certificateholders
Exhibit H Form of Omnibus Assignment
Exhibit I Form of Regulation S Transfer Certificate during Restricted
Period
Exhibit I-2 Form of Regulation S Transfer Certificate after
Restricted Period
Exhibit J Form of Purchase Option Notice
Exhibit K Form of Transfer Certificate for Rule 144A Book-Entry
Certificate to Regulation S Book-Entry Certificate
during Restricted Period
Exhibit L-1 Form of CMSA Bond Level File
Exhibit L-2 Form of CMSA Collateral Summary File
Exhibit L-3 Form of CMSA Financial File
Exhibit L-4 Form of CMSA Loan Periodic Update File
Exhibit L-5 Form of CMSA Loan Setup File
Exhibit L-6 Form of CMSA Property File
Exhibit L-7 Form of CMSA Comparative Financial Status Report
Exhibit L-8 Form of CMSA Delinquent Loan Status Report
Exhibit L-9 Form of CMSA Historical Liquidation Report
Exhibit L-10 Form of CMSA Historical Loan Modification Report
Exhibit L-11 Form of CMSA NOI Adjustment Worksheet
Exhibit L-12 Form of CMSA Operating Statement Analysis Report
Exhibit L-13 Form of CMSA REO Status Report
Exhibit L-14 Form of Updated Collection Report
Exhibit L-15 Servicer Watchlist Criteria
Exhibit M Form of Transfer Certificate for Rule 144A Book-Entry
Certificate to Regulation S Book-Entry Certificate
after Restricted Period
Exhibit N Form of Transfer Certificate for Regulation S
Book-Entry Certificate to Rule 144A Global Book-Entry
Certificate during Restricted Period
Exhibit O Form of Transfer Certificate for Regulation S
Book-Entry Certificate during Restricted Period
Exhibit P Form Certification to be Provided with Form 10-K
Exhibit Q Form of Certification to be Provided to Depositor
Exhibit R Initial Companion Holders
Exhibit S ARCap Naming Convention
Exhibit T Controlling Class Certificateholder Reports Checklist
Exhibit U Form of Initial Certification of Trustee
Exhibit V Form of Final Certification of the Trustee
Exhibit W Form of Defeasance Certificate
Exhibit X-1 Form of Information Request by Certificateholder or
Certificate Owner
Exhibit X-2 Form of Information Request by Prospective Purchaser
SCHEDULES
Schedule 1 Mortgage Loans Containing Additional Debt
Schedule 2 Mortgage Loans that Initially Pay Interest Only
This Pooling and Servicing Agreement (the "Agreement") is dated and
effective as of December 1, 2002, among X.X. Xxxxxx Xxxxx Commercial Mortgage
Securities Corp., as Depositor, Wachovia Bank, National Association, as
Servicer, ARCap Special Servicing, Inc., as Special Servicer, Xxxxx Fargo Bank
Minnesota, N.A., as Trustee, and LaSalle Bank National Association, as Paying
Agent.
PRELIMINARY STATEMENT
The Depositor intends to sell commercial mortgage pass-through
certificates (collectively, the "Certificates"), to be issued hereunder in
multiple classes (each, a "Class"), which in the aggregate will evidence the
entire beneficial ownership interest in the trust fund (the "Trust Fund") to be
created hereunder, the primary assets of which will be a pool of commercial,
multifamily and manufactured housing community mortgage loans (the "Mortgage
Loans"). As provided herein, the Paying Agent shall elect or shall cause
elections to be made to treat the Trust Fund (exclusive of the Excess Interest
and the Excess Interest Distribution Account) for federal income tax purposes as
four separate real estate mortgage investment conduits (the "Walgreens Loan
REMIC", the "Simon Loan REMIC", the "Upper-Tier REMIC" and "Lower-Tier REMIC",
as described herein).
The parties intend that the portions of the Trust Fund representing
the Excess Interest, the Excess Interest Distribution Account and the proceeds
thereof will be treated as a grantor trust under subpart E of Part 1 of
subchapter J of the Code and that the beneficial interest therein will be
represented by the Class NR Certificates.
SIMON LOAN REMIC
An election will be made to treat the segregated pool of assets
consisting of the Simon Mortgage Loan and certain other related assets subject
to this Agreement as a REMIC for federal income tax purposes, and such
segregated pool of assets will be designated as the "Simon Loan REMIC". The
Simon Loan REMIC Residual Interest will represent the sole class of "residual
interests" in the Simon Loan REMIC for purposes of the REMIC Provisions under
federal income tax law, and will be represented by the Class LR Certificates.
The Simon Loan REMIC Pooled Regular Interest, the Class KSP-1 Uncertificated
Interest, the Class KSP-2 Uncertificated Interest and the Class KSP-3
Uncertificated Interest will not be certificated and will be held by the
Lower-Tier REMIC.
The following table sets forth the Original Simon Loan REMIC
Principal Amounts and per annum rates of interest for the Simon Loan REMIC
Regular Interests:
Class Interest Rate Original Simon Loan REMIC
Designation (per annum) Principal Amount
-------------------- --------------------- ---------------------------------
Simon Loan REMIC
Pooled Regular
Interest (1) $119,191,303
Class KSP-1 (1) $5,508,000
Class KSP-2 (1) $8,400,000
Class KSP-3 (1) $5,657,741
------------------
(1) The interest rate for each Class of Simon Loan REMIC Regular Interests
shall be the related Simon Mortgage Loan Remittance Rate.
WALGREENS LOAN REMIC
An election will be made to treat the segregated pool of assets
consisting of the Walgreens Mortgage Loan and certain other related assets
subject to this Agreement as a REMIC for federal income tax purposes, and such
segregated pool of assets will be designated as the "Walgreens Loan REMIC". The
Walgreens Loan REMIC Residual Interest will represent the sole class of
"residual interests" in the Walgreens Loan REMIC for purposes of the REMIC
Provisions under federal income tax law, and will be represented by the Class LR
Certificates. The Walgreens Loan REMIC Pooled Regular Interest and the Class JWM
Uncertificated Interest will not be certificated and will be held by the
Lower-Tier REMIC.
The following table sets forth the Original Walgreens Loan REMIC
Principal Amounts and per annum rates of interest for the Walgreens Loan REMIC
Regular Interests:
Class Interest Rate (per Original Walgreens Loan
Designation annum) REMIC Principal Amount
--------------------- ---------------------- ---------------------------
Walgreens Loan REMIC
Pooled Regular
Interest (1) $2,276,909
Class JWM (1) $338,406
------------------
(1) The interest rate for each Class of Walgreens Loan REMIC Regular Interests
shall be the related Walgreens Mortgage Loan Remittance Rate.
LOWER-TIER REMIC
The Class LA-1-1, Class LA-1-2, Class LA-1-3, Class LA-1-4, Class
LA-1-5, Class LA-2-1, Class LA-2-2, Class LA-2-3, Class LA-2-4, Class LB, Class
LC, Class LD, Class LE, Class LF-1, Class LF-2, Class LG-1, Class LG-2, Class
LH-1, Class LH-2, Class LJ-1, Class LJ-2, Class LK, Class LL, Class LM, Class
LN, Class LNR, Class LSP-1, Class LSP-2, Class LSP-3 and Class LWM
Uncertificated Interests will evidence "regular interests" in the Lower-Tier
REMIC created hereunder. The sole Class of "residual interests" in the
Lower-Tier REMIC created hereunder will be evidenced by the Class LR
Certificates.
The following table sets forth the Original Lower-Tier Principal
Amounts and per annum rates of interest for the Uncertificated Lower-Tier
Interests and the Class LR Certificates:
CLASS INTEREST RATE ORIGINAL LOWER-TIER
DESIGNATION (PER ANNUM) PRINCIPAL AMOUNT
--------------- ----------------- -----------------------
Class LA-1-1 (1) $ 11,380,000
Class LA-1-2 (1) $ 52,398,000
Class LA-1-3 (1) $ 53,186,000
Class LA-1-4 (1) $ 50,242,000
Class LA-1-5 (1) $ 66,794,000
Class LA-2-1 (1) $ 5,695,000
Class LA-2-2 (1) $ 47,227,000
Class LA-2-3 (1) $ 43,600,000
Class LA-2-4 (1) $510,065,000
Class LB (1) $ 41,256,000
Class LC (1) $ 10,314,000
Class LD (1) $ 28,363,000
Class LE (1) $ 14,182,000
Class LF-1 (1) $ 2,463,000
Class LF-2 (1) $ 16,876,000
Class LG-1 (1) $ 4,638,000
Class LG-2 (1) $ 8,254,000
Class LH-1 (1) $ 8,502,000
Class LH-2 (1) $ 6,969,000
Class LJ-1 (1) $ 7,033,000
Class LJ-2 (1) $ 4,570,000
Class LK (1) $ 3,868,000
Class LL (1) $ 7,736,000
Class LM (1) $ 3,867,000
Class LN (1) $ 5,157,000
Class LNR (1) $ 16,760,510
Class LSP-1 (2) $ 5,508,000
Class LSP-2 (2) $ 8,400,000
Class LSP-3 (2) $ 5,657,741
Class LWM (3) $ 338,406
Class LR None(4) None(4)
------------------
(1) The interest rate for such Class of Uncertificated Lower-Tier Interests
shall be the Weighted Average Net Mortgage Rate.
(2) The interest rate for such Class of Uncertificated Lower-Tier Interests
shall be the related Simon Mortgage Loan Remittance Rate.
(3) The interest rate for such Class of Uncertificated Lower-Tier Interests
shall be the related Walgreens Mortgage Loan Remittance Rate.
(4) The Class LR Certificates do not have a Certificate Balance or Notional
Amount, do not bear interest and will not be entitled to distributions of
Yield Maintenance Charges. Any Available Distribution Amount remaining in
the Lower-Tier Distribution Account after distributing the Lower-Tier
Distribution Amount shall be distributed to the Holders of the Class LR
Certificates in respect of the residual interest in the Lower-Tier REMIC
(but only to the extent of the Available Distribution Amount for such
Distribution Date, if any, remaining in the Lower-Tier Distribution
Account).
UPPER-TIER REMIC
The Class A-1, Class A-2, Class B, Class C, Class D, Class E, Class
F, Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class NR
(other than with respect to the right to receive Excess Interest), Class SP-1,
Class SP-2, Class SP-3, Class WM, Class X-1 and Class X-2 Certificates will
evidence "regular interests" in the Upper-Tier REMIC created hereunder. The sole
Class of "residual interests" in the Upper-Tier REMIC created hereunder will be
evidenced by the Class R Certificates.
The following table sets forth the designation, the pass-through
rate (the "Pass-Through Rate"), the aggregate initial principal amount (the
"Original Certificate Balance") or Notional Amount ("Original Notional Amount"),
as applicable, and the initial ratings given each Class by the Rating Agencies
(the "Original Ratings") for each Class of Certificates comprising the interests
in the Upper-Tier REMIC created hereunder:
ORIGINAL
RELATED PASS-THROUGH RATE ORIGINAL RATINGS
CERTIFICATE (PER ANNUM) CERTIFICATE BALANCE XXXXX'X/S&P(1)
--------------- --------------------- --------------------- --------------
Class A-1 4.3260% $ 234,000,000 Aaa/AAA
Class A-2 5.0500% $ 606,587,000 Aaa/AAA
Class B 5.2110%(2) $ 41,256,000 Aa2/AA
Class C 5.2900%(2) $ 10,314,000 Aa3/AA-
Class D 5.4080%(2) $ 28,363,000 A2/A
Class E 5.4167%(3) $ 14,182,000 A3/A-
Class F 5.9867%(3) $ 19,339,000 Baa2/BBB
Class G 6.3197%(4) $ 12,892,000 Baa3/BBB-
Class H 5.0770%(2) $ 15,471,000 Ba1/BB+
Class J 5.0770%(2) $ 11,603,000 Ba2/BB
Class K 5.0770%(2) $ 3,868,000 Ba3/BB-
Class L 5.0770%(2) $ 7,736,000 B1/B+
Class M 5.0770%(2) $ 3,867,000 B2/B
Class N 5.0770%(2) $ 5,157,000 B3/B-
Class NR 5.0770%(2) $ 16,760,510 */*
Class SP-1 (5) $ 5,508,000 Ba1/BBB-
Class SP-2 (5) $ 8,400,000 Ba2/BB
Class SP-3 (5) $ 5,657,741 Ba3/BB-
Class WM (6) $ 338,406 */*
Class X-1 0.1273%(7) $1,031,395,510 (8) Aaa/AAA
Class X-2 1.3046%(7) $ 986,495,000 (8) Aaa/AAA
Class R None None (9) */*
------------------
(1) The Certificates marked with an asterisk have not been rated by the
applicable Rating Agency.
(2) Subject to a maximum Pass-Through Rate equal to the Weighted Average Net
Mortgage Rate.
(3) The Pass-Through Rate for any Distribution Date for the Class E and Class
F Certificates will be the Weighted Average Net Mortgage Rate for the
Distribution Date minus 0.9030% and 0.3330%, respectively, per annum.
(4) The Pass-Through Rate for any Distribution Date for the Class G
Certificates will be the Weighted Average Net Mortgage Rate for the
Distribution Date.
(5) The Pass-Through Rate for any Distribution Date for the Class SP-1, Class
SP-2 and Class SP-3 Certificates will be the Simon Mortgage Loan
Remittance Rate for such Distribution Date.
(6) The Pass-Through Rate for any Distribution Date for the Class WM
Certificates will be the Walgreens Mortgage Loan Remittance Rate for such
Distribution Date.
(7) Initial Pass-Through Rate. The Pass-Through Rates for each of the Class
X-1 and Class X-2 Certificates will be calculated in accordance with the
related definitions of "Class X-1 Pass-Through Rate" and "Class X-2
Pass-Through Rate", as applicable.
(8) The Class X-1 and Class X-2 Certificates will not have a Certificate
Balance; rather, each such Class of Certificates will accrue interest as
provided herein on the related Class X-1 Notional Amount and Class X-2
Notional Amount, as applicable.
(9) The Class R Certificates do not have a Certificate Balance or Notional
Amount, do not bear interest and will not be entitled to distributions of
Yield Maintenance Charges. Any Available Distribution Amount remaining in
the Upper-Tier Distribution Account, after all required distributions
under this Agreement have been made to each other Class of Certificates,
will be distributed to the Holders of the Class R Certificates.
As of close of business on the Cut-off Date, the Mortgage Loans had
an aggregate principal balance, after application of all payments of principal
due on or before such date, whether or not received, equal to $1,051,299,658.
Two mortgage loans (the "Companion Loans") with an aggregate Cut-off
Date Principal Balance of $26,030,000 are not part of the Trust Fund but are
secured by corresponding Mortgages that secure related Mortgage Loans (each, an
"AB Mortgage Loan") that are part of the Trust Fund. As and to the extent
provided herein, one of the Companion Loans (the "Long Island Industrial
Companion Loan") will be serviced and administered in accordance with this
Agreement. One of the Companion Loans (the "75/101 Federal Street Companion
Loan") and its related AB Mortgage Loan will not be serviced pursuant to this
Agreement, but will be serviced pursuant to a separate servicing agreement,
dated October 23, 2002, among Xxxxxxx Xxxxx Mortgage Lending, Inc., LaSalle Bank
National Association, as trustee and custodian, and Pacific Life Insurance
Company, as servicer and special servicer (the "75/101 Federal Street Servicing
Agreement"). Amounts attributable to the Companion Loans will not be assets of
the Trust Fund, and will be owned by the related Companion Holders.
In consideration of the mutual agreements herein contained, the
Depositor, the Servicer, the Special Servicer, the Trustee and the Paying Agent
agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms.
Whenever used in this Agreement, including in the Preliminary
Statement, the following capitalized terms, unless the context otherwise
requires, shall have the meanings specified in this Article.
"75/101 Federal Street Co-Lender Agreement": Co-Lender Agreement,
dated as of October 15, 2002, between Xxxxxxx Xxxxx Mortgage Lending, Inc., as
Note A Lender, and LaSalle Bank National Association, as trustee on behalf of
the 00/000 Xxxxxxx Xxxxxx Trust, as Note B Lender, regarding the 00/000 Xxxxxxx
Xxxxxx Loan Pair.
"75/101 Federal Street Companion Loan": The Companion Loan related
to the 00/000 Xxxxxxx Xxxxxx Mortgage Loan.
"75/101 Federal Street Loan Pair": Collectively, the 00/000 Xxxxxxx
Xxxxxx Mortgage Loan and the 00/000 Xxxxxxx Xxxxxx Companion Loan.
"75/101 Federal Street Mortgage Loan": The Mortgage Loan identified
on the Mortgage Loan Schedule as loan number 2.
"75/101 Federal Street Mortgaged Property": The real property
securing the 00/000 Xxxxxxx Xxxxxx Loan Pair.
"75/101 Federal Street Servicer": The servicer under the 00/000
Xxxxxxx Xxxxxx Servicing Agreement.
"75/101 Federal Street Servicing Agreement": As defined in the
Preliminary Statement.
"75/101 Federal Street Special Servicer": The special servicer under
the 00/000 Xxxxxxx Xxxxxx Servicing Agreement.
"00/000 Xxxxxxx Xxxxxx Trust": That certain trust established
pursuant to the 00/000 Xxxxxxx Xxxxxx Trust Agreement, the assets of which
include the 00/000 Xxxxxxx Xxxxxx Companion Loan.
"75/101 Federal Street Trust Agreement": Trust Agreement, dated
October 23, 2002, by and among Xxxxxxx Xxxxx Mortgage Investors, Inc., as
depositor, LaSalle Bank National Association, as trustee, and ABN AMRO Bank
N.V., as fiscal agent.
"AB Mortgage Loan": Any of those certain Mortgage Loans identified
on the Mortgage Loan Schedule as loan numbers 2 and 4 that are part of the Trust
Fund.
"Acceptable Insurance Default": With respect to any Mortgage Loan, a
default under the related Mortgage Loan documents arising by reason of any
failure on the part of the related Mortgagor to maintain with respect to the
related Mortgaged Property specific insurance coverage with respect to, or an
all-risk casualty insurance policy that does not specifically exclude, terrorist
or similar acts, and/or any failure on the part of the related Mortgagor to
maintain with respect to the related Mortgaged Property insurance coverage with
respect to terrorist or similar acts upon terms no less favorable than those in
place as of November 1, 2002, as to which default the Servicer and the Special
Servicer may forbear taking any enforcement action, provided that the Special
Servicer has determined, in its reasonable judgment, based on inquiry consistent
with the Servicing Standards and after consultation with the Directing
Certificateholder, that either (a) such insurance is not available at
commercially reasonable rates and that hazards are not at the time commonly
insured against for properties similar to the related Mortgaged Property and
located in or around the region in which such related Mortgaged Property is
located, or (b) such insurance is not available at any rate; provided, however,
the Directing Certificateholder will not have more than 30 days to respond to
the Special Servicer's request for consultation; provided, further, that upon
the Special Servicer's determination consistent with the Servicing Standard,
that exigent circumstances do not allow the Special Servicer to consult with the
Directing Certificateholder, the Special Servicer will not be required to do so.
"Accrued Certificate Interest": With respect to each Distribution
Date and each Class of Certificates (other than the Residual Certificates), an
amount equal to interest for the related Interest Accrual Period at the
Pass-Through Rate applicable to such Class of Certificates for such Distribution
Date, accrued on the related Certificate Balance (or with respect to the Class
X-1 and Class X-2 Certificates, the Notional Amount of such Class outstanding
immediately prior to such Distribution Date) (provided that for interest accrual
purposes any distributions in reduction of Certificate Balance or Notional
Amount or reductions in Certificate Balance or Notional Amount as a result of
allocations of Collateral Support Deficit on the Distribution Date occurring in
an Interest Accrual Period shall be deemed to have been made on the first day of
such Interest Accrual Period). Accrued Certificate Interest shall be calculated
on the basis of a 360-day year consisting of twelve 30-day months.
"Accrued Simon Non-Pooled Component Interest": With respect to each
Simon Non-Pooled Component for any Distribution Date, one month's interest at
the related Simon Mortgage Loan Remittance Rate for such Distribution Date,
accrued for the related Interest Accrual Period on the related Simon Non-Pooled
Balance outstanding immediately prior to such Distribution Date. Accrued Simon
Non-Pooled Component Interest shall be calculated on a 30/360 Basis consistent
with the definition of Simon Mortgage Loan Remittance Rate and, for any
Distribution Date, shall be deemed to accrue during the calendar month preceding
the month in which such Distribution Date occurs.
"Accrued Simon Pooled Component Interest": With respect to the Simon
Pooled Component for any Distribution Date, one month's interest at the related
Simon Mortgage Loan Remittance Rate for such Distribution Date, accrued for the
related Interest Accrual Period on the Simon Pooled Balance outstanding
immediately prior to such Distribution Date. Accrued Simon Pooled Component
Interest shall be calculated on a 30/360 Basis consistent with the definition of
Simon Mortgage Loan Remittance Rate and, for any Distribution Date, shall be
deemed to accrue during the calendar month preceding the month in which such
Distribution Date occurs.
"Accrued Walgreens Non-Pooled Component Interest": With respect to
the Walgreens Non-Pooled Component for any Distribution Date, one month's
interest at the Walgreens Mortgage Loan Remittance Rate for such Distribution
Date, accrued for the related Interest Accrual Period on the Walgreens
Non-Pooled Balance outstanding immediately prior to such Distribution Date.
Accrued Walgreens Non-Pooled Component Interest shall be calculated on a 30/360
Basis consistent with the definition of Walgreens Mortgage Loan Remittance Rate
and, for any Distribution Date, shall be deemed to accrue during the calendar
month preceding the month in which such Distribution Date occurs.
"Accrued Walgreens Pooled Component Interest": With respect to the
Walgreens Pooled Component for any Distribution Date, one month's interest at
the related Walgreens Mortgage Loan Remittance Rate for such Distribution Date,
accrued for the related Interest Accrual Period on the Walgreens Pooled Balance
outstanding immediately prior to such Distribution Date. Accrued Walgreens
Pooled Component Interest shall be calculated on a 30/360 Basis consistent with
the definition of Walgreens Mortgage Loan Remittance Rate and, for any
Distribution Date, shall be deemed to accrue during the calendar month preceding
the month in which such Distribution Date occurs.
"Act": The Securities Act of 1933, as it may be amended from time to
time.
"Actual/360 Mortgage Loans": The Mortgage Loans indicated as such in
the Mortgage Loan Schedule.
"Additional Debt": With respect to any Mortgage Loan, any debt owed
by the related Mortgagor to a party other than the lender under such Mortgage
Loan as of the Closing Date as set forth on Schedule 1 hereto, as increased or
decreased from time to time pursuant to the terms of the related subordinate
loan documents (including any subordination agreement).
"Additional Exclusions": Exclusions in addition to those customarily
found in insurance policies for Mortgaged Properties prior to September 11,
2001.
"Administrative Cost Rate": With respect to each Mortgage Loan, the
sum of the Servicing Fee Rate and the Trustee Fee Rate, in each case computed on
the basis of the Stated Principal Balance of the related Mortgage Loan and in
the same manner as interest is calculated on such Mortgage Loan.
"Advance": Any P&I Advance or Servicing Advance.
"Adverse REMIC Event": As defined in Section 10.01(f).
"Affiliate": With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agent": As defined in Section 5.02(c)(i)(A).
"Agreement": This Pooling and Servicing Agreement and all amendments
hereof and supplements hereto.
"Anticipated Repayment Date": With respect to any Mortgage Loan that
is indicated on the Mortgage Loan Schedule as having a Revised Rate, the date
upon which such Mortgage Loan commences accruing interest at such Revised Rate.
"Applicable Procedures": As defined in Section 5.02(b)(i).
"Applicable State and Local Tax Law": For purposes hereof, the
Applicable State and Local Tax Law shall be (a) the tax laws of the State of New
York; (b) the tax laws of the State of Minnesota; and (c) such other state or
local tax laws whose applicability shall have been brought to the attention of
the Trustee and the Paying Agent by either (i) an opinion of counsel delivered
to it, or (ii) written notice from the appropriate taxing authority as to the
applicability of such state or local tax laws.
"Appraisal": An appraisal prepared by an Independent MAI appraiser
with at least five years experience in properties of like kind and in the same
area, prepared in accordance with 12 C.F.R. 225.64, or, in connection with an
Appraisal Reduction, a valuation meeting the requirements of clause (b)(i)(A)(2)
in the definition of Appraisal Reduction.
"Appraisal Reduction": For any Distribution Date and for any
Mortgage Loan as to which an Appraisal Reduction Event has occurred, an amount
calculated by the Special Servicer, in consultation with the Directing
Certificateholder, as of the first Determination Date following the date on
which the Special Servicer receives or performs such Appraisal equal to the
excess of (a) the Stated Principal Balance of such Mortgage Loan (including (a)
if such Mortgage Loan is the Simon Mortgage Loan, the Simon Non-Pooled Component
and (b) if such Mortgage Loan is the Walgreens Mortgage Loan, the Walgreens
Non-Pooled Component) over (b) the excess of (i) the sum of (A) 90% of the
Appraised Value of the related Mortgaged Property as determined (1) by one or
more Appraisals with respect to any Mortgage Loan (together with any other
Mortgage Loan cross-collateralized with such Mortgage Loan) with an outstanding
principal balance equal to or in excess of $2,000,000 (the costs of which shall
be paid by the Servicer as an Advance) or (2) by an internal valuation performed
by the Special Servicer with respect to any Mortgage Loan (together with any
other Mortgage Loan cross-collateralized with such Mortgage Loan) with an
outstanding principal balance less than $2,000,000, and (B) all escrows, letters
of credit and reserves in respect of such Mortgage Loan as of the date of
calculation over (ii) the sum of, as of the Due Date occurring in the month of
the date of determination, (A) to the extent not previously advanced by the
Servicer or the Trustee, all unpaid interest on such Mortgage Loan at a per
annum rate equal to its Mortgage Rate, (B) all unreimbursed Advances and
interest thereon at the Reimbursement Rate in respect of such Mortgage Loan and
(C) all currently due and unpaid real estate taxes, assessments, insurance
premiums, ground rents, unpaid Special Servicing Fees and all other amounts due
and unpaid with respect to such Mortgage Loan (which taxes, premiums, ground
rents and other amounts have not been the subject of an Advance by the Servicer
or the Trustee, as applicable); provided, however, without limiting the Special
Servicer's obligation to order and obtain such Appraisal, if the Special
Servicer has not obtained the Appraisal or valuation, as applicable, referred to
above within 60 days of the Appraisal Reduction Event (or with respect to the
reduction event set forth in clause (i) of the definition of Appraisal Reduction
Event, within such 120 days set forth therein), the amount of the Appraisal
Reduction shall be deemed to be an amount equal to 25% of the current Stated
Principal Balance of the related Mortgage Loan (including, (a) if such Mortgage
Loan is the Simon Mortgage Loan, the Simon Non-Pooled Component and (b) if such
Mortgage Loan is the Walgreens Mortgage Loan, the Walgreens Non-Pooled
Component) until such time as such appraisal or valuation referred to above is
received and the Appraisal Reduction is calculated. Within 60 days after the
Appraisal Reduction Event, the Special Servicer shall order and receive an
Appraisal (the cost of which shall be paid as a Servicing Advance); provided,
however, that with respect to an Appraisal Reduction Event as set forth in
clause (i) of the definition of Appraisal Reduction Event, the Special Servicer
shall order and receive such Appraisal within the 120 day period set forth in
such clause (i), which Appraisal shall be delivered by the Special Servicer to
the Servicer, the Directing Certificateholder, the Trustee and the Paying Agent,
and the Paying Agent shall deliver such Appraisal to each Holder of a Class C,
Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M,
Class N and Class NR Certificate upon request (subject to receipt of such
Appraisal by the Special Servicer).
With respect to each Mortgage Loan as to which an Appraisal
Reduction has occurred (unless such Mortgage Loan has become a Corrected
Mortgage Loan (for such purposes taking into account any amendment or
modification of such Mortgage Loan)), the Special Servicer shall, within 30 days
of each anniversary of the related Appraisal Reduction Event, order an Appraisal
(which may be an update of a prior Appraisal), the cost of which shall be paid
by the Servicer as a Servicing Advance or to conduct an internal valuation, as
applicable. Based upon such Appraisal, the Special Servicer shall redetermine
(in consultation with the Directing Certificateholder) and report to the
Directing Certificateholder (and in the case of the Simon Mortgage Loan, the
Simon Representative), the Servicer, the Paying Agent and the Trustee the amount
of the Appraisal Reduction with respect to such Mortgage Loan, and such
redetermined Appraisal Reduction shall replace the prior Appraisal Reduction
with respect to such Mortgage Loan. The Directing Certificateholder shall have
ten (10) Business Days to review and approve each calculation of an Appraisal
Reduction; provided, however, that if the Directing Certificateholder fails to
approve any calculation of the Appraisal Reduction within 30 days of receipt of
the initial Appraisal Reduction, such consent shall be deemed given.
Notwithstanding the foregoing, the Special Servicer will not be required to
obtain an Appraisal or conduct an internal valuation, as applicable, with
respect to a Mortgage Loan which is the subject of an Appraisal Reduction Event
to the extent the Special Servicer has obtained an Appraisal or valuation, as
applicable, with respect to the related Mortgaged Property within the
twelve-month period immediately prior to the occurrence of such Appraisal
Reduction Event. Instead, the Special Servicer may use such prior Appraisal or
valuation, as applicable, in calculating any Appraisal Reduction with respect to
such Mortgage Loan; provided that the Special Servicer is not aware of any
material change to the related Mortgaged Property having occurred and affecting
the validity of such appraisal or valuation, as applicable.
Any Mortgage Loan previously subject to an Appraisal Reduction which
loan has become a Corrected Mortgage Loan (for such purposes taking into account
any amendment or modification of such Mortgage Loan), and with respect to which
no other Appraisal Reduction Event has occurred and is continuing, will no
longer be subject to an Appraisal Reduction.
Notwithstanding anything herein to the contrary, (i) the aggregate
Appraisal Reduction related to a Mortgage Loan or the related REO Property will
be reduced to zero as of the date on which such Mortgage Loan is paid in full,
liquidated, repurchased or otherwise removed from the Trust Fund and (ii)
"appraisal reduction amounts" for the 00/000 Xxxxxxx Xxxxxx Mortgage Loan shall
be determined in accordance with the 00/000 Xxxxxxx Xxxxxx Servicing Agreement
and shall reduce (y) the obligation of the 00/000 Xxxxxxx Xxxxxx Servicer to
make advances for the 00/000 Xxxxxxx Xxxxxx Mortgage Loan as and to the extent
provided in the 00/000 Xxxxxxx Xxxxxx Servicing Agreement and (z) the obligation
of the Servicer and Trustee to make back-up advances if the 00/000 Xxxxxxx
Xxxxxx Servicer fails to make such advances.
"Appraisal Reduction Event": With respect to any Mortgage Loan, the
earliest of (i) 120 days after an uncured delinquency (without regard to the
application of any grace period) occurs in respect of such Mortgage Loan, (ii)
the date on which a reduction in the amount of Monthly Payments on such Mortgage
Loan, or a change in any other material economic term of such Mortgage Loan
(other than an extension of the Maturity Date), becomes effective as a result of
a modification of such Mortgage Loan by the Special Servicer, (iii) the date on
which a receiver has been appointed, (iv) 60 days after a Mortgagor declares
bankruptcy, (v) 60 days after the date on which an involuntary petition of
bankruptcy is filed with respect to a Mortgagor, (vi) 90 days after an uncured
delinquency occurs in respect of a Balloon Payment with respect to a Mortgage
Loan unless the Mortgagor has delivered to the Servicer on the related Maturity
Date a written refinancing commitment reasonably satisfactory in form and
substance to the Special Servicer which provides that such refinancing will
occur within 150 days, (vii) immediately after a Mortgage Loan becomes an REO
Loan; provided, however, that an Appraisal Reduction Event shall not occur at
any time when the aggregate Certificate Balances of all Classes of Certificates
(other than the Class A Certificates) have been reduced to zero. The Special
Servicer shall notify the Servicer promptly upon the occurrence of any of the
foregoing events.
"Appraised Value": With respect to any Mortgaged Property, the
appraised value thereof as determined by an Appraisal of the Mortgaged Property
securing such Mortgage Loan made by an Independent MAI appraiser selected by the
Servicer or Special Servicer, as applicable.
"ARC Portfolio Mortgage Loan": The Mortgage Loan identified on the
Mortgage Loan Schedule as loan number 3.
"ARCap Naming Convention": As defined in Section 3.12(a)
"Asset Status Report": As defined in Section 3.21(d).
"Assignment of Leases": With respect to any Mortgaged Property, any
assignment of leases, rents and profits or similar instrument executed by the
Mortgagor, assigning to the mortgagee all of the income, rents and profits
derived from the ownership, operation, leasing or disposition of all or a
portion of such Mortgaged Property, in the form which was duly executed,
acknowledged and delivered, as amended, modified, renewed or extended through
the date hereof and from time to time hereafter.
"Assumed Scheduled Payment": For any Due Period and with respect to
any Mortgage Loan that is delinquent in respect of its Balloon Payment
(including any REO Loan as to which the Balloon Payment would have been past
due), an amount equal to the sum of (a) the principal portion of the Monthly
Payment that would have been due on such Mortgage Loan on the related Due Date
based on the constant payment required by the related Mortgage Note or the
original amortization schedule thereof (as calculated with interest at the
related Mortgage Rate), if applicable, assuming such Balloon Payment has not
become due, after giving effect to any modification of such Mortgage Loan, and
(b) interest on the Stated Principal Balance of such Mortgage Loan at the
applicable Mortgage Rate (net of interest at the Servicing Fee Rate).
"Authenticating Agent": The Paying Agent or any agent of the Trustee
appointed to act as Authenticating Agent pursuant to Section 5.01(b).
"Available Distribution Amount": With respect to any Distribution
Date, an amount equal to the sum of (without duplication):
(i) the aggregate amount relating to the Trust Fund on deposit in
the Certificate Account, the Simon Loan REMIC Distribution
Account, the Walgreens Loan REMIC Distribution Account and the
Lower-Tier Distribution Account (in each case, exclusive of
any Net Investment Earnings contained therein) as of the close
of business on the related Determination Date, exclusive of
(without duplication):
(A) all Monthly Payments paid by the Mortgagors that are due
on a Due Date following the end of the related Due
Period;
(B) all unscheduled Principal Prepayments (together with any
related payments of interest allocable to the period
following the Due Date for the related Mortgage Loan
during the related Due Period), Liquidation Proceeds or
Insurance and Condemnation Proceeds received subsequent
to the related Determination Date;
(C) all amounts payable or reimbursable to any Person from
the Certificate Account pursuant to clauses (ii) through
(xvi), inclusive, and clause (xviii) of Section 3.05(a);
(D) all amounts payable or reimbursable to any Person from
(x) the Simon Loan REMIC Distribution Account pursuant
to clauses (ii) - (viii), inclusive, of Section 3.05(b),
(y) Walgreens Loan REMIC Distribution Account pursuant
to clauses (ii) - (viii), inclusive, of Section 3.05(c),
or Lower-Tier Distribution Account pursuant to clauses
(ii) through (viii), inclusive, of Section 3.05(d);
(E) Excess Interest;
(F) all Yield Maintenance Charges;
(G) all amounts deemed distributable pursuant to Section
4.01(j)(iv) - (xi), Section 4.01(k)(iv) - (xiii),
Section 4.01(n)(iv) - (vii) and Section 4.01(o)(iv) -
(vii);
(H) all amounts deposited in the Certificate Account, the
Simon Loan REMIC Distribution Account, the Walgreens
Loan REMIC Distribution Account or the Lower-Tier
Distribution Account, as the case may be, in error; and
(I) with respect to the Interest Reserve Loans and any
Distribution Date relating to each Interest Accrual
Period ending in (1) each January or (2) any December in
a year immediately preceding a year which is not a leap
year, an amount equal to one day of interest on the
Stated Principal Balance of such Mortgage Loan as of the
Due Date in the month preceding the month in which such
Distribution Date occurs at the related Mortgage Rate to
the extent such amounts are to be deposited in the
Interest Reserve Account and held for future
distribution pursuant to Section 3.25;
(ii) if and to the extent not already included in clause (a)
hereof, the aggregate amount transferred from the REO Account
to the Certificate Account for such Distribution Date pursuant
to Section 3.16(c);
(iii) the aggregate amount of any P&I Advances made by the Servicer
or the Trustee (or, with respect to the 00/000 Xxxxxxx Xxxxxx
Mortgage Loan, by the 00/000 Xxxxxxx Xxxxxx Servicer, the
Servicer or the Trustee), as applicable, for such Distribution
Date pursuant to Section 4.03 or 7.05 (net of the related
Trustee Fee with respect to the Mortgage Loans for which such
P&I Advances are made); and
(iv) for the Distribution Date occurring in each March, the
Withheld Amounts remitted to the Lower-Tier Distribution
Account, the Simon Loan REMIC Distribution Account or the
Walgreens Loan REMIC Distribution Account pursuant to Section
3.25(b).
Notwithstanding the investment of funds held in the Certificate Account pursuant
to Section 3.06, for purposes of calculating the Available Distribution Amount,
the amounts so invested shall be deemed to remain on deposit in such account.
"Balloon Mortgage Loan": Any Mortgage Loan that by its original
terms or by virtue of any modification entered into as of the Closing Date
provides for an amortization schedule extending beyond its Maturity Date.
"Balloon Payment": With respect to any Balloon Mortgage Loan as of
any date of determination, the Monthly Payment payable on the Maturity Date of
such Mortgage Loan.
"Bankruptcy Code": The federal Bankruptcy Code, as amended from time
to time (Title 11 of the United States Code).
"Base Interest Fraction": With respect to any Principal Prepayment
on any Mortgage Loan and with respect to any Class of Regular Certificates is a
fraction (a) whose numerator is the greater of (x) zero and (y) the amount by
which (i) the Pass-Through Rate on such Class of Certificates exceeds (ii) the
discount rate used in accordance with the related Mortgage Loan documents in
calculating the Yield Maintenance Charge with respect to such Principal
Prepayment and (b) whose denominator is the amount by which (i) the Mortgage
Rate on such Mortgage Loan exceeds (ii) the discount rate used in accordance
with the related Mortgage Loan documents in calculating the Yield Maintenance
Charge with respect to such Principal Prepayment. However, under no
circumstances shall the Base Interest Fraction be greater than one. If such
discount rate is greater than the Mortgage Rate on such Mortgage Loan, then the
Base Interest Fraction will equal zero. The Servicer shall provide to the Paying
Agent the discount rate references above for purposes of calculating the Base
Interest Fraction.
"Bid Allocation": With respect to the Servicer and the proceeds of
any bid pursuant to Section 7.01(c), the amount of such proceeds (net of any
expenses incurred in connection with such bid and the transfer of servicing),
multiplied by a fraction equal to (a) the Servicing Fee Amount for the Servicer
as of such date of determination, over (b) the aggregate of the Servicing Fee
Amounts for the Servicer as of such date of determination.
"Book-Entry Certificate": Any Certificate registered in the name of
the Depository or its nominee.
"Breach": As defined in Section 2.03(b).
"Business Day": Any day other than a Saturday, a Sunday or a day on
which banking institutions in New York, New York, Chicago, Illinois, Charlotte,
North Carolina, Columbia, Maryland, Minneapolis, Minnesota, or the city and
state in which the Corporate Trust Office of the Trustee or principal place of
business of the Servicer, the Special Servicer or the Paying Agent is located,
are authorized or obligated by law or executive order to remain closed.
"CERCLA": The Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended.
"Certificate": Any one of the Depositor's Commercial Mortgage
Pass-Through Certificates, Series 2002-C2, as executed and delivered by the
Certificate Registrar and authenticated and delivered hereunder by the
Authenticating Agent.
"Certificate Account": A segregated custodial account or accounts
created and maintained by the Servicer pursuant to Section 3.04(a) on behalf of
the Trustee in trust for the Certificateholders, which shall be entitled
"Wachovia Bank, National Association, as Servicer, on behalf of Xxxxx Fargo Bank
Minnesota, N.A., as Trustee, in trust for the registered holders of X.X. Xxxxxx
Chase Commercial Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2002-C2, Certificate Account." Any such account or accounts
shall be an Eligible Account. Subject to the Long Island Industrial
Intercreditor Agreement and taking into account that the Long Island Industrial
Companion Loan is subordinate to the Long Island Industrial Mortgage Loan to the
extent set forth in the related Intercreditor Agreement, the subaccount
described in the next to last paragraph of Section 3.04(a) that is part of the
Certificate Account shall be for the benefit of the Long Island Industrial
Companion Holder, to the extent funds on deposit in such subaccount are
attributed to the Long Island Industrial Companion Loan.
"Certificate Balance": With respect to any Class of Certificates
(other than the Residual Certificates and the Class X Certificates), (i) on or
prior to the first Distribution Date, an amount equal to the Original
Certificate Balance of such Class as specified in the Preliminary Statement
hereto, and (ii) as of any date of determination after the first Distribution
Date, the Certificate Balance of such Class on the Distribution Date immediately
prior to such date of determination (determined as adjusted pursuant to Section
1.02(iii)).
"Certificate Deferred Interest": For any Distribution Date with
respect to any Class of Certificates, the amount of Mortgage Deferred Interest
allocated to such Class pursuant to Section 4.05(a).
"Certificate Factor": With respect to any Class of Certificates, as
of any date of determination, a fraction, expressed as a decimal carried to at
least eight (8) places, the numerator of which is the then related Certificate
Balance, and the denominator of which is the related Original Certificate
Balance.
"Certificate Owner": With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of such Certificate as reflected on the books
of the Depository or on the books of a Depository Participant or on the books of
an indirect participating brokerage firm for which a Depository Participant acts
as agent.
"Certificate Register" and "Certificate Registrar": The register
maintained and registrar appointed pursuant to Section 5.02.
"Certificateholder" or "Holder": The Person in whose name a
Certificate is registered in the Certificate Register; provided, however, that
solely for the purposes of giving any consent, approval or waiver pursuant to
this Agreement, any Certificate registered in the name of the Servicer, the
Special Servicer, the Depositor, the Paying Agent or any Affiliate thereof shall
be deemed not to be outstanding, and the Voting Rights to which it is entitled
shall not be taken into account in determining whether the requisite percentage
of Voting Rights necessary to effect any such consent, approval or waiver has
been obtained, if such consent, approval or waiver sought from such party would
in any way increase its compensation or limit its obligations as Servicer,
Special Servicer or Depositor, as applicable, hereunder; provided, however, so
long as there is no Event of Default with respect to the Servicer or the Special
Servicer, the Servicer and Special Servicer shall be entitled to exercise such
Voting Rights with respect to any issue which could reasonably be believed to
adversely affect such party's compensation or increase its obligations or
liabilities hereunder; and provided, further, however, that such restrictions
shall not apply to the exercise of the Special Servicer's rights (or the
Servicer's rights, if any) or any of their Affiliates as a member of the
Controlling Class. The Trustee and the Paying Agent shall each be entitled to
request and rely upon a certificate of the Servicer, the Special Servicer or the
Depositor in determining whether a Certificate is registered in the name of an
Affiliate of such Person. All references herein to "Holders" or
"Certificateholders" shall reflect the rights of Certificate Owners as they may
indirectly exercise such rights through the Depository and the Depository
Participants, except as otherwise specified herein; provided, however, that the
parties hereto shall be required to recognize as a "Holder" or
"Certificateholder" only the Person in whose name a Certificate is registered in
the Certificate Register.
"Class": With respect to any Certificates, Uncertificated Lower-Tier
Interest, Loan REMIC Regular Interest or Component, all of the Certificates
bearing the same alphabetical (and, if applicable, numerical) Class designation
and each designated Uncertificated Lower-Tier Interest, Loan REMIC Regular
Interest or Component.
"Class A Certificate": Any Class A-1 or Class A-2 Certificates.
"Class A-1 Certificate": A Certificate designated as "Class A-1" on
the face thereof, in the form of Exhibit A-1 hereto and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-1 Pass-Through Rate": With respect to any Distribution
Date, a fixed rate per annum equal to 4.3260%.
"Class A-2 Certificate": A Certificate designated as "Class A-2" on
the face thereof, in the form of Exhibit A-2 hereto and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-2 Pass-Through Rate": With respect to any Distribution
Date, a rate per annum equal to 5.0500%.
"Class B Certificate": A Certificate designated as "Class B" on the
face thereof, in the form of Exhibit A-5 hereto and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class B Pass-Through Rate": With respect to any Distribution Date,
a rate per annum equal to the lesser of (i) 5.2110% and (ii) the Weighted
Average Net Mortgage Rate.
"Class C Certificate": A Certificate designated as "Class C" on the
face thereof, in the form of Exhibit A-6 hereto and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class C Pass-Through Rate": With respect to any Distribution Date,
a rate per annum equal to the lesser of (i) 5.2900% and (ii) the Weighted
Average Net Mortgage Rate.
"Class D Certificate": A Certificate designated as "Class D" on the
face thereof, in the form of Exhibit A-7 hereto and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class D Pass-Through Rate": With respect to any Distribution Date,
a rate per annum equal to the lesser of (i) 5.4080% and (ii) the Weighted
Average Net Mortgage Rate.
"Class E Certificate": A Certificate designated as "Class E" on the
face thereof, in the form of Exhibit A-8 hereto and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class E Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Weighted Average Net Mortgage Rate minus 0.9030%.
"Class F Certificate": A Certificate designated as "Class F" on the
face thereof, in the form of Exhibit A-9 hereto and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class F Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Weighted Average Net Mortgage Rate minus 0.3330%.
"Class G Certificate": A Certificate designated as "Class G" on the
face thereof, in the form of Exhibit A-10 hereto and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class G Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Weighted Average Net Mortgage Rate.
"Class H Certificate": A Certificate designated as "Class H" on the
face thereof, in the form of Exhibit A-11 hereto and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class H Pass-Through Rate": With respect to any Distribution Date,
a rate per annum equal to the lesser of (i) 5.0770% and (ii) the Weighted
Average Net Mortgage Rate.
"Class J Certificate": A Certificate designated as "Class J" on the
face thereof, in the form of Exhibit A-12 hereto and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class J Pass-Through Rate": With respect to any Distribution Date,
a rate per annum equal to the lesser of (i) 5.0770% and (ii) the Weighted
Average Net Mortgage Rate.
"Class JWM Uncertificated Interest": An uncertificated regular
interest in the Walgreens Loan REMIC which is held as an asset of the Lower-Tier
REMIC and having the Original Walgreens Loan REMIC Principal Amount and per
annum rate of interest set forth in the Preliminary Statement hereto.
"Class K Certificate": A Certificate designated as "Class K" on the
face thereof, in the form of Exhibit A-13 hereto and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class K Pass-Through Rate": With respect to any Distribution Date,
a rate per annum equal to the lesser of (i) 5.0770% and (ii) the Weighted
Average Net Mortgage Rate.
"Class KSP-1 Uncertificated Interest": An uncertificated regular
interest in the Simon Loan REMIC which is held as an asset of the Lower-Tier
REMIC and having the Original Simon Loan REMIC Principal Amount and per annum
rate of interest set forth in the Preliminary Statement hereto.
"Class KSP-2 Uncertificated Interest": An uncertificated regular
interest in the Simon Loan REMIC which is held as an asset of the Lower-Tier
REMIC and having the Original Simon Loan REMIC Principal Amount and per annum
rate of interest set forth in the Preliminary Statement hereto.
"Class KSP-3 Uncertificated Interest": An uncertificated regular
interest in the Simon Loan REMIC which is held as an asset of the Lower-Tier
REMIC and having the Original Simon Loan REMIC Principal Amount and per annum
rate of interest set forth in the Preliminary Statement hereto.
"Class L Certificate": A Certificate designated as "Class L" on the
face thereof, in the form of Exhibit A-14 hereto and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class L Pass-Through Rate": With respect to any Distribution Date,
a rate per annum equal to the lesser of (i) 5.0770% and (ii) the Weighted
Average Net Mortgage Rate.
"Class LA-1-1 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1-2 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1-3 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1-4 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1-5 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-2-1 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-2-2 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-2-3 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-2-4 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LB Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LC Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LD Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LE Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LF-1 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LF-2 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LG-1 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LG-2 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LH-1 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LH-2 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LJ-1 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LJ-2 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LK Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LL Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LM Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LN Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LNR Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LR Certificate": A Certificate designated as "Class LR" on
the face thereof, in the form of Exhibit A-23 hereto and evidencing the Loan
REMIC Residual Interests and the Class LR Residual Interest.
"Class LR Residual Interest": The sole class of "residual interests"
in the Lower-Tier REMIC for purposes of the REMIC Provisions and evidenced by
the Class LR Certificates.
"Class LSP-1 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LSP-2 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LSP-3 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LWM Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class M Certificate": A Certificate designated as "Class M" on the
face thereof, in the form of Exhibit A-15 hereto and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class M Pass-Through Rate": With respect to any Distribution Date,
a rate per annum equal to the lesser of (i) 5.0770% and (ii) the Weighted
Average Net Mortgage Rate.
"Class N Certificate": A Certificate designated as "Class N" on the
face thereof, in the form of Exhibit A-16 hereto and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class N Pass-Through Rate": With respect to any Distribution Date,
a rate per annum equal to the lesser of (i) 5.0770% and (ii) the Weighted
Average Net Mortgage Rate.
"Class Notional Amount": The Class X-1 Notional Amount or the Class
X-2 Notional Amount, as the context requires.
"Class NR Certificate": A Certificate designated as "Class NR" on
the face thereof, in the form of Exhibit A-17 hereto and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class NR Pass-Through Rate": With respect to any Distribution Date,
a rate per annum equal to the lesser of (i) 5.0770% and (ii) the Weighted
Average Net Mortgage Rate.
"Class R Certificate": A Certificate designated as "Class R" on the
face thereof, in the form of Exhibit A-22 hereto and evidencing the "residual
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class SP Certificates": Any of the Class SP-1, Class SP-2 and
Class SP-3 Certificates.
"Class SP-1 Certificate": A Certificate designated as "Class SP-1"
on the face thereof, in the form of Exhibit A-18 hereto and evidencing a
"regular interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class SP-1 Pass-Through Rate": With respect to any Distribution
Date, a per annum rate equal to the Simon Mortgage Loan Remittance Rate for the
Simon Non-Pooled Component.
"Class SP-2 Certificate": A Certificate designated as "Class SP-2"
on the face thereof, in the form of Exhibit A-19 hereto and evidencing a
"regular interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class SP-2 Pass-Through Rate": With respect to any Distribution
Date, a per annum rate equal to the Simon Mortgage Loan Remittance Rate for the
Simon Non-Pooled Component.
"Class SP-3 Certificate": A Certificate designated as "Class SP-3"
on the face thereof, in the form of Exhibit A-20 hereto and evidencing a
"regular interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class SP-3 Pass-Through Rate": With respect to any Distribution
Date, a per annum rate equal to the Simon Mortgage Loan Remittance Rate for the
Simon Non-Pooled Component.
"Class Unpaid Interest Shortfall": As to any Distribution Date and
any Class of Certificates, the excess, if any, of (a) the sum of (i) the
Distributable Certificate Interest in respect of such Class for the immediately
preceding Distribution Date and (ii) any outstanding Class Unpaid Interest
Shortfall payable to such Class on such preceding Distribution Date over (b) the
aggregate amount in respect of interest actually distributed to such Class on
such immediately preceding Distribution Date. The Class Unpaid Interest
Shortfall with respect to any Class of Certificates as of the initial
Distribution Date is zero. No interest shall accrue on Class Unpaid Interest
Shortfalls.
"Class X Certificates": The Class X-1 Certificates and the Class X-2
Certificates.
"Class X-1 Certificate": Any one of the Certificates with a "Class
X-1" designation on the face thereof, substantially in the form of Exhibit A-3
attached hereto, and evidencing a "regular interest" in the Upper-Tier REMIC for
purposes of the REMIC Provisions.
"Class X-1 Notional Amount": As of any date of determination,
the sum of the then Component Notional Amounts of all of the Components.
"Class X-1 Pass-Through Rate": With respect to any Distribution
Date, the weighted average of the Class X-1 Strip Rates for the respective
Components for such Distribution Date (weighted on the basis of the respective
Component Notional Amounts of such Components outstanding immediately prior to
such Distribution Date).
"Class X-1 Strip Rate": (A) With respect to any Class of the
Components (other than those Components that are Class X-2 Components which are
included for purposes of calculating the Class X-2 Notional Amount for such
Distribution Date) for any Distribution Date, a rate per annum equal to (i) the
Weighted Average Net Mortgage Rate for such Distribution Date, minus (ii) the
Pass-Through Rate for the Related Certificates and (B) with respect to any
Components that are Class X-2 Components which are included for purposes of
calculating the Class X-2 Notional Amount for such Distribution Date (i) for any
Distribution Date occurring on or before the Class X-2 Termination Date, (x) the
Weighted Average Net Mortgage Rate for such Distribution Date minus (y) the sum
of the Pass-Through Rate for the Related Certificate and the Class X-2 Strip
Rate for such Component for such Distribution Date, and (ii) for any
Distribution Date occurring after the Class X-2 Termination Date, a rate per
annum equal to (x) the Weighted Average Net Mortgage Rate for such Distribution
Date, minus (y) the Pass-Through Rate for the Related Certificates; provided
that in no event shall any Class X-1 Strip Rate be less than zero.
"Class X-2 Certificate": Any one of the Certificates with a "Class
X-2" designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto and evidencing a "regular interest" in the Upper-Tier REMIC for
purposes of the REMIC Provisions.
"Class X-2 Components": Each of Component XX-0-0, Xxxxxxxxx XX-0-0,
Xxxxxxxxx XX-0-0, Component XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0,
Component XA-2-3, Component XA-2-4, Component XB, Component XC, Component XD,
Component XE, Component XF-1, Component XF-2, Component XG-1, Component XG-2,
Component XX-0, Xxxxxxxxx XX-0, Xxxxxxxxx XX-0, Component XJ-2 and Component XK.
"Class X-2 Fixed Strip": With respect to each Class X-2 Component,
the rate set forth with respect to such Component below:
CLASS X-2 COMPONENT FIXED STRIP
Component XA-1-2 1.92%
Component XA-1-3 1.92%
Component XA-1-4 1.92%
Component XA-1-5 1.92%
Component XA-2-1 1.20%
Component XA-2-2 1.20%
Component XA-2-3 1.20%
Component XA-2-4 1.20%
Component XB 1.04%
Component XC 0.96%
Component XD 0.84%
Component XE 0.89%
Component XF-1 0.32%
Component XF-2 0.32%
Component XG-1 0.00%
Component XG-2 0.00%
Component XH-1 1.17%
Component XH-2 1.17%
Component XJ-1 1.17%
Component XJ-2 1.17%
Component XK 1.17%
"Class X-2 Notional Amount": (i) With respect to any Distribution
Date on or prior to the Distribution Date in December 2003, the sum of the then
Component Notional Amounts of Component XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx
XX-0-0, Component XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0, Component XA-2-3,
Component XA-2-4, Component XB, Component XC, Component XD, Component XE,
Component XF-1, Component XF-2, Component XG-1, Component XG-2, Component XX-0,
Xxxxxxxxx XX-0, Xxxxxxxxx XX-0, Component XJ-2 and Component XK.
(ii) With respect to any Distribution Date after the Distribution
Date in December 2004 through and including the Distribution Date in December
2005, the sum of the then Component Notional Amounts of Component XX-0-0,
Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0, Component XA-2-1, Component XA-2-2,
Component XA-2-3, Component XA-2-4, Component XB, Component XC, Component XD,
Component XE, Component XF-1, Component XF-2, Component XG-1, Component XG-2,
Component XX-0, Xxxxxxxxx XX-0, Xxxxxxxxx XX-0, Component XJ-2 and Component XK.
(iii) With respect to any Distribution Date after the Distribution
Date in December 2004 through and including the Distribution Date in December
2005, the sum of the then Component Notional Amounts of Component XX-0-0,
Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0, Component XA-2-2, Component XA-2-3,
Component XA-2-4, Component XB, Component XC, Component XD, Component XE,
Component XF-1, Component XF-2, Component XG-1, Component XG-2, Component XX-0,
Xxxxxxxxx XX-0, Xxxxxxxxx XX-0, Component XJ-2 and Component XK.
(iv) With respect to any Distribution Date after the Distribution
Date in December 2005 through and including the Distribution Date in December
2006, the sum of the then Component Notional Amounts Component XX-0-0, Xxxxxxxxx
XX-0-0, Xxxxxxxxx XX-0-0, Component XA-2-3, Component XA-2-4, Component XB,
Component XC, Component XD, Component XE, Component XF-1, Component XF-2,
Component XG-1, Component XG-2, Component XH-1, Component XH-2 and Component
XJ-2.
(v) With respect to any Distribution Date after the Distribution
Date in December 2006 through and including the Distribution Date in December
2007, the sum of the then Component Notional Amounts of Component XA-2-2,
Component XA-2-3, Component XA-2-4, Component XB, Component XC, Component XD,
Component XE, Component XF-1, Component XF-2, Component XG-1, Component XG-2 and
Component XH-2.
(vi) With respect to any Distribution Date after the Distribution
Date in December 2007 through and including the Distribution Date in December
2008, the sum of the then Component Notional Amounts Component XA-2-3, Component
XA-2-4, Component XB, Component XC, Component XD, Component XE, Component XF-1,
Component XF-2 and Component XG-2.
(vii) With respect to any Distribution Date after the Distribution
Date in December 2008 through and including the Distribution Date in December
2009, the sum of the then Component Notional Amounts of Component XA-2-4,
Component XB, Component XC, Component XD, Component XE and Component XF-2.
(viii) With respect to any Distribution Date after the Distribution
Date in December 2009, $0.
"Class X-2 Pass-Through Rate": With respect to any Distribution
Date, the weighted average of the Class X-2 Strip Rates for the respective Class
X-2 Components that are Class X-2 Components which are included for purposes of
calculating the Class X-2 Notional Amount for such Distribution Date (weighted
on the basis of the respective Component Notional Amounts of such Components
outstanding immediately prior to such Distribution Date).
"Class X-2 Strip Rate": With respect to each Class X-2 Component, a
rate per annum equal to (i) for any Distribution Date occurring on or before the
Class X-2 Termination Date, the lesser of (A) the Weighted Average Net Mortgage
Rate for such Distribution Date, minus the sum of (y) the Pass-Through Rate for
the Related Certificates and (x) 0.01% (1 basis point) (provided that in no
event shall any Class X-2 Strip Rate be less than zero) or (B) the Class X-2
Fixed Strip and (ii) for any Distribution Date occurring after the Class X-2
Termination Date, 0% per annum.
"Class X-2 Termination Date": The Distribution Date in December
2009.
"Class WM Certificate": A Certificate designated as "Class WM" on
the face thereof, in the form of Exhibit A-21 hereto and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class WM Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Walgreens Mortgage Loan Remittance Rate.
"Closing Date": December 10, 2002.
"CMSA": The Commercial Mortgage Securities Association, or any
successor organization reasonably acceptable to the Paying Agent, the Trustee
and the Servicer.
"CMSA Bond Level File": The monthly report in the "CMSA Bond Level
File" format substantially in the form of and containing the information called
for therein, a current form of which is attached hereto as Exhibit L-1, or such
other form for the presentation of such information as may be approved from time
to time by the CMSA for commercial mortgage securities transactions generally
and, insofar as it requires the presentation of information in addition to that
called for by the form of the "CMSA Bond Level File" available as of the Closing
Date on the CMSA website, as is reasonably acceptable to the Paying Agent and
the Trustee.
"CMSA Collateral Summary File": The monthly report in the "CMSA
Collateral Summary File" format substantially in the form of and containing the
information called for therein, a current form of which is attached hereto as
Exhibit L-2, or such other form for the presentation of such information as may
be approved from time to time by the CMSA for commercial mortgage securities
transactions generally and, insofar as it requires the presentation of
information in addition to that called for by the form of the "CMSA Collateral
Summary File" available as of the Closing Date on the CMSA website, is
reasonably acceptable to the Paying Agent and the Trustee.
"CMSA Comparative Financial Status Report": The monthly report in
"Comparative Financial Status Report" format substantially in the form of and
containing the information called for therein for the Mortgage Loans, a current
form of which is attached hereto as Exhibit L-7, or such other form for the
presentation of such information as may be approved from time to time by the
CMSA for commercial mortgage securities transactions generally and, insofar as
it requires the presentation of information in addition to that called for by
the form of the "Comparative Financial Status Report" available as of the
Closing Date on the CMSA website, is reasonably acceptable to the Servicer or
the Special Servicer, as applicable, setting forth for all Mortgage Loans (other
than the 00/000 Xxxxxxx Xxxxxx Mortgage Loan), among other things, (A) the most
recent property inspection date for each Mortgaged Property to be covered
thereby and (B) in each instance based on (1) the rent roll for the
corresponding reporting period and (2) to the extent in the possession or under
the control of the Servicer (i) for year-end financial reports (in descending
order of desirability), (a) trailing 12-months normalized financial information,
or (b) if the information in clause (a) is not available, normalized financial
information based on no less than nine months of operating statements
(annualized), or (c) if the information in clauses (a) and (b) is not available,
the most recent current year-to-date financial information (annualized) and (ii)
with respect to quarterly reports, the current year-to-date financial
information: (x) the occupancy and debt service coverage ratio for each Mortgage
Loan or Mortgaged Property, as applicable, to be covered thereby; and (y) the
revenue, expense, net operating income and net cash flow for each Mortgaged
Property to be covered thereby. For the purposes of the production by the
Servicer or the Special Servicer of any such report that is required to state
information with respect to any Mortgage Loan for any period prior to the
Cut-Off Date, the Servicer or the Special Servicer, as the case may be, may
conclusively rely (without independent verification), absent manifest error, on
information provided to it by the related Mortgage Loan Seller, by the related
Mortgagor or (x) in the case of such a report produced by the Servicer, by the
Special Servicer (if other than the Servicer or an Affiliate thereof) and (y) in
the case of such a report produced by the Special Servicer, by the Servicer (if
other than the Special Servicer or an Affiliate thereof).
"CMSA Delinquent Loan Status Report": The monthly report in the
"Delinquent Loan Status Report" format substantially in the form of and
containing the information called for therein for the Mortgage Loans, a current
form of which is attached hereto as Exhibit L-8, or such other form for the
presentation of such information as may be approved from time to time by the
CMSA for commercial mortgage securities transactions generally and, insofar as
it requires the presentation of information in addition to that called for by
the form of the "Delinquent Loan Status Report" available as of the Closing Date
on the CMSA website, is reasonably acceptable to the Servicer or the Special
Servicer, as applicable.
"CMSA Financial File": The monthly report in the "CMSA Financial
File" format substantially in the form of and containing the information called
for therein for the Mortgage Loans, a current form of which is attached hereto
as Exhibit L-3, or such other form for the presentation of such information as
may be approved from time to time by the CMSA for commercial mortgage securities
transactions generally and, insofar as it requires the presentation of
information in addition to that called for by the form of the "CMSA Financial
File" available as of the Closing Date on the CMSA website, is reasonably
acceptable to the Servicer or the Special Servicer, as applicable.
"CMSA Historical Liquidation Report": The monthly report in the
"Historical Liquidation File" format substantially in the form of and containing
the information called for therein for the Mortgage Loans, a current form of
which is attached hereto as Exhibit L-9, or such other form for the presentation
of such information as may be approved from time to time by the CMSA for
commercial mortgage securities transactions generally and, insofar as it
requires the presentation of information in addition to that called for by the
form of the "Historical Liquidation Report" available as of the Closing Date on
the CMSA website, is reasonably acceptable to the Servicer or the Special
Servicer, as applicable.
"CMSA Historical Loan Modification Report": The monthly report in
the "Historical Loan Modification Report" format substantially in the form of
and containing the information called for therein for the Mortgage Loans, a
current form of which is attached hereto as Exhibit L-10, or such other form for
the presentation of such information as may be approved from time to time by the
CMSA for commercial mortgage securities transactions generally and, insofar as
it requires the presentation of information in addition to that called for by
the form of the "Historical Loan Modification Report" available as of the
Closing Date on the CMSA website, is reasonably acceptable to the Servicer or
the Special Servicer, as applicable.
"CMSA Investor Reporting Package (IRP)": The collection of reports
specified by the CMSA from time to time as the "CMSA Investor Reporting
Package". As of the Closing Date, the CMSA IRP contains six electronic files
((1) CMSA Loan Set-up File, (2) CMSA Loan Periodic Update File, (3) CMSA
Property File, (4) CMSA Bond Level File, (5) CMSA Collateral Summary File and
(6) CMSA Financial File) and eight surveillance reports ((1) Servicer Watch
List, (2) CMSA Delinquent Loan Status Report, (3) CMSA REO Status Report, (4)
CMSA Comparative Financial Status Report, (5) CMSA Historical Loan Modification
Report, (6) CMSA Historical Liquidation Report, (7) CMSA Operating Statement
Analysis Report and (8) CMSA NOI Adjustment Worksheet). The CMSA IRP shall be
substantially in the form of, and containing the information called for in, the
downloadable forms of the "CMSA IRP" available as of the Closing Date on the
CMSA website, or such other form for the presentation of such information and
containing such additional information as may from time to time be approved by
the CMSA for commercial mortgage-backed securities transaction generally and,
insofar as it requires the presentation of information in addition to that
called for by the form of the "CMSA IRP" available as of the Closing Date on the
CMSA website, as is reasonably acceptable to the Servicer, the Special Servicer,
the Paying Agent and the Trustee. For the purposes of the production of the CMSA
Comparative Financial Status Report by the Servicer or the Special Servicer of
any such report that is required to state information for any period prior to
the Cut-off Date, the Servicer or the Special Servicer, as the case may be, may
conclusively rely (without independent verification), absent manifest error, on
information provided to it by the Mortgage Loan Sellers or by the related
Mortgagor or (x) in the case of such a report produced by the Servicer, by the
Special Servicer (if other than the Servicer or an Affiliate thereof) and (y) in
the case of such a report produced by the Special Servicer, by the Servicer (if
other than the Special Servicer or an Affiliate thereof).
"CMSA Loan Periodic Update File": The monthly report in the "CMSA
Loan Periodic Update File" format substantially in the form of and containing
the information called for therein for the Mortgage Loans, a current form of
which is attached hereto as Exhibit L-4, or such other form for the presentation
of such information as may be approved from time to time by the CMSA for
commercial mortgage securities transactions generally and, insofar as it
requires the presentation of information in addition to that called for by the
form of the "CMSA Loan Periodic Update File" available as of the Closing Date on
the CMSA website, as is reasonably acceptable to the Paying Agent, the Servicer
and the Trustee.
"CMSA Loan Setup File": The report in the "CMSA Loan Setup File"
format substantially in the form of and containing the information called for
therein for the Mortgage Loans, a current form of which is attached hereto as
Exhibit L-5, or such other form for the presentation of such information as may
be approved from time to time by the CMSA for commercial mortgage securities
transactions generally and, insofar as it requires the presentation of
information in addition to that called for by the form of the "CMSA Loan Setup
File" available as of the Closing Date on the CMSA website, is reasonably
acceptable to the Paying Agent and the Servicer.
"CMSA Operating Statement Analysis Report": The monthly report in
the "Operating Statement Analysis Report" format substantially in the form of
and containing the information called for therein for the Mortgage Loans, a
current form of which is attached hereto as Exhibit L-12, or such other form for
the presentation of such information as may be approved from time to time by the
CMSA for commercial mortgage securities transactions generally and, insofar as
it requires the presentation of information in addition to that called for by
the form of the "Operating Statement Analysis Report" available as of the
Closing Date on the CMSA website, is reasonably acceptable to the Servicer or
the Special Servicer, as applicable.
"CMSA NOI Adjustment Worksheet": The monthly report in the "NOI
Adjustment Worksheet" format substantially in the form of and containing the
information called for therein for the Mortgage Loans, a current form of which
is attached hereto as Exhibit L-11, or such other form for the presentation of
such information as may be approved from time to time by the CMSA for commercial
mortgage securities transactions generally and, insofar as it requires the
presentation of information in addition to that called for by the form of the
"NOI Adjustment Worksheet" available as of the Closing Date on the CMSA website,
is reasonably acceptable to the Servicer or the Special Servicer, as applicable.
"CMSA Property File": The monthly report in the "CMSA Property File"
format substantially in the form of and containing the information called for
therein for the Mortgage Loans, a current form of which is attached hereto as
Exhibit L-6, or such other form for the presentation of such information as may
be approved from time to time by the CMSA for commercial mortgage securities
transactions generally and, insofar as it requires the presentation of
information in addition to that called for by the form of the "CMSA Property
File" available as of the Closing Date on the CMSA website, is reasonably
acceptable to the Servicer or the Special Servicer, as applicable.
"CMSA REO Status Report": The report in the "REO Status Report"
format substantially in the form of and containing the information called for
therein for the Mortgage Loans, a current form of which is attached hereto as
Exhibit L-13, or such other form for the presentation of such information as may
be approved from time to time by the CMSA for commercial mortgage securities
transactions generally and, insofar as it requires the presentation of
information in addition to that called for by the form of the "REO Status
Report" available as of the Closing Date on the CMSA website, is reasonably
acceptable to the Servicer or the Special Servicer, as applicable.
"Code": The Internal Revenue Code of 1986, as amended from time to
time, and applicable final or temporary regulations of the U.S. Department of
the Treasury issued pursuant thereto.
"Collateral Support Deficit": As defined in Section 4.04.
"Commission": The Securities and Exchange Commission.
"Companion Distribution Account": With respect to the Long Island
Industrial Companion Loan, the separate account created and maintained by the
Companion Paying Agent pursuant to Section 3.04(b) and held on behalf of the
applicable Companion Holder, which shall be entitled "Wachovia Bank, National
Association, as Companion Paying Agent for the Long Island Industrial Companion
Holder of the Long Island Industrial Companion Loan relating to the X.X. Xxxxxx
Xxxxx Commercial Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2002-C2." The Companion Distribution Account shall not be
an asset of the Trust Fund, but instead shall be held by the Companion Paying
Agent on behalf of the applicable Companion Holder. Any such account shall be an
Eligible Account.
"Companion Holder": With respect to any Companion Loan, the owner of
the Mortgage Note representing such Companion Loan.
"Companion Loan": As defined in the Preliminary Statement.
"Companion Paying Agent": The Servicer in its role as Companion
Paying Agent appointed pursuant to Section 3.30.
"Companion Register": The register maintained by the Companion
Paying Agent pursuant to Section 3.31.
"Compensating Interest Payments": With respect to each Mortgage Loan
(or REO Loan) other than the 00/000 Xxxxxxx Xxxxxx Mortgage Loan, an amount as
of any Distribution Date equal to the lesser of (i) the aggregate amount of
Prepayment Interest Shortfalls, and (ii) the aggregate of (A) that portion of
Servicing Fees for such Distribution Date that is, in the case of each and every
Mortgage Loan and REO Loan for which such Servicing Fees are being paid for such
Distribution Date, calculated at 0.0200% per annum, and (B) all Prepayment
Interest Excesses received in respect of the Mortgage Loans for the related
Distribution Date and, to the extent earned on Principal Prepayments, Net
Investment Earnings for such Distribution Date. However, if a Prepayment
Interest Shortfall occurs as a result of the Servicer's allowing the related
Mortgagor to deviate from the terms of the related Mortgage Loan documents
regarding Principal Prepayments (other than (X) subsequent to a default under
the related Mortgage Loan documents, (Y) pursuant to applicable law or a court
order, or (Z) at the request or with the consent of the Directing
Certificateholder), then, for purposes of calculating the Compensating Interest
Payment for the related Distribution Date, the amount in clause (ii) above shall
be the aggregate of (A) all Servicing Fees for such Distribution Date and (B)
all Prepayment Interest Excesses and, to the extent earned on Principal
Prepayments, Net Investment Earnings received by the Servicer for such
Distribution Date, and in no event will the rights of the Certificateholders to
offset of the aggregate Prepayment Interest Shortfalls be cumulative.
"Component": Each of Component XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx
XX-0-0, Component XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0, Component XA-2-2,
Component XA-2-3, Component XA-2-4, Component XB, Component XC, Component XD,
Component XE, Component XF-1, Component XF-2, Component XG-1, Component XG-2,
Component XX-0, Xxxxxxxxx XX-0, Xxxxxxxxx XX-0, Component XJ-2, Component XK,
Component XL, Component XM, Component XN and Component XNR.
"Component Notional Amount": With respect to each Component and any
date of determination, an amount equal to the then Lower-Tier Principal Amount
of its Related Uncertificated Lower-Tier Interest.
"Component XA-1-1": One of the twenty-six components of the Class
X-1 Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LA-1-1 Uncertificated Interest as of
any date of determination.
"Component XA-1-2": One of the twenty-six components of the Class
X-1 Certificates and one of the twenty-one components of the Class
X-2 Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LA-1-2 Uncertificated Interest as of
any date of determination.
"Component XA-1-3": One of the twenty-six components of the Class
X-1 Certificates and one of the twenty-one components of the Class X-2
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LA-1-3 Uncertificated Interest as of
any date of determination.
"Component XA-1-4": One of the twenty-six components of the Class
X-1 Certificates and one of the twenty-one components of the Class X-2
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LA-1-4 Uncertificated Interest as of
any date of determination.
"Component XA-1-5": One of the twenty-six components of the Class
X-1 Certificates and one of the twenty-one components of the Class X-2
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LA-1-5 Uncertificated Interest as of
any date of determination.
"Component XA-2-1": One of the twenty-six components of the Class
X-1 Certificates and one of the twenty-one components of the Class X-2
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LA-2-1 Uncertificated Interest as of
any date of determination.
"Component XA-2-2": One of the twenty-six components of the Class
X-1 Certificates and one of the twenty-one components of the Class X-2
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LA-2-2 Uncertificated Interest as of
any date of determination.
"Component XA-2-3": One of the twenty-six components of the Class
X-1 Certificates and one of the twenty-one components of the Class X-2
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LA-2-3 Uncertificated Interest as of
any date of determination.
"Component XA-2-4": One of the twenty-six components of the Class
X-1 Certificates and one of the twenty-one components of the Class X-2
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LA-2-4 Uncertificated Interest as of
any date of determination.
"Component XB": One of the twenty-six components of the Class X-1
Certificates and one of the twenty-one components of the Class X-2 Certificates
having a Component Notional Amount equal to the then current Lower-Tier
Principal Amount of the Class LB Uncertificated Interest as of any date of
determination.
"Component XC": One of the twenty-six components of the Class X-1
Certificates and one of the twenty-one components of the Class X-2 Certificates
having a Component Notional Amount equal to the then current Lower-Tier
Principal Amount of the Class LC Uncertificated Interest as of any date of
determination.
"Component XD": One of the twenty-six components of the Class X-1
Certificates and one of the twenty-one components of the Class X-2 Certificates
having a Component Notional Amount equal to the then current Lower-Tier
Principal Amount of the Class LD Uncertificated Interest as of any date of
determination.
"Component XE": One of the twenty-six components of the Class X-1
Certificates and one of the twenty-one components of the Class X-2 Certificates
having a Component Notional Amount equal to the then current Lower-Tier
Principal Amount of the Class LE Uncertificated Interest as of any date of
determination.
"Component XF-1": One of the twenty-six components of the Class X-1
Certificates and one of the twenty-one components of the Class X-2 Certificates
having a Component Notional Amount equal to the then current Lower-Tier
Principal Amount of the Class LF-1 Uncertificated Interest as of any date of
determination.
"Component XF-2": One of the twenty-six components of the Class X-1
Certificates and one of the twenty-one components of the Class X-2 Certificates
having a Component Notional Amount equal to the then current Lower-Tier
Principal Amount of the Class LF-2 Uncertificated Interest as of any date of
determination.
"Component XG-1": One of the twenty-six components of the Class X-1
Certificates and one of the twenty-one components of the Class X-2 Certificates
having a Component Notional Amount equal to the then current Lower-Tier
Principal Amount of the Class LG-1 Uncertificated Interest as of any date of
determination.
"Component XG-2": One of the twenty-six components of the Class X-1
Certificates and one of the twenty-one components of the Class X-2 Certificates
having a Component Notional Amount equal to the then current Lower-Tier
Principal Amount of the Class LG-2 Uncertificated Interest as of any date of
determination.
"Component XH-1": One of the twenty-six components of the Class X-1
Certificates and one of the twenty-one components of the Class X-2 Certificates
having a Component Notional Amount equal to the then current Lower-Tier
Principal Amount of the Class LH-1 Uncertificated Interest as of any date of
determination.
"Component XH-2": One of the twenty-six components of the Class X-1
Certificates and one of the twenty-one components of the Class X-2 Certificates
having a Component Notional Amount equal to the then current Lower-Tier
Principal Amount of the Class LH-2 Uncertificated Interest as of any date of
determination.
"Component XJ-1": One of the twenty-six components of the Class X-1
Certificates and one of the twenty-one components of the Class X-2 Certificates
having a Component Notional Amount equal to the then current Lower-Tier
Principal Amount of the Class LJ-1 Uncertificated Interest as of any date of
determination.
"Component XJ-2": One of the twenty-six components of the Class X-1
Certificates and one of the twenty-one components of the Class X-2 Certificates
having a Component Notional Amount equal to the then current Lower-Tier
Principal Amount of the Class LJ-2 Uncertificated Interest as of any date of
determination.
"Component XK": One of the twenty-six components of the Class X-1
Certificates and one of the twenty-one components of the Class X-2 Certificates
having a Component Notional Amount equal to the then current Lower-Tier
Principal Amount of the Class LK Uncertificated Interest as of any date of
determination.
"Component XL": One of the twenty-six components of the Class X-1
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LL Uncertificated Interest as of any
date of determination.
"Component XM": One of the twenty-six components of the Class X-1
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LM Uncertificated Interest as of any
date of determination.
"Component XN": One of the twenty-six components of the Class X-1
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LN Uncertificated Interest as of any
date of determination.
"Component XNR": One of the twenty-six components of the Class X-1
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LNR Uncertificated Interest as of any
date of determination.
"Controlling Class": As of any date of determination, the most
subordinate Class of Regular Certificates then outstanding that has a then
aggregate Certificate Balance at least equal to 25% of the initial Certificate
Balance of such Class of Certificates. As of the Closing Date, the Controlling
Class will be the Class NR Certificates.
"Controlling Class Certificateholder's Option Period": As defined in
Section 3.18 (a)(ii).
"Controlling Class Certificateholders": Each Holder (or Certificate
Owner, if applicable) of a Certificate of the Controlling Class as certified by
the Certificate Registrar to the Trustee from time to time by such Holder (or
Certificate Owner).
"Controlling Class Option Holder": As defined in Section 3.18(a)(i).
"Corporate Trust Office": The principal corporate trust office of
the Trustee at which at any particular time its corporate trust business with
respect to this Agreement shall be administered, which office at the date of the
execution of this Agreement is located at 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx,
Xxxxxxxx 00000, Attention: Corporate Trust Services (CMBS), X.X. Xxxxxx Xxxxx
Commercial Mortgage Securities Corp., Series 2002-C2 (telecopy number (410)
884-2360).
"Corrected Mortgage Loan": Any Specially Serviced Mortgage Loan that
has become current and remained current for three consecutive full and timely
Monthly Payments (for such purposes taking into account any modification or
amendment of such Mortgage Loan), and (provided that no additional Servicing
Transfer Event is foreseeable in the reasonable judgment of the Special
Servicer) the servicing of which the Special Servicer has returned to the
Servicer pursuant to Section 3.21(a).
"Crossed Group": With respect to any Mortgage Loan, such Mortgage
Loan and all other Mortgage Loans that are cross-collateralized and
cross-defaulted with such Mortgage Loan.
"Crossed Loan": A Mortgage Loan that is cross-collateralized and
cross-defaulted with one or more other Mortgage Loans.
"Crossed Loan Repurchase Criteria": (i) The Debt Service Coverage
Ratio for all remaining related Crossed Loans for the four calendar quarters
immediately preceding the repurchase or substitution shall not be less than the
greater of (a) Debt Service Coverage Ratio for all such related Crossed Loans,
including the affected Crossed Loan, for the four calendar quarters immediately
preceding the repurchase or substitution, and (b) 1.25x (ii) the LTV Ratio for
all remaining related Crossed Loans determined at the time of repurchase or
substitution based upon an Appraisal obtained by the Special Servicer at the
expense of the related Mortgage Loan Seller shall not be greater than the lesser
of (a) LTV Ratio for all such related Crossed Loans, including the affected
Crossed Loan, determined at the time of repurchase or substitution based upon an
Appraisal obtained by the Special Servicer at the expense of the related
Mortgage Loan Seller and (b) 75%, (iii) the Mortgage Loan Seller, at its
expense, shall have furnished the Trustee with an Opinion of Counsel that any
modification relating to the repurchase of a Crossed Loan shall not cause an
Adverse REMIC Event, and (iv) the Directing Certificateholder shall have
consented to the repurchase of the affected Crossed Loan, which consent shall
not be unreasonably withheld.
"Custodian": A Person who is at any time appointed by the Trustee
pursuant to Section 8.11 as a document custodian for the Mortgage Files, which
Person shall not be the Depositor, any of the Mortgage Loan Sellers or an
Affiliate of any of them. The Trustee shall be the initial Custodian.
"Cut-off Date": With respect to each Mortgage Loan or Companion
Loan, the related Due Date of such Mortgage Loan or Companion Loan in
December 2002.
"Cut-off Date Principal Balance": With respect to any Mortgage Loan
or Companion Loan, the outstanding principal balance of such Mortgage Loan or
Companion Loan as of the Cut-off Date, after application of all payments of
principal due on or before such date, whether or not received.
"Debt Service Coverage Ratio": With respect to any Mortgage Loan for
any twelve month period covered by an annual operating statement for the related
Mortgaged Property, the ratio of (i) Net Operating Income produced by the
related Mortgaged Property during such period to (ii) the aggregate amount of
Monthly Payments (other than any Balloon Payment) due under such Mortgage Loan
during such period, provided that with respect to the Mortgage Loans indicated
on Schedule 2, which pay interest only for a specified period of time set forth
in the related Mortgage Loan documents and then pay principal and interest, the
related Monthly Payment will be calculated (for purposes of this definition
only) to include interest and principal (based on the amortization schedule
indicated on Schedule 2).
"Default Interest": With respect to any Mortgage Loan or Companion
Loan, all interest accrued in respect of such Mortgage Loan or Companion Loan
during such Due Period provided for in the related Mortgage Note or Mortgage as
a result of a default (exclusive of late payment charges) that is in excess of
interest at the related Mortgage Rate accrued on the unpaid principal balance of
such Mortgage Loan or Companion Loan outstanding from time to time.
"Defaulted Mortgage Loan": A Mortgage Loan (i) that is delinquent at
least sixty days in respect of its Monthly Payments or more than thirty days (or
sixty days with respect to the circumstances described in clause (ii) of the
definition of Servicing Transfer Event) delinquent in respect of its Balloon
Payment, if any, in either case such delinquency to be determined without giving
effect to any grace period permitted by the related Mortgage or Mortgage Note
and without regard to any acceleration of payments under the related Mortgage
and Mortgage Note or (ii) as to which the Servicer or Special Servicer has, by
written notice to the related Mortgagor, accelerated the maturity of the
indebtedness evidenced by the related Mortgage Note.
"Defaulting Party": As defined in Section 7.01(b).
"Defect": As defined in Section 2.02(f).
"Deficient Valuation": With respect to any Mortgage Loan, a
valuation by a court of competent jurisdiction of the Mortgaged Property in an
amount less than the then outstanding principal balance of the Mortgage Loan,
which valuation results from a proceeding initiated under the Bankruptcy Code.
"Definitive Certificate": Any Certificate in definitive, fully
registered form without interest coupons.
"Denomination": As defined in Section 5.01(a).
"Depositor": X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
a Delaware corporation, and its successors in interest.
"Depository": The Depository Trust Company, or any successor
Depository hereafter named. The nominee of the initial Depository for purposes
of registering those Certificates that are to be Book-Entry Certificates, is
Cede & Co. The Depository shall at all times be a "clearing corporation" as
defined in Section 8-102(3) of the Uniform Commercial Code of the State of New
York and a "clearing agency" registered pursuant to the provisions of Section
17A of the Exchange Act.
"Depository Participant": A broker, dealer, bank or other financial
institution or other Person for whom from time to time the Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
"Depository Rules": As defined in Section 5.02(b).
"Determination Date": With respect to any Distribution Date, the
fourth Business Day preceding such Distribution Date.
"Determination Information": As defined in Section 3.18(a)(i).
"Directing Certificateholder": The Controlling Class
Certificateholder selected by more than 50% of the Controlling Class
Certificateholders, by Certificate Balance, as certified by the Certificate
Registrar from time to time; provided, however, that (i) absent such selection,
or (ii) until a Directing Certificateholder is so selected or (iii) upon receipt
of a notice from a majority of the Controlling Class Certificateholders, by
Certificate Balance, that a Directing Certificateholder is no longer designated,
the Controlling Class Certificateholder that owns the largest aggregate
Certificate Balance of the Controlling Class will be the Directing
Certificateholder which will initially be ARCap CMBS Fund REIT, Inc.
"Directly Operate": With respect to any REO Property, the furnishing
or rendering of services to the tenants thereof, that are not customarily
provided to tenants in connection with the rental of space "for occupancy only"
within the meaning of Treasury Regulations Section 1.512(b)-1(c)(5), the
management or operation of such REO Property, the holding of such REO Property
primarily for sale to customers, the use of such REO Property in a trade or
business conducted by the Trust Fund or the performance of any construction work
on the REO Property (other than the completion of a building or improvement,
where more than 10% of the construction of such building or improvement was
completed before default became imminent), other than through an Independent
Contractor; provided, however, that 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 or
capital expenditures with respect to such REO Property or takes other actions
consistent with Treasury Regulations Section 1.856-4(b)(5)(ii).
"Disqualified Organization": Any of (i) the United States, any State
or political subdivision thereof, any possession of the United States or any
agency or instrumentality of any of the foregoing (other than an instrumentality
which is a corporation if all of its activities are subject to tax and a
majority of its board of directors is not selected by such governmental unit),
(ii) a foreign government, any international organization or any agency or
instrumentality of any of the foregoing, (iii) any organization (other than
certain farmers' cooperatives described in Section 521 of the Code) which is
exempt from the tax imposed by Chapter 1 of the Code (including the tax imposed
by Section 511 of the Code on unrelated business taxable income), (iv) rural
electric and telephone cooperatives described in Section 1381(a)(2)(C) of the
Code and (v) any other Person so designated by the Trustee based upon an Opinion
of Counsel as provided to the Trustee (at no expense to the Trustee) that the
holding of an Ownership Interest in a Residual Certificate by such Person may
cause the Upper-Tier REMIC, the Lower-Tier REMIC or either of the Loan REMICs to
fail to qualify as a REMIC or any Person having an Ownership Interest in any
Class of Certificates (other than such Person) to incur a liability for any
federal tax imposed under the Code that would not otherwise be imposed but for
the Transfer of an Ownership Interest in a Residual Certificate to such Person.
The terms "United States", "State" and "international organization" shall have
the meanings set forth in Section 7701 of the Code or successor provisions.
"Distributable Certificate Interest": With respect to any
Distribution Date, as to any Class of Regular Certificates, the Accrued
Certificate Interest in respect of such Class of Regular Certificates for such
Distribution Date, reduced (to not less than zero) by any allocations to such
Class of Certificates (other than in the case of the Class X Certificates) of
(i) the product of (a) any Net Aggregate Prepayment Interest Shortfall for such
Distribution Date, multiplied by (b) a fraction, expressed as a decimal, the
numerator of which is the Accrued Certificate Interest in respect of such Class
of Certificates for such Distribution Date, and the denominator of which is the
aggregate Accrued Certificate Interest in respect of all the Classes of Regular
Certificates (other than the Class X Certificates) for such Distribution Date,
and (ii) any Certificate Deferred Interest for such Distribution Date allocated
to such Class pursuant to Section 4.05(a).
With respect to any Class of Class SP Certificates, the Accrued
Certificate Interest in respect of such Class of Certificates for such
Distribution Date, reduced (to not less than zero) by (i) any allocations, if
any, of the Net Aggregate Prepayment Interest Shortfall related to the Simon
Mortgage Loan for such Distribution Date allocated to such Class of Class SP
Certificates as set forth below, and (ii) any Certificate Deferred Interest for
such Distribution Date allocated to such Class pursuant to Section 4.05(a). The
Net Aggregate Prepayment Interest Shortfall for the Simon Mortgage Loan, if any,
for each Distribution Date shall be allocated, up to an amount equal to the
lesser of any such Net Aggregate Prepayment Interest Shortfall and any Accrued
Certificate Interest in respect of the particular Class of Class SP Certificates
for such Distribution Date, first, to the Class SP-3 Certificates, then to the
Class SP-2 Certificates, and then to the Class SP-1 Certificates and,
thereafter, if and to the extent that any portion of such Net Aggregate
Prepayment Interest Shortfall remains unallocated, among the Regular
Certificates as described in the first paragraph of this definition.
With respect to the Class WM Certificates, the Accrued Certificate
Interest in respect of such Class of Certificates for such Distribution Date,
reduced (to not less than zero) by (i) any allocations, if any, of the Net
Aggregate Prepayment Interest Shortfall related to the Walgreens Mortgage Loan
for such Distribution Date allocated to the Class WM Certificates as set forth
below, and (ii) any Certificate Deferred Interest for such Distribution Date
allocated to such Class pursuant to Section 4.05(a). The Net Aggregate
Prepayment Interest Shortfall for the Walgreens Mortgage Loan, if any, for each
Distribution Date shall be allocated, up to an amount equal to the lesser of any
such Net Aggregate Prepayment Interest Shortfall and any Accrued Certificate
Interest in respect of the Class WM Certificates for such Distribution Date,
first, to the Class WM Certificates and, thereafter, if and to the extent that
any portion of such Net Aggregate Prepayment Interest Shortfall remains
unallocated, among the Regular Certificates as described in the first paragraph
of this definition.
"Distributable Simon Non-Pooled Component Interest": For any Simon
Loan REMIC Non-Pooled Regular Interest and any Distribution Date, the related
Accrued Simon Non-Pooled Component Interest for such Distribution Date, reduced
by (i) the amount of any Prepayment Interest Shortfall with respect to the Simon
Mortgage Loan for such Distribution Date in excess of the amount deposited by
the Servicer in the Certificate Account for such Distribution Date pursuant to
Section 3.19 with respect to the Simon Mortgage Loan, and (ii) the amount of any
Certificate Deferred Interest allocated to any Class of Class SP Certificates in
accordance with Section 4.05.
"Distributable Simon Pooled Component Interest": For any
Distribution Date, the Accrued Simon Pooled Component Interest for such
Distribution Date, reduced by (i) the amount described in the last sentence of
the second paragraph of the definition of Distributable Certificate Interest for
such Distribution Date relating to the Simon Mortgage Loan, and (ii) the amount
of any Certificate Deferred Interest allocated to any Class of Regular
Certificates with respect to the Simon Mortgage Loan in accordance with Section
4.05.
"Distributable Walgreens Non-Pooled Component Interest": For any
Distribution Date, the Accrued Walgreens Non-Pooled Component Interest for such
Distribution Date, reduced by (i) the amount of any Prepayment Interest
Shortfall with respect to the Walgreens Mortgage Loan for such Distribution Date
in excess of the amount deposited by the Servicer in the Certificate Account for
such Distribution Date pursuant to Section 3.19 with respect to the Walgreens
Mortgage Loan, and (ii) the amount of any Certificate Deferred Interest
allocated to the Class WM Certificates in accordance with Section 4.05.
"Distributable Walgreens Pooled Component Interest": For any
Distribution Date, the Accrued Walgreens Pooled Component Interest for such
Distribution Date, reduced by (i) the amount described in the last sentence of
the third paragraph of the definition of Distributable Certificate Interest for
such Distribution Date relating to the Walgreens Mortgage Loan, and (ii) the
amount of any Certificate Deferred Interest allocated to any Class of Regular
Certificates with respect to the Walgreens Mortgage Loan in accordance with
Section 4.05.
"Distribution Accounts": Collectively, the Upper-Tier Distribution
Account, the Lower-Tier Distribution Account, the Excess Interest Distribution
Account, the Simon Loan REMIC Distribution Account and the Walgreens Loan REMIC
Distribution Account, all of which may be subaccounts of a single account.
"Distribution Date": The 12th day of each month, or if such 12th
day is not a Business Day, on the next succeeding Business Day, beginning in
January 2003.
"Due Date": With respect to (i) any Mortgage Loan or Companion Loan
on or prior to its Maturity Date, the day of the month set forth in the related
Mortgage Note on which each Monthly Payment thereon is scheduled to be first
due, (ii) any Mortgage Loan or Companion Loan after the Maturity Date therefor,
the day of the month set forth in the related Mortgage Note on which each
Monthly Payment on such Mortgage Loan had been scheduled to be first due, and
(iii) any REO Loan, the day of the month set forth in the related Mortgage Note
on which each Monthly Payment on the related Mortgage Loan or Companion Loan had
been scheduled to be first due.
"Due Period": With respect to any Distribution Date and any Mortgage
Loan or Companion Loan, the period commencing on the day immediately succeeding
the Due Date for such Mortgage Loan occurring in the month preceding the month
in which such Distribution Date occurs and ending on and including the Due Date
for such Mortgage Loan or Companion Loan occurring in the month in which such
Distribution Date occurs. Notwithstanding the foregoing, in the event that the
last day of a Due Period (or applicable grace period) is not a Business Day, any
payments received with respect to the Mortgage Loans or Companion Loans relating
to such Due Period on the Business Day immediately following such day shall be
deemed to have been received during such Due Period and not during any other Due
Period.
"Eligible Account": Either (i) a segregated account or accounts
maintained with a federal or state chartered depository institution or trust
company (including the Trustee), the long-term unsecured debt obligations of
which are rated at least (A) "Aa3" by Moody's or "A2" provided that the short
term obligations of which are rated "P-1" by Moody's and (B) "A+" by S&P, if the
deposits are to be held in such account 30 days or more and the short-term debt
obligations of which have a short-term rating of not less than "A-1" from S&P,
if the deposits are to be held in such account for less than 30 days or such
other account or accounts with respect to which each of the Rating Agencies
shall have confirmed in writing that the then current rating assigned to any of
the Certificates that are currently being rated by such Rating Agency will not
be qualified, downgraded or withdrawn by reason thereof, or (ii) a segregated
trust account or accounts maintained with the corporate trust department of a
federal or state chartered depository institution or trust company that, in
either case, has a combined capital and surplus of at least $50,000,000 and has
corporate trust powers, acting in its fiduciary capacity, provided that any
state chartered depository institution or trust company is subject to regulation
regarding fiduciary funds substantially similar to 12 C.F.R. ss. 9.10(b).
Eligible Accounts may beaR interest. No Eligible Account shall be evidenced by a
certificate of deposit, passbook or other similar instrument.
"Eligible Investor": Either (i) a Qualified Institutional Buyer that
is purchasing for its own account or for the account of a Qualified
Institutional Buyer to whom notice is given that the offer, sale or transfer is
being made in reliance on Rule 144A or (ii) an Institutional Accredited
Investor.
"Environmental Assessment": A "Phase I assessment" as described in,
and meeting the criteria of the American Society of Testing Materials Standard
Sections 1527-99 or any successor thereto published by the American Society of
Testing Materials.
"Environmental Indemnity Agreement": With respect to any Mortgage
Loan, any agreement between the Mortgagor (or a guarantor thereof) and the
originator of such Mortgage Loan relating to the Mortgagor's obligation to
remediate or monitor or indemnify for any environmental problems relating to the
related Mortgaged Property.
"ERISA": The Employee Retirement Income Security Act of 1974, as
amended.
"ERISA Prohibited Holder": As defined in Section 5.02(c)(i)(A).
"ERISA Restricted Certificate": Any Class H, Class J, Class K, Class
L, Class M, Class N, Class NR, Class SP-2, Class SP-3 or Class WM Certificate;
provided that any such Certificate: (a) will cease to be considered an ERISA
Restricted Certificate and (b) will cease to be subject to the transfer
restrictions contained in Section 5.02(c) if, as of the date of a proposed
transfer of such Certificate, either (i) it is rated in one of the four highest
generic ratings categories by a Rating Agency or (ii) relevant provisions of
ERISA would permit the transfer of such Certificate to a Plan.
"Escrow Payment": Any payment received by the Servicer or the
Special Servicer for the account of any Mortgagor for application toward the
payment of real estate taxes, assessments, insurance premiums, ground lease
rents and similar items in respect of the related Mortgaged Property, including
amounts for deposit to any reserve account.
"Event of Default": One or more of the events described in Section
7.01(a).
"Excess Interest": With respect to each of the Mortgage Loans
indicated on the Mortgage Loan Schedule as having a Revised Rate, interest
accrued on such Mortgage Loan after the Anticipated Repayment Date allocable to
the Excess Rate, including all interest accrued thereon. The Excess Interest
shall not be an asset of either Loan REMIC, the Lower-Tier REMIC or the
Upper-Tier REMIC formed hereunder.
"Excess Interest Distribution Account": The trust account or
accounts created and maintained as a separate account or accounts (or as a
subaccount of the Distribution Account) by the Paying Agent pursuant to Section
3.04(b), which shall be entitled "LaSalle Bank National Association, as Paying
Agent, in trust for the registered Holders of X.X. Xxxxxx Xxxxx Commercial
Mortgage Securities Corp., Commercial Mortgage Pass-Through Certificates, Series
2002-C2, Excess Interest Distribution Account," and which must be an Eligible
Account (or as a subaccount of the Distribution Account). The Excess Interest
Distribution Account shall not be an asset of either Loan REMIC, the Lower-Tier
REMIC or the Upper-Tier REMIC formed hereunder.
"Excess Rate": With respect to each of the Mortgage Loans indicated
on the Mortgage Loan Schedule as having a Revised Rate, the excess of (i) the
applicable Revised Rate over (ii) the applicable Mortgage Rate, each as set
forth in the Mortgage Loan Schedule.
"Exchange Act": The Securities Exchange Act of 1934, as amended from
time to time.
"Xxxxxx Mae": Federal National Mortgage Association or any successor
thereto.
"FDIC": Federal Deposit Insurance Corporation or any successor.
"Final Recovery Determination": A reasonable determination by the
Special Servicer in consultation with the Directing Certificateholder, with
respect to any Defaulted Mortgage Loan (and if applicable, any defaulted
Companion Loan) or REO Property (other than a Mortgage Loan or REO Property, as
the case may be, that was purchased by any of the Mortgage Loan Sellers pursuant
to Section 6 of the applicable Mortgage Loan Purchase Agreement, the Controlling
Class Option Holder or the Special Servicer pursuant to Section 3.18(b), the
Companion Holders pursuant to Section 3.18(d), any mezzanine lender pursuant to
Section 3.18(f) or the Servicer, Special Servicer, the Holders of the
Controlling Class, or the Holders of the Class LR Certificates pursuant to
Section 9.01) that there has been a recovery of all Insurance and Condemnation
Proceeds, Liquidation Proceeds, REO Revenue and other payments or recoveries
that, in the Special Servicer's judgment, which judgment was exercised without
regard to any obligation of the Special Servicer to make payments from its own
funds pursuant to Section 3.07(b), will ultimately be recoverable.
"Xxxxxxx Mac": Federal Home Loan Mortgage Corporation or any
successor thereto.
"Gain-on-Sale Proceeds": With respect to any Mortgage Loan, the
excess of (i) Liquidation Proceeds of the Mortgage Loan or related REO Property
net of any related Liquidation Expenses, P&I Advances, Liquidation Fees,
interest on Advances, Servicing Fees, Special Servicing Fees and additional
Trust Fund expenses over (ii) the Purchase Price for such Mortgage Loan on the
date on which such Liquidation Proceeds were received.
"Gain-on-Sale Reserve Account": A segregated custodial account or
accounts created and maintained by the Paying Agent pursuant to Section 3.04(b)
on behalf of the Trustee in trust for the Certificateholders, which shall be
entitled "LaSalle Bank National Association, as Paying Agent, in trust for the
registered Holders of X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2002-C2, Gain-on-Sale
Reserve Account." Any such account shall be an Eligible Account.
"GMACCM": GMAC Commercial Mortgage Corporation, its successors and
assigns.
"Grantor Trust": A segregated asset pool within the Trust Fund
consisting of the Excess Interest and amounts held from time to time in the
Excess Interest Distribution Account.
"Ground Lease": The ground lease pursuant to which any Mortgagor
holds a leasehold interest in the related Mortgaged Property and any estoppels
or other agreements executed and delivered by the ground lessor in favor of the
lender under the Mortgage Loan.
"Hazardous Materials": Any dangerous, toxic or hazardous pollutants,
chemicals, wastes or substances, including, without limitation, those so
identified pursuant to CERCLA or any other federal, state or local environmental
related laws and regulations, and specifically including, without limitation,
asbestos and asbestos-containing materials, polychlorinated biphenyls, radon
gas, petroleum and petroleum products, urea formaldehyde and any substances
classified as being "in inventory", "usable work in process" or similar
classification which would, if classified as unusable, be included in the
foregoing definition.
"Independent": When used with respect to any specified Person, any
such Person who (i) is in fact independent of the Trustee, the Depositor, the
Servicer, the Special Servicer, the Paying Agent, the Directing
Certificateholder and any and all Affiliates thereof, (ii) does not have any
material direct financial interest in or any material indirect financial
interest in any of the Trustee, the Depositor, the Servicer, the Special
Servicer, the Paying Agent, the Directing Certificateholder or any Affiliate
thereof and (iii) is not connected with the Trustee, the Depositor, the
Servicer, the Special Servicer, the Paying Agent, the Directing
Certificateholder or any Affiliate thereof as an officer, employee, promoter,
underwriter, trustee, partner, director or Person performing similar functions;
provided, however, that a Person shall not fail to be Independent of the
Trustee, the Depositor, the Servicer, the Special Servicer, the Paying Agent or
any Affiliate thereof merely because such Person is the beneficial owner of 1%
or less of any Class of securities issued by the Trustee, the Depositor, the
Servicer, the Special Servicer, the Paying Agent, the Directing
Certificateholder or any Affiliate thereof, as the case may be.
"Independent Contractor": Either (i) any Person that would be an
"independent contractor" with respect to the Loan REMICs or the Lower-Tier REMIC
within the meaning of Section 856(d)(3) of the Code if the Loan REMICs or the
Lower-Tier REMIC were a real estate investment trust (except that the ownership
test set forth in that Section shall be considered to be met by any Person that
owns, directly or indirectly, 35% or more of any Class of Certificates, or such
other interest in any Class of Certificates as is set forth in an Opinion of
Counsel, which shall be at no expense to the Trustee, the Paying Agent, the
Servicer or the Trust, delivered to the Trustee, the Paying Agent and the
Servicer), so long as none of the Loan REMICs or the Lower-Tier REMIC receives
or derives any income from such Person and provided that the relationship
between such Person and the Loan REMICs or the Lower-Tier REMIC is at arm's
length, all within the meaning of Treasury Regulations Section 1.856-4(b)(5)
(except that the Servicer or the Special Servicer shall not be considered to be
an Independent Contractor under the definition in this clause (i) unless an
Opinion of Counsel has been delivered to the Trustee to that effect) or (ii) any
other Person (including the Servicer and the Special Servicer) upon receipt by
the Trustee, the Paying Agent and the Servicer of an Opinion of Counsel, which
shall be at no expense to the Trustee, the Paying Agent, the Servicer or the
Trust Fund, to the effect that the taking of any action in respect of any REO
Property by such Person, subject to any conditions therein specified, that is
otherwise herein contemplated to be taken by an Independent Contractor will not
cause such REO Property to cease to qualify as "foreclosure property" within the
meaning of Section 860G(a)(8) of the Code or cause any income realized in
respect of such REO Property to fail to qualify as Rents from Real Property.
"Initial Purchasers": X.X. Xxxxxx Securities Inc., Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated and ABN AMRO Incorporated.
"Initial Sub-Servicing Agreement": Any Sub-Servicing Agreement in
effect on the Closing Date.
"Initial Sub-Servicer": With respect to each Mortgage Loan that is
subject to a Sub-Servicing Agreement with the Servicer as of the Closing Date,
the Sub-Servicer under any such Sub-Servicing Agreement.
"Institutional Accredited Investor": An entity meeting the
requirements of Rule 501(a)(1), (2), (3) or (7) of Regulation D promulgated
under the Act.
"Insurance and Condemnation Proceeds": All proceeds paid under any
Insurance Policy or in connection with the full or partial condemnation of a
Mortgaged Property, in either case, to the extent such proceeds are not applied
to the restoration of the related Mortgaged Property or released to the
Mortgagor or any tenants or ground lessors, in either case, in accordance with
the Servicing Standards.
"Insurance Policy": With respect to any Mortgage Loan, any hazard
insurance policy, flood insurance policy, title policy or other insurance policy
that is maintained from time to time in respect of such Mortgage Loan or the
related Mortgaged Property.
"Intercreditor Agreement": Either of the Long Island Industrial
Intercreditor Agreement and the 00/000 Xxxxxxx Xxxxxx Co-Lender Agreement.
"Interest Accrual Period": With respect to the Class WM Certificates
or any Class of Regular Certificates, Class SP Certificates, Uncertificated
Lower-Tier Interests, Simon Loan REMIC Regular Interests or Walgreens Loan REMIC
Regular Interests and any Distribution Date, the period beginning on the first
day of the calendar month preceding the calendar month in which the related
Distribution Date occurs and ending on the last day of the calendar month
preceding the calendar month in which such Distribution Date occurs, calculated
assuming that each month has 30 days and each year has 360 days.
"Interest Distribution Amount": With respect to any Class of
Certificates (other than the Residual Certificates) for any Distribution Date,
an amount equal to the sum of the Distributable Certificate Interest and the
Class Unpaid Interest Shortfall with respect to such Class of Certificates for
such Distribution Date.
"Interest Reserve Account": The trust account or subaccount of the
Distribution Account created and maintained by the Paying Agent pursuant to
Section 3.25 in the name of "LaSalle Bank National Association, as Paying Agent,
in trust for the registered holders of X.X. Xxxxxx Xxxxx Commercial Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates, Series 2002-C2,
Interest Reserve Account", into which the amounts set forth in Section 3.25
shall be deposited directly and which must be an Eligible Account or subaccount
of the Distribution Account.
"Interest Reserve Loan": Each Mortgage Loan that is an Actual/360
Mortgage Loan.
"Interested Person": The Depositor, the Servicer, the Special
Servicer, any Independent Contractor engaged by the Special Servicer, any Holder
of a Certificate, any Companion Holder (but only as to the related AB Mortgage
Loan) or any Affiliate of any such Person.
"Investment Account": As defined in Section 3.06(a).
"Investment Representation Letter": As defined in Section 5.02(b).
"Late Collections": With respect to any Mortgage Loan, all amounts
received thereon prior to the related Determination Date, whether as payments,
Insurance and Condemnation Proceeds, Liquidation Proceeds or otherwise, which
represent late payments or collections of principal or interest due in respect
of such Mortgage Loan or Companion Loan (without regard to any acceleration of
amounts due thereunder by reason of default) on a Due Date prior to the
immediately preceding Determination Date and not previously recovered. With
respect to any REO Loan, all amounts received in connection with the related REO
Property prior to the related Determination Date, whether as Insurance and
Condemnation Proceeds, Liquidation Proceeds, REO Revenues or otherwise, which
represent late collections of principal or interest due or deemed due in respect
of such REO Loan or the predecessor Mortgage Loan (without regard to any
acceleration of amounts due under the predecessor Mortgage Loan by reason of
default) on a Due Date prior to the immediately preceding Determination Date and
not previously recovered. The term "Late Collections" shall specifically exclude
Penalty Charges.
"Liquidation Event": With respect to any Mortgage Loan, any of the
following events: (i) such Mortgage Loan is paid in full; (ii) a Final Recovery
Determination is made with respect to such Mortgage Loan; (iii) such Mortgage
Loan is repurchased by the applicable Mortgage Loan Seller pursuant to Section 6
of the related Mortgage Loan Purchase Agreement; (iv) such Mortgage Loan is
purchased by the Controlling Class Option Holder or the Special Servicer
pursuant to Section 3.18(b); (v) the Simon Mortgage Loan is purchased by the
Simon Representative pursuant to Section 3.18(d); (vi) such Mortgage Loan is
purchased by the Companion Holder pursuant to Section 3.18(e), any mezzanine
lender pursuant to Section 3.18(f) or GMACCM pursuant to Section 3.18(g) or
(vii) such Mortgage Loan is purchased by the Special Servicer, the Servicer, the
Holders of the Controlling Class or the Holders of the Class LR Certificates
pursuant to Section 9.01. With respect to any REO Property (and the related REO
Loan), any of the following events: (i) a Final Recovery Determination is made
with respect to such REO Property; (ii) such REO Property is purchased by the
Servicer, the Special Servicer, the Holders of the Controlling Class or the
Holders of the Class LR Certificates pursuant to Section 9.01; or (iii) such
Mortgage Loan is purchased by the Companion Holder pursuant to Section 3.18(e).
"Liquidation Expenses": All customary, reasonable and necessary "out
of pocket" costs and expenses incurred by the Special Servicer in connection
with the liquidation of any Specially Serviced Mortgage Loan or REO Property
pursuant to Section 3.18 (including, without limitation, legal fees and
expenses, committee or referee fees and, if applicable, brokerage commissions
and conveyance taxes).
"Liquidation Fee": A fee payable to the Special Servicer with
respect to each Specially Serviced Mortgage Loan as to which the Special
Servicer receives a full or discounted payoff (or an unscheduled partial payment
to the extent such prepayment is required by the Special Servicer as a condition
to a modification of the terms of the related Mortgage Loan) with respect
thereto from the related Mortgagor or any Liquidation Proceeds or Insurance and
Condemnation Proceeds with respect to the related Mortgage Loan (in any case,
other than amounts for which a Workout Fee has been paid, or will be payable),
equal to the product of the Liquidation Fee Rate and the proceeds of such full
or discounted payoff or the Liquidation Proceeds or Insurance and Condemnation
Proceeds (net of the related costs and expenses associated with the related
liquidation) related to such liquidated Specially Serviced Mortgage Loan, as the
case may be; provided, however, that no Liquidation Fee shall be payable with
respect to (x) clause (iii)(A) and clauses (iii)(C) through (iii)(F) of the
definition of "Liquidation Proceeds," (y) clause (iv) of the definition of
"Liquidation Proceeds" if such repurchase occurs within the time parameters set
forth in this Agreement and in the related Mortgage Loan Purchase Agreement or,
if such repurchase occurs after such time period, the Mortgage Loan Seller was
acting in good faith to resolve such breach or defect or (z) clause (iii) of the
definition of "Liquidation Proceeds".
"Liquidation Fee Rate": A rate equal to 1.00%.
"Liquidation Proceeds": Cash amounts received by or paid to the
Servicer or the Special Servicer in connection with: (i) the liquidation of a
Mortgaged Property or other collateral constituting security for a Defaulted
Mortgage Loan, through a trustee's sale, foreclosure sale, REO Disposition or
otherwise, exclusive of any portion thereof required to be released to the
related Mortgagor in accordance with applicable law and the terms and conditions
of the related Mortgage Note and Mortgage; (ii) the realization upon any
deficiency judgment obtained against a Mortgagor; (iii) (A) the purchase of a
Defaulted Mortgage Loan by the Majority Controlling Class Certificateholder, the
Special Servicer or the Servicer pursuant to Section 3.18(a), (B) any other sale
thereof pursuant to Section 3.18(c); (C) the Simon Mortgage Loan is purchased by
the Simon Representative pursuant to Section 3.18(d); (D) the purchase of an AB
Mortgage Loan by the related Companion Holder pursuant to Section 3.18(e), (E)
the purchase of a Mortgage Loan by any mezzanine lender pursuant to Section
3.18(f) or (F) the purchase of the ARC Portfolio Mortgage Loan by GMACCM
pursuant to Section 3.18(g); (iv) the repurchase of a Mortgage Loan by the
applicable Mortgage Loan Seller pursuant to Section 6 of the related Mortgage
Loan Purchase Agreement; or (v) the purchase of a Mortgage Loan or REO Property
by the Holders of the Controlling Class, the Special Servicer, the Servicer or
the Holders of the Class LR Certificates pursuant to Section 9.01.
"Loan Pair": Collectively, a Companion Loan and the related AB
Mortgage Loan.
"Loan REMIC": Either the Simon Loan REMIC or the Walgreens Loan
REMIC, as the context requires.
"Loan REMIC Regular Interest": Any Simon Loan REMIC Regular Interest
or Walgreens Loan REMIC Regular Interest.
"Long Island Industrial Mortgage Loan": The Mortgage Loan identified
on the Mortgage Loan Schedule as loan number 4.
"Long Island Industrial Companion Loan": The Companion Loan related
to the Long Island Industrial Mortgage Loan.
"Long Island Industrial Companion Holder": The owner of the Mortgage
Note representing the Long Island Industrial Companion Loan.
"Long Island Industrial Intercreditor Agreement": Intercreditor
Agreement Among Note Holders, dated as of September 30, 2002, between JPMorgan
Chase Bank, as A Note Holder, and CBA-Mezzanine Capital Finance, LLC, as B Note
Holder, regarding the administration of a Loan Pair that includes the Long
Island Industrial Mortgage Loan and the allocation of all amounts received by
the holders of the notes constituting any portion thereof.
"Long Island Industrial Loan Pair": Collectively, the Long Island
Industrial Mortgage Loan and the Long Island Industrial Companion Loan.
"Lower-Tier Distribution Account": The segregated account or
accounts (or a subaccount of the Distribution Account) created and maintained by
the Paying Agent pursuant to Section 3.04(b) in trust for the
Certificateholders, which shall be entitled "LaSalle Bank National Association,
as Paying Agent, in trust for the registered Holders of X.X. Xxxxxx Xxxxx
Commercial Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2002-C2, the Lower-Tier Distribution Account". Any such
account or accounts shall be an Eligible Account (or a subaccount of the
Distribution Account).
"Lower-Tier Distribution Amount": As defined in Section 4.01(b).
"Lower-Tier Principal Amount": With respect to any Class of
Uncertificated Lower-Tier Interests, (i) on or prior to the first Distribution
Date, an amount equal to the Original Lower-Tier Principal Amount of such Class
as specified in the Preliminary Statement hereto, and (ii) as of any date of
determination after the first Distribution Date, an amount equal to the
Certificate Balance of the Class of Related Certificates on the Distribution
Date immediately prior to such date of determination (determined as adjusted
pursuant to Section 1.02(iii)), and in the case of the Class LA-1-1, Class
LA-1-2, Class LA-1-3, Class LA-1-4, Class LA-1-5, Class LA-2-1, Class LA-2-2,
Class LA-2-3, Class LA-2-4, Class LF-1, Class LF-2, Class LG-1, Class LG-2,
Class LH-1, Class LH-2, Class LJ-1 and Class LJ-2 Uncertificated Interests, as
set forth in Section 4.01(b).
"Lower-Tier REMIC": One of four separate REMICs comprising the Trust
Fund, the assets of which consist of the Majority Mortgage Loans (exclusive of
Excess Interest), any REO Property with respect thereto, the Loan REMIC Regular
Interests, such amounts as shall from time to time be held in the Certificate
Account, the REO Account, if any, the Interest Reserve Account, the Gain-on-Sale
Reserve Account and the Lower-Tier Distribution Account with respect thereto,
and all other property included in the Trust Fund (other than Excess Interest)
that is not in the Loan REMICs or the Upper-Tier REMIC.
"LTV Ratio": With respect to any Mortgage Loan, as of any date of
determination, a fraction, expressed as a percentage, the numerator of which is
the scheduled principal balance of such Mortgage Loan as of such date (assuming
no defaults or prepayments on such Mortgage Loan prior to that date), and the
denominator of which is the Appraised Value of the related Mortgaged Property.
"MAI": Member of the Appraisal Institute.
"Majority Controlling Class Certificateholder": As of any date, the
Controlling Class Certificateholder owning a majority of the Percentage
Interests in the Controlling Class.
"Majority Mortgage Loans": All Mortgage Loans except the Simon
Mortgage Loan and the Walgreens Mortgage Loan.
"Maturity Date": With respect to any Mortgage Loan or Companion Loan
as of any date of determination, the date on which the last payment of principal
is due and payable under the related Mortgage Note, after taking into account
all Principal Prepayments received prior to such date of determination, but
without giving effect to (i) any acceleration of the principal of such Mortgage
Loan or Companion Loan by reason of default thereunder or (ii) any grace period
permitted by the related Mortgage Note.
"Monthly Payment": With respect to any Mortgage Loan, the scheduled
monthly payment of principal and/or interest on such Mortgage Loan, including
any Balloon Payment, which is payable by a Mortgagor from time to time under the
related Mortgage Note and applicable law, without regard to any acceleration of
principal of such Mortgage Loan by reason of default thereunder and without
respect to any Excess Interest.
"Moody's": Xxxxx'x Investors Service, Inc. If neither Moody's nor
any successor remains in existence, "Moody's" shall be deemed to refer to such
other nationally recognized statistical rating agency or other comparable Person
designated by the Depositor, notice of which designation shall be given to the
Paying Agent, the Trustee, the Servicer and the Special Servicer, and specific
ratings of Moody's herein referenced shall be deemed to refer to the equivalent
ratings of the party so designated.
"Mortgage": With respect to any Mortgage Loan, the mortgage, deed of
trust or other instrument securing a Mortgage Note and creating a lien on the
fee and/or leasehold interest in the related Mortgaged Property.
"Mortgage Deferred Interest": With respect to any Mortgage Loan as
of any Due Date that has been modified to reduce the rate at which interest is
paid currently below the Mortgage Rate and capitalize the amount of such
interest reduction, the excess, if any, of (a) interest accrued on the Stated
Principal Balance thereof during the one-month interest accrual period set forth
in the related Mortgage Note at the related Mortgage Rate over (b) the interest
portion of the related Monthly Payment, as so modified or reduced, or, if
applicable, Assumed Scheduled Payment due on such Due Date.
"Mortgage File": With respect to any Mortgage Loan, but subject to
Section 2.01, collectively the following documents:
(i) the original Mortgage Note bearing, or accompanied by, all prior
and intervening endorsements or assignments showing a complete chain of
endorsement or assignment from the originator of the Mortgage Loan to the
most recent endorsee, and further endorsed (at the direction of the
Depositor given pursuant to the applicable Mortgage Loan Purchase
Agreement), on its face or by allonge attached thereto, without recourse,
to the order of the Trustee in the following form: "Pay to the order of
Xxxxx Fargo Bank Minnesota, N.A., as trustee for the registered holders of
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2002-C2, without recourse,
representation or warranty, express or implied", or in blank;
(ii) the original Mortgage (or a certified or other copy thereof
from the applicable recording office) and originals (or certified or other
copies from the applicable recording office) of any intervening
assignments thereof showing a complete chain of assignment from the
originator of the Mortgage Loan to the most recent mortgagee of record, in
each case with evidence of recording indicated thereon;
(iii) an original assignment of the Mortgage, in complete and
recordable form, executed by the most recent assignee of record thereof
prior to the Trustee, or if none, by the originator to "Xxxxx Fargo Bank
Minnesota, N.A., as trustee for the registered holders of X.X. Xxxxxx
Chase Commercial Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 2002-C2" (or, in the case of the 00/000
Xxxxxxx Xxxxxx Loan Pair, in favor of "Xxxxx Fargo Bank Minnesota, N.A.,
as trustee for the registered holders of X.X. Xxxxxx Chase Commercial
Mortgage Securities Corp., Commercial Mortgage Pass-Through Certificates,
Series 2002-C2, and in its capacity as Note A lender on behalf of [Name of
the holder of the 00/000 Xxxxxxx Xxxxxx Companion Loan]"), or in blank;
(iv) an original or copy of any related Assignment of Leases (if
such item is a document separate from the Mortgage) and the originals or
copies of any intervening assignments thereof showing a complete chain of
assignment from the originator of the Mortgage Loan to the most recent
assignee of record, in each case with evidence of recording thereon;
(v) an original assignment of any related Assignment of Leases (if
such item is a document separate from the Mortgage), in recordable form,
executed by the applicable assignee of record to "Xxxxx Fargo Bank
Minnesota, N.A., as trustee for the registered holders of X.X. Xxxxxx
Chase Commercial Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 2002-C2" (or, in the case of the 00/000
Xxxxxxx Xxxxxx Loan Pair, in favor of "Xxxxx Fargo Bank Minnesota, N.A.,
as trustee for the registered holders of X.X. Xxxxxx Chase Commercial
Mortgage Securities Corp., Commercial Mortgage Pass-Through Certificates,
Series 2002-C2, and in its capacity as Note A lender on behalf of [Name of
the holder of the 00/000 Xxxxxxx Xxxxxx Companion Loan]"), or in blank;
(vi) an original or copy of any related Security Agreement (if such
item is a document separate from the Mortgage) and the originals or copies
of any intervening assignments thereof showing a complete chain of
assignment from the originator of the Mortgage Loan to the applicable
Mortgage Loan Seller;
(vii) an original assignment of any related Security Agreement (if
such item is a document separate from the Mortgage), in complete form,
executed by the applicable Mortgage Loan Seller to "Xxxxx Fargo Bank
Minnesota, N.A., as trustee for the registered holders of X.X. Xxxxxx
Chase Commercial Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 2002-C2" (or, in the case of the 00/000
Xxxxxxx Xxxxxx Loan Pair, in favor of "Xxxxx Fargo Bank Minnesota, N.A.,
as trustee for the registered holders of X.X. Xxxxxx Chase Commercial
Mortgage Securities Corp., Commercial Mortgage Pass-Through Certificates,
Series 2002-C2, and in its capacity as Note A lender on behalf of [Name of
the holder of the 00/000 Xxxxxxx Xxxxxx Companion Loan]"), or in blank;
(viii) originals or copies of all consolidation, assumption,
modification, written assurance and substitution agreements, with evidence
of recording thereon (where appropriate) in those instances where the
terms or provisions of the Mortgage, Mortgage Note or any related security
document have been consolidated or modified or the Mortgage Loan has been
assumed;
(ix) the original lender's title insurance policy or a copy thereof,
together with all endorsements or riders that were issued with or
subsequent to the issuance of such policy, insuring the priority of the
Mortgage as a first lien on the Mortgagor's fee or leasehold interest in
the Mortgaged Property, or if the policy has not yet been issued, an
original or copy of a "marked-up" written commitment, escrow instructions
or the pro forma or specimen title insurance policy (marked as binding and
in all cases countersigned by the title insurer or its authorized agent)
in connection with the related Mortgage Loan;
(x) the original or copy of any guaranty of the obligations of the
Mortgagor under the Mortgage Loan and any intervening assignments;
(xi) all UCC Financing Statements, assignments and continuation
statements or copies thereof, as filed or recorded, or in form that is
complete and suitable for filing or recording (according to Revised
Article 9 of the Uniform Commercial Code), as appropriate, or other
evidence of filing or recording sufficient to perfect (and maintain the
perfection of) the security interest held by the originator of the
Mortgage Loan (and each assignee of record prior to the Trustee) in and to
the personalty of the Mortgagor at the Mortgaged Property (in each case
with evidence of filing or recording thereon), and to transfer such
security interest to the Trustee;
(xii) the original power of attorney or a copy thereof (with
evidence of recording thereon) granted by the Mortgagor if the Mortgage,
Mortgage Note or other document or instrument referred to above was not
signed by the Mortgagor;
(xiii) with respect to any Mortgage Loans with Additional Debt, a
co-lender agreement, subordination agreement or intercreditor agreement,
pursuant to which such Additional Debt will be fully subordinated to such
Mortgage Loan;
(xiv) any additional documents required to be added to the Mortgage
File pursuant to this Agreement;
(xv) with respect to any Mortgage Loan secured by a Ground Lease,
the related Ground Lease or a certified copy thereof;
(xvi) a copy of any letter of credit securing such Mortgage Loan
and, within thirty (30) days of the Closing Date, a copy of the
appropriate transfer or assignment documents for such letter of credit;
(xvii) a copy of any Environmental Indemnity Agreement, together
with a copy of any environmental insurance policy;
(xviii) copies of any loan agreement(s) or escrow agreement(s);
(xix) a copy of any franchise agreements and comfort letters related
thereto;
(xx) a copy of any lock box or cash management agreement(s);
(xxi) a list related to such Mortgage Loan indicating the related
Mortgage loan documents included in the related Mortgage File (the
"Mortgage Loan Checklist"); and
(xxii) with respect to any Companion Loan, all of the above
documents with respect to such Companion Loan and the related
Intercreditor Agreement (and in the case of the 00/000 Xxxxxxx Xxxxxx
Mortgage Loan, a copy of the 00/000 Xxxxxxx Xxxxxx Servicing Agreement);
provided that a copy of each mortgage note relating to such Companion
Loan, rather than the original, shall be provided, and no assignments
shall be provided;
provided, however, that whenever the term "Mortgage File" is used to refer to
documents held by the Trustee, or a Custodian appointed thereby, such term shall
not be deemed to include such documents and instruments required to be included
therein unless they are actually received by the Trustee or a Custodian
appointed thereby. With respect to the 00/000 Xxxxxxx Xxxxxx Mortgage Loan, it
is understood that the documents relating to the 00/000 Xxxxxxx Xxxxxx Mortgage
Loan are held by the Trustee or a Custodian although the 00/000 Xxxxxxx Xxxxxx
Mortgage Loan will be serviced pursuant to the terms of the 00/000 Xxxxxxx
Xxxxxx Servicing Agreement by the 00/000 Xxxxxxx Xxxxxx Servicer and 00/000
Xxxxxxx Xxxxxx Special Servicer.
"Mortgage Loan": Each of the mortgage loans transferred and assigned
to the Trustee pursuant to Section 2.01 and from time to time held in the Trust
Fund. As used herein, the term "Mortgage Loan" includes the related Mortgage
Note, Mortgage and other documents contained in the related Mortgage File and
any related agreements. As used in this Agreement, the term "Mortgage Loan" does
not include any Companion Loan.
"Mortgage Loan Purchase Agreement": Each of the agreements between
the Depositor and each Mortgage Loan Seller, relating to the transfer of all of
such Mortgage Loan Seller's right, title and interest in and to the related
Mortgage Loans.
"Mortgage Loan Schedule": The list of Mortgage Loans transferred on
the Closing Date to the Trustee as part of the Trust Fund, attached hereto as
Exhibit B, which list sets forth the following information with respect to each
Mortgage Loan:
(i) the loan i.d. number and loan servicing number (as specified in
Exhibit A to the Prospectus);
(ii) the Mortgagor's name;
(iii) xxx xxxxxx xxxxxxx (xxxxxxxxx xxxx, xxxxxx, xxxxx, zip code
and name) of the related Mortgaged Property;
(iv) the Mortgage Rate in effect at origination;
(v) the Net Mortgage Rate in effect at the Cut-off Date;
(vi) the original principal balance;
(vii) the Cut-off Date Principal Balance;
(viii) the (a) original term to stated maturity, (b) remaining term
to stated maturity and (c) Maturity Date;
(ix) the original and remaining amortization terms;
(x) the amount of the Monthly Payment due on the first Due Date
following the Cut-off Date;
(xi) the applicable Servicing Fee Rate;
(xii) whether the Mortgage Loan is an Actual/360 Mortgage Loan;
(xiii) whether such Mortgage Loan has an Anticipated Repayment Date;
(xiv) the Revised Rate of such Mortgage Loan, if any;
(xv) whether such Mortgage Loan is secured by the related
Mortgagor's interest in a ground lease;
(xvi) identifying any Mortgage Loan(s) with which such Mortgage Loan
is cross-defaulted or cross-collateralized;
(xvii) the originator of such Mortgage Loan and the Mortgage Loan
Seller;
(xviii) whether such Mortgage Loan has a guarantor;
(xix) whether such Mortgage Loan is secured by a letter of credit;
(xx) amount of any reserve or escrowed funds;
(xxi) number of grace days for debt service payments;
(xxii) whether an operations and maintenance plan exists and, if so,
what repairs are required;
(xxiii) whether a cash management agreement or lock-box agreement is
in place;
(xxiv) the total square feet/units of the related Mortgaged Property
and the related units of measure;
(xxv) the general property type of the related Mortgaged Property;
(xxvi) whether the Mortgage Loan permits defeasance;
(xxvii) the interest accrual period;
(xxviii) the Anticipated Prepayment Date, if applicable; and
(xxix) in the case of a Balloon Mortgage Loan, the remaining
amortization term.
Such Mortgage Loan Schedule shall also set forth the aggregate of
the amounts described under clause (vii) above for all of the Mortgage Loans.
Such list may be in the form of more than one list, collectively setting forth
all of the information required.
"Mortgage Loan Seller": Each of: (1) JPMorgan Chase Bank, a New
York banking corporation, (2) Xxxxxxx Xxxxx Mortgage Lending, Inc., a
Delaware corporation, and (3) LaSalle Bank National Association, a national
banking association.
"Mortgage Note": The original executed note evidencing the
indebtedness of a Mortgagor under a Mortgage Loan or Companion Loan, together
with any rider, addendum or amendment thereto.
"Mortgage Rate": With respect to: (i) any Mortgage Loan or Companion
Loan on or prior to its Maturity Date, the annual rate at which interest is
scheduled (in the absence of a default) to accrue on such Mortgage Loan or
Companion Loan from time to time in accordance with the related Mortgage Note
and applicable law, exclusive of the Excess Rate; (ii) any Mortgage Loan or
Companion Loan after its Maturity Date, the annual rate described in clause (i)
above determined without regard to the passage of such Maturity Date.
"Mortgaged Property": The real property subject to the lien of a
Mortgage.
"Mortgagor": The obligor or obligors on a Mortgage Note, including
without limitation, any Person that has acquired the related Mortgaged Property
and assumed the obligations of the original obligor under the Mortgage Note.
"Net Aggregate Prepayment Interest Shortfall": With respect to any
Distribution Date, the amount, if any, by which (a) the aggregate of all
Prepayment Interest Shortfalls incurred in connection with the receipt of
Principal Prepayments on the Mortgage Loans during the related Due Period,
exceeds (b) the aggregate amount deposited by the Servicer in the Certificate
Account for such Distribution Date pursuant to Section 3.19 in connection with
such Prepayment Interest Shortfalls.
"Net Investment Earnings": With respect to any of the Certificate
Account, the Servicing Accounts or the REO Account for any period from any
Distribution Date to the immediately succeeding P&I Advance Date, the amount, if
any, by which the aggregate of all interest and other income realized during
such period on funds relating to the Trust Fund held in such account, exceeds
the aggregate of all losses, if any, incurred during such period in connection
with the investment of such funds in accordance with Section 3.06.
"Net Investment Loss": With respect to any of the Certificate
Account, the Simon Collection Account, the Walgreens Collection Account, the
Servicing Accounts or the REO Account for any period from any Distribution Date
to the immediately succeeding P&I Advance Date, the amount by which the
aggregate of all losses, if any, incurred during such period in connection with
the investment of funds relating to the Trust Fund held in such account in
accordance with Section 3.06, exceeds the aggregate of all interest and other
income realized during such period on such funds.
"Net Mortgage Rate": With respect to any Mortgage Loan or REO Loan
(other than the Simon Mortgage Loan) as of any date of determination, a rate per
annum equal to the related Mortgage Rate then in effect, minus the
Administrative Cost Rate; provided, that with respect to the Simon Pooled
Component, the Net Mortgage Rate shall equal the related Simon Mortgage Loan
Remittance Rate; provided, further, that for purposes of calculating
Pass-Through Rates, the Net Mortgage Rate for any Mortgage Loan will be
determined without regard to any modification, waiver or amendment of the terms
of such Mortgage Loan, whether agreed to by the Special Servicer or resulting
from a bankruptcy, insolvency or similar proceeding involving the Mortgagor;
provided, further, that if any Mortgage Loan does not accrue interest on the
basis of a 360-day year consisting of twelve 30-day months, then, solely for
purposes of calculating Pass-Through Rates, the Net Mortgage Rate of such
Mortgage Loan for any one-month period preceding a related Due Date will be the
annualized rate at which interest would have to accrue in respect of such
Mortgage Loan on the basis of a 360-day year consisting of twelve 30-day months
in order to produce the aggregate amount of interest actually accrued (exclusive
of Default Interest or Excess Interest) in respect of such Mortgage Loan during
such one-month period at the related Net Mortgage Rate; provided, further, that
with respect to each Interest Reserve Loan, the Net Mortgage Rate for the one
month period (A) preceding the Due Dates that occur in January and February in
any year which is not a leap year or preceding the Due Date that occurs in
February in any year which is a leap year, and (B) preceding the Due Date in
March, will be the per annum rate stated in the related Mortgage Note less the
related Administrative Cost Rate. With respect to any REO Loan, the Net Mortgage
Rate shall be calculated as described above, determined as if the predecessor
Mortgage Loan had remained outstanding.
"Net Operating Income": With respect to any Mortgaged Property, for
any Mortgagor's fiscal year end, Net Operating Income will be calculated in
accordance with the standard definition of "Net Operating Income" endorsed and
put forth by CMSA.
"New Lease": Any lease of REO Property entered into at the direction
of the Special Servicer on behalf of the Lower-Tier REMIC or, if applicable,
either Loan REMIC including any lease renewed, modified or extended on behalf of
such REMIC, if such REMIC has the right to renegotiate the terms of such lease.
"Nonrecoverable Advance": Any Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance.
"Nonrecoverable P&I Advance": Any P&I Advance previously made or
proposed to be made in respect of a Mortgage Loan or REO Loan which, in the
reasonable judgment of the Servicer or the Trustee, as applicable, will not be
ultimately recoverable, together with any accrued and unpaid interest thereon at
the Reimbursement Rate, from Late Collections or any other recovery on or in
respect of such Mortgage Loan, REO Loan or Companion Loan. The determination by
the Servicer or the Trustee, as applicable, that it has made a Nonrecoverable
P&I Advance or that any proposed P&I Advance, if made, would constitute a
Nonrecoverable P&I Advance, shall be evidenced by an Officer's Certificate
delivered by the Servicer to the Trustee, the Paying Agent, the Directing
Certificateholder (and in the case of the Simon Mortgage Loan, the Simon
Representative) and the Depositor, in the case of the Servicer, and to the
Depositor, the Paying Agent and the Servicer, in the case of the Trustee. The
Officer's Certificate shall set forth such determination of nonrecoverability
and the considerations of the Servicer or the Trustee, as applicable, forming
the basis of such determination (which shall be accompanied by, to the extent
available, income and expense statements, rent rolls, occupancy status, property
inspections and any other information used by the Servicer or the Trustee, as
applicable, to make such determination and shall include any existing Appraisal
of the related Mortgage Loan or Mortgaged Property). The Trustee shall be
entitled to conclusively rely on the Servicer's determination that a P&I Advance
is or would be nonrecoverable and the Servicer and the Trustee may conclusively
rely on the determination by the 00/000 Xxxxxxx Xxxxxx Servicer that a P&I
Advance with respect to the 00/000 Xxxxxxx Xxxxxx Loan is or would be
nonrecoverable. In the case of a cross-collateralized Mortgage Loan, such
recoverability determination shall take into account the cross-collateralization
of the related Crossed Loan.
"Nonrecoverable Servicing Advance": Any Servicing Advance previously
made or proposed to be made in respect of a Mortgage Loan or REO Property which,
in the reasonable judgment of the Servicer, the Special Servicer or the Trustee,
as the case may be, will not be ultimately recoverable, together with any
accrued and unpaid interest thereon, at the Reimbursement Rate, from Late
Collections or any other recovery on or in respect of such Mortgage Loan or REO
Property. The determination by the Servicer, the Special Servicer or the
Trustee, as the case may be, that it has made a Nonrecoverable Servicing Advance
or that any proposed Servicing Advance, if made, would constitute a
Nonrecoverable Servicing Advance, shall be evidenced by an Officer's Certificate
delivered by either of the Special Servicer or Servicer to the other and to the
Trustee, the Paying Agent, the Directing Certificateholder (and in the case of
the Simon Mortgage Loan, the Simon Representative) and the Depositor, in the
case of the Servicer, and to the Depositor, the Paying Agent and the Servicer,
in the case of the Trustee. The Officer's Certificate shall set forth such
determination of nonrecoverability and the considerations of the Servicer or the
Trustee, as applicable, forming the basis of such determination (which shall be
accompanied by, to the extent available, such as related income and expense
statements, rent rolls, occupancy status and property inspections, and shall
include an Appraisal of the related Mortgage Loan or Mortgaged Property). The
Trustee will be entitled to conclusively rely on the Servicer's or Special
Servicer's, as the case may be, determination that a Servicing Advance is or
would be nonrecoverable and the Servicer may conclusively rely on the
determination by the 00/000 Xxxxxxx Xxxxxx Servicer that a Servicing Advance
with respect to the 00/000 Xxxxxxx Xxxxxx Loan is or would be nonrecoverable. In
the case of a cross-collateralized Mortgage Loan, such recoverability
determination shall take into account the cross-collateralization of the related
Crossed Loan.
"Non-Registered Certificate": Unless and until registered under the
Securities Act, any Class X-1, Class X-2, Class F, Class G, Class H, Class J,
Class K, Class L, Class M, Class N, Class NR, Class SP-1, Class SP-2, Class
SP-3, Class R or Class LR Certificate.
"Non-Specially Serviced Mortgage Loan": Any Mortgage Loan other
than a Specially Serviced Mortgage Loan.
"Non-U.S. Person": Any person other than a U.S. Person, unless, with
respect to the Transfer of a Residual Certificate, (i) such person holds such
Residual Certificate in connection with the conduct of a trade or business
within the United States and furnishes the Transferor and the Certificate
Registrar with an effective Internal Revenue Service Form W-8ECI (or successor
form) or (ii) the Transferee delivers to both the Transferor and the Certificate
Registrar an opinion of a nationally recognized tax counsel to the effect that
such Transfer is in accordance with the requirements of the Code and the
regulations promulgated thereunder and that such Transfer of the Residual
Certificate will not be disregarded for federal income tax purposes. A Person
shall be treated as a Non-U.S. Person, (A) notwithstanding clause (i) of the
preceding sentence, if it is a partnership (including any entity treated as a
partnership for U.S. federal income tax purposes) any interest in which is
owned, directly or indirectly, through one more partnerships, trusts or other
pass-through entities by a Non-U.S. Person or (B) such Person is a U.S. 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 U.S. Person.
"Notional Amount": In the case of the Class X-1 Certificates, the
Class X-1 Notional Amount. In the case of the Class X-2 Certificates, the Class
X-2 Notional Amount. In the case of each Component, the amount set forth in the
applicable definition thereof.
"Offered Certificates": The Class A, Class B, Class C, Class D and
Class E Certificates.
"Officer's Certificate": A certificate signed by a Servicing Officer
of the Servicer or the Special Servicer, as the case may be, or a Responsible
Officer of the Trustee, as the case may be.
"Opinion of Counsel": A written opinion of counsel, who may, without
limitation, be salaried counsel for the Depositor, the Servicer or the Special
Servicer, acceptable in form and delivered to the Paying Agent and the Trustee,
except that any opinion of counsel relating to (a) the qualification of the
Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMICs as a REMIC, (b)
compliance with the REMIC Provisions, (c) qualification of the Grantor Trust as
a grantor trust under subpart E, Part I of subchapter J of the Code for federal
income tax purposes or (d) the resignation of the Servicer, the Special Servicer
or the Depositor pursuant to Section 6.04, must be an opinion of counsel who is
in fact Independent of the Depositor, the Servicer or the Special Servicer, as
applicable.
"Option Price": As defined in Section 3.18(a).
"Original Certificate Balance": With respect to any Class of
Certificates (other than the Class X Certificates and the Residual
Certificates), the initial aggregate principal amount thereof as of the Closing
Date, in each case as specified in the Preliminary Statement.
"Original Simon Loan REMIC Principal Amount": With respect to any
Class of Simon Loan REMIC Regular Interests, the initial principal amount
thereof as of the Closing Date, in each case as specified in the Preliminary
Statement.
"Original Walgreens Loan REMIC Principal Amount": With respect to
any Class of Walgreens Loan REMIC Regular Interests, the initial principal
amount thereof as of the Closing Date, in each case as specified in the
Preliminary Statement.
"Original Lower-Tier Principal Amount": With respect to any Class of
Uncertificated Lower-Tier Interests, the initial principal amount thereof as of
the Closing Date, in each case as specified in the Preliminary Statement.
"Original Notional Amount": With respect to the Class X-1 Notional
Amount and Class X-2 Notional Amount, the initial Notional Amount thereof as of
the Closing Date, as specified in the Preliminary Statement.
"Original Value": The Appraised Value of a Mortgaged Property
based upon the Appraisal conducted in connection with the origination of the
related Mortgage Loan.
"OTS": The Office of Thrift Supervision or any successor thereto.
"Ownership Interest": As to any Certificate, any ownership or
security interest in such Certificate as the Holder thereof and any other
interest therein, whether direct or indirect, legal or beneficial, as owner or
as pledgee.
"P&I Advance": As to any Mortgage Loan or REO Loan, any advance made
by the Servicer or the Trustee, as applicable, pursuant to Section 4.03 or
Section 7.05.
"P&I Advance Date": The Business Day immediately prior to each
Distribution Date.
"P&I Advance Determination Date": With respect to any Distribution
Date, the Business Day prior to the P&I Advance Date.
"Pass-Through Rate": Any of the Class A-1 Pass-Through Rate, the
Class A-2 Pass-Through Rate, the Class B Pass-Through Rate, the Class C
Pass-Through Rate, the Class D Pass-Through Rate, the Class E Pass-Through Rate,
the Class F Pass-Through Rate, the Class G Pass-Through Rate, the Class H
Pass-Through Rate, the Class J Pass-Through Rate, the Class K Pass-Through Rate,
the Class L Pass-Through Rate, the Class M Pass-Through Rate, the Class N
Pass-Through Rate, the Class NR Pass-Through Rate, the Class SP-1 Pass-Through
Rate, the Class SP-2 Pass-Through Rate, the Class SP-3 Pass-Through Rate, the
Class WM Pass-Through Rate, the Class X-1 Pass-Through Rate or the Class X-2
Pass-Through Rate.
"Paying Agent": LaSalle Bank National Association, a national
banking association, or any successor appointed thereto pursuant to Section 5.06
or any successor paying agent appointed hereunder.
"Paying Agent Fee": The portion of the Trustee Fee payable to the
Paying Agent pursuant to the terms hereof calculated at the Paying Agent Fee
Rate.
"Paying Agent Fee Rate": 0.0012% per annum.
"Penalty Charges": With respect to any Mortgage Loan (or successor
REO Loan), any amounts actually collected thereon from the Mortgagor that
represent late payment charges and/or Default Interest, other than a Yield
Maintenance Charge or Excess Interest.
"Percentage Interest": As to any Certificate, the percentage
interest evidenced thereby in distributions required to be made with respect to
the related Class. With respect to any Regular Certificate, the percentage
interest is equal to the Denomination of such Certificate divided by the initial
Certificate Balance or Notional Amount, as applicable, of such Class of
Certificates as of the Closing Date. With respect to a Residual Certificate, the
percentage interest is set forth on the face thereof.
"Permitted Investments": Any one or more of the following
obligations or securities (including obligations or securities of the Paying
Agent if otherwise qualifying hereunder), regardless whether issued by the
Depositor, the Servicer, the Special Servicer, the Trustee or any of their
respective Affiliates and having the required ratings, if any, provided for in
this definition and which shall not be subject to liquidation prior to maturity:
(i) direct obligations of, and obligations fully guaranteed as to
timely payment of principal and interest by, the United States
of America, Xxxxxx Xxx, Xxxxxxx Mac or any agency or
instrumentality of the United States of America, the
obligations of which are backed by the full faith and credit
of the United States of America that mature in one (1) year or
less from the date of acquisition; provided that any
obligation of, or guarantee by, Xxxxxx Mae or Xxxxxxx Mac,
other than an unsecured senior debt obligation of Xxxxxx Mae
or Xxxxxxx Mac, shall be a Permitted Investment only if such
investment would not result in the downgrading, withdrawal or
qualification of the then-current rating assigned by each
Rating Agency to any Certificate as evidenced in writing;
(ii) time deposits, unsecured certificates of deposit, or bankers'
acceptances that mature in one (1) year or less after the date
of issuance and are issued or held by any depository
institution or trust company (including the Trustee)
incorporated or organized under the laws of the United States
of America or any State thereof and subject to supervision and
examination by federal or state banking authorities, so long
as the commercial paper or other short-term debt obligations
of such depository institution or trust company are rated in
the highest rating categories of each of Xxxxx'x and S&P or
such other rating as would not result in the downgrading,
withdrawal or qualification of the then-current rating
assigned by each Rating Agency to any Certificate, as
evidenced in writing;
(iii) repurchase agreements or obligations with respect to any
security described in clause (i) above where such security has
a remaining maturity of one year or less and where such
repurchase obligation has been entered into with a depository
institution or trust company (acting as principal) described
in clause (ii) above;
(iv) debt obligations bearing interest or sold at a discount issued
by any corporation incorporated under the laws of the United
States of America or any state thereof which mature in one (1)
year or less from the date of acquisition, which debt
obligations are rated in the highest rating categories of each
of Xxxxx'x and S&P or such other rating as would not result in
the downgrading, withdrawal or qualification of the
then-current rating assigned by each Rating Agency to any
Certificate as specified in writing by each of the Rating
Agencies; provided, however, that securities issued by any
particular corporation will not be Permitted Investments to
the extent that investment therein will cause the
then-outstanding principal amount of securities issued by such
corporation and held in the accounts established hereunder to
exceed 10% of the sum of the aggregate principal balance and
the aggregate principal amount of all Permitted Investments in
such accounts;
(v) commercial paper (including both non-interest-bearing discount
obligations and interest-bearing obligations) of any
corporation or other entity organized under the laws of the
United States or any state thereof payable on demand or on a
specified date maturing in one (1) year or less from the date
of acquisition thereof and which is rated in the highest
rating category of each of Xxxxx'x and S&P (or such lower
rating as will not result in qualification, downgrading or
withdrawal of the ratings then assigned to the Certificates,
as evidenced in writing by the Rating Agencies);
(vi) money market funds, rated in the highest rating categories of
each of Xxxxx'x and S&P; and
(vii) any other demand, money market or time deposit, obligation,
security or investment, (a) with respect to which each Rating
Agency shall have confirmed in writing that such investment
will not result in a downgrade, qualification or withdrawal of
the then-current rating of the Certificates that are currently
being rated by such Rating Agency and (b) which qualifies as a
"cash flow investment" pursuant to Section 860G(a)(6) of the
Code;
provided, however, that in each case if the investment is rated by S&P, (a) it
shall not have an "r" highlighter affixed to its rating from S&P, (b) it shall
have a predetermined fixed dollar of principal due at maturity that cannot vary
or change and (c) any such investment that provides for a variable rate of
interest must have an interest rate that is tied to a single interest rate index
plus a fixed spread, if any, and move proportionately with such index; and
provided, further, however, that no such instrument shall be a Permitted
Investment (a) if such instrument evidences principal and interest payments
derived from obligations underlying such instrument and the interest payments
with respect to such instrument provide a yield to maturity at the time of
acquisition of greater than 120% of the yield to maturity at par of such
underlying obligations or (b) if such instrument may be redeemed at a price
below the purchase price; and provided, further, however, that no amount
beneficially owned by the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan
REMICs (even if not yet deposited in the Trust) may be invested in investments
(other than money market funds) treated as equity interests for federal income
tax purposes, unless the Servicer receives an Opinion of Counsel, at its own
expense, to the effect that such investment will not adversely affect the status
of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMICs as a REMIC
under the Code or result in imposition of a tax on the Upper-Tier REMIC, the
Lower-Tier REMIC or the Loan REMICs. Permitted Investments that are subject to
prepayment or call may not be purchased at a price in excess of par.
"Permitted Transferee": Any Person who is a Qualified Institutional
Buyer.
"Person": Any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Plan": As defined in Section 5.02(c).
"Prepayment Assumption": A "constant prepayment rate" of 0% used for
determining the accrual of original issue discount and market discount, if any,
and the amortization of premium, if any, on the Certificates for federal income
tax purposes; provided, it is assumed that each Mortgage Loan with an
Anticipated Repayment Date prepays on such date.
"Prepayment Interest Excess": For any Distribution Date and with
respect to any Mortgage Loan that was subject to a Principal Prepayment in full
or in part during the related Due Period, which Principal Prepayment was applied
to such Mortgage Loan after the related Due Date and prior to the following
Determination Date, the amount of interest (net of the related Servicing Fees
and Excess Interest), to the extent collected from the related Mortgagor
(without regard to any Prepayment Premium or Yield Maintenance Charge actually
collected), that would have accrued at a rate per annum equal to the sum of (x)
the related Net Mortgage Rate for such Mortgage Loan and (y) the Trustee Fee
Rate, on the amount of such Principal Prepayment from and after such Due Date
and ending on the date of such prepayment.
"Prepayment Interest Shortfall": For any Distribution Date and with
respect to any Mortgage Loan that was subject to a Principal Prepayment in full
or in part during the related Due Period, which Principal Prepayment was applied
to such Mortgage Loan after the related Determination Date and prior to the
following Due Date, the amount of interest, to the extent not collected from the
related Mortgagor (without regard to any Prepayment Premium or Yield Maintenance
Charge actually collected), that would have accrued at a rate per annum equal to
the sum of (x) the related Net Mortgage Rate for such Mortgage Loan and (y) the
Trustee Fee Rate, on the amount of such Principal Prepayment during the period
commencing on the date as of which such Principal Prepayment was applied to such
Mortgage Loan and ending on such Due Date.
"Primary Collateral": With respect to any Crossed Loan, that portion
of the Mortgaged Property designated as directly securing such Crossed Loan and
excluding any Mortgaged Property as to which the related lien may only be
foreclosed upon by exercise of the cross-collateralization provisions of such
Crossed Loan.
"Primary Servicing Fee": The monthly fee payable by the Servicer
from the Servicing Fee to each Initial Sub-Servicer, which monthly fee accrues
at the rate per annum specified as such in the Sub-Servicing Agreement with such
Initial Sub-Servicer.
"Prime Rate": The "Prime Rate" as published in the "Money Rates"
section of the New York city edition of The Wall Street Journal (or, if such
section or publication is no longer available, such other comparable publication
as determined by the Paying Agent in its reasonable discretion) as may be in
effect from time to time, or, if the "Prime Rate" no longer exists, such other
comparable rate (as determined by the Paying Agent in its reasonable discretion)
as may be in effect from time to time.
"Principal Distribution Amount": With respect to any Distribution
Date and any Class of Regular Certificates, an amount equal to (1) the sum of
(a) the Principal Shortfall for such Distribution Date, (b) the Scheduled
Principal Distribution Amount for such Distribution Date and (c) the Unscheduled
Principal Distribution Amount for such Distribution Date, less (2) (a) in the
event that the Simon Default Distribution Priority is not in effect, an amount
equal to the product of (x) the Simon Principal Distribution Amount for such
Distribution Date and (y) the Simon Non-Pooled Percentage for such Distribution
Date, or (b) in the event that the Simon Default Distribution Priority is in
effect, any amounts distributable to the Class SP Certificates pursuant to the
Simon Default Distribution Priority set forth in Section 4.01(k) for such
Distribution Date or (3) (a) in the event that the Walgreens Default
Distribution Priority is not in effect, an amount equal to the product of (x)
the Walgreens Principal Distribution Amount for such Distribution Date and (y)
the Walgreens Non-Pooled Percentage for such Distribution Date, or (b) in the
event that the Walgreens Default Distribution Priority is in effect, any amounts
distributable to the Class WM Certificates pursuant to the Walgreens Default
Distribution Priority set forth in Section 4.01(o) for such Distribution Date.
"Principal Prepayment": Any payment of principal made by the
Mortgagor on a Mortgage Loan which is received in advance of its scheduled Due
Date and which is not accompanied by an amount of interest representing
scheduled interest due on any date or dates in any month or months subsequent to
the month of prepayment.
"Principal Shortfall": For any Distribution Date after the initial
Distribution Date with respect to the Mortgage Loans, the amount, if any, by
which (a) the related Principal Distribution Amount for the preceding
Distribution Date, exceeded (b) the aggregate amount distributed in respect of
principal on the Class A, Class B, Class C, Class D, Class E, Class F, Class G,
Class H, Class J, Class K, Class L, Class M, Class N and Class NR Certificates
for such preceding Distribution Date pursuant to Section 4.01(a) on such
preceding Distribution Date. The Principal Shortfall for the initial
Distribution Date will be zero.
"Privileged Person": Each Rating Agency, any of the Holders of each
Class of Certificates, each Underwriter, the Initial Purchasers, each Mortgage
Loan Seller, a certain financial market publisher (which initially shall be
Bloomberg, L.P.), the Companion Holder (but only with respect to its Companion
Loan) each party to this Agreement, the Directing Certificateholder, any
designee of the Depositor, the Paying Agent and any other Person who shall have
provided the Paying Agent with a certificate, using the forms attached hereto as
Exhibit X-1 or Exhibit X-2, as applicable, certifying that such person is a
Certificateholder, a beneficial owner or a prospective purchaser of a
Certificate.
"Prospectus": The Prospectus dated November 13, 2002, as
supplemented by the Prospectus Supplement dated November 26, 2002, relating to
the offering of the Offered Certificates.
"Purchase Option Notice": As defined in Section 3.18(a)(iii).
"Purchase Price": With respect to any Mortgage Loan (or REO Loan) to
be purchased by a Mortgage Loan Seller pursuant to Section 6 of the related
Mortgage Loan Purchase Agreement, by the Majority Controlling Class
Certificateholder, the Special Servicer or the Servicer pursuant to Section
3.18(b), or by the Servicer, the Special Servicer, the Holders of the
Controlling Class or the Holders of the Class LR Certificates pursuant to
Section 9.01 or to be otherwise sold pursuant to Section 3.18(c), a price equal
to:
(i) the outstanding principal balance of such Mortgage Loan
(or related REO Loan) as of the date of purchase; plus
(ii) all accrued and unpaid interest on such Mortgage Loan (or
the related REO Loan) at the related Mortgage Rate in effect from
time to time (exclusive of Excess Interest) to but not including the
Due Date immediately preceding the Determination Date for the
related Due Period in which such Purchase Price is included in the
Available Distribution Amount; plus
(iii) all related unreimbursed Servicing Advances and accrued
and unpaid interest on related Advances at the Reimbursement Rate,
and any Special Servicing Fees whether paid or then owing allocable
to such Mortgage Loan (or the related REO Loan); plus
(iv) any other additional expenses of the Trust Fund relating
to such Mortgage Loan (or REO Loan); plus
(v) if such Mortgage Loan (or REO Loan) is being purchased by
a Mortgage Loan Seller pursuant to Section 6 of the applicable
Mortgage Loan Purchase Agreement, all reasonable out-of-pocket
expenses reasonably incurred or to be incurred by the Servicer, the
Special Servicer, the Depositor or the Trustee in respect of the
Breach or Defect giving rise to the repurchase obligation, including
any expenses arising out of the enforcement of the repurchase
obligation, including, without limitation, legal fees and expenses
and any additional expenses of the Trust Fund related to such
Mortgage Loan (or REO Loan); plus
(vi) Liquidation Fees, if any, payable with respect to such
Mortgage Loan.
With respect to any REO Property to be sold pursuant to Section 3.18(c), the
amount calculated in accordance with the preceding sentence in respect of the
related REO Loan.
"Qualified Bidder": As defined in Section 7.01(c).
"Qualified Institutional Buyer": A "qualified institutional
buyer" as defined in Rule 144A under the Act.
"Qualified Insurer": (i) With respect to any Mortgage Loan, REO Loan
or REO Property, an insurance company or security or bonding company qualified
to write the related Insurance Policy in the relevant jurisdiction with a
minimum claims paying ability rating of at least "A2" by Xxxxx'x and "A" by S&P
and (ii) with respect to the fidelity bond and errors and omissions Insurance
Policy required to be maintained pursuant to Section 3.07(c), except as set
forth in Section 3.07(c), an insurance company that has a claims paying ability
rated no lower than two ratings below the rating assigned to the then highest
rated outstanding Certificate, but in no event lower than "A" by Xxxxx'x (or, if
not rated by Xxxxx'x, then at least "A" by two other nationally recognized
statistical rating organizations (which may include S&P)) and "A" by S&P or, in
the case of clauses (i) and (ii), such other rating as each Rating Agency shall
have confirmed in writing will not cause such Rating Agency to downgrade,
qualify or withdraw the then-current rating assigned to any of the Certificates
that are then currently being rated by such Rating Agency.
"Qualified Substitute Mortgage Loan": A mortgage loan which must, on
the date of substitution: (i) have an outstanding principal balance, after
application of all scheduled payments of principal and interest due during or
prior to the month of substitution, not in excess of the Stated Principal
Balance of the deleted Mortgage Loan as of the Due Date in the calendar month
during which the substitution occurs; (ii) have a Mortgage Rate not less than
the Mortgage Rate of the deleted Mortgage Loan; (iii) have the same Due Date as
and grace period no longer than that of the deleted Mortgage Loan; (iv) accrue
interest on the same basis as the deleted Mortgage Loan (for example, on the
basis of a 360-day year consisting of twelve 30-day months); (v) have a
remaining term to stated maturity not greater than, and not more than two years
less than, the remaining term to stated maturity of the deleted Mortgage Loan;
(vi) have a then current loan-to-value ratio not higher than that of the deleted
Mortgage Loan as of the Closing Date and a current loan-to-value ratio not
higher than the then current loan-to-value ratio of the deleted Mortgage Loan,
in each case using the "value" as determined using an MAI appraisal; (vii)
comply in all material respects with all of the representations and warranties
set forth in the applicable Mortgage Loan Purchase Agreement; (viii) have an
environmental report with respect to the related Mortgaged Property and which
will be delivered as a part of the related Mortgage File; (ix) have a then
current debt service coverage ratio of not less than the original debt service
coverage ratio of the deleted Mortgage Loan as of the Closing Date and a current
debt service coverage ratio of not less than the current debt service coverage
ratio of the deleted Mortgage Loan; (x) constitute a "qualified replacement
mortgage" within the meaning of Section 860G(a)(4) of the Code as evidenced by
an Opinion of Counsel (provided at the applicable Mortgage Loan Seller's
expense); (xi) not have a maturity date after the date two years prior to the
Rated Final Distribution Date; (xii) have comparable prepayment restrictions to
those of the Deleted Mortgage Loan; (xiii) not be substituted for a deleted
Mortgage Loan unless the Trustee has received prior confirmation in writing by
each Rating Agency that such substitution will not result in the withdrawal,
downgrade, or qualification of the then current rating assigned by the Rating
Agency to any Class of Certificates then rated by the Rating Agency (the cost,
if any, of obtaining such confirmation to be paid by the applicable Mortgage
Loan Seller); (xiv) have been approved by the Directing Certificateholder; (xv)
prohibit defeasance within two years of the Closing Date and (xvi) not be
substituted for a deleted Mortgage Loan if it would result in the termination of
the REMIC status of either Loan REMIC, the Lower-Tier REMIC or the Upper-Tier
REMIC or the imposition of tax on any of such REMICs other than a tax on income
expressly permitted or contemplated to be received by the terms of this
Agreement, as determined by an Opinion of Counsel. In the event that more than
one mortgage loan is substituted for a deleted Mortgage Loan, then the amounts
described in clause (i) shall be determined on the basis of aggregate Stated
Principal Balances and each such proposed Substitute Mortgage Loan shall
individually satisfy each of the requirements specified in (ii) through (iv) and
(vi) through (xvi) and the remaining term to stated maturity referred to in
clause (v) above shall be determined on a weighted average basis; provided, that
any individual Mortgage Rate, less the Administrative Cost Rate, shall not be
less than the highest Pass-Through Rate of any Class of Certificates (other than
the Class E, Class F, Class G, Class X-1 and Class X-2 Certificates) then
outstanding. When a Qualified Substitute Mortgage Loan is substituted for a
deleted Mortgage Loan, the applicable Mortgage Loan Seller shall certify that
the Mortgage Loan meets all of the requirements of the above definition and
shall send such certification to the Trustee and the Directing
Certificateholder. A Qualified Substitute Mortgage Loan may not be substituted
for the Simon Mortgage Loan or the Walgreens Mortgage Loan.
"Rated Final Distribution Date": As to each Class of Certificates,
December 12, 2034, the first Distribution Date after the 24th month following
the end of the amortization term for the Mortgage Loan that, as of the Cut-off
Date, has the longest remaining amortization term.
"Rating Agency": Each of Xxxxx'x and S&P or their successors in
interest. If neither such rating agency nor any successor remains in existence,
"Rating Agency" shall be deemed to refer to such nationally recognized
statistical rating agency or other comparable Person designated by the
Depositor, notice of which designation shall be given to the Trustee and the
Servicer, and specific ratings of Xxxxx'x and S&P herein referenced shall be
deemed to refer to the equivalent ratings of the party so designated.
"Record Date": With respect to any Distribution Date, the last
Business Day of the month immediately preceding the month in which such
Distribution Date occurs.
"Regular Certificate": Any of the Class A, Class B, Class C, Class
D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class
N, Class NR and Class X Certificates.
"Regulation D": Regulation D under the Act.
"Regulation S": Regulation S under the Act.
"Regulation S Book-Entry Certificates": The Regular Certificates
sold in offshore transactions in reliance on Regulation S and represented by one
or more Book-Entry Certificates deposited with the Paying Agent as custodian for
the Depository.
"Regulation S Investor": With respect to a transferee of a
Regulation S Book-Entry Certificate, a transferee that acquires such Certificate
pursuant to Regulation S.
"Regulation S Transfer Certificate": A certificate substantially
in the form of Exhibit I-1 or Exhibit I-2 hereto, as applicable.
"Reimbursement Rate": The rate per annum applicable to the accrual
of interest on Servicing Advances in accordance with Section 3.03(d) and P&I
Advances in accordance with Section 4.03(d), which rate per annum shall equal
the Prime Rate and shall be compounded annually.
"Related Certificates", "Related Uncertificated Lower-Tier
Interests", "Related Components of Class X Certificates" and "Related Loan REMIC
Regular Interests": For each of the following Classes of Uncertificated
Lower-Tier Interests, the related Class of Certificates, the related
Component(s) of Class X Certificates and the related Class of Loan REMIC Regular
Interests, if applicable; for the following Components of the Class X
Certificates, the related Class of Uncertificated Lower-Tier Interests, the
related Class of Loan REMIC Regular Interests and the related Class of
Certificates set forth below; and for the following Classes of Loan REMIC
Regular Interests, the related Class of Uncertificated Lower-Tier Interests, the
related Components of the Class X Certificates and the related Class of
Certificates set forth below:
RELATED RELATED
UNCERTIFICATED COMPONENTS OF
LOWER-TIER CLASS X RELATED LOAN REMIC
RELATED CERTIFICATES INTEREST CERTIFICATES REGULAR INTERESTS
-------------------- --------------- -------------- ------------------
Class A-1 Class LA-1-1 XA-1-1
Certificates Uncertificated
Interest
Class LA-1-2 XA-1-2
Uncertificated
Interest
Class LA-1-3 XA-1-3
Uncertificated
Interest
Class LA-1-4 XA-1-4
Uncertificated
Interest
Class LA-1-5 XA-1-5
Uncertificated
Interest
Class A-2 Class LA-2-1 XA-2-1
Certificates Uncertificated
Interest
Class LA-2-2 XA-2-2
Uncertificated
Interest
Class LA-2-3 XA-2-3
Uncertificated
Interest
Class LA-2-4 XA-2-4
Uncertificated
Interest
Class B Certificates Class LB XB
Uncertificated
Interest
Class C Certificates Class LC XC
Uncertificated
Interest
Class D Certificates Class LD XD
Uncertificated
Interest
Class E Certificates Class LE XE
Uncertificated
Interest
Class F Certificates Class LF-1 XF-1
Uncertificated
Interest
Class LF-2 XF-2
Uncertificated
Interest
Class G Certificates Class LG-1 XG-1
Uncertificated
Interest
Class LG-2 XG-2
Uncertificated
Interest
Class H Certificates Class LH-1 XH-1
Uncertificated
Interest
Class LH-2 XH-2
Uncertificated
Interest
Class J Certificates Class LJ-1 XJ-1
Uncertificated
Interest
Class LJ-2 XJ-2
Uncertificated
Interest
Class K Certificates Class LK XK
Uncertificated
Interest
Class L Certificates Class LL XL
Uncertificated
Interest
Class M Certificates Class LM XM
Uncertificated
Interest
Class N Certificates Class LN XN
Uncertificated
Interest
Class NR Certificates Class LNR XNR
Uncertificated
Interest
Class SP-1 Class LSP-1 N/A Class KSP-1
Certificates Uncertificated Uncertificated
Interest Interest
Class SP-2 Class LSP-2 N/A Class KSP-2
Certificates Uncertificated Uncertificated
Interest Interest
Class SP-3 Class LSP-3 N/A Class KSP-3
Certificates Uncertificated Uncertificated
Interest Interest
Class WM Class LWM N/A Class JWM
Certificates Uncertificated Uncertificated
Interest Interest
"REMIC": A "real estate mortgage investment conduit" as defined
in Section 860D of the Code (or any successor thereto).
"REMIC Administrator": The Paying Agent or any REMIC administrator
appointed pursuant to Section 10.04.
"REMIC Provisions": Provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at Sections
860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and temporary and final Treasury regulations (or proposed
regulations that would apply by reason of their proposed effective date to the
extent not inconsistent with temporary or final regulations) and any rulings
promulgated thereunder, as the foregoing may be in effect from time to time.
"Rents from Real Property": With respect to any REO Property,
gross income of the character described in Section 856(d) of the Code.
"REO Account": A segregated custodial account or accounts created
and maintained by the Special Servicer pursuant to Section 3.16 on behalf of the
Trustee in trust for the Certificateholders, which shall be entitled "ARCap
Special Servicing, Inc., or the applicable successor Special Servicer, as
Special Servicer, for the benefit of Xxxxx Fargo Bank Minnesota, N.A., as
trustee, in trust for registered Holders of X.X. Xxxxxx Chase Commercial
Mortgage Securities Corp., Commercial Mortgage Pass-Through Certificates, Series
2002-C2, REO Account." Any such account or accounts shall be an Eligible
Account.
"REO Acquisition": The acquisition for federal income tax purposes
of any REO Property pursuant to Section 3.09.
"REO Disposition": The sale or other disposition of the REO Property
pursuant to Section 3.18.
"REO Extension": As defined in Section 3.16(a).
"REO Loan": The Mortgage Loan deemed for purposes hereof to be
outstanding with respect to each REO Property. Each REO Loan shall be deemed to
be outstanding for so long as the related REO Property remains part of the
Lower-Tier REMIC (or, if applicable, the related Loan REMIC) and provides for
Assumed Scheduled Payments on each Due Date therefor, and otherwise has the same
terms and conditions as its predecessor Mortgage Loan, including, without
limitation, with respect to the calculation of the Mortgage Rate in effect from
time to time (such terms and conditions to be applied without regard to the
default on such predecessor Mortgage Loan). Each REO Loan shall be deemed to
have an initial outstanding principal balance and Stated Principal Balance equal
to the outstanding principal balance and Stated Principal Balance, respectively,
of its predecessor Mortgage Loan as of the date of the related REO Acquisition.
All amounts due and owing in respect of the predecessor Mortgage Loan as of the
date of the related REO Acquisition, including, without limitation, accrued and
unpaid interest, shall continue to be due and owing in respect of a REO Loan.
All amounts payable or reimbursable to the Servicer, the Special Servicer or the
Trustee, as applicable, in respect of the predecessor Mortgage Loan as of the
date of the related REO Acquisition, including, without limitation, any unpaid
Special Servicing Fees and Servicing Fees, additional Trust Fund expenses and
any unreimbursed Advances, together with any interest accrued and payable to the
Servicer or the Trustee in respect of such Advances in accordance with Section
3.03(d) or Section 4.03(d), shall continue to be payable or reimbursable to the
Servicer or the Trustee in respect of an REO Loan. Collections in respect of
each REO Loan (exclusive of the amounts to be applied to the payment of, or to
be reimbursed to the Servicer or the Special Servicer for the payment of the
costs of operating, managing, selling, leasing and maintaining the related REO
Property) shall be treated: first, as a recovery of accrued and unpaid interest
on such REO Loan at the related Mortgage Rate in effect from time to time to,
but not including, the Due Date in the Due Period of receipt (exclusive of any
portion that constitutes Excess Interest); second, as a recovery of principal of
such REO Loan to the extent of its entire unpaid principal balance and third, in
accordance with the Servicing Standards of the Servicer, as a recovery of any
other amounts due and owing in respect of such REO Loan, including, without
limitation, (i) Yield Maintenance Charges and Penalty Charges and (ii) Excess
Interest and other amounts, in that order.
"REO Loan Accrual Period": With respect to any REO Loan and any Due
Date therefor, the one-month period immediately preceding such Due Date.
"REO Property": A Mortgaged Property (other than the 00/000 Xxxxxxx
Xxxxxx Mortgaged Property) acquired by the Special Servicer on behalf of, and in
the name of, the Trustee or a nominee thereof for the benefit of the
Certificateholders (subject to the related Intercreditor Agreement with respect
to a Mortgaged Property securing a Loan Pair) and the Trustee (as holder of the
Loan REMIC Regular Interests and the Uncertificated Lower-Tier Interests)
through foreclosure, acceptance of a deed-in-lieu of foreclosure or otherwise in
accordance with applicable law in connection with the default or imminent
default of a Mortgage Loan.
"REO Revenues": All income, rents and profits derived from the
ownership, operation or leasing of any REO Property.
"Request for Release": A release signed by a Servicing Officer of
the Servicer or the Special Servicer, as applicable, in the form of Exhibit E
attached hereto.
"Residual Certificate": Any Class R Certificate or Class LR
Certificate issued, authenticated and delivered hereunder.
"Responsible Officer": When used with respect to each of the initial
Trustee or Paying Agent, any Vice President, Assistant Vice President, Assistant
Secretary, corporate trust officer or assistant corporate trust officer in the
corporate trust department of the Trustee or the Asset-Backed Securities Trust
Servicing Group of the Paying Agent, and with respect to any successor Trustee
or Paying Agent, any officer or assistant officer in the corporate trust
department of the Trustee or Paying Agent, any other officer of the Trustee or
Paying Agent customarily performing functions similar to those performed by any
of the above designated officers to whom a particular matter is referred by the
Trustee or Paying Agent because of such officer's knowledge of and familiarity
with the particular subject.
"Restricted Period": The 40-day period prescribed by Regulation S
commencing on the later of (a) the date upon which Certificates are first
offered to Persons other than the Initial Purchasers and any other distributor
(as such term is defined in Regulation S) of the Certificates and (b) the
Closing Date.
"Revised Rate": With respect to those Mortgage Loans on the Mortgage
Loan Schedule indicated as having a revised rate, the increased interest rate
after the Anticipated Repayment Date (in the absence of a default) for each
applicable Mortgage Loan, as calculated and as set forth in the related Mortgage
Loan.
"Rule 144A": Rule 144A under the Act.
"Rule 144A Book-Entry Certificate": With respect to any Class of
Certificates offered and sold in reliance on Rule 144A, a single, permanent
Book-Entry Certificate, in definitive, fully registered form without interest
coupons.
"S&P": Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc., and its successors in interest. If S&P nor any
successor remains in existence, "S&P" shall be deemed to refer to such other
nationally recognized statistical rating agency or other comparable Person
designated by the Depositor, notice of which designation shall be given to the
Trustee, the Paying Agent, the Servicer and the Special Servicer, and specific
ratings of S&P herein referenced shall be deemed to refer to the equivalent
ratings of the party so designated.
"Scheduled Principal Distribution Amount": With respect to any
Distribution Date and the Mortgage Loans, the aggregate of the principal
portions of (a) all Monthly Payments (excluding Balloon Payments and Excess
Interest) due in respect of the Mortgage Loans during or, if and to the extent
not previously received or advanced pursuant to Section 4.03 in respect of a
preceding Distribution Date, on or prior to, the related Due Period, and all
Assumed Scheduled Payments for the related Due Period, in each case to the
extent either (i) paid by the Mortgagor as of the Business Day preceding the
related P&I Advance Date (and not previously distributed to Certificateholders)
or (ii) advanced by the Servicer or the Trustee, as applicable, pursuant to
Section 4.03 in respect of such Distribution Date, and (b) all Balloon Payments
to the extent received during the related Due Period (including any applicable
grace periods), and to the extent not included in clause (a) above.
"Securities Act": The Securities Act of 1933, as it may be amended
from time to time.
"Security Agreement": With respect to any Mortgage Loan (or
Companion Loan), any security agreement or equivalent instrument, whether
contained in the related Mortgage or executed separately, creating in favor of
the holder of such Mortgage a security interest in the personal property
constituting security for repayment of such Mortgage Loan (or Companion Loan).
"Servicer": Wachovia Bank, National Association, a national banking
association, and its successors in interest and assigns, or any successor
Servicer appointed as herein provided.
"Servicer Fee Amount": With respect to each Sub-Servicer and any
date of determination, the aggregate of the products obtained by multiplying,
for each Mortgage Loan serviced by such Sub-Servicer, (a) the Stated Principal
Balance of such Mortgage Loan as of the end of the immediately preceding Due
Period and (b) the servicing fee rate specified in the related Sub-Servicing
Agreement for such Mortgage Loan. With respect to the Servicer and any date of
determination, the aggregate of the products obtained by multiplying, for each
Mortgage Loan (a) the Stated Principal Balance of such Mortgage Loan as of the
end of the immediately preceding Due Period and (b) the difference between the
Servicing Fee Rate for such Mortgage Loan over the servicing fee rate (if any)
applicable to such Mortgage Loan as specified in any Sub-Servicing Agreement
related to such Mortgage Loan.
"Servicer Watch List": As of each Determination Date a report,
including and identifying each Mortgage Loan that is not a Specially Serviced
Mortgage Loan, satisfying the "CMSA Servicer Watch List" criteria approved from
time to time by the CMSA and containing the information called for therein.
Until such criteria are approved by the CMSA, such report shall satisfy the
criteria set forth on Exhibit L-15 attached hereto and such report shall be
replaced with approved criteria.
"Servicing Account": The account or accounts created and maintained
pursuant to Section 3.03(a).
"Servicing Advances": All customary, reasonable and necessary "out
of pocket" costs and expenses (including attorneys' fees and expenses and fees
of real estate brokers) incurred by the Servicer, Special Servicer or the
Trustee, as applicable, in connection with the servicing and administering of
(a) a Mortgage Loan (and in the case of an AB Mortgage Loan, the related
Companion Loan) in respect of which a default, delinquency or other
unanticipated event has occurred or as to which a default is reasonably
foreseeable or (b) an REO Property, including, but not limited to, the cost of
(i) compliance with the Servicer's obligations set forth in Section 3.03(c),
(ii) the preservation, restoration and protection of a Mortgaged Property, (iii)
obtaining any Insurance and Condemnation Proceeds or any Liquidation Proceeds of
the nature described in clauses (i)-(iv) of the definition of "Liquidation
Proceeds", (iv) any enforcement or judicial proceedings with respect to a
Mortgaged Property, including foreclosures and (v) the operation, leasing,
management, maintenance and liquidation of any REO Property. Notwithstanding
anything to the contrary, "Servicing Advances" shall not include allocable
overhead of the Servicer or the Special Servicer, such as costs for office
space, office equipment, supplies and related expenses, employee salaries and
related expenses and similar internal costs and expenses or costs and expenses
incurred by any such party in connection with its purchase of a Mortgage Loan or
REO Property.
"Servicing Fee": With respect to each Mortgage Loan and REO Loan,
the fee payable to the Servicer pursuant to the first paragraph of Section
3.11(a). With respect to a Companion Loan, the fee (if any) payable to the
Servicer pursuant to the related Intercreditor Agreement.
"Servicing Fee Rate": With respect to each Mortgage Loan and REO
Loan, a rate equal to the per annum rate set forth on the Mortgage Loan Schedule
under the heading "Servicing Fee Rate," in each case computed on the basis of
the Stated Principal Balance of the related Mortgage Loan and ranging from
0.025% to 0.145%, with a weighted average as of the Cut-off Date of 0.045%. With
respect to a Companion Loan, the rate payable to the Servicer (if any) set forth
in the related Intercreditor Agreement.
"Servicing File": Shall mean a photocopy of all items required to be
included in the Mortgage File, together with each of the following, to the
extent such items were actually delivered to the related Mortgage Loan Seller
with respect to a Mortgage Loan: (i) a copy of any appraisals, engineering
reports, environmental reports or property condition reports; (ii) other than
with respect to a hotel property, copies of a rent roll and, for any office,
retail, industrial or warehouse property, a copy of all leases delivered to the
Mortgage Loan Seller; (iii) copies of related financial statements or operating
statements; (iv) all legal opinions, Mortgagor's Certificates and certificates
of hazard insurance and/or hazard insurance policies delivered in connection
with the closing of the Mortgage Loan; (v) copies of any lockbox agreement or
other cash management agreement and (vi) copies of any franchise agreements and
comfort letters related thereto.
"Servicing Officer": Any officer and/or employee of the Servicer or
the Special Servicer involved in, or responsible for, the administration and
servicing of the Mortgage Loans (and in the case of an AB Mortgage Loan, the
related Companion Loan), whose name and specimen signature appear on a list of
servicing officers furnished by the Servicer and the Special Servicer to the
Paying Agent, the Trustee and the Depositor on the Closing Date as such list may
be amended from time to time thereafter.
"Servicing-Released Bid": As defined in Section 7.01(c).
"Servicing-Retained Bid": As defined in Section 7.01(c).
"Servicing Standards": As defined in Section 3.01(a).
"Servicing Transfer Event": With respect to any Mortgage Loan (other
than the 00/000 Xxxxxxx Xxxxxx Mortgage Loan), the occurrence of any of the
following events:
(i) with respect to a Mortgage Loan that is not a Balloon
Mortgage Loan, (a) a payment default shall have occurred at its
original maturity date, or (b) if the original maturity date of such
Mortgage Loan has been extended, a payment default shall have
occurred at such extended maturity date; or
(ii) with respect to each Balloon Mortgage Loan, a Balloon
Payment is delinquent and the related Mortgagor has not provided the
Servicer on the related maturity date with a bona fide written
commitment for refinancing, reasonably satisfactory in form and
substance to the Servicer, which provides that such refinancing will
occur within 150 days, provided that if such refinancing does not
occur, the related Mortgage Loan will become a Specially Serviced
Mortgage Loan at the end of a 150-day period (or for such shorter
period beyond the date on which that balloon payment was due within
which the refinancing is scheduled to occur); or
(iii) any Monthly Payment (other than a Balloon Payment) is
more than 60 days delinquent; or
(iv) determination by the Servicer or receipt by the Servicer
of a written determination of the Special Servicer that a payment
default is imminent and is not likely to be cured by the related
Mortgagor within 60 days; or
(v) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case
under any present or future federal or state bankruptcy, insolvency
or similar law, or the appointment of a conservator, receiver or
liquidator in any insolvency, readjustment of debt, marshaling of
assets and liabilities or similar proceedings, or for the winding-up
or liquidation of its affairs, is entered against the related
Mortgagor; provided, that if such decree or order is discharged or
stayed within 60 days of being entered, or if, as to a bankruptcy,
the automatic stay is lifted within 60 days of a filing for relief
or the case is dismissed, such Mortgage Loan shall not be a
Specially Serviced Mortgage Loan (and no Special Servicing Fees,
Workout Fees or Liquidation Fees will be payable with respect
thereto); or
(vi) the related Mortgagor shall consent to the appointment of
a conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshaling of assets and liabilities or
similar proceedings of or relating to such Mortgagor or of or
relating to all or substantially all of its property; or
(vii) the related Mortgagor shall admit in writing its
inability to pay its debts generally as they become due, file a
petition to take advantage of any applicable insolvency or
reorganization statute, make an assignment for the benefit of its
creditors, or voluntarily suspend payment of its obligations; or
(viii) a default of which the Servicer has notice (other than
a failure by such Mortgagor to pay principal or interest) and which
in the opinion of the Servicer materially and adversely affects the
interests of the Certificateholders has occurred and remained
unremedied for the applicable grace period specified in the related
Mortgage Loan documents, other than the failure to maintain
terrorism insurance if it is not required to be maintained pursuant
to Section 3.07 as determined by the Special Servicer (or if no
grace period is specified for those defaults which are capable of
cure, 60 days); or
(ix) the Servicer has received notice of the foreclosure or
proposed foreclosure of any lien on the related Mortgaged Property;
provided, if the Long Island Industrial Companion Loan becomes a Specially
Serviced Mortgage Loan, the Long Island Industrial Mortgage Loan shall also
become a Specially Serviced Mortgage Loan. If the Long Island Industrial
Mortgage Loan becomes a Specially Serviced Mortgage Loan, the Long Island
Industrial Companion Loan shall become a Specially Serviced Mortgage Loan.
"Similar Law": As defined in Section 5.02(c).
"Simon Available Distribution Amount": With respect to any
Distribution Date, an amount equal to the sum of (without duplication):
(a) the aggregate amount relating to the Simon Mortgage Loan on deposit
in the Simon Collection Account and the Simon Loan REMIC
Distribution Account (exclusive of any Net Investment Earnings
contained therein) as of the close of business on the Business Day
preceding the related P&I Advance Date, exclusive of (without
duplication):
(i) all Monthly Payments that are due on a Due Date following the
end of the related Due Period with respect to the Simon
Mortgage Loan;
(ii) all Principal Prepayments (together with any related payments
of interest allocable to the period following the Due Date
for the Simon Mortgage Loan during the related Due Period),
Liquidation Proceeds and Insurance and Condemnation Proceeds
received after the end of the related Due Period with respect
to the Simon Mortgage Loan;
(iii) all amounts payable or reimbursable to any Person from the
Simon Collection Account pursuant to clauses (ii) through
(xvi), inclusive of Section 3.05(a);
(iv) all amounts payable or reimbursable to any Person from the
Simon Loan REMIC Distribution Account pursuant to clauses
(iii) through (viii), inclusive, of Section 3.05(b);
(v) Excess Interest;
(vi) all Yield Maintenance Charges;
(vii) all amounts deposited in the Simon Collection Account or
Simon Loan REMIC Distribution Account, as the case may be, in
error; and
(viii) with respect to any Distribution Date relating to each
Interest Accrual Period ending in (1) each January or (2) any
December in a year immediately preceding a year which is not
a leap year, an amount equal to one day of interest on the
Stated Principal Balance of the Simon Mortgage Loan as of the
Due Date in the month preceding the month in which such
Distribution Date occurs at the related Mortgage Rate to the
extent such amounts are to be deposited in the Interest
Reserve Account and held for future distribution pursuant to
Section 3.25;
(b) if and to the extent not already included in clause (a) hereof, the
aggregate amount transferred from the REO Account to the Simon
Collection Account for such Distribution Date pursuant to Section
3.16(c);
(c) the aggregate amount of any P&I Advances made by the Servicer or the
Trustee, as applicable, for such Distribution Date pursuant to
Section 4.03 or 7.05 (net of the related Trustee Fee with respect to
the Simon Mortgage Loan for which such P&I Advance is made); and
(d) for the Distribution Date occurring in each March, the Withheld
Amount remitted to the Simon Loan REMIC Distribution Account
pursuant to Section 3.25(b).
"Simon Collateral Support Deficit": As defined in Section 4.04(d).
"Simon Collection Account": An account created and maintained by the
Servicer pursuant to Section 3.04(a) on behalf of the Trustee in trust for the
Certificateholders, which may be a subaccount of the Certificate Account, which
shall be entitled "Wachovia Bank, National Association, as Servicer, in trust
for the registered holders of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities
Corp., Commercial Mortgage Pass-Through Certificates, Series 2002-C2, Simon
Collection Account." Any such account shall be an Eligible Account.
"Simon Controlling Holder": As defined in Section 3.29(h).
"Simon Default Distribution Priority": As defined in Section
4.01(l).
"Simon Loan REMIC": The segregated pool of assets subject hereto
constituting a portion of the trust created hereby and to be administered
hereunder with respect to which a separate REMIC election is to be made and
consisting of: (i) the Simon Mortgage Loan as from time to time subject to this
Agreement and all payments under and proceeds of such Mortgage Loan received
after the Closing Date, together with all documents included in the related
Mortgage Files and any related Escrow Payments and reserves; (ii) any REO
Property acquired in respect of the Simon Mortgage Loan; (iii) Withheld Amounts
in the Interest Reserve Account with respect to the Simon Mortgage Loan; (iv)
the Simon Collection Account and the Simon Loan REMIC Distribution Account; (v)
any amount held in the Gain-on-Sale Reserve Account with respect to the Simon
Mortgage Loan; (vi) the rights of the Depositor under Section 2, 3, 9, 10, 11,
12, 13, 14, 16, 17 and 18 of the Mortgage Loan Purchase Agreement with respect
to the Simon Mortgage Loan; and (vii) the rights of the mortgagee under all
Insurance Policies with respect to the Simon Mortgage Loan.
"Simon Loan REMIC Distribution Account": The segregated account or
accounts which may be a subaccount of the Distribution Account created and
maintained by the Paying Agent pursuant to Section 3.04(b) in trust for the
Certificateholders, which shall be entitled "LaSalle Bank National Association,
as Paying Agent, on behalf of Xxxxx Fargo Bank Minnesota, N.A., as Trustee, in
trust for the registered Holders of X.X. Xxxxxx Chase Commercial Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates, Series 2002-C2,
Simon Loan REMIC Distribution Account". Any such account or accounts shall be an
Eligible Account (or a subaccount of the Distribution Account).
"Simon Loan REMIC Non-Pooled Regular Interest": Each of the Class
KSP-1 Uncertificated Interest, Class KSP-2 Uncertificated Interest and Class
KSP-3 Uncertificated Interest.
"Simon Loan REMIC Pooled Regular Interest": The separate
non-certificated beneficial ownership interest in the Loan REMIC issued
hereunder and designated as a "regular interest" in the Loan REMIC, as described
in the Preliminary Statement hereto.
"Simon Loan REMIC Principal Amount": The principal amount of each of
the Simon Loan REMIC Non-Pooled Regular Interests and the Simon Loan REMIC
Pooled Regular Interest outstanding as of any date of determination. As of the
Closing Date, the Simon Loan REMIC Principal Amount for each of the Loan REMIC
Regular Interests is as set forth in the Preliminary Statement.
"Simon Loan REMIC Regular Interest": Any of the Simon Loan REMIC
Pooled Regular Interest or the Simon Loan REMIC Non-Pooled Regular Interests.
"Simon Loan REMIC Residual Interest": The sole class of "residual
interests" in the Loan REMIC for purposes of the REMIC Provisions and evidenced
by the Class LR Certificates.
"Simon Mortgage Loan": The Mortgage Loan identified on the Mortgage
Loan Schedule as loan number 1.
"Simon Mortgage Loan Remittance Rate": With respect to the Simon
Pooled Component, a rate per annum equal to the Simon Pooled Component Interest
Rate, minus the Administrative Cost Rate; provided, that for purposes of
calculating Pass-Through Rates, the Simon Mortgage Loan Remittance Rate will be
determined without regard to any modification, waiver or amendment of the terms
of the Simon Mortgage Loan, whether agreed to by the Special Servicer or
resulting from a bankruptcy, insolvency or similar proceeding involving the
Mortgagor; provided, further, solely for purposes of calculating Pass-Through
Rates, the Simon Mortgage Loan Remittance Rate for any one-month period
preceding a related Due Date will be the annualized rate at which interest would
have to accrue in respect of the Simon Mortgage Loan on the basis of a 360-day
year consisting of twelve 30-day months in order to produce the aggregate amount
of interest actually accrued (exclusive of Default Interest or Excess Interest)
in respect of such Mortgage Loan during such one-month period at the related
Simon Pooled Component Interest Rate, minus the Administrative Cost Rate;
provided, further, that the Simon Mortgage Loan Remittance Rate for the one
month period (A) preceding the Due Dates that occur in January and February in
any year which is not a leap year or preceding the Due Date that occurs in
February in any year which is a leap year, and (B) preceding the Due Date in
March, will be the Simon Pooled Component Interest Rate less the related
Administrative Cost Rate.
With respect to any Simon Non-Pooled Component, a rate per annum
equal to the Simon Non-Pooled Component Interest Rate, minus the Administrative
Cost Rate; provided, that for purposes of calculating Pass-Through Rates, the
Simon Mortgage Loan Remittance Rate will be determined without regard to any
modification, waiver or amendment of the terms of the Simon Mortgage Loan,
whether agreed to by the Special Servicer or resulting from a bankruptcy,
insolvency or similar proceeding involving the Mortgagor; provided, further,
solely for purposes of calculating Pass-Through Rates, the Simon Mortgage Loan
Remittance Rate for any one-month period preceding a related Due Date will be
the annualized rate at which interest would have to accrue in respect of such
Mortgage Loan on the basis of a 360-day year consisting of twelve 30-day months
in order to produce the aggregate amount of interest actually accrued (exclusive
of Default Interest or Excess Interest) in respect of the Walgreens Mortgage
Loan during such one-month period at the Simon Non-Pooled Component Interest
Rate, minus the Administrative Cost Rate; provided, further, that the Simon
Mortgage Loan Remittance Rate for the one month period (A) preceding the Due
Dates that occur in January and February in any year which is not a leap year or
preceding the Due Date that occurs in February in any year which is a leap year,
and (B) preceding the Due Date in March, will be the Simon Non-Pooled Component
Interest Rate less the related Administrative Cost Rate.
"Simon Non-Pooled Balance": With respect to each Simon Non-Pooled
Component, the aggregate principal amount of such Simon Non-Pooled Component
outstanding from time to time which, on the Cut-off Date, shall equal
$19,565,741. On each Distribution Date, the Simon Non-Pooled Balance shall be
reduced by the amount of any distributions of principal allocated in respect of
the Simon Non-Pooled Component on such Distribution Date pursuant to Sections
4.01(j), Section 4.01(k) or 9.01, as applicable, and shall be further reduced by
the amount of any Collateral Support Deficit and additional Trust Fund expenses
incurred with respect to the Simon Mortgage Loan allocated to the Class of Class
SP Certificates which are Related Certificates on such Distribution Date
pursuant to Section 4.04(a). The Simon Non-Pooled Balance will be increased on
any Distribution Date by the amount of any Certificate Deferred Interest
attributable to the Simon Mortgage Loan allocated to any Class of Class SP
Certificates which are Related Certificates on such Distribution Date pursuant
to Section 4.05. Distributions in respect of a reimbursement of a Simon
Collateral Support Deficit and additional Trust Fund expenses in respect of the
Simon Mortgage Loan previously allocated to any Class of Class SP Certificates
shall not constitute distributions of principal and shall not result in
reduction of the related Simon Non-Pooled Balance.
"Simon Non-Pooled Component": The three separate subordinate
interests in the Simon Loan REMIC represented by each of the Class KSP-1, Class
KSP-2 and Class KSP-3 Uncertificated Interests.
"Simon Non-Pooled Component Interest Rate": A per annum rate equal
to 7.4976%.
"Simon Non-Pooled Percentage": For any Distribution Date, a fraction
expressed as a percentage, the numerator of which is the Simon Non-Pooled
Balance for such Distribution Date and the denominator of which is the sum of
(a) the Simon Non-Pooled Balance for such Distribution Date and (b) the Simon
Pooled Balance for such Distribution Date.
"Simon Pooled Balance": The principal balance of the Simon Pooled
Component outstanding from time to time which, as of the Cut-off Date is equal
to $119,191,303. On each Distribution Date, the Simon Pooled Balance shall be
reduced by the amount of any distributions of principal allocated in respect of
the Simon Pooled Component on such Distribution Date pursuant to Section
4.01(j), Section 4.01(k) or Section 9.01, as applicable, and shall be further
reduced by the amount of any Simon Collateral Support Deficit and additional
Trust Fund expenses incurred with respect to the Simon Mortgage Loan allocated
to any Class of Regular Certificates on such Distribution Date pursuant to
Section 4.04(a). The Simon Pooled Balance will be increased on any Distribution
Date by the amount of any Certificate Deferred Interest attributable to the
Simon Mortgage Loan allocated to any Class of Regular Certificates on such
Distribution Date pursuant to Section 4.05. Distributions in respect of a
reimbursement of a Collateral Support Deficit and additional Trust Fund expenses
in respect of the Simon Mortgage Loan previously allocated to any Class of
Regular Certificates shall not constitute distributions of principal and shall
not result in reduction of the Simon Pooled Balance.
"Simon Pooled Component": A senior interest in the Simon Loan REMIC
represented by the Simon Loan REMIC Pooled Regular Interest.
"Simon Pooled Component Interest Rate": A per annum rate equal to
5.9870%.
"Simon Pooled Percentage": For any Distribution Date, a fraction
expressed as a percentage, the numerator of which is (x) the Simon Pooled
Balance for such Distribution Date and the denominator of which is (y) the sum
of (a) the Simon Pooled Balance for such Distribution Date and (b) the Simon
Non-Pooled Balance for such Distribution Date.
"Simon Principal Distribution Amount": With respect to any
Distribution Date, an amount equal to the sum of (a) the Simon Principal
Shortfall for that Distribution Date, (b) the portion of the Scheduled Principal
Distribution Amount for such Distribution Date that relates to the Simon
Mortgage Loan and (c) the portion of the Unscheduled Principal Distribution
Amount for such Distribution Date that relates to the Simon Mortgage Loan.
"Simon Principal Shortfall": For any Distribution Date after the
initial Distribution Date, the amount, if any, by which (a) the Simon Principal
Distribution Amount for the preceding Distribution Date, exceeds (b) the
aggregate amount distributed in respect of principal on the Simon Loan REMIC
Pooled Regular Interest and the Simon Loan REMIC Non-Pooled Regular Interests
for such preceding Distribution Date. The Simon Principal Shortfall for the
initial Distribution Date will be zero.
"Simon Representative": As defined in Section 3.28(h)(i).
"Special Servicer": ARCap Special Servicing, Inc., a Delaware
corporation, and its successors and assigns, or any successor Special
Servicer appointed as herein provided.
"Special Servicing Fee": With respect to each Specially Serviced
Mortgage Loan and REO Loan, the fee payable to the Special Servicer pursuant to
the first paragraph of Section 3.11(b).
"Special Servicing Fee Rate": With respect to each Specially
Serviced Mortgage Loan and each REO Loan, 0.25% per annum computed on the basis
of the Stated Principal Balance of the related Mortgage Loan in the same manner
as interest is calculated on the Specially Serviced Mortgage Loans.
"Specially Serviced Mortgage Loan": As defined in Section 3.01(a).
"Startup Day": The day designated as such in Section 10.01(b).
"Stated Principal Balance": With respect to any Mortgage Loan, as of
any date of determination, an amount equal to (x) the Cut-off Date Principal
Balance of such Mortgage Loan, plus (y) any Mortgage Deferred Interest added to
the principal balance of such Mortgage Loan on or before the end of the
immediately preceding Due Period minus (z) the sum of:
(i) the principal portion of each Monthly Payment due on such
Mortgage Loan after the Cut-off Date, to the extent received from the
Mortgagor or advanced by the Servicer and distributed to
Certificateholders on or before such date of determination;
(ii) all Principal Prepayments received with respect to such
Mortgage Loan after the Cut-off Date, to the extent distributed to
Certificateholders on or before such date of determination;
(iii) the principal portion of all Insurance and Condemnation
Proceeds and Liquidation Proceeds received with respect to such Mortgage
Loan after the Cut-off Date, to the extent distributed to
Certificateholders on or before such date of determination; and
(iv) Special Servicing Fees, Liquidation Fees, accrued interest on
Advances and other additional Trust Fund expenses incurred in connection
with the related Mortgage Loan on or before such date of determination
that were applied to reduce the Unscheduled Principal Distribution Amount
for the related Distribution Date; and
(v) any reduction in the outstanding principal balance of such
Mortgage Loan resulting from a Deficient Valuation that occurred prior to
the end of the Due Period for the most recent Distribution Date.
With respect to any REO Loan, as of any date of determination, an
amount equal to (x) the Stated Principal Balance of the predecessor Mortgage
Loan as of the date of the related REO Acquisition, minus (y) the sum of:
(i) the principal portion of any P&I Advance made with respect to
the predecessor Mortgage Loan on or after the date of the related REO
Acquisition, to the extent distributed to Certificateholders on or before
such date of determination;
(ii) the principal portion of all Insurance and Condemnation
Proceeds, Liquidation Proceeds and REO Revenues received with respect to
such REO Loan, to the extent distributed to Certificateholders on or
before such date of determination; and
(iii) Special Servicing Fees, Liquidation Fees, accrued interest on
Advances and other additional Trust Fund expenses incurred in connection
with the related Mortgage Loan on or before such date of determination
that were applied to reduce the Unscheduled Principal Distribution Amount
for the related Distribution Date.
A Mortgage Loan or a REO Loan shall be deemed to be part of the
Trust Fund and to have an outstanding Stated Principal Balance until the
Distribution Date on which the payments or other proceeds, if any, received in
connection with a Liquidation Event in respect thereof are to be (or, if no such
payments or other proceeds are received in connection with such Liquidation
Event, would have been) distributed to Certificateholders.
With respect to a Companion Loan on any date of determination, the
Stated Principal Balance shall equal the unpaid principal balance of such
Companion Loan.
"Statement to Certificateholders": As defined in Section 4.02(a).
"Subordinate Certificate": Any Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N or Class
NR Certificate.
"Sub-Servicer": Any Person with which the Servicer has entered into
a Sub-Servicing Agreement.
"Sub-Servicing Agreement": The written contract between the Servicer
or the Special Servicer, as the case may be, and any Sub-Servicer relating to
servicing and administration of Mortgage Loans as provided in Section 3.22.
"Substitution Shortfall Amount": With respect to a substitution
pursuant to Section 2.03(b) hereof, an amount equal to the excess, if any, of
the Purchase Price of the Mortgage Loan being replaced calculated as of the date
of substitution over the Stated Principal Balance of the related Qualified
Substitute Mortgage Loan after application of all scheduled payments of
principal and interest due during or prior to the month of substitution. In the
event that one or more Qualified Substitute Mortgage Loans are substituted (at
the same time by the same Mortgage Loan Seller) for one or more deleted Mortgage
Loans, the Substitution Shortfall Amount shall be determined as provided in the
preceding sentence on the basis of the aggregate Purchase Prices of the Mortgage
Loan or Mortgage Loans being replaced and the aggregate Stated Principal
Balances of the related Qualified Substitute Mortgage Loans.
"Successful Bidder": As defined in Section 7.01(c).
"Tax Returns": The federal income tax returns on Internal Revenue
Service Form 1066, U.S. Real Estate Mortgage Investment Conduit Income Tax
Return, including Schedule Q thereto, Quarterly Notice to Residual Interest
Holders of REMIC Taxable Income or Net Loss Allocation, or any successor forms,
to be filed on behalf of each of the Upper-Tier REMIC, the Lower-Tier REMIC and
each Loan REMIC due to its classification as a REMIC under the REMIC
Provisions, and the applicable federal income tax returns to be filed on behalf
of the Grantor Trust, together with any and all other information, reports or
returns that may be required to be furnished to the Certificateholders or filed
with the Internal Revenue Service or any other governmental taxing authority
under any applicable provisions of federal tax law or Applicable State and Local
Tax Law.
"Transfer": Any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"Transfer Affidavit": As defined in Section 5.02(c).
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
"Transferor": Any Person who is disposing by Transfer any Ownership
Interest in a Certificate.
"Transferor Letter": As defined in Section 5.02(c).
"Trust": The trust created hereby and to be administered hereunder.
"Trust Fund": The corpus of the trust created hereby and to be
administered hereunder, consisting of: (i) such Mortgage Loans as from time to
time are subject to this Agreement, together with the Mortgage Files relating
thereto; (ii) all scheduled or unscheduled payments on or collections in respect
of the Mortgage Loans due after the Cut-Off Date; (iii) any REO Property (to the
extent of the Trust Fund's interest therein); (iv) all revenues received in
respect of any REO Property (to the extent of the Trust Fund's interest
therein); (v) the Servicer's, the Special Servicer's and the Trustee's rights
under the insurance policies with respect to the Mortgage Loans required to be
maintained pursuant to this Agreement and any proceeds thereof (to the extent of
the Trust Fund's interest therein); (vi) any Assignments of Leases and any
security agreements (to the extent of the Trust Fund's interest therein); (vii)
any letters of credit, indemnities, guaranties or lease enhancement policies
given as additional security for any Mortgage Loans (to the extent of the Trust
Fund's interest therein); (viii) all assets deposited in the Servicing Accounts
(to the extent of the Trust Fund's interest therein), amounts on deposit in the
Certificate Account, the Distribution Account, the Gain-on-Sale Reserve Account,
the Simon Loan REMIC Distribution Account, the Walgreens Loan REMIC Distribution
Account, the Lower-Tier Distribution Account, the Upper-Tier Distribution
Account, the Excess Interest Distribution Account, the Interest Reserve Account
and any REO Account (to the extent of the Trust Fund's interest in such REO
Account), including any reinvestment income, as applicable; (ix) any
Environmental Indemnity Agreements (to the extent of the Trust Fund's interest
therein); (x) the rights and remedies under each Mortgage Loan Purchase
Agreement; (xi) the Loan REMIC Regular Interests and the Uncertificated
Lower-Tier Interests; and (xii) the proceeds of the foregoing (other than any
interest earned on deposits in the Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts and any Reserve Accounts, to the extent such interest belongs to
the related Mortgagor).
"Trustee": Xxxxx Fargo Bank Minnesota, N.A., a national banking
association, in its capacity as trustee and its successors in interest, or any
successor trustee appointed as herein provided.
"Trustee Exception Report": As defined in Section 2.02(b).
"Trustee Fee": The fee to be paid to the Trustee as compensation for
the Trustee's activities under this Agreement. The Trustee Fee includes the
Paying Agent Fee.
"Trustee Fee Rate": A rate equal to 0.0021% per annum computed on
the basis of the Stated Principal Balance of the related Mortgage Loan (and in
the same manner as interest is calculated on the related Mortgage Loan) as of
the preceding Distribution Date. The Trustee Fee Rate includes the Paying Agent
Fee Rate.
"UCC": The Uniform Commercial Code, as enacted in each applicable
state.
"UCC Financing Statement": A financing statement executed and filed
pursuant to the UCC, as in effect in the relevant jurisdiction.
"Uncertificated Lower-Tier Interests": Any of the Class LA-1-1,
Class LA-1-2 Class LA-1-3, Class LA-1-4, Class LA-1-5, Class LA-2-1, Class
LA-2-2, Class LA-2-3, Class LA-2-4, Class LB, Class LC, Class LD, Class LE,
Class LF-1, Class LF-2, Class LG-1, Class LG-2, Class LH-1, Class LH-2, Class
LJ-1, Class LJ-2, Class LK, Class LL, Class LM, Class LN, Class LNR, Class
LSP-1, Class LSP-2, Class LSP-3 and Class LWM Uncertificated Interests.
"Underwriters": X.X. Xxxxxx Securities Inc., Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated, ABN AMRO Incorporated, Banc of America Securities
LLC, Xxxxxxx, Sachs & Co. and Xxxxxxx Xxxxx Xxxxxx Inc.
"Underwritten Debt Service Coverage Ratio": With respect to any
Mortgage Loan, the ratio of (i) Underwritten Net Cash Flow produced by the
related Mortgaged Property to (ii) the aggregate amount of the Monthly Payments
due for the 12-month period immediately following the Cut-off Date, except with
respect to those Mortgage Loans identified on Schedule 2 where Monthly Payments
pay interest only for a specified period of time set forth in the related
Mortgage Loan documents and then pay principal and interest, but for purposes of
this definition only, shall be assumed to include interest and principal (based
upon the amortization schedule length indicated on Schedule 2).
"Underwritten Net Cash Flow": With respect to any Mortgaged
Property, the estimated annual revenue derived from the use and operation of
such Mortgaged Property, less estimated annual expenses, including operating
expenses (such as utilities, administrative expenses, repairs and maintenance,
tenant improvement costs, leasing commissions, management fees and advertising),
fixed expenses (such as insurance, real estate taxes and, if applicable, ground
lease payments) and replacement reserves and an allowance for vacancies and
credit losses. In calculating Underwritten Net Cash Flow, certain non-operating
items such as depreciation, amortization, partnership distributions, financing
fees and capital expenditures other than applicable reserves, are not included
as expenses.
"Uninsured Cause": Any cause of damage to property subject to a
Mortgage such that the complete restoration of such property is not fully
reimbursable by the hazard insurance policies or flood insurance policies
required to be maintained pursuant to Section 3.07.
"Unscheduled Principal Distribution Amount": With respect to any
Distribution Date and the Mortgage Loans, the aggregate of (a) all Principal
Prepayments received on the Mortgage Loans on or prior to the Determination Date
and (b) the principal portions of all Liquidation Proceeds, Insurance and
Condemnation Proceeds (net of Special Servicing Fees, Liquidation Fees, accrued
interest on Advances and other additional Trust Fund expenses incurred in
connection with the related Mortgage Loan) and, if applicable, REO Revenues
received with respect to the Mortgage Loans and any REO Loans on or prior to the
related Determination Date, but in each case only to the extent that such
principal portion represents a recovery of principal for which no advance was
previously made pursuant to Section 4.03 in respect of a preceding Distribution
Date.
"Updated Collection Report": A report substantially containing the
content described in Exhibit L-14 attached hereto and available each month on
the P&I Advance Date, setting forth each Mortgage Loan or REO Loan with respect
to which the Servicer received a Monthly Payment after the Determination Date
and before the P&I Advance Date for the related month.
"Upper-Tier Distribution Account": The segregated account or
accounts (or a subaccount of the Distribution Account) created and maintained by
the Paying Agent pursuant to Section 3.04(b) in trust for the
Certificateholders, which shall be entitled "LaSalle Bank National Association,
as Paying Agent, in trust for the registered Holders of X.X. Xxxxxx Chase
Commercial Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2002-C2, Upper-Tier Distribution Account". Any such account
or accounts shall be an Eligible Account (or a subaccount of the Distribution
Account).
"Upper-Tier REMIC": One of the four separate REMICs comprising the
Trust Fund, the assets of which consist of the Uncertificated Lower-Tier
Interests and such amounts as shall from time to time be held in the Upper-Tier
Distribution Account.
"U.S. Dollars": Lawful money of the United States of America.
"U.S. Person": A citizen or resident of the United States, a
corporation or partnership (except to the extent provided in applicable Treasury
Regulations) or other entity created or organized in, or under the laws of, the
United States, any State thereof or the District of Columbia, including any
entity treated as a corporation or partnership for federal income tax purposes,
an estate whose income is subject to United States federal income tax regardless
of its source or a trust if a court within the United States is able to exercise
primary supervision over the administration of such trust, and one or more such
U.S. Persons have the authority to control all substantial decisions of such
trust (or, to the extent provided in applicable Treasury Regulations, certain
trusts in existence on August 20, 1996 which are eligible to elect to be treated
as U.S. Persons).
"Voting Rights": The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. At all times during the term
of this Agreement, the Voting Rights shall be allocated among the various
Classes of Certificateholders as follows: (i) 4% in the case of the Class X
Certificates (allocated pro rata between the Class X-1 and Class X-2
Certificates based upon their Class Notional Amounts), and (ii) in the case of
any other Class of Regular Certificates a percentage equal to the product of 96%
and a fraction, the numerator of which is equal to the aggregate Certificate
Balance of such Class, in each case, determined as of the Distribution Date
immediately preceding such time, and the denominator of which is equal to the
aggregate Certificate Balance of the Regular Certificates (other than the Class
X-1 and the Class X-2 Certificates), each determined as of the Distribution Date
immediately preceding such time. None of the Class SP-1, Class SP-2, Class SP-3,
Class R Certificates or the Class LR Certificates will be entitled to any Voting
Rights. Voting Rights allocated to a Class of Certificateholders shall be
allocated among such Certificateholders in proportion to the Percentage
Interests evidenced by their respective Certificates. Appraisal Reductions shall
not result in a change to a Class' Voting Rights.
"Walgreens Available Distribution Amount": With respect to any
Distribution Date, an amount equal to the sum of (without duplication):
(a) the aggregate amount relating to the Walgreens Mortgage Loan on
deposit in the Walgreens Collection Account and the Walgreens Loan
REMIC Distribution Account (exclusive of any Net Investment Earnings
contained therein) as of the close of business on the Business Day
preceding the related P&I Advance Date, exclusive of (without
duplication):
(i) all Monthly Payments that are due on a Due Date following the
end of the related Due Period with respect to the Walgreens
Mortgage Loan;
(ii) all Principal Prepayments (together with any related payments
of interest allocable to the period following the Due Date
for the Walgreens Mortgage Loan during the related Due
Period), Liquidation Proceeds and Insurance and Condemnation
Proceeds received after the end of the related Due Period
with respect to the Walgreens Mortgage Loan;
(iii) all amounts payable or reimbursable to any Person from the
Walgreens Collection Account pursuant to clauses (ii) through
(xvi), inclusive of Section 3.05(a);
(iv) all amounts payable or reimbursable to any Person from the
Walgreens Loan REMIC Distribution Account pursuant to clauses
(iii) through (viii), inclusive, of Section 3.05(c);
(v) Excess Interest;
(vi) all Yield Maintenance Charges;
(vii) all amounts deposited in the Walgreens Collection Account or
Walgreens Loan REMIC Distribution Account, as the case may
be, in error; and
(viii) with respect to any Distribution Date relating to each
Interest Accrual Period ending in (1) each January or (2) any
December in a year immediately preceding a year which is not
a leap year, an amount equal to one day of interest on the
Stated Principal Balance of the Walgreens Mortgage Loan as of
the Due Date in the month preceding the month in which such
Distribution Date occurs at the related Mortgage Rate to the
extent such amounts are to be deposited in the Interest
Reserve Account and held for future distribution pursuant to
Section 3.25;
(b) if and to the extent not already included in clause (a) hereof, the
aggregate amount transferred from the REO Account to the Walgreens
Collection Account for such Distribution Date pursuant to Section
3.16(c);
(c) the aggregate amount of any P&I Advances made by the Servicer or the
Trustee, as applicable, for such Distribution Date pursuant to
Section 4.03 or 7.05 (net of the related Trustee Fee with respect to
the Walgreens Mortgage Loan for which such P&I Advance is made); and
(d) for the Distribution Date occurring in each March, the Withheld
Amount remitted to the Walgreens Loan REMIC Distribution Account
pursuant to Section 3.25(b).
"Walgreens Collateral Support Deficit": As defined in Section
4.04(e).
"Walgreens Collection Account": An account created and maintained by
the Servicer pursuant to Section 3.04(a) on behalf of the Trustee in trust for
the Certificateholders, which may be a subaccount of the Certificate Account,
which shall be entitled "Wachovia Bank, National Association, as Servicer, in
trust for the registered holders of X.X. Xxxxxx Xxxxx Commercial Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates, Series 2002-C2,
Walgreens Collection Account." Any such account shall be an Eligible Account.
"Walgreens Default Distribution Priority": As defined in Section
4.01(o).
"Walgreens Loan REMIC": The segregated pool of assets subject hereto
constituting a portion of the trust created hereby and to be administered
hereunder with respect to which a separate REMIC election is to be made and
consisting of: (i) the Walgreens Mortgage Loan as from time to time subject to
this Agreement and all payments under and proceeds of such Mortgage Loan
received after the Closing Date, together with all documents included in the
related Mortgage Files and any related Escrow Payments and reserves; (ii) any
REO Property acquired in respect of the Walgreens Mortgage Loan; (iii) Withheld
Amounts in the Interest Reserve Account with respect to the Walgreens Mortgage
Loan; (iv) the Walgreens Collection Account and the Walgreens Loan REMIC
Distribution Account; (v) any amount held in the Gain-on-Sale Reserve Account
with respect to the Walgreens Mortgage Loan; (vi) the rights of the Depositor
under Section 2, 3, 9, 10, 11, 12, 13, 14, 16, 17 and 18 of the Mortgage Loan
Purchase Agreement with respect to the Walgreens Mortgage Loan; and (vii) the
rights of the mortgagee under all Insurance Policies with respect to the
Walgreens Mortgage Loan.
"Walgreens Loan REMIC Distribution Account": The segregated account
or accounts which may be a subaccount of the Distribution Account created and
maintained by the Paying Agent pursuant to Section 3.04(b) in trust for the
Certificateholders, which shall be entitled "LaSalle Bank National Association,
as Paying Agent, on behalf of Xxxxx Fargo Bank Minnesota, N.A., as Trustee, in
trust for the registered Holders of X.X. Xxxxxx Xxxxx Commercial Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates, Series 2002-C2,
Walgreens Loan REMIC Distribution Account". Any such account or accounts shall
be an Eligible Account (or a subaccount of the Distribution Account).
"Walgreens Loan REMIC Non-Pooled Regular Interest": The Class JWM
Uncertificated Interest.
"Walgreens Loan REMIC Pooled Regular Interest": The separate
non-certificated beneficial ownership interest in the Walgreens Loan REMIC
issued hereunder and designated as a "regular interest" in the Walgreens Loan
REMIC, as described in the Preliminary Statement hereto.
"Walgreens Loan REMIC Principal Amount": The principal amount of the
Walgreens Loan REMIC Non-Pooled Regular Interest and the Walgreens Loan REMIC
Pooled Regular Interest outstanding as of any date of determination. As of the
Closing Date, the Walgreens Loan REMIC Principal Amount for each of the
Walgreens Loan REMIC Regular Interest is as set forth in the Preliminary
Statement.
"Walgreens Loan REMIC Regular Interest": Either the Walgreens Loan
REMIC Pooled Regular Interest or the Walgreens Loan REMIC Non-Pooled Regular
Interest.
"Walgreens Loan REMIC Residual Interest": The sole class of
"residual interests" in the Walgreens Loan REMIC for purposes of the REMIC
Provisions and evidenced by the Class LR Certificates.
"Walgreens Mortgage Loan": The Mortgage Loan identified on the
Mortgage Loan Schedule as loan number 93.
"Walgreens Mortgage Loan Remittance Rate": With respect to the
Walgreens Mortgage Loan for any Distribution Date, a rate equal to the Net
Mortgage Rate of the Walgreens Mortgage Loan.
"Walgreens Non-Pooled Balance": With respect to the Walgreens
Non-Pooled Component, the aggregate principal amount of the Walgreens Non-Pooled
Component outstanding from time to time which, on the Cut-off Date, shall equal
$338,406. On each Distribution Date, the Walgreens Non-Pooled Balance shall be
reduced by the amount of any distributions of principal allocated in respect of
the Walgreens Non-Pooled Component on such Distribution Date pursuant to
Sections 4.01(n), Section 4.01(o) or 9.01, as applicable, and shall be further
reduced by the amount of any Collateral Support Deficit and additional Trust
Fund expenses incurred with respect to the Walgreens Mortgage Loan allocated to
the Class WM Certificates on such Distribution Date pursuant to Section 4.04(a).
The Walgreens Non-Pooled Balance will be increased on any Distribution Date by
the amount of any Certificate Deferred Interest attributable to the Walgreens
Mortgage Loan allocated to the Class WM Certificates on such Distribution Date
pursuant to Section 4.05. Distributions in respect of a reimbursement of a
Walgreens Collateral Support Deficit and additional Trust Fund expenses in
respect of the Walgreens Mortgage Loan previously allocated to the Class WM
Certificates shall not constitute distributions of principal and shall not
result in reduction of the Walgreens Non-Pooled Balance.
"Walgreens Non-Pooled Component": The subordinate interest in
the Loan REMIC represented by the Class JWM Uncertificated Interests.
"Walgreens Non-Pooled Percentage": For any Distribution Date, a
fraction expressed as a percentage, the numerator of which is the Walgreens
Non-Pooled Balance for such Distribution Date and the denominator of which is
the sum of (a) the Walgreens Non-Pooled Balance for such Distribution Date and
(b) the Walgreens Pooled Balance for such Distribution Date.
"Walgreens Pooled Balance": The principal balance of the Walgreens
Pooled Component outstanding from time to time which, as of the Cut-off Date is
equal to $2,276,909. On each Distribution Date, the Walgreens Pooled Balance
shall be reduced by the amount of any distributions of principal allocated in
respect of the Walgreens Pooled Component on such Distribution Date pursuant to
Section 4.01(n), Section 4.01(o) or Section 9.01, as applicable, and shall be
further reduced by the amount of any Walgreens Collateral Support Deficit and
additional Trust Fund expenses incurred with respect to the Walgreens Mortgage
Loan allocated to any Class of Regular Certificates on such Distribution Date
pursuant to Section 4.04(a). The Walgreens Pooled Balance will be increased on
any Distribution Date by the amount of any Certificate Deferred Interest
attributable to the Walgreens Mortgage Loan allocated to any Class of Regular
Certificates on such Distribution Date pursuant to Section 4.05. Distributions
in respect of a reimbursement of a Collateral Support Deficit and additional
Trust Fund expenses in respect of the Walgreens Mortgage Loan previously
allocated to any Class of Regular Certificates shall not constitute
distributions of principal and shall not result in reduction of the Walgreens
Pooled Balance.
"Walgreens Pooled Component": A senior interest in the Walgreens
Loan REMIC represented by the Walgreens Loan REMIC Pooled Regular Interest.
"Walgreens Pooled Percentage": For any Distribution Date, a fraction
expressed as a percentage, the numerator of which is (x) the Walgreens Pooled
Balance for such Distribution Date and the denominator of which is (y) the sum
of (a) the Walgreens Pooled Balance for such Distribution Date and (b) the
Walgreens Non-Pooled Balance for such Distribution Date.
"Walgreens Principal Distribution Amount": With respect to any
Distribution Date, an amount equal to the sum of (a) the Walgreens Principal
Shortfall for that Distribution Date, (b) the portion of the Scheduled Principal
Distribution Amount for such Distribution Date that relates to the Walgreens
Mortgage Loan and (c) the portion of the Unscheduled Principal Distribution
Amount for such Distribution Date that relates to the Walgreens Mortgage Loan.
"Walgreens Principal Shortfall": For any Distribution Date after the
initial Distribution Date, the amount, if any, by which (a) the Walgreens
Principal Distribution Amount for the preceding Distribution Date, exceeds (b)
the aggregate amount distributed in respect of principal on the Walgreens Loan
REMIC Pooled Regular Interest and the Walgreens Loan REMIC Non-Pooled Regular
Interest for such preceding Distribution Date. The Walgreens Principal Shortfall
for the initial Distribution Date will be zero.
"Weighted Average Net Mortgage Rate": With respect to any
Distribution Date, the weighted average of the applicable Net Mortgage Rates of
the Mortgage Loans (or (a) in the case of the Simon Mortgage Loan, the Simon
Pooled Component or (b) in the case of the Walgreens Mortgage Loan, the
Walgreens Pooled Component) as of the first day of the related Due Period,
weighted on the basis of their respective Stated Principal Balances (or (y) in
the case of the Simon Mortgage Loan, the Simon Pooled Balance or (z) in the case
of the Walgreens Mortgage Loan, the Walgreens Pooled Balance) as of the first
day of such Due Period (after giving effect to any payments received during any
applicable grace period).
"Withheld Amounts": As defined in Section 3.25(a).
"Workout Fee": The fee paid to the Special Servicer with respect to
each Corrected Mortgage Loan.
"Workout Fee Rate": A fee of 1.00% of each collection (other than
Excess Interest, Penalty Charges and Default Interest) of interest and principal
(other than any amount for which a Liquidation Fee would be paid), including (i)
Monthly Payments, (ii) Balloon Payments and (iii) payments (other than those
included in clause (i) or (ii) of this definition) at maturity, received on each
Corrected Mortgage Loan for so long as it remains a Corrected Mortgage Loan.
"Yield Maintenance Charge": With respect to any Mortgage Loan or REO
Loan, the yield maintenance charge or prepayment premium set forth in the
related Mortgage Loan documents; provided that no amounts shall be considered
Yield Maintenance Charges until there has been a full recovery of all principal,
interest and other amounts due under the related Mortgage Loan.
Section 1.02 Certain Calculations.
Unless otherwise specified herein, for purposes of determining
amounts with respect to the Certificates and the rights and obligations of the
parties hereto, the following provisions shall apply:
(i) All calculations of interest (other than as provided in the
Mortgage Loan documents) provided for herein shall be made on the basis of
a 360-day year consisting of twelve 30-day months.
(ii) Any Mortgage Loan payment is deemed to be received on the date
such payment is actually received by the Servicer, the Paying Agent, the
Special Servicer or the Trustee; provided, however, that for purposes of
calculating distributions on the Certificates, Principal Prepayments with
respect to any Mortgage Loan are deemed to be received on the date they
are applied in accordance with the Servicing Standards consistent with the
terms of the related Mortgage Note and Mortgage to reduce the outstanding
principal balance of such Mortgage Loan on which interest accrues.
(iii) Any reference to the Certificate Balance of any Class of
Certificates on or as of a Distribution Date shall refer to the
Certificate Balance of such Class of Certificates on such Distribution
Date after giving effect to (a) any distributions made on such
Distribution Date pursuant to Section 4.01(a), (b) any Collateral Support
Deficit allocated to such Class on such Distribution Date pursuant to
Section 4.04 and (c) the addition of any Certificate Deferred Interest
allocated to such Class and added to such Certificate Balance pursuant to
Section 4.05(b).
(iv) For purposes of calculations required herein, Excess Interest
shall not be added to the outstanding principal balance of the Mortgage
Loans notwithstanding that the related Loan Documents may provide
otherwise.
[End of Article I]
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans.
(a) The Depositor, concurrently with the execution and delivery
hereof, does hereby establish a trust, appoint the Trustee as trustee of the
trust, assign, sell, transfer and convey to the Trustee, in trust, without
recourse, for the benefit of the Certificateholders and the Trustee (as holder
of the Uncertificated Lower-Tier Interests and the Loan REMIC Regular Interests)
all the right, title and interest of the Depositor, including any security
interest therein for the benefit of the Depositor, in, to and under (i) the
Mortgage Loans identified on the Mortgage Loan Schedule, (ii) Sections 1, 2, 3,
4, 5, 6(a), 6(c), 6(d), 6(e), 6(f), 6(g), 7, 11, 12, 14, 15, 16, 18, and 20 of
each of the Mortgage Loan Purchase Agreements, (iii) all other assets included
or to be included in the Trust Fund and (iv) any rights of the Depositor, as
assignee of (i) Xxxxxxx Xxxxx Mortgage Lending, Inc. under the 00/000 Xxxxxxx
Xxxxxx Xx-Xxxxxx Agreement and the 00/000 Xxxxxxx Xxxxxx Servicing Agreement and
(ii) JPMorgan Chase Bank under the Long Island Industrial Intercreditor
Agreement. Such assignment includes all interest and principal received or
receivable on or with respect to the Mortgage Loans (other than payments of
principal and interest due and payable on the Mortgage Loans on or before the
Cut-off Date). The transfer of the Mortgage Loans and the related rights and
property accomplished hereby is absolute and, notwithstanding Section 11.07, is
intended by the parties to constitute a sale. In connection with the assignment
to the Trustee of Sections 1, 2, 3, 4, 5, 6(a), 6(c), 6(d), 6(e), 6(f), 6(g), 7,
11, 12, 14, 15, 16, 18, and 20 of each of the Mortgage Loan Purchase Agreements,
it is intended that the Trustee get the benefit of Sections 11, 12 and 15
thereof in connection with any exercise of rights under the assigned Sections,
and the Depositor shall use its best efforts to make available to the Trustee
the benefits of Sections 11, 12 and 15 in connection therewith.
In connection with the foregoing, the Trustee hereby assumes all of
the Depositor's rights and obligations as "Note A Lender" under, and agrees to
be bound by, the 00/000 Xxxxxxx Xxxxxx Xx-Xxxxxx Agreement and the 00/000
Xxxxxxx Xxxxxx Servicing Agreement.
(b) In connection with the Depositor's assignment pursuant to
subsection (a) above, the Depositor shall direct, and hereby represents and
warrants that it has directed, each of the Mortgage Loan Sellers pursuant to the
applicable Mortgage Loan Purchase Agreement to deliver to and deposit with, or
cause to be delivered to and deposited with, the Trustee or a Custodian
appointed thereby, on or before the Closing Date, the Mortgage File for each
Mortgage Loan so assigned. If the applicable Mortgage Loan Seller cannot
deliver, or cause to be delivered, as to any Mortgage Loan, the original
Mortgage Note, the delivery requirements of the applicable Mortgage Loan
Purchase Agreement and this Section 2.01(b) shall be deemed to have been
satisfied, provided such Mortgage Loan Seller shall deliver a copy or duplicate
original of such Mortgage Note, together with an affidavit certifying that the
original thereof has been lost or destroyed and indemnifying the Trustee. If the
applicable Mortgage Loan Seller cannot deliver, or cause to be delivered, as to
any Mortgage Loan, any of the documents and/or instruments referred to in
clauses (ii), (iv), (vi), (viii), (xi), (xii) and (xv) of the definition of
"Mortgage File," with evidence of filing or recording thereon (if intended to be
recorded or filed), solely because of a delay caused by the public filing or
recording office where such document or instrument has been delivered for filing
or recordation, the delivery requirements of the applicable Mortgage Loan
Purchase Agreement and this Section 2.01(b) shall be deemed to have been
satisfied on a provisional basis as of the Closing Date as to such non-delivered
document or instrument, and such non-delivered document or instrument shall be
deemed to have been included in the Mortgage File, provided that a photocopy of
such non-delivered document or instrument (certified by the applicable public
filing or recording office, the applicable title insurance company or the
applicable Mortgage Loan Seller to be a true and complete copy of the original
thereof submitted for filing or recording) is delivered to the Trustee or a
Custodian appointed thereby on or before the Closing Date, and either the
original of such non-delivered document or instrument, or a photocopy thereof,
with evidence of filing or recording thereon, is delivered to the Trustee or
such Custodian within 180 days of the Closing Date (or within such longer
period, not to exceed 18 months, after the Closing Date as the Trustee may
consent to, which consent shall not be unreasonably withheld so long as the
applicable Mortgage Loan Seller is, as certified in writing to the Trustee no
less often than every 90 days, attempting in good faith to obtain from the
appropriate public filing office or county recorder's office such original or
photocopy). If the applicable Mortgage Loan Seller cannot deliver, or cause to
be delivered, as to any Mortgage Loan, any of the documents and/or instruments
referred to in clauses (ii), (iv), (vi), (viii), (xi) and (xv) of the definition
of "Mortgage File," with evidence of filing or recording thereon, for any other
reason, including, without limitation, that such non-delivered document or
instrument has been lost or destroyed, the delivery requirements of the
applicable Mortgage Loan Purchase Agreement and this Section 2.01(b) shall be
deemed to have been satisfied as to such non-delivered document or instrument,
and such non-delivered document or instrument shall be deemed to have been
included in the Mortgage File, provided that a photocopy of such non-delivered
document or instrument is delivered to the Trustee or a Custodian appointed
thereby on or before the Closing Date. Neither the Trustee nor any Custodian
shall in any way be liable for any failure by any Mortgage Loan Seller or the
Depositor to comply with the delivery requirements of the related Mortgage Loan
Purchase Agreement and this Section 2.01(b). If, on the Closing Date as to any
Mortgage Loan, the applicable Mortgage Loan Seller cannot deliver in complete
and recordable form (or form suitable for filing, if applicable) any one of the
assignments in favor of the Trustee referred to in clauses (iii), (v), (vii) or
(xi) of the definition of "Mortgage File" solely because of the unavailability
of filing or recording information as to any existing document or instrument
and/or because such assignments are assignments in blank and have not been
completed in favor of the Trustee as specified in the related clause(s) of the
definition of "Mortgage File", such Mortgage Loan Seller may provisionally
satisfy the delivery requirements of the related Mortgage Loan Purchase
Agreement and this Section 2.01(b) by delivering with respect to such Mortgage
Loan on the Closing Date an omnibus assignment of such Mortgage Loan
substantially in the form of Exhibit H; provided that all required original
assignments with respect to such Mortgage Loan, in fully complete and recordable
form (or form suitable for filing, if applicable), are delivered to the Trustee
or its Custodian within 180 days of the Closing Date (or within such longer
period, not to exceed 18 months, as the Trustee in its discretion may consent
to, which consent shall not be unreasonably withheld so long as the applicable
Mortgage Loan Seller is, as certified in writing to the Trustee no less often
than every 90 days, attempting in good faith to obtain from the appropriate
public filing office or county recorder's office the applicable filing or
recording information as to the related document or instrument). Notwithstanding
anything herein to the contrary, with respect to letters of credit, the
applicable Mortgage Loan Seller shall deliver to the Servicer and the Servicer
shall hold the original letter(s) of credit in trust on behalf of the Trustee in
order to draw on such letter(s) of credit in accordance with the applicable
terms thereof and/or of the related Mortgage Loan documents and the applicable
Mortgage Loan Seller shall be deemed to have satisfied the delivery requirements
of the related Mortgage Loan Purchase Agreement and this Section 2.01(b) by
delivering with respect to any letter(s) of credit a copy thereof to the Trustee
together with an officer's certificate of the Mortgage Loan Seller certifying
that such document has been delivered to the Servicer or an officer's
certificate from the Servicer certifying that it holds the letter(s) of credit
pursuant to this Section 2.01, one of which shall be delivered to the Trustee on
the Closing Date. The applicable Mortgage Loan Seller shall pay any costs of
assignment or amendment of such letter(s) of credit required in order for the
Servicer to draw on such letter(s) of credit in accordance with the applicable
terms thereof and/or of the related Mortgage Loan documents.
(c) Pursuant to each Mortgage Loan Purchase Agreement, each Mortgage
Loan Seller is required at its sole cost and expense, to itself, or to engage a
third party to, put each assignment of Mortgage, each assignment of Assignment
of Leases and each assignment of each UCC Financing Statement ("Assignments"
and, individually, "Assignment") relating to the Mortgage Loans conveyed by it
under the applicable Mortgage Loan Purchase Agreement in proper form for filing
or recording, as applicable, in accordance with Revised Article 9 of the UCC and
to submit such Assignments for filing or recording, as the case may be, in the
applicable public filing or recording office, and on the Closing Date, such
Mortgage Loan Seller will be required to deliver the omnibus assignment of such
Mortgage Loans to the Trustee or its Custodian as provided in Section 2.01(b).
Except under the circumstances provided for in the last sentence of this
subsection (c), each Mortgage Loan Seller will itself, or a third party at such
Mortgage Loan Seller's expense will, promptly (and in any event within 120 days
of the later of the Closing Date and the Trustee's actual receipt of the related
documents) cause to be submitted for recording or filing, as the case may be, in
the appropriate public office for real property records or UCC Financing
Statements, as appropriate, each assignment to the Trustee referred to in
clauses (iii) and (v) of the definition of "Mortgage File" and each UCC
assignment to the Trustee referred to in clause (x) of the definition of
"Mortgage File". Each such Assignment submitted for recording shall reflect that
it should be returned by the public recording office to the Trustee or its
designee following recording (or it shall be delivered to the Mortgage Loan
Seller or its designee and such party shall deliver the original to the Trustee
or its designee), and each such UCC assignment submitted for recording or filing
shall reflect that the file copy thereof should be returned to the Trustee or
its designee following recording or filing (or it shall be delivered to the
Mortgage Loan Seller or its designee and such party shall deliver the original
to the Trustee or its designee). If any such document or instrument is
determined to be incomplete or not to meet the recording or filing requirements
of the jurisdiction in which it is to be recorded or filed, or is lost by the
public office or returned unrecorded or unfiled, as the case may be, because of
a defect therein, on or about 180 days after the Closing Date, the Mortgage Loan
Seller or its designee shall prepare, at such Mortgage Loan Seller's expense, a
substitute therefor or cure such defect, as the case may be, and thereafter the
Trustee shall upon receipt thereof cause the same to be duly recorded or filed,
as appropriate. If, by the first anniversary of the Closing Date, the Trustee
has not received confirmation of the recording or filing as the case may be, of
any such Assignment, it shall so advise the related Mortgage Loan Seller who may
then pursue such confirmation itself or request that the Trustee pursue such
confirmation at the related Mortgage Loan Seller's expense, and upon such a
request and provision for payment of such expenses satisfactory to the Trustee,
the Trustee, at the expense of the applicable Mortgage Loan Seller, shall cause
a search of the land records of each applicable jurisdiction and of the records
of the offices of the applicable Secretary of State for confirmation that the
Assignment appears in such records and retain a copy of such confirmation in the
related Mortgage File. In the event that confirmation of the recording or filing
of an Assignment cannot be obtained, the Trustee or the related Mortgage Loan
Seller, as applicable, shall promptly inform the other and the Trustee shall
provide such Mortgage Loan Seller with a copy of the Assignment and request the
preparation of a new Assignment. A Mortgage Loan Seller shall pay the expenses
for the preparation of replacement Assignments for any Assignments which, having
been properly submitted for filing or recording to the appropriate governmental
office by the Trustee, fail to appear of record and must be resubmitted.
Notwithstanding the foregoing, there shall be no requirement to record any
assignment to the Trustee referred to in clause (iii) or (v) of the definition
of "Mortgage File", or to file any UCC-3 to the Trustee referred to in clause
(x) of the definition of "Mortgage File", in those jurisdictions where, in the
written opinion of local counsel (which opinion shall be an expense of the
related Mortgage Loan Seller) acceptable to the Depositor and the Trustee, such
recordation and/or filing is not required to protect the Trustee's interest in
the related Mortgage Loans against sale, further assignment, satisfaction or
discharge by the related Mortgage Loan Seller, the Servicer, the Special
Servicer, any Sub-Servicer or the Depositor.
(d) All documents and records in the Depositor's or the applicable
Mortgage Loan Seller's possession relating to the Mortgage Loans (including
appraisals, financial statements, operating statements and any other information
provided by the respective Mortgagor from time to time, but excluding documents
prepared by the applicable Mortgage Loan Seller or any of its Affiliates solely
for internal communication, draft documents, privileged communications and
credit underwriting or due diligence analyses or data) that (i) are not required
to be a part of a Mortgage File in accordance with the definition thereof and
(ii) are reasonably necessary for the servicing of each such Mortgage Loan,
together with copies of all documents in each Mortgage File, shall be delivered
by the Depositor or the applicable Mortgage Loan Seller to the Servicer on or
before the Closing Date and shall be held by the Servicer on behalf of the
Trustee in trust for the benefit of the Certificateholders (and as holder of the
Uncertificated Lower-Tier Interests).
(e) In connection with the Depositor's assignment pursuant to
subsection (a) above, the Depositor shall deliver, and hereby represents and
warrants that it has delivered, to the Trustee and the Servicer, on or before
the Closing Date, a fully executed original counterpart of each of the Mortgage
Loan Purchase Agreements, as in full force and effect, without amendment or
modification, on the Closing Date.
(f) The Depositor shall use its best efforts to require that,
promptly after the Closing Date, but in all events within three Business Days
after the Closing Date, each of the Mortgage Loan Sellers shall cause all funds
on deposit in escrow accounts maintained with respect to the Mortgage Loans
transferred by such Mortgage Loan Seller, whether such accounts are held in the
name of the applicable Mortgage Loan Seller or any other name, be transferred to
the Servicer (or a Sub-Servicer) for deposit into Servicing Accounts.
Section 2.02 Acceptance by Trustee.
(a) The Trustee, by the execution and delivery of this Agreement (1)
acknowledges receipt by it or a Custodian on its behalf, subject to the
provisions of Section 2.01 and the further review provided for in this Section
2.02 and to any exceptions noted on the Trustee Exception Report attached to the
certificate in the form of Exhibit U hereto given by the Trustee, in good faith
and without notice of any adverse claim, of the applicable documents specified
in clause (i) of the definition of "Mortgage File" with respect to each Mortgage
Loan, of a fully executed original counterpart of each of the Mortgage Loan
Purchase Agreements, and of all other assets included in the Trust Fund and (2)
declares (a) that it or a Custodian on its behalf holds and will hold such
documents and the other documents delivered or caused to be delivered by the
Mortgage Loan Sellers that constitute the Mortgage Files, and (b) that it holds
and will hold such other assets included in the Trust Fund, in trust for the
exclusive use and benefit of all present and future Certificateholders (and as
holder of the Uncertificated Lower-Tier Interests) and with respect to any
original document in the Mortgage File for the Loan Pair, any present or future
Companion Holder.
(b) Within 90 days of the Closing Date, the Trustee or a Custodian
on its behalf, shall review the Mortgage Loan documents delivered or caused to
be delivered by the Mortgage Loan Sellers constituting the Mortgage Files; and,
promptly following such review (but in no event later than 90 days after the
Closing Date), the Trustee shall provide a certificate in the form of Exhibit V
hereto to each of the Rating Agencies, the Depositor, the Servicer, the Special
Servicer, the Directing Certificateholder (provided it shall have identified
itself, and furnished to the Trustee a notice address for the delivery of such
certificate) and the Mortgage Loan Sellers that, as to each Mortgage Loan listed
in the Mortgage Loan Schedule (other than any Mortgage Loan paid in full) and
except as specifically identified in any exception report annexed to such
writing (the "Trustee Exception Report"), (i) all documents specified in clauses
(i) through (v), (ix) through (xii) and (xvi) (or, with respect to clause (xvi),
a copy of such letter of credit and an officer's certificate as contemplated by
the penultimate sentence of Section 2.01(b) hereof), if any, of the definition
of "Mortgage File," as applicable, are in its possession, (ii) the foregoing
documents delivered or caused to be delivered by the Mortgage Loan Sellers have
been reviewed by it or by a Custodian on its behalf and appear regular on their
face and appear to be executed and to relate to such Mortgage Loan, and (iii)
based on such examination and only as to the foregoing documents, the
information set forth in the Mortgage Loan Schedule with respect to the items
specified in clauses (iv), (vi) and (viii)(c) in the definition of "Mortgage
Loan Schedule" is correct. With respect to each Mortgage Loan listed on the
Trustee Exception Report, the Trustee shall specifically identify such Mortgage
Loan together with the nature of such exception (in the form reasonably
acceptable to the Trustee and the Mortgage Loan Seller and separating items
required to be in the Mortgage File but never delivered from items which were
delivered by the Mortgage Loan Seller but are out for recording and have not
been returned by the recorder's office).
(c) The Trustee, or a Custodian on its behalf, shall review the
Mortgage Loan documents received thereby subsequent to the Closing Date; and, on
or about the first anniversary of the Closing Date, the Trustee shall certify in
writing to each of the Depositor, the Servicer, the Special Servicer, the
Directing Certificateholder and the applicable Mortgage Loan Seller that, as to
each Mortgage Loan listed on the Mortgage Loan Schedule (other than any Mortgage
Loan as to which a Liquidation Event has occurred) or any Mortgage Loan
specifically identified in any exception report annexed to such writing (i) all
documents specified in clauses (i) through (v), (ix) through (xii) and (xvi)
(or, with respect to clause (xvi), a copy of such letter of credit and an
officer's certificate as contemplated by the penultimate sentence of Section
2.01(b) hereof), if any, of the definition of "Mortgage File," as applicable,
and all documents specified in clauses (vi), (viii), (xiii) through (xv) and
(xvii) through (xxii) to the extent the Mortgage Loan Checklist indicates that
such items are part of the Mortgage File are in its possession, (ii) the
foregoing documents delivered or caused to be delivered by the Mortgage Loan
Sellers have been reviewed by it or by a Custodian on its behalf and appear
regular on their face; appear to be executed and relate to such Mortgage Loan,
and (iii) based on such examination and only as to the foregoing documents, the
information set forth in the Mortgage Loan Schedule with respect to the items
specified in clauses (iv), (vi) and (viii)(c) in the definition of "Mortgage
Loan Schedule" is correct.
(d) Notwithstanding anything contained in this Section 2.02 and
Section 2.03(b) to the contrary, in the case of a deficiency in any of the
documents specified in clauses (ii) through (iv), (ix) and (xi) in the
definition of "Mortgage File", resulting solely from a delay in the return of
the related documents from the applicable recording office, which deficiency (i)
is continuing for (a) in the case of any Mortgage Loan that is not a Specially
Serviced Mortgage Loan, more than eighteen (18) months following the Closing
Date or (b) in the case of any Specially Serviced Mortgage Loan, thirty (30)
days following a Servicing Transfer Event, and (ii) impairs or prohibits in any
material way the Servicer's or Special Servicer's ability to act upon, or
enforce, any of the Trust Fund's rights and remedies under the related Mortgage
Loan, or Specially Serviced Mortgage Loan, as applicable, at the time the
Servicer or Special Servicer attempts to act upon, or enforce, any such right or
remedy, the Directing Certificateholder, in its sole judgment, may permit the
related Mortgage Loan Seller, in lieu of repurchasing or substituting for the
related Mortgage Loan, to deposit with the Trustee an amount, to be held in
trust in a segregated Eligible Account, equal to 25% of the Stated Principal
Balance of the related Mortgage Loan (in the alternative, the related Mortgage
Loan Seller may deliver to the Trustee a letter of credit in such amount). Such
funds or letter of credit, as applicable, shall be held by the Trustee (i) until
the date on which the Servicer certifies to the Trustee that such document
deficiency has been cured, at which time the Trustee shall return such funds (or
letter of credit) to the related Mortgage Loan Seller, or (ii) if such document
deficiency has not been cured by the date which is eighteen (18) months
following the Closing Date, the related Mortgage Loan Seller shall be required
to repurchase or substitute for the related Mortgage Loan in accordance with the
terms and conditions of Section 2.03(b) or Section 6 of the related Mortgage
Loan Purchase Agreement; provided, however, that such Mortgage Loan Seller shall
not be required to repurchase the Mortgage Loan for a period of ninety (90) days
after receipt of a notice to repurchase if it is attempting to recover the
document from the applicable recording office and provides an officer's
certificate setting forth what actions such Mortgage Loan Seller is pursuing in
connection with such recovery. In the event of a repurchase or substitution,
upon such date, the Trustee shall deposit, or cause the Servicer to deposit,
such funds, or shall draw upon the letter of credit and deposit the proceeds of
such draw, into the Certificate Account to be applied to the Purchase Price (or
the Substitution Shortfall Amount, if applicable) in accordance with Section
2.03(b). All such funds deposited with the Trustee shall be invested in
Permitted Investments, at the direction and for the benefit of the related
Mortgage Loan Seller. Such funds shall be treated as an "outside reserve fund"
under the REMIC Provisions, beneficially owned by the Mortgage Loan Seller for
federal income tax purposes, which Mortgage Loan Seller shall remain liable for
any taxes payable on income or gain with respect thereto (until such funds are
applied pursuant to the preceding sentence).
(e) It is herein acknowledged that neither the Trustee nor any
Custodian is under any duty or obligation (i) to determine whether any of the
documents specified in clauses (vi), (vii), (viii) and (xiii) through (xxii) of
the definition of "Mortgage File" exist or are required to be delivered by the
Depositor, the Mortgage Loan Sellers or any other Person (unless identified on
the Mortgage Loan Checklist) or (ii) to inspect, review or examine any of the
documents, instruments, certificates or other papers relating to the Mortgage
Loans delivered to it to determine that the same are genuine, enforceable,
sufficient to perfect and maintain the perfection of a security interest or
appropriate for the represented purpose or that they are other than what they
purport to be on their face and, with respect to the documents specified in
clause (ix), whether the insurance is effective as of the date of the
recordation, whether all endorsements or riders issued are included in the file
or if the policy has not been issued whether any acceptable replacement document
has been dated the date of the related Mortgage Loan funding. Further, with
respect to the UCC financing statements referenced in the Mortgage File, absent
actual knowledge to the contrary or copies of UCC financing statements delivered
to the Trustee as part of the Mortgage File indicating otherwise, the Trustee
may assume, for the purposes of the filings and the certification to be
delivered in accordance with this Section 2.02 that the related Mortgage File
should include one state level UCC financing statement filing for each Mortgaged
Property (or with respect to any Mortgage Loan that has two or more Mortgagors,
for each Mortgagor), or if the Trustee has received notice that a particular UCC
financing statement was filed as a fixture filing, that the related Mortgage
File should include only a local UCC financing statement filing for each
Mortgaged Property (or with respect to any Mortgage Loan that has two or more
Mortgagors, for each Mortgagor). The assignments of the UCC's to be assigned to
the Trust will be delivered on the new national forms (or on such other form as
may be acceptable for filing in the applicable jurisdiction) and in recordable
format and will be filed in the jurisdiction(s) where such UCC financing
statements were originally filed, as indicated in the documents provided, and in
accordance with then current laws.
(f) If, in the process of reviewing the Mortgage Files or at any
time thereafter, the Trustee or any Custodian finds any document or documents
constituting a part of a Mortgage File (1) not to have been properly executed or
(2) subject to Section 2.01(b), not to have been delivered, (3) to contain
information that does not conform in any material respect with the corresponding
information set forth in the Mortgage Loan Schedule or (4) to be defective on
its face (each, a "Defect" in the related Mortgage File), the Trustee shall
promptly so notify the Depositor, the Servicer, the Special Servicer, the
Directing Certificateholder (and in the case of the Simon Mortgage Loan, the
Simon Representative) and the applicable Mortgage Loan Seller (and in no event
later than 90 days after the Closing Date and every quarter thereafter,
commencing with the quarter ending March 31, 2003 until March 31, 2005, by
providing a written report (the "Trustee Exception Report") setting forth for
each affected Mortgage Loan, with particularity, the nature of such Defect (in a
form reasonably acceptable to the Trustee and the Mortgage Loan Seller and
separating items required to be in the Mortgage File but never delivered from
items which were delivered by the Mortgage Loan Seller but are out for recording
and have not been returned by the recorder's office).
Section 2.03 Representations, Warranties and Covenants of the
Depositor; Mortgage Loan Sellers' Repurchase or Substitution of Mortgage Loans
for Defects in Mortgage Files and Breaches of Representations and Warranties.
(a) The Depositor hereby represents and warrants that:
(i) The Depositor is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware, and the
Depositor has taken all necessary corporate action to authorize the
execution, delivery and performance of this Agreement by it, and has the
power and authority to execute, deliver and perform this Agreement and all
the transactions contemplated hereby, including, but not limited to, the
power and authority to sell, assign and transfer the Mortgage Loans in
accordance with this Agreement;
(ii) Assuming the due authorization, execution and delivery of this
Agreement by each other party hereto, this Agreement and all of the
obligations of the Depositor hereunder are the legal, valid and binding
obligations of the Depositor, enforceable against the Depositor in
accordance with the terms of this Agreement, except as such enforcement
may be limited by bankruptcy, insolvency, reorganization or other similar
laws affecting the enforcement of creditors' rights generally, and by
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(iii) The execution and delivery of this Agreement and the
performance of its obligations hereunder by the Depositor will not
conflict with any provisions of any law or regulations to which the
Depositor is subject, or conflict with, result in a breach of or
constitute a default under any of the terms, conditions or provisions of
the certificate of incorporation or the by-laws of the Depositor or any
indenture, agreement or instrument to which the Depositor is a party or by
which it is bound, or any order or decree applicable to the Depositor, or
result in the creation or imposition of any lien on any of the Depositor's
assets or property, which would materially and adversely affect the
ability of the Depositor to carry out the transactions contemplated by
this Agreement; the Depositor has obtained any consent, approval,
authorization or order of any court or governmental agency or body
required for the execution, delivery and performance by the Depositor of
this Agreement;
(iv) There is no action, suit or proceeding pending or, to the
Depositor's knowledge, threatened against the Depositor in any court or by
or before any other governmental agency or instrumentality which would
materially and adversely affect the validity of the Mortgage Loans or the
ability of the Depositor to carry out the transactions contemplated by
this Agreement; and
(v) The Depositor is the lawful owner of the Mortgage Loans with the
full right to transfer the Mortgage Loans to the Trust and the Mortgage
Loans have been validly transferred to the Trust.
(b) If any Certificateholder, the Servicer, the Special Servicer,
the Paying Agent or the Trustee discovers or receives notice of a Defect in any
Mortgage File or a breach of any representation or warranty with respect to a
Mortgage Loan set forth in, or required to be made with respect to, a Mortgage
Loan by the applicable Mortgage Loan Seller pursuant to the related Mortgage
Loan Purchase Agreement (a "Breach"), which Defect or Breach, as the case may
be, materially and adversely affects the value of such Mortgage Loan, the
related Mortgaged Property or the interests of any Certificateholder therein,
such Certificateholder, the Servicer, the Special Servicer, the Paying Agent or
the Trustee, as applicable, shall give prompt written notice of such Defect or
Breach, as the case may be, to the Depositor, the Servicer, the Special
Servicer, the applicable Mortgage Loan Seller, the Paying Agent, the Trustee and
the Directing Certificateholder, and shall request in writing that the
applicable Mortgage Loan Seller, not later than the earlier of 90 days from the
applicable Mortgage Loan Seller's receipt of such notice or in the case of a
Breach relating to a Mortgage Loan not being a "qualified mortgage" within the
meaning of the REMIC Provisions, such Mortgage Loan Seller's discovery of such
Defect or Breach, (i) cure such Defect or Breach, as the case may be, in all
material respects, (ii) repurchase the affected Mortgage Loan or REO Loan at the
applicable Purchase Price and in conformity with the applicable Mortgage Loan
Purchase Agreement or (iii) substitute a Qualified Substitute Mortgage Loan for
such affected Mortgage Loan or REO Loan (provided that in no event shall any
such substitution occur later than the second anniversary of the Closing Date)
and pay the Servicer for deposit into the Certificate Account, any Substitution
Shortfall Amount in connection therewith and in conformity with the applicable
Mortgage Loan Purchase Agreement; provided, however, that if such Breach and
Defect is capable of being cured but is not cured within such 90-day period, and
the applicable Mortgage Loan Seller has commenced and is diligently proceeding
with the cure of such Breach or Defect within such 90-day period, the applicable
Mortgage Loan Seller shall have an additional 90 days to complete such cure (or,
failing such cure, to repurchase the related Mortgage Loan or REO Loan or
substitute a Qualified Substitute Mortgage Loan (other than with respect to the
Simon Mortgage Loan and the Walgreens Mortgage Loan, for which no substitution
will be permitted)) and provided, further, that with respect to such additional
90-day period the applicable Mortgage Loan Seller shall have delivered an
officer's certificate to the Rating Agencies, the Servicer, the Trustee and the
Directing Certificateholder, setting forth the reason such Breach or Defect is
not capable of being cured within the initial 90-day period and what actions the
applicable Mortgage Loan Seller is pursuing in connection with the cure thereof
and stating that the applicable Mortgage Loan Seller anticipates that such
Breach or Defect will be cured within the additional 90-day period.
Notwithstanding the foregoing, any Defect or Breach which causes any Mortgage
Loan not to be a "qualified mortgage" (within the meaning of Section 860G(a)(3)
of the Code, but without regard to the rule of Treasury Regulations Section
1.860G-2(f)(2) which causes a defective Mortgage Loan to be treated as a
qualified mortgage) shall be deemed to materially and adversely affect the
interests of Certificateholders therein, and such Mortgage Loan shall be
repurchased or substituted for without regard to the extended cure period
described in the preceding sentence. If the affected Mortgage Loan is to be
repurchased, the funds in the amount of the Purchase Price remitted by the
applicable Mortgage Loan Seller are to be deposited by wire transfer in the
Certificate Account.
Any of the following will cause a document in the Mortgage File to
be deemed to have a "Defect" and to be conclusively presumed to materially and
adversely affect the interests of Certificateholders in a Mortgage Loan and to
be deemed to materially and adversely affect the interest of the
Certificateholders in and the value of a Mortgage Loan: (a) the absence from the
Mortgage File of the original signed Mortgage Note, unless the Mortgage File
contains a signed lost note affidavit and indemnity that appears to be regular
on its face; (b) the absence from the Mortgage File of the original signed
Mortgage (including any related assignments) that appears to be regular on its
face, unless there is included in the Mortgage File a certified copy of the
Mortgage and a certificate stating that the original signed Mortgage was sent
for recordation; (c) the absence from the Mortgage File of the item called for
by paragraph (ix) of the definition of "Mortgage File"; (d) the absence from the
Mortgage File of any required letter of credit; (e) with respect to any
leasehold Mortgage Loan, the absence from the related Mortgage File of a copy
(or an original, if available) of the related Ground Lease; or (f) the absence
from the Mortgage File of any intervening assignments required to create a
complete chain of assignments to the Trustee on behalf of the Trust, unless
there is included in the Mortgage File a certified copy of the intervening
assignment and a certificate stating that the original intervening assignments
were sent for recordation. Notwithstanding the foregoing, the delivery of
executed escrow instructions or a commitment to issue a lender's title insurance
policy, as provided in clause (ix) of the definition of "Mortgage File", in lieu
of the delivery of the actual policy of lender's title insurance, shall not be
considered a Defect or Breach with respect to any Mortgage File if such actual
policy is delivered to the Trustee or a Custodian on its behalf not later than
the 90th day following the Closing Date.
(c) In connection with any repurchase of, or substitution of a
Qualified Substitute Mortgage Loan for, a Mortgage Loan contemplated by this
Section 2.03, the Trustee, the Servicer and the Special Servicer shall each
tender to the applicable Mortgage Loan Seller, upon delivery to each of the
Trustee, the Servicer and the Special Servicer of a trust receipt executed by
the applicable Mortgage Loan Seller evidencing such repurchase or substitution,
all portions of the Mortgage File and other documents pertaining to such
Mortgage Loan possessed by each of the Trustee, the Servicer and the Special
Servicer, and each document that constitutes a part of the Mortgage File that
was endorsed or assigned to the Trustee shall be endorsed or assigned, as the
case may be, to the applicable Mortgage Loan Seller in the same manner as
provided in Section 6 of the related Mortgage Loan Purchase Agreement, so as to
vest in such Mortgage Loan Seller the legal and beneficial ownership of such
repurchased or substituted for Mortgage Loan (including property acquired in
respect thereof or proceeds of any insurance policy with respect thereto) and
the related Mortgage Loan documents.
(d) Section 6(e) of each of the Mortgage Loan Purchase Agreements
provides the sole remedy available to the Certificateholders, or the Trustee on
behalf of the Certificateholders, with respect to any Defect in a Mortgage File
or any Breach of any representation or warranty with respect to a Mortgage Loan
set forth in or required to be made by the applicable Mortgage Loan Seller
pursuant to Section 6 of the applicable Mortgage Loan Purchase Agreement.
(e) The Servicer and the Special Servicer (in the case of Specially
Serviced Mortgage Loans) shall, for the benefit of the Certificateholders and
the Trustee (as holder of the Uncertificated Lower-Tier Interests), enforce the
obligations of the applicable Mortgage Loan Seller under the applicable Mortgage
Loan Purchase Agreement. Such enforcement, including, without limitation, the
legal prosecution of claims, if any shall be carried out in such form, to such
extent and at such time as the Servicer or the Special Servicer, as the case may
be, would require were it, in its individual capacity, the owner of the affected
Mortgage Loan(s). Any costs incurred by the Servicer with respect to the
enforcement of the obligations of the applicable Mortgage Loan Seller under the
applicable Mortgage Loan Purchase Agreement shall be deemed to be Servicing
Advances to the extent not otherwise provided herein. The Servicer and the
Special Servicer, as the case may be, shall be reimbursed for the reasonable
costs of such enforcement: first, from a specific recovery, if any, of costs,
expenses or attorneys' fees against the applicable Mortgage Loan Seller; second,
pursuant to Section 3.05(a)(vii) herein out of the related Purchase Price, to
the extent that such expenses are a specific component thereof; and third, if at
the conclusion of such enforcement action it is determined that the amounts
described in clauses first and second are insufficient, then pursuant to Section
3.05(a)(viii) herein out of general collections on the Mortgage Loans on deposit
in the Certificate Account.
(f) If (i) any Mortgage Loan is required to be repurchased or
substituted for in the manner described in the immediately preceding paragraph,
(ii) such Mortgage Loan is a Crossed Loan, and (iii) the applicable Defect or
Breach does not constitute a Defect or Breach, as the case may be, as to any
other Crossed Loan in such Crossed Group (without regard to this paragraph),
then the applicable Defect or Breach, as the case may be, will be deemed to
constitute a Defect or Breach, as the case may be, as to any other Crossed Loan
in the Crossed Group for purposes of this paragraph, and the related Mortgage
Loan Seller will be required to repurchase or substitute for such other Crossed
Loan(s) in the related Crossed Group as provided in Section 2.03(b) unless such
other Crossed Loans satisfy the Crossed Loan Repurchase Criteria and satisfy all
other criteria for substitution and repurchase of Mortgage Loans set forth
herein. In the event that the remaining Crossed Loans in such Crossed Group
satisfy the aforementioned criteria, the Mortgage Loan Seller may elect either
to repurchase or substitute for only the affected Crossed Loan as to which the
related Breach or Defect exists or to repurchase or substitute for all of the
Crossed Loans in the related Crossed Group. Any reserve or other cash collateral
or letters of credit securing the Crossed Loans shall be allocated between such
Mortgage Loans in accordance with the related Mortgage Loan documents. All other
terms of the Mortgage Loans shall remain in full force and effect without any
modification thereof.
(g) With respect to any Crossed Loan, to the extent that the
applicable Mortgage Loan Seller is required to repurchase or substitute for such
Mortgage Loan in the manner prescribed in Section 2.03(f) while the Trustee
continues to hold any other Crossed Loans in the related Crossed Group, the
applicable Mortgage Loan Seller and the Depositor will, as set forth in the
related Mortgage Loan Purchase Agreement, forbear from enforcing any remedies
against the other's Primary Collateral but each will be permitted to exercise
remedies against the Primary Collateral securing its respective Mortgage Loans,
including with respect to the Trustee, the Primary Collateral securing Mortgage
Loans still held by the Trustee, so long as such exercise does not impair the
ability of the other party to exercise its remedies against its Primary
Collateral.
Section 2.04 Issuance of Simon Loan REMIC Regular Interests and the
Simon Loan REMIC Residual Interest.
Concurrently with the assignment and in exchange for the Simon
Mortgage Loan, (a) the Trustee agrees to hold the Simon Mortgage Loan included
in the Simon Loan REMIC, and (b) the Trustee acknowledges the issuance of the
Simon Loan REMIC Pooled Regular Interest, the Simon Loan REMIC Non-Pooled
Regular Interests and the Simon Loan REMIC Residual Interest to the Depositor.
The interests evidenced by the Simon Loan REMIC Residual Interest, together with
the Simon Loan REMIC Pooled Regular Interest and the Simon Loan REMIC Non-Pooled
Regular Interests, constitute the entire beneficial ownership of the Simon Loan
REMIC. The rights of the Holders of the Class LR Certificates, as owners of the
Simon Loan REMIC Residual Interest, and the rights of the Lower-Tier REMIC (as
holder of the Simon Loan REMIC Pooled Regular Interest and Simon Loan REMIC
Non-Pooled Regular Interests) to receive distributions from the proceeds of the
Simon Loan REMIC in respect of the Simon Loan REMIC Residual Interest and the
Simon Loan REMIC Regular Interests shall be as set forth in this Agreement.
Section 2.05 Issuance of Walgreens Loan REMIC Regular Interests and
the Walgreens Loan REMIC Residual Interest.
Concurrently with the assignment and in exchange for the Walgreens
Mortgage Loan, (a) the Trustee agrees to hold the Walgreens Mortgage Loan
included in the Walgreens Loan REMIC, and (b) the Trustee acknowledges the
issuance of the Walgreens Loan REMIC Pooled Regular Interest, the Walgreens Loan
REMIC Non-Pooled Regular Interest and the Walgreens Loan REMIC Residual Interest
to the Depositor. The interests evidenced by the Walgreens Loan REMIC Residual
Interest, together with the Walgreens Loan REMIC Pooled Regular Interest and the
Walgreens Loan REMIC Non-Pooled Regular Interest, constitute the entire
beneficial ownership of the Walgreens Loan REMIC. The rights of the Holders of
the Class LR Certificates, as owners of the Walgreens Loan REMIC Residual
Interest, and the rights of the Lower-Tier REMIC (as holder of the Walgreens
Loan REMIC Pooled Regular Interest and Walgreens Loan REMIC Non-Pooled Regular
Interest) to receive distributions from the proceeds of the Walgreens Loan REMIC
in respect of the Walgreens Loan REMIC Residual Interest and the Walgreens Loan
REMIC Regular Interests shall be as set forth in this Agreement.
Section 2.06 Execution of Certificates; Issuance of Uncertificated
Lower-Tier Interests.
The Trustee hereby acknowledges the assignment to it of the Majority
Mortgage Loans, the Simon Loan REMIC Regular Interests and the Walgreens Loan
REMIC Regular Interests and, subject to Sections 2.01 and 2.02, the delivery to
it, or a Custodian on its behalf, of the Mortgage Files and a fully executed
original counterpart of each of the Mortgage Loan Purchase Agreements, together
with the assignment to it of all of the other assets included in the Lower-Tier
REMIC. Concurrently with such assignment and delivery, and in exchange therefor,
the Trustee (i) acknowledges the issuance of the Uncertificated Lower-Tier
Interests by the Paying Agent to the Depositor and the authentication and
delivery of the Class LR Certificates by the Paying Agent to or upon the order
of the Depositor, in exchange for the Majority Mortgage Loans (other than Excess
Interest thereon) and the Loan REMIC Regular Interests, receipt of which is
hereby acknowledged, (ii) acknowledges the assignments to it of the
Uncertificated Lower-Tier Interests and the other assets comprising the
Upper-Tier REMIC and (iii) immediately thereafter, acknowledges that it has
caused the Certificate Registrar to execute and caused the Authenticating Agent
to authenticate and to deliver to or upon the order of the Depositor, in
exchange for the Uncertificated Lower-Tier Interests, the Regular Certificates
(other than the portion of the Class NR Certificates evidencing the Excess
Interest), the Class SP Certificates, the Class WM Certificates and the Class R
Certificates, and the Depositor hereby acknowledges the receipt by it or its
designees, of such Certificates in authorized Denominations evidencing the
entire beneficial ownership of the Upper-Tier REMIC.
Section 2.07 Grantor Trust Designations. The Trustee hereby
acknowledges the assignment to it of the Excess Interest and, concurrently with
such assignment, acknowledges the issuance of the Class NR Certificates,
exclusive of the portion thereof representing a "regular interest" in the
Upper-Tier REMIC, which are hereby designated as undivided beneficial interests
in the portion of the Trust Fund consisting of Excess Interest and the Excess
Interest Distribution Account, which portion shall be treated as part of a
grantor trust within the meaning of subpart E, Part I of subchapter J of the
Code.
[End of Article II]
ARTICLE III
ADMINISTRATION AND
SERVICING OF THE TRUST FUND
Section 3.01 Servicer to Act as Servicer; Special Servicer to Act as
Special Servicer; Administration of the Mortgage Loans.
(a) Each of the Servicer and the Special Servicer shall diligently
service and administer the Mortgage Loans (and the Long Island Industrial
Companion Loan) it is obligated to service pursuant to this Agreement on behalf
of the Trust and in the best interests of and for the benefit of the
Certificateholders and, in the case of the Long Island Industrial Companion
Loan, the Companion Holder and the Trustee (as holder of the Uncertificated
Lower-Tier Interests and the Loan REMIC Regular Interests) (as determined by the
Servicer or the Special Servicer, as the case may be, in its reasonable
judgment) in accordance with applicable law, the terms of this Agreement (and,
with respect to the Loan Pair, the related Intercreditor Agreement) and the
terms of the respective Mortgage Loans and, if applicable, the Long Island
Industrial Companion Loan; provided, however, that the 00/000 Xxxxxxx Xxxxxx
Mortgage Loan and the 00/000 Xxxxxxx Xxxxxx Companion Loan shall not be serviced
and administered pursuant to this agreement, but shall be serviced and
administered pursuant to the 00/000 Xxxxxxx Xxxxxx Servicing Agreement. The
Trustee shall send a letter of direction to Pacific Life Insurance Company, as
servicer under the 00/000 Xxxxxxx Xxxxxx Servicing Agreement (i) designating the
Servicer as the addressee of all notices and reports required under Section
3.12(a), Section 3.12(b), Section 3.12(c), Section 3.12(e), Section 3.17(c),
Section 3.18(c) and Section 4.02 of the 00/000 Xxxxxxx Xxxxxx Servicing
Agreement and (ii) requiring that all remittances payable under the 00/000
Xxxxxxx Xxxxxx Mortgage Loan be deposited into the Certificate Account. With
respect to the Long Island Industrial Loan Pair, in the event of a conflict
between this Agreement and the related Intercreditor Agreement, the
Intercreditor Agreement shall control; provided, in no event shall the Servicer
or Special Servicer take any action or omit to take any action in accordance
with the terms of any Intercreditor Agreement that would cause such servicer to
violate the Servicing Standard. To the extent consistent with the foregoing, in
accordance with the higher of the following standards of care: (1) in the same
manner in which, and with the same care, skill, prudence and diligence with
which the Servicer or the Special Servicer, as the case may be, services and
administers similar mortgage loans for other third-party portfolios and (2) the
same care, skill, prudence and diligence with which the Servicer or the Special
Servicer, as the case may be, services and administers similar mortgage loans
owned by the Servicer or the Special Servicer, as the case may be, with a view
to the maximization of timely recovery of principal and interest on a net
present value basis on the Mortgage Loans, the Companion Loans or the Specially
Serviced Mortgage Loans, as applicable, and the best interests of the Trust, the
Companion Holders and the Certificateholders, as determined by the Servicer or
the Special Servicer, as the case may be, in its reasonable judgment, in either
case, giving due consideration to the customary and usual standards of practice
of prudent institutional, multifamily and commercial mortgage lenders, loan
servicers and asset managers, but without regard to: (i) any relationship that
the Servicer, the Special Servicer or any Affiliate of the Servicer or the
Special Servicer may have with any Mortgagor, any Mortgage Loan Seller, or any
other parties to this Agreement; (ii) the ownership of any Certificate by the
Servicer, the Special Servicer or any Affiliate of the Servicer or Special
Servicer, as applicable; (iii) the Servicer's or Special Servicer's (at its
option) obligation to make Advances; (iv) the adequacy of the Servicer's or
Special Servicer's, as the case may be, right to receive compensation for its
services and reimbursement for its costs hereunder or with respect to any
particular transaction; (v) the ownership, servicing or management for others of
any other mortgage loans or mortgaged properties by the Servicer or Special
Servicer; (vi) any obligation of the Servicer or any of its affiliates (in their
capacity as a Mortgage Loan Seller) to cure a breach of a representation or
warranty or repurchase the Mortgage Loan and (vii) any other debt the Servicer
or any of its Affiliates has extended to any Mortgagor or any of its Affiliates
(the foregoing, collectively referred to as the "Servicing Standards").
Without limiting the foregoing, subject to Section 3.21, the Special
Servicer shall be obligated to service and administer (i) any Mortgage Loans
(and the Long Island Industrial Companion Loan) as to which a Servicing Transfer
Event has occurred and is continuing (the "Specially Serviced Mortgage Loans")
and (ii) any REO Properties; provided that the Servicer shall continue to
receive payments and make all calculations, and prepare, or cause to be
prepared, all reports, required hereunder with respect to the Specially Serviced
Mortgage Loans, except for the reports specified herein as prepared by the
Special Servicer, as if no Servicing Transfer Event had occurred and with
respect to the REO Properties (and the related REO Loans) as if no REO
Acquisition had occurred, and to render such services with respect to such
Specially Serviced Mortgage Loans and REO Properties as are specifically
provided for herein; provided, further, however, that the Servicer shall not be
liable for failure to comply with such duties insofar as such failure results
from a failure of the Special Servicer to provide sufficient information to the
Servicer to comply with such duties or failure by the Special Servicer to
otherwise comply with its obligations hereunder. Each Mortgage Loan or Companion
Loan that becomes a Specially Serviced Mortgage Loan shall continue as such
until satisfaction of the conditions specified in Section 3.21(a). Without
limiting the foregoing, subject to Section 3.21, the Servicer shall be obligated
to service and administer all Mortgage Loans (and the Long Island Industrial
Companion Loan) which are not Specially Serviced Mortgage Loans; provided that
the Special Servicer shall make the inspections, use its reasonable efforts to
collect the statements and forward to the Servicer to prepare the reports in
respect of the related Mortgaged Properties with respect to Specially Serviced
Mortgage Loans in accordance with Section 3.12; and provided further, that after
notification to the Servicer, the Special Servicer may coordinate with the
Servicer to contact the Mortgagor of any Non-Specially Serviced Mortgage Loan if
efforts by the Servicer to collect required financial information have been
unsuccessful or any other issues remain unresolved. The Special Servicer's
actions shall be coordinated through and with the cooperation of the Servicer.
(b) Subject only to the Servicing Standards and the terms of this
Agreement and of the respective Mortgage Loans and applicable law, the Servicer
and the Special Servicer each shall have full power and authority, acting alone,
to do or cause to be done any and all things in connection with such servicing
and administration for which it is responsible which it may deem necessary or
desirable. Without limiting the generality of the foregoing, each of the
Servicer and the Special Servicer, in its own name, is hereby authorized and
empowered by the Trustee and obligated to execute and deliver, on behalf of the
Certificateholders and the Trustee or any of them, with respect to each Mortgage
Loan (and, with respect to a Companion Loan, the Companion Holder) it is
obligated to service under this Agreement: (i) any and all financing statements,
continuation statements and other documents or instruments necessary to maintain
the lien created by the related Mortgage or other security document in the
related Mortgage File on the related Mortgaged Property and related collateral;
(ii) subject to Section 3.08 and Section 3.20, any and all modifications,
waivers, amendments or consents to or with respect to any documents contained in
the related Mortgage File; and (iii) any and all instruments of satisfaction or
cancellation, or of partial or full release or discharge, and all other
comparable instruments. Subject to Section 3.10, the Trustee shall furnish, or
cause to be furnished, to the Servicer or the Special Servicer any powers of
attorney and other documents necessary or appropriate to enable the Servicer or
the Special Servicer, as the case may be, to carry out its servicing and
administrative duties hereunder; provided, however, that the Trustee shall not
be held liable for any negligence with respect to, or misuse of, any such power
of attorney by the Servicer or the Special Servicer.
(c) To the extent the Servicer is permitted pursuant to the terms of
the related Mortgage Loan documents or Companion Loan documents to exercise its
discretion with respect to any action which requires a confirmation of the
Rating Agencies that such action will not result in the downgrade, withdrawal or
qualification of the ratings of any Class of Certificates, the Servicer shall
require the costs of such written confirmation to be borne by the related
Mortgagor. To the extent the terms of the related Mortgage Loan documents or
Companion Loan documents require the Mortgagor to bear the costs of any
confirmation of the Rating Agencies that an action will not result in the
downgrade, withdrawal or qualification of the ratings of any Class of
Certificates, the Servicer shall not waive the requirement that such costs and
expenses be borne by the related Mortgagor. To the extent that the terms of the
related Mortgage Loan documents or Companion Loan documents are silent as to who
bears the costs of any confirmation of the Rating Agencies that an action will
not result in the downgrade, withdrawal or qualification of the ratings of any
Class of Certificates, the Servicer shall use reasonable efforts to have the
Mortgagor bear such costs and expenses. The Servicer shall not be responsible
for the payment of such costs and expenses out of pocket.
(d) The relationship of each of the Servicer and the Special
Servicer to the Trustee under this Agreement is intended by the parties to be
that of an independent contractor and not that of a joint venturer, partner or
agent.
(e) The Servicer shall, to the extent permitted by the related
Mortgage Loan documents or Companion Loan documents and consistent with the
Servicing Standards, permit Escrow Payments to be invested only in Permitted
Investments.
(f) Within 120 days after the Closing Date, the Servicer shall
notify (i) each provider of a letter of credit for each Mortgage Loan identified
as having a letter of credit on the Mortgage Loan Schedule, that the Servicer or
the Special Servicer on behalf of the Trustee for the benefit of the
Certificateholders shall be the beneficiary under each such letter of credit and
(ii) each lessor under a Ground Lease for each Mortgage Loan identified as
subject to a leasehold interest on the Mortgage Loan Schedule, that the Servicer
or the Special Servicer shall service such Mortgage Loan for the benefit of the
Certificateholders. If the Mortgage Loan documents do not require the related
Mortgagor to pay any costs and expenses relating to any modifications to the
related letter of credit, then the applicable Mortgage Loan Seller shall pay
such costs and expenses. If the Mortgage Loan documents require the related
Mortgagor to pay any costs and expenses relating to any modifications to the
related letter of credit, and such Mortgagor fails to pay such costs and
expenses after the Servicer has exercised reasonable efforts to collect such
costs and expenses from such Mortgagor, then the Servicer shall give the
applicable Mortgage Loan Seller notice of such failure and the amount of costs
and expenses, and such Mortgage Loan Seller shall pay such costs and expenses.
The costs and expenses of any modifications to Ground Leases shall be paid by
the related Mortgagor.
(g) Notwithstanding anything herein to the contrary, in no event
shall the Servicer make a Servicing Advance with respect to any Companion Loan
to the extent the related AB Mortgage Loan has been paid in full or is no longer
included in the Trust Fund.
(h) Servicing and administration of the Long Island Industrial
Companion Loan shall continue hereunder for so long as the Long Island
Industrial Mortgage Loan or any related REO Property is part of the Trust Fund
or for such longer period as any amounts payable by the Long Island Industrial
Companion Holder to or for the benefit of the Trust or any party hereto in
accordance with the Long Island Industrial Intercreditor Agreement remain due
and owing.
(i) The Special Servicer agrees that it shall enforce, on behalf of
the Trust, subject to the Servicing Standard and to the extent the Special
Servicer determines such action is in the best interests of the Trust Fund, all
rights conveyed to the Trustee pursuant to Section 2.01(a) with respect to the
00/000 Xxxxxxx Xxxxxx Co-Lender Agreement (as distinct from any of the Trust
Fund's rights that are exercisable by the Servicer or the Directing
Certificateholder pursuant to Section 3.29), the 00/000 Xxxxxxx Xxxxxx Servicing
Agreement (as distinct from any of the Trust Fund's rights that are exercisable
by the Servicer or the Directing Certificateholder pursuant to Section 3.29) and
the Long Island Industrial Intercreditor Agreement. The costs and expenses
incurred by the Special Servicer in connection with such enforcement shall be
paid as a Servicing Advance.
Section 3.02 Collection of Mortgage Loan Payments.
(a) Each of the Servicer and the Special Servicer shall make
reasonable efforts to collect all payments called for under the terms and
provisions of the Mortgage Loans it is obligated to service hereunder, and shall
follow such collection procedures as are consistent with this Agreement
(including, without limitation, the Servicing Standards), provided that with
respect to the Mortgage Loans that have Anticipated Repayment Dates, so long as
the related Mortgagor is in compliance with each provision of the related
Mortgage Loan documents, the Servicer and Special Servicer, shall not take any
enforcement action with respect to the failure of the related Mortgagor to make
any payment of Excess Interest, other than requests for collection, until the
maturity date of the related Mortgage Loan or the outstanding principal balance
of such Mortgage Loan has been paid in full; provided that the Servicer or
Special Servicer, as the case may be, may take action to enforce the Trust
Fund's right to apply excess cash flow to principal in accordance with the terms
of the Mortgage Loan documents. The Servicer or the Special Servicer each may in
its discretion waive any Penalty Charge in connection with any delinquent
payment on a Mortgage Loan or Companion Loan it is obligated to service
hereunder three times during any period of twenty-four consecutive months with
respect to any Mortgage Loan or Companion Loan. Any additional waivers during
such 24 month period with respect to such Mortgage Loan may be made only after
the applicable Servicer or Special Servicer has given notice of a proposed
waiver to the Directing Certificateholder, and the Directing Certificateholder
has consented to such additional waiver (provided that if the applicable
Servicer or Special Servicer fails to receive a response to such notice from the
Directing Certificateholder in writing within five (5) days of giving such
notice, then the Directing Certificateholder shall be deemed to have consented
to such proposed waiver).
(b) All amounts collected on any Mortgage Loan or Companion Loan in
the form of payments from Mortgagors, Insurance and Condemnation Proceeds or
Liquidation Proceeds shall be applied to amounts due and owing under the related
Mortgage Note and Mortgage (including, without limitation, for principal and
accrued and unpaid interest) in accordance with the express provisions of the
related Mortgage Note and Mortgage (and, with respect to a Loan Pair, the
related Intercreditor Agreement) and, in the absence of such express provisions,
shall be applied (after reimbursement first to the Trustee and second to the
Servicer or Special Servicer, as applicable, for any related Servicing Advances
and interest thereon as provided herein and unpaid servicing compensation and
other related additional Trust Fund expenses): first, as a recovery of accrued
and unpaid interest on such Mortgage Loan or Companion Loan, as applicable, at
the related Mortgage Rate in effect from time to time to but not including the
Due Date in the Due Period of receipt; second, as a recovery of principal of
such Mortgage Loan then due and owing; third, in accordance with the Servicing
Standards, as a recovery of any other amounts due and owing on such Mortgage
Loan or Companion Loan, as applicable, including, without limitation, Penalty
Charges, Yield Maintenance Charges and Excess Interest (in that order); and
fourth, as a recovery of principal of such Mortgage Loan or Companion Loan, as
applicable, to the extent of its entire unpaid principal balance.
Notwithstanding the preceding, such provisions shall not be deemed to affect the
priority of distributions of payments. To the extent that such amounts are paid
by a party other than a Mortgagor, such amounts shall be deemed to have been
paid in respect of a purchase of all or part of the Mortgaged Property (in the
case of Insurance and Condemnation Proceeds or Liquidation Proceeds) and then
paid by the Mortgagor under the Mortgage Loan and Companion Loan, as applicable,
in accordance with the preceding sentence. Amounts collected on any REO Loan
shall be deemed to be applied in accordance with the definition thereof.
(c) To the extent consistent with the terms of the Mortgage Loans
and applicable law, the Servicer shall apply all Insurance and Condemnation
Proceeds it receives on a day other than the Due Date to amounts due and owing
under the related Mortgage Loan as if such Insurance and Condemnation Proceeds
were received on the Due Date immediately succeeding the month in which such
Insurance and Condemnation Proceeds were received.
(d) In the event that the Servicer or Special Servicer receives
Excess Interest prior to the Determination Date for any Due Period, or receives
notice from the related Mortgagor that the Servicer or Special Servicer will be
receiving Excess Interest prior to the Determination Date for any Due Period,
the Servicer or Special Servicer, as applicable, will promptly notify the Paying
Agent. Subject to the provisions of Section 3.02(a) hereof, none of the
Servicer, the Special Servicer or the Paying Agent shall be responsible for any
such Excess Interest not collected after notice from the related Mortgagor.
(e) With respect to any Mortgage Loan in connection with which the
Mortgagor was required to escrow funds or to post a letter of credit related to
obtaining certain performance objectives described in the applicable Mortgage
Loan documents, the Servicer shall, to the extent consistent with the Servicing
Standards, hold such escrows, letters of credit and proceeds thereof as
additional collateral and not apply such items to reduce the principal balance
of such Mortgage Loan unless otherwise required to do so pursuant to the
applicable Mortgage Loan documents.
Section 3.03 Collection of Taxes, Assessments and Similar Items;
Servicing Accounts.
(a) The Servicer shall establish and maintain one or more accounts
(the "Servicing Accounts"), into which all Escrow Payments shall be deposited
and retained, and shall administer such Servicing Accounts in accordance with
the Mortgage Loan documents and Companion Loan documents. Amounts on deposit in
Servicing Accounts may only be invested in accordance with the terms of the
related Mortgage Loan documents or in Permitted Investments in accordance with
the provisions of Section 3.06. Servicing Accounts shall be Eligible Accounts
unless not permitted by the terms of the related Mortgage Loan documents.
Withdrawals of amounts so deposited from a Servicing Account may be made only
to: (i) effect payment of items for which Escrow Payments were collected and
comparable items; (ii) reimburse the Trustee and then the Servicer or Special
Servicer for any Servicing Advances; (iii) refund to Mortgagors any sums as may
be determined to be overages; (iv) pay interest to Mortgagors on balances in the
Servicing Account, if required by applicable law or the terms of the related
Mortgage Loan and as described below or, if not so required, to the Servicer;
(v) withdraw amounts deposited in error, (vi) pay Penalty Charges to the extent
permitted by the related Mortgage Loan documents, or (vii) clear and terminate
the Servicing Account at the termination of this Agreement in accordance with
Section 9.01. As part of its servicing duties, the Servicer shall pay or cause
to be paid to the Mortgagors interest on funds in Servicing Accounts, to the
extent required by law or the terms of the related Mortgage Loan; provided,
however, that in no event shall the Servicer be required to remit to any
Mortgagor any amounts in excess of actual net investment income or funds in the
related Servicing Account. If allowed by the related Mortgage Loan documents and
applicable law, the Servicer may charge the related Mortgagor an administrative
fee for maintenance of the Servicing Accounts.
(b) The Special Servicer, in the case of REO Loans, and the
Servicer, in the case of all other Mortgage Loans, shall maintain accurate
records with respect to each related Mortgaged Property reflecting the status of
real estate taxes, assessments and other similar items that are or may become a
lien thereon and the status of insurance premiums and any ground rents payable
in respect thereof. The Special Servicer, in the case of REO Loans, and the
Servicer, in the case of all other Mortgage Loans, shall use reasonable efforts
consistent with the Servicing Standards to obtain, from time to time, all bills
for the payment of such items (including renewal premiums) and shall effect
payment thereof from the REO Account or by the Servicer as Servicing Advances
prior to the applicable penalty or termination date and, in any event, prior to
the institution of foreclosure or similar proceedings with respect to the
related Mortgaged Property for nonpayment of such items, employing for such
purpose Escrow Payments (which shall be so applied by the Servicer at the
written direction of the Special Servicer in the case of REO Loans) as allowed
under the terms of the related Mortgage Loan or Companion Loan. The Servicer or,
with respect to any Mortgage Loan that is a Specially Serviced Mortgage Loan,
the Special Servicer, shall service and administer any reserve accounts
(including monitoring, maintaining or changing the amounts of required escrows)
in accordance with the terms of such Mortgage Loan and the Servicing Standards.
To the extent that a Mortgage Loan does not require a Mortgagor to escrow for
the payment of real estate taxes, assessments, insurance premiums, ground rents
(if applicable) and similar items, the Special Servicer, in the case of REO
Loans, and the Servicer, in the case of all other Mortgage Loans or Companion
Loans, shall use reasonable efforts consistent with the Servicing Standards to
enforce the requirement of the related Mortgage that the Mortgagor make payments
in respect of such items at the time they first become due and, in any event,
prior to the institution of foreclosure or similar proceedings with respect to
the related Mortgaged Property for nonpayment of such items.
(c) In accordance with the Servicing Standards and for all Mortgage
Loans, the Servicer or, with respect to Specially Serviced Mortgage Loans, the
Special Servicer (at its option, except as provided herein) shall advance (which
Servicing Advances by the Special Servicer shall be reimbursed by the Servicer
monthly on the P&I Advance Date, which reimbursement shall constitute a
Servicing Advance by the Servicer in a like amount for which the Servicer may
rely conclusively on the Special Servicer's determination that such Servicing
Advance shall not constitute a Nonrecoverable Servicing Advance) with respect to
each related Mortgaged Property (including any REO Property) all such funds as
are necessary for the purpose of effecting the payment of (i) real estate taxes,
assessments and other similar items that are or may become a lien thereon, (ii)
ground rents (if applicable) and (iii) premiums on Insurance Policies, in each
instance if and to the extent Escrow Payments collected from the related
Mortgagor (or related REO Revenues, if applicable) are insufficient to pay such
item when due and the related Mortgagor has failed to pay such item on a timely
basis, and provided, however, that the particular advance would not, if made,
constitute a Nonrecoverable Servicing Advance and provided, further, however,
that with respect to the payment of taxes and assessments, the Servicer shall
not be required to make such advance until the later of five Business Days after
the Servicer, the Special Servicer or the Trustee, as applicable, has received
confirmation that such item has not been paid or the date prior to the date
after which any penalty or interest would accrue in respect of such taxes or
assessments. The Special Servicer shall give the Servicer and the Trustee no
less than five Business Days' written (facsimile) notice before the date on
which the Servicer is requested to make any Servicing Advance with respect to a
given Mortgage Loan or REO Property; provided, however, that if less than five
(5) Business Days' notice is given, such Servicing Advance shall be made by the
Special Servicer on an emergency basis, and the Servicer shall reimburse the
Special Servicer for the emergency Servicing Advance together with interest on
such Servicing Advance within five (5) Business Days of the Special Servicer's
written request; provided, further, that the Special Servicer shall not be
entitled to make such a request (other than for Servicing Advances required to
be made on an urgent or emergency basis) more frequently than once per calendar
month (although such request may relate to more than one Servicing Advance). The
Servicer may pay the aggregate amount of such Servicing Advances listed on a
monthly request to the Special Servicer, in which case the Special Servicer
shall remit such Servicing Advances to the ultimate payees. In addition, the
Special Servicer shall provide the Servicer and the Trustee with such
information in its possession as the Servicer or the Trustee, as applicable, may
reasonably request to enable the 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 Servicer
make a Servicing Advance shall be deemed to be a determination by the Special
Servicer that such requested Servicing Advance is not a Nonrecoverable Servicing
Advance, and the Servicer shall be entitled to conclusively rely on such
determination, provided that such determination shall not be binding upon the
Servicer. On the first business day after the Determination Date for each
Distribution Date, the Special Servicer shall report to the Servicer if the
Special Servicer determines any Servicing Advance previously made with respect
to a Specially Serviced Mortgage Loan or REO Loan is a Nonrecoverable Servicing
Advance. The Servicer shall be entitled to conclusively rely on such a
determination, provided that such determination shall not be binding upon the
Servicer. All such Advances shall be reimbursable in the first instance from
related collections from the Mortgagors and further as provided in Section 3.05.
No costs incurred by the Servicer or the Special Servicer in effecting the
payment of real estate taxes, assessments and, if applicable, ground rents on or
in respect of the Mortgaged Properties shall, for purposes hereof, including,
without limitation, the Paying Agent's (calculation) calculating monthly
distributions to Certificateholders, be added to the unpaid principal balances
of the related Mortgage Loans or Companion Loans, notwithstanding that the terms
of such Mortgage Loans or Companion Loans so permit. The failure by the Servicer
to make any required Servicing Advance (including a Servicing Advance pursuant
to the third paragraph of this Section 3.03(c)) as and when due (including any
applicable cure periods) shall constitute an Event of Default under Section
7.01(a)(iii) and, to the extent the Trustee has actual knowledge of such
failure, the Trustee shall make such Servicing Advance pursuant to Section 7.05.
Notwithstanding anything herein to the contrary, no Servicing Advance shall be
required hereunder if such Servicing Advance would, if made, constitute a
Nonrecoverable Servicing Advance.
Notwithstanding anything to the contrary contained in this Section
3.03(c), the Servicer may in its good faith judgment elect (but shall not be
required) to make a Servicing Advance notwithstanding that the Servicer has
determined such Servicing Advance would be a Nonrecoverable Servicing Advance,
where making such Servicing Advance would prevent (i) the related Mortgaged
Property from being uninsured or being sold at a tax sale or (ii) any event that
would cause a loss of the priority of the lien of the related Mortgage, or the
loss of any security for the related Mortgage Loan, provided that in each
instance, the Servicer determines in accordance with the Servicing Standards (as
evidenced by an Officer's Certificate delivered to the Trustee) that making such
Servicing Advance is in the best interest of the Certificateholders. The
Servicer shall be entitled to reimbursement for such Nonrecoverable Servicing
Advance in accordance with Section 3.03(d).
If the 00/000 Xxxxxxx Xxxxxx Servicer fails to make a "Servicing
Advance" (as defined under the 00/000 Xxxxxxx Xxxxxx Servicing Agreement) it is
required to make with respect to the 00/000 Xxxxxxx Xxxxxx Mortgage Loan or the
00/000 Xxxxxxx Xxxxxx Mortgaged Property pursuant to the 00/000 Xxxxxxx Xxxxxx
Servicing Agreement and the Servicer has not received written notice from the
00/000 Xxxxxxx Xxxxxx Servicer that such servicing advance would be
nonrecoverable and based on information available to the Servicer, the Servicer
has not determined such servicing advance to be a Nonrecoverable Servicing
Advance, the Servicer shall make such servicing advance as a Servicing Advance.
(d) In connection with its recovery of any Servicing Advance out of
the Certificate Account pursuant to Section 3.05(a), the Trustee and then the
Servicer and then the Special Servicer, as the case may be, shall be entitled to
receive, out of any amounts then on deposit in the Certificate Account, interest
at the Reimbursement Rate in effect from time to time, accrued on the amount of
such Servicing Advance from the date made to, but not including, the date of
reimbursement. The Servicer shall reimburse itself or the Trustee, as the case
may be, for any outstanding Servicing Advance as soon as practically possible
after funds available for such purpose are deposited in the Certificate Account.
(e) To the extent an operations and maintenance plan is required to
be established and executed pursuant to the terms of a Mortgage Loan, the
Servicer shall request from the Mortgagor written confirmation thereof within a
reasonable time after the later of the Closing Date and the date as of which
such plan is required to be established or completed. To the extent any repairs,
capital improvements, actions or remediations are required to have been taken or
completed pursuant to the terms of the Mortgage Loan, the Servicer shall request
from the Mortgagor written confirmation of such actions and remediations within
a reasonable time after the later of the Closing Date and the date as of which
such action or remediations are required to be or to have been taken or
completed. To the extent a Mortgagor shall fail to promptly respond to any
inquiry described in this Section 3.03(e), the Servicer shall, in accordance
with the Servicing Standards, determine whether the related Mortgagor has failed
to perform its obligations under the related Mortgage Loan and report any such
failure to the Special Servicer within a reasonable time after the later of June
15, 2003, and the date as of which such actions or remediations are required to
be or to have been taken or completed.
(f) With respect to the 00/000 Xxxxxxx Xxxxxx Mortgage Loan, the
Servicer shall make payment of costs and expenses owed by the Trust Fund as the
holder of the 00/000 Xxxxxxx Xxxxxx Mortgage Loan, including any costs and
expenses as such holder under the 00/000 Xxxxxxx Xxxxxx Xx-Xxxxxx Agreement and
the 00/000 Xxxxxxx Xxxxxx Servicing Agreement, as a Servicing Advance, and if
such Servicing Advance is determined to be a Nonrecoverable Servicing Advance,
such Servicing Advance shall be an additional trust fund expense.
Section 3.04 The Certificate Account, the Simon Collection Account,
the Walgreens Collection Account, the Simon Loan REMIC Distribution Account, the
Walgreens Loan REMIC Distribution Account, the Lower-Tier Distribution Account,
the Upper-Tier Distribution Accounts, the Gain-on-Sale Reserve Account, the
Excess Interest Distribution Account and the Companion Distribution Account.
(a) The Servicer shall establish and maintain, or cause to be
established and maintained, a Certificate Account, the Simon Collection Account
(which may be a subaccount of the Certificate Account) and the Walgreens
Collection Account (which may be a subaccount of the Certificate Account) in
which the Servicer shall deposit or cause to be deposited on a daily basis and
in no event later than the Business Day following receipt of available funds,
except as otherwise specifically provided herein, the following payments and
collections received or made by or on behalf of it subsequent to the Cut-off
Date (other than in respect of principal and interest on the Mortgage Loans or
Companion Loans due and payable on or before the Cut-off Date, which payments
shall be delivered promptly to the appropriate Mortgage Loan Seller or its
designee and other than any amounts received from Mortgagors which are received
in connection with the purchase of defeasance collateral), or payments (other
than Principal Prepayments) received by it on or prior to the Cut-off Date but
allocable to a period subsequent thereto:
(i) all payments on account of principal, including Principal
Prepayments, on the Mortgage Loans or the Companion Loans;
(ii) all payments on account of interest on the Mortgage Loans or
the Companion Loans, including Excess Interest, Yield Maintenance Charges
and Default Interest;
(iii) Penalty Charges other than those allocable to interest to the
extent required to offset interest on Advances and additional Trust Fund
expenses (other than Special Servicing Fees);
(iv) all Insurance and Condemnation Proceeds and Liquidation
Proceeds (other than Gain-on-Sale Proceeds) received in respect of any
Mortgage Loan, the Companion Loans or REO Property (other than Liquidation
Proceeds that are received in connection with the purchase by the
Servicer, the Special Servicer, the Holders of the Controlling Class, or
the Holders of the Class LR Certificates of all of the Mortgage Loans and
any REO Properties in the Trust Fund and that are to be deposited in the
Lower-Tier Distribution Account (or (a) in respect of the Simon Mortgage
Loan, the Simon Loan REMIC Distribution Account or (b) in respect of the
Walgreens Mortgage Loan, the Walgreens Loan REMIC Distribution Account)
pursuant to Section 9.01);
(v) any amounts required to be transferred from the REO Account
pursuant to Section 3.16(c);
(vi) any amounts required to be deposited by the Servicer pursuant
to Section 3.06 in connection with losses incurred with respect to
Permitted Investments of funds held in the Certificate Account; and
(vii) any amounts required to be deposited by the Servicer or the
Special Servicer pursuant to Section 3.07(b) in connection with losses
resulting from a deductible clause in a blanket hazard or master single
interest policy;
provided, however, the Servicer shall deposit or cause to be deposited any
payments described in this paragraph collected or received with respect to the
Simon Mortgage Loan (or any REO Property related thereto) in the Simon
Collection Account; provided, further, the Servicer shall deposit or cause to be
deposited any payments described in this paragraph collected or received with
respect to the Walgreens Mortgage Loan (or any REO Property related thereto) in
the Walgreens Collection Account.
The foregoing requirements for deposit in the Certificate Account,
the Simon Collection Account and the Walgreens Collection Account shall be
exclusive, it being understood and agreed that, without limiting the generality
of the foregoing, actual payments from Mortgagors in the nature of Escrow
Payments, charges for beneficiary statements or demands, assumption fees,
modification fees, extension fees or amounts collected for Mortgagor checks
returned for insufficient funds need not be deposited by the Servicer in the
Certificate Account or if applicable, the Simon Collection Account or the
Walgreens Collection Account. If the Servicer shall deposit in the Certificate
Account, the Simon Collection Account or the Walgreens Collection Account, as
applicable, any amount not required to be deposited therein, it may at any time
withdraw such amount from the Certificate Account, the Simon Collection Account
or the Walgreens Collection Account, any provision herein to the contrary
notwithstanding. Assumption, extension and modification fees actually received
from Mortgagors on Specially Serviced Mortgage Loans shall be promptly delivered
to the Special Servicer as additional servicing compensation.
Upon receipt of any of the foregoing amounts in clauses (i)-(iii)
above with respect to any Specially Serviced Mortgage Loans, the Special
Servicer shall remit within one (1) Business Day such amounts to the Servicer
for deposit into the Certificate Account or if applicable, the Simon Collection
Account or the Walgreens Collection Account, in accordance with the first two
paragraphs of this Section 3.04(a). Any such amounts received by the Special
Servicer with respect to an REO Property shall be deposited by the Special
Servicer into the REO Account and remitted to the Servicer for deposit into the
Certificate Account or if applicable, the Simon Collection Account or the
Walgreens Collection Account, pursuant to Section 3.16(c). With respect to any
such amounts paid by check to the order of the Special Servicer, the Special
Servicer shall endorse without recourse or warranty such check to the order of
the Servicer and shall promptly deliver any such check to the Servicer by
overnight courier.
The Servicer may maintain, as part of the Certificate Account, a
subaccount for the Long Island Industrial Companion Loan on behalf of and in
trust for the benefit of the Long Island Industrial Companion Holder, into which
subaccount the Servicer shall deposit or cause to be deposited all amounts
described in the first paragraph of this Section 3.04(a) to the extent allocable
to the Long Island Industrial Companion Loan in accordance with this Agreement
and the Long Island Industrial Intercreditor Agreement, and out of which
subaccount the Servicer may make withdrawals to the extent withdrawals of such
funds are provided for in Section 3.05(a) of this Agreement or in the Long
Island Industrial Intercreditor Agreement. Each such subaccount shall be an
Eligible Account and shall be entitled "Wachovia Bank, National Association, as
Servicer, on behalf of and in trust for the Long Island Industrial Companion
Holder." Such subaccount shall not be an asset of any REMIC formed hereunder.
Funds in the Certificate Account, the Simon Collection Account or
the Walgreens Collection Account may only be invested in Permitted Investments
in accordance with the provisions of Section 3.06. As of the Closing Date, the
Certificate Account, the Simon Collection Account and the Walgreens Collection
Account shall be located at the offices of Wachovia Bank, National Association.
The Servicer shall give notice to the Trustee, the Special Servicer and the
Depositor of the new location of the Certificate Account, the Simon Collection
Account or the Walgreens Collection Account prior to or promptly after any
change thereof.
(b) The Paying Agent, on behalf of the Trustee for the benefit of
the Certificateholders and the Trustee (as holder of the Simon Loan REMIC
Regular Interests, the Walgreens Loan REMIC Regular Interests and the
Uncertificated Lower-Tier Interests), shall establish and maintain the Simon
Loan REMIC Distribution Account, the Walgreens Loan REMIC Distribution Account,
the Lower-Tier Distribution Account, the Upper-Tier Distribution Account, the
Excess Interest Distribution Account, the Gain-On-Sale Account and the Interest
Reserve Account in trust for the benefit of the Certificateholders (and the
Trustee as holder of the Loan REMIC Regular Interests and the Uncertificated
Lower-Tier Interests). The Companion Paying Agent shall establish and maintain a
trust account for distributions to the Long Island Industrial Companion Loan
(the "Companion Distribution Account") at the office of the Companion Paying
Agent to be held in trust for the benefit of the Long Island Industrial
Companion Holder. The Companion Distribution Account shall be an Eligible
Account. The Trustee hereby authorizes the Paying Agent and Companion Paying
Agent to make deposits in and withdrawals from the Distribution Account and
Companion Distribution Account in accordance with the terms of this Agreement.
The Servicer shall deliver to the Paying Agent each month on or before the P&I
Advance Date therein, (i) (a) for deposit in the Simon Loan REMIC Distribution
Account, that portion of the Simon Available Distribution Amount attributable to
the Simon Pooled Component and the Simon Non-Pooled Components and (b) for
deposit in the Walgreens Loan REMIC Distribution Account, that portion of the
Walgreens Available Distribution Amount attributable to the Walgreens Pooled
Component and the Walgreens Non-Pooled Component and (ii) for deposit in the
Lower-Tier Distribution Account, that portion of the Available Distribution
Amount attributable to the Majority Mortgage Loans (in each case, calculated
without regard to clause (a)(iv), (a)(viii) and (c) and (d) of the definition of
Available Distribution Amount) for the related Distribution Date then on deposit
in the Certificate Account.
The Servicer shall deliver to the Companion Paying Agent each month
on or before 2:00 p.m. on the P&I Advance Date therein, for deposit in the
Companion Distribution Account, an aggregate amount of immediately available
funds equal to the amount available to be distributed to the related Long Island
Industrial Companion Holder pursuant to the Long Island Industrial Intercreditor
Agreement and Section 4.01(m).
The Simon Loan REMIC Distribution Account, the Walgreens Loan REMIC
Distribution Account, the Lower-Tier Distribution Account, the Upper-Tier
Distribution Account, the Excess Interest Distribution Account and the Interest
Reserve may be subaccounts of a single account, which shall be maintained as a
segregated account separate from other accounts. The Gain-on-Sale Reserve
Account shall be maintained as segregated accounts separate from other accounts.
In addition to the amounts required to be deposited in the
Lower-Tier Distribution Account (or (a) the Simon Loan REMIC Distribution
Account in the case of the Simon Mortgage Loan or (b) the Walgreens Loan REMIC
Distribution Account in the case of the Walgreens Mortgage Loan) pursuant to the
second preceding paragraph, the Servicer shall, as and when required hereunder,
deliver to the Paying Agent for deposit in the Lower-Tier Distribution Account
(or (a) the Simon Loan REMIC Distribution Account in the case of the Simon
Mortgage Loan or (b) the Walgreens Loan REMIC Distribution Account in the case
of the Walgreens Mortgage Loan):
(i) any amounts required to be deposited by the Servicer pursuant to
Section 3.19 as Compensating Interest Payments in connection with
Prepayment Interest Shortfalls;
(ii) any P&I Advances required to be made by the Servicer in
accordance with Section 4.03;
(iii) any Liquidation Proceeds paid by the Servicer, the Special
Servicer, the Holders of the Controlling Class or the Holders of the Class
LR Certificates in connection with the purchase of all of the Mortgage
Loans and any REO Properties in the Trust Fund pursuant to Section 9.01
(exclusive of that portion thereof required to be deposited in the
Certificate Account pursuant to Section 9.01);
(iv) any Yield Maintenance Charges actually collected; and
(v) any other amounts required to be so delivered for deposit in the
Lower-Tier Distribution Account (or (a) the Simon Loan REMIC Distribution
Account in the case of the Simon Mortgage Loan or (b) the Walgreens Loan
REMIC Distribution Account in the case of the Walgreens Mortgage Loan)
pursuant to any provision of this Agreement.
If, as of the close of business (New York City time), on any P&I
Advance Date or on such other date as any amount referred to in the foregoing
clauses (i) through (v) are required to be delivered hereunder, the Servicer
shall not have delivered to the Paying Agent for deposit in the Simon Loan REMIC
Distribution Account, the Walgreens Loan REMIC Distribution Account, the
Lower-Tier Distribution Account and the Excess Interest Distribution Account the
amounts required to be deposited therein pursuant to the provisions of this
Agreement (including any P&I Advance pursuant to Section 4.03(a) hereof), the
Servicer shall pay the Paying Agent interest on such late payment at the Prime
Rate from the time such payment was required to be made (without regard to any
grace period provided to the Servicer) until such late payment is received by
the Paying Agent.
The Paying Agent shall, upon receipt, deposit in the Simon Loan
REMIC Distribution Account, the Walgreens Loan REMIC Distribution Account or the
Lower-Tier Distribution Account any and all amounts received by the Paying Agent
that are required by the terms of this Agreement to be deposited therein.
Promptly on each Distribution Date, the Paying Agent shall (i) be
deemed to withdraw (A) from the Simon Loan REMIC Distribution Account and
deposit in the Lower-Tier Distribution Account an aggregate amount of
immediately available funds equal to the Simon Available Distribution Amount
distributable pursuant to Section 4.01(j)(i)-(x) and Section 4.01(k)(i)-(xii)
and Yield Maintenance Charges for such Distribution Date in respect of the Simon
Mortgage Loan distributable pursuant to Section 4.01(d) and (B) from the
Walgreens Loan REMIC Distribution Account and deposit in the Lower-Tier
Distribution Account an aggregate amount of immediately available funds equal to
the Walgreens Available Distribution Amount distributable pursuant to Section
4.01(n)(i)-(vi) and Section 4.01(o)(i)-(vi) and Yield Maintenance Charges for
such Distribution Date in respect of the Walgreens Mortgage Loan distributable
pursuant to Section 4.01(d) and (ii) be deemed to withdraw from the Lower-Tier
Distribution Account and deposit in the Upper-Tier Distribution Account an
aggregate amount of immediately available funds equal to the Lower-Tier
Distribution Amount and the amount of any Yield Maintenance Charges for such
Distribution Date allocated in payment of the Uncertificated Lower-Tier
Interests as specified in Sections 4.01(b) and 4.01(d), respectively.
Funds on deposit in the Certificate Account, the Simon Collection
Account and the Walgreens Collection Account may only be invested in Permitted
Investments in accordance with the provisions of Section 3.06. The Servicer
shall give notice to the Trustee, the Paying Agent, the Special Servicer and the
Depositor of the location of the Certificate Account and of any new location of
the Certificate Account prior to or promptly thereafter any change thereof.
Funds on deposit in the Gain-on-Sale Reserve Account, the Interest Reserve
Account and the Excess Interest Distribution Account shall be held uninvested.
Funds on deposit in the Upper-Tier Distribution Account, the Lower-Tier
Distribution Account, the Simon Loan REMIC Distribution Account and the
Walgreens Loan REMIC Distribution Account shall be held uninvested. As of the
Closing Date, the Excess Interest Distribution Account, the Interest Reserve
Account, the Upper-Tier Distribution Account, the Lower-Tier Distribution
Account, the Simon Loan REMIC Distribution Account and the Walgreens Loan REMIC
Distribution Account shall be located at the offices of the Paying Agent. The
Paying Agent shall give notice to the Trustee, the Servicer and the Depositor of
the location of the Interest Reserve Account, the Excess Interest Distribution
Account, the Simon Loan REMIC Distribution Account, the Walgreens Loan REMIC
Distribution Account, the Upper-Tier Distribution Account and the Lower-Tier
Distribution Account and of the new location of the Distribution Accounts prior
to any change thereof.
(c) Prior to any Determination Date during which Excess Interest is
received, and upon notification from the Servicer or Special Servicer pursuant
to Section 3.02(d), the Paying Agent, on behalf of the Certificateholders, shall
establish and maintain the Excess Interest Distribution Account in the name of
the Paying Agent in trust for the benefit of the Class NR Certificateholders.
The Excess Interest Distribution Account shall be established and maintained as
an Eligible Account. Prior to the applicable Distribution Date, the Servicer
shall remit to the Paying Agent for deposit in the Excess Interest Distribution
Account an amount equal to the Excess Interest received prior to the
Determination Date for the applicable Due Period.
Following the distribution of Excess Interest to Class NR
Certificateholders on the first Distribution Date after which there are no
longer any Mortgage Loans outstanding which pursuant to their terms could pay
Excess Interest, the Paying Agent shall terminate the Excess Interest
Distribution Account.
(d) The Paying Agent shall establish (upon notice from the Special
Servicer of an event occurring that generates Gain-on-Sale Proceeds) and
maintain the Gain-on-Sale Reserve Account in trust for the benefit of the
Certificateholders. The Gain-on-Sale Reserve Account shall be maintained as a
segregated account, separate and apart from trust funds for mortgage
pass-through certificates of other series administered by the Paying Agent and
other accounts of the Paying Agent. Funds in the Gain-on-Sale Reserve Account
shall be held uninvested.
Upon the disposition of any REO Property in accordance with Section
3.09 or Section 3.18, the Special Servicer will calculate the Gain-on-Sale
Proceeds, if any, realized in connection with such sale and remit such funds to
the Paying Agent for deposit into the Gain-on-Sale Reserve Account; provided,
that any Gain-on-Sale Proceeds with respect to the Simon Mortgage Loan shall be
deemed to be distributed by the Simon Loan REMIC in respect of the Simon Loan
REMIC Residual Interest and then deposited in the Gain-on-Sale Reserve Account
held by the Lower-Tier REMIC to cover losses or shortfalls on the Majority
Mortgage Loans in accordance with Section 4.01(i); provided, further, that any
Gain-on-Sale Proceeds with respect to the Walgreens Mortgage Loan shall be
deemed to be distributed by the Walgreens Loan REMIC in respect of the Walgreens
Loan REMIC Residual Interest and then deposited in the Gain-on-Sale Reserve
Account held by the Lower-Tier REMIC Account to cover losses or shortfalls on
the Majority Mortgage Loans in accordance with Section 4.01(i).
Section 3.05 Permitted Withdrawals from the Certificate Account, the
Simon Collection Account, the Walgreens Collection Account, the Distribution
Accounts and the Companion Distribution Account.
(a) The Servicer may, from time to time, make withdrawals from the
Certificate Account, or with respect to the Simon Mortgage Loan, the Simon
Collection Account, or with respect to the Walgreens Mortgage Loan, the
Walgreens Collection Account for any of the following purposes:
(i) no later than 2:00 p.m. on each P&I Advance Date, to remit to
the Paying Agent for deposit in the Simon Loan REMIC Distribution Account,
the Walgreens Loan REMIC Distribution Account, the Lower-Tier Distribution
Account and the Excess Interest Distribution Account the amounts required
to be remitted pursuant to the first paragraph of Section 3.04(b) and
Section 3.04(c) or that may be applied to make P&I Advances pursuant to
Section 4.03(a);
(ii) to pay (A) itself unpaid Servicing Fees in respect of each
Mortgage Loan, Specially Serviced Mortgage Loan and REO Loan, as
applicable, the Servicer or Special Servicer's, as applicable, rights to
payment of Servicing Fees pursuant to this clause (ii)(A) with respect to
any Mortgage Loan, Specially Serviced Mortgage Loan or REO Loan, as
applicable, being limited to amounts received on or in respect of such
Mortgage Loan (whether in the form of payments, Liquidation Proceeds or
Insurance and Condemnation Proceeds) or such REO Loan (whether in the form
of REO Revenues, Liquidation Proceeds or Insurance and Condemnation
Proceeds), that are allocable as recovery of interest thereon, (B) to pay
the Special Servicer any unpaid Special Servicing Fees, Liquidation Fees
and Workout Fees in respect of each Specially Serviced Mortgage Loan or
REO Loan, as applicable, and any fees incurred by the Special Servicer in
connection with performing any inspections pursuant to Section 3.12(a),
remaining unpaid first, out of REO Revenues, Liquidation Proceeds and
Insurance and Condemnation Proceeds, and then out of general collections
on the Mortgage Loans and REO Properties and (C) to remit to the Companion
Paying Agent for deposit in each Companion Distribution Account the
amounts required to be so deposited pursuant to the second paragraph of
Section 3.04(b);
(iii) to reimburse the Trustee and itself, as applicable (in that
order), for xxxxxxxxxxxx X&X Advances, the Servicer's or the Trustee's
right to reimbursement pursuant to this clause (iii) being limited to
amounts received which represent Late Collections of interest (net of the
related Servicing Fees) on and principal of the particular Mortgage Loans
and REO Loans with respect to which such P&I Advances were made;
(iv) to reimburse the Trustee, the Special Servicer and itself, as
applicable (in that order), for unreimbursed Servicing Advances, the
Servicer's, or the Trustee's respective rights to receive payment pursuant
to this clause (iv) with respect to any Mortgage Loan or REO Property
being limited to, as applicable, related payments, Liquidation Proceeds,
Insurance and Condemnation Proceeds and REO Revenues;
(v) to reimburse the Trustee and itself, as applicable (in that
order), for Nonrecoverable Advances first, out of REO Revenues,
Liquidation Proceeds and Insurance and Condemnation Proceeds, then out of
general collections on the Mortgage Loans and REO Properties or to pay
itself, with respect to any Mortgage Loan or REO Property any related
earned Servicing Fee that remained unpaid in accordance with clause (ii)
above following a Final Recovery Determination made with respect to such
Mortgage Loan or REO Property and the deposit into the Certificate Account
of all amounts received in connection therewith;
(vi) at such time as it reimburses the Trustee and itself, as
applicable (in that order), for (a) any xxxxxxxxxxxx X&X Advance pursuant
to clause (iii) above, to pay itself or the Trustee, as applicable, any
interest accrued and payable thereon in accordance with Sections 4.03(d)
and 3.11(c), (b) any unreimbursed Servicing Advances pursuant to clause
(iv) above, to pay itself, the Special Servicer or the Trustee, as the
case may be, any interest accrued and payable thereon in accordance with
Sections 3.03(d) and 3.11(c) or (c) any Nonrecoverable Advances pursuant
to clause (v) above, to pay itself, the Special Servicer or the Trustee,
as the case may be, any interest accrued and payable thereon;
(vii) to reimburse itself, the Special Servicer, the Depositor or
the Trustee, as the case may be, for any unreimbursed expenses reasonably
incurred by such Person in respect of any Breach or Defect giving rise to
a repurchase or substitution obligation of the applicable Mortgage Loan
Seller under Section 6 of the applicable Mortgage Loan Purchase Agreement,
including, without limitation, any expenses arising out of the enforcement
of the repurchase or substitution obligation, each such Person's right to
reimbursement pursuant to this clause (vii) with respect to any Mortgage
Loan being limited to that portion of the Purchase Price or Substitution
Shortfall Amount paid with respect to such Mortgage Loan that represents
such expense in accordance with clause (iv) of the definition of Purchase
Price;
(viii) in accordance with Section 2.03(e), to reimburse itself or
the Special Servicer, as the case may be, first, out of Liquidation
Proceeds, Insurance and Condemnation Proceeds, and then out of general
collections on the Mortgage Loans and REO Properties for any unreimbursed
expense reasonably incurred by such Person in connection with the
enforcement of the applicable Mortgage Loan Seller's obligations under
Section 3 of the applicable Mortgage Loan Purchase Agreement, but only to
the extent that such expenses are not reimbursable pursuant to clause
(vii) above or otherwise;
(ix) to pay for costs and expenses incurred by the Trust Fund
pursuant to Section 3.09(c) first, out of REO Revenues, Liquidation
Proceeds, Insurance and Condemnation Proceeds, and then out of general
collections on the Mortgage Loans and REO Properties;
(x) to pay itself, as additional servicing compensation in
accordance with Section 3.11(a), (a) (A) interest and investment income
earned in respect of amounts relating to the Trust Fund held in the
Certificate Account as provided in Section 3.06(b) (but only to the extent
of the Net Investment Earnings with respect to the Certificate Account for
the period from the prior P&I Advance Date to the P&I Advance Date related
to such Distribution Date) and (B) Penalty Charges on Mortgage Loans
(other than Specially Serviced Mortgage Loans and the 00/000 Xxxxxxx
Xxxxxx Mortgage Loan), but only to the extent collected from the related
Mortgagor and to the extent that all amounts then due and payable with
respect to the related Mortgage Loan have been paid and are not needed to
pay interest on Advances or costs and expenses incurred by the Trust Fund
(other than Special Servicing Fees, Workout Fees and Liquidation Fees with
respect to each Mortgage Loan and such costs and expenses incurred with
respect to the 00/000 Xxxxxxx Xxxxxx Mortgage Loan) in accordance with
Section 3.11(c); and (b) to pay the Special Servicer, as additional
servicing compensation in accordance with the second paragraph of Section
3.11(b), Penalty Charges on Specially Serviced Mortgage Loans (but only to
the extent collected from the related Mortgagor and to the extent that all
amounts then due and payable with respect to the related Specially
Serviced Mortgage Loan have been paid and are not needed to pay interest
on Advances or costs and expenses incurred by the Trust Fund in accordance
with Section 3.11(c));
(xi) to recoup any amounts deposited in the Certificate Account in
error;
(xii) to pay itself, the Special Servicer, the Depositor or any of
their respective directors, officers, members, managers, employees and
agents, as the case may be, any amounts payable to any such Person
pursuant to Section 6.03(a) or 6.03(b);
(xiii) to pay for (a) the cost of the Opinions of Counsel
contemplated by Sections 3.09(b), 3.16(a), 3.17(b), 3.20(a), 3.20(d) and
10.01(f) to the extent payable out of the Trust Fund, (b) the cost of any
Opinion of Counsel contemplated by Section 11.01(a) or 11.01(c) in
connection with an amendment to this Agreement requested by the Trustee or
the Servicer, which amendment is in furtherance of the rights and
interests of Certificateholders and (c) the cost of obtaining the REO
Extension contemplated by Section 3.16(a);
(xiv) to pay out of general collections on the Mortgage Loans and
REO Properties any and all federal, state and local taxes imposed on the
Upper-Tier REMIC, the Lower-Tier REMIC, the Loan REMICs or any of their
assets or transactions, together with all incidental costs and expenses,
to the extent that none of the Servicer, the Special Servicer, the Paying
Agent or the Trustee is liable therefor pursuant to Section 10.01(g);
(xv) to reimburse the Paying Agent out of general collections on the
Mortgage Loans and REO Properties for expenses incurred by and
reimbursable to it by the Trust Fund pursuant to Section 10.01(c);
(xvi) to pay itself, the Special Servicer or the Mortgage Loan
Sellers, as the case may be, with respect to each Mortgage Loan, if any,
previously purchased by such Person pursuant to this Agreement, all
amounts received thereon subsequent to the date of purchase relating to
periods after the date of purchase;
(xvii) to remit to the Paying Agent for deposit in the Interest
Reserve Account the amounts required to be deposited in the Interest
Reserve Account pursuant to Section 3.25;
(xviii) to clear and terminate the Certificate Account, the Simon
Collection Account and the Walgreens Collection Account at the termination
of this Agreement pursuant to Section 9.01; and
(xix) to remit to the Companion Paying Agent for deposit into the
Companion Distribution Account the amounts required to be deposited
pursuant to Section 3.04(b).
Any amounts specified in clauses (ii)-(xvii) above which do not
relate to a specific Mortgage Loan, but rather are payable from general
collections on the Mortgage Loans and REO Properties shall be withdrawn from the
Simon Collection Account, the Walgreens Collection Account and the Certificate
Account, pro rata, based on the Stated Principal Balance of the Mortgage Loans.
The Servicer shall keep and maintain separate accounting records, on a
loan-by-loan and property-by-property basis when appropriate, for the purpose of
justifying any withdrawal from the Certificate Account, the Simon Collection
Account and the Walgreens Collection Account.
The Servicer shall pay to the Special Servicer or the Paying Agent
from the Certificate Account (or the Simon Collection Account or the Walgreens
Collection Account, as applicable) amounts permitted to be paid to it therefrom
monthly upon receipt of a certificate of a Responsible Officer of the Special
Servicer or the Paying Agent describing the item and amount to which the Special
Servicer or the Paying Agent is entitled. The Servicer may rely conclusively on
any such certificate and shall have no duty to re-calculate the amounts stated
therein. The Special Servicer shall keep and maintain separate accounting for
each Specially Serviced Mortgage Loan and REO Loan, on a loan-by-loan and
property-by-property basis, for the purpose of justifying any request for
withdrawal from the Certificate Account (or the Simon Collection Account or the
Walgreens Collection Account, as applicable).
(b) The Paying Agent, on behalf of the Trustee, may, from time to
time, make withdrawals from the Simon Loan REMIC Distribution Account for any of
the following purposes:
(i) to make deposits to the Lower-Tier Distribution Account and
distributions to the Class LR Certificates in respect of the Simon Loan
REMIC Residual Interest pursuant to Section 4.01(j) and (k) and to make
deposits in respect of Yield Maintenance Charges in respect of the Simon
Mortgage Loan to the Lower-Tier Distribution Account pursuant to Section
4.01(d);
(ii) with respect to the Simon Mortgage Loan, to pay to the Trustee
and Paying Agent or their respective directors, officers, employees and
agents, as the case may be, any amounts payable or reimbursable to any
such Person pursuant to Section 8.05(b);
(iii) with respect to the Simon Mortgage Loan, to pay the Trustee
and the Paying Agent their respective portions of the Trustee Fee as
contemplated by Section 8.05(a);
(iv) with respect to the Simon Mortgage Loan, to pay for the cost of
the Opinions of Counsel sought by the Trustee or the Paying Agent (A) as
provided in clause (v) of the definition of "Disqualified Organization",
(B) as contemplated by Sections 3.20(d), 8.02(ii), 10.01(f) and 10.01(l),
or (C) as contemplated by Section 11.01(a) or 11.01(c) in connection with
any amendment to this Agreement requested by the Trustee or the Paying
Agent which amendment is in furtherance of the rights and interests of
Certificateholders, in each case, to the extent not paid pursuant to
Section 4.01(j) or Section 4.01(k);
(v) to pay any and all federal, state and local taxes imposed on the
Loan REMIC or on the assets or transactions of such REMIC, together with
all incidental costs and expenses except to the extent that none of the
Trustee, the Paying Agent, the REMIC Administrator, the Servicer or the
Special Servicer is liable pursuant to Section 10.01(g); provided that, to
the extent any of the Paying Agent, the REMIC Administrator, the Servicer
or the Special Servicer is liable therefor pursuant to Section 10.01(g),
such payment shall not prejudice the rights of the Trustee on behalf of
the Simon Loan REMIC to collect such amounts;
(vi) with respect to the Simon Mortgage Loan, to pay the REMIC
Administrator any amounts reimbursable to it pursuant to Section 10.01(f);
(vii) to pay to the Servicer any amounts deposited by the Servicer
in the Simon Loan REMIC Distribution Account not required to be deposited
therein; and
(viii) to clear and terminate the Simon Loan REMIC Distribution
Account at the termination of this Agreement pursuant to Section 9.01.
(c) The Paying Agent, on behalf of the Trustee, may, from time to
time, make withdrawals from the Walgreens Loan REMIC Distribution Account for
any of the following purposes:
(i) to make deposits to the Lower-Tier Distribution Account and
distributions to the Class LR Certificates in respect of the Walgreens
Loan REMIC Residual Interest pursuant to Section 4.01(n) and (o) and to
make deposits in respect of Yield Maintenance Charges in respect of the
Walgreens Mortgage Loan to the Lower-Tier Distribution Account pursuant to
Section 4.01(d);
(ii) with respect to the Walgreens Mortgage Loan, to pay to the
Trustee and Paying Agent or their respective directors, officers,
employees and agents, as the case may be, any amounts payable or
reimbursable to any such Person pursuant to Section 8.05(b);
(iii) with respect to the Walgreens Mortgage Loan, to pay the
Trustee and the Paying Agent their respective portions of the Trustee Fee
as contemplated by Section 8.05(a);
(iv) with respect to the Walgreens Mortgage Loan, to pay for the
cost of the Opinions of Counsel sought by the Trustee or the Paying Agent
(A) as provided in clause (v) of the definition of "Disqualified
Organization", (B) as contemplated by Sections 3.20(d), 8.02(ii), 10.01(f)
and 10.01(l), or (C) as contemplated by Section 11.01(a) or 11.01(c) in
connection with any amendment to this Agreement requested by the Trustee
or the Paying Agent which amendment is in furtherance of the rights and
interests of Certificateholders, in each case, to the extent not paid
pursuant to Section 4.01(n) or Section 4.01(o);
(v) to pay any and all federal, state and local taxes imposed on the
Walgreens Loan REMIC or on the assets or transactions of such REMIC,
together with all incidental costs and expenses except to the extent that
none of the Trustee, the Paying Agent, the REMIC Administrator, the
Servicer or the Special Servicer is liable pursuant to Section 10.01(g);
provided that, to the extent any of the Paying Agent, the REMIC
Administrator, the Servicer or the Special Servicer is liable therefor
pursuant to Section 10.01(g), such payment shall not prejudice the rights
of the Trustee on behalf of the Walgreens Loan REMIC to collect such
amounts;
(vi) with respect to the Walgreens Mortgage Loan, to pay the REMIC
Administrator any amounts reimbursable to it pursuant to Section 10.01(f);
(vii) to pay to the Servicer any amounts deposited by the Servicer
in the Walgreens Loan REMIC Distribution Account not required to be
deposited therein; and
(viii) to clear and terminate the Walgreens Loan REMIC Distribution
Account at the termination of this Agreement pursuant to Section 9.01.
(d) The Paying Agent, on behalf of the Trustee, may, from time to
time, make withdrawals from the Lower-Tier Distribution Account for any of the
following purposes:
(i) to make deposits of the Lower-Tier Distribution Amount pursuant
to Section 4.01(b) and the amount of any Yield Maintenance Charges
distributable pursuant to Section 4.01(d) in the Upper-Tier Distribution
Account and to make distributions on the Class LR Certificates pursuant to
Section 4.01(b);
(ii) to pay to the Trustee, the Paying Agent or any of their
respective directors, officers, employees and agents, as the case may be,
any amounts payable or reimbursable to any such Person pursuant to Section
8.05(b);
(iii) to pay the Trustee and the Paying Agent their respective
portions of the Trustee Fee as contemplated by Section 8.05(a) hereof with
respect to the Mortgage Loans;
(iv) to pay for the cost of the Opinions of Counsel sought by the
Trustee or the Paying Agent (A) as provided in clause (v) of the
definition of "Disqualified Organization", (B) as contemplated by Section
3.20(d), 8.02(ii) and 10.01(f), or (C) as contemplated by Section 11.01(a)
or 11.01(c) in connection with any amendment to this Agreement requested
by the Trustee or the Paying Agent which amendment is in furtherance of
the rights and interests of Certificateholders, in each case, to the
extent not paid pursuant to Section 4.01(m);
(v) to pay any and all federal, state and local taxes imposed on the
Lower-Tier REMIC, the Upper-Tier REMIC or on the assets or transactions of
either such REMIC, together with all incidental costs and expenses, to the
extent none of the Trustee, the Paying Agent, the REMIC Administrator, the
Servicer or the Special Servicer is liable therefor pursuant to Section
10.01(g); provided that, to the extent any of the Paying Agent, the REMIC
Administrator, the Servicer or the Special Servicer is liable therefor
pursuant to Section 10.01(g), such payment shall not prejudice the rights
of the Trustee on behalf of either the Lower-Tier REMIC or the Upper-Tier
REMIC to collect such amounts;
(vi) to pay the REMIC Administrator any amounts reimbursable to it
pursuant to Section 10.01(f);
(vii) to pay to the Servicer any amounts deposited by the Servicer
in the Distribution Account not required to be deposited therein; and
(viii) to clear and terminate the Lower-Tier Distribution Account at
the termination of this Agreement pursuant to Section 9.01.
(e) The Paying Agent shall, on any Distribution Date, make
withdrawals from the Excess Interest Distribution Account to the extent required
to make the distributions of Excess Interest required by Section 4.01(h).
(f) The Paying Agent on behalf of the Trustee may make withdrawals
from the Upper-Tier Distribution Account for any of the following purposes:
(i) to make distributions to Certificateholders (other than Holders
of the Class LR Certificates) on each Distribution Date pursuant to
Section 4.01 or 9.01, as applicable; and
(ii) to clear and terminate the Upper-Tier Distribution Account at
the termination of this Agreement pursuant to Section 9.01.
(g) Notwithstanding anything herein to the contrary, with respect to
any Mortgage Loan, (i) if amounts on deposit in the Certificate Account, the
Simon Collection Account, the Walgreens Collection Account, the Simon Loan REMIC
Distribution Account, the Walgreens Loan REMIC Distribution Account and the
Lower-Tier Distribution Account are not sufficient to pay the full amount of the
Servicing Fee listed in Section 3.05(a)(ii) and the Trustee Fee and the Paying
Agent Fee listed in Section 3.05(b)(iii), Section 3.05(c)(iii) and Section
3.05(d)(iii), then the Trustee Fee and the Paying Agent Fee shall be paid in
full prior to the payment of any Servicing Fees payable under Section
3.05(a)(ii) and (ii) if amounts on deposit in the Certificate Account, the Simon
Collection Account or the Walgreens Collection Account are not sufficient to
reimburse the full amount of Advances and interest thereon listed in Sections
3.05(a)(iii), (iv), (v) and (vi), then reimbursements shall be paid first to the
Trustee and second to the Servicer.
(h) The Companion Paying Agent may, from time to time, make
withdrawals from the Companion Distribution Account to make distributions on
each Distribution Date pursuant to Section 4.01(m).
Section 3.06 Investment of Funds in the Certificate Account and the
REO Account.
(a) The Servicer may direct any depository institution maintaining
the Certificate Account, the Simon Collection Account, the Walgreens Collection
Account or any Servicing Account (for purposes of this Section 3.06, an
"Investment Account") and the Special Servicer may direct any depository
institution maintaining the REO Account (also for purposes of this Section 3.06,
an "Investment Account") to invest, or if it is such depository institution, may
itself invest, the funds held therein only in one or more Permitted Investments
bearing interest or sold at a discount, and maturing, unless payable on demand,
(i) no later than the Business Day immediately preceding the next succeeding
date on which such funds are required to be withdrawn from such account pursuant
to this Agreement, if a Person other than the depository institution maintaining
such account is the obligor thereon and (ii) no later than the date on which
such funds are required to be withdrawn from such account pursuant to this
Agreement, if the depository institution maintaining such account is the obligor
thereon. All such Permitted Investments shall be held to maturity, unless
payable on demand. Any investment of funds in an Investment Account shall be
made in the name of the Trustee (in its capacity as such). The Servicer (in the
case of the Certificate Account, the Simon Collection Account, the Walgreens
Collection Account or any Servicing Account) or the Special Servicer (in the
case of the REO Account or any Servicing Account maintained by or for the
Special Servicer), on behalf of the Trustee, shall maintain continuous physical
possession of any Permitted Investment of amounts in the Certificate Account,
the Simon Collection Account, the Walgreens Collection Account, the Servicing
Accounts or REO Account that is either (i) a "certificated security", as such
term is defined in the UCC (such that the Trustee shall have control pursuant to
Section 8-106 of the UCC) or (ii) other property in which a secured party may
perfect its security interest by physical possession under the UCC or any other
applicable law. Funds on deposit in the Distribution Accounts, if any, shall
remain uninvested. In the case of any Permitted Investment held in the form of a
"security entitlement" (within the meaning of Section 8-102(a)(17) of the UCC),
the Servicer or the Special Servicer, as applicable, shall take or cause to be
taken such action as the Trustee deems reasonably necessary to cause the Trustee
to have control over such security entitlement. In the event amounts on deposit
in an Investment Account are at any time invested in a Permitted Investment
payable on demand, the Servicer (in the case of the Certificate Account, the
Simon Collection Account, the Walgreens Collection Account or any Servicing
Account) or the Special Servicer (in the case of the REO Account) shall:
(i) consistent with any notice required to be given thereunder,
demand that payment thereon be made on the last day such Permitted
Investment may otherwise mature hereunder in an amount equal to the lesser
of (a) all amounts then payable thereunder and (b) the amount required to
be withdrawn on such date; and
(ii) demand payment of all amounts due thereunder promptly upon
determination by the Servicer, the Special Servicer or the Trustee, as the
case may be, that such Permitted Investment would not constitute a
Permitted Investment in respect of funds thereafter on deposit in the
Investment Account.
(b) Interest and investment income realized on funds deposited in
the Certificate Account, the Simon Collection Account, the Walgreens Collection
Account or any Servicing Account, to the extent of the Net Investment Earnings,
if any, with respect to such account for the period from the prior P&I Advance
Date to the P&I Advance Date related to such Distribution Date, shall be for the
sole and exclusive benefit of the Servicer to the extent not required to be paid
to the related Mortgagor and shall be subject to its withdrawal, or withdrawal
at its direction, in accordance with Sections 3.03 or Section 3.05(a), as the
case may be. Interest and investment income realized on funds deposited in the
REO Account, to the extent of the Net Investment Earnings, if any, with respect
to such account for each period from any Distribution Date to the immediately
succeeding P&I Advance Date, shall be for the sole and exclusive benefit of the
Special Servicer and shall be subject to its withdrawal in accordance with
Section 3.16(c). In the event that any loss shall be incurred in respect of any
Permitted Investment directed to be made by the Servicer or Special Servicer, as
applicable, and on deposit in any of the Certificate Account, the Simon
Collection Account, the Walgreens Collection Account, any Servicing Account or
the REO Account, the Servicer (in the case of the Certificate Account, the Simon
Collection Account, the Walgreens Collection Account or any Servicing Account)
and the Special Servicer (in the case of the REO Account) shall deposit therein,
no later than the P&I Advance Date, without right of reimbursement, the amount
of Net Investment Loss, if any, with respect to such account for the period from
the prior P&I Advance Date to the P&I Advance Date related to such Distribution
Date, provided that neither the Servicer nor the Special Servicer shall be
required to deposit any loss on an investment of funds in an Investment Account
if such loss is incurred solely as a result of the insolvency of the federal or
state chartered depository institution or trust company that holds such
Investment Account, so long as such depository institution or trust company
satisfied the qualifications set forth in the definition of Eligible Account at
the time such investment was made.
(c) Except as otherwise expressly provided in this Agreement, if any
default occurs in the making of a payment due under any Permitted Investment, or
if a default occurs in any other performance required under any Permitted
Investment, the Servicer may and, upon the request of Holders of Certificates
entitled to a majority of the Voting Rights allocated to any Class shall, take
such action as may be appropriate to enforce such payment or performance,
including the institution and prosecution of appropriate proceedings.
Section 3.07 Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage.
(a) The Servicer shall use its reasonable efforts to cause the
Mortgagor to maintain, to the extent required by the terms of the related
Mortgage Note, or if the Mortgagor does not so maintain, shall itself maintain,
for each Mortgage Loan all insurance coverage as is required under the related
Mortgage, except to the extent that the failure of the related Mortgagor to do
so is an Acceptable Insurance Default; provided, however, that if any Mortgage
permits the holder thereof to dictate to the Mortgagor the insurance coverage to
be maintained on such Mortgaged Property, the Servicer shall impose such
insurance requirements as are consistent with the Servicing Standards, provided
that the Servicer will be obligated to maintain insurance against property
damage resulting from terrorist or similar acts unless the Mortgagor's failure
is an Acceptable Insurance Default. Subject to Section 3.17(a), the Special
Servicer shall maintain for each REO Property no less insurance coverage than
was previously required of the Mortgagor under the related Mortgage Loan. All
Insurance Policies maintained by the Servicer or the Special Servicer shall (i)
contain a "standard" mortgagee clause, with loss payable to the Servicer on
behalf of the Trustee (in the case of insurance maintained in respect of
Mortgage Loans other than REO Properties), (ii) be in the name of the Trustee
(in the case of insurance maintained in respect of REO Properties), (iii)
include coverage in an amount not less than the lesser of (x) the full
replacement cost of the improvements securing Mortgaged Property or the REO
Property, as applicable, or (y) the outstanding principal balance owing on the
related Mortgage Loan or REO Loan, as applicable, and in any event, the amount
necessary to avoid the operation of any co-insurance provisions, (iv) include a
replacement cost endorsement providing no deduction for depreciation (unless
such endorsement is not permitted under the related Mortgage Loan documents),
(v) be noncancellable without 30 days prior written notice to the insured party
(except in the case of nonpayment, in which case such policy shall not be
cancelled without 10 days prior notice) and (vi) be issued by a Qualified
Insurer authorized under applicable law to issue such Insurance Policies. Any
amounts collected by the Servicer or the Special Servicer under any such
Insurance Policies (other than amounts to be applied to the restoration or
repair of the related Mortgaged Property or REO Property or amounts to be
released to the related Mortgagor, in each case in accordance with the Servicing
Standards and the provisions of the related Mortgage Loan) shall be deposited in
the Certificate Account, subject to withdrawal pursuant to Section 3.05(a). Any
costs incurred by the Servicer in maintaining any such Insurance Policies in
respect of Mortgage Loans (other than REO Properties) (i) if the Mortgagor
defaults on its obligation to do so, shall be advanced by the Servicer as a
Servicing Advance and will be charged to the related Mortgagor and (ii) shall
not, for purposes of calculating monthly distributions to Certificateholders, be
added to the unpaid principal balance of the related Mortgage Loan,
notwithstanding that the terms of such Mortgage Loan so permit. Any cost
incurred by the Special Servicer in maintaining any such Insurance Policies with
respect to REO Properties shall be an expense of the Trust payable out of the
related REO Account pursuant to Section 3.16(c) or, if the amount on deposit
therein is insufficient therefor, advanced by the Servicer as a Servicing
Advance.
Notwithstanding the foregoing, with respect to the Mortgage Loans
which either (x) require the Mortgagor to maintain "all risk" property insurance
(and do not expressly permit an exclusion for terrorism) or (y) contain
provisions generally requiring the applicable Mortgagor to maintain insurance in
types and against such risks as the holder of such Mortgage Loan reasonably
requires from time to time in order to protect its interests, the Servicer will
be required to (A) actively monitor whether the insurance policies for the
related Mortgaged Property contain Additional Exclusions, (B) request the
Mortgagor to either purchase insurance against the risks specified in the
Additional Exclusions or provide an explanation as to its reasons for failing to
purchase such insurance and (C) notify the Special Servicer if any insurance
policy contains Additional Exclusions or if any borrower fails to purchase the
insurance requested to be purchased by the Servicer pursuant to clause (B)
above. If the Special Servicer determines that such failure is not an Acceptable
Insurance Default, the Special Servicer shall notify the Servicer and the
Servicer shall cause such insurance to be maintained. Furthermore, the Special
Servicer shall inform the Rating Agencies as to such conclusions for those
Mortgage Loans that have one of the ten (10) highest outstanding Stated
Principal Balances of all of the Mortgage Loans then included in the Trust.
During the period that the Special Servicer is evaluating the availability of
such insurance, the Servicer will not be liable for any loss related to its
failure to require the Mortgagor to maintain such insurance and will not be in
default of its obligations as a result of such failure.
(b) (i) If the Servicer or the Special Servicer shall obtain and
maintain a blanket Insurance Policy with a Qualified Insurer insuring against
fire and hazard losses on all of the Mortgage Loans or REO Properties, as the
case may be, required to be serviced and administered hereunder, then, to the
extent such Insurance Policy provides protection equivalent to the individual
policies otherwise required, the Servicer or the Special Servicer shall
conclusively be deemed to have satisfied its obligation to cause fire and hazard
insurance to be maintained on the related Mortgaged Properties or REO
Properties. Such Insurance Policy may contain a deductible clause, in which case
the Servicer or the Special Servicer shall, if there shall not have been
maintained on the related Mortgaged Property or REO Property a fire and hazard
Insurance Policy complying with the requirements of Section 3.07(a), and there
shall have been one or more losses which would have been covered by such
Insurance Policy, promptly deposit into the Certificate Account from its own
funds the amount of such loss or losses that would have been covered under the
individual policy but are not covered under the blanket Insurance Policy because
of such deductible clause to the extent that any such deductible exceeds the
deductible limitation that pertained to the related Mortgage Loan, or in the
absence of such deductible limitation, the deductible limitation which is
consistent with the Servicing Standards. In connection with its activities as
administrator and Servicer of the Mortgage Loans, the Servicer agrees to prepare
and present, on behalf of itself, the Trustee and Certificateholders, claims
under any such blanket Insurance Policy in a timely fashion in accordance with
the terms of such policy. The Special Servicer, to the extent consistent with
the Servicing Standards, may maintain, earthquake insurance on REO Properties,
provided coverage is available at commercially reasonable rates, the cost of
which shall be a Servicing Advance.
(ii) If the Servicer or the Special Servicer shall cause any
Mortgaged Property or REO Property to be covered by a master single interest or
force-placed insurance policy with a Qualified Insurer naming the Servicer or
the Special Servicer on behalf of the Trustee as the loss payee, then to the
extent such Insurance Policy provides protection equivalent to the individual
policies otherwise required, the Servicer or the Special Servicer shall
conclusively be deemed to have satisfied its obligation to cause such insurance
to be maintained on the related Mortgage Properties and REO Properties. In the
event the Servicer or the Special Servicer shall cause any Mortgaged Property or
REO Property to be covered by such master single interest or force-placed
insurance policy, the incremental costs of such insurance applicable to such
Mortgaged Property or REO Property (i.e., other than any minimum or standby
premium payable for such policy whether or not any Mortgaged Property or REO
Property is covered thereby) shall be paid by the Servicer as a Servicing
Advance. Such master single interest or force-placed policy may contain a
deductible clause, in which case the Servicer or the Special Servicer shall, in
the event that there shall not have been maintained on the related Mortgaged
Property or REO Property a policy otherwise complying with the provisions of
Section 3.07(a), and there shall have been one or more losses which would have
been covered by such policy had it been maintained, deposit into the Certificate
Account from its own funds the amount not otherwise payable under the master
single or force-placed interest policy because of such deductible clause, to the
extent that any such deductible exceeds the deductible limitation that pertained
to the related Mortgage Loan, or, in the absence of any such deductible
limitation, the deductible limitation which is consistent with the Servicing
Standards.
(c) Each of the Servicer and the Special Servicer shall obtain and
maintain at its own expense and keep in full force and effect throughout the
term of this Agreement a blanket fidelity bond and an errors and omissions
Insurance Policy with a Qualified Insurer covering the Servicer's and the
Special Servicer's, as applicable, officers and employees acting on behalf of
the Servicer and the Special Servicer in connection with its activities under
this Agreement. Notwithstanding the foregoing, so long as the long term debt or
the deposit obligations or claims-paying ability of the Servicer is rated at
least "A" by Xxxxx'x and S&P (or, with respect to the required Xxxxx'x rating,
if not rated by Xxxxx'x, then at least "A" by two other nationally recognized
statistical rating organizations (which may include S&P)), the Servicer shall be
allowed to provide self-insurance with respect to a fidelity bond and an Errors
and Omissions Insurance Policy. The amount of coverage shall be at least equal
to the coverage that would be required by Xxxxxx Mae or Xxxxxxx Mac, whichever
is greater, with respect to the Servicer or the Special Servicer if the Servicer
or the Special Servicer, as applicable, were servicing and administering the
Mortgage Loans or Specially Serviced Mortgage Loans, as applicable, for Xxxxxx
Mae or Xxxxxxx Mac. Coverage of the Servicer or the Special Servicer under a
policy or bond obtained by an Affiliate of the Servicer or the Special Servicer
and providing the coverage required by this Section 3.07(c) shall satisfy the
requirements of this Section 3.07(c). The Special Servicer and the Servicer will
promptly report in writing to the Trustee any material changes that may occur in
their respective fidelity bonds, if any, and/or their respective errors and
omissions Insurance Policies, as the case may be, and will furnish to the
Trustee copies of all binders and policies or certificates evidencing that such
bonds, if any, and insurance policies are in full force and effect. The Servicer
and the Special Servicer shall each cause the Trustee to be an additional loss
payee on any policy currently in place or procured pursuant to the requirements
of this Section 3.07(c).
(d) At the time the Servicer determines in accordance with the
Servicing Standards that any Mortgaged Property shall be in a federally
designated special flood hazard area (and such flood insurance has been made
available), the Servicer will use reasonable efforts to cause the related
Mortgagor (in accordance with applicable law and the terms of the Mortgage Loan
documents) to maintain, and, if the related Mortgagor shall default in its
obligation to so maintain, shall itself maintain to the extent available at
commercially reasonable rates (as determined by the Servicer in accordance with
the Servicing Standards and to the extent the Trustee, as mortgagee, has an
insurable interest therein), flood insurance in respect thereof, but only to the
extent the related Mortgage Loan permits the mortgagee to require such coverage
and the maintenance of such coverage is consistent with the Servicing Standards.
Such flood insurance shall be in an amount equal to the lesser of (i) the unpaid
principal balance of the related Mortgage Loan, and (ii) the maximum amount of
insurance which is available under the National Flood Insurance Act of 1968, as
amended. If the cost of any insurance described above is not borne by the
Mortgagor, the Servicer shall promptly make a Servicing Advance for such costs.
(e) During all such times as any REO Property shall be located in a
federally designated special flood hazard area, the Special Servicer will cause
to be maintained, to the extent available at commercially reasonable rates (as
determined by the Special Servicer in accordance with the Servicing Standards),
a flood insurance policy meeting the requirements of the current guidelines of
the Federal Insurance Administration in an amount representing coverage not less
than the maximum amount of insurance which is available under the National Flood
Insurance Act of 1968, as amended. The cost of any such flood insurance with
respect to an REO Property shall be an expense of the Trust payable out of the
related REO Account pursuant to Section 3.16(c) or, if the amount on deposit
therein is insufficient therefor, paid by the Servicer as a Servicing Advance.
Section 3.08 Enforcement of Due-On-Sale Clauses; Assumption
Agreements.
(a) As to each Mortgage Loan which 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
(ii) provides that such Mortgage Loan may not be assumed without the
consent of the mortgagee in connection with any such sale or other
transfer,
then, for so long as such Mortgage Loan is included in the Trust Fund, the
Special Servicer or, with respect to all Non-Specially Serviced Mortgage Loans,
the Servicer, on behalf of the Trustee as the mortgagee of record, shall
exercise (or waive its right to exercise provided that, (i) with respect to all
Non-Specially Serviced Mortgage Loans, the Servicer has obtained the prior
written consent of the Special Servicer, which consent shall be deemed given 10
Business Days after receipt by the Special Servicer from the Servicer of the
Servicer's analysis and recommendation with respect to such waiver together with
such other information reasonably required by the Special Servicer, (ii) with
respect to all Specially Serviced Mortgage Loans, and Non-Specially Serviced
Mortgage Loans having a Stated Principal Balance greater than or equal to
$2,500,000, the Special Servicer has obtained the prior written consent of the
Directing Certificateholder, which consent shall be deemed given 10 Business
Days after receipt by the Directing Certificateholder from the Special Servicer
of the Servicer's analysis and recommendation with respect to such waiver
together with such other information reasonably required by the Directing
Certificateholder and (iii) it has obtained confirmation from the Rating
Agencies pursuant to Section 3.08(e), if required) any right it may have with
respect to such Mortgage Loan (x) to accelerate the payments thereon or (y) to
withhold its consent to any such sale or transfer, in a manner consistent with
the Servicing Standards.
(b) As to each 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 Fund, the
Servicer shall provide notice to the Special Servicer of any request for a
waiver thereof, and the Special Servicer, on behalf of the Trustee as the
mortgagee of record, shall exercise (or waive its right to exercise provided
that the Special Servicer has, (i) (a) with respect to all Specially Serviced
Mortgage Loans and (b) all Non-Specially Serviced Mortgage Loans having a Stated
Principal Balance greater than or equal to $2,500,000, obtained the consent of
the Directing Certificateholder, and (ii) obtained confirmation from the Rating
Agencies pursuant to Section 3.08(e), if required) any right it may have with
respect to such Mortgage Loan (x) to accelerate the payments thereon or (y) to
withhold its consent to the creation of any such additional lien or other
encumbrance, in a manner consistent with the Servicing Standards.
(c) Nothing in this Section 3.08 shall constitute a waiver of the
Trustee's right, as the mortgagee of record, to receive notice of any assumption
of a Mortgage Loan, any sale or other transfer of the related Mortgaged Property
or the creation of any additional lien or other encumbrance with respect to such
Mortgaged Property.
(d) Except as otherwise permitted by Sections 3.20 and 3.08(a), (b)
and (f), neither the Servicer nor the Special Servicer shall agree to modify,
waive or amend any term of any Mortgage Loan in connection with the taking of,
or the failure to take, any action pursuant to this Section 3.08.
(e) (i) Notwithstanding the foregoing, the Servicer or the Special
Servicer, as applicable, shall not waive any rights under a "due-on-encumbrance"
clause with respect to any Mortgage Loan which (together with any Mortgaged
Loans cross-collateralized with such Mortgage Loans) represents (a) one of the
top ten Stated Principal Balances as of the date of the encumbrance, or if the
applicable Mortgage Loan represents 2% or more of the Cut-off Date Principal
Balance of all Mortgage Loans and (b) a Mortgage Loan with a LTV Ratio greater
than or equal to 85% and a Debt Service Coverage Ratio less than or equal to
1.20x, unless it obtains from each Rating Agency a written confirmation that
such waiver will not cause a downgrading, qualification or withdrawal of the
then current rating assigned to any of the Certificates. The Special Servicer
shall provide copies of any such waivers to the Servicer and each Rating Agency
with respect to each Mortgage Loan. To the extent any fee charged by each Rating
Agency in connection with rendering such written confirmation is not paid by the
related Mortgagor, such fee is to be an expense of the Trust.
(ii) Notwithstanding the foregoing, the Servicer or the Special
Servicer, as applicable, shall not waive any rights under a "due-on-sale"
clause with respect to any of the Mortgage Loans unless it obtains from
each Rating Agency a written confirmation that such waiver would not cause
a downgrading, qualification or withdrawal of the then current rating
assigned to any of the Certificates; provided, however, that (x) no such
confirmation shall be required for any Mortgage Loan which (together with
any Mortgaged Loans cross-collateralized with such Mortgage Loans) is a
Mortgage Loan with a Cut-off Date Principal Balance less than $20,000,000,
or if the related Mortgage Loan represents less than 5% of the Cut-off
Date Principal Balance of all Mortgage Loans. The Servicer shall use its
reasonable efforts to collect from the Mortgagor all fees charged by any
Rating Agency and, to the extent the Mortgagor is required to pay such fee
under the terms of the related Mortgage Loan documents, the Servicer shall
not waive such obligation. To the extent any fee charged by each Rating
Agency in connection with rendering such written confirmation is not paid
by the related Mortgagor, such fee is to be an expense of the Trust. The
Special Servicer shall provide copies of any such waivers to the Servicer
and each Rating Agency with respect to each Mortgage Loan.
(f) Notwithstanding any other provisions of this Section 3.08 or
Section 3.20, the Servicer may, without any Rating Agency confirmation as
provided in clause (e) above or any Directing Certificateholder approval
(provided the Servicer delivers notice thereof to the Special Servicer and
Directing Certificateholder), (i) grant waivers of non-material covenant
defaults (other than financial covenants), including late financial statements;
(ii) grant releases of non-material, non-income producing parcels of a Mortgaged
Property that do not materially affect the use or value of the Mortgaged
Property or the ability of the related Mortgagor to pay amounts due in respect
of the Mortgage Loan as and when due; (iii) approve or consent to grants of
easements or right of way for utilities, access, parking, public improvements or
another purpose or subordinations of the lien of Mortgage Loans to easements
that do not materially affect the use or value of a Mortgaged Property or a
Mortgagor's ability to make any payments with respect to the related Mortgage
Loan; (iv) grant other routine approvals, including the granting of
subordination, non-disturbance and attornment agreements and leasing consents
that affect less than the lesser of (a) 30% of the net rentable area of the
Mortgaged Property, or (b) 30,000 square feet; (v) consents to actions related
to condemnation of non-material, non-income producing parcels of the Mortgaged
Property that do not materially affect the use or value of the Mortgaged
Property or the ability of the related Mortgagor to pay amounts due in respect
of the Mortgage Loan as and when due; (vi) consents to a change in property
management relating to any Mortgage Loan with respect to Mortgage Loans with an
outstanding principal balance of less than $10,000,000; and (vii) approve of
annual operating budgets; provided that any such modification, waiver or
amendment (w) would not in any way affect a payment term of the Certificates,
(x) would not constitute a "significant modification" of such Mortgage Loan
pursuant to Treasury Regulations Section 1.860G-2(b) and would not otherwise
cause any of the Upper-Tier REMIC, Lower-Tier REMIC or Loan REMICs to fail to
qualify as a REMIC or cause the Grantor Trust to fail to qualify as a "grantor
trust" under subpart E of Part 1 of subchapter J of the Code, (y) agreeing to
such modification, waiver or amendment would be consistent with the Servicing
Standard, and (z) agreeing to such modification, waiver or amendment shall not
violate the terms, provisions or limitations of this Agreement or any other
document contemplated hereby.
(g) Notwithstanding any other provision of this Agreement, the
Servicer may not waive its rights or grant its consent under any "due-on-sale"
or "due-on-encumbrance" clause without the consent of the Special Servicer and
the Special Servicer may not waive its rights or grant its consent under any
"due-on-sale" or "due-on-encumbrance" clause relating to a Non-Specially
Serviced Mortgage Loan having a Stated Principal Balance greater than or equal
to $2,500,000 or relating to any Specially Serviced Mortgage Loan without the
consent of the Directing Certificateholder. The Directing Certificateholder
shall have 10 Business Days after receipt of notice together with the
recommendation and analysis with respect to such waiver from the Special
Servicer of a proposed waiver or consent under any "due-on-sale" or
"due-on-encumbrance" clause in which to grant or withhold its consent (provided
that if the Special Servicer fails to receive a response to such notice from the
Directing Certificateholder in writing within such period, then the Directing
Certificateholder shall be deemed to have consented to such proposed waiver or
consent).
Section 3.09 Realization Upon Defaulted Mortgage Loans.
(a) The Special Servicer shall, subject to subsections (b) through
(d) of this Section 3.09, exercise reasonable efforts, consistent with the
Servicing Standards, to foreclose upon or otherwise comparably convert (which
may include an REO Acquisition) the ownership of property securing such Mortgage
Loans or Companion Loans, as come into and continue in default as to which no
satisfactory arrangements can be made for collection of delinquent payments, and
which are not released from the Trust Fund pursuant to any other provision
hereof. The foregoing is subject to the provision that, in any case in which a
Mortgaged Property shall have suffered damage from an Uninsured Cause, the
Servicer or Special Servicer shall not be required to make a Servicing Advance
and expend funds toward the restoration of such property unless the Special
Servicer has determined in its reasonable discretion that such restoration will
increase the net proceeds of liquidation of such Mortgaged Property to
Certificateholders after reimbursement to the Servicer for such Servicing
Advance, and the Servicer or Special Servicer has determined that such Servicing
Advance together with accrued and unpaid interest thereon will be recoverable by
the Servicer or Special Servicer out of the proceeds of liquidation of such
Mortgaged Property, as contemplated in Section 3.05(a)(iv). The Special Servicer
shall be responsible for all other costs and expenses incurred by it in any such
proceedings (such costs and expenses to be advanced by the Servicer or upon
request of the Special Servicer, to the Special Servicer), provided that, in
each case, such cost or expense would not, if incurred, constitute a
Nonrecoverable Servicing Advance. Nothing contained in this Section 3.09 shall
be construed so as to require the Servicer or the Special Servicer, on behalf of
the Trust, to make a bid on any Mortgaged Property at a foreclosure sale or
similar proceeding that is in excess of the fair market value of such property,
as determined by the Servicer or the Special Servicer in its reasonable judgment
taking into account the factors described in Section 3.18(b) and the results of
any Appraisal obtained pursuant to the following sentence, all such bids to be
made in a manner consistent with the Servicing Standards. If and when the
Special Servicer or the Servicer deems it necessary and prudent for purposes of
establishing the fair market value of any Mortgaged Property securing a
Defaulted Mortgage Loan or defaulted Companion Loan, whether for purposes of
bidding at foreclosure or otherwise, the Special Servicer or the Servicer, as
the case may be, is authorized to have an Appraisal performed with respect to
such property by an Independent MAI-designated appraiser the cost of which shall
be paid by the Servicer as a Servicing Advance.
(b) The Special Servicer shall not acquire any personal property
pursuant to this Section 3.09 unless either:
(i) such personal property is incidental to real property (within
the meaning of Section 856(e)(1) of the Code) so acquired by the Special
Servicer; or
(ii) the Special Servicer shall have obtained an Opinion of Counsel
(the cost of which shall be paid by the Servicer as a Servicing Advance)
to the effect that the holding of such personal property by the Trust Fund
(to the extent not allocable to a Companion Loan) will not cause the
imposition of a tax on the Upper-Tier REMIC, the Lower-Tier REMIC or the
related Loan REMIC under the REMIC Provisions or cause the Upper-Tier
REMIC, the Lower-Tier REMIC or the related Loan REMIC to fail to qualify
as a REMIC at any time that any Uncertificated Lower-Tier Interest, Loan
REMIC Regular Interest or Certificate is outstanding.
(c) Notwithstanding the foregoing provisions of this Section 3.09,
neither the Special Servicer nor the Servicer shall, on behalf of the Trustee,
obtain title to a Mortgaged Property in lieu of foreclosure or otherwise, or
take any other action with respect to any Mortgaged Property, if, as a result of
any such action, the Trustee, on behalf of the Certificateholders, would be
considered to hold title to, to be a "mortgagee-in-possession" of, or to be an
"owner" or "operator" of such Mortgaged Property within the meaning of CERCLA or
any comparable law, unless (as evidenced by an Officer's Certificate to such
effect delivered to the Trustee) the Special Servicer has previously determined
in accordance with the Servicing Standards, based on an Environmental Assessment
of such Mortgaged Property performed by an Independent Person who regularly
conducts Environmental Assessments and performed within six months prior to any
such acquisition of title or other action, that:
(i) the Mortgaged Property is in compliance with applicable
environmental laws and regulations or, if not, that taking such actions as
are necessary to bring the Mortgaged Property in compliance therewith is
reasonably likely to produce a greater recovery on a net present value
basis than not taking such actions, for such purposes taking into account
any insurance coverage provided pursuant to any environmental insurance
polices in effect and obtained on behalf of the Mortgagee with respect to
the related Mortgaged Property; and
(ii) there are no circumstances or conditions present at the
Mortgaged Property relating to the use, management or disposal of
Hazardous Materials for which investigation, testing, monitoring,
containment, clean-up or remediation could be required under any
applicable environmental laws and regulations or, if such circumstances or
conditions are present for which any such action could be required, that
taking such actions with respect to such Mortgaged Property is reasonably
likely to produce a greater recovery on a net present value basis than not
taking such actions.
The cost of any such Environmental Assessment shall be paid by the
Servicer or the Special Servicer as a Servicing Advance and the cost of any
remedial, corrective or other further action contemplated by clause (i) and/or
clause (ii) of the preceding sentence shall be paid by the Servicer as a
Servicing Advance, unless it is a Nonrecoverable Servicing Advance (in which
case it shall be an expense of the Trust Fund and may be withdrawn by the
Servicer from the Certificate Account, the Simon Collection Account or the
Walgreens Collection Account); and if any such Environmental Assessment so
warrants, the Special Servicer shall, at the expense of the Trust Fund (except
with respect to any Companion Loan and any Environmental Assessment ordered
after the related AB Mortgage Loan has been paid in full), perform such
additional environmental testing as it deems necessary and prudent to determine
whether the conditions described in clauses (i) and (ii) of the preceding
sentence have been satisfied. The Special Servicer shall review and be familiar
with the terms and conditions relating to enforcing claims and shall monitor the
dates by which any claim or action must be taken (including delivering any
notices to the insurer and using reasonable efforts to perform any actions
required under such policy) under each environmental insurance policy in effect
and obtained on behalf of the mortgagee to receive the maximum proceeds
available under such policy for the benefit of the Certificateholders and the
Trustee (as holder of the Uncertificated Lower-Tier Interests and Loan REMIC
Regular Interests.
(d) If (i) the environmental testing contemplated by subsection (c)
above establishes that either of the conditions set forth in clauses (i) and
(ii) of the first sentence thereof has not been satisfied with respect to any
Mortgaged Property securing a Defaulted Mortgage Loan and (ii) there has been no
breach of any of the representations and warranties set forth in or required to
be made pursuant to Section 6 of each of the Mortgage Loan Purchase Agreements
for which the applicable Mortgage Loan Seller could be required to repurchase
such Defaulted Mortgage Loan pursuant to Section 6 of the applicable Mortgage
Loan Purchase Agreement, then the Special Servicer shall take such action as it
deems to be in the best economic interest of the Trust Fund (other than
proceeding to acquire title to the Mortgaged Property) and is hereby authorized
at such time as it deems appropriate to release such Mortgaged Property from the
lien of the related Mortgage, provided that, if such Mortgage Loan has a then
outstanding principal balance of greater than $1,000,000, then prior to the
release of the related Mortgaged Property from the lien of the related Mortgage,
(i) the Special Servicer shall have notified the Rating Agencies, the Trustee,
the Paying Agent, the Servicer and the Directing Certificateholder in writing of
its intention to so release such Mortgaged Property and the bases for such
intention, (ii) the Paying Agent shall have notified the Certificateholders in
writing of the Special Servicer's intention to so release such Mortgaged
Property, (iii) the Holders of Certificates entitled to a majority of the Voting
Rights shall have consented to such release within 30 days of the Paying Agent's
distributing such notice (failure to respond by the end of such 30-day period
being deemed consent) and (iv) the Special Servicer shall have received written
confirmation from each Rating Agency that such release will not cause the
downgrade, withdrawal or qualification of any of the then-current ratings of any
Class of Certificates. To the extent any fee charged by each Rating Agency in
connection with rendering such written confirmation is not paid by the related
Mortgagor, such fee is to be an expense of the Trust.
(e) The Special Servicer shall provide written reports and a copy of
any Environmental Assessments to the Trustee, the Paying Agent, the Directing
Certificateholder, each Rating Agency and the Servicer monthly regarding any
actions taken by the Special Servicer with respect to any Mortgaged Property
securing a defaulted Mortgage Loan as to which the environmental testing
contemplated in subsection (c) above has revealed that either of the conditions
set forth in clauses (i) and (ii) of the first sentence thereof has not been
satisfied, in each case until the earlier to occur of satisfaction of both such
conditions, repurchase of the related Mortgage Loan by the applicable Mortgage
Loan Seller or release of the lien of the related Mortgage on such Mortgaged
Property. The Paying Agent shall forward all such reports to the
Certificateholders upon request.
(f) The Special Servicer shall provide the Servicer with all
information regarding forgiveness of indebtedness and required to be reported
with respect to any Mortgage Loan which is abandoned or foreclosed and the
Servicer shall report to the Internal Revenue Service and the related Mortgagor,
in the manner required by applicable law, such information and the Servicer
shall report, via Form 1099C (or any successor form), all forgiveness of
indebtedness to the extent such information has been provided to the Servicer by
the Special Servicer. The Servicer shall deliver a copy of any such report to
the Paying Agent and the Trustee.
(g) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standards, the advisability of the maintenance of
an action to obtain a deficiency judgment if the state in which the Mortgaged
Property is located and the terms of the Mortgage Loan and applicable Companion
Loan permit such an action.
(h) The Special Servicer shall maintain accurate records, prepared
by one of its Servicing Officers, of each Final Recovery Determination in
respect of a Defaulted Mortgage Loan, defaulted Companion Loan or REO Property
and the basis thereof. Each Final Recovery Determination shall be evidenced by
an Officer's Certificate promptly delivered to the Trustee, the Paying Agent,
the Directing Certificateholder and the Servicer and in no event later than the
next succeeding P&I Advance Determination Date.
Section 3.10 Trustee to Cooperate; Release of Mortgage Files.
(a) Upon the payment in full of any Mortgage Loan, or the receipt by
the Servicer or the Special Servicer, as the case may be, of a notification that
payment in full shall be escrowed in a manner customary for such purposes, the
Servicer or Special Servicer, as the case may be, will immediately notify the
Trustee and request delivery of the related Mortgage File. Any such notice and
request shall be in the form of a Request for Release signed by a Servicing
Officer and shall include a statement to the effect that all amounts received or
to be received in connection with such payment which are required to be
deposited in the Certificate Account pursuant to Section 3.04(a) or remitted to
the Servicer to enable such deposit, have been or will be so deposited. Within
seven Business Days (or within such shorter period as release can reasonably be
accomplished if the Servicer notifies the Trustee of an exigency) of receipt of
such notice and request, the Trustee shall release, or cause any related
Custodian to release, the related Mortgage File to the Servicer or Special
Servicer, as the case may be. No expenses incurred in connection with any
instrument of satisfaction or deed of reconveyance shall be chargeable to the
Certificate Account, the Simon Collection Account or the Walgreens Collection
Account.
(b) From time to time as is appropriate for servicing or foreclosure
of any Mortgage Loan, the Servicer or the Special Servicer shall deliver to the
Trustee a Request for Release signed by a Servicing Officer. Upon receipt of the
foregoing, the Trustee shall deliver or cause the related Custodian to deliver,
the Mortgage File or any document therein to the Servicer or the Special
Servicer (or a designee), as the case may be. Upon return of such Mortgage File
or such document to the Trustee or the related Custodian, or the delivery to the
Trustee of a certificate of a Servicing Officer of the Servicer or the Special
Servicer, as the case may be, stating that such Mortgage Loan was liquidated and
that all amounts received or to be received in connection with such liquidation
which are required to be deposited into the Certificate Account, the Simon
Collection Account or the Walgreens Collection Account pursuant to Section
3.04(a) have been or will be so deposited, or that such Mortgage Loan has become
an REO Property, a copy of the Request for Release shall be released by the
Trustee to the Servicer or the Special Servicer (or a designee), as the case may
be, with the original being released upon termination of the Trust.
(c) Within seven Business Days (or within such shorter period as
delivery can reasonably be accomplished if the Special Servicer notifies the
Trustee of an exigency) of receipt thereof, the Trustee shall execute and
deliver to the Special Servicer any court pleadings, requests for trustee's sale
or other documents necessary to the foreclosure or trustee's sale in respect of
a Mortgaged Property or to any legal action brought to obtain judgment against
any Mortgagor on the Mortgage Note or Mortgage or to obtain a deficiency
judgment, or to enforce any other remedies or rights provided by the Mortgage
Note or Mortgage or otherwise available at law or in equity. The Special
Servicer shall be responsible for the preparation of all such documents and
pleadings. When submitted to the Trustee for signature, such documents or
pleadings shall be accompanied by a certificate of a Servicing Officer
requesting that such pleadings or documents be executed by the Trustee and
certifying as to the reason such documents or pleadings are required and that
the execution and delivery thereof by the Trustee will not invalidate or
otherwise affect the lien of the Mortgage, except for the termination of such a
lien upon completion of the foreclosure or trustee's sale.
Section 3.11 Servicing Compensation.
(a) As compensation for its activities hereunder, the Servicer shall
be entitled to receive the Servicing Fee with respect to each Mortgage Loan,
Companion Loan and REO Loan (including Specially Serviced Mortgage Loans). As to
each Mortgage Loan, Companion Loan and REO Loan, the Servicing Fee shall accrue
from time to time at the Servicing Fee Rate and shall be computed on the basis
of the Stated Principal Balance of such Mortgage Loan or Companion Loan, as the
case may be, and in the same manner as interest is calculated on the Mortgage
Loans or Companion Loan, as the case may be, and, in connection with any partial
month interest payment, for the same period respecting which any related
interest payment due on such Mortgage Loan or deemed to be due on such REO Loan
is computed. The Servicing Fee with respect to any Mortgage Loan, Companion Loan
or REO Loan shall cease to accrue if a Liquidation Event occurs in respect
thereof. The Servicing Fee shall be payable monthly, on a loan-by-loan basis,
from payments of interest on each Mortgage Loan, Companion Loan and REO Revenues
allocable as interest on each REO Loan, and as otherwise provided by Section
3.05(a). The Servicer shall be entitled to recover unpaid Servicing Fees in
respect of any Mortgage Loan, Companion Loan or REO Loan out of that portion of
related payments, Insurance and Condemnation Proceeds, Liquidation Proceeds and
REO Revenues (in the case of an REO Loan) allocable as recoveries of interest,
to the extent permitted by Section 3.05(a). Except as set forth in Section
7.01(c), the right to receive the Servicing Fee may not be transferred in whole
or in part.
The Servicer shall be entitled to retain, and shall not be required
to deposit in the Certificate Account, the Simon Collection Account or the
Walgreens Collection Account pursuant to Section 3.04(a), additional servicing
compensation in the form of (i) 100% of application, modification, waiver,
consent and defeasance fees pursuant to Section 3.08(f), provided the consent of
the Special Servicer is not required to take such action (other than with
respect to defeasances) and (ii) 50% of all application, assumption, waiver and
consent fees pursuant to Section 3.08(a) on the Non-Specially Serviced Mortgage
Loans, to the extent that such fees are paid by the Mortgagor and for which the
Special Servicer's consent or approval is required on the Non-Specially Serviced
Mortgage Loans and only to the extent that all amounts then due and payable with
respect to the related Mortgage Loan have been paid. In addition, the Servicer
shall be entitled to retain as additional servicing compensation any charges for
processing Mortgagor requests, beneficiary statements or demands reasonable and
customary consent fees, fees in connection with defeasance, if any, and other
customary charges, and amounts collected for checks returned for insufficient
funds, in each case only to the extent actually paid by the related Mortgagor
and shall not be required to deposit such amounts in the Certificate Account,
the Simon Collection Account or the Walgreens Collection Account pursuant to
Section 3.04(a). Subject to Section 3.11(c), the Servicer shall also be entitled
to additional servicing compensation in the form of: (i) Penalty Charges accrued
on Mortgage Loans during the period said Mortgage Loans were Non-Specially
Serviced Mortgage Loans, but only to the extent actually paid by the related
Mortgagor and to the extent that all interest on related Advances (other than
with respect to the 00/000 Xxxxxxx Xxxxxx Mortgage Loan) and all additional
Trust Fund expenses (other than Special Servicing Fees, Workout Fees and
Liquidation Fees with respect to each Mortgage Loan and such costs and expenses
incurred with respect to the 00/000 Xxxxxxx Xxxxxx Mortgage Loan) payable with
respect to such Mortgage Loan have been paid since the Closing Date, (ii)
interest or other income earned on deposits relating to the Trust Fund in the
Certificate Account, the Simon Collection Account or the Walgreens Collection
Account in accordance with Section 3.06(b) (but only to the extent of the Net
Investment Earnings, if any, with respect to such account for the period from
the prior P&I Advance Date to the P&I Advance Date related to such Distribution
Date), (iii) interest or other income earned on deposits in the Servicing
Account which are not required by applicable law or the related Mortgage Loan to
be paid to the Mortgagor and (iv) the difference, if positive, between
Prepayment Interest Excess and Prepayment Shortfalls collected on the Mortgage
Loans during the related Due Period to the extent not required to be paid as
Compensating Interest Payments. The Servicer shall be required to pay out of its
own funds all expenses incurred by it in connection with its servicing
activities hereunder (including, without limitation, payment of any amounts due
and owing to any of its Sub-Servicers and the premiums for any blanket Insurance
Policy insuring against hazard losses pursuant to Section 3.07), if and to the
extent such expenses are not payable directly out of the Certificate Account,
the Simon Collection Account or the Walgreens Collection Account, and the
Servicer shall not be entitled to reimbursement therefor except as expressly
provided in this Agreement.
(b) As compensation for its activities hereunder, the Special
Servicer shall be entitled to receive the Special Servicing Fee with respect to
each Specially Serviced Mortgage Loan and REO Loan. As to each Specially
Serviced Mortgage Loan and REO Loan, the Special Servicing Fee shall accrue from
time to time at the Special Servicing Fee Rate and shall be computed on the
basis of the Stated Principal Balance of such Specially Serviced Mortgage Loan
and in the same manner as interest is calculated on the Specially Serviced
Mortgage Loans and, in connection with any partial month interest payment, for
the same period respecting which any related interest payment due on such
Specially Serviced Mortgage Loan or deemed to be due on such REO Loan is
computed. The Special Servicing Fee with respect to any Specially Serviced
Mortgage Loan or REO Loan shall cease to accrue if a Liquidation Event occurs in
respect thereof. The Special Servicing Fee shall be payable monthly, on a
loan-by-loan basis, to the extent permitted by Section 3.05(a). The right to
receive the Special Servicing Fee may not be transferred in whole or in part
except in connection with the transfer of all of the Special Servicer's
responsibilities and obligations under this Agreement.
Additional servicing compensation in the form of (i) 100% of all
fees with respect to application, assumption, extension, modification, waiver,
consent, earnout and defeasance fees, in each case, received on any Specially
Serviced Mortgage Loans to the extent such fees are paid by the Mortgagor (ii)
100% of all application, extension, waiver, consent, earnout and modification
fees (not including defeasance fees) on each Non-Specially Serviced Mortgage
Loans (other than pursuant to Section 3.08(a) and Section 3.08(f)) and (iii) 50%
of all application, assumption, waiver and consent fees pursuant to Section
3.08(a) received with respect to all Non-Specially Serviced Mortgage Loans and
for which the Special Servicer's consent or approval is required, shall be
promptly paid to the Special Servicer by the Servicer to the extent such fees
are paid by the Mortgagor and shall not be required to be deposited in the
Certificate Account, the Simon Collection Account or the Walgreens Collection
Account pursuant to Section 3.04(a). The Special Servicer shall also be entitled
to additional servicing compensation in the form of a Workout Fee with respect
to each Corrected Mortgage Loan at the Workout Fee Rate on such Mortgage Loan
for so long as it remains a Corrected Mortgage Loan. The Workout Fee with
respect to any Corrected Mortgage Loan will cease to be payable if such loan
again becomes a Specially Serviced Mortgage Loan; provided that a new Workout
Fee will become payable if and when such Specially Serviced Mortgage Loan again
becomes a Corrected Mortgage Loan. If the Special Servicer is terminated (other
than for cause) or resigns, it shall retain the right to receive any and all
Workout Fees payable in respect of Mortgage Loans that became Corrected Mortgage
Loans prior to the time of that termination or resignation except the Workout
Fees will no longer be payable if the Mortgage Loan subsequently becomes a
Specially Serviced Mortgage Loan. If the Special Servicer resigns or is
terminated (other than for cause), it will receive any Workout Fees payable on
Specially Serviced Mortgage Loans for which the resigning or terminated Special
Servicer had cured the event of default through a modification, restructuring or
workout negotiated by the Special Servicer and evidenced by a signed writing
with respect to which one (1) scheduled payment has been made, but which had not
as of the time the Special Servicer resigned or was terminated become a
Corrected Mortgage Loan solely because the Mortgagor had not had sufficient time
to make three consecutive timely Monthly Payments and which subsequently becomes
a Corrected Mortgage Loan as a result of the Mortgagor making such three
consecutive timely Monthly Payments. The successor special servicer will not be
entitled to any portion of such Workout Fees. A Liquidation Fee will be payable
with respect to each Specially Serviced Mortgage Loan as to which the Special
Servicer receives any Liquidation Proceeds or Insurance and Condemnation
Proceeds subject to the exceptions set forth in the definition of Liquidation
Fee. Notwithstanding anything to the contrary described above, no Liquidation
Fee will be payable based on, or out of, Liquidation Proceeds or Insurance and
Condemnation Proceeds received in connection with the repurchase of any Mortgage
Loan by a Mortgage Loan Seller for a breach of representation or warranty or for
defective or deficient Mortgage Loan documentation so long as such repurchase is
completed within the 90 day period or such other additional period provided for
such repurchase in this Agreement and the Mortgage Loan Purchase Agreement, the
purchase of any Specially Serviced Mortgage Loan by the Majority Controlling
Class Certificateholder pursuant to Section 3.18(a), the Servicer or the Special
Servicer or the purchase of all of the Mortgage Loans and REO Properties in
connection with an optional termination of the Trust Fund pursuant to Section
9.01. If, however, Liquidation Proceeds or Insurance and Condemnation Proceeds
are received with respect to any Corrected Mortgage Loan and the Special
Servicer is properly entitled to a Workout Fee, such Workout Fee will be payable
based on and out of the portion of such Liquidation Proceeds and Insurance and
Condemnation Proceeds that constitute principal and/or interest on such Mortgage
Loan. Notwithstanding anything herein to the contrary, the Special Servicer
shall only be entitled to receive a Liquidation Fee or a Workout Fee, but not
both, with respect to proceeds on any Mortgage Loan. Subject to clause (c)
below, the Special Servicer will also be entitled to additional fees in the form
of Penalty Charges on Specially Serviced Mortgage Loans which have accrued
during such time as such Mortgage Loan was a Specially Serviced Mortgage Loan,
but only to the extent actually collected from the related Mortgagor and to the
extent that all interest on Advances (other than with respect to the 00/000
Xxxxxxx Xxxxxx Mortgage Loan) and additional Trust Fund expenses payable with
respect to the related Mortgage Loan have been paid since the Closing Date. The
Special Servicer shall be required to pay out of its own funds all expenses
incurred by it in connection with its servicing activities hereunder (including,
without limitation, payment of any amounts, other than management fees in
respect of REO Properties, due and owing to any of its Sub-Servicers and the
premiums for any blanket Insurance Policy obtained by it insuring against hazard
losses pursuant to Section 3.07), if and to the extent such expenses are not
expressly payable directly out of the Certificate Account or the REO Account,
and the Special Servicer shall not be entitled to reimbursement therefor except
as expressly provided in this Agreement.
(c) In determining the compensation of the Servicer or Special
Servicer, as applicable, with respect to Penalty Charges, on any Distribution
Date, the aggregate Penalty Charges collected on any Mortgage Loan (other than
the 00/000 Xxxxxxx Xxxxxx Mortgage Loan) since the prior Distribution Date shall
be applied (in such order) to reimburse (i) the Servicer, the Special Servicer
or the Trustee for interest on Advances on such Mortgage Loan due on such
Distribution Date, (ii) the Trust Fund for all interest on Advances previously
paid to the Servicer, the Special Servicer or the Trustee pursuant to Section
3.05(a)(vi) hereof and (iii) the Trust Fund for costs of inspections by the
Special Servicer, all unpaid Advances and additional Trust Fund expenses (other
than Special Servicing Fees, Liquidation Fees and Workout Fees with respect to
each Mortgage Loan and such costs and expenses incurred with respect to the
00/000 Xxxxxxx Xxxxxx Mortgage Loan) incurred since the Closing Date, Penalty
Charges remaining thereafter shall be distributed on a pro rata basis to the
Servicer, if and to the extent accrued while the Mortgage Loan was a
Non-Specially Serviced Mortgage Loan and the Special Servicer if and to the
extent accrued on such Mortgage Loan during the period such Mortgage Loan was a
Specially Serviced Mortgage Loan.
Section 3.12 Inspections; Collection of Financial Statements.
(a) The Servicer shall perform (at its own expense), or shall cause
to be performed (at its own expense), a physical inspection of each Mortgaged
Property at least once every calendar year commencing in the calendar year 2003;
provided, however, that if a physical inspection has been performed by the
Special Servicer in the previous calendar year, the Servicer will not be
required to perform or cause to be performed, such physical inspection;
provided, further, that if any scheduled payment becomes more than 60 days
delinquent on the related Mortgage Loan, the Special Servicer shall inspect the
related Mortgaged Property as soon as practicable after such Mortgage Loan
becomes a Specially Serviced Mortgage Loan and annually thereafter for so long
as such Mortgage Loan remains a Specially Serviced Mortgage Loan. The cost of
such inspection by the Special Servicer shall be an expense of the Trust Fund,
reimbursed first from Penalty Charges actually received from the related
Mortgagor and then from the Certificate Account pursuant to Section 3.05(a)(ii).
The Special Servicer or the Servicer, as applicable, shall prepare or cause to
be prepared a written report of each such inspection detailing the condition of
the Mortgaged Property and specifying the existence of (i) any vacancy in the
Mortgaged Property that the preparer of such report deems material, (ii) any
sale, transfer or abandonment of the Mortgaged Property of which it has
knowledge, (iii) any adverse change in the condition of the Mortgaged Property
that the preparer of such report deems material, (iv) any visible material waste
committed on the Mortgaged Property and (v) photographs of each inspected
Mortgaged Property. The Special Servicer and the Servicer shall deliver a copy
of each such report prepared by the Special Servicer and the Servicer,
respectively, to the other, and to the Directing Certificateholder
electronically using the ARCap naming convention the form of which is attached
hereto as Exhibit S (the "ARCap Naming Convention"), to the Trustee, the Paying
Agent and the Rating Agencies within five (5) Business Days after request (or if
such request is received before such report is completed, within five (5)
Business Days after completion of such report). The Paying Agent shall deliver a
copy of each such report to the Controlling Class Certificateholder (and in the
case of the Simon Mortgage Loan, the Simon Representative) upon request and to
each Holder of a Class F, Class G, Class H, Class J, Class K, Class L, Class M,
Class N and Class NR Certificate, upon request (which such request may state
that such items be delivered until further notice).
(b) The Special Servicer or Servicer, as applicable, shall make
reasonable efforts to collect promptly from each Mortgagor annual operating
statements and rent rolls of the related Mortgaged Property, financial
statements of such Mortgagor and any other reports required to be delivered
under the terms of the Mortgage Loans, if delivery of such items is required
pursuant to the terms of the related Mortgage.
(c) The Special Servicer, in the case of any Specially Serviced
Mortgage Loan, and the Servicer, in the case of any Non-Specially Serviced
Mortgage Loan shall make reasonable efforts to collect promptly from each
related Mortgagor quarterly and annual operating statements, budgets and rent
rolls of the related Mortgaged Property, and the quarterly and annual financial
statements of such Mortgagor, whether or not delivery of such items is required
pursuant to the terms of the related Mortgage. The Servicer shall not be
required to request such statements more than once if the related Mortgagor does
not deliver such statements. In addition, the Special Servicer shall cause
quarterly and annual operating statements, budgets and rent rolls to be
regularly prepared in respect of each REO Property and shall collect all such
items promptly following their preparation. The Special Servicer shall deliver
all such items to the Servicer within five (5) days of receipt and the Servicer
and the Special Servicer shall each deliver copies of all the foregoing items
collected by it to the Paying Agent and the Directing Certificateholder
(electronically using the ARCap Naming Convention) and, upon request, to the
Depositor and the Trustee and each other, in each case within 60 days of its
receipt thereof, but in no event, the case of annual statements, later than June
30th of each year. The Paying Agent shall, upon request, deliver copies (in hard
copy, electronic format or make available on its Internet website) of the
foregoing items to the Underwriters, the Rating Agencies, the Trustee,
Controlling Class Certificateholders, the Mortgage Loan Sellers or, to the
extent the Certificate Registrar has confirmed the Ownership Interest in
Certificates held thereby, any Certificate Owner, a copy (or image in suitable
electronic media) of each such report prepared by the Servicer or the Special
Servicer.
Within 45 days after receipt by the Servicer, with respect to
Non-Specially Serviced Mortgage Loans, or the Special Servicer with respect to
Specially Serviced Mortgage Loans of any annual operating statements or rent
rolls with respect to any Mortgaged Property or REO Property, or if such date
would be after June 30th of any year, then within 30 days after receipt, the
Servicer shall, based upon such operating statements or rent rolls received,
prepare (or, if previously prepared, update) the analysis of operations and the
NOI Adjustment Worksheet and the Operating Statement Analysis Report. Upon the
occurrence and continuation of a Servicing Transfer Event, the Servicer shall
provide the Special Servicer with all prior Operating Statement Analysis Reports
and NOI Adjusted Worksheets for the related Mortgage Loan (including
underwritten figures), and the Special Servicer's obligations hereunder shall be
subject to its having received all such reports. The Servicer and Special
Servicer shall forward electronically using the ARCap Naming Convention to the
other and the Directing Certificateholder monthly all operating statements and
rent rolls received from any Mortgagor from the prior month. All Operating
Statement Analysis Reports shall be maintained by the Servicer with respect to
each Mortgaged Property and REO Property, and the Servicer shall forward copies
(in hard copy, electronic format or make available on its Internet website)
thereof (in each case, promptly following the initial preparation and each
material revision thereof) to the Trustee, the Paying Agent, the Directing
Certificateholder (and in the case of the Simon Mortgage Loan, the Simon
Representative) and, upon written request, the Special Servicer and the related
operating statements or rent rolls. The Paying Agent shall, upon request and to
the extent such items have been delivered to the Paying Agent by the Servicer,
deliver to the Underwriters, the Rating Agencies, the Mortgage Loan Sellers, any
Certificateholder or, to the extent the Certificate Registrar has confirmed the
Ownership Interest in the Certificates held thereby, any Certificate Owner, a
copy of such Operating Statement Analysis (or update thereof) and, upon written
request, the related operating statement or rent rolls. The Servicer shall
maintain an Operating Statement Analysis Report with respect to each Mortgaged
Property and REO Property. Each Operating Statement Analysis Report shall be
substantially in the form of Exhibit L-12 attached hereto (or, at the discretion
of the Servicer, or the Special Servicer, as applicable, provided that no less
information is provided than is set forth in Exhibit L-12 in a CMSA format.
(d) At or before 12:00 p.m. (New York City time) on the first
Business Day following each Determination Date, the Special Servicer shall
prepare and deliver or cause to be delivered to the Servicer the following
reports with respect to the Specially Serviced Mortgage Loans and any REO
Properties, providing the information required of the Special Servicer in an
electronic format, reasonably acceptable to the Servicer as of such
Determination Date: (i) a CMSA Delinquent Loan Status Report, (ii) a CMSA
Property File, (iii) a CMSA Historical Liquidation Report; (iv) a CMSA
Historical Loan Modification Report and (v) a CMSA REO Status Report.
(e) Not later than 12:30 p.m. (New York City time) on the P&I
Advance Date, the Servicer shall prepare (if and to the extent necessary) and
deliver or cause to be delivered (in electronic format) to the Paying Agent data
files relating to the following reports: (i) to the extent received at the time
required, the most recent CMSA Delinquent Loan Status Report, CMSA Historical
Liquidation Report, CMSA Historical Loan Modification Report and CMSA REO Status
Report received from the Special Servicer pursuant to Section 3.12(d), (ii) the
most recent CMSA Property File Report, and CMSA Comparative Financial Status
Report (in each case combining the reports required in Section 3.12(d) by the
Special Servicer and Servicer), (iii) a Servicer Watch List Report with
information that is current as of such Determination Date and (iv) an Updated
Collection Report. Not later than 2:00 p.m. (New York City time) two (2)
Business Days prior to the Distribution Date, the Servicer shall deliver or
cause to be delivered to the Paying Agent via electronic format the CMSA Loan
Periodic Update File.
(f) The Special Servicer shall deliver to the Servicer the reports
set forth in Section 3.12(c) and Section 3.12(d), and the Servicer shall deliver
to the Paying Agent the reports set forth in Section 3.12(e). The Servicer may,
absent manifest error, conclusively rely on the reports to be provided by the
Special Servicer pursuant to Section 3.12 (d). The Paying Agent may, absent
manifest error, conclusively rely on the reports to be provided by the Servicer
pursuant to Section 3.12(e). In the case of information or reports to be
furnished by the Servicer to the Paying Agent pursuant to Section 3.12(e), to
the extent that such information or reports are, in turn, based on information
or reports to be provided by the Special Servicer pursuant to Section 3.12(c) or
Section 3.12(d) and to the extent that such reports are to be prepared and
delivered by the Special Servicer pursuant to Section 3.12(c) or Section
3.12(d), the Servicer shall have no obligation to provide such information or
reports to the Paying Agent until it has received the requisite information or
reports from the Special Servicer, and the Servicer shall not be in default
hereunder due to a delay in providing the reports required by Section 3.12(e)
caused by the Special Servicer's failure to timely provide any information or
report required under Section 3.12(c) or Section 3.12(d) of this Agreement.
(g) Notwithstanding the foregoing, however, the failure of the
Servicer or Special Servicer to disclose any information otherwise required to
be disclosed by this Section 3.12 shall not constitute a breach of this Section
3.12 to the extent the Servicer or Special Servicer so fails because such
disclosure, in the reasonable belief of the Servicer or the Special Servicer, as
the case may be, would violate any applicable law or any provision of a Mortgage
Loan document prohibiting disclosure of information with respect to the Mortgage
Loans or Mortgaged Properties. The Servicer and Special Servicer may disclose
any such information or any additional information to any Person so long as such
disclosure is consistent with applicable law and the Servicing Standards. The
Servicer or the Special Servicer may affix to any information provided by it any
disclaimer it deems appropriate in its reasonable discretion (without suggesting
liability on the part of any other party hereto).
(h) Unless otherwise specifically stated herein, if the Servicer or
the Special Servicer is required to deliver any statement, report or information
under any provisions of this Agreement, the Servicer or the Special Servicer, as
the case may be, may satisfy such obligation by (x) physically delivering a
paper copy of such statement, report or information, (y) delivering such
statement, report or information in a commonly used electronic format or (z)
making such statement, report or information available on the Servicer's
Internet website, unless this Agreement expressly specifies a particular method
of delivery.
Notwithstanding the foregoing, the Servicer and the Special Servicer
shall deliver any statements, reports or other information to the Paying Agent
in an electronic format mutually agreeable to the Paying Agent and the Servicer,
or the Special Servicer as the case may be. The Servicer or the Special Servicer
may physically deliver a paper copy of any such statement, report or information
as a temporary measure due to system problems.
The Servicer and the Paying Agent, as applicable, shall prepare and
deliver or make available on their respective websites (if applicable), to the
Directing Certificateholder, the reports and information described in Exhibit T
in the forms and formats and within the timeframes set forth therein.
Section 3.13 Annual Statement as to Compliance.
Each of the Servicer and the Special Servicer will deliver to the
Trustee, the Paying Agent and the Rating Agencies, with a copy to the Depositor,
on or before March 15 of each year, beginning March 15, 2003, an Officer's
Certificate stating, as to each signer thereof, that (i) a review of the
activities of the Servicer or the Special Servicer, as the case may be, during
the preceding calendar year and of its performance under this Agreement has been
made under such officer's supervision, (ii) to the best of such officer's
knowledge, based on such review, the Servicer or the Special Servicer, as the
case may be, has maintained an effective internal control system relating to its
servicing of the Mortgage Loans (other than the 00/000 Xxxxxxx Xxxxxx Mortgage
Loan) serviced by it and has fulfilled in all material respects its obligations
under this Agreement throughout such year, or, if there has been a material
default in the fulfillment of any such obligation, specifying each such default
known to such officer and the nature and status thereof and (iii) the Servicer
or the Special Servicer, as the case may be, has received no notice regarding
qualification, or challenging the status of either Loan REMIC, the Lower-Tier
REMIC or the Upper-Tier REMIC as a REMIC from the Internal Revenue Service or
any other governmental agency or body or, if it has received any such notice,
specifying the details thereof. A copy of such Officer's Certificate may be
obtained by Certificateholders upon written request to the Paying Agent pursuant
to Section 8.12 hereof. Promptly after receipt of such Officer's Certificates,
the Depositor shall review such Officer's Certificates and, if applicable,
consult with the Servicer or the Special Servicer, as applicable, as to the
nature of any defaults by the Servicer or the Special Servicer, as applicable,
in the fulfillment of any of the Servicer's or the Special Servicer's
obligations.
Section 3.14 Reports by Independent Public Accountants.
Each of the Servicer and the Special Servicer at their own expense
shall cause a nationally recognized firm of independent certified public
accountants to furnish to the Trustee, the Paying Agent and each Rating Agency
with a copy to the Depositor, on or before March 15 of each year, commencing
with March 15, 2003, a report stating that (i) it has obtained from the Servicer
or the Special Servicer, as the case may be, a letter of representation
regarding certain matters from the management of the Servicer or the Special
Servicer, as the case may be, which includes an assertion that the Servicer or
the Special Servicer, as the case may be, has maintained an effective internal
control system with respect to the servicing of the Mortgage Loans (other than
the 00/000 Xxxxxxx Xxxxxx Mortgage Loan) and has complied with certain minimum
mortgage loan servicing standards (to the extent applicable to commercial and
multifamily mortgage loans), identified in the Uniform Single Attestation
Program for Mortgage Bankers established by the Mortgage Bankers Association of
America, with respect to the Servicer's or the Special Servicer's, as the case
may be, servicing of commercial and multifamily mortgage loans during the most
recently completed calendar year and (ii) on the basis of an examination
conducted by such firm in accordance with standards established by the American
Institute of Certified Public Accountants, such assertion is fairly stated in
all material respects, subject to such exceptions and other qualifications that,
in the opinion of such firm, such standards require it to report. In rendering
its report such firm may rely, as to the matters relating to the direct
servicing of commercial and multifamily mortgage loans by Sub-Servicers, upon
comparable reports of firms of independent certified public accountants rendered
on the basis of examinations conducted in accordance with the same standards
(rendered with respect to such Sub-Servicer's previous fiscal year) with respect
to those Sub-Servicers. Promptly after receipt of such reports, the Depositor
shall review such reports and, if applicable, consult with the Servicer or the
Special Servicer, as applicable, as to the nature of any defaults by the
Servicer or the Special Servicer, as applicable, in the fulfillment of any of
the Servicer's or the Special Servicer's obligations.
Section 3.15 Access to Certain Information.
Each of the Servicer and the Special Servicer shall provide or cause
to be provided to any Certificateholder or Certificate Owner that is, or is
affiliated with, a federally insured financial institution, the Trustee, the
Paying Agent, the Depositor, each Mortgage Loan Seller, each Rating Agency, the
Servicer, or the Special Servicer, as applicable, and to the OTS, the FDIC, the
Federal Reserve Board and the supervisory agents and examiners of such boards
and such corporations, and any other federal or state banking or insurance
regulatory authority that may exercise authority over any Certificateholder, and
to each Holder of a Class G, Class H, Class J, Class K, Class L, Class M, Class
N or Class NR Certificate access to any documentation or information regarding
the Mortgage Loans and the Trust Fund within its control which may be required
by this Agreement or by applicable law, and the Special Servicer shall provide
such access and information to the Trustee, the Servicer and the Directing
Certificateholder (and in the case of the Simon Mortgage Loan, the Simon
Representative). Such access shall be afforded without charge but only upon
reasonable prior written request and during normal business hours at the offices
of the Servicer or the Special Servicer, as the case may be, designated by it;
provided, however, that Certificateholders, Certificate Owners and the Simon
Representative shall be required to pay their own photocopying costs and execute
a reasonable and customary confidentiality agreement with respect to such
information. The failure of the Servicer or the Special Servicer to provide
access as provided in this Section 3.15 as a result of a confidentiality
obligation shall not constitute a breach of this Section 3.15. The Servicer and
the Special Servicer may each deny any of the foregoing persons access to
confidential information or any intellectual property which the Servicer or the
Special Servicer is restricted by license or contract from disclosing.
Section 3.16 Title to REO Property; REO Account.
(a) If title to any REO Property is acquired, the deed or
certificate of sale shall be issued to the Trustee or a nominee thereof on
behalf of the Certificateholders, and if applicable, the related Companion
Holder. The Special Servicer, on behalf of the Trust Fund, shall sell any REO
Property prior to the close of the third calendar year following the year in
which the Lower-Tier REMIC or applicable Loan REMIC acquires ownership of such
REO Property, within the meaning of Treasury Regulations Section 1.856-6(b)(1),
for purposes of Section 860G(a)(8) of the Code, unless the Special Servicer
either (i) is granted an extension of time (an "REO Extension") by the Internal
Revenue Service to sell such REO Property or (ii) obtains for the Trustee, the
Paying Agent and the Servicer an Opinion of Counsel, addressed to the Trustee,
the Paying Agent and the Servicer, to the effect that the holding by the
Lower-Tier REMIC or applicable Loan REMIC of such REO Property subsequent to the
close of the third calendar year following the year in which such acquisition
occurred will not result in the imposition of taxes on "prohibited transactions"
(as defined in Section 860F of the Code) of such Loan REMIC, the Lower-Tier
REMIC or the Upper-Tier REMIC, or cause such Loan REMIC, the Lower-Tier REMIC or
the Upper-Tier REMIC to fail to qualify as a REMIC at any time that any Loan
REMIC Regular Interests, Uncertificated Lower-Tier Interests or Certificates are
outstanding. If the Special Servicer is granted the REO Extension contemplated
by clause (i) of the immediately preceding sentence or obtains the Opinion of
Counsel contemplated by clause (ii) of the immediately preceding sentence, the
Special Servicer shall sell such REO Property within such longer period as is
permitted by such REO Extension or such Opinion of Counsel, as the case may be.
Any expense incurred by the Special Servicer in connection with its being
granted the REO Extension contemplated by clause (i) of the second preceding
sentence or its obtaining the Opinion of Counsel contemplated by clause (ii) of
the second preceding sentence, shall be an expense of the Trust Fund payable out
of the Certificate Account pursuant to Section 3.05(a).
(b) The Special Servicer shall segregate and hold all funds
collected and received in connection with any REO Property separate and apart
from its own funds and general assets. If an REO Acquisition shall occur, the
Special Servicer shall establish and maintain one or more REO Accounts, held on
behalf of the Trustee in trust for the benefit of the Certificateholders and, if
applicable, the Companion Holder, as their interest shall appear, and the
Trustee (as holder of the Uncertificated Lower-Tier Interests and Loan REMIC
Regular Interests), for the retention of revenues and other proceeds derived
from each REO Property. The REO Account shall be an Eligible Account. The
Special Servicer shall deposit, or cause to be deposited, in the REO Account,
within 1 Business Day after receipt, all REO Revenues, Insurance and
Condemnation Proceeds and Liquidation Proceeds received in respect of an REO
Property. Funds in the REO Account may be invested in Permitted Investments in
accordance with Section 3.06. The Special Servicer shall give notice to the
Trustee and the Servicer of the location of the REO Account when first
established and of the new location of the REO Account prior to any change
thereof.
(c) The Special Servicer shall withdraw from the REO Account funds
necessary for the proper operation, management, insuring, leasing, maintenance
and disposition of any REO Property, but only to the extent of amounts on
deposit in the REO Account relating to such REO Property. On or prior to each
Determination Date, the Special Servicer shall withdraw from the REO Account and
remit to the Servicer, which shall deposit into the Certificate Account, the
Simon Collection Account or the Walgreens Collection Account, as applicable, the
aggregate of all amounts received in respect of each REO Property during the
most recently ended Due Period, net of (i) any withdrawals made out of such
amounts pursuant to the preceding sentence and (ii) Net Investment Earnings on
amounts on deposit in the REO Account; provided, however, that the Special
Servicer may retain in such REO Account, in accordance with the Servicing
Standards, such portion of such balance as may be necessary to maintain a
reasonable reserve for repairs, replacements, leasing, management and tenant
improvements and other related expenses for the related REO Property. In
addition, on or prior to each Determination Date, the Special Servicer shall
provide the Servicer with a written accounting of amounts remitted to the
Servicer for deposit in the Certificate Account, the Simon Collection Account
and the Walgreens Collection Account on such date. The Servicer shall apply all
such amounts as instructed by the Special Servicer on the Determination Date for
the related Distribution Date.
(d) The Special Servicer shall keep and maintain separate records,
on a property-by-property basis, for the purpose of accounting for all deposits
to, and withdrawals from, the REO Account pursuant to Section 3.16(b) or (c).
Section 3.17 Management of REO Property.
(a) If title to any REO Property is acquired, the Special Servicer
shall manage, consent, protect, operate and lease such REO Property for the
benefit of the Certificateholders and the Companion holders, as applicable, and
the Trustee (as holder of the Loan REMIC Regular Interests and the
Uncertificated Lower-Tier Interests) solely for the purpose of its timely
disposition and sale in a manner that does not cause such REO Property to fail
to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code or result in the receipt by the Trust Fund of any "income from
non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or
result in an Adverse REMIC Event. Subject to the foregoing, however, the Special
Servicer shall have full power and authority to do any and all things in
connection therewith as are in the best interests of and for the benefit of the
Certificateholders and the Trustee (as holder of the Loan REMIC Regular
Interests and the Uncertificated Lower-Tier Interests) (as determined by the
Special Servicer in its reasonable judgment in accordance with the Servicing
Standards). Subject to this Section 3.17, the Special Servicer may allow the
Trust Fund to earn "net income from foreclosure property" within the meaning of
Code Section 860G(d) if it determines that earning such income is in the best
interests of Certificateholders on a net after-tax basis as compared with net
leasing such REO Property or operating such REO Property on a different basis.
In connection therewith, the Special Servicer shall deposit or cause to be
deposited on a daily basis (and in no event later than 1 Business Day following
receipt of such funds) in the applicable REO Account all revenues received by it
with respect to each REO Property and the related REO Loan, and shall withdraw
from the REO Account, to the extent of amounts on deposit therein with respect
to such REO Property, funds necessary for the proper operation, management,
leasing and maintenance of such REO Property, including, without limitation:
(i) all insurance premiums due and payable in respect of such REO
Property;
(ii) all real estate taxes and assessments in respect of such REO
Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property, if
applicable; and
(iv) all costs and expenses necessary to maintain and lease such REO
Property.
To the extent that amounts on deposit in the REO Account in respect
of any REO Property are insufficient for the purposes set forth in clauses (i) -
(iv) above with respect to such REO Property, the Servicer or Special Servicer
shall advance from its own funds such amount as is necessary for such purposes
unless (as evidenced by an Officer's Certificate delivered to the Trustee, the
Paying Agent and the Directing Certificateholder) such advances would, if made,
constitute Nonrecoverable Servicing Advances.
(b) Without limiting the generality of the foregoing, the Special
Servicer shall not:
(i) permit the Trust Fund to enter into, renew or extend any New
Lease with respect to any REO Property, if the New Lease by its terms will
give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease
other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on any REO Property,
other than the completion of a building or other improvement thereon, and
then only if more than 10% of the construction of such building or other
improvement was completed before default on the related Mortgage Loan
became imminent, all within the meaning of Section 856(e)(4)(B) of the
Code; or
(iv) Directly Operate, or allow any other Person, other than an
Independent Contractor, to Directly Operate, any REO Property on any date
more than 90 days after its acquisition date;
unless, in any such case, the Special Servicer has obtained an Opinion of
Counsel (the cost of which shall be paid by the Servicer or Special Servicer as
a Servicing Advance) to the effect that such action will not cause such REO
Property to fail to qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code at any time that it is held by the Trust Fund, in
which case the Special Servicer may take such actions as are specified in such
Opinion of Counsel.
(c) The Special Servicer shall contract with any Independent
Contractor for the operation and management of any REO Property within 90 days
of the acquisition date thereof, provided that:
(i) the terms and conditions of any such contract may not be
inconsistent herewith and shall reflect an agreement reached at arm's
length;
(ii) the fees of such Independent Contractor (which shall be an
expense of the Trust Fund) shall be reasonable and customary in light of
the nature and locality of the Mortgaged Property;
(iii) any such contract shall require, or shall be administered to
require, that the Independent Contractor (A) pay all costs and expenses
incurred in connection with the operation and management of such REO
Property, including, without limitation, those listed in subsection (a)
hereof, and (B) remit all related revenues collected (net of its fees and
such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(c) relating to any
such contract or to actions taken through any such Independent Contractor
shall be deemed to relieve the Special Servicer of any of its duties and
obligations hereunder with respect to the operation and management of any
such REO Property; and
(v) the Special Servicer shall be obligated to manage and supervise
such Independent Contractor in accordance with the Servicing Standards.
The Special Servicer shall be entitled to enter into any agreement
with any Independent Contractor performing services for it related to its duties
and obligations hereunder for indemnification of the Special Servicer by such
Independent Contractor, and nothing in this Agreement shall be deemed to limit
or modify such indemnification.
(d) When and as necessary, the Special Servicer shall send to the
Trustee, the Paying Agent and the Servicer a statement prepared by the Special
Servicer setting forth the amount of net income or net loss, as determined for
federal income tax purposes, resulting from the operation and management of a
trade or business on, the furnishing or rendering of a non-customary service to
the tenants of, or the receipt of any other amount not constituting Rents from
Real Property in respect of, any REO Property in accordance with Sections
3.17(a) and 3.17(b).
Section 3.18 Sale of Defaulted Mortgage Loans and REO Properties.
(a) (i) Within thirty (30) days after a Mortgage Loan has become a
Specially Serviced Mortgage Loan with respect to any Defaulted Mortgage Loan,
the Special Servicer shall order an Appraisal (except for the 00/000 Xxxxxxx
Xxxxxx Mortgage Loan) (but shall not be required to be received) and within
thirty (30) days of receipt of the Appraisal shall determine the fair value of
such Defaulted Mortgage Loan in accordance with the Servicing Standards;
provided, however, that such determination shall be made without taking into
account any effect the restrictions on the sale of such Mortgage Loan contained
herein may have on the value of such Defaulted Mortgage Loan; provided, further,
that if the Special Servicer is then in the process of obtaining an Appraisal
with respect to the related Mortgaged Property, the Special Servicer shall make
its fair value determination as soon as reasonably practicable (but in any event
within thirty (30) days) after its receipt of such an Appraisal. The Special
Servicer shall determine the fair value of 00/000 Xxxxxxx Xxxxxx Mortgage Loan
pursuant to this Section 3.18(a)(i) by using an appraisal obtained by the 00/000
Xxxxxxx Xxxxxx Special Servicer (or if a new appraisal is not obtained, the most
recent appraisal in the possession of the 00/000 Xxxxxxx Xxxxxx Servicer or
00/000 Xxxxxxx Xxxxxx Special Servicer). The Special Servicer will, from time to
time, adjust its fair value determination based upon changed circumstances, new
information and other relevant factors, in each instance in accordance with the
Servicing Standards, but not less often than every 90 days. The Special Servicer
shall notify the Trustee, the Paying Agent, the Servicer and the
Certificateholder that owns the largest aggregate Certificate Balance of the
Controlling Class (the "Controlling Class Option Holder") promptly upon its fair
value determination and any adjustment thereto. The Special Servicer shall also
deliver to the Servicer, the Rating Agencies and the Controlling Class Option
Holder the most recent Appraisal of the related Mortgaged Property then in the
Special Servicer's possession, together with such other third-party reports and
other information then in the Special Servicer's possession that the Special
Servicer reasonably believes to be relevant to the fair value determination with
respect to such Mortgage Loan (such materials are, collectively, the
"Determination Information"). If the Special Servicer will not be determining
whether the Option Price represents fair value of the Defaulted Mortgage Loan,
pursuant to the second to last paragraph of Section 3.18(a)(iv), the Special
Servicer shall also deliver the Determination Information to the Trustee.
In determining the fair value of any Defaulted Mortgage Loan, the
Special Servicer shall take into account, among other factors, the period and
amount of the delinquency on such Mortgage Loan, the occupancy level and
physical condition of the related Mortgaged Property, the state of the local
economy in the area where the Mortgaged Property is located, and the time and
expense associated with a purchaser's foreclosing on the related Mortgaged
Property. In addition, the Special Servicer shall refer to the Determination
Information and all other relevant information obtained by it or otherwise
contained in the Mortgage File; provided that the Special Servicer shall take
account of any change in circumstances regarding the related Mortgaged Property
known to the Special Servicer that has occurred subsequent to, and that would,
in the Special Servicer's reasonable judgment, materially affect the value of
the related Mortgaged Property reflected in, the most recent related Appraisal.
Furthermore, the Special Servicer shall consider all available objective
third-party information obtained from generally available sources, as well as
information obtained from vendors providing real estate services to the Special
Servicer, concerning the market for distressed real estate loans and the real
estate market for the subject property type in the area where the related
Mortgaged Property is located. The Special Servicer may conclusively rely on the
opinion and reports of Independent third parties in making such determination.
(ii) Subject to the terms and conditions of clauses (d), (e), (f)
and (g) of this Section 3.18, at the time a Mortgage Loan becomes a
Defaulted Mortgage Loan, the Special Servicer and Controlling Class Option
Holder (each, together with their assignees, an "Option Holder") will have
an assignable option (the "Purchase Option") to purchase such Defaulted
Mortgage Loan from the Trust Fund (with respect to the Simon Mortgage
Loan, subject to Section 3.18(d)) at a price (the "Option Price") equal to
(A) if the Special Servicer has not yet determined the fair value of such
Defaulted Mortgage Loan, the sum of (1) the Stated Principal Balance
thereof, together with all accrued and unpaid interest thereon at the
Mortgage Rate, (2) any related Yield Maintenance Charge or prepayment
premium (except if the Purchase Option is exercised by the Controlling
Class Option Holder) then payable, to the extent the Special Servicer or
the Special Servicer's assignee is identified as the Person that will
acquire the related Mortgage Loan, (3) all related Advances for which the
Trust Fund or the related Servicer has not been reimbursed, together with
all accrued and unpaid interest thereon at the Advance rate, and (4) all
accrued Special Servicing Fees and additional Trust Fund expenses
allocable to such Defaulted Mortgage Loan whether recovered or unrecovered
from the related Mortgagor or (B) if the Special Servicer has determined
the fair value of such Defaulted Mortgage Loan pursuant to clause (i)
above, an amount at least equal to such fair value. Notwithstanding the
foregoing, for a period of sixty (60) days after it receives notice of the
Special Servicer's fair value determination (the "Controlling Class
Certificateholder's Option Period"), only the Purchase Option held by the
Controlling Class Option Holder may be exercised.
Any Option Holder may sell, transfer, assign or otherwise convey its
Purchase Option with respect to any Defaulted Mortgage Loan to any party
at any time after the related Mortgage Loan becomes a Defaulted Mortgage
Loan. The transferor of any Purchase Option shall notify the Trustee, the
Paying Agent and the Servicer of such transfer and such notice shall
include the transferee's name, address, telephone number, facsimile number
and appropriate contact person(s) and shall be acknowledged in writing by
the transferee.
Each Option Holder's Purchase Option with respect to any Defaulted
Mortgage Loan, if not exercised, will automatically terminate (A) once the
related Defaulted Mortgage Loan is no longer a Defaulted Mortgage Loan;
provided, however, that if such Mortgage Loan subsequently becomes a
Defaulted Mortgage Loan, the related Purchase Option shall again be
exercisable, (B) upon the acquisition, by or on behalf of the Trust Fund,
of title to the related Mortgaged Property through foreclosure or deed in
lieu of foreclosure, (C) upon the modification or pay-off, in full or at a
discount, of such Defaulted Mortgage Loan in connection with a workout, or
(D) subject to the Servicer's determination set forth in clause (iv)
below, upon another Option Holder's exercise of its Purchase Option with
respect to the related Mortgage Loan becoming effective pursuant to clause
(iii) below.
Any Option Holder that exercises a Purchase Option in respect of the
00/000 Xxxxxxx Xxxxxx Mortgage Loan shall become the "Note A Lender" under
the 00/000 Xxxxxxx Xxxxxx Xx-Xxxxxx Agreement and the 00/000 Xxxxxxx
Xxxxxx Servicing Agreement. Notwithstanding the foregoing, any Option
Holder seeking to exercise its Purchase Option in respect of the 00/000
Xxxxxxx Xxxxxx Mortgage Loan shall be required to satisfy the criteria of
an Institutional/Lender and any other conditions set forth in the 00/000
Xxxxxxx Xxxxxx Servicing Agreement Owner (as defined in the 00/000 Xxxxxxx
Xxxxxx Co-Lender Agreement) and any other conditions set forth in the
00/000 Xxxxxxx Xxxxxx Servicing Agreement.
(iii) Upon receipt of notice from the Special Servicer indicating
that a Mortgage Loan has become a Defaulted Mortgage Loan, and after the
expiration of the Controlling Class Certificateholder's Option Period,
each Option Holder (whether the original grantee of such option or any
subsequent transferee) may exercise its Purchase Option by providing the
Servicer, the Trustee and the Paying Agent written notice thereof (the
"Purchase Option Notice"), in the form of Exhibit J, which notice shall
identify the Person that, on its own or through an Affiliate, will acquire
the related Mortgage Loan upon closing and shall specify a cash exercise
price at least equal to the Option Price. The Purchase Option Notice shall
be delivered in the manner specified in Section 11.05. Immediately upon
receipt of such Purchase Option Notice, the Servicer shall notify the
remaining Option Holders that a Purchase Option has been exercised. Within
ten (10) days thereafter, each remaining Option Holder may submit to the
Servicer a Purchase Option Notice for the related Defaulted Mortgage Loan.
Upon the expiration of such ten (10) day period, or such sooner time as
all remaining Option Holders have submitted Purchase Option Notices, the
Servicer shall notify the Option Holder whose Purchase Option Notice
included the highest exercise price that the exercise of its Purchase
Option is effective. The Servicer shall also notify the Trustee of such
effective exercise. In the event that more than one Option Holder
exercises its Purchase Option at the same price, the Purchase Option
Notice first received by the Servicer shall be effective. The exercise of
any Purchase Option pursuant to this clause (iii) shall be irrevocable.
(iv) If the Special Servicer or any Controlling Class Option Holder,
or any of their respective Affiliates, is identified in the Purchase
Option Notice as the Person expected to acquire the related Mortgage Loan,
and the Option Price is based upon the Special Servicer's fair value
determination, the Servicer shall determine as soon as reasonably
practicable (and, in any event, within thirty (30) days) after the
Servicer has received the written notice and the Determination Information
to be provided to Servicer by Special Servicer under Section 3.18(a)(i),
whether the Option Price represents fair value for the Defaulted Mortgage
Loan; provided that, if the Special Servicer is then in the process of
obtaining a new Appraisal with respect to the related Mortgaged Property,
then the Servicer shall make its fair value determination with respect to
such Mortgage Loan as soon as reasonably practicable (but in any event
within thirty (30) days) after the Servicer's receipt of such new
Appraisal. Such fair value determination shall be made in accordance with
Servicing Standards. In determining the fair value of any Defaulted
Mortgage Loan, the Servicer shall take into account, among other factors,
the period and amount of the delinquency on such Mortgage Loan, the
occupancy level and physical condition of the related Mortgaged Property,
the state of the local economy in the area where the Mortgaged Property is
located, and the time and expense associated with a purchaser's
foreclosing on the related Mortgaged Property. In addition, the Servicer
shall refer to the Determination Information and all other relevant
information delivered to it by the Special Servicer or otherwise contained
in the Mortgage File; provided that the Servicer shall take account of any
change in circumstances regarding the related Mortgaged Property known to
the Servicer that has occurred subsequent to, and that would, in the
Servicer's reasonable judgment, materially affect the value of the related
Mortgaged Property reflected in, such appraisal. Furthermore, the Servicer
shall consider all available objective third-party information obtained
from generally available sources, as well as information obtained from
vendors providing real estate services to the Servicer, concerning the
market for distressed real estate loans and the real estate market for the
subject property type in the area where the related Mortgaged Property is
located. The Servicer may conclusively rely on the opinion and reports of
Independent third parties in making such determination. The Servicer shall
be entitled to receive out of the Certificate Account as additional
compensation a $2,500 fee for each determination made in accordance with
this clause (iv), provided, however, with respect to any Mortgage Loan,
the $2,500 fee shall be collectible once in any six-month period on such
Mortgage Loan. The reasonable cost of all third party consultants and
related reports, including but not limited to appraisals, inspection
reports and broker opinions of value, reasonably incurred by the Servicer
pursuant to this Section 3.18(a)(iv) shall constitute, and be reimbursable
as, Servicing Advances; provided that the Servicer may rely on the most
current Appraisal and property inspection report obtained for the related
Mortgaged Property pursuant to Section 3.12. The other parties to this
Agreement shall cooperate with all reasonable requests for information.
Notwithstanding anything contained in this clause (iv) to the
contrary, if the Special Servicer or the Controlling Class Option Holder,
or any of their respective Affiliates, is identified in the Purchase
Option Notice as the Person expected to acquire the related Mortgage Loan,
and the Option Price is based upon the Special Servicer's fair value
determination, and the Servicer and the Special Servicer are Affiliates,
the Trustee, subject to the Directing Certificateholder's reasonable prior
written consent, which consent shall not be unreasonably withheld, shall
designate an Independent third party, independent of the Directing
Certificateholder, to determine whether the Option Price represents fair
value for the Defaulted Mortgage Loan, in the manner and within the time
set forth in the first paragraph of this clause (iv). In the event that
the Trustee is called upon to designate such a third party to make such
determination, the Trustee will not assume any responsibility for such
third party's determination which determination the Trustee shall be
entitled to conclusively rely upon. The Servicer, at the direction of the
Trustee, may pay such third party a fee of up to $2,500 out of the
Certificate Account. The reasonable costs of all appraisals, inspection
reports and broker opinions of value, reasonably incurred by the Trustee
or any such third party pursuant to this paragraph shall be advanced by
the Servicer and shall constitute, and be reimbursable as, Servicing
Advances. In connection with the Trustee's designating an Independent
third party, the Special Servicer shall deliver to the Trustee for such
Independent third party's use the Determination Information.
In the event the Servicer or any designated third party, as
applicable, determines that the Option Price is less than the fair value
of the Defaulted Mortgage Loan, such party shall provide its
determination, together with all information and reports it relied upon in
making such determination, to the Special Servicer, who may then adjust
its fair value determination and, consequently, the Option Price, pursuant
to Section 3.18(a)(i). The Special Servicer shall promptly provide written
notice of any adjustment of the Option Price to the Option Holder whose
Purchase Option has been declared effective pursuant to clause (iii)
above. Upon receipt of such notice, such Option Holder shall have three
(3) Business Days to (i) accept the Option Price as adjusted and proceed
in accordance with clause (v) below, or (ii) reject the Option Price as
adjusted, in which case such Option Holder shall not be obligated to close
the purchase of the Defaulted Mortgage Loan. Upon notice from such Option
Holder, or the Special Servicer, that such Option Holder rejects the
Option Price as adjusted, the Servicer and the Trustee shall provide the
notices described in the second paragraph of clause (v) below and
thereafter any Option Holder may exercise its purchase option in
accordance with Section 3.18(a), at the Option Price as adjusted.
(v) The Option Holder whose Purchase Option is declared effective
pursuant to clause (iii) above shall be required to pay the purchase price
specified in its Purchase Option Notice to the Servicer within ten (10)
Business Days of its receipt of the Servicer's notice confirming that the
exercise of its Purchase Option is effective. Upon receipt of an Officer's
Certificate from the Servicer specifying the date for closing the purchase
of the related Defaulted Mortgage Loan, and the purchase price to be paid
therefor, the Trustee shall deliver at such closing for release to or at
the direction of such Option Holder, the related Mortgage File, and shall
execute and deliver such instruments of transfer or assignment, in each
case without recourse, as shall be provided to it by such Option Holder
and are reasonably necessary to vest in the purchaser or any designee
thereof the ownership of such Mortgage Loan on a servicing released basis.
In connection with any such purchase by any Person other than it, the
Special Servicer shall deliver the related Mortgage File to or at the
direction of the purchaser. In any case, the Servicer shall deposit the
purchase price (except that portion of any purchase price constituting
Gain-on-Sale Proceeds which shall be deposited in the Gain-on-Sale Reserve
Account) into the Certificate Account (or (a) in the case of the Simon
Mortgage Loan, the Simon Collection Account and (b) in the case of the
Walgreens Mortgage Loan, the Walgreens Collection Account) within one (1)
Business Day following the closing of the sale of the related Defaulted
Mortgage Loan.
The Servicer shall immediately notify the Trustee and the Special
Servicer upon the holder of the effective Purchase Option's failure to
remit the purchase price specified in its Purchase Option Notice pursuant
to this clause (v). Thereafter, the Trustee shall notify each Option
Holder of such failure and any Option Holder may then exercise its
purchase option in accordance with this Section 3.18(a).
(vi) Unless and until the Purchase Option with respect to any
Defaulted Mortgage Loan is exercised, the Special Servicer shall pursue
such other resolution strategies with respect to such Defaulted Mortgage
Loan, including, without limitation, workout and foreclosure, as the
Special Servicer may deem appropriate, consistent with the Asset Status
Report and Servicing Standards; provided, however, the Special Servicer
shall not sell any Defaulted Mortgage Loan (other than in connection with
exercise of a related Purchase Option).
(b) (i) The Special Servicer may purchase any REO Property (at the
Purchase Price therefor). The Special Servicer may also offer to sell to any
Person any REO Property, if and when the Special Servicer determines, consistent
with the Servicing Standards, that such a sale would be in the best economic
interests of the Trust Fund. The Special Servicer shall give the Paying Agent
and the Trustee, the Servicer and the Directing Certificateholder not less than
five (5) Business Days' prior written notice of the Purchase Price and its
intention to (i) purchase any REO Property at the Purchase Price therefor or
(ii) sell any REO Property, in which case the Special Servicer shall accept the
highest offer received from any Person for any REO Property in an amount at
least equal to the Purchase Price therefor. To the extent permitted by
applicable law, and subject to the Servicing Standards, the Servicer, an
Affiliate of the Servicer, the Special Servicer or an Affiliate of the Special
Servicer, or an employee of either of them may act as broker in connection with
the sale of any REO Property and may retain from the proceeds of such sale a
brokerage commission that does not exceed the commission that would have been
earned by an independent broker pursuant to a brokerage agreement entered into
at arm's length.
In the absence of any such offer, the Special Servicer shall accept
the highest offer received from any Person that is determined by the
Special Servicer to be a fair price for such REO Property, if the highest
bidder is a Person other than an Interested Person, or if such price is
determined to be such a price by the Trustee, if the highest bidder is an
Interested Person. Notwithstanding anything to the contrary herein,
neither the Trustee, in its individual capacity, nor any of its Affiliates
may make an offer for or purchase any REO Property pursuant hereto.
The Special Servicer shall not be obligated by either of the
foregoing paragraphs or otherwise to accept the highest offer if the
Special Servicer determines, in accordance with Servicing Standards, that
rejection of such offer would be in the best interests of the
Certificateholders. In addition, the Special Servicer may accept a lower
offer if it determines, in accordance with the Servicing Standards stated
in Section 3.01, that acceptance of such offer would be in the best
interests of the Certificateholders (for example, if the prospective buyer
making the lower offer is more likely to perform its obligations, or the
terms offered by the prospective buyer making the lower offer are more
favorable).
In determining whether any offer received from an Interested Person
represents a fair price for any REO Property, the Trustee and the Special
Servicer shall obtain and may conclusively rely on the opinion of an
Independent appraiser or other Independent expert in real estate matters
retained by the Trustee or the Special Servicer, as applicable, at the
expense of the Trust Fund. In determining whether any offer constitutes a
fair price for any REO Property, the Special Servicer or the Trustee (or,
if applicable, such appraiser) shall take into account, and any appraiser
or other expert in real estate matters shall be instructed to take into
account, as applicable, among other factors, the physical condition of
such REO Property, the state of the local economy and the Trust Fund's
obligation to comply with REMIC Provisions.
(ii) Subject to Servicing Standards, the Special Servicer shall act
on behalf of the Trust Fund in negotiating and taking any other action
necessary or appropriate in connection with the sale of any REO Property,
including the collection of all amounts payable in connection therewith. A
sale of any REO Property shall be without recourse to, or representation
or warranty by, the Trustee, the Paying Agent, the Depositor, any
Servicer, or the Trust Fund (except that any contract of sale and
assignment and conveyance documents may contain customary warranties of
title, so long as the only recourse for breach thereof is to the Trust
Fund) and, if consummated in accordance with the terms of this Agreement,
none of the Servicers, the Paying Agent, the Depositor nor the Trustee
shall have any liability to the Trust Fund or any Certificateholder with
respect to the purchase price therefor accepted by the Special Servicer or
the Trustee.
(c) Any sale of a Defaulted Mortgage Loan or any REO Property shall
be for cash only (unless changes in the REMIC Provisions or authoritative
interpretations thereof made or issued subsequent to the Startup Day allow a
sale for other consideration).
(d) If the Simon Mortgage Loan becomes a Defaulted Mortgage Loan,
the Special Servicer shall promptly notify in writing the Servicer, the Paying
Agent and the Trustee, and the Paying Agent, following its receipt of such
notice, shall promptly notify the Class SP Certificateholders. Upon receipt of
such notice, the Simon Representative, on behalf of the Class SP
Certificateholders, will have the first option, but not the obligation, to
purchase the Simon Mortgage Loan (including the Simon Non-Pooled Component) from
the Trust Fund at a price equal to the Option Price. If the Simon Representative
fails to exercise such option within 30 days after receipt of such notice, then
the Simon Mortgage Loan may be sold in accordance with this Section 3.18(a).
(e) Notwithstanding anything in this Section 3.18 to the contrary,
pursuant to the terms of the Long Island Industrial Intercreditor Agreement, the
00/000 Xxxxxxx Xxxxxx Servicing Agreement or the 00/000 Xxxxxxx Xxxxxx Co-Lender
Agreement, the related Companion Holder will have the right to purchase the
related AB Mortgage Loan or, in the case of the Long Island Industrial Mortgage
Loan, the related REO Property. Such right of the Companion Holder shall be
given priority over any provision described in this Section 3.18. If the Long
Island Industrial Mortgage Loan or REO Property is purchased by the Companion
Holder, repurchased by the applicable Mortgage Loan Seller or otherwise ceases
to be subject to this Agreement, the Long Island Industrial Companion Loan will
no longer be subject to this Agreement. None of the Trustee, the Paying Agent,
the Servicer nor the Trust Fund shall acquire a Companion Loan.
(f) Pursuant to the terms of a mezzanine loan agreement, if the
related mezzanine lender is granted the right to purchase the related Mortgage
Loan, the proceeds of such sale shall be included as liquidation proceeds. No
Liquidation Fee is payable if the mezzanine lender purchases the related
Mortgage Loan within the time period set forth in the related mezzanine loan
agreement.
(g) Notwithstanding anything in this Section 3.18 to the contrary,
pursuant to the terms of the ARC Portfolio Mortgage Loan documents, GMACCM will
have the right to purchase the related Mortgage Loan at the purchase price set
forth in the ARC Portfolio Mortgage Loan documents (as long as an event of
default has occurred and is continuing and the ARC Portfolio Mortgage Loan has
been accelerated). Such right of GMACCM shall be given priority over any
provision described in this Section 3.18.
Section 3.19 Additional Obligations of Servicer and Special
Servicer.
(a) The Servicer shall deliver all Compensating Interest Payments to
the Paying Agent for deposit in the Distribution Account on each P&I Advance
Date, without any right of reimbursement therefor.
(b) The Servicer shall provide to each Companion Holder any reports
or notices required to be delivered to such Companion Holder pursuant to the
related Intercreditor Agreement.
(c) The Servicer shall deliver to each Mortgage Loan Seller upon
request, without charge, no more than twice per calendar year a current list of
the Mortgagors relating to the Mortgage Loans where such Mortgage Loan Seller is
identified on the Mortgage Loan Schedule as the related Mortgage Loan Seller and
their respective billing addresses and telephone numbers; provided however, the
Servicer shall be under no obligation to provide any information not in its
possession in connection with the servicing of such Mortgage Loans.
(d) (i) With respect to the Simon Portfolio II Mortgage Loan (loan
number 1) and the ARC Portfolio A Mortgage Loan (loan number 3), if the Servicer
has discretion to consent to a change in the management of the related Mortgaged
Property pursuant to the related Mortgage Loan documents, then, the Servicer
shall not grant such consent until it has received prior written confirmation
from S&P that such change in management will not result in a downgrading,
qualification or withdrawal of the ratings then assigned to the Certificates.
(ii) With respect to the Simon Portfolio II Mortgage Loan (loan
number 1), if the Servicer has discretion to consent to any transfer of an
interest in the related borrower pursuant to the related Mortgage Loan
documents, the Servicer shall not grant such consent until it has received
prior written confirmation from S&P that such transfer will not result in
a downgrading, qualification or withdrawal of the ratings then assigned to
the Certificates.
(iii) With respect to the Long Island Industrial Portfolio II
Mortgage Loan (Loan Number 4), if the Servicer has discretion regarding
the ratings of any insurance carrier providing insurance at the related
Mortgaged Property, the Servicer shall require insurance carriers to be
rated "AA" by S&P, and if the amount of insurance exceeds $100,000,000 and
is by a syndicate of insurance carriers (a) of 5 or more, then 60% of such
insurance carriers shall be rated "AA" by S&P or (b) of 4 or less, then
75% must be rated "AA" by S&P.
Section 3.20 Modifications, Waivers, Amendments and Consents.
(a) Except as set forth in this Section 3.20(a), Section 3.20(i) and
Section 3.08, the Servicer shall not agree to any modification, waiver or
amendment of a Mortgage Loan, and, except as provided in the following
paragraph, Section 3.08(e), Section 3.08(f) and in Section 3.20(d), no Mortgage
Loan that is not a Specially Serviced Mortgage Loan may be modified, waived or
amended, and in any event, the Servicer shall not modify, waive or amend a
Mortgage Loan without the prior written consent of the Special Servicer except
to the extent provided in Section 3.08(f); provided that, the Servicer shall
forward to the Special Servicer requests to extend the maturity date of a
Mortgage Loan that is not a Specially Serviced Mortgage Loan and the Special
Servicer may approve such request; provided, further, that except as provided in
the following sentence, no such extension entered into pursuant to this Section
3.20(a) shall be for a period of more than twelve months from the original
maturity date of such Mortgage Loan or shall extend the maturity date beyond the
earlier of (i) two years prior to the Rated Final Distribution Date and (ii) in
the case of a Mortgage Loan secured by a leasehold estate and not also the
related fee interest, the date twenty years prior to the expiration of such
leasehold estate. If such extension would extend the Maturity Date of a Mortgage
Loan for more than twelve months from and after the original maturity date of
such Mortgage Loan and the Mortgage Loan is not in default or default with
respect thereto is not reasonably foreseeable, the Special Servicer must provide
the Trustee, the Paying Agent, the Servicer and the Directing Certificateholders
with an opinion of counsel (at the expense of the related Mortgagor) that such
extension would not constitute a "significant modification" of the Mortgage Loan
within the meaning of Treasury Regulations Section 1.860G-2(b). Notwithstanding
the foregoing, the Servicer, without the consent of the Special Servicer, may
modify or amend the terms of any Mortgage Loan in order to (i) cure any
ambiguity or mistake therein or (ii) correct or supplement any provisions
therein which may be inconsistent with any other provisions therein or correct
any error, provided that, if the Mortgage Loan is not in default or default with
respect thereto is not reasonably foreseeable, such modification or amendment
would not be a "significant modification" of the Mortgage Loan within the
meaning of Treasury Regulations Section 1.860G-2(b).
Neither the Servicer nor the Special Servicer shall permit the
substitution of any Mortgaged Property (or any portion thereof) for one or more
other parcels of real property at any time the Mortgage Loan is not in default
pursuant to the terms of the related Mortgage Loan documents or default with
respect thereto is not reasonably foreseeable unless either (i) the Servicer or
the Special Servicer, as applicable, obtains from Xxxxx'x and S&P (and delivers
to the Directing Certificateholder) a written confirmation that such
substitution will not cause a downgrading, qualification or withdrawal of the
then current rating assigned to any of the Certificates and (ii) either (a) such
substitution is at the unilateral option of the Mortgagor or otherwise occurs
automatically pursuant to the terms of the Mortgage Loan in effect on the
Startup Day, within the meaning of Treasury Regulations Section 1.1001-3, or (b)
it has received an Opinion of Counsel to the effect that such substitution would
not be a "significant modification" of the Mortgage Loan within the meaning of
Treasury Regulations Section 1.860G-2(b).
(b) If the Special Servicer determines that a modification, waiver
or amendment (including, without limitation, the forgiveness or deferral of
interest or principal or the substitution of collateral pursuant to the terms of
the Mortgage Loan or otherwise, the release of collateral or the pledge of
additional collateral) of the terms of a Specially Serviced Mortgage Loan with
respect to which a payment default or other material default has occurred or a
payment default or other material default is, in the Special Servicer's
judgment, reasonably foreseeable (as evidenced by an Officer's Certificate of
the Special Servicer), is reasonably likely to produce a greater recovery on a
net present value basis (the relevant discounting to be performed at the related
Mortgage Rate) than liquidation of such Specially Serviced Mortgage Loan, then
the Special Servicer may agree to a modification, waiver or amendment of such
Specially Serviced Mortgage Loan, subject to the provisions of this Section
3.20(b) and Section 3.20(c) and subject to the approval of the Directing
Certificateholder as provided in Section 3.21.
The Special Servicer shall use its reasonable efforts to the extent
possible to cause each Specially Serviced Mortgage Loan to fully amortize prior
to the Rated Final Distribution Date and shall not agree to a modification,
waiver or amendment of any term of any Specially Serviced Mortgage Loan if such
modification, waiver or amendment would:
(i) extend the maturity date of any such Specially Serviced Mortgage
Loan to a date occurring later than the earlier of (a) two years prior to
the Rated Final Distribution Date and (b) if such Specially Serviced
Mortgage Loan is secured by a leasehold estate and not also the related
fee interest, the date occurring twenty years prior to the expiration of
such leasehold; or
(ii) provide for the deferral of interest unless (a) interest
accrues thereon, generally, at the related Mortgage Rate and (b) the
aggregate amount of such deferred interest does not exceed 10% of the
unpaid principal balance of the Specially Serviced Mortgage Loan.
(c) Any provision of this Section 3.20 to the contrary
notwithstanding, except when a Mortgage Loan is in default or default with
respect thereto is reasonably foreseeable, no fee described in this paragraph
shall be collected by any Servicer or Special Servicer from a Mortgagor (or on
behalf of the Mortgagor) in conjunction with any consent or any modification,
waiver or amendment of a Mortgage Loan (unless the amount thereof is specified
in the related Mortgage Note) if the collection of such fee would cause such
consent, modification, waiver or amendment to be a "significant modification" of
the Mortgage Note within the meaning of Treasury Regulations Section
1.860G-2(b).
(d) To the extent consistent with this Agreement, the Servicer or
the Special Servicer may agree to any waiver, modification or amendment of a
Mortgage Loan that is not in default or as to which default is not reasonably
foreseeable only if it provides the Trustee with an Opinion of Counsel (at the
expense of the related Mortgagor or such other Person requesting such
modification or, if such expense cannot be collected from the related Mortgagor
or such other Person, to be paid by the Servicer or Special Servicer as a
Servicing Advance) to the effect that the contemplated waiver, modification or
amendment (i) will not be a "significant modification" of the Mortgage Loan
within the meaning of Treasury Regulations Section 1.860G-2(b) and (ii) will not
cause (x) any of the Loan REMICs, the Lower-Tier REMIC or the Upper-Tier REMIC
to fail to qualify as a REMIC for purposes of the Code or (y) any of the Loan
REMICs, the Lower-Tier REMIC or the Upper-Tier REMIC to be subject to any tax
under the REMIC Provisions. Notwithstanding the foregoing, neither the Servicer
nor the Special Servicer may waive the payment of any Yield Maintenance Charge
or the requirement that any prepayment of a Mortgage Loan be made on a Due Date,
or if not made on a Due Date, be accompanied by all interest that would be due
on the next Due Date with respect to any Mortgage Loan that is not a Specially
Serviced Mortgage Loan.
(e) In the event of a modification which creates Mortgage Deferred
Interest, such Mortgage Deferred Interest will be allocated to reduce the
Distributable Certificate Interest of the Class or Classes of Certificates
pursuant to Section 4.05.
(f) Subject to Section 3.20(c), the Servicer and the Special
Servicer each may, as a condition to its granting any request by a Mortgagor for
consent, modification (including extensions), waiver or indulgence or any other
matter or thing, the granting of which is within the Servicer's or the Special
Servicer's, as the case may be, discretion pursuant to the terms of the
instruments evidencing or securing the related Mortgage Loan and is permitted by
the terms of this Agreement, require that such Mortgagor pay to the Servicer or
the Special Servicer, as the case may be, as additional servicing compensation,
a reasonable or customary fee, for the additional services performed in
connection with such request.
(g) All modifications (including extensions), waivers and amendments
of the Mortgage Loans entered into pursuant to this Section 3.20 shall be in
writing, signed by the Servicer or the Special Servicer, as the case may be, and
the related Mortgagor (and by any guarantor of the related Mortgage Loan, if
such guarantor's signature is required by the Servicer or the Special Servicer
in accordance with the Servicing Standards).
(h) Each of the Servicer and the Special Servicer shall notify the
Rating Agencies, the Trustee, the Directing Certificateholder, the Mortgage Loan
Sellers (if such Mortgage Loan Seller is not a Servicer or Sub-Servicer of such
Mortgage Loan or the Directing Certificateholder) and each other in writing of
any modification, waiver or amendment of any term of any Mortgage Loan and the
date thereof, and shall deliver to the Trustee or the related Custodian with a
copy to the Servicer (if such notice is being delivered by the Special Servicer)
for deposit in the related Mortgage File, an original counterpart of the
agreement relating to such modification, waiver or amendment, promptly (and in
any event within 10 Business Days) following the execution thereof. Following
receipt of the Servicer's or the Special Servicer's, as applicable, delivery of
the aforesaid modification, waiver or amendment to the Paying Agent, the Paying
Agent shall forward a copy thereof to each Holder of a Class F, Class G, Class
H, Class J, Class K, Class L, Class M, Class N and Class NR Certificate, and, if
such modification, waiver or amendment is with respect to the Simon Mortgage
Loan, to each Holder of a Class SP-1, Class SP-2 and Class SP-3 Certificate.
(i) Notwithstanding the foregoing, neither the Servicer, for a
Non-Specially Serviced Mortgage Loan, nor the Special Servicer, for a Specially
Serviced Mortgage Loan, shall permit the substitution of any Mortgaged Property
pursuant to the defeasance provisions of any Mortgage Loan (or any portion
thereof) unless such defeasance complies with Treasury Regulations Section
1.860G-2(a)(8) and the Servicer or the Special Servicer, as applicable, has
received (i) a certificate of an Independent certified public accountant to the
effect that such substituted property will provide cash flows sufficient to meet
all payments of interest and principal (including payments at maturity or any
earlier required payment in full of the outstanding principal balance of such
Mortgage Loan) on such Mortgage Loan in compliance with the requirements of the
terms of the related Mortgage Loan documents and (ii) one or more Opinions of
Counsel (at the expense of the related Mortgagor) to the effect that the
Trustee, on behalf of the Trust Fund, will have a first priority perfected
security interest in such substituted Mortgaged Property; provided, however,
that, to the extent consistent with the related Mortgage Loan documents, the
related Mortgagor shall pay the cost of any such opinion as a condition to
granting such defeasance., To the extent consistent with the related Mortgage
Loan documents, the Mortgagor shall establish a single purpose entity, provided
that one single purpose entity can hold the assets for more than one Mortgagor
(if Mortgagors are related), to act as a successor Mortgagor. To the extent
permissible under the related Mortgage Loan documents, the Servicer shall use
its reasonable efforts to require the related Mortgagor to pay all costs of such
defeasance, including but not limited to the cost of maintaining any successor
Mortgagor, and the Servicer shall obtain, at the expense of the related
Mortgagor, written confirmation from the Rating Agencies that such defeasance
will not cause the downgrade, withdrawal or modification of the then current
ratings of the Certificates; provided, however, that (a) the Servicer shall not
be required to obtain such written confirmation from S&P to the extent that the
Servicer has delivered a Defeasance Certificate substantially in the form of
Exhibit W hereto unless such Mortgage Loan (or Mortgage Loans if the single
purpose entity established pursuant to clause (iii) above holds the assets for
more than one Mortgagor) at the time of such defeasance is (A) one of the ten
largest Mortgage Loans by Stated Principal Balance, (B) a Mortgage Loan with a
Cut-off Date Principal Balance greater than $20,000,000, or (C) a Mortgage Loan
that represents 5% or more of the Cut-off Date Principal Balance of all Mortgage
Loans and (b) the Servicer shall not be required to obtain the Xxxxx'x
confirmation referenced in clause (v) above with respect to any Mortgage Loan
which has a Stated Principal Balance less than $20,000,000 and represents less
than 5% of the Stated Principal Balance of the Mortgage Pool, so long as such
Mortgage Loan is not one of the ten largest Mortgage Loans by Stated Principal
Balance.
(j) If required under the related Mortgage Loan documents or if
otherwise consistent with the Servicing Standards, the Servicer shall establish
and maintain one or more accounts (the "Defeasance Accounts"), which shall be
Eligible Accounts, into which all payments received by the Servicer from any
defeasance collateral substituted for any Mortgaged Property shall be deposited
and retained, and shall administer such Defeasance Accounts in accordance with
the Mortgage Loan documents. Notwithstanding the foregoing, in no event shall
the Servicer permit such amounts to be maintained in the Defeasance Account for
a period in excess of 90 days, unless such amounts are reinvested by the
Servicer in "government securities" within the meaning of Section 2(a)(16) of
the Investment Company Act of 1940, or any other securities that comply with
Treasury Regulations Section 1.860G-2(a)(8). To the extent not required or
permitted to be placed in a separate account, the Servicer shall deposit all
payments received by it from defeasance collateral substituted for any Mortgaged
Property into the Certificate Account and treat any such payments as payments
made on the Mortgage Loan in advance of its Due Date in accordance with clause
(a)(i) of the definition of Available Distribution Amount, and not as a
prepayment of the related Mortgage Loan. Notwithstanding anything herein to the
contrary, in no event shall the Servicer permit such amounts to be maintained in
the Certificate Account for a period in excess of 365 days.
Section 3.21 Transfer of Servicing Between Servicer and Special
Servicer; Recordkeeping; Asset Status Report.
(a) Upon determining that a Servicing Transfer Event has occurred
with respect to any Mortgage Loan, the Servicer shall promptly give notice to
the Special Servicer and the Directing Certificateholder thereof, and shall
deliver the related Mortgage File and Servicing File to the Special Servicer and
shall use its reasonable efforts to provide the Special Servicer with all
information, documents and records (including records stored electronically on
computer tapes, magnetic discs and the like) relating to the Mortgage Loan (and,
if applicable, the related Companion Loan) either in the Servicer's possession
or otherwise available to the Servicer without undue burden or expense, and
reasonably requested by the Special Servicer to enable it to assume its
functions hereunder with respect thereto. The Servicer shall use its reasonable
efforts to comply with the preceding sentence within 5 Business Days of the
occurrence of each related Servicing Transfer Event and in any event shall
continue to act as Servicer and administrator of such Mortgage Loan until the
Special Servicer has commenced the servicing of such Mortgage Loan and, if
applicable, the related Companion Loan. The obligation of the Special Servicer
to service the Mortgage Loan or Companion Loan shall commence upon the delivery
of the notice of a Servicing Transfer Event. The Servicer shall deliver to the
Directing Certificateholder (and in the case of the Simon Mortgage Loan, the
Simon Representative) and the Paying Agent a copy of the notice of such
Servicing Transfer Event provided by the Servicer to the Special Servicer
pursuant to this Section.
Upon determining that a Specially Serviced Mortgage Loan (other than
an REO Loan) has become current and has remained current for three consecutive
full and timely Monthly Payments (provided that (i) no additional Servicing
Transfer Event is foreseeable in the reasonable judgment of the Special
Servicer, and (ii) for such purposes taking into account any modification or
amendment of such Mortgage Loan and, if applicable, the related Companion Loan),
and that no other Servicing Transfer Event is continuing with respect thereto,
the Special Servicer shall immediately give notice thereof to the Servicer and
the Directing Certificateholder (and in the case of the Simon Mortgage Loan, the
Simon Representative), and shall return the related Mortgage File and Servicing
File to the Servicer (or copies thereof if copies only were delivered to the
Special Servicer) and upon giving such notice, and returning such Mortgage File
and Servicing File to the Servicer, the Special Servicer's obligation to service
such Corrected Mortgage Loan shall terminate and the obligations of the Servicer
to service and administer such Mortgage Loan and, if applicable, the related
Companion Loan, shall recommence.
(b) In servicing any Specially Serviced Mortgage Loans, the Special
Servicer will provide to the Trustee originals of documents included within the
definition of "Mortgage File" for inclusion in the related Mortgage File (with a
copy of each such original to the Servicer), and provide the Servicer with
copies of any additional related Mortgage Loan information including
correspondence with the related Mortgagor.
(c) Notwithstanding the provisions of Section 3.12(d), the Servicer
shall maintain ongoing payment records with respect to each of the Specially
Serviced Mortgage Loans and REO Properties and shall provide the Special
Servicer with any information in its possession reasonably required by the
Special Servicer to perform its duties under this Agreement, provided that the
Servicer shall only be required to maintain in such records to the extent the
Special Servicer has provided such information to the Servicer.
(d) No later than 45 days after a Servicing Transfer Event for a
Mortgage Loan and, if applicable, the related Companion Loan, the Special
Servicer shall deliver to the Servicer, the Mortgage Loan Sellers, each Rating
Agency, the Paying Agent, the Trustee and the Directing Certificateholder, or
with respect to the Simon Mortgage Loan, the Simon Representative, a report (the
"Asset Status Report") with respect to such Mortgage Loan and the related
Mortgaged Property; provided, however, the Special Servicer shall not be
required to deliver an Asset Status Report to the Directing Certificateholder if
they are the same entity. Such Asset Status Report shall set forth the following
information to the extent reasonably determinable:
(i) summary of the status of such Specially Serviced Mortgage Loan
and any negotiations with the related Mortgagor;
(ii) a discussion of the legal and environmental considerations
reasonably known to the Special Servicer, consistent with the Servicing
Standards, that are applicable to the exercise of remedies as aforesaid
and to the enforcement of any related guaranties or other collateral for
the related Mortgage Loan and whether outside legal counsel has been
retained;
(iii) the most current rent roll and income or operating statement
available for the related Mortgaged Property;
(iv) the Special Servicer's recommendations on how such Specially
Serviced Mortgage Loan might be returned to performing status and returned
to the Servicer for regular servicing or otherwise realized upon;
(v) a copy of the last obtained Appraisal of the Mortgaged Property;
and
(vi) such other information as the Special Servicer deems relevant
in light of the Servicing Standards.
If within ten Business Days of receiving an Asset Status Report, the
Directing Certificateholder (or with respect to the Simon Mortgage Loan, the
Simon Representative) does not disapprove such Asset Status Report in writing,
the Special Servicer shall implement the recommended action as outlined in such
Asset Status Report; provided, however, that the Special Servicer may not take
any action that is contrary to applicable law, the Servicing Standards or the
terms of the applicable Mortgage Loan documents. If the Directing
Certificateholder (or with respect to the Simon Mortgage Loan, the Simon
Representative) disapproves such Asset Status Report within 10 Business Days of
receipt, the Special Servicer will revise such Asset Status Report and deliver
to the Directing Certificateholder (or with respect to the Simon Mortgage Loan,
the Simon Representative), the Rating Agencies, the Mortgage Loan Sellers and
the Servicer a new Asset Status Report as soon as practicable, but in no event
later than 30 days after such disapproval. The Special Servicer shall revise
such Asset Status Report as described above in this Section 3.21(d) until the
Directing Certificateholder (or with respect to the Simon Mortgage Loan, the
Simon Representative) shall fail to disapprove such revised Asset Status Report
in writing within ten (10) Business Days of receiving such revised Asset Status
Report or until the Special Servicer makes one of the determinations described
below. Notwithstanding the foregoing, in the event the Directing
Certificateholder (or with respect to the Simon Mortgage Loan, the Simon
Representative) and the Special Servicer have been unable to agree upon an Asset
Status Report with respect to a Specially Serviced Mortgage Loan within 90 days
of the Directing Certificateholder's (or 60 days with respect to the Simon
Mortgage Loan, the Simon Representative) receipt of the initial Asset Status
Report, the Special Servicer shall implement the actions described in the most
recent Asset Status Report submitted to the Directing Certificateholder (or with
respect to the Simon Mortgage Loan, the Simon Representative) by the Special
Servicer. The Special Servicer may, from time to time, modify any Asset Status
Report it has previously delivered and implement such report, provided such
report shall have been prepared, reviewed and not rejected pursuant to the terms
of this Section. Notwithstanding the foregoing, the Special Servicer (i) may,
following the occurrence of an extraordinary event with respect to the related
Mortgaged Property, take any action set forth in such Asset Status Report before
the expiration of a ten (10) Business Day period if the Special Servicer has
reasonably determined that failure to take such action would materially and
adversely affect the interests of the Certificateholders or, if a Loan Pair is
involved, the Companion Holder, and it has made a reasonable effort to contact
the Directing Certificateholder (or with respect to the Simon Mortgage Loan, the
Simon Representative) and (ii) in any case, shall determine whether such
affirmative disapproval is not in the best interest of all the
Certificateholders pursuant to the Servicing Standards.
The Special Servicer shall have the authority to meet with the
Mortgagor for any Specially Serviced Mortgage Loan and take such actions
consistent with the Servicing Standards and the related Asset Status Report. The
Special Servicer shall not take any action inconsistent with the related Asset
Status Report, unless such action would be required in order to act in
accordance with the Servicing Standards.
No direction of the Directing Certificateholder (or with respect to
the Simon Mortgage Loan, the Simon Representative) shall (a) require or cause
the Special Servicer to violate the terms of a Specially Serviced Mortgage Loan,
applicable law or any provision of this Agreement, including the Special
Servicer's obligation to act in accordance with the Servicing Standards and to
maintain the REMIC status of each Loan REMIC, the Lower-Tier REMIC and the
Upper-Tier REMIC, or (b) result in the imposition of a "prohibited transaction"
or "prohibited contribution" tax under the REMIC Provisions, or (c) expose the
Servicer, the Special Servicer, the Depositor, the Mortgage Loan Sellers, the
Trust Fund, the Paying Agent the Trustee or their respective officers,
directors, employees or agents to any claim, suit or liability or (d) materially
expand the scope of the Special Servicer's, Trustee's or the Servicer's
responsibilities under this Agreement.
(e) Upon receiving notice of (i) the occurrence of the events
described in clause (iv) of the definition of Servicing Transfer Event (without
regard to the 60 day period set forth therein), or (ii) the request by a
Mortgagor for the amendment or modification of a Mortgage Loan which is not a
Specially Serviced Mortgage Loan for which the Special Servicer is responsible
for such amendment or modification pursuant to Section 3.20, the Servicer shall
immediately give notice thereof, and shall deliver copies of the related
Mortgage File and Servicing File (or the applicable portions thereof) to the
Special Servicer and shall use its reasonable efforts to provide the Special
Servicer with all information relating to the Mortgage Loan and reasonably
requested by the Special Servicer to enable it to negotiate with the related
Mortgagor and prepare for any such proceedings. The Servicer shall use its
reasonable efforts to comply with the preceding sentence within 5 Business Days
of the occurrence of each such event. Notwithstanding the foregoing, the
occurrence of any event described in clause (i) or (ii) above shall not in and
of itself be considered a Servicing Transfer Event and, unless an actual
Servicing Transfer Event has occurred with respect to such Mortgage Loan, the
Servicer shall continue to act as Servicer and administrator of such Mortgage
Loan and no fees shall be payable to the Special Servicer with respect to such
Mortgage Loan other than any related modification, assumption or extension fees
provided for herein; provided, however, that in the event a Mortgage Loan
subject to clause (i) above becomes a Specially Serviced Mortgage Loan, such
Mortgage Loan shall be deemed to have been a Specially Serviced Mortgage Loan
upon the occurrence of the event described in clause (i) above and a Special
Servicing Fee shall be paid with respect thereto.
Section 3.22 Sub-Servicing Agreements.
(a) The Servicer may enter into Sub-Servicing Agreements to provide
for the performance by third parties of any or all of its respective obligations
under Articles III and IV hereof; provided that the Sub-Servicing Agreement as
amended or modified: (i) is consistent with this Agreement in all material
respects and requires the Sub-Servicer to comply with all of the applicable
conditions of this Agreement; (ii) provides that if the Servicer shall for any
reason no longer act in such capacity hereunder (including, without limitation,
by reason of an Event of Default), the Trustee or its designee shall thereupon
assume all of the rights and, except to the extent they arose prior to the date
of assumption, obligations of the Servicer under such agreement, or,
alternatively, may act in accordance with Section 7.02 hereof under the
circumstances described therein (subject to Section 3.22(g) hereof); (iii)
provides that the Trustee for the benefit of the Certificateholders and the
Trustee (as holder of the Uncertificated Lower-Tier Interests and the Loan REMIC
Regular Interests) shall be a third party beneficiary under such Sub-Servicing
Agreement, but that (except to the extent the Trustee or its designee assumes
the obligations of the Servicer thereunder as contemplated by the immediately
preceding clause (ii)) none of the Trust Fund, the Trustee, the Paying Agent any
successor Servicer or any Certificateholder shall have any duties under such
Sub-Servicing Agreement or any liabilities arising therefrom; (iv) permits any
purchaser of a Mortgage Loan pursuant to this Agreement to terminate such
Sub-Servicing Agreement with respect to such purchased Mortgage Loan at its
option and without penalty; provided, however, that the Initial Sub-Servicing
Agreements may only be terminated by the Trustee or its designee as contemplated
by Section 3.22(g) hereof and in such additional manner as is provided in such
Sub-Servicing Agreement; and (v) does not permit the Sub-Servicer any direct
rights of indemnification that may be satisfied out of assets of the Trust Fund.
Any successor Servicer hereunder shall, upon becoming successor Servicer, be
assigned and shall assume any Sub-Servicing Agreements from the predecessor
Servicer (subject to Section 3.22(g) hereof). In addition, each Sub-Servicing
Agreement entered into by the Servicer may provide that the obligations of the
Sub-Servicer thereunder shall terminate with respect to any Mortgage Loan
serviced thereunder at the time such Mortgage Loan becomes a Specially Serviced
Mortgage Loan; provided, however, that the Sub-Servicing Agreement may provide
that the Sub-Servicer will continue to make all Advances and calculations and
prepare all reports required under the Sub-Servicing Agreement with respect to
Specially Serviced Mortgage Loans and continue to collect its Primary Servicing
Fees as if no Servicing Transfer Event had occurred and with respect to REO
Properties (and the related REO Loans) as if no REO Acquisition had occurred and
to render such incidental services with respect to such Specially Serviced
Mortgage Loans and REO Properties as are specifically provided for in such
Sub-Servicing Agreement. The Servicer shall deliver to the Trustee copies of all
Sub-Servicing Agreements, and any amendments thereto and modifications thereof,
entered into by it promptly upon its execution and delivery of such documents.
References in this Agreement to actions taken or to be taken by the Servicer
include actions taken or to be taken by a Sub-Servicer on behalf of the
Servicer; and, in connection therewith, all amounts advanced by any Sub-Servicer
to satisfy the obligations of the Servicer hereunder to make Advances shall be
deemed to have been advanced by the Servicer out of its own funds and,
accordingly, such Advances shall be recoverable by such Sub-Servicer in the same
manner and out of the same funds as if such Sub-Servicer were the Servicer, and,
for so long as they are outstanding, such Advances shall accrue interest in
accordance with Section 3.03(d), such interest to be allocable between the
Servicer and such Sub-Servicer pursuant to the terms of the Sub-Servicing
Agreement. For purposes of this Agreement, the Servicer shall be deemed to have
received any payment when a Sub-Servicer retained by it receives such payment.
The Servicer shall notify the Special Servicer, the Trustee and the Depositor in
writing promptly of the appointment by it of any Sub-Servicer. Except as
otherwise provided herein, the Special Servicer may not enter into Sub-Servicing
Agreements and may not assign any of its servicing obligations hereunder.
(b) Each Sub-Servicer shall be authorized to transact business in
the state or states in which the related Mortgaged Properties it is to service
are situated, if and to the extent required by applicable law to the extent
necessary to ensure the enforceability of the related Mortgage Loans or the
compliance with its obligations under the Sub-Servicing Agreement and the
Servicer's obligations under this Agreement.
(c) As part of its servicing activities hereunder, the Servicer, for
the benefit of the Trustee and the Certificateholders, shall (at no expense to
the Trustee, the Certificateholders or the Trust Fund) monitor the performance
and enforce the obligations of each Sub-Servicer under the related Sub-Servicing
Agreement. Such enforcement, including, without limitation, the legal
prosecution of claims, termination of Sub-Servicing Agreements in accordance
with their respective terms and the pursuit of other appropriate remedies, shall
be in such form and carried out to such an extent and at such time as is in
accordance with the Servicing Standards. The Servicer shall have the right to
remove a Sub-Servicer retained by it in accordance with the terms of the related
Sub-Servicing Agreement.
(d) In the event the Trustee or its designee becomes successor
Servicer and assumes the rights and obligations of the Servicer under any
Sub-Servicing Agreement, the Servicer, at its expense, shall deliver to the
assuming party all documents and records relating to such Sub-Servicing
Agreement and the Mortgage Loans then being serviced thereunder and an
accounting of amounts collected and held on behalf of it thereunder, and
otherwise use reasonable efforts to effect the orderly and efficient transfer of
the Sub-Servicing Agreement to the assuming party.
(e) Notwithstanding the provisions of any Sub-Servicing Agreement
and this Section 3.22, the Servicer shall remain obligated and liable to the
Trustee and the Certificateholders for the performance of its obligations and
duties under this Agreement in accordance with the provisions hereof to the same
extent and under the same terms and conditions as if it alone were servicing and
administering the Mortgage Loans for which it is responsible, and the Servicer
shall pay the fees of any Sub-Servicer thereunder from its own funds. In no
event shall the Trust Fund bear any termination fee required to be paid to any
Sub-Servicer as a result of such Sub-Servicer's termination under any
Sub-Servicing Agreement.
(f) The Trustee shall furnish to any Sub-Servicer any powers of
attorney and other documents necessary or appropriate to enable such
Sub-Servicer to carry out its servicing and administrative duties under any
Sub-Servicing Agreement; provided, however, that the Trustee shall not be held
liable for any negligence, and shall be indemnified by the Sub-Servicer, with
respect to, or misuse of, any such power of attorney by a Sub-Servicer.
(g) Each Sub-Servicing Agreement shall provide that, in the event
the Trustee or any other Person becomes successor Servicer, the Trustee or such
successor Servicer shall have the right to terminate such Sub-Servicing
Agreement with or without cause and without a fee. Notwithstanding the
foregoing, the Trustee and any successor Servicer shall assume the Sub-Servicing
Agreements in effect as of the date hereof (the "Initial Sub-Servicing
Agreements") unless the related Sub-Servicer (an "Initial Sub-Servicer") has
been terminated in accordance with this Section 3.22(g). In the event any
Initial Sub-Servicer is not an acceptable servicer to Xxxxx'x and is not
included on S&P's approved servicer list at the time the Trustee or a successor
Servicer becomes successor Servicer, such Initial Sub-Servicer shall have 30
days after notice from the Trustee or the successor Servicer to cure such
failure. If an Initial Sub-Servicer fails to cure such failure, the Trustee or
the successor Servicer may terminate the Initial Sub-Servicing Agreement.
(h) The Special Servicer shall comply with the terms of each such
Sub-Servicing Agreement to the extent the terms thereof are not inconsistent
with the terms of this Agreement and the Special Servicer's obligations
hereunder. With respect to Mortgage Loans subject to a Sub-Servicing Agreement,
the Special Servicer shall, among other things, remit amounts, deliver reports
and information, and afford access to facilities and information to the related
Sub-Servicer that would be required to be remitted, delivered or afforded, as
the case may be, to the Servicer pursuant to the terms hereof within a
sufficient period of time to allow the Sub-Servicer to fulfill its obligations
under such Sub-Servicing Agreement and in no event later than 1 Business Day
prior to the applicable Determination Date (or such other date as specified
herein).
(i) Notwithstanding any other provision of this Agreement, the
Special Servicer shall not enter into any sub-servicing agreement which provides
for the performance by third parties of any or all of its obligations herein.
Section 3.23 Representations, Warranties and Covenants of the
Servicer.
(a) The Servicer hereby represents and warrants to the Trustee, for
its own benefit and the benefit of the Certificateholders, and to the Depositor,
the Paying Agent and the Special Servicer, as of the Closing Date, that:
(i) The Servicer is a national banking association, duly organized,
validly existing and in good standing under the laws of the United States
of America, and the 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 Servicer,
and the performance and compliance with the terms of this Agreement by the
Servicer, does not (A) violate the Servicer's organizational documents or
(B) constitute a default (or an event which, with notice or lapse of time,
or both, would constitute a default) under, or result in the breach of,
any material agreement or other material instrument to which it is a party
or which is applicable to it or any of its assets, or (C) violate any law,
rule, regulation, order, judgment or decree to which the Servicer or its
property is subject, which, in the case of either (B) or (C), is likely to
materially and adversely affect either the ability of the Servicer to
perform its obligations under this Agreement or its financial condition;
(iii) The Servicer has the full power and authority to enter into
and consummate all transactions to be performed by it contemplated by this
Agreement, has duly authorized the execution, delivery and performance by
it of this Agreement, and has duly executed and delivered this Agreement;
(iv) This Agreement, assuming due authorization, execution and
delivery by the Trustee, the Paying Agent the Special Servicer and the
Depositor, constitutes a valid, legal and binding obligation of the
Servicer, enforceable against the Servicer in accordance with the terms
hereof, subject to applicable bankruptcy, insolvency, reorganization,
receivership, moratorium and other laws affecting the enforcement of
creditors' rights generally, and general principles of equity, regardless
of whether such enforcement is considered in a proceeding in equity or at
law;
(v) The Servicer is not in default with respect to any law, any
order or decree of any court, or any order, regulation or demand of any
federal, state, municipal or governmental agency, which default, in the
Servicer's reasonable judgement is likely to materially and adversely
affect the financial condition or operations of the Servicer or its
properties taken as a whole or its ability to perform its duties and
obligations hereunder;
(vi) No litigation is pending or, to the best of the Servicer's
knowledge, threatened against the Servicer which would prohibit the
Servicer from entering into this Agreement or, in the Servicer's good
faith and reasonable judgment, is likely to materially and adversely
affect either the ability of the Servicer to perform its obligations under
this Agreement or the financial condition of the Servicer;
(vii) Any Sub-Servicing Agreements comply, and will comply, with the
provisions of Section 3.22;
(viii) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Servicer, or compliance by the Servicer with, this
Agreement or the consummation of the transactions of the Servicer
contemplated by this Agreement, except for any consent, approval,
authorization or order which has been obtained or can be obtained prior to
the actual performance by the Servicer of its obligations under this
Agreement, or which, if not obtained would not have a materially adverse
effect on the ability of the Servicer to perform its obligations
hereunder; and
(ix) The Servicer has full power and authority to enter into and
consummate all transactions to be performed by it contemplated by this
Agreement, has duly authorized the execution, delivery and performance of
this Agreement, and has duly executed and delivered this Agreement.
(b) The representations and warranties set forth in paragraph (a)
above shall survive the execution and delivery of the Agreement.
Section 3.24 Representations, Warranties and Covenants of the
Special Servicer.
(a) The Special Servicer hereby represents, warrants and covenants
to the Trustee, for its own benefit and the benefit of the Certificateholders,
and to the Paying Agent the Depositor and the Servicer, as of the Closing Date,
that:
(i) The Special Servicer is a corporation, duly organized, validly
existing and in good standing under the laws of the State of Delaware, and
the Special Servicer is in compliance with the laws of each State in which
any Mortgaged Property is located to the extent necessary to perform its
obligations under this Agreement;
(ii) The execution and delivery of this Agreement by the Special
Servicer, and the performance and compliance with the terms of this
Agreement by the Special Servicer, does not (A) violate the Special
Servicer's articles of incorporation and by-laws or (B) constitute a
default (or an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any material
agreement or other material instrument to which it is a party or which is
applicable to it or any of its assets, or (C) violate any law, rule,
regulation, order, judgment or decree to which the Special Servicer or its
property is subject, which, in the case of either (B) or (C), is likely to
materially and adversely affect either the ability of the Special Servicer
to perform its obligations under this Agreement or its financial
condition;
(iii) The Special Servicer has the full power and authority to enter
into and consummate all transactions to be performed by it contemplated by
this Agreement, has duly authorized the execution, delivery and
performance by it of this Agreement, and has duly executed and delivered
this Agreement;
(iv) This Agreement, assuming due authorization, execution and
delivery by the Trustee, the Paying Agent, the Servicer and the Depositor,
constitutes a valid, legal and binding obligation of the Special Servicer,
enforceable against the Special Servicer in accordance with the terms
hereof, subject to applicable bankruptcy, insolvency, reorganization,
receivership, moratorium and other laws affecting the enforcement of
creditors' rights generally, and general principles of equity, regardless
of whether such enforcement is considered in a proceeding in equity or at
law;
(v) The Special Servicer is not in default with respect to any law,
any order or decree of any court, or any order, regulation or demand of
any federal, state, municipal or governmental agency, which default, in
the Special Servicer's reasonable judgement is likely to materially and
adversely affect the financial condition or operations of the Special
Servicer or its properties taken as a whole or its ability to perform its
duties and obligations hereunder;
(vi) No litigation is pending or, to the best of the Special
Servicer's knowledge, threatened against the Special Servicer which would
prohibit the Special Servicer from entering into this Agreement or, in the
Special Servicer's good faith and reasonable judgment is likely to
materially and adversely affect either the ability of the Special Servicer
to perform its obligations under this Agreement or the financial condition
of the Special Servicer;
(vii) Each officer, manager or employee of the Special Servicer that
has or, following the occurrence of a Servicing Transfer Event, would have
responsibilities concerning the servicing and administration of Mortgage
Loans is covered by errors and omissions insurance in the amounts and with
the coverage required by Section 3.07(c);
(viii) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Special Servicer, or compliance by the Special Servicer
with, this Agreement or the consummation of the transactions of the
Special Servicer contemplated by this Agreement, except for any consent,
approval, authorization or order which has been obtained or can be
obtained prior to the actual performance by the Special Servicer of its
obligations under this Agreement, and which, if not obtained would not
have a materially adverse effect on the ability of the Special Servicer to
perform its obligations hereunder.
(b) The representations and warranties set forth in paragraph (a)
above shall survive the execution and delivery of the Agreement. Such
indemnification shall survive any termination or resignation of the Special
Servicer, the termination or resignation of the Trustee and any termination of
the Agreement.
Section 3.25 Interest Reserve Account.
(a) On each P&I Advance Date relating to any Interest Accrual Period
ending in any January and on any P&I Advance Date which occurs in a year which
is not a leap year relating to any Interest Accrual Period ending in any
December, the Paying Agent, in respect of the Actual/360 Mortgage Loans, shall
deposit into the Interest Reserve Account, an amount equal to one day's interest
on the Stated Principal Balance of the Interest Reserve Loans as of the Due Date
occurring in the month preceding the month in which such P&I Advance Date occurs
at the related Net Mortgage Rate, to the extent a full Monthly Payment or P&I
Advance is made in respect thereof (all amounts so deposited in any consecutive
February and January, "Withheld Amounts").
(b) On each P&I Advance Date occurring in March, the Paying Agent
shall withdraw, from the Interest Reserve Account an amount equal to the
Withheld Amounts from the preceding January (if applicable) and February, if
any, and deposit such amount into the Lower-Tier Distribution Account or, (i)
with respect to the Simon Mortgage Loan, the Simon Loan REMIC Distribution
Account or (ii) with respect to the Walgreens Mortgage Loan, the Walgreens Loan
REMIC Distribution Account.
Section 3.26 Excess Interest Distribution Account.
Prior to the applicable Distribution Date, the Servicer is required
to remit to the Paying Agent for deposit into the Excess Interest Distribution
Account an amount equal to the Excess Interest received during the related Due
Period.
Section 3.27 Directing Certificateholder Contact with Servicer.
No less often than on a monthly basis or as agreed upon by the
Servicer and the Directing Certificateholder, each of the Servicer and the
Special Servicer shall, without charge, make a knowledgeable Servicing Officer
available to answer questions from the Directing Certificateholder regarding the
performance and servicing of the Mortgage Loans and/or REO Properties for which
the Servicer or the Special Servicer, as the case may be, is responsible.
Section 3.28 Controlling Class Certificateholders and Directing
Certificateholder; Certain Rights and Powers of Directing Certificateholder.
(a) Each Controlling Class Certificateholder is hereby deemed to
have agreed by virtue of its purchase of a Certificate to provide its name and
address to the Paying Agent and to notify the Paying Agent, the Servicer,
Special Servicer and Trustee of the transfer of any Certificate of a Controlling
Class, the selection of a Directing Certificateholder or the resignation or
removal thereof. The Directing Certificateholder is hereby deemed to have agreed
by virtue of its purchase of a Certificate to notify the Paying Agent Servicer,
Special Servicer and Trustee when such Certificateholder is appointed Directing
Certificateholder and when it is removed or resigns. To the extent there is only
one Controlling Class Certificateholder and it is also the Special Servicer, it
shall be the Directing Certificateholder.
(b) A "Controlling Class" as of any time of determination shall be
the Class outstanding with the most subordinate Class of Regular Certificates
having at least 25% of its initial Class Balance.
(c) Once a Directing Certificateholder has been selected, each of
the Servicer, the Special Servicer, the Depositor, the Trustee, the Paying Agent
and each other Certificateholder (or Certificate Owner, if applicable) shall be
entitled to rely on such selection unless a majority of the Controlling Class
Certificateholders, by Certificate Balance, or such Directing Certificateholder
shall have notified the Paying Agent, Servicer, Special Servicer and Trustee and
each other Controlling Class Certificateholder, in writing, of the resignation
of such Directing Certificateholder or the selection of a new Directing
Certificateholder. Upon the resignation of a Directing Certificateholder, the
Paying Agent shall request the Controlling Class Certificateholders to select a
new Directing Certificateholder.
(d) Until it receives notice to the contrary each of the Servicer
and the Trustee shall be entitled to rely on the most recent notification with
respect to the identity of the Controlling Class Certificateholder and the
Directing Certificateholder.
(e) Within 30 days of the Closing Date, the Paying Agent shall
deliver to the Special Servicer and the Servicer a list of each Controlling
Class Certificateholder and the Directing Certificateholder, including names and
addresses. In addition to the foregoing, within two (2) Business Days of
receiving notice of the selection of a new Directing Certificateholder or the
existence of a new Controlling Class Certificateholder, the Paying Agent shall
notify the Servicer and the Special Servicer.
ARCap CMBS Fund REIT, Inc. shall be the initial Directing
Certificateholder and shall remain so until a successor is appointed pursuant to
the terms of this Agreement. Until it receives notice to the contrary, each of
the Servicer, the Special Servicer, the Paying Agent and the Trustee shall be
entitled to rely on the preceding sentence with respect to the identity of the
Directing Certificateholder.
(f) If at any time a Book-Entry Certificate belongs to a Controlling
Class, the Paying Agent shall notify the related Certificateholders (through the
Depository, unless the Paying Agent shall have been previously provided with the
name and address of such Certificateholder) of such event and shall request that
it be informed of any change in the identity of the related Certificate Owner
from time to time.
(g) Each Certificateholder acknowledges and agrees, by its
acceptance of its Certificates, that: (i) the Directing Certificateholder may
have special relationships and interests that conflict with those of Holders of
one or more Classes of Certificates; (ii) the Directing Certificateholder may
act solely in the interests of the Holders of the Controlling Class; (iii) the
Directing Certificateholder does not have any duties to the Holders of any Class
of Certificates other than the Controlling Class; (iv) the Directing
Certificateholder may take actions that favor interests of the Holders of the
Controlling Class over the interests of the Holders of one or more other Classes
of Certificates; and (v) the Directing Certificateholder shall have no liability
whatsoever for having so acted, and no Certificateholder may take any action
whatsoever against the Directing Certificateholder or any director, officer,
employee, agent or principal thereof for having so acted.
(h) In the event the Simon Mortgage Loan becomes a Specially
Serviced Mortgage Loan, the Holders (or, in the case of Book-Entry Certificates,
the Certificate Owners) of Class SP Certificates representing more than 25% of
the Class Balance of the most subordinate Class SP Certificates (the "Class SP
Controlling Holders") shall be entitled in accordance with this Section 3.28 to
select a representative (the "Simon Representative") having the rights and
powers specified in this Agreement or to replace an existing Simon
Representative. Solely for purposes of selecting or replacing the Simon
Representative, the Certificate Balances of the Class SP Certificates will be
reduced by any Appraisal Reductions with respect to the Simon Mortgage Loan, in
the following order of priority, first, to the Class SP-3 Certificates until its
Certificate Balance has been reduced to zero, second, to the Class SP-2
Certificates until its Certificate Balance has been reduced to zero and third,
to the Class SP-1 Certificates until its Certificate Balance has been reduced to
zero. Upon (i) the receipt by the Paying Agent of written requests for the
selection of a Simon Representative from the Holders (or, in the case of
Book-Entry Certificates, the Certificate Owners) of Class SP Certificates
representing more than 25% of the Class Principal Balance of all Class SP
Certificates, or (ii) the resignation or removal of the Person acting as Simon
Representative, the Paying Agent shall promptly notify the Depositor and the
Holders (and, in the case of Book-Entry Certificates, to the extent actually
known to a Responsible Officer of the Paying Agent or identified thereto by the
Depository or the Depository Participants, the Certificate Owners) of the Class
SP Certificates that they may select a Simon Representative. Such notice shall
set forth the process for selecting a Simon Representative, which shall be the
designation of the Simon Representative by the Class SP Controlling Holders by a
writing delivered to the Paying Agent. No appointment of any Person as a Simon
Representative shall be effective until such Person provides the Paying Agent
with written confirmation of its acceptance of such appointment, 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 rights of Class SP Controlling Holders to select a Simon Representative and
all consent, approval, option rights, rights to reports, notice and copies shall
be automatically terminated in the event that any Class SP Certificateholder or
an Affiliate of such Class SP Certificateholder becomes the Simon Mortgage Loan
borrower under the Simon Mortgage Loan. Except as otherwise agreed with the
related Class SP Certificateholders, no such Simon Representative shall owe any
fiduciary duty to the Paying Agent, Trustee, the Servicer, the Special Servicer
or any Certificateholder.
(i) Within ten (10) Business Days (or as soon thereafter as
practicable if the Class SP Certificates are Book-Entry Certificates) of
receiving a request therefor from the Servicer or Special Servicer, the Paying
Agent shall deliver to the requesting party the identity of the Simon
Representative and a list of each Holder of the Class SP Certificates,
including, in each case, names and addresses. With respect to such information,
the Paying Agent shall be entitled to conclusively rely on information provided
to it by the Depository, and the Servicer and the Special Servicer shall be
entitled to rely on such information provided by the Paying Agent with respect
to any obligation or right hereunder that the Servicer and the Special Servicer
may have to deliver information or otherwise communicate with the Simon
Representative or any of the Holders (or, if applicable, Certificate Owners) of
the Class SP Certificates. In addition to the foregoing, within two (2) Business
Days of the selection, resignation or removal of a Simon Representative, the
Paying Agent shall notify the other parties to this Agreement of such event. The
expenses incurred by the Paying Agent in connection with obtaining information
from the Depository or Depository Participants with respect to any Book-Entry
Certificate shall be expenses of the Trust Fund payable out of the Certificate
Account pursuant to Section 3.05(a).
(j) A Simon Representative may at any time resign as such by giving
written notice to the Paying Agent and to each Holder (or, in the case of
Book-Entry Certificates, Certificate Owner) of the Class SP Certificates. The
Holders (or, in the case of Book-Entry Certificates, the Certificate Owners) of
Certificates representing more than 50% of the Class Principal Balance of all
Class SP Certificates shall be entitled to remove any existing Simon
Representative by giving written notice to the Paying Agent and to such existing
Simon Representative.
(k) Once a Simon Representative has been selected pursuant to this
Section 3.28 each of the parties to this Agreement and each Class SP
Certificateholder (or Certificate Owner, if applicable) shall be entitled to
rely on such selection unless a majority of the Holders (or, in the case of
Book-Entry Certificates, the Certificate Owners) of the Class SP Certificates,
by aggregate Certificate Principal Balance, or such Simon Representative, as
applicable, shall have notified the Paying Agent, the Servicer and the Special
Servicer and each other Holder (or, in the case of Book-Entry Certificates,
Certificate Owner) of the Class SP Certificates, in writing, of the resignation
or removal of such Simon Representative.
(l) Any and all expenses of the Simon Representative shall be borne
by the Holders (or, if applicable, the Certificate Owners) of Class SP
Certificates, pro rata according to their respective Percentage Interests in
such Classes, and not by the Trust Fund. Notwithstanding the foregoing, if a
claim is made against the Simon Representative by a Mortgagor with respect to
this Agreement or the Simon Mortgage Loan, the Simon Representative shall
immediately notify the Paying Agent, the Servicer and the Special Servicer,
whereupon (if the Special Servicer or the Trust Fund are also named parties to
the same action and, in the sole judgment of the Special Servicer, (i) the Simon
Representative had acted in good faith, without negligence or willful
misfeasance with regard to the particular matter, and (ii) there is no potential
for the Special Servicer or the Trust Fund to be an adverse party in such action
as regards the Simon Representative) the Special Servicer on behalf of the Trust
Fund shall, subject to Section 6.03, assume the defense of any such claim
against the Simon Representative. This provision shall survive the termination
of this Agreement and the termination or resignation of the Simon
Representative.
(m) All rights to, and requirements for, information (including the
delivery of information or access to information) provided to the Controlling
Class Representative contained herein shall also apply to the Simon
Representative with respect to information relating to the Simon Mortgage Loan.
(n) All rights to, and requirements for, information (including the
delivery of information or access to information) provided to the Controlling
Class Representative contained herein shall also apply to each Companion Holder
with respect to information relating to the related AB Mortgage Loan.
(o) Until it receives notice to the contrary, each of the Servicer,
the Special Servicer, the Paying Agent and the Trustee shall be entitled to rely
on the most recent notification with respect to the identity of the Simon
Representative, the Controlling Class Certificateholder and the Directing
Certificateholder.
(p) Notwithstanding anything to the contrary contained herein, since
the Special Servicer is not acting as the special servicer for the 75/101
Companion Loan, the Directing Certificateholder shall have no authority to
advise or direct the Special Servicer with respect to the 00/000 Xxxxxxx Xxxxxx
Mortgage Loan, the 00/000 Xxxxxxx Xxxxxx Companion Loan or the related Mortgaged
Property.
Section 3.29 Provisions Relating to Servicing of the 00/000 Xxxxxxx
Xxxxxx Mortgage Loan.
(a) Notwithstanding anything to the contrary contained herein, the
00/000 Xxxxxxx Xxxxxx Mortgage Loan will be serviced pursuant to the 00/000
Xxxxxxx Xxxxxx Servicing Agreement and the 00/000 Xxxxxxx Xxxxxx Co-Lender
Agreement. None of the Servicer, the Special Servicer, the Paying Agent or the
Trustee will have any obligation or authority to (i) service or administer the
00/000 Xxxxxxx Xxxxxx Mortgage Loan, except for preparing the reports in the
CMSA Investor Reporting Package (IRP) required to be delivered by such Person
pursuant to this Agreement and disbursing applicable funds to the Lower-Tier
Distribution Account, (ii) making certain advances as set forth herein with
respect to the 00/000 Xxxxxxx Xxxxxx Loan if the 00/000 Xxxxxxx Xxxxxx Servicer
fails to do so in accordance with the 00/000 Xxxxxxx Xxxxxx Servicing Agreement
or (iii) supervise the servicer under the 00/000 Xxxxxxx Xxxxxx Servicing
Agreement.
(b) The obligation of the Servicer or the Special Servicer to
provide information to the Trustee, the Certificateholders and the Rating
Agencies with respect to the 00/000 Xxxxxxx Xxxxxx Mortgage Loan, the 00/000
Xxxxxxx Xxxxxx Companion Loan or the 00/000 Xxxxxxx Xxxxxx Mortgaged Property is
dependent on the Servicer or the Special Servicer, as applicable, receiving the
corresponding information from the applicable servicer under the 00/000 Xxxxxxx
Xxxxxx Servicing Agreement. The Servicer shall not be required to use the ARCap
Naming Convention for information and reports on the 00/000 Xxxxxxx Xxxxxx
Mortgage Loan. The Servicer or the Special Servicer, as applicable, shall
prepare all reports required in accordance herewith by incorporating the
information received from the 00/000 Xxxxxxx Xxxxxx Servicer as if such
information were received from a Mortgagor under a Mortgage Loan (other than any
report that is prepared for a single Mortgage Loan or single Mortgaged
Property).
(c) Consistent with the provisions of the 00/000 Xxxxxxx Xxxxxx
Xx-Xxxxxx Agreement and the 00/000 Xxxxxxx Xxxxxx Servicing Agreement:
(i) if a Loss of Control Event (as that term is defined in the
00/000 Xxxxxxx Xxxxxx Servicing Agreement) occurs, the Directing
Certificateholder shall be entitled to exercise the rights set forth in
Section 3.02 of the 00/000 Xxxxxxx Xxxxxx Xx-Xxxxxx Agreement and Section
3.23 and Section 3.24 of the 00/000 Xxxxxxx Xxxxxx Servicing Agreement;
(ii) if the Servicer, Special Servicer, Trustee or Paying Agent
becomes aware of any default under the 00/000 Xxxxxxx Xxxxxx Servicing
Agreement, such party (if other than the Servicer) shall notify the
Servicer of such default and, if the Trust Fund is entitled (if such
default is not being waived under the 00/000 Xxxxxxx Xxxxxx Servicing
Agreement) or required pursuant to the 00/000 Xxxxxxx Xxxxxx Servicing
Agreement to terminate the 00/000 Xxxxxxx Xxxxxx Servicer or 00/000
Xxxxxxx Xxxxxx Special Servicer, as the case may be, and appoint a
successor 00/000 Xxxxxxx Xxxxxx Servicer or 00/000 Xxxxxxx Xxxxxx Special
Servicer, the Servicer shall act on behalf of the Trust Fund and appoint
itself or another servicer (such other servicer to be acceptable to the
Directing Certificateholder) as the successor 00/000 Xxxxxxx Xxxxxx
Servicer or 00/000 Xxxxxxx Xxxxxx Special Servicer, as the case may be,
pursuant to the terms of the 00/000 Xxxxxxx Xxxxxx Servicing Agreement;
and
(iii) the Special Servicer shall exercise the right of the Trust
Fund, set forth in Section 3.01(c) of the 00/000 Xxxxxxx Xxxxxx Xx-Xxxxxx
Agreement and Section 3.19(e) of the 00/000 Xxxxxxx Xxxxxx Servicing
Agreement, to consent to any waiver, forgiveness, reduction or deferral of
any amounts due in respect of the 00/000 Xxxxxxx Xxxxxx Mortgage Loan.
(d) From time to time upon request of the 00/000 Xxxxxxx Xxxxxx
Servicer or 00/000 Xxxxxxx Xxxxxx Special Servicer, and delivery to the Trustee
of a request for release in the form(s) provided pursuant to the 00/000 Xxxxxxx
Xxxxxx Servicing Agreement, the Trustee shall release the original Mortgage Note
for the 00/000 Xxxxxxx Xxxxxx Mortgage Loan to such servicer. Upon receipt of
(a) the Mortgage Note for the 00/000 Xxxxxxx Xxxxxx Mortgage Loan by the Trustee
from such servicer or (b) in the event of a liquidation or conversion of the
00/000 Xxxxxxx Xxxxxx Mortgage Loan, a certificate of an officer of such
servicer in the form(s) provided pursuant to the 00/000 Xxxxxxx Xxxxxx Servicing
Agreement stating that such Mortgage Loan was liquidated and that all amounts
received or to be received in connection with such liquidation which are
required to be deposited into the Certificate Account or Distribution Account
have been so deposited, the Trustee shall return the request for release to such
servicer.
(e) If the Trustee is requested to take any action (that is not
already specifically provided for in this Agreement) in its capacity as the
holder of the 00/000 Xxxxxxx Xxxxxx Mortgage Loan, pursuant to the 00/000
Xxxxxxx Xxxxxx Co-Lender Agreement and/or the 00/000 Xxxxxxx Xxxxxx Servicing
Agreement, the Trustee will notify (in writing), and act in accordance with the
instructions of, the Directing Certificateholder; provided that, if such
instructions are not provided within the prescribed time period, the Trustee
will take such action or inaction, as it deems to be in the best interests of
the Certificateholders (as a collective whole).
Section 3.30 Companion Paying Agent.
(a) The Servicer shall be the initial Companion Paying Agent
hereunder. The Companion Paying Agent undertakes to perform such duties and only
such duties as are specifically set forth herein. The Companion Paying Agent
shall promptly make available all reports delivered to it under this Agreement
to the Companion Holder.
(b) No provision of this Agreement shall be construed to relieve the
Companion Paying Agent from liability for its own negligent failure to act, bad
faith or its own willful misfeasance; provided, however, that the duties and
obligations of the Companion Paying Agent shall be determined solely by the
express provisions of this Agreement, the Companion Paying Agent shall not be
liable except for the performance of such duties and obligations, no implied
covenants or obligations shall be read into this Agreement against the Companion
Paying Agent and, in the absence of bad faith on the part of the Companion
Paying Agent, the Companion Paying Agent may conclusively rely, as to the truth
and correctness of the statements or conclusions expressed therein, upon any
resolutions, certificates, statements, opinions, reports, documents, orders or
other instrument furnished to the Companion Paying Agent by any Person and which
on their face do not contradict the requirements of this Agreement.
(c) Upon the resignation or removal of the Servicer pursuant to
Article VII of this Agreement, the Companion Paying Agent shall be deemed
simultaneously to resign or be removed.
(d) This Section shall survive the termination of this Agreement or
the resignation or removal of the Companion Paying Agent, as regards rights
accrued prior to such resignation or removal.
Section 3.31 Companion Register.
(a) The Companion Paying Agent shall maintain a register (the
"Companion Register") on which it will record the names and address of, and wire
transfer instructions for, the Companion Holders from time to time, to the
extent such information is provided in writing to it by the Companion Holders.
The initial Companion Holders, along with their name, address, wiring
instructions and tax identification number, are listed on Exhibit R hereto. The
Companion Holders shall inform the Companion Paying Agent of the name, address,
wiring instructions and taxpayer identification number of any subsequent
Companion Holder upon any transfer of a Companion Loan. Upon the sale of a
Companion Loan or portion thereof, the transferring Companion Holder shall
inform the Companion Paying Agent in writing that such transfer has taken place
and provide the Companion Paying Agent with the name, address, wiring
instructions and tax identification number of the transferee. In the event a
Companion Holder transfers a Companion Loan without notice to the Companion
Paying Agent, the Companion Paying Agent shall have no liability for any
misdirected payment in the related Companion Loan and shall have no obligation
to recover and redirect such payment.
(b) The Companion Paying Agent shall promptly provide the name and
address of the Companion Holders to any party hereto or any successor Companion
Holder upon written request and any such Person may, without further
investigation, conclusively rely upon such information. The Companion Paying
Agent shall have no liability to any Person for the provision of any such names
and addresses.
[End of Article III]
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
Section 4.01 Distributions.
(a) On each Distribution Date, to the extent of the Available
Distribution Amount for such Distribution Date, the Paying Agent shall be deemed
to transfer the Lower-Tier Distribution Amount from the Lower-Tier Distribution
Account to the Upper-Tier Distribution Account in the amounts and priorities set
forth in Section 4.01(b) with respect to each class of Uncertificated Lower-Tier
Interests, and immediately thereafter, shall make distributions thereof from the
Upper-Tier Distribution Account in the following order of priority, satisfying
in full, to the extent required and possible, each priority before making any
distribution with respect to any succeeding priority:
(i) first, to the Holders of the Class A-1 Certificates, the Class
A-2 Certificates, the Class X-1 Certificates and the Class X-2
Certificates, pro rata (based upon their respective entitlements to
interest for such Distribution Date), in respect of interest, up to an
amount equal to the aggregate Interest Distribution Amount in respect of
such Classes of Certificates for such Distribution Date;
(ii) second, (A) to the Holders of the Class A-1 Certificates, in
reduction of the Certificate Balance thereof, an amount equal to the
Principal Distribution Amount, until the outstanding Certificate Balance
of such Class has been reduced to zero and (B) after the Certificate
Balance of the Class A-1 Certificates has been reduced to zero, to the
Holders of the Class A-2 Certificates, in reduction of the Certificate
Balances thereof, an amount equal to the Principal Distribution Amount (or
the portion thereof remaining after any distributions in respect of the
Class A-1 Certificates on such Distribution Date), until the outstanding
Certificate Balances of such Class has been reduced to zero;
(iii) third, to the Holders of the Class A-1 Certificates and the
Class A-2 Certificates, pro rata (based upon the aggregate unreimbursed
Collateral Support Deficit allocated to each such Class), until all
amounts of Collateral Support Deficit previously allocated to such
Classes, but not previously reimbursed, have been reimbursed in full;
(iv) fourth, to the Holders of the Class B Certificates, in respect
of interest, up to an amount equal to the aggregate Interest Distribution
Amount in respect of such Class of Certificates for such Distribution
Date;
(v) fifth, after the Certificate Balances of the Class A
Certificates have been reduced to zero, to the Holders of the Class B
Certificates, in reduction of the Certificate Balance thereof, an amount
equal to the Principal Distribution Amount (or the portion thereof
remaining after any distributions in respect of the Class A-1 and Class
A-2 Certificates on such Distribution Date), until the outstanding
Certificate Balance of the Class B Certificates has been reduced to zero;
(vi) sixth, to the Holders of the Class B Certificates, until all
amounts of Collateral Support Deficit previously allocated to the Class B
Certificates, but not previously reimbursed, have been reimbursed in full;
(vii) seventh, to the Holders of the Class C Certificates, in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(viii) eighth, after the Certificate Balances of the Class A and
Class B Certificates have been reduced to zero, to the Holders of the
Class C Certificates, in reduction of the Certificate Balance thereof, an
amount equal to the Principal Distribution Amount (or the portion thereof
remaining after any distributions in respect of the Class A-1, Class A-2
and Class B Certificates on such Distribution Date), until the outstanding
Certificate Balance of the Class C Certificates has been reduced to zero;
(ix) ninth, to the Holders of the Class C Certificates, until all
amounts of Collateral Support Deficit previously allocated to the Class C
Certificates, but not previously reimbursed, have been reimbursed in full;
(x) tenth, to the Holders of the Class D Certificates, in respect of
interest, up to an amount equal to the aggregate Interest Distribution
Amount in respect of such Class of Certificates for such Distribution
Date;
(xi) eleventh, after the Certificate Balances of the Class A, Class
B and Class C Certificates have been reduced to zero, to the Holders of
the Class D Certificates, in reduction of the Certificate Balance thereof,
an amount equal to the Principal Distribution Amount (or the portion
thereof remaining after any distributions in respect of the Class X-0,
Xxxxx X-0, Class B and Class C Certificates on such Distribution Date),
until the outstanding Certificate Balance of the Class D Certificates has
been reduced to zero;
(xii) twelfth, to the Holders of the Class D Certificates, until all
amounts of Collateral Support Deficit previously allocated to the Class D
Certificates, but not previously reimbursed, have been reimbursed in full;
(xiii) thirteenth, to the Holders of the Class E Certificates, in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xiv) fourteenth, after the Certificate Balances of the Class A,
Class B, Class C and Class D Certificates have been reduced to zero, to
the Holders of the Class E Certificates, in reduction of the Certificate
Balance thereof, an amount equal to the Principal Distribution Amount (or
the portion thereof remaining after any distributions in respect of the
Class X-0, Xxxxx X-0, Class B, Class C and Class D Certificates on such
Distribution Date), until the outstanding Certificate Balance of the Class
E Certificates has been reduced to zero;
(xv) fifteenth, to the Holders of the Class E Certificates, until
all amounts of Collateral Support Deficit previously allocated to the
Class E Certificates, but not previously reimbursed, have been reimbursed
in full;
(xvi) sixteenth, to the Holders of the Class F Certificates, in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xvii) seventeenth, after the Certificate Balances of the Class A,
Class B, Class C, Class D and Class E Certificates have been reduced to
zero, to the Holders of the Class F Certificates, in reduction of the
Certificate Balance thereof, an amount equal to the Principal Distribution
Amount (or the portion thereof remaining after any distributions in
respect of the Class X-0, Xxxxx X-0, Class B, Class C, Class D and Class E
Certificates on such Distribution Date), until the outstanding Certificate
Balance of the Class F Certificates has been reduced to zero;
(xviii) eighteenth, to the Holders of the Class F Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class F Certificates, but not previously reimbursed, have been
reimbursed in full;
(xix) nineteenth, to the Holders of the Class G Certificates in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xx) twentieth, after the Certificate Balances of the Class A, Class
B, Class C, Class D, Class E and Class F Certificates have been reduced to
zero, to the Holders of the Class G Certificates, in reduction of the
Certificate Balance thereof, an amount equal to the Principal Distribution
Amount (or the portion thereof remaining after any distributions in
respect of the Class X-0, Xxxxx X-0, Class B, Class C, Class D, Class E
and Class F Certificates on such Distribution Date), until the outstanding
Certificate Balance of the Class G Certificates has been reduced to zero;
(xxi) twenty-first, to the Holders of the Class G Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class G Certificates, but not previously reimbursed, have been
reimbursed in full;
(xxii) twenty-second, to the Holders of the Class H Certificates in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xxiii) twenty-third, after the Certificate Balances of the Class A,
Class B, Class C, Class D, Class E, Class F and Class G Certificates have
been reduced to zero, to the Holders of the Class H Certificates, in
reduction of the Certificate Balance thereof, an amount equal to the
Principal Distribution Amount (or the portion thereof remaining after any
distributions in respect of the Class X-0, Xxxxx X-0, Class B, Class C,
Class D, Class E, Class F and Class G Certificates on such Distribution
Date), until the outstanding Certificate Balance of the Class H
Certificates has been reduced to zero;
(xxiv) twenty-fourth, to the Holders of the Class H Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class H Certificates, but not previously reimbursed, have been
reimbursed in full;
(xxv) twenty-fifth, to the Holders of the Class J Certificates in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xxvi) twenty-sixth, after the Certificate Balances of the Class A,
Class B, Class C, Class D, Class E, Class F, Class G and Class H
Certificates have been reduced to zero, to the Holders of the Class J
Certificates, in reduction of the Certificate Balance thereof, an amount
equal to the Principal Distribution Amount (or the portion thereof
remaining after any distributions in respect of the Class X-0, Xxxxx X-0,
Class B, Class C, Class D, Class E, Class F, Class G and Class H
Certificates on such Distribution Date), until the outstanding Certificate
Balance of the Class J Certificates has been reduced to zero;
(xxvii) twenty-seventh, to the Holders of the Class J Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class J Certificates, but not previously reimbursed, have been
reimbursed in full;
(xxviii) twenty-eighth, to the Holders of the Class K Certificates
in respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xxix) twenty-ninth, after the Certificate Balances of the Class A,
Class B, Class C, Class D, Class E, Class F, Class G, Class H and Class J
Certificates have been reduced to zero, to the Holders of the Class K
Certificates, in reduction of the Certificate Balance thereof, an amount
equal to the Principal Distribution Amount (or the portion thereof
remaining after any distributions in respect of the Class X-0, Xxxxx X-0,
Class B, Class C, Class D, Class E, Class F, Class G, Class H and Class J
Certificates on such Distribution Date), until the outstanding Certificate
Balance of the Class K Certificates has been reduced to zero;
(xxx) thirtieth, to the Holders of the Class K Certificates, until
all amounts of Collateral Support Deficit previously allocated to the
Class K Certificates, but not previously reimbursed, have been reimbursed
in full;
(xxxi) thirty-first, to the Holders of the Class L Certificates in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xxxii) thirty-second, after the Certificate Balances of the Class
A, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J
and Class K Certificates have been reduced to zero, to the Holders of the
Class L Certificates, in reduction of the Certificate Balance thereof, an
amount equal to the Principal Distribution Amount (or the portion thereof
remaining after any distributions in respect of the Class X-0, Xxxxx X-0,
Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J and
Class K Certificates on such Distribution Date), until the outstanding
Certificate Balance of the Class L Certificates has been reduced to zero;
(xxxiii) thirty-third, to the Holders of the Class L Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class L Certificates, but not previously reimbursed, have been
reimbursed in full;
(xxxiv) thirty-fourth, to the Holders of the Class M Certificates in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xxxv) thirty-fifth, after the Certificate Balances of the Class A,
Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J,
Class K and Class L Certificates have been reduced to zero, to the Holders
of the Class M Certificates, in reduction of the Certificate Balance
thereof, an amount equal to the Principal Distribution Amount (or the
portion thereof remaining after any distributions in respect of the Class
X-0, Xxxxx X-0, Class B, Class C, Class D, Class E, Class F, Class G,
Class H, Class J, Class K and Class L Certificates on such Distribution
Date), until the outstanding Certificate Balance of the Class M
Certificates has been reduced to zero;
(xxxvi) thirty-sixth, to the Holders of the Class M Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class M Certificates, but not previously reimbursed, have been
reimbursed in full;
(xxxvii) thirty-seventh, to the Holders of the Class N Certificates
in respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xxxviii) thirty-eighth, after the Certificate Balances of the Class
A, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J,
Class K, Class L and Class M Certificates have been reduced to zero, to
the Holders of the Class N Certificates, in reduction of the Certificate
Balance thereof, an amount equal to the Principal Distribution Amount (or
the portion thereof remaining after any distributions in respect of the
Class X-0, Xxxxx X-0, Class B, Class C, Class D, Class E, Class F, Class
G, Class H, Class J, Class K, Class L and Class M Certificates on such
Distribution Date), until the outstanding Certificate Balance of the Class
N Certificates has been reduced to zero;
(xxxix) thirty-ninth, to the Holders of the Class N Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class N Certificates, but not previously reimbursed, have been
reimbursed in full;
(xl) fortieth, to the Holders of the Class NR Certificates in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xli) forty-first, after the Certificate Balances of the Class A,
Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J,
Class K, Class L, Class M and Class N Certificates have been reduced to
zero, to the Holders of the Class NR Certificates, in reduction of the
Certificate Balance thereof, an amount equal to the Principal Distribution
Amount (or the portion thereof remaining after any distributions in
respect of the Class X-0, Xxxxx X-0, Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N
Certificates on such Distribution Date), until the outstanding Certificate
Balance of the Class NR Certificates has been reduced to zero;
(xlii) forty-second, to the Holders of the Class NR Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class NR Certificates, but not previously reimbursed, have been
reimbursed in full; and
(xliii) forty-third, to the Holders of the Class R Certificates, the
amount, if any, of the Available Distribution Amount remaining in the
Upper-Tier Distribution Account with respect to such Distribution Date.
On each Distribution Date, to the extent of the Simon Available
Distribution Amount remaining after the distributions in respect of the Simon
Pooled Component pursuant to Section 4.01(j)(i)-(iii) or Section
4.01(k)(i)-(iii), the Paying Agent shall distribute to the Holders of the Class
SP-1, Class SP-2 and Class SP-3 Certificates the amounts distributed in respect
of the Related Simon Loan REMIC Regular Interests and the Related Uncertificated
Lower-Tier Interests as specified in Section 4.01(j)(iv)-(x), Section
4.01(k)(iv)-(xii) and Section 4.01(d).
On each Distribution Date, to the extent of the Walgreens Available
Distribution Amount remaining after the distributions in respect of the
Walgreens Pooled Component pursuant to Section 4.01(n)(i)-(iii) or Section
4.01(o)(i)-(iii), the Paying Agent shall distribute to the Holders of the Class
WM Certificates the amounts distributed in respect of the Walgreens Loan REMIC
Regular Interest and the Related Uncertificated Lower-Tier Interest as specified
in Section 4.01(n)(iv)-(vi), Section 4.01(o)(iv)-(vi) and Section 4.01(d).
If, in connection with any Distribution Date, the Paying Agent has
reported the amount of an anticipated distribution to DTC based on the receipt
of payments as of the Determination Date and additional balloon payments or
unscheduled principal payments are subsequently received, the Paying Agent will
use commercially reasonable efforts to cause DTC to make the revised
distribution on a timely basis on such Distribution Date. Neither the Paying
Agent, the Servicer nor the Special Servicer shall be liable or held responsible
for any resulting delay in the making of such distribution to Certificateholders
solely on the basis of the actions described in the preceding section.
Notwithstanding the foregoing, on and after the Distribution Date on
which the Certificate Balances of the Subordinate Certificates have all been
reduced to zero, the Principal Distribution Amount will be distributed to the
Class A-1 and Class A-2 Certificates, pro rata, based on their respective
Certificate Principal Balances, in reduction of their respective Certificate
Principal Balances, until the Certificate Principal Balance of each such Class
is reduced to zero, and any Collateral Support Deficits previously allocated to
such Classes, if available, will be distributed pro rata based on their
respective Certificate Principal Balances.
(b) On each Distribution Date, each Uncertificated Lower-Tier
Interest shall be deemed to receive distributions in respect of principal or
reimbursement of Collateral Support Deficit in an amount equal to the amount of
principal or reimbursement of Collateral Support Deficit actually distributable
to its respective Related Certificates as provided in Sections 4.01(a) and (c)
(in the case of (i) the Class A-1 Certificates, first to the Class LA-1-1
Uncertificated Interest, second to the Class LA-1-2 Uncertificated Interest,
third to the Class LA-1-3 Uncertificated Interest, fourth to the Class LA-1-4
Uncertificated Interest and fifth to the Class LA-1-5 Uncertificated Interest,
in each case, until reduced to zero, (ii) the Class A-2 Certificates, first to
the Class LA-2-1 Uncertificated Interest, second to the Class LA-2-2
Uncertificated Interest, third to the Class LA-2-3 Uncertificated Interest and
fourth to the Class LA-2-4 Uncertificated Interest, in each case, until reduced
to zero, (iii) the Class F Certificates, first to the Class LF-1 Uncertificated
Interest and then to the Class LF-2 Uncertificated Interest, in each case, until
reduced to zero, (iv) the Class G Certificates, first to the Class LG-1
Uncertificated Interest and then to the Class LG-2 Uncertificated Interest, in
each case, until reduced to zero, (v) the Class H Certificates, first to the
Class LH-1 Uncertificated Interest and then to the Class LH-2 Uncertificated
Interest, in each case, until reduced to zero, and (vi) the Class J
Certificates, first to the Class LJ-1 Uncertificated Interest and then to the
Class LJ-2 Uncertificated Interest, in each case, until reduced to zero). On
each Distribution Date, each Uncertificated Lower-Tier Interest shall be deemed
to receive distributions in respect of interest in an amount equal to the
Interest Distribution Amount in respect of its Related Certificates (in the case
of each of (i) the Class LA-1-1, Class LA-1-2, Class LA-1-3, Class LA-1-4 and
Class LA-1-5 Uncertificated Interests, (ii) the Class LA-2-1, Class LA-2-2,
Class LA-2-3 and Class LA-2-4 Uncertificated Interests, (iii) the Class LF-1 and
Class LF-2 Uncertificated Interests, (iv) the Class LG-1 and Class LG-2
Uncertificated Interests, (v) the Class LH-1 and Class LH-2 Uncertificated
Interests, and (vi) the Class LJ-1 and Class LJ-2 Uncertificated Interests, pro
rata, based on their respective Certificate Balances) and its Related Component
of Class X Certificates, in each case to the extent actually distributable
thereon as provided in Section 4.01(a). For this purpose, interest distributed
on the Class X-1 Certificates and Class X-2 Certificates shall be treated as
having been paid to their respective Components, pro rata, based on the interest
accrued with respect thereto at its Class X-1 Strip Rate or Class X-2 Strip
Rate. Such amounts distributed to the Uncertificated Lower-Tier Interests in
respect of principal and interest with respect to any Distribution Date are
referred to herein collectively as the "Lower-Tier Distribution Amount", and
shall be made by the Paying Agent by deeming such Lower-Tier Distribution Amount
to be deposited in the Upper-Tier Distribution Account.
As of any date, the principal balance of each Uncertificated
Lower-Tier Interest shall equal the Certificate Balance of the Related
Certificates with respect thereto (in the case of the aggregate of (i) the Class
LA-1-1, Class LA-1-2, Class LA-1-3, Class LA-1-4, Class LA-1-5 Uncertificated
Interests, the Class A-1 Certificates, (ii) the Class LA-2-1, Class LA-2-2,
Class LA-2-3 and Class LA-2-4 Uncertificated Interests, the Class A-2
Certificates, (iii) the Class LF-1 and Class LF-2 Uncertificated Interests, the
Class F Certificates, (iv) the Class LG-1 and Class LG-2 Uncertificated
Interests, the Class G Certificates, (v) the Class LH-1 and Class LH-2
Uncertificated Interests, the Class H Certificates, and (vi) the Class LJ-1 and
Class LJ-2 Uncertificated Interests, the Class J Certificates), as adjusted for
the allocation of Collateral Support Deficits as provided in Section 4.04(c) and
of Certificate Deferred Interest as provided in Section 4.05(c). The initial
principal balance of each Uncertificated Lower-Tier Interest shall equal the
respective Original Lower-Tier Principal Amount. The pass-through rate with
respect to each Uncertificated Lower-Tier Interest shall be the interest rate
per annum set forth in the Preliminary Statement hereto.
Any amount that remains in the Lower-Tier Distribution Account on
each Distribution Date after distribution of the Lower-Tier Distribution Amount
and distribution of Yield Maintenance Charges pursuant to Section 4.01(d)(iii)
shall be distributed to the Holders of the Class LR Certificates in respect of
the residual interest in the Lower-Tier REMIC (but only to the extent of the
Available Distribution Amount for such Distribution Date remaining in the
Lower-Tier Distribution Account, if any).
(c) On and after the Distribution Date on which the Certificate
Balances of the Subordinate Certificates have all been reduced to zero (without
regard to any amounts of Collateral Support Deficit remaining unreimbursed), the
Principal Distribution Amount will be distributed, pro rata (based upon
Certificate Balances), among the Class A-1 and Class A-2 Certificates without
regard to the priorities set forth in Section 4.01(a)(ii).
(d) (i) On each Distribution Date, Yield Maintenance Charges
calculated by reference to a U.S. treasury rate collected during the related Due
Period will be distributed by the Paying Agent to the following Classes: to the
Class A-1 Certificates, Class A-2 Certificates, Class B Certificates, Class C
Certificates, Class D Certificates, Class E Certificates, Class F Certificates
and Class G Certificates, in an amount equal to the product of (a) a fraction
whose numerator is the amount distributed as principal to such Class on such
Distribution Date, and whose denominator is the total amount distributed as
principal to the Class A-1 Certificates, Class A-2 Certificates, Class 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 NR Certificates on such Distribution Date, (b)
the Base Interest Fraction for the related principal payment on such Class of
Certificates, and (c) the aggregate amount of Yield Maintenance Charges
calculated by reference to a U.S. treasury rate collected on such principal
prepayments during the related Due Period. Any Yield Maintenance Charge
collected during the related Due Period remaining after such distributions will
be distributed to the holders of the Class X-1 Certificates.
(ii) No Yield Maintenance Charge will be distributed to the holders
of the Class G, Class H, Class J, Class K, Class L, Class M, Class N,
Class NR or Residual Certificates. After the Certificate Balances of the
Class A-1 Certificates, Class A-2 Certificates, Class B Certificates,
Class C Certificates, Class D Certificates, Class E, Class F and Class G
Certificates have been reduced to zero, all Yield Maintenance Charges with
respect to the Mortgage Loans shall be distributed to the holders of the
Class X-1 Certificates.
(iii) All distributions of Yield Maintenance Charges collected
during the related Due Period that represent Yield Maintenance Charges
actually collected on the Simon Mortgage Loan shall be deemed to be
distributed from the Simon Loan REMIC to the Lower-Tier REMIC in respect
of the Simon Loan REMIC Pooled Regular Interest (whether or not the Simon
Loan REMIC Pooled Regular Interest has received all distributions of
interest and principal to which it is entitled). All distributions of
Yield Maintenance Charges collected during the related Due Period that
represent Yield Maintenance Charges actually collected on the Walgreens
Mortgage Loan shall be deemed to be distributed from the Walgreens Loan
REMIC to the Lower-Tier REMIC in respect of the Walgreens Loan REMIC
Pooled Regular Interest (whether or not the Walgreens Loan REMIC Pooled
Regular Interest has received all distributions of interest and principal
to which it is entitled). All distributions of Yield Maintenance Charges
made in respect of the respective Classes of Regular Certificates on each
Distribution Date pursuant to Section 4.01(d)(i) shall first be deemed to
be distributed from the Lower-Tier REMIC to the Upper-Tier REMIC in
respect of the Related Uncertificated Lower-Tier Interests, pro rata based
upon the amount of principal distributed in respect of each Class of
Related Uncertificated Lower-Tier Interests for such Distribution Date
pursuant to Section 4.01(b) above.
(e) All distributions made with respect to each Class of
Certificates on each Distribution Date shall be allocated pro rata among the
outstanding Certificates in such Class based on their respective Percentage
Interests. Except as otherwise specifically provided in Sections 4.01(e),
4.01(f) and 9.01, all such distributions with respect to each Class on each
Distribution Date shall be made to the Certificateholders of the respective
Class of record at the close of business on the related Record Date and shall be
made by wire transfer of immediately available funds to the account of any such
Certificateholder at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Paying Agent with
wiring instructions no less than five Business Days prior to the related Record
Date (which wiring instructions may be in the form of a standing order
applicable to all subsequent Distribution Dates). The final distribution on each
Certificate (determined without regard to any possible future reimbursement of
Collateral Support Deficit previously allocated to such Certificate) will be
made in like manner, but only upon presentation and surrender of such
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Each distribution with respect to a Book-Entry Certificate shall be
paid to the Depository, as Holder thereof, and the Depository shall be
responsible for crediting the amount of such distribution to the accounts of its
Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution to
the Certificate Owners that it represents and to each indirect participating
brokerage firm (a "brokerage firm" or "indirect participating firm") for which
it acts as agent. Each brokerage firm shall be responsible for disbursing funds
to the Certificate Owners that it represents. None of the Paying Agent, the
Trustee, the Certificate Registrar, the Depositor, the Servicer, the Special
Servicer or the Underwriters shall have any responsibility therefor except as
otherwise provided by this Agreement or applicable law.
(f) Except as otherwise provided in Section 9.01, whenever the
Paying Agent expects that the final distribution with respect to any Class of
Certificates (determined without regard to any possible future reimbursement of
any amount of Collateral Support Deficit previously allocated to such Class of
Certificates) will be made on the next Distribution Date, the Paying Agent
shall, no later than the related P&I Advance Determination Date, mail to each
Holder on such date of such Class of Certificates a notice to the effect that:
(i) the Paying Agent expects that the final distribution with
respect to such Class of Certificates will be made on such Distribution
Date but only upon presentation and surrender of such Certificates at the
offices of the Certificate Registrar or such other location therein
specified; and
(ii) no interest shall accrue on such Certificates from and after
such Distribution Date.
Any funds not distributed to any Holder or Holders of Certificates of such Class
on such Distribution Date because of the failure of such Holder or Holders to
tender their Certificates shall, on such date, be set aside and held uninvested
in trust and credited to the account or accounts of the appropriate
non-tendering Holder or Holders. If any Certificates as to which notice has been
given pursuant to this Section 4.01(f) shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, the Paying Agent, directly or through an agent, shall take such
steps to contact the remaining non-tendering Certificateholders concerning the
surrender of their Certificates as it shall deem appropriate. The costs and
expenses of holding such funds in trust and of contacting such
Certificateholders following the first anniversary of the delivery of such
second notice to the non-tendering Certificateholders shall be paid out of such
funds. No interest shall accrue or be payable to any Certificateholder on any
amount held in trust hereunder by the Trustee or the Paying Agent as a result of
such Certificateholder's failure to surrender its Certificate(s) for final
payment thereof in accordance with this Section 4.01(f).
(g) Distributions in reimbursement of Collateral Support Deficit or
Simon Collateral Support Deficit previously allocated to the Regular
Certificates, Class SP Certificates or Class WM Certificates shall be made in
the amounts and manner specified in Section 4.01(a) to the Holders of the
respective Class otherwise entitled to distributions of interest and principal
on such Class on the relevant Distribution Date; provided that all distributions
in reimbursement of Collateral Support Deficit or Simon Collateral Support
Deficit previously allocated to a Class of Certificates which has since been
retired shall be to the prior Holders that surrendered the Certificates of such
Class upon retirement thereof and shall be made by check mailed to the address
of each such prior Holder last shown in the Certificate Register. Notice of any
such distribution to a prior Holder shall be made in accordance with Section
11.05 at such last address. The amount of the distribution to each such prior
Holder shall be based upon the aggregate Percentage Interest evidenced by the
Certificates surrendered thereby. If the check mailed to any such prior Holder
is returned uncashed, then the amount thereof shall be set aside and held
uninvested in trust for the benefit of such prior Holder, and the Paying Agent
shall attempt to contact such prior Holder in the manner contemplated by Section
4.01(f) as if such Holder had failed to surrender its Certificates.
(h) On each Distribution Date, any Excess Interest received during
the related Due Period with respect to the Mortgage Loans shall be distributed
to the holders of the Class NR Certificates from the Excess Interest
Distribution Account.
(i) On each Distribution Date, the Paying Agent shall withdraw
amounts from the Gain-on-Sale Reserve Account and shall distribute such amounts
to reimburse the Holders of the Regular Certificates (in order of alphabetical
Class designation) up to an amount equal to all Collateral Support Deficits, if
any, previously deemed allocated to them and unreimbursed after application of
the Available Distribution Amount for such Distribution Date. Any amount in the
Gain-on-Sale Reserve Account with respect to the Simon Mortgage Loan shall be
applied to Simon Collateral Support Deficits first in respect of the Simon
Pooled Component, second in respect of the Simon Non-Pooled Component, and any
remaining amount thereof shall be deemed distributed in respect of the Simon
Loan REMIC Residual Interest and immediately contributed to the Lower-Tier REMIC
to the portion of the Gain-on-Sale Reserve Account held therein and applied as
described in the preceding sentence. Any amount in the Gain-on-Sale Reserve
Account with respect to the Walgreens Mortgage Loan shall be applied to
Walgreens Collateral Support Deficits first in respect of the Walgreens Pooled
Component, second in respect of the Walgreens Non-Pooled Component, and any
remaining amount thereof shall be deemed distributed in respect of the Walgreens
Loan REMIC Residual Interest and immediately contributed to the Lower-Tier REMIC
to the portion of the Gain-on-Sale Reserve Account held therein and applied as
described in the second preceding sentence. Amounts paid from the Gain-on-Sale
Reserve Account will not reduce the Certificate Balances of the Classes
receiving such distributions. Any amounts remaining in the Gain-on-Sale Reserve
Account after such distributions shall be applied to offset future Collateral
Support Deficits and Simon Collateral Support Deficits and upon termination of
the Trust Fund, any amounts remaining in the Gain-on-Sale Reserve Account shall
be distributed to the Class LR Certificateholders.
(j) For so long as (i) no monetary or material non-monetary event of
default (which will include any Servicing Transfer Event (other than pursuant to
clause (iv) of the definition of Servicing Transfer Event) that has occurred and
is continuing with respect to the Simon Mortgage Loan) under the Simon Mortgage
Loan has occurred and is continuing and (ii) there are no unreimbursed Advances
outstanding as of the Distribution Date, on each Distribution Date, the Paying
Agent, in respect of the Simon Loan REMIC Pooled Regular Interest, each Class of
Simon Loan REMIC Non-Pooled Regular Interests and the Simon Loan REMIC Residual
Interest represented by the Class LR Certificates, shall (except as otherwise
provided in Section 9.01), based on information provided by the Servicer and the
Special Servicer, be deemed to withdraw amounts on deposit in the Simon Loan
REMIC Distribution Account, after payment of amounts payable from the Simon Loan
REMIC Distribution Account in accordance with Section 3.05(b)(iii) through
(viii), to the extent related to the Simon Mortgage Loan, for the following
purposes and in the following order of priority, and shall be deemed to deposit
such amounts in the Lower-Tier Distribution Account in each case to the extent
of the remaining portion of the Simon Available Distribution Amount:
(i) as deemed distributions from the Simon Loan REMIC to the
Lower-Tier REMIC in respect of the Simon Loan REMIC Pooled Regular
Interest, as part of the Available Distribution Amount for such
Distribution Date, up to all Distributable Simon Pooled Component Interest
for such Distribution Date, and to the extent not previously paid, for all
prior Distribution Dates;
(ii) as deemed distributions from the Simon Loan REMIC to the
Lower-Tier REMIC in respect of the Simon Loan REMIC Pooled Regular
Interest, as part of the Available Distribution Amount for such
Distribution Date, up to an amount equal to the product of (x) the Simon
Principal Distribution Amount for such Distribution Date, and (y) the
Simon Pooled Percentage for such Distribution Date;
(iii) as deemed distributions from the Simon Loan REMIC to the
Lower-Tier REMIC in respect of the Simon Loan REMIC Pooled Regular
Interest, as part of the Available Distribution Amount for such
Distribution Date, as reimbursement for any Simon Collateral Support
Deficit, if any, previously allocated to the Simon Loan REMIC Pooled
Regular Interest and for which no reimbursement has previously been
received;
(iv) as deemed distributions from the Simon Loan REMIC to the
Lower-Tier REMIC in respect of the Class KSP-1 Uncertificated Interest, in
an amount up to the Distributable Simon Non-Pooled Component Interest for
the Class KSP-1 Uncertificated Interest for such Distribution Date;
(v) as deemed distributions from the Simon Loan REMIC to the
Lower-Tier REMIC in respect of the Class KSP-2 Uncertificated Interest, in
an amount up to the Distributable Simon Non-Pooled Component Interest for
the Class KSP-2 Uncertificated Interest for such Distribution Date;
(vi) as deemed distributions from the Simon Loan REMIC to the
Lower-Tier REMIC in respect of the Class KSP-3 Uncertificated Interest, in
an amount up to the Distributable Simon Non-Pooled Component Interest for
the Class KSP-3 Uncertificated Interest for such Distribution Date;
(vii) as deemed distributions from the Simon Loan REMIC to the
Lower-Tier REMIC in respect of the Class KSP-1, KSP-2 and KSP-3
Uncertificated Interests, pro rata based on their respective Simon Loan
REMIC Principal Amounts for such Simon Loan REMIC Non-Pooled Regular
Interests immediately prior to such Distribution Date, in reduction of the
Simon Loan REMIC Principal Amount thereof, an amount equal to the product
of (x) the Simon Principal Distribution Amount for such Distribution Date
and (y) the respective Simon Non-Pooled Percentage for such Distribution
Date until the outstanding Simon Loan REMIC Principal Amounts of the Class
KSP-1, KSP-2 and KSP-3 Uncertificated Interests have been reduced to zero;
(viii) as deemed distributions from the Simon Loan REMIC to the
Lower-Tier REMIC in respect of the Class KSP-1 Uncertificated Interest, in
an amount equal to, and in reimbursement of, a Simon Collateral Support
Deficit, if any, previously allocated to the Class KSP-1 Uncertificated
Interest and for which no reimbursement has been previously received;
(ix) as deemed distributions from the Simon Loan REMIC to the
Lower-Tier REMIC in respect of the Class KSP-2 Uncertificated Interest, in
an amount equal to, and in reimbursement of, a Simon Collateral Support
Deficit, if any, previously allocated to the Class KSP-2 Uncertificated
Interest and for which no reimbursement has been previously received;
(x) as deemed distributions from the Simon Loan REMIC to the
Lower-Tier REMIC in respect of the Class KSP-3 Uncertificated Interest, in
an amount equal to, and in reimbursement of, a Simon Collateral Support
Deficit, if any, previously allocated to the Class KSP-3 Uncertificated
Interest and for which no reimbursement has been previously received; and
(xi) to make distributions to the Holders of the Class LR
Certificates in respect of the Simon Loan REMIC Residual Interest, up to
an amount equal to the excess, if any, of (A) the Simon Available
Distribution Amount on such Distribution Date, over (B) the sum of (1) the
aggregate distributions deemed made in respect of the Simon Loan REMIC
Pooled Regular Interest on such Distribution Date pursuant to clauses (i),
(ii) and (iii) of this Section 4.01(j) and (2) the aggregate distributions
made in respect of the Simon Loan REMIC Non-Pooled Regular Interests on
such Distribution Date pursuant to clauses (iv) through (x) of this
Section 4.01(j).
The amounts to be applied pursuant to clauses (i), (ii) and (iii)
above will be included as part of the Available Distribution Amount for the
subject Distribution Date and will be applied as described above to make
distributions on the Certificates.
(k) If a monetary or material non-monetary event of default (which
will include any Servicing Transfer Event (other than pursuant to clause (iv) of
the definition of Servicing Transfer Event) that has occurred and is continuing
with respect to the Simon Mortgage Loan) has occurred and is continuing with
respect to the Simon Mortgage Loan or there are outstanding unreimbursed
Advances as of the Distribution Date, on each Distribution Date, the Paying
Agent, in respect of the Simon Loan REMIC Pooled Regular Interest, each Class of
Simon Loan REMIC Non-Pooled Regular Interests and the Class LR Certificates,
shall (except as otherwise provided in Section 9.01), based on information
provided by the Servicer and the Special Servicer, be deemed to withdraw amounts
on deposit in the Simon Loan REMIC Distribution Account, after payment of
amounts payable from the Simon Loan REMIC Distribution Account in accordance
with Section 3.05(b)(iii) through (viii), to the extent related to the Simon
Mortgage Loan, for the following purposes and in the following order of
priority, and shall be deemed to deposit such amounts in the Lower-Tier
Distribution Account in each case to the extent of the remaining portion of the
Simon Available Distribution Amount (the "Simon Default Distribution Priority"):
(i) as deemed distributions from the Simon Loan REMIC to the
Lower-Tier REMIC in respect of the Simon Loan REMIC Pooled Regular
Interest, as part of the Available Distribution Amount for such
Distribution Date, up to all Distributable Simon Pooled Component Interest
for such Distribution Date, and to the extent not previously paid, for all
prior Distribution Dates;
(ii) as deemed distributions from the Simon Loan REMIC to the
Lower-Tier REMIC in respect of the Simon Loan REMIC Pooled Regular
Interest, as part of the Available Distribution Amount for such
Distribution Date, up to an amount equal to the Simon Principal
Distribution Amount for such Distribution Date until the Simon Pooled
Balance is reduced to zero;
(iii) as deemed distributions from the Simon Loan REMIC to the
Lower-Tier REMIC in respect of the Simon Loan REMIC Pooled Regular
Interest, as part of the Available Distribution Amount for such
Distribution Date, as reimbursement for any Simon Collateral Support
Deficit, if any, previously allocated to the Simon Loan REMIC Pooled
Regular Interest and for which no reimbursement has previously been
received;
(iv) as deemed distributions from the Simon Loan REMIC to the
Lower-Tier REMIC in respect of the Class KSP-1 Uncertificated Interest, in
an amount up to the Distributable Simon Non-Pooled Component Interest for
the Class KSP-1 Uncertificated Interest for such Distribution Date;
(v) as deemed distributions from the Simon Loan REMIC to the
Lower-Tier REMIC in respect of the Class KSP-2 Uncertificated Interest, in
an amount up to the Distributable Simon Non-Pooled Component Interest for
the Class KSP-2 Uncertificated Interest for such Distribution Date;
(vi) as deemed distributions from the Simon Loan REMIC to the
Lower-Tier REMIC in respect of the Class KSP-3 Uncertificated Interest, in
an amount up to the Distributable Simon Non-Pooled Component Interest for
the Class KSP-3 Uncertificated Interest for such Distribution Date;
(vii) after the Simon Loan REMIC Principal Amount of the Simon Loan
REMIC Pooled Regular Interest has been reduced to zero, as deemed
distributions from the Simon Loan REMIC to the Lower-Tier REMIC in respect
of the Class KSP-1 Uncertificated Interest, in reduction of the Simon Loan
REMIC Principal Amount thereof, an amount equal to the Simon Principal
Distribution Amount (or the portion thereof remaining after any
distributions in respect of the Simon Loan REMIC Pooled Regular Interest
on such Distribution Date), until the outstanding Simon Loan REMIC
Principal Amount of the Class KSP-1 Uncertificated Interest has been
reduced to zero;
(viii) after the Simon Loan REMIC Principal Amount of the Class
KSP-1 Uncertificated Interest has been reduced to zero, as deemed
distributions from the Simon Loan REMIC to the Lower-Tier REMIC in respect
of the Class KSP-2 Uncertificated Interest, in reduction of the Simon Loan
REMIC Principal Amount thereof, an amount equal to the Simon Principal
Distribution Amount (or the portion thereof remaining after any
distributions in respect of the Simon Loan REMIC Pooled Regular Interest
and the Class KSP-1 Uncertificated Interest on such Distribution Date),
until the outstanding Simon Loan REMIC Principal Amount of the Class KSP-2
Uncertificated Interest has been reduced to zero;
(ix) after the Simon Loan REMIC Principal Amount of the Class KSP-2
Uncertificated Interest has been reduced to zero, as deemed distributions
from the Simon Loan REMIC to the Lower-Tier REMIC in respect of the Class
KSP-3 Uncertificated Interest, in reduction of the Simon Loan REMIC
Principal Amount thereof, an amount equal to the Simon Principal
Distribution Amount for such Distribution Date (or the portion thereof
remaining after any distributions in respect of the Simon Loan REMIC
Pooled Regular Interest and the Class KSP-1 and Class KSP-2 Uncertificated
Interests on such Distribution Date) until the KSP-3 Uncertificated
Interest has been reduced to zero;
(x) as deemed distributions from the Simon Loan REMIC to the
Lower-Tier REMIC in respect of the Class KSP-1 Uncertificated Interest, in
an amount equal to, and in reimbursement of, a Simon Collateral Support
Deficit, if any, previously allocated to the Class KSP-1 Uncertificated
Interest and for which no reimbursement has been previously received;
(xi) as deemed distributions from the Simon Loan REMIC to the
Lower-Tier REMIC in respect of the Class KSP-2 Uncertificated Interest, in
an amount equal to, and in reimbursement of, a Simon Collateral Support
Deficit, if any, previously allocated to the Class KSP-2 Uncertificated
Interest and for which no reimbursement has been previously received;
(xii) as deemed distributions from the Simon Loan REMIC to the
Lower-Tier REMIC in respect of the Class KSP-3 Uncertificated Interest, in
an amount equal to, and in reimbursement of, a Simon Collateral Support
Deficit, if any, previously allocated to the Class KSP-3 Uncertificated
Interest and for which no reimbursement has been previously received; and
(xiii) to make distributions to the Holders of the Class LR
Certificates in respect of the Simon Loan REMIC Residual Interest, up to
an amount equal to the excess, if any, of (A) the Simon Available
Distribution Amount on such Distribution Date, over (B) the sum of (1) the
aggregate distributions deemed made in respect of the Simon Loan REMIC
Pooled Regular Interest on such Distribution Date pursuant to clauses (i),
(ii) and (iii) of this Section 4.01(k) and (2) the aggregate distributions
made in respect of the Simon Loan REMIC Non-Pooled Regular Interests on
such Distribution Date pursuant to clauses (iv) through (xii) of this
Section 4.01(k).
The amounts to be applied pursuant to clauses (i), (ii) and (iii)
above will be included as part of the Available Distribution Amount for the
subject Distribution Date and will be applied as described above to make
distributions on the Certificates.
(l) All distributions made in respect of any Class of Class SP
Certificates on each Distribution Date pursuant to Section 4.01(a) or Section
9.01 shall be deemed to have first been distributed from the Related
Uncertificated Lower-Tier Interests and Related Simon Loan REMIC Regular
Interests. In each case, if such distribution on any such Class of Class SP
Certificates was a distribution of interest or principal or in reimbursement of
previously allocated Collateral Support Deficit in respect of such Class of
Class SP Certificates, then the corresponding distribution deemed to be first
made on a Related Simon Loan REMIC Regular Interest and then on the Related
Uncertificated Lower-Tier Interest pursuant to the preceding sentence shall be
deemed to also be a distribution of interest or principal or in reimbursement of
previously allocated Collateral Support Deficits, as the case may be, in respect
of the Related Uncertificated Lower-Tier Interests and Related Simon Loan REMIC
Regular Interests.
(m) On each Distribution Date, the Companion Paying Agent (based
upon a statement of the Servicer to be delivered to the Paying Agent and the
Companion Paying Agent that specifies the amount required to be deposited in the
Companion Distribution Account and any amounts payable to the Servicer from the
Companion Distribution Account pursuant to this Section 4.01(m)) shall make
withdrawals and payments from the Companion Distribution Account for the related
Companion Loans in the following order of priority:
(i) to pay the Paying Agent or any of its directors, officers,
employees and agents, as the case may be, any amounts payable or
reimbursable to any such Person pursuant to Section 8.05, to the extent
any such amounts relate solely to a Loan Pair;
(ii) to pay to the Servicer any amounts deposited by the Servicer in
the Companion Distribution Account not required to be deposited therein;
(iii) on each Distribution Date, to pay all amounts remaining in the
Companion Distribution Account to the Companion Holder; and
(iv) to clear and terminate the Companion Distribution Account at
the termination of this Agreement pursuant to Section 9.01.
All distributions from the Companion Distribution Account required
hereunder shall be made by the Companion Paying Agent to the Companion Holder by
wire transfer in immediately available funds to the account of such Companion
Holder or an agent therefor appearing on the Companion Register on the related
Record Date (or, if no such account so appears or information relating thereto
is not provided at least five Business Days prior to the related Record Date, by
check sent by first-class mail to the address of such Companion Holder or its
agent appearing on the Companion Register). Any such account shall be located at
a commercial bank in the United States.
(n) For so long as (i) no monetary or material non-monetary event of
default (which will include any Servicing Transfer Event (other than pursuant to
clause (iv) of the definition of Servicing Transfer Event) that has occurred and
is continuing with respect to the Walgreens Mortgage Loan) under the Walgreens
Mortgage Loan has occurred and is continuing and (ii) there are no unreimbursed
Advances outstanding as of the Distribution Date, on each Distribution Date, the
Paying Agent, in respect of the Walgreens Loan REMIC Pooled Regular Interest,
the Walgreens Loan REMIC Non-Pooled Regular Interest and the Walgreens Loan
REMIC Residual Interest represented by the Class LR Certificates, shall (except
as otherwise provided in Section 9.01), based on information provided by the
Servicer and the Special Servicer, be deemed to withdraw amounts on deposit in
the Walgreens Loan REMIC Distribution Account, after payment of amounts payable
from the Walgreens Loan REMIC Distribution Account in accordance with Section
3.05(c)(iii) through (viii), to the extent related to the Walgreens Mortgage
Loan, for the following purposes and in the following order of priority, and
shall be deemed to deposit such amounts in the Lower-Tier Distribution Account
in each case to the extent of the remaining portion of the Walgreens Available
Distribution Amount:
(i) as deemed distributions from the Walgreens Loan REMIC to the
Lower-Tier REMIC in respect of the Walgreens Loan REMIC Pooled Regular
Interest, as part of the Available Distribution Amount for such
Distribution Date, up to all Distributable Walgreens Pooled Component
Interest for such Distribution Date, and to the extent not previously
paid, for all prior Distribution Dates;
(ii) as deemed distributions from the Walgreens Loan REMIC to the
Lower-Tier REMIC in respect of the Walgreens Loan REMIC Pooled Regular
Interest, as part of the Available Distribution Amount for such
Distribution Date, up to an amount equal to the product of (x) the
Walgreens Principal Distribution Amount for such Distribution Date, and
(y) the Walgreens Pooled Percentage for such Distribution Date;
(iii) as deemed distributions from the Walgreens Loan REMIC to the
Lower-Tier REMIC in respect of the Walgreens Loan REMIC Pooled Regular
Interest, as part of the Available Distribution Amount for such
Distribution Date, as reimbursement for any Walgreens Collateral Support
Deficit, if any, previously allocated to the Walgreens Loan REMIC Pooled
Regular Interest and for which no reimbursement has previously been
received;
(iv) as deemed distributions from the Walgreens Loan REMIC to the
Lower-Tier REMIC in respect of the Class JWM Uncertificated Interest, in
an amount up to the Distributable Walgreens Non-Pooled Component Interest
for the Class JWM Uncertificated Interest for such Distribution Date;
(v) as deemed distributions from the Walgreens Loan REMIC to the
Lower-Tier REMIC in respect of the Class JWM Uncertificated Interest in
reduction of the Walgreens Loan REMIC Principal Amount thereof, an amount
equal to the product of (x) the Walgreens Principal Distribution Amount
for such Distribution Date and (y) the Walgreens Non-Pooled Percentage for
such Distribution Date until the outstanding Walgreens Loan REMIC
Principal Amount of the Class JWM Uncertificated Interest has been reduced
to zero;
(vi) as deemed distributions from the Walgreens Loan REMIC to the
Lower-Tier REMIC in respect of the Class JWM Uncertificated Interest, in
an amount equal to, and in reimbursement of, a Walgreens Collateral
Support Deficit, if any, previously allocated to the Class JWM
Uncertificated Interest and for which no reimbursement has been previously
received; and
(vii) to make distributions to the Holders of the Class LR
Certificates in respect of the Walgreens Loan REMIC Residual Interest, up
to an amount equal to the excess, if any, of (A) the Walgreens Available
Distribution Amount on such Distribution Date, over (B) the sum of (1) the
aggregate distributions deemed made in respect of the Walgreens Loan REMIC
Pooled Regular Interest on such Distribution Date pursuant to clauses (i),
(ii) and (iii) of this Section 4.01(n) and (2) the aggregate distributions
made in respect of the Walgreens Loan REMIC Non-Pooled Regular Interest on
such Distribution Date pursuant to clauses (iv) through (vi) of this
Section 4.01(n).
The amounts to be applied pursuant to clauses (i), (ii) and (iii)
above will be included as part of the Available Distribution Amount for the
subject Distribution Date and will be applied as described above to make
distributions on the Certificates.
(o) If a monetary or material non-monetary event of default (which
will include any Servicing Transfer Event (other than pursuant to clause (iv) of
the definition of Servicing Transfer Event) that has occurred and is continuing
with respect to the Walgreens Mortgage Loan) has occurred and is continuing with
respect to the Walgreens Mortgage Loan or there are outstanding unreimbursed
Advances as of the Distribution Date, on each Distribution Date, the Paying
Agent, in respect of the Walgreens Loan REMIC Pooled Regular Interest, the
Walgreens Loan REMIC Non-Pooled Regular Interest and the Class LR Certificates,
shall (except as otherwise provided in Section 9.01), based on information
provided by the Servicer and the Special Servicer, be deemed to withdraw amounts
on deposit in the Walgreens Loan REMIC Distribution Account, after payment of
amounts payable from the Walgreens Loan REMIC Distribution Account in accordance
with Section 3.05(c)(iii) through (viii), to the extent related to the Walgreens
Mortgage Loan, for the following purposes and in the following order of
priority, and shall be deemed to deposit such amounts in the Lower-Tier
Distribution Account in each case to the extent of the remaining portion of the
Walgreens Available Distribution Amount (the "Walgreens Default Distribution
Priority"):
(i) as deemed distributions from the Walgreens Loan REMIC to the
Lower-Tier REMIC in respect of the Walgreens Loan REMIC Pooled Regular
Interest, as part of the Available Distribution Amount for such
Distribution Date, up to all Distributable Walgreens Pooled Component
Interest for such Distribution Date, and to the extent not previously
paid, for all prior Distribution Dates;
(ii) as deemed distributions from the Walgreens Loan REMIC to the
Lower-Tier REMIC in respect of the Walgreens Loan REMIC Pooled Regular
Interest, as part of the Available Distribution Amount for such
Distribution Date, up to an amount equal to the Walgreens Principal
Distribution Amount for such Distribution Date until the Walgreens Pooled
Balance is reduced to zero;
(iii) as deemed distributions from the Walgreens Loan REMIC to the
Lower-Tier REMIC in respect of the Walgreens Loan REMIC Pooled Regular
Interest, as part of the Available Distribution Amount for such
Distribution Date, as reimbursement for any Walgreens Collateral Support
Deficit, if any, previously allocated to the Walgreens Loan REMIC Pooled
Regular Interest and for which no reimbursement has previously been
received;
(iv) as deemed distributions from the Walgreens Loan REMIC to the
Lower-Tier REMIC in respect of the Class JWM Uncertificated Interest, in
an amount up to the Distributable Walgreens Non-Pooled Component Interest
for the Class JWM Uncertificated Interest for such Distribution Date;
(v) after the Walgreens Loan REMIC Principal Amount of the Walgreens
Loan REMIC Pooled Regular Interest has been reduced to zero, as deemed
distributions from the Walgreens Loan REMIC to the Lower-Tier REMIC in
respect of the Class JWM Uncertificated Interest, in reduction of the
Walgreens Loan REMIC Principal Amount thereof, an amount equal to the
Walgreens Principal Distribution Amount (or the portion thereof remaining
after any distributions in respect of the Walgreens Loan REMIC Pooled
Regular Interest on such Distribution Date), until the outstanding
Walgreens Loan REMIC Principal Amount of the Class JWM Uncertificated
Interest has been reduced to zero;
(vi) as deemed distributions from the Loan REMIC to the Lower-Tier
REMIC in respect of the Class JWM Uncertificated Interest, in an amount
equal to, and in reimbursement of, a Walgreens Collateral Support Deficit,
if any, previously allocated to the Class JWM Uncertificated Interest and
for which no reimbursement has been previously received; and
(vii) to make distributions to the Holders of the Class LR
Certificates in respect of the Walgreens Loan REMIC Residual Interest, up
to an amount equal to the excess, if any, of (A) the Walgreens Available
Distribution Amount on such Distribution Date, over (B) the sum of (1) the
aggregate distributions deemed made in respect of the Walgreens Loan REMIC
Pooled Regular Interest on such Distribution Date pursuant to clauses (i),
(ii) and (iii) of this Section 4.01(o) and (2) the aggregate distributions
made in respect of the Walgreens Loan REMIC Non-Pooled Regular Interest on
such Distribution Date pursuant to clauses (iv) through (vi) of this
Section 4.01(o).
The amounts to be applied pursuant to clauses (i), (ii) and (iii)
above will be included as part of the Available Distribution Amount for the
subject Distribution Date and will be applied as described above to make
distributions on the Certificates.
(p) All distributions made in respect of the Class WM Certificates
on each Distribution Date pursuant to Section 4.01(a) or Section 9.01 shall be
deemed to have first been distributed from the Class LWM Uncertificated Interest
and the Class JWM Uncertificated Interest. In each case, if such distribution on
the Class WM Certificates was a distribution of interest or principal or in
reimbursement of previously allocated Collateral Support Deficit in respect of
the Class WM Certificates, then the corresponding distribution deemed to be
first made on the Class JWM Uncertificated Interest pursuant to the preceding
sentence shall be deemed to also be a distribution of interest or principal or
in reimbursement of previously allocated Collateral Support Deficits, as the
case may be, in respect of the Class LWM Uncertificated Interest.
Section 4.02 Statements to Certificateholders; CMSA Investor
Reporting Package (IRP)s.
(a) On each Distribution Date, the Paying Agent shall forward or
make available to any Interested Person a statement (substantially in the form
set forth as Exhibit G hereto and based on the information supplied to the
Paying Agent in the related CMSA Investor Reporting Package (IRP) in accordance
with CMSA guidelines) as to the distributions made on such Distribution Date
(each, a "Statement to Certificateholders") setting forth:
(i) the amount of the distribution on such Distribution Date to the
Holders of each Class of Certificates in reduction of the Certificate
Balance thereof;
(ii) the amount of the distribution on such Distribution Date to the
Holders of each Class of Certificates allocable to Distributable
Certificate Interest;
(iii) the aggregate amount of Advances made during the period from
but not including the previous Distribution Date to and including such
Distribution Date and details of P&I Advances as of the P&I Advance Date;
(iv) the aggregate amount of compensation paid to the Trustee and
servicing compensation paid to the Servicer and the Special Servicer with
respect to the Due Period for such Determination Date and an itemized list
detailing the aggregate Special Servicing Fees, Workout Fees and
Liquidation Fees paid to the Special Servicer with respect to the Due
Period for such Determination Date;
(v) the aggregate Stated Principal Balance of the Mortgage Loans and
any REO Loans outstanding immediately before and immediately after such
Distribution Date;
(vi) the number of loans, their aggregate principal balance,
weighted average remaining term to maturity and weighted average Mortgage
Rate of the Mortgage Loans as of the end of the related Due Period for
such Distribution Date;
(vii) the number and aggregate principal balance of Mortgage Loans
(A) delinquent 30-59 days, (B) delinquent 60-89 days, (C) delinquent 90
days or more, (D) current but specially serviced or in foreclosure but not
REO Property and (E) for which the related Mortgagor is subject to
oversight by a bankruptcy court;
(viii) the value of any REO Property included in the Trust Fund
(including the 00/000 Xxxxxxx Xxxxxx Mortgaged Property if such Mortgaged
Property is an "REO Property" as defined under the 00/000 Xxxxxxx Xxxxxx
Servicing Agreement) as of the end of the related Due Period for such
Distribution Date on a loan-by-loan basis, based on the most recent
Appraisal or valuation;
(ix) the Available Distribution Amount for such Distribution Date;
(x) the Accrued Certificate Interest in respect of such Class of
Certificates for such Distribution Date, separately identifying any
Certificate Deferred Interest for such Distribution Date allocated to such
Class of Certificates;
(xi) the amount of the distribution on such Distribution Date to the
Holders of such Class of Certificates allocable to (A) Yield Maintenance
Charges and (B) Excess Interest;
(xii) the Pass-Through Rate for such Class of Certificates for such
Distribution Date and the next succeeding Distribution Date;
(xiii) the Scheduled Principal Distribution Amount and the
Unscheduled Principal Distribution Amount for such Distribution Date;
(xiv) the Certificate Balance or Notional Amount, as the case may
be, of each Class of Certificates immediately before and immediately after
such Distribution Date, separately identifying any reduction therein as a
result of the allocation of any Collateral Support Deficit or Simon
Collateral Support Deficit on such Distribution Date and the aggregate
amount of all reductions as a result of allocations of Collateral Support
Deficits to date;
(xv) the Certificate Factor for each Class of Regular Certificates
and Class SP Certificates immediately following such Distribution Date;
(xvi) the amount of any Appraisal Reductions effected in connection
with such Distribution Date on a loan-by-loan basis and the total
Appraisal Reduction effected in connection with such Distribution Date,
together with a detailed worksheet showing the calculation of each
Appraisal Reduction on a current and cumulative basis;
(xvii)the number and related Stated Principal Balance of any
Mortgage Loans extended or modified since the previous Determination Date
(or in the case of the first Distribution Date, as of the Cut-off Date) on
a loan-by-loan basis;
(xviii) the amount of any remaining Class Unpaid Interest Shortfall
for such Class as of such Distribution Date;
(xix) a loan-by-loan listing of each Mortgage Loan which was the
subject of a Principal Prepayment since the previous Determination Date
(or in the case of the first Distribution Date, as of the Cut-off Date)
and the amount and the type of Principal Prepayment occurring;
(xx) a loan-by-loan listing of each Mortgage Loan which was defeased
since the previous Determination Date (or in the case of the first
Distribution Date, as of the Cut-off Date);
(xxi) all deposits into, withdrawals from, and the balance of the
Interest Reserve Account on the P&I Advance Date;
(xxii) in the case of the Residual Certificates, the amount of any
distributions on such Certificates pursuant to Sections 4.01(a) and (b);
(xxiii) the amount of the distribution on such Distribution Date to
the Holders of such Class of Certificates in reimbursement of previously
allocated Collateral Support Deficit, Simon Collateral Support Deficit or
Walgreens Collateral Support Deficit;
(xxiv) the aggregate unpaid principal balance of the Mortgage Loans
outstanding as of the close of business on the related Determination Date;
(xxv) with respect to any Mortgage Loan as to which a Liquidation
Event occurred since the previous Determination Date (or in the case of
the first Distribution Date, as of the Cut-off Date) or prior to the
related Determination Date (other than a payment in full), (A) the loan
number thereof, (B) the aggregate of all Liquidation Proceeds and other
amounts received in connection with such Liquidation Event (separately
identifying the portion thereof allocable to distributions on the
Certificates), and (C) the amount of any Collateral Support Deficit or
Simon Collateral Support Deficit in connection with such Liquidation
Event;
(xxvi) with respect to any REO Property included in the Trust Fund
(including the 00/000 Xxxxxxx Xxxxxx Mortgaged Property if such Mortgaged
Property is an "REO Property" as defined under the 00/000 Xxxxxxx Xxxxxx
Servicing Agreement) as to which a Final Recovery Determination was made
during the related Due Period or prior to the Determination Date, (A) the
loan number of the related Mortgage Loan, (B) the aggregate of all
Liquidation Proceeds and other amounts received in connection with such
Final Recovery Determination (separately identifying the portion thereof
allocable to distributions on the Certificates), and (C) the amount of any
Collateral Support Deficit in respect of the related REO Loan in
connection with such Final Recovery Determination;
(xxvii) the aggregate amount of interest on P&I Advances paid to the
Servicer, Special Servicer and the Trustee since the previous
Determination Date (or in the case of the first Distribution Date, as of
the Cut-off Date);
(xxviii) the aggregate amount of interest on Servicing Advances paid
to the Servicer, Special Servicer and the Trustee since the previous
Determination Date (or in the case of the first Distribution Date, as of
the Cut-off Date);
(xxix) the original and then current credit support levels for each
Class of Certificates;
(xxx) the original and then current ratings for each Class of
Regular Certificates; and
(xxxi) the amount of the distribution on the Distribution Date to
the Holders of the Residual Certificates; and
(xxxii) the aggregate amount of Yield Maintenance Charges collected
since the previous Determination Date (or in the case of the first
Distribution Date, as of the Cut-off Date).
In the case of information furnished pursuant to clauses (i), (ii),
(xi), (xvi) and (xviii) above, the amounts shall be expressed as a dollar amount
in the aggregate for all Certificates of each applicable Class and per
Definitive Certificate.
Within a reasonable period of time after the end of each calendar
year, the Paying Agent shall furnish to each Person who at any time during the
calendar year was a Holder of a Certificate, a statement containing the
information set forth in clauses (i), (ii) and (xi) above as to the applicable
Class, aggregated for such calendar year or applicable portion thereof during
which such person was a Certificateholder, together with such other information
as the Paying Agent deems necessary or desirable, or that a Certificateholder or
Certificate Owner reasonably requests, to enable Certificateholders to prepare
their tax returns for such calendar year. Such obligation of the Paying Agent
shall be deemed to have been satisfied to the extent that substantially
comparable information shall be provided by the Paying Agent pursuant to any
requirements of the Code as from time to time are in force.
On each Distribution Date, the Paying Agent shall make available to
any Interested Person via its website initially located at "xxx.xxxxxxxx.xxx"
(i) the related Statement to Certificateholders, (ii) the CMSA Loan Periodic
Update File, the CMSA Loan Setup File, the CMSA Bond Level File, the CMSA
Collateral Summary File, the CMSA Property File, the CMSA Financial File and
(iii) as a convenience to Interested Persons (and not in furtherance of the
distribution thereof under the securities laws), the Prospectus and this
Agreement.
The Paying Agent shall make available the Statement to
Certificateholders through its home page on the Internet. The Paying Agent
hereby acknowledges and agrees that its home page as of the date hereof is
located at "xxx.xxxxxxxx.xxx" on the world wide web. In addition, if the
Depositor so directs the Paying Agent, and on terms acceptable to the Paying
Agent, the Paying Agent shall make certain other information and reports related
to the Mortgage Loans available through its home page.
In addition, on each Distribution Date, the Paying Agent shall make
available, to any Privileged Person via its website, each of the "surveillance
reports" identified as such in the definition of "CMSA Investor Reporting
Package" to the extent delivered by the Servicer pursuant to this Agreement and
the updated Trustee's exception report.
Neither the Paying Agent nor the Trustee makes any representations
or warranties as to the accuracy or completeness of any report, document or
other information made available on their respective Internet websites and
assumes no responsibility therefor. In addition, the Trustee or the Paying Agent
may disclaim responsibility for any information distributed by them for which
the are not the original source.
In connection with providing access to the Paying Agent's Internet
website, the Paying Agent may require registration and the acceptance of a
disclaimer. The Trustee and the Paying Agent shall not be liable for the
dissemination of information in accordance herewith. Questions regarding the
Paying Agent's Internet website can be directed to the Paying Agent's CMBS
customer service desk at (000) 000-0000.
The Servicer may, at its sole cost and expense, make available by
electronic media, bulletin board service or Internet website (in addition to
making information available as provided herein) any reports or other
information the Servicer is required or permitted to provide to any party to
this Agreement, the Rating Agencies or any Certificateholder or prospective
Certificateholder to the extent such action does not conflict with the terms of
this Agreement, the terms of the Mortgage Loans or applicable law.
Notwithstanding this paragraph, the availability of such information or reports
on the Internet or similar electronic media shall not be deemed to satisfy any
specific delivery requirements in this Agreement except as set forth herein. In
connection with providing access to the Servicer's Internet website, the
Servicer shall take reasonable measures to ensure that only such parties listed
above may access such information including, without limitation, requiring
registration, a confidentiality agreement and acceptance of a disclaimer. The
Servicer shall not be liable for dissemination of this information in accordance
with this Agreement, provided that such information otherwise meets the
requirements set forth herein with respect to the form and substance of such
information or reports. The Servicer shall be entitled to attach to any report
provided pursuant to this subsection, any reasonable disclaimer with respect to
information provided, or any assumptions required to be made by such report.
Notwithstanding anything herein to the contrary, the Servicer may, at its sole
cost and expense, make available by electronic media, bulletin board service or
Internet website (xxx.xxxxxxxx.xxx) any reports or other information the
Servicer is required or permitted to provide to any Mortgagor with respect to
such Mortgagor's Mortgage Loan to the extent such action does not conflict with
the terms of this Agreement, the terms of the Mortgage Loans or applicable law.
(b) The Special Servicer shall from time to time (and, in any event,
as may be reasonably required by the Servicer) provide the Servicer with such
information in its possession regarding the Specially Serviced Mortgage Loans
and REO Properties as may be necessary for the Servicer to prepare each report
and any supplemental information to be provided by the Servicer to the Paying
Agent. Neither the Paying Agent nor the Depositor shall have any obligation to
recompute, verify or recalculate the information provided thereto by the
Servicer. Unless the Paying Agent has actual knowledge that any report or file
received from the Servicer contains erroneous information, the Paying Agent is
authorized to rely thereon in calculating and making distributions to
Certificateholders in accordance with Section 4.01, preparing the statements to
Certificateholders required by Section 4.02(a) and allocating Collateral Support
Deficit to the Certificates in accordance with Section 4.04.
Notwithstanding the foregoing, the failure of the Servicer or
Special Servicer to disclose any information otherwise required to be disclosed
pursuant to this Section 4.02(b) or Section 4.02(c) shall not constitute a
breach of this Section 4.02(b) or of Section 4.02(c) to the extent the Servicer
or the Special Servicer so fails because such disclosure, in the reasonable
belief of the Servicer or the Special Servicer, as the case may be, would
violate any applicable law or any provision of a Mortgage Loan document
prohibiting disclosure of information with respect to the Mortgage Loans or the
Mortgaged Properties. The Servicer or the Special Servicer may affix to any
information provided by it any disclaimer it deems appropriate in its reasonable
discretion (without suggesting liability on the part of any other party hereto).
(c) As soon as reasonably practicable, upon the written request of
and at the expense of any Certificateholder, the Paying Agent shall provide the
requesting Certificateholder with such information that is in the Paying Agent's
possession or can reasonably be obtained by the Paying Agent as is requested by
such Certificateholder, for purposes of satisfying applicable reporting
requirements under Rule 144A under the Securities Act. Neither the Certificate
Registrar the Paying Agent nor the Trustee shall have any responsibility for the
sufficiency under Rule 144A or any other securities laws of any available
information so furnished to any person including any prospective purchaser of a
Certificate or any interest therein, nor for the content or accuracy of any
information so furnished which was prepared or delivered to them by another.
(d) The information to which any Certificateholder is entitled is
limited to the information gathered and provided to the Certificateholder by the
parties hereto pursuant to this Agreement and by acceptance of any Certificate,
each Certificateholder agrees that except as specifically provided herein, no
Certificateholder shall contact any Mortgagor directly with respect to any
Mortgage Loan.
(e) (i) The Paying Agent, the Servicer and the Special Servicer
shall reasonably cooperate with the Depositor in connection with the Trust's
satisfying the reporting requirements under the Exchange Act. The Paying Agent
shall prepare on behalf of the Trust any Forms 8-K and 10-K customary for
similar securities as required by the Exchange Act and the Rules and Regulations
of the Securities and Exchange Commission thereunder, and the Paying Agent shall
sign and file (via the Securities and Exchange Commission's Electronic Data
Gathering and Retrieval System) such Forms on behalf of the Depositor. The
Depositor hereby grants to the Paying Agent a limited power of attorney to
execute and file each such documents on behalf of the Depositor. Such power of
attorney shall continue until the earlier of either (i) receipt by the Paying
Agent from the Depositor of written termination of such power of attorney and
(ii) the termination of the Trust. Notwithstanding the foregoing, in the event
that the Securities and Exchange Commission does not accept a Certification
signed by the Depositor where the related Form 10-K is signed by the Paying
Agent on behalf of the Depositor, the Paying Agent shall prepare such Form 10-K
to be signed by the Depositor and the Depositor shall sign such form.
(ii) Each Form 8-K shall be filed by the Paying Agent within 15 days
after each Distribution Date, including a copy of the Statement to the
Certificateholders for such Distribution Date as an exhibit thereto. Prior
to March 30th of each year (or such earlier date as may be required by the
Exchange Act and the Rules and Regulations of the Securities and Exchange
Commission), the Paying Agent shall file a Form 10-K, in substance as
required by applicable law or applicable Securities and Exchange
Commission staff's interpretations. Such Form 10-K shall include as
exhibits the Servicer's and the Special Servicer's annual statement of
compliance described under Section 3.13 and the accountant's report
described under Section 3.14, in each case to the extent they have been
timely delivered to the Paying Agent. If they are not so timely delivered,
the Paying Agent shall file an amended Form 10-K including such documents
as exhibits reasonably promptly after they are delivered to the Paying
Agent. The Paying Agent shall have no liability with respect to any
failure to properly prepare or file such periodic reports resulting from
or relating to the Paying Agent's inability or failure to obtain any
information not resulting from its own negligence, willful misconduct or
bad faith. The Form 10-K shall also include a certification in the form
attached hereto as Exhibit P (the "Certification"), which shall, except as
described below, be signed by the senior officer of the Depositor in
charge of securitization. Notwithstanding the foregoing, if the Securities
and Exchange Commission determines that the Certification may be executed
by multiple persons, the Paying Agent shall sign the Certification in
respect of the portion of items 1 through 3 thereof pertaining to the
Stated Principal Balance, Pass-Through Rate and principal and interest
distributions of the Certificates and the Servicer and Special Servicer
shall cause each of their respective senior officers in charge of
servicing at the Servicer and Special Servicer to sign the Certification
in respect of the remainder of items 1 through 3 relating to their
respective servicing information and in respect of items 4 and 5 thereof,
and the Paying Agent may rely on the Certification signed by the Servicer
and the Special Servicer to the same extent as provided in subsection
(iii) below.
(iii) In the event the Certification is to be signed by an officer
of the Depositor, the Paying Agent shall sign a certification (in the form
attached hereto as Exhibit Q) for the benefit of the Depositor and its
officers, directors and Affiliates in respect of items 1 through 3 of the
Certification relating to distribution information (provided, however,
that the Paying Agent shall not undertake an analysis of the accountant's
report attached as an exhibit to the Form 10-K), and the Servicer and
Special Servicer shall each sign a certification (in the form attached
hereto as Exhibit Q) for the benefit of the Depositor, the Paying Agent
and their officers, directors and Affiliates in respect of items 1 through
3 relating to servicing information and in respect of items 4 and 5 of the
Certification. Each such certification shall be delivered to the Depositor
and the Paying Agent by March 15th of each year (or if not a Business Day,
the immediately preceding Business Day). The Certification attached hereto
as Exhibit P shall be delivered to the Paying Agent for filing by March
20th of each year (or if not a Business Day, the immediately preceding
Business Day). In addition, (i) the Paying Agent shall indemnify and hold
harmless the Depositor and its officers, directors and Affiliates from and
against any losses, damages, penalties, fines, forfeitures, reasonable and
necessary legal fees and related costs, judgments and other costs and
expenses arising out of or based upon a breach of the Paying Agent's
obligations under this Section 4.02(e) or the Paying Agent's negligence,
bad faith or willful misconduct in connection therewith, and (ii) the
Servicer and Special Servicer shall each severally and not jointly
indemnify and hold harmless the Depositor, the Paying Agent and their
respective officers, directors and Affiliates from and against any losses,
damages, penalties, fines, forfeitures, reasonable and necessary legal
fees and related costs, judgments and other costs and expenses arising out
of or based upon a breach of the Servicer's or Special Servicer's
obligations of the Servicer or the Special Servicer, as the case may be,
under this Section 4.02(e) or the negligence, bad faith or willful
misconduct of the Servicer or the Special Servicer, as the case may be, in
connection therewith. If the indemnification provided for herein is
unavailable or insufficient to hold harmless the Depositor, then (i) the
Paying Agent agrees that it shall contribute to the amount paid or payable
to the Depositor as a result of the losses, claims, damages or liabilities
of the Depositor in such proportion as is appropriate to reflect the
relative fault of the Depositor on the one hand and the Paying Agent on
the other in connection with a breach of the Paying Agent's obligations
under this Section 4.02(e) or the Paying Agent's negligence, bad faith or
willful misconduct in connection therewith, (ii) the Servicer agrees that
it shall contribute to the amount paid or payable by the Depositor as a
result of the losses, claims, damages or liabilities of the Depositor in
such proportion as is appropriate to reflect the relative fault of the
Depositor on the one hand and the Servicer on the other in connection with
a breach of the Servicer's obligations under this Section 4.02(e) or the
Servicer's negligence, bad faith or willful misconduct in connection
therewith and (iii) the Special Servicer agrees that it shall contribute
to the amount paid or payable by the Depositor as a result of the losses,
claims, damages or liabilities of the Depositor in such proportion as is
appropriate to reflect the relative fault of the Depositor on the one hand
and the Special Servicer on the other in connection with a breach of the
Servicer's obligations under this Section 4.02(e) or the Special
Servicer's negligence, bad faith or willful misconduct in connection
therewith.
(iv) Upon any filing with the Securities and Exchange Commission,
the Paying Agent shall promptly deliver to the Depositor, Servicer and
Special Servicer a copy of any such executed report, statement or
information.
(f) Prior to January 30 of the first year in which the Paying Agent
is able to do so under applicable law, the Paying Agent shall file a Form 15
Suspension Notification with respect to the Trust.
Section 4.03 P&I Advances.
(a) On or before 2:00 p.m., New York City time, on each P&I Advance
Date, the Servicer shall either (i) remit to the Paying Agent for deposit into
the Lower-Tier Distribution Account (or (A) the Simon Loan REMIC Distribution
Account in the case of the Simon Mortgage Loan or (B) the Walgreens Loan REMIC
Distribution Account in the case of the Walgreens Mortgage Loan) from its own
funds an amount equal to the aggregate amount of P&I Advances, if any, to be
made in respect of the related Distribution Date, (ii) apply amounts held in the
Certificate Account for future distribution to Certificateholders in subsequent
months in discharge of any such obligation to make P&I Advances or (iii) make
P&I Advances in the form of any combination of (i) and (ii) aggregating the
total amount of P&I Advances to be made. Any amounts held in the Certificate
Account for future distribution and so used to make P&I Advances shall be
appropriately reflected in the Servicer's records and replaced by the Servicer
by deposit in the Certificate Account on or before the next succeeding P&I
Advance Date (to the extent not previously replaced through the deposit of Late
Collections of the delinquent principal and/or interest in respect of which such
P&I Advances were made). If the Servicer fails to make a required P&I Advance by
2:00 p.m., New York City time (including a P&I Advance pursuant to Section
4.03(g)), on any P&I Advance Date, an Event of Default as set forth in clause
(a)(i) of Section 7.01 shall occur and the Trustee shall make such P&I Advance
pursuant to Section 7.05 by noon, New York City time, on the related
Distribution Date, in each case unless the Servicer shall have cured such
failure (and provided written notice of such cure to the Trustee and the Paying
Agent) by 11:00 a.m. on such Distribution Date. In the event that the Servicer
fails to make a required P&I Advance hereunder, the Paying Agent shall notify
the Trustee of such circumstances by 2:30 p.m. (New York City time) on the
related P&I Advance Date.
(b) Subject to Section 4.03(c) and (e) below, the aggregate amount
of P&I Advances to be made by the Servicer with respect to any Distribution Date
shall equal the aggregate of: (i) all Monthly Payments (in each case, net of
related Servicing Fees) other than Balloon Payments, that were due during the
related Due Period and not received as of the Business Day prior to the P&I
Advance Date and (ii) with respect to each Mortgage Loan as to which the related
Balloon Payment was due during or prior to the related Due Period and was
delinquent as of the end of the related Due Period (including any REO Loan as to
which the Balloon Payment would have been past due) and each REO Loan, an amount
equal to the Assumed Scheduled Payment therefor. Subject to subsection (c)
below, the obligation of the Servicer to make such P&I Advances is mandatory,
and with respect to any Mortgage Loan or REO Loan, shall continue until the
Distribution Date on which the proceeds, if any, received in connection with a
Liquidation Event or the disposition of the REO Property, as the case may be,
with respect thereto are to be distributed.
(c) Notwithstanding anything herein to the contrary, no P&I Advance
shall be required to be made hereunder if such P&I Advance would, if made,
constitute a Nonrecoverable P&I Advance.
(d) In connection with the recovery of any P&I Advance out of the
Certificate Account, the Simon Collection Account or the Walgreens Collection
Account, as applicable, pursuant to Section 3.05(a), the Servicer shall be
entitled to pay the Trustee and itself (in that order of priority) as the case
may be out of any amounts then on deposit in the Certificate Account, interest
at the Reimbursement Rate (or with respect to an AB Mortgage Loan, the rate
provided in the applicable Intercreditor Agreement) in effect from time to time,
accrued on the amount of such P&I Advance from the date made to but not
including the date of reimbursement; provided, however, that no interest will
accrue on any P&I Advance (i) made with respect to a Mortgage Loan until after
the related Due Date has passed and any applicable grace period has expired or
(ii) if the related Monthly Payment is received after the Determination Date but
on or prior to the related P&I Advance Date. The Servicer shall reimburse itself
or the Trustee, as the case may be, for any outstanding P&I Advance as soon as
practicably possible after funds available for such purpose are deposited in the
Certificate Account.
(e) Notwithstanding the foregoing, (i) neither the Servicer nor the
Trustee shall make an advance for Excess Interest, Yield Maintenance Charges,
Penalty Charges and (ii) if an Appraisal Reduction has been made with respect to
any Mortgage Loan then in the event of subsequent delinquencies thereon, the
interest portion of the P&I Advance in respect of such Mortgage Loan for the
related Distribution Date shall be reduced (it being herein acknowledged that
there shall be no reduction in the principal portion of such P&I Advance) to
equal the product of (x) the amount of the interest portion of such P&I Advance
for such Mortgage Loan for such Distribution Date without regard to this
subsection (ii), and (y) a fraction, expressed as a percentage, the numerator of
which is equal to the Stated Principal Balance of such Mortgage Loan immediately
prior to such Distribution Date, net of the related Appraisal Reduction, if any,
and the denominator of which is equal to the Stated Principal Balance of such
Mortgage Loan immediately prior to such Distribution Date. For purposes of the
immediately preceding sentence, the Monthly Payment due on the Maturity Date for
a Balloon Mortgage Loan will be the amount that would be due on such day based
on the full amortization schedule used to calculate the Monthly Payments thereon
prior to the Maturity Date.
(f) In no event shall the Servicer or the Trustee make a P&I Advance
with respect to any Companion Loan.
(g) If, as of 1:00 p.m. on any P&I Advance Date, the 00/000 Xxxxxxx
Xxxxxx Servicer fails to make a P&I Advance (as defined under the 00/000 Xxxxxxx
Xxxxxx Servicing Agreement) with respect to the 00/000 Xxxxxxx Xxxxxx Mortgage
Loan or the related REO Loan (as defined under the 00/000 Xxxxxxx Xxxxxx
Servicing Agreement) pursuant to the 00/000 Xxxxxxx Xxxxxx Servicing Agreement
and the Servicer has not received written notice from the 00/000 Xxxxxxx Xxxxxx
Servicer that such advance would be nonrecoverable and based on information
available to the Servicer, the Servicer has not determined such advance to be a
Nonrecoverable P&I Advance, the Servicer shall make such advance as a P&I
Advance.
Section 4.04 Allocation of Collateral Support Deficit.
(a) On each Distribution Date, immediately following the
distributions to be made on such date pursuant to Section 4.01 and the
allocation of Certificate Deferred Interest pursuant to Section 4.06, the Paying
Agent shall calculate the amount, if any, by which (i) the aggregate Stated
Principal Balance of the Mortgage Loans (or (a) in the case of the Simon
Mortgage Loan, the Simon Pooled Balance of the Simon Pooled Component after
giving effect to any allocations of Simon Collateral Support Deficit to the
Simon Pooled Component on such Distribution Date or (b) in the case of the
Walgreens Mortgage Loan, the Walgreens Pooled Balance of the Walgreens Pooled
Component after giving effect to any allocations of Walgreens Collateral Support
Deficit to the Walgreens Pooled Component on such Distribution Date) and any REO
Loans expected to be outstanding immediately following such Distribution Date,
is less than (ii) the then aggregate Certificate Balance of the Regular
Certificates after giving effect to distributions of principal on such
Distribution Date and the allocation of Certificate Deferred Interest pursuant
to Section 4.06 (any such deficit, the "Collateral Support Deficit"). Any
allocation of Collateral Support Deficit to a Class of Regular Certificates
shall be made by reducing the Certificate Balance thereof by the amount so
allocated. Any Collateral Support Deficit allocated to a Class of Regular
Certificates shall be allocated among the respective Certificates of such Class
in proportion to the Percentage Interests evidenced thereby. The allocation of
Collateral Support Deficit shall constitute an allocation of losses and other
shortfalls experienced by the Trust Fund. Reimbursement of previously allocated
Collateral Support Deficit will not constitute distributions of principal for
any purpose and will not result in an additional reduction in the Certificate
Balance of the Class of Certificates in respect of which any such reimbursement
is made.
(b) On each Distribution Date, the Certificate Balances of the
Regular Certificates will be reduced without distribution, as a write-off to the
extent of any Collateral Support Deficit, if any, allocable to such Certificates
with respect to such Distribution date. Any such write-off shall be allocated
first to the Class NR Certificates; second to the Class N Certificates; third to
the Class M Certificates; fourth to the Class L Certificates; fifth to the Class
K Certificates; sixth to the Class J Certificates; seventh to the Class H
Certificates; eighth to the Class G Certificates; ninth to the Class F
Certificates; tenth to the Class E Certificates; eleventh to the Class D
Certificates; twelfth to the Class C Certificates; thirteenth to the Class B
Certificates, in each case, until the remaining Certificate Balance of each such
Class of Certificates has been reduced to zero and fourteenth to the Class A-1
and Class A-2 Certificates, pro rata (based upon Certificate Balance), until the
remaining Certificate Balances of such Classes of Certificates have been reduced
to zero.
(c) With respect to any Distribution Date, any Collateral Support
Deficit allocated to a Class of Certificates pursuant to Section 4.04(b) with
respect to such Distribution Date shall reduce the Lower-Tier Principal Amount
of the Related Uncertificated Lower-Tier Interest with respect thereto as a
write-off (in the case of (i) the Class A-1 Certificates, first to the Class
LA-1-1 Uncertificated Interest, second to the Class LA-1-2 Uncertificated
Interest, third to the Class LA-1-3 Uncertificated Interest, fourth to the Class
LA-1-4 Uncertificated Interest and fifth to the Class LA-1-5 Uncertificated
Interest, in each case, until reduced to zero, (ii) the Class A-2 Certificates,
first to the Class LA-2-1 Uncertificated Interest, second to the Class LA-2-2
Uncertificated Interest, third to the Class LA-2-3 Uncertificated Interest and
then to the Class LA-2-4 Uncertificated Interest, in each case, until reduced to
zero, (iii) Class F Certificates, first to the Class LF-1 Uncertificated
Interest and then to the Class LF-2 Uncertificated Interest, in each case, until
reduced to zero, (iv) the Class G Certificates, first to the Class LG-1
Uncertificated Interest and then to the Class LG-2 Uncertificated Interest, in
each case, until reduced to zero, (v) the Class H Certificates, first to the
Class LH-1 Uncertificated Interest and then to the Class LH-2 Uncertificated
Interest, in each case, until reduced to zero, and (vi) the Class J
Certificates, first to the Class LJ-1 Uncertificated Interest and then to the
Class LJ-2 Uncertificated Interest, in each case, until reduced to zero).
(d) On each Distribution Date, immediately following the
distributions to be made on such date pursuant to Section 4.01 and the
allocation of Certificate Deferred Interest pursuant to Section 4.06, the Paying
Agent shall calculate the amount, if any, by which (i) the aggregate Stated
Principal Balance of the Simon Mortgage Loan expected to be outstanding
immediately following such Distribution Date, is less than (ii) the sum of (A)
the Simon Pooled Balance of the Simon Pooled Component and (B) the then
aggregate Certificate Balance of the Class SP Certificates, in the case of
clauses (A) and (B), after giving effect to distributions of principal on such
Distribution Date and the allocation of Certificate Deferred Interest pursuant
to Section 4.06 (any such deficit, the "Simon Collateral Support Deficit"). On
each Distribution Date, the Certificate Balances of the Class SP Certificates
and the Simon Pooled Balance of the Simon Pooled Component will be reduced
without distribution as a write-off to the extent of any Simon Collateral
Support Deficit, if any, allocable to such Certificates or Simon Pooled
Component with respect to such Distribution Date. Any such write-offs shall be
allocated first to the Class KSP-3 Uncertificated Interest; second to the Class
KSP-2 Uncertificated Interest; third to the Class KSP-1 Uncertificated Interest;
and fourth to the Simon Loan REMIC Pooled Regular Interest, in each case in
reduction of the Simon Loan REMIC Principal Amount thereof, until such Simon
Loan REMIC Principal Amount has been reduced to zero. Any such write-offs
allocated to the Class KSP-1, KSP-2 or Class KSP-3 Uncertificated Interests
shall be allocated to the Class LSP-1, Class LSP-2 and Class LSP-3
Uncertificated Interests, respectively, in each case until the Lower-Tier
Principal Amount thereof has been reduced to zero.
(e) On each Distribution Date, immediately following the
distributions to be made on such date pursuant to Section 4.01 and the
allocation of Certificate Deferred Interest pursuant to Section 4.06, the Paying
Agent shall calculate the amount, if any, by which (i) the aggregate Stated
Principal Balance of the Walgreens Mortgage Loan expected to be outstanding
immediately following such Distribution Date, is less than (ii) the sum of (A)
the Walgreens Pooled Balance of the Walgreens Pooled Component and (B) the then
Certificate Balance of the Class WM Certificates, in the case of clauses (A) and
(B), after giving effect to distributions of principal on such Distribution Date
and the allocation of Certificate Deferred Interest pursuant to Section 4.06
(any such deficit, the "Walgreens Collateral Support Deficit"). On each
Distribution Date, the Certificate Balance of the Class WM Certificates and the
Walgreens Pooled Balance of the Walgreens Pooled Component will be reduced
without distribution as a write-off to the extent of any Walgreens Collateral
Support Deficit, if any, allocable to such Certificates or Walgreens Pooled
Component with respect to such Distribution Date. Any such write-offs shall be
allocated: first to the Class JWM Uncertificated Interest; and second to the
Walgreens Loan REMIC Pooled Regular Interest, in each case in reduction of the
Walgreens Loan REMIC Principal Amount thereof, until such Walgreens Loan REMIC
Principal Amount has been reduced to zero. Any such write-offs allocated to the
Class JWM Uncertificated Interest shall be allocated to the Class LWM
Uncertificated Interest until the Lower-Tier Principal Amount thereof has been
reduced to zero.
Section 4.05 Certificate Deferred Interest.
(a) On each Distribution Date, the amount of interest distributable
to a Class of Regular Certificates (other than the Class X Certificates) shall
be reduced by an amount equal to the amount of Mortgage Deferred Interest for
all Majority Mortgage Loans and the Simon Pooled Component for the Due Dates
occurring in the related Due Period allocated to such Class of Certificates or
Simon Pooled Component, such Mortgage Deferred Interest to be allocated first to
the Class NR Certificates, second to the Class N Certificates, third to the
Class M Certificates, fourth to the Class L Certificates, fifth to the Class K
Certificates, sixth to the Class J Certificates, seventh to the Class H
Certificates, eighth to the Class G Certificates; ninth to the Class F
Certificates, tenth to the Class E Certificates; eleventh to the Class D
Certificates; twelfth to the Class C Certificates, thirteenth, to the Class B
Certificates; and fourteenth, pro rata (based upon Accrued Certificate
Interest), to the Class A-1 and Class A-2 Certificates, in each case up to the
respective Accrued Certificate Interest for each such Class of Certificates for
such Distribution Date. On each Distribution Date, the amount of interest
distributable to the Class SP Certificates shall be reduced by an amount equal
to the amount of Mortgage Deferred Interest for the Simon Mortgage Loan for the
Due Date occurring in the related Due Period allocated to such Class of
Certificates, such Mortgage Deferred Interest to be allocated first to the Class
SP-3 Certificates, second to the Class SP-2 Certificates, third to the Class
SP-1 Certificates, and fourth to the Simon Pooled Component, which will be
allocated to the Regular Certificates in the priority set forth in the preceding
sentence. On each Distribution Date, the amount of interest distributable to the
Class WM Certificates shall be reduced by an amount equal to the amount of
Mortgage Deferred Interest for the Walgreens Mortgage Loan for the Due Date
occurring in the related Due Period allocated to the Class WM Certificates, such
Mortgage Deferred Interest to be allocated: first to the Class WM Certificates,
and second to the Walgreens Pooled Component, which will be allocated to the
Regular Certificates in the priority set forth in the second preceding sentence.
(b) On each Distribution Date, the Certificate Balances of the Class
A-1, Class A-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 and Class NR Certificates, shall be
increased by the amount of the Certificate Deferred Interest allocated to such
Class of Certificates on such Distribution Date pursuant to Section 4.05(a)
above. On each Distribution Date the Certificate Deferred Interest allocable to
(i) the Class A-1 Certificates will be allocated to the Class LA-1-1
Uncertificated Interest, the Class LA-1-2 Uncertificated Interest, the Class
LA-1-3 Uncertificated Interest, the Class LA-1-4 Uncertificated Interest and the
Class LA-2-5 Uncertificated Interest, (ii) the Class A-2 Certificates will be
allocated to the Class LA-2-1 Uncertificated Interest, the Class LA-2-2
Uncertificated Interest, the Class LA-2-3 Uncertificated Interest and the Class
LA-2-4 Uncertificated Interest, (iii) the Class F Certificates will be allocated
to the Class LF-1 Uncertificated Interest and the Class LF-2 Uncertificated
Interest, (iv) the Class G Certificates will be allocable to the Class LG-1
Uncertificated Interest and the Class LG-2 Uncertificated Interest, (v) the
Class H Certificates will be allocated to the Class LH-1 Uncertificated Interest
and the Class LH-2 Uncertificated Interest, and (vi) the Class J Certificates
will be allocated to the Class LJ-1 Uncertificated Interest and the Class LJ-2
Uncertificated Interest, in each case pro rata, based upon the Certificate
Balance of such Uncertificated Lower-Tier Interests immediately prior to such
Distribution Date.
(c) With respect to any Distribution Date, any Certificate Deferred
Interest with respect to such Distribution Date allocated pursuant to Section
4.05(a) to a Class of Certificates shall be allocated in reduction of the amount
of interest distributable to the Related Uncertificated Lower-Tier Interest with
respect thereto (in the case of (i) the Class A-1 Certificates, will be
allocated to the Class LA-1-1 Uncertificated Interest, the Class LA-1-2
Uncertificated Interest, the Class LA-1-3 Uncertificated Interest, the Class
LA-1-4 Uncertificated Interest and the Class LA-1-5 Uncertificated Interest,
(ii) the Class A-2 Certificates, will be allocated to the Class LA-2-1
Uncertificated Interest, the Class LA-2-2 Uncertificated Interest, the Class
LA-2-3 Uncertificated Interest and the Class LA-2-4 Uncertificated Interest,
(iii) the Class F Certificates, will be allocated to the Class LF-1
Uncertificated Interest and the Class LF-2 Uncertificated Interest, (iv) the
Class G Certificates, will be allocable to the Class LG-1 Uncertificated
Interest and the Class LG-2 Uncertificated Interest, (v) the Class H
Certificates, will be allocated to the Class LH-1 Uncertificated Interest and
the Class LH-2 Uncertificated Interest, and (vi) the Class J Certificates, will
be allocated to the Class LJ-1 Uncertificated Interest and the Class LJ-2
Uncertificated Interest, in each case pro rata, based on interest accrued at the
Pass-Through Rate for the Related Certificates; provided, that no such
allocation shall be made in respect of the portion of such interest representing
the related Class X-1 Strip Rate or Class X-2 Strip Rate. On each Distribution
Date, to the extent provided in Section 4.05(b), Certificate Deferred Interest
will be added to the Lower-Tier Principal Amount of the Uncertificated
Lower-Tier Interests in the same manner as the interest thereon was reduced
pursuant to the preceding sentence.
(d) Any Mortgage Deferred Interest for the Simon Mortgage Loan shall
be allocated in reduction of the amount of interest distributable to, and will
be added to the Simon Loan REMIC Principal Amount of, the Simon Loan REMIC
Regular Interests, first, to the Class KSP-3 Uncertificated Interest; second, to
the Class KSP-2 Uncertificated Interest; third, to the Class KSP-1
Uncertificated Interest; and fourth, to the Simon Loan REMIC Pooled Regular
Interest. Any Mortgage Deferred Interest allocated to the Class KSP-1, Class KSP
2 or Class KSP-3 Uncertificated Interests shall be allocated in reduction of the
amount of interest distributed to, and will be added to the Lower-Tier Principal
Amount of the Class LSP-1, Class LSP-2 or Class LSP-3 Uncertificated Interests,
respectively.
(e) Any Mortgage Deferred Interest for the Walgreens Mortgage Loan
shall be allocated in reduction of the amount of interest distributable to, and
will be added to the Walgreens Loan REMIC Principal Amount of, the Walgreens
Loan REMIC Regular Interests, first, to the Class JWM Uncertificated Interest;
and second, to the Walgreens Loan REMIC Pooled Regular Interest. Any Mortgage
Deferred Interest allocated to the Class JWM Uncertificated Interest shall be
allocated in reduction of the amount of interest distributed to, and will be
added to the Lower-Tier Principal Amount of the Class LWM Uncertificated
Interest.
Section 4.06 Grantor Trust Reporting.
The parties intend that the portion of the Trust Fund constituting
the Grantor Trust, consisting of the Excess Interest allocable to the Mortgage
Loans, proceeds thereof held in the Certificate Account pertaining to the Excess
Interest allocable to the Mortgage Loans and the Excess Interest Distribution
Account shall constitute, and that the affairs of the Trust Fund (exclusive of
the Loan REMIC, the Lower-Tier REMIC and the Upper-Tier REMIC) shall be
conducted so as to qualify such portion as a "grantor trust" under the Code, and
the provisions hereof shall be interpreted consistently with this intention. In
furtherance of such intention, the Paying Agent shall file or cause to be filed
with the Internal Revenue Service together with Form 1041 or such other form as
may be applicable and shall furnish or cause to be furnished, to the Class NR
Certificateholders, the amount of Excess Interest allocable to the Mortgage
Loans received, in the time or times and in the manner required by the Code.
[End of Article IV]
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates.
(a) The Certificates will be substantially in the respective forms
annexed hereto as Exhibit A-1 through and including Exhibit A-23. The
Certificates will be issuable in registered form only; provided, however, that
in accordance with Section 5.03 beneficial ownership interests in the Regular
Certificates and the Class SP Certificates shall initially be held and
transferred through the book-entry facilities of the Depository. The Class R and
Class LR Certificates will each be issuable in one or more registered,
definitive physical certificates (each, a "Definitive Certificate")
substantially in the form of Certificates of each Class and with such applicable
legends as are set forth in the Exhibits hereto corresponding to such Class.
Each Certificate will share ratably in all rights of the related Class. The
Class X Certificates will be issuable only in minimum Denominations of
authorized Original Notional Amount of not less than $1,000,000 and in integral
multiples of $1.00 in excess thereof. The Offered Certificates (other than the
Class X Certificates) will be issuable only in minimum Denominations of
authorized initial Certificate Balance of not less than $10,000, and in integral
multiples of $1.00 in excess thereof. The Non-Registered Certificates (other
than the Residual Certificates) will be issuable in minimum Denominations of
authorized initial Certificate Balance of not less than $250,000, and in
integral multiples of $1.00 in excess thereof. If the Original Certificate
Balance or Original Notional Amount, as applicable, of any Class does not equal
an integral multiple of $1.00, then a single additional Certificate of such
Class may be issued in a minimum denomination of authorized initial Certificate
Balance or Original Notional Amount, as applicable, that includes the excess of
(i) the Original Certificate Balance or Original Notional Amount, as applicable,
of such Class over (ii) the largest integral multiple of $1.00 that does not
exceed such amount. The Class R and Class LR Certificates will be issuable only
in one or more Definitive Certificates in denominations representing Percentage
Interests of not less than 20%. With respect to any Certificate or any
beneficial interest in a Certificate, the "Denomination" thereof shall be (i)
the amount (a) set forth on the face thereof or, (b) set forth on a schedule
attached thereto or (c) in the case of any beneficial interest in a Book-Entry
Certificate, the interest of the related Certificate Owner in the applicable
Class of Certificates as reflected on the books and records of the Depository or
related Participants, as applicable, (ii) expressed in terms of initial
Certificate Balance or initial Notional Amount, as applicable, and (iii) be in
an authorized denomination, as set forth above. The Book-Entry Certificates will
be issued as one or more certificates registered in the name of a nominee
designated by the Depository, and Certificate Owners will hold interests in the
Book-Entry Certificates through the book-entry facilities of the Depository in
the minimum Denominations and aggregate Denominations as set forth in the above.
No Certificate Owner of a Book-Entry Certificate of any Class thereof will be
entitled to receive a Definitive Certificate representing its interest in such
Class, except as provided in Section 5.03 herein. Unless and until Definitive
Certificates are issued in respect of a Class of Book-Entry Certificates,
beneficial ownership interests in such Class of Certificates will be maintained
and transferred on the book-entry records of the Depository and Depository
Participants, and all references to actions by Holders of such Class of
Certificates will refer to action taken by the Depository upon instructions
received from the related registered Holders of Certificates through the
Depository Participants in accordance with the Depository's procedures and,
except as otherwise set forth herein, all references herein to payments,
notices, reports and statements to Holders of such Class of Certificates will
refer to payments, notices, reports and statements to the Depository or its
nominee as the registered Holder thereof, for distribution to the related
registered Holders of Certificates through the Depository Participants in
accordance with the Depository's procedures.
(b) The Certificates shall be executed by manual or facsimile
signature on behalf of the Certificate Registrar by an authorized signatory.
Certificates bearing the manual or facsimile signatures of individuals who were
at any time the authorized signatories of the Certificate Registrar shall be
entitled to all benefits under this Agreement, subject to the following
sentence, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Certificates
or did not hold such offices at the date of such Certificates. No Certificate
shall be entitled to any benefit under this Agreement, or be valid for any
purpose, however, unless there appears on such Certificate a certificate of
authentication substantially in the form provided for herein executed by the
Authenticating Agent by manual signature, and such certificate of authentication
upon any Certificate shall be conclusive evidence, and the only evidence, that
such Certificate has been duly authenticated and delivered hereunder. All
Certificates shall be dated the date of their authentication. LaSalle Bank
National Association, located at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxxx 00000, is hereby initially appointed Authenticating Agent with power to
act on the Trustee's behalf in the authentication and delivery of the
Certificates in connection with transfers and exchanges as herein provided. If
LaSalle Bank National Association, located at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx
0000, Xxxxxxx, Xxxxxxxx 00000, is removed as Paying Agent, then LaSalle Bank
National Association shall be terminated as Authenticating Agent. If the
Authenticating Agent is terminated, the Trustee shall appoint a successor
Authenticating Agent, which may be the Trustee or an Affiliate thereof.
(c) Any of the Certificates may be issued with appropriate
insertions, omissions, substitutions and variations, and may have imprinted or
otherwise reproduced thereon such legend or legends, not inconsistent with the
provisions of this Agreement, as may be required to comply with any law or with
rules or regulations pursuant thereto, or with the rules of any securities
market in which the Certificates are admitted to trading, or to conform to
general usage.
Section 5.02 Registration of Transfer and Exchange of Certificates.
(a) At all times during the term of this Agreement, there shall be
maintained at the office of the Certificate Registrar a Certificate Register in
which, subject to such reasonable regulations as the Certificate Registrar may
prescribe, the Certificate Registrar shall provide for the registration of
Certificates and of transfers and exchanges of Certificates as herein provided.
LaSalle Bank National Association, located at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx
0000, Xxxxxxx, Xxxxxxxx 00000, is hereby initially appointed Certificate
Registrar for the purpose of registering Certificates and transfers and
exchanges of Certificates as herein provided. The Certificate Registrar may
appoint, by a written instrument delivered to the Depositor, the Paying Agent,
the Trustee, the Special Servicer and the Servicer, any other bank or trust
company to act as Certificate Registrar under such conditions as the predecessor
Certificate Registrar may prescribe, provided that the predecessor Certificate
Registrar shall not be relieved of any of its duties or responsibilities
hereunder by reason of such appointment. If LaSalle Bank National Association
resigns or is removed as Paying Agent, the Trustee shall immediately succeed to
its predecessor's duties as Certificate Registrar. The Depositor, the Trustee,
the Servicer and the Special Servicer shall have the right to inspect the
Certificate Register or to obtain a copy thereof at all reasonable times, and to
rely conclusively upon a certificate of the Certificate Registrar as to the
information set forth in the Certificate Register. The names and addresses of
all Certificateholders and the names and addresses of the transferees of any
Certificates shall be registered in the Certificate Register; provided, however,
in no event shall the Certificate Registrar be required to maintain in the
Certificate Register the names of Certificate Owners. The Person in whose name
any Certificate is so registered shall be deemed and treated as the sole owner
and Holder thereof for all purposes of this Agreement and the Certificate
Registrar, the Servicer, the Trustee, the Paying Agent, the Special Servicer and
any agent of any of them shall not be affected by any notice or knowledge to the
contrary. A Definitive Certificate is transferable or exchangeable only upon the
surrender of such Certificate to the Certificate Registrar at its office
maintained at LaSalle Bank National Association, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx
0000, Xxxxxxx, Xxxxxxxx 00000, Attn: Asset-Backed Securities Trust Services
Group-X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2002-C2 (the "Registrar Office")
together with an assignment and transfer (executed by the Holder or his duly
authorized attorney). Subject to the requirements of Sections 5.02(b), (c) and
(d), the Certificate Registrar shall execute and the Authenticating Agent shall
duly authenticate in the name of the designated transferee or transferees, one
or more new Certificates in Denominations of a like aggregate Denomination as
the Definitive Certificate being surrendered. Such Certificates shall be
delivered by the Certificate Registrar in accordance with Section 5.02(e). Each
Certificate surrendered for registration of transfer shall be canceled, and the
Certificate Registrar shall hold such canceled Certificates in accordance with
its standard procedures.
(b) No transfer of any Non-Registered Certificate shall be made
unless that transfer is made pursuant to an effective registration statement
under the Securities Act, and effective registration or qualification under
applicable state securities laws, or is made in a transaction which does not
require such registration or qualification. If a transfer (other than one by the
Depositor to an Affiliate thereof) is to be made in reliance upon an exemption
from the Securities Act, and under the applicable state securities laws, then
either:
(i) RULE 144A BOOK-ENTRY CERTIFICATE TO REGULATION S BOOK-ENTRY
CERTIFICATE DURING THE RESTRICTED PERIOD. If, during the Restricted
Period, a Certificate Owner of an interest in a Rule 144A Book-Entry
Certificate wishes at any time to transfer its beneficial interest in such
Rule 144A Book-Entry Certificate to a Person who wishes to take delivery
thereof in the form of a beneficial interest in a Regulation S Book-Entry
Certificate, such Certificate Owner may, in addition to complying with all
applicable rules and procedures of the Depository and Clearstream or
Euroclear applicable to transfers by their respective participants (the
"Applicable Procedures"), transfer or cause the transfer of such
beneficial interest for an equivalent beneficial interest in the
Regulation S Book-Entry Certificate only upon compliance with the
provisions of this Section 5.02(b)(i). Upon receipt by the Certificate
Registrar at its Corporate Trust Office of (1) written instructions given
in accordance with the Applicable Procedures from a Depository Participant
directing the Certificate Registrar to credit or cause to be credited to
another specified Depository Participant's account a beneficial interest
in the Regulation S Book-Entry Certificate in an amount equal to the
Denomination of the beneficial interest in the Rule 144A Book-Entry
Certificate to be transferred, (2) a written order given in accordance
with the Applicable Procedures containing information regarding the
account of the Depository Participant (and the Euroclear or Clearstream
account, as the case may be) to be credited with, and the account of the
Depository Participant to be debited for, such beneficial interest, and
(3) a certificate in the form of Exhibit K hereto given by the Certificate
Owner that is transferring such interest, the Certificate Registrar, as
custodian of the Book-Entry Certificates shall reduce the Denomination of
the Rule 144A Book-Entry Certificate by the Denomination of the beneficial
interest in the Rule 144A Book-Entry Certificate to be so transferred and,
concurrently with such reduction, increase the Denomination of the
Regulation S Book-Entry Certificate by the Denomination of the beneficial
interest in the Rule 144A Book-Entry Certificate to be so transferred, and
credit or cause to be credited to the account of the Person specified in
such instructions (who shall be a Depository Participant acting for or on
behalf of Euroclear or Clearstream, or both, as the case may be) a
beneficial interest in the Regulation S Book-Entry Certificate having a
Denomination equal to the amount by which the Denomination of the Rule
144A Book-Entry Certificate was reduced upon such transfer.
(ii) RULE 144A BOOK-ENTRY CERTIFICATE TO REGULATION S BOOK-ENTRY
CERTIFICATE AFTER THE RESTRICTED PERIOD. If, after the Restricted Period,
a Certificate Owner of an interest in a Rule 144A Book-Entry Certificate
wishes at any time to transfer its beneficial interest in such Rule 144A
Book-Entry Certificate to a Person who wishes to take delivery thereof in
the form of a beneficial interest in a Regulation S Book-Entry
Certificate, such holder may, in addition to complying with all Applicable
Procedures, transfer or cause the transfer of such beneficial interest for
an equivalent beneficial interest in a Regulation S Book-Entry Certificate
only upon compliance with the provisions of this Section 5.02(b)(ii). Upon
receipt by the Certificate Registrar at its Corporate Trust Office of (1)
written instructions given in accordance with the Applicable Procedures
from a Depository Participant directing the Certificate Registrar to
credit or cause to be credited to another specified Depository
Participant's account a beneficial interest in the Regulation S Book-Entry
Certificate in an amount equal to the Denomination of the beneficial
interest in the Rule 144A Book-Entry Certificate to be transferred, (2) a
written order given in accordance with the Applicable Procedures
containing information regarding the account of the Depository Participant
(and, in the case of a transfer pursuant to and in accordance with
Regulation S, the Euroclear or Clearstream account, as the case may be) to
be credited with, and the account of the Depository Participant to be
debited for, such beneficial interest, and (3) a certificate in the form
of Exhibit M hereto given by the Certificate Owner that is transferring
such interest, the Certificate Registrar as custodian of the Book-Entry
Certificates shall reduce the Denomination of the Rule 144A Book-Entry
Certificate by the aggregate Denomination of the beneficial interest in
the Rule 144A Book-Entry Certificate to be so transferred and,
concurrently with such reduction, increase the Denomination of the
Regulation S Book-Entry Certificate by the aggregate Denomination of the
beneficial interest in the Rule 144A Book-Entry Certificate to be so
transferred, and credit or cause to be credited to the account of the
Person specified in such instructions (who shall be a Depository
Participant acting for or on behalf of Euroclear or Clearstream, or both,
as the case may be) a beneficial interest in the Regulation S Book-Entry
Certificate having a Denomination equal to the amount by which the
Denomination of the Rule 144A Book-Entry Certificate was reduced upon such
transfer.
(iii) REGULATION S BOOK-ENTRY CERTIFICATE TO RULE 144A BOOK-ENTRY
Certificate. If the Certificate Owner of an interest in a Regulation S
Book-Entry Certificate wishes at any time to transfer its beneficial
interest in such Regulation S Book-Entry Certificate to a Person who
wishes to take delivery thereof in the form of a beneficial interest in
the Rule 144A Book-Entry Certificate, such holder may, in addition to
complying with all Applicable Procedures, transfer or cause the transfer
of such beneficial interest for an equivalent beneficial interest in the
Rule 144A Book-Entry Certificate only upon compliance with the provisions
of this Section 5.2(b)(iii). Upon receipt by the Certificate Registrar at
its Corporate Trust Office of (1) written instructions given in accordance
with the Applicable Procedures from a Depository Participant directing the
Certificate Registrar to credit or cause to be credited to another
specified Depository Participant's account a beneficial interest in the
Rule 144A Book-Entry Certificate in an amount equal to the Denomination of
the beneficial interest in the Regulation S Book-Entry Certificate to be
transferred, (2) a written order given in accordance with the Applicable
Procedures containing information regarding the account of the Depository
Participant to be credited with, and the account of the Depository
Participant (or, if such account is held for Euroclear or Clearstream, the
Euroclear or Clearstream account, as the case may be) to be debited for
such beneficial interest, and (3) with respect to a transfer of a
beneficial interest in the Regulation S Book-Entry Certificate for a
beneficial interest in the related Rule 144A Book-Entry Certificate (i)
during the Restricted Period, a certificate in the form of Exhibit N
hereto given by the Certificate Owner, or (ii) after the Restricted
Period, an Investment Representation Letter in the form of Exhibit C
attached hereto from the transferee to the effect that such transferee is
a Qualified Institutional Buyer (an "Investment Representation Letter"),
the Certificate Registrar, as custodian of the Book-Entry Certificates,
shall reduce the Denomination of the Regulation S Book-Entry Certificate
by the Denomination of the beneficial interest in the Regulation S
Book-Entry Certificate to be transferred, and, concurrently with such
reduction, increase the Denomination of the Rule 144A Book-Entry
Certificate by the aggregate Denomination of the beneficial interest in
the Regulation S Book-Entry Certificate to be so transferred, and credit
or cause to be credited to the account of the Person specified in such
instructions (who shall be a Depository Participant acting for or on
behalf of Euroclear or Clearstream, or both, as the case may be) a
beneficial interest in the Rule 144A Book-Entry Certificate having a
Denomination equal to the amount by which the Denomination of the
Regulation S Book-Entry Certificate was reduced upon such transfer.
(iv) TRANSFERS WITHIN REGULATION S BOOK-ENTRY CERTIFICATES DURING
RESTRICTED PERIOD. If, during the Restricted Period, the Certificate Owner
of an interest in a Regulation S Book-Entry Certificate wishes at any time
to transfer its beneficial interest in such Certificate to a Person who
wishes to take delivery thereof in the form of a Regulation S Book-Entry
Certificate, such Certificate Owner may transfer or cause the transfer of
such beneficial interest for an equivalent beneficial interest in such
Regulation S Book-Entry Certificate only upon compliance with the
provisions of this Section 5.02(b)(iv) and all Applicable Procedures. Upon
receipt by the Certificate Registrar at its Corporate Trust Office of (1)
written instructions given in accordance with the Applicable Procedures
from a Depository Participant directing the Certificate Registrar to
credit or cause to be credited to another specified Depository
Participant's account a beneficial interest in such Regulation S
Book-Entry Certificate in an amount equal to the Denomination of the
beneficial interest to be transferred, (2) a written order given in
accordance with the Applicable Procedures containing information regarding
the account of the Depository Participant to be credited with, and the
account of the Depository Participant (or, if such account is held for
Euroclear or Clearstream, the Euroclear or Clearstream account, as the
case may be) to be debited for, such beneficial interest and (3) a
certificate in the form of Exhibit O hereto given by the transferee, the
Certificate Registrar, as custodian of the Book-Entry Certificates, shall
debit the account of the transferring Regulation S Certificateholder and
credit or cause to be credited to the account of the Person specified in
such instructions (who shall be a Depository Participant acting for or on
behalf of Euroclear or Clearstream, or both, as the case may be) a
beneficial interest in the Regulation S Book-Entry Certificate having a
Denomination equal to the amount specified in such instructions by which
the account to be debited was reduced upon such transfer.
(v) TRANSFERS OF BOOK-ENTRY CERTIFICATES TO DEFINITIVE CERTIFICATES.
Any and all transfers from a Book-Entry Certificate to a transferee
wishing to take delivery in the form of a Definitive Certificate will
require the transferee to take delivery subject to the restrictions on the
transfer of such Definitive Certificate described on the face of such
Certificate, and such transferee agrees that it will transfer such
Definitive Certificate only as provided therein and herein. No such
transfer shall be made and the Certificate Registrar shall not register
any such transfer unless such transfer is made in accordance with this
Section 5.02(b)(v).
(A) Transfers of a beneficial interest in a Book-Entry
Certificate to an Institutional Accredited Investor will require
delivery of such Certificate to the transferee in the form of a
Definitive Certificate and the Certificate Registrar shall register
such transfer only if prior to the transfer (i) two years have
expired after the later of the Closing Date or the last date on
which the Depositor or any Affiliate thereof held such Certificate,
or (ii) such transferee furnishes to the Certificate Registrar (1)
an Investment Representation Letter in the form of Exhibit C
attached hereto to the effect that the transfer is being made to an
Institutional Accredited Investor in accordance with an applicable
exemption under the Act, and (2) an opinion of counsel acceptable to
the Certificate Registrar that such transfer is in compliance with
the Act.
(B) Transfers of a beneficial interest in a Book-Entry
Certificate to a Regulation S Investor wishing to take delivery in
the form of a Definitive Certificate will be registered by the
Certificate Registrar only if the transferor has provided the
Certificate Registrar with a certificate in the form of Exhibit O
attached hereto. Transfers of a beneficial interest in a Book-Entry
Certificate to a Qualified Institutional Buyer wishing to take
delivery in the form of a Definitive Certificate will be registered
by the Certificate Registrar only if such transferee furnishes to
the Certificate Registrar an Investment Representation Letter in the
form of Exhibit C attached hereto to the effect that the transfer is
being made to a Qualified Institutional Buyer in accordance with
Rule 144A under the Act.
(C) Notwithstanding the foregoing, no transfer of a beneficial
interest in a Regulation S Book-Entry Certificate to a Definitive
Certificate pursuant to subparagraph (B) above shall be made prior
to the expiration of the Restricted Period. Upon acceptance for
exchange or transfer of a beneficial interest in a Book-Entry
Certificate for a Definitive Certificate, as provided herein, the
Certificate Registrar shall endorse on the schedule affixed to the
related Book-Entry Certificate (or on a continuation of such
schedule affixed to such Book-Entry Certificate and made a part
thereof) an appropriate notation evidencing the date of such
exchange or transfer and a decrease in the Denomination of such
Book-Entry Certificate equal to the Denomination of such Definitive
Certificate issued in exchange therefor or upon transfer thereof.
(vi) TRANSFERS OF DEFINITIVE CERTIFICATES TO THE BOOK-ENTRY
CERTIFICATES. If a Holder of a Definitive Certificate wishes at any time
to transfer such Certificate to a Person who wishes to take delivery
thereof in the form of a beneficial interest in the related Regulation S
Book-Entry Certificate or the related Rule 144A Book-Entry Certificate,
such transfer may be effected only in accordance with the Applicable
Procedures, and this Section 5.02(b)(vi). Upon receipt by the Certificate
Registrar at the Corporate Trust Office of (1) the Definitive Certificate
to be transferred with an assignment and transfer pursuant to Section
5.02(d), (2) written instructions given in accordance with the Applicable
Procedures from a Depository Participant directing the Certificate
Registrar to credit or cause to be credited to another specified
Depository Participant's account a beneficial interest in such Regulation
S Book-Entry Certificate or such Rule 144A Book-Entry Certificate, as the
case may be, in an amount equal to the Denomination of the Definitive
Certificate to be so transferred, (3) a written order given in accordance
with the Applicable Procedures containing information regarding the
account of the Depository Participant (and, in the case of any transfer
pursuant to Regulation S, the Euroclear or Clearstream account, as the
case may be) to be credited with such beneficial interest, and (4) (x) if
delivery is to be taken in the form of a beneficial interest in the
Regulation S Book-Entry Certificate, a Regulation S Transfer Certificate
from the transferor or (y) an Investment Representation Letter from the
transferee to the effect that such transferee is a Qualified Institutional
Buyer, if delivery is to be taken in the form of a beneficial interest in
the Rule 144A Book-Entry Certificate, the Certificate Registrar shall
cancel such Definitive Certificate, execute and deliver a new Definitive
Certificate for the Denomination of the Definitive Certificate not so
transferred, registered in the name of the Holder, and the Certificate
Registrar, as custodian of the Book-Entry Certificates, shall increase the
Denomination of the Regulation S Book-Entry Certificate or the Rule 144A
Book-Entry Certificate, as the case may be, by the Denomination of the
Definitive Certificate to be so transferred, and credit or cause to be
credited to the account of the Person specified in such instructions (who,
in the case of any increase in the Regulation S Book-Entry Certificate
during the Restricted Period, shall be a Depository Participant acting for
or on behalf of Euroclear or Clearstream, or both, as the case may be) a
corresponding Denomination of the Rule 144A Book-Entry Certificate or the
Regulation S Book-Entry Certificate, as the case may be.
It is the intent of the foregoing that under no circumstances may an
Institutional Accredited Investor that is not a Qualified Institutional Buyer
take delivery in the form of a beneficial interest in a Book-Entry Certificate.
(vii) TRANSFERS OF DEFINITIVE CERTIFICATES TO DEFINITIVE
CERTIFICATES. Any and all transfers from a Definitive Certificate to a
transferee wishing to take delivery in the form of a Definitive
Certificate will require the transferee to take delivery subject to the
restrictions on the transfer of such Definitive Certificate described on
the face of such Certificate, and such transferee agrees that it will
transfer such Definitive Certificate only as provided therein and herein.
No such transfer shall be made and the Certificate Registrar shall not
register any such transfer unless such transfer is made in accordance with
procedures substantially consistent with those set forth in Section
5.02(b)(v).
(viii) An exchange of a beneficial interest in a Book-Entry
Certificate for a Definitive Certificate or Certificates, an exchange of a
Definitive Certificate or Certificates for a beneficial interest in the
Book-Entry Certificate and an exchange of a Definitive Certificate or
Certificates for another Definitive Certificate or Certificates (in each
case, whether or not such exchange is made in anticipation of subsequent
transfer, and in the case of the Book-Entry Certificates, so long as the
Book-Entry Certificates remain outstanding and are held by or on behalf of
the Depository), may be made only in accordance with this Section 5.02 and
in accordance with the rules of the Depository and Applicable Procedures.
Any purported or attempted transfer of a Non-Registered Certificate
in violation of the provisions of this Section 5.02(b) shall be null and void ab
initio and shall vest no rights in any purported transferee.
Unless the Non-Registered Certificates have been registered under
the Securities Act, each of the Non-Registered Certificates shall bear a legend
substantially to the following effect:
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY
BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF
SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT
FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE
SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF
AGREES NOT TO OFFER, SELL OR OTHERWISE TRANSFER SUCH
CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL APPLICABLE
STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (B) FOR SO LONG AS THIS CERTIFICATE IS
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER"
AS DEFINED IN RULE 144A IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) (OTHER THAN WITH RESPECT
TO A RESIDUAL CERTIFICATE) TO AN INSTITUTIONAL
"ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501
(A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE
SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE
REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, (D)
IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF
RULE 903 OR RULE 904 OF REGULATION S UNDER THE
SECURITIES ACT OR (E) (OTHER THAN WITH RESPECT TO A
RESIDUAL CERTIFICATE) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES
TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO THE
CERTIFICATE REGISTRAR OF A CERTIFICATE OF TRANSFER IN
THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH
SUBSEQUENT PURCHASER OF THIS CERTIFICATE, BY PURCHASING
THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS
SET FORTH IN THE POOLING AND SERVICING AGREEMENT. A
TRANSFEREE IS ALSO REQUIRED TO DELIVER AN INVESTMENT
REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF
EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR (OTHER
THAN WITH RESPECT TO A RESIDUAL CERTIFICATE) AN
INSTITUTIONAL ACCREDITED INVESTOR, AND MAY ALSO BE
REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN
THE MEANING OF RULE 144A.
(c) With respect to the ERISA Restricted Certificates, no sale,
transfer, pledge or other disposition by any Holder of any ERISA Restricted
Certificate shall be made unless the Certificate Registrar shall have received
either (i) a representation letter from the proposed purchaser or transferee of
such Certificate substantially in the form of Exhibit F attached hereto, to the
effect that such proposed purchaser or transferee is not (a) an employee benefit
plan subject to the fiduciary responsibility provisions of ERISA or Section 4975
of the Code, or a governmental plan (as defined in Section 3(32) of ERISA) or a
"church plan" (as defined in Section 3(33) of ERISA and for which no election
has been made under Section 410(d) of the Code) subject to any federal, state or
local law ("Similar Law") which is, to a material extent, similar to the
foregoing provisions of ERISA or the Code (each, a "Plan") or (b) a person
acting on behalf of or using the assets of any such Plan (including an entity
whose underlying assets include Plan assets by reason of investment in the
entity by such Plan and the application of Department of Labor Regulations ss.
2510.3-101), other than an insurancE company using the assets of its general
account under circumstances whereby the purchase and holding of such
Certificates by such insurance company would be exempt from the prohibited
transaction provisions of ERISA and the Code under Sections I and III of
Prohibited Transaction Class Exemption 95-60 or (ii) if such Certificate is
presented for registration in the name of a purchaser or transferee that is any
of the foregoing, an Opinion of Counsel in form and substance satisfactory to
the Certificate Registrar and the Depositor to the effect that the acquisition
and holding of such Certificate by such purchaser or transferee will not result
in the assets of the Trust Fund being deemed to be "plan assets" and subject to
the fiduciary responsibility provisions of ERISA, the prohibited transaction
provisions of the Code or the provisions of any Similar Law, will not constitute
or result in a "prohibited transaction" within the meaning of ERISA, Section
4975 of the Code or any Similar Law, and will not subject the Trustee, the
Paying Agent, the Certificate Registrar, the Servicer, the Special Servicer, the
Underwriters, the Initial Purchasers or the Depositor to any obligation or
liability (including obligations or liabilities under ERISA, Section 4975 of the
Code or any such Similar Law) in addition to those set forth in the Agreement.
The Certificate Registrar shall not register the sale, transfer, pledge or other
disposition of any ERISA Restricted Certificate unless the Certificate Registrar
has received either the representation letter described in clause (i) above or
the Opinion of Counsel described in clause (ii) above. The costs of any of the
foregoing representation letters or Opinions of Counsel shall not be borne by
any of the Depositor, the Servicer, the Special Servicer, the Trustee, the
Paying Agent, the Underwriters, the Initial Purchasers, the Certificate
Registrar or the Trust Fund. Each Certificate Owner of an ERISA Restricted
Certificate shall be deemed to represent that it is not a Person specified in
clauses (a) or (b) above. Any transfer, sale, pledge or other disposition of any
ERISA Restricted Certificates that would constitute or result in a prohibited
transaction under ERISA, Section 4975 of the Code or any Similar Law, or would
otherwise violate the provisions of this Section 5.02(c) shall be deemed
absolutely null and void ab initio, to the extent permitted under applicable
law.
So long as any of the Class of Certificates remains outstanding, the
Servicer or the Special Servicer, as applicable, will make available, or cause
to be made available, upon request, to any Holder and any Person to whom any
such Certificate of any such Class of Certificates may be offered or sold,
transferred, pledged or otherwise disposed of by such Holder, information with
respect to the Servicer, the Special Servicer or the Mortgage Loans necessary to
the provision of an Opinion of Counsel described in this Section 5.02(c).
(i) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of
such Ownership Interest to have agreed to be bound by the following
provisions and to have irrevocably authorized the Paying Agent under
clause (ii) below to deliver payments to a Person other than such Person.
The rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(A) (i) No Person holding or acquiring any Ownership Interest
in a Residual Certificate shall be a Disqualified Organization or
agent thereof (including a nominee, middleman or similar person) (an
"Agent"), a Plan or a Person acting on behalf of or investing the
assets of a Plan, including any entity whose underlying assets
include Plan assets by reason of investment in the entity by such
Plan and the application of Department of Labor Regulationsss.
2510.3-101 (such Plan or Person, an "ERISA Prohibited Holder") or a
Non-U.S. Person and (ii) each Person holding or acquiring any
Ownership Interest in a Residual Certificate shall be a Permitted
Transferee and in each case shall promptly notify the Servicer, the
Trustee and the Certificate Registrar of any change or impending
change to such status;
(B) In connection with any proposed Transfer of any Ownership
Interest in a Residual Certificate, the Certificate Registrar shall
require delivery to it, and no Transfer of any Residual Certificate
shall be registered until the Certificate Registrar receives, an
affidavit substantially in the form attached hereto as Exhibit D-1
(a "Transfer Affidavit") from the proposed Transferee, in form and
substance satisfactory to the Certificate Registrar, representing
and warranting, among other things, that such Transferee is a
Permitted Transferee and is not a Disqualified Organization or Agent
thereof, an ERISA Prohibited Holder or a Non-U.S. Person, and that
it has reviewed the provisions of this Section 5.02(c) and agrees to
be bound by them;
(C) Notwithstanding the delivery of a Transfer Affidavit by a
proposed Transferee under clause (b) above, if the Certificate
Registrar has actual knowledge that the proposed Transferee is a
Disqualified Organization or Agent thereof, an ERISA Prohibited
Holder or a Non-U.S. Person or is not a Permitted Transferee, no
Transfer of an Ownership Interest in a Residual Certificate to such
proposed Transferee shall be effected; and
(D) Each Person holding or acquiring any Ownership Interest in
a Residual Certificate shall agree (1) to require a Transfer
Affidavit from any prospective Transferee to whom such Person
attempts to transfer its Ownership Interest in such Residual
Certificate and (2) not to transfer its Ownership Interest in such
Residual Certificate unless it provides to the Certificate Registrar
a letter substantially in the form attached hereto as Exhibit D-2 (a
"Transferor Letter") certifying that, among other things, it has no
actual knowledge that such prospective Transferee is a Disqualified
Organization or Agent thereof, an ERISA Prohibited Holder or a
Non-U.S. Person.
(ii) If any purported Transferee shall become a Holder of a Residual
Certificate in violation of the provisions of this Section 5.02(c), then
the last preceding Holder of such Residual Certificate that was in
compliance with the provisions of this Section 5.02(c) shall be restored,
to the extent permitted by law, to all rights as Holder thereof
retroactive to the date of registration of such Transfer of such Residual
Certificate. None of the Trustee, the Servicer, the Authenticating Agent
and the Certificate Registrar shall be under any liability to any Person
for any registration of Transfer of a Residual Certificate that is in fact
not permitted by this Section 5.02(c) or for making any payments due on
such Certificate to the Holder thereof or for taking any other action with
respect to such Holder under the provisions of this Agreement; provided,
however, that the Certificate Registrar shall be under such liability for
a registration of Transfer of a Residual Certificate if it has actual
knowledge that the proposed Transferee is a Disqualified Organization or
Agent thereof, an ERISA Prohibited Holder or a Non-U.S. Person in
violation of Section 5.02(c)(i)(C) above or is not a Permitted Transferee.
(iii) The Paying Agent shall make available to the Internal Revenue
Service and those Persons specified by the REMIC Provisions all
information in its possession and necessary to compute any tax imposed as
a result of the Transfer of an Ownership Interest in a Residual
Certificate to any Person who is a Disqualified Organization or Agent
thereof, including the information described in Treasury regulations
sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess
inclusions" of such Residual Certificate.
(d) Subject to the restrictions on transfer and exchange set forth
in this Section 5.02, the Holder of any Definitive Certificate may transfer or
exchange the same in whole or in part (with a Denomination equal to any
authorized denomination) by surrendering such Certificate at the Registrar
Office or at the office of any successor Certificate Registrar or transfer agent
appointed by the Certificate Registrar, together with an instrument of
assignment or transfer (executed by the Holder or its duly authorized attorney),
in the case of transfer, and a written request for exchange in the case of
exchange. Subject to the restrictions on transfer set forth in this Section 5.02
and Applicable Procedures, any Certificate Owner owning a beneficial interest in
a Non-Registered Certificate may cause the Certificate Registrar to request that
the Depository exchange such Certificate Owner's beneficial interest in a
Book-Entry for a Definitive Certificate or Certificates. Following a proper
request for transfer or exchange, the Certificate Registrar shall, within 5
Business Days of such request if made at such Registrar Office, or within 10
Business Days if made at the office of a transfer agent (other than the
Certificate Registrar), execute and deliver at such Registrar Office or at the
office of such transfer agent, as the case may be, to the transferee (in the
case of transfer) or Holder (in the case of exchange) or send by first class
mail (at the risk of the transferee in the case of transfer or Holder in the
case of exchange) to such address as the transferee or Holder, as applicable,
may request, a Definitive Certificate or Certificates, as the case may require,
for a like aggregate Denomination and in such Denomination or Denominations as
may be requested. The presentation for transfer or exchange of any Definitive
Certificate shall not be valid unless made at the Registrar Office or at the
office of a transfer agent by the registered Holder in person, or by a duly
authorized attorney-in-fact. The Certificate Registrar may decline to accept any
request for an exchange or registration of transfer of any Certificate during
the period of 15 days preceding any Distribution Date.
(e) In the event a Responsible Officer of the Certificate Registrar
becomes aware that a Definitive Certificate (other than a Definitive Certificate
issued in exchange for a Certificate representing an interest in the Class A-1,
Class A-2, Class B, Class C, Class D, Class E, Class X-1 or Class X-2
Certificates) or a beneficial interest in a Book-Entry Certificate representing
a Non-Registered Certificate is being held by or for the benefit of a Person who
is not an Eligible Investor, or that such holding is unlawful under the laws of
a relevant jurisdiction, then the Certificate Registrar shall have the right to
void such transfer, if permitted under applicable law, or to require the
investor to sell such Definitive Certificate or beneficial interest in such
Book-Entry Certificate to an Eligible Investor within 14 days after notice of
such determination and each Certificateholder by its acceptance of a Certificate
authorizes the Certificate Registrar to take such action.
(f) The Certificate Registrar shall provide notice to the Trustee,
the Servicer, the Special Servicer, the Paying Agent and the Depositor of each
transfer of a Certificate on its books and records and to provide each such
Person with an updated copy of the Certificate Register on or about January 1st
and July 1st of each year, commencing July 1, 2003.
(g) No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in this Section 5.02 except as provided below. In
connection with any transfer to an Institutional Accredited Investor, the
transferor shall reimburse the Trust Fund for any costs (including the cost of
the Certificate Registrar's counsel's review of the documents and any legal
opinions, submitted by the transferor or transferee to the Certificate Registrar
as provided herein) incurred by the Certificate Registrar in connection with
such transfer. With respect to any transfer or exchange of any Certificate, the
Certificate Registrar may require payment by each transferor of a sum sufficient
to cover any tax, expense or other governmental charge payable in connection
with any such transfer or exchange.
(h) All Certificates surrendered for transfer and exchange shall be
physically canceled by the Certificate Registrar, and the Certificate Registrar
shall hold such canceled Certificates in accordance with its standard
procedures.
Section 5.03 Book-Entry Certificates.
(a) The Regular Certificates and Class SP Certificates shall
initially be issued as one or more Certificates registered in the name of the
Depository or its nominee and, except as provided in subsection (c) below,
transfer of such Certificates may not be registered by the Certificate Registrar
unless such transfer is to a successor Depository that agrees to hold such
Certificates for the respective Certificate Owners with Ownership Interests
therein. Such Certificate Owners shall hold and transfer their respective
Ownership Interests in and to such Certificates through the book-entry
facilities of the Depository and, except as provided in Section 5.02(d) above or
subsection (c) below, shall not be entitled to Definitive Certificates in
respect of such Ownership Interests. All transfers by Certificate Owners of
their respective Ownership Interests in the Book-Entry Certificates shall be
made in accordance with the procedures established by the Depository Participant
or brokerage firm representing such Certificate Owner. Each Depository
Participant shall only transfer the Ownership Interests in the Book-Entry
Certificates of Certificate Owners it represents or of brokerage firms for which
it acts as agent in accordance with the Depository's normal procedures.
(b) The Trustee, the Servicer, the Special Servicer, the Paying
Agent, the Depositor and the Certificate Registrar may for all purposes,
including the making of payments due on the Book-Entry Certificates, deal with
the Depository as the authorized representative of the Certificate Owners with
respect to such Certificates for the purposes of exercising the rights of
Certificateholders hereunder. The rights of Certificate Owners with respect to
the Book-Entry Certificates shall be limited to those established by law and
agreements between such Certificate Owners and the Depository Participants and
brokerage firms representing such Certificate Owners. Multiple requests and
directions from, and votes of, the Depository as Holder of the Book-Entry
Certificates with respect to any particular matter shall not be deemed
inconsistent if they are made with respect to different Certificate Owners. The
Paying Agent may establish a reasonable record date in connection with
solicitations of consents from or voting by Certificateholders and shall give
notice to the Depository of such record date.
(c) If (i)(A) the Depositor advises the Trustee, the Paying Agent
and the Certificate Registrar in writing that the Depository is no longer
willing or able to properly discharge its responsibilities with respect to the
Book-Entry Certificates and (B) the Depositor is unable to locate a qualified
successor, or (ii) the Depositor at its option advises the Trustee, the Paying
Agent and the Certificate Registrar in writing that it elects to terminate the
book-entry system through the Depository, the Paying Agent shall notify the
affected Certificate Owners, through the Depository with respect to all, any
Class or any portion of any Class of the Certificates or (iii) the Certificate
Registrar determines that Definitive Certificates are required in accordance
with the provisions of Section 5.03(e), of the occurrence of any such event and
of the availability of Definitive Certificates to Certificate Owners requesting
the same. Upon surrender to the Certificate Registrar of the Book-Entry
Certificates by the Depository or any custodian acting on behalf of the
Depository, accompanied by registration instructions from the Depository for
registration of transfer, the Certificate Registrar shall execute, and the
Authenticating Agent shall authenticate and deliver, within 5 Business Days of
such request if made at the Registrar Office, or within 10 Business Days if made
at the office of a transfer agent (other than the Certificate Registrar), the
Definitive Certificates to the Certificate Owners identified in such
instructions. None of the Depositor, the Paying Agent, the Servicer, the
Trustee, the Special Servicer, the Authenticating Agent and the Certificate
Registrar shall be liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be protected in relying on, such instructions.
Upon the issuance of Definitive Certificates for purposes of evidencing
ownership of any Class of Certificates, the registered Holders of such
Definitive Certificates shall be recognized as Certificateholders hereunder and,
accordingly, shall be entitled directly to receive payments on, to exercise
Voting Rights with respect to, and to transfer and exchange such Definitive
Certificates.
(d) The Book-Entry Certificates (i) shall be delivered by the
Certificate Registrar to the Depository, or pursuant to the Depository's
instructions, and shall be registered in the name of Cede & Co. and (ii) shall
bear a legend substantially to the following effect:
Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New
York corporation ("DTC"), to the Certificate Registrar
for registration of transfer, exchange or payment, and
any certificate issued is registered in the name of Cede
& Co. or in such other name as is requested by an
authorized representative of DTC (and any payment is
made to Cede & Co. or to such other entity as is
requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as
the registered owner hereof, Cede & Co., has an interest
herein.
The Book-Entry Certificates may be deposited with such other
Depository as the Certificate Registrar may from time to time designate, and
shall bear such legend as may be appropriate.
(e) If the Trustee has instituted or if the Special Servicer or the
Servicer, on the Trustee's behalf, has been directed to institute any judicial
proceeding in a court to enforce the rights of the Certificateholders under the
Certificates, and the Trustee has been advised by counsel that in connection
with such proceeding it is necessary or appropriate for the Trustee to obtain
possession of all or any portion of the Certificates evidenced by Book-Entry
Certificates, the Trustee may in its sole discretion determine that such
Certificates shall no longer be represented by such Book-Entry Certificates. In
such event, the Certificate Registrar will execute, the Authenticating Agent
will authenticate and the Certificate Registrar will deliver, in exchange for
such Book-Entry Certificates, Definitive Certificates in a Denomination equal to
the aggregate Denomination of such Book-Entry Certificates to the party so
requesting such Definitive Certificates. In such event, the Certificate
Registrar shall notify the affected Certificate Owners and make appropriate
arrangements for the effectuation of the purpose of this clause.
(f) Upon acceptance for exchange or transfer of a beneficial
interest in a Book-Entry Certificate for a Definitive Certificate, as provided
herein, the Certificate Registrar shall endorse on a schedule affixed to the
related Book-Entry Certificate (or on a continuation of such schedule affixed to
such Book-Entry Certificate and made a part thereof) an appropriate notation
evidencing the date of such exchange or transfer and a decrease in the
Denomination of such Book-Entry Certificate equal to the Denomination of such
Definitive Certificate issued in exchange therefor or upon transfer thereof.
(g) If a Holder of a Definitive Certificate wishes at any time to
transfer such Certificate to a Person who wishes to take delivery thereof in the
form of a beneficial interest in the Book-Entry Certificate, such transfer may
be effected only in accordance with Applicable Procedures, Section 5.02(b) and
this Section 5.03(g). Upon receipt by the Certificate Registrar at the Registrar
Office of (i) the Definitive Certificate to be transferred with an assignment
and transfer pursuant to Section 5.02(a), and all required items pursuant to
Section 5.02(b)(v), the Certificate Registrar shall cancel such Definitive
Certificate, execute and deliver a new Definitive Certificate for the
Denomination of the Definitive Certificate not so transferred, registered in the
name of the Holder or the Holder's transferee (as instructed by the Holder), and
the Certificate Registrar as custodian of the Book-Entry Certificates shall
increase the Denomination of the related Book-Entry Certificate by the
Denomination of the Definitive Certificate to be so transferred, and credit or
cause to be credited to the account of the Person specified in such instructions
a corresponding Denomination of such Book-Entry Certificate.
Section 5.04 Mutilated, Destroyed, Lost or Stolen Certificates.
If (i) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Certificate and (ii) there is delivered to
the Trustee and the Certificate Registrar such security or indemnity as may be
required by them to save each of them harmless, then, in the absence of actual
notice to the Trustee or the Certificate Registrar that such Certificate has
been acquired by a bona fide purchaser, the Certificate Registrar shall execute,
and the Authenticating Agent shall authenticate and deliver, in exchange for or
in lieu of any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate of the same Class and of like Percentage Interest. Upon the issuance
of any new Certificate under this Section, the Trustee and the Certificate
Registrar may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee and the Certificate
Registrar) connected therewith. Any replacement Certificate issued pursuant to
this Section shall constitute complete and indefeasible evidence of ownership in
the Trust Fund, as if originally issued, whether or not the lost, stolen or
destroyed Certificate shall be found at any time.
Section 5.05 Persons Deemed Owners.
Prior to due presentation of a Certificate for registration of
transfer, the Depositor, the Servicer, the Special Servicer, the Trustee, the
Paying Agent, the Certificate Registrar and any agents of any of them may treat
the person in whose name such Certificate is registered as the owner of such
Certificate for the purpose of receiving distributions pursuant to Section 4.01
and for all other purposes whatsoever, except as and to the extent provided in
the definition of "Certificateholder," and none of the Depositor, the Servicer,
the Special Servicer, the Trustee, the Paying Agent, the Certificate Registrar
and any agent of any of them shall be affected by notice to the contrary except
as provided in Section 5.02(d).
Section 5.06 Appointment of Paying Agent.
(a) LaSalle Bank National Association, located at 000 Xxxxx XxXxxxx
Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, is hereby initially appointed
Paying Agent to act on the Trustee's behalf in accordance with the terms of this
Agreement. If the Paying Agent resigns or is terminated, the Trustee shall
appoint a successor Paying Agent which may be the Trustee or an Affiliate
thereof to fulfill the obligations of the Paying Agent hereunder which must be
rated "A" or otherwise be acceptable to the Rating Agencies, as evidenced by a
written confirmation that such appointment will not cause the downgrade,
withdrawal or qualification of the then current ratings of any Class of
Certificates.
(b) The Paying Agent may rely upon and shall be protected in acting
or refraining from acting upon any resolution, Officer's Certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, Appraisal, bond or other paper
or document reasonably believed by it to be genuine and to have been signed or
presented by the proper party or parties.
(c) The Paying Agent, at the expense of the Trust Fund (but only if
such amount constitutes "unanticipated expenses of the REMIC" within the meaning
of Treasury Regulations Section 1.860G-1(b)(3)(ii)), may consult with counsel
and the written advice of such counsel or any Opinion of Counsel shall be full
and complete authorization and protection in respect of any action taken or
suffered or omitted by it hereunder in good faith and in accordance therewith.
(d) The Paying Agent shall not be personally liable for any action
reasonably taken, suffered or omitted by it in good faith and believed by it to
be authorized or within the discretion or rights or powers conferred upon it by
this Agreement.
(e) The Paying Agent may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys; provided, however, that the appointment of such agents or
attorneys shall not relieve the Paying Agent of its duties or obligations
hereunder.
(f) The Paying Agent shall not be responsible for any act or
omission of the Trustee, the Servicer or the Special Servicer or of the
Depositor.
Section 5.07 Certificate Ownership Certification.
To the extent that under the terms of this Agreement, it is
necessary to determine whether any Person is a Certificate Owner, the Paying
Agent shall make such determination based on a certificate of such Person which
shall be addressed to the Paying Agent and shall specify, in reasonable detail
satisfactory to the Paying Agent, such Person's name and address, the Class and
Certificate Principal Balance or Notional Amount of the Regular Certificate
beneficially owned, and any intermediaries through which such Person's interest
in such Regular Certificate is held (any such certification, other than one
which the Paying Agent shall refuse to recognize pursuant to the following
procedures, a "Certificate Ownership Certification"); provided, however, that
the Paying Agent shall not knowingly recognize such Person as a Certificate
Owner if such Person, to the actual knowledge of a Responsible Officer of such
party, acquired its interest in a Regular Certificate in violation of the
transfer restrictions herein, or if such Person's certification that it is a
Certificate Owner is in direct conflict with information obtained by the Paying
Agent form the Depository or any Depository Participant with respect to the
identity of a Certificate Owner; provided, however, that to the extent the
Paying Agent is required to obtain such Certificate Owner information from the
Depository or any Depository Participant, the Paying Agent shall be reimbursed
for any cost or expense in obtaining such information from the Distribution
Account. The Paying Agent may conclusively rely on such Certificate Ownership
Certification. The Servicer will only be required to acknowledge the status of
any Person as a Certificateholder or Certificate Owner to the extent that the
Paying Agent, at the request of the Servicer, identifies such Person as a
Certificateholder or Certificate Owner.
[End of Article V]
ARTICLE VI
THE DEPOSITOR, THE
SERVICER, THE SPECIAL SERVICER AND THE DIRECTING
CERTIFICATEHOLDER
Section 6.01 Liability of the Depositor, the Servicer and the
Special Servicer.
The Depositor, the Servicer and the Special Servicer shall be liable
in accordance herewith only to the extent of the respective obligations
specifically imposed upon and undertaken by the Depositor, the Servicer and the
Special Servicer herein.
Section 6.02 Merger, Consolidation or Conversion of the Depositor,
the Servicer or the Special Servicer.
(a) Subject to subsection (b) below, the Depositor, the Servicer and
the Special Servicer each will keep in full effect its existence, rights and
franchises as a corporation under the laws of the jurisdiction of its
incorporation or organization, and each will obtain and preserve its
qualification to do business as a foreign corporation in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Certificates or any of the Mortgage Loans
and to perform its respective duties under this Agreement.
(b) The Depositor, the Servicer and the Special Servicer each may be
merged or consolidated with or into any Person, or transfer all or substantially
all of its assets (which may be limited to all or substantially all of its
assets related to commercial mortgage loan servicing) to any Person, in which
case any Person resulting from any merger or consolidation to which the
Depositor, the Servicer or the Special Servicer shall be a party, or any Person
succeeding to the business of the Depositor, the Servicer or the Special
Servicer, shall be the successor of the Depositor, the Servicer and the Special
Servicer, as the case may be, hereunder, without the execution or filing of any
paper (other than an assumption agreement wherein the successor shall agree to
perform the obligations of and serve as the Depositor, the Servicer or the
Special Servicer, as the case may be, in accordance with the terms of this
Agreement) or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding; provided, however, that such merger,
consolidation or succession will not result in a withdrawal, downgrading or
qualification of the then-current ratings of the Classes of Certificates that
have been so rated (as evidenced by a letter to such effect from each Rating
Agency).
Section 6.03 Limitation on Liability of the Depositor, the Servicer,
the Special Servicer and Others.
(a) None of the Depositor, the Servicer, the Special Servicer or any
of the directors, officers, employees or agents of any of the foregoing shall be
under any liability to the Trust, the Certificateholders or a Companion Holder
for any action taken or for refraining from the taking of any action in good
faith pursuant to this Agreement, or for errors in judgment; provided, however,
that this provision shall not protect the Depositor, the Servicer, the Special
Servicer or any such Person against any breach of warranties or representations
made herein or any liability which would otherwise be imposed by reason of
willful misfeasance, bad faith or negligence in the performance of duties or by
reason of negligent disregard of obligations and duties hereunder. The
Depositor, the Servicer and the Special Servicer and any director, officer,
member, manager, employee or agent of the Depositor, the Servicer or the Special
Servicer may rely on any document of any kind which, prima facie, is properly
executed and submitted by any Person respecting any matters arising hereunder.
The Depositor, the Servicer, the Special Servicer and any director, officer,
employee or agent of any of the foregoing shall be indemnified and held harmless
by the Trust against any and all claims, losses, penalties, fines, forfeitures,
reasonable legal fees and related costs, judgments, and any other costs,
liabilities, fees and expenses incurred in connection with any legal action
(whether in equity or at law) or claim relating to this Agreement, the Mortgage
Loans, or the Certificates, other than any loss, liability or expense: (i)
specifically required to be borne thereby pursuant to the terms hereof; (ii)
incurred in connection with any breach of a representation, warranty or covenant
made by it herein; (iii) incurred by reason of bad faith, willful misconduct or
negligence in the performance of its obligations or duties hereunder, or by
reason of negligent disregard of such obligations or duties or (iv) in the case
of the Depositor and any of its directors, officers, employees and agents,
incurred in connection with any violation by any of them of any state or federal
securities law.
(b) None of the Depositor, the Servicer and the Special Servicer
shall be under any obligation to appear in, prosecute or defend any legal or
administrative action (whether in equity or at law), proceeding, hearing or
examination that is not incidental to its respective duties under this Agreement
or which in its opinion may involve it in any expense or liability not
recoverable from the Trust Fund; provided, however, that the Depositor, the
Servicer or the Special Servicer may in its discretion undertake any such
action, proceeding, hearing or examination that it may deem necessary or
desirable in respect to this Agreement and the rights and duties of the parties
hereto and the interests of the Certificateholders hereunder. In such event, the
legal expenses and costs of such action, proceeding, hearing or examination and
any liability resulting therefrom shall be expenses, costs and liabilities of
the Trust Fund, and the Depositor, the Servicer and the Special Servicer shall
be entitled to be reimbursed therefor out of amounts attributable to the
Mortgage Loans on deposit in the Certificate Account as provided by Section
3.05(a).
(c) Each of the Servicer and the Special Servicer agrees to
indemnify the Depositor, the Trustee, the Paying Agent and the Trust and any
director, officer, employee or agent thereof, and hold them harmless, from and
against any and all claims, losses, penalties, fines, forfeitures, reasonable
legal fees and related costs, judgments, and any other costs, liabilities, fees
and expenses that any of them may sustain arising from or as a result of any
willful misfeasance, bad faith or negligence of the Servicer or the Special
Servicer, as the case may be, in the performance of its obligations and duties
under this Agreement or by reason of negligent disregard by the Servicer or the
Special Servicer, as the case may be, of its duties and obligations hereunder or
by reason of breach of any representations or warranties made herein; provided
that such indemnity shall not cover indirect or consequential damages. The
Trustee, the Paying Agent or the Depositor, as the case may be, shall
immediately notify the Servicer or the Special Servicer, as applicable, if a
claim is made by a third party with respect to this Agreement or the Mortgage
Loans entitling the Trust to indemnification hereunder, whereupon the Servicer
or the Special Servicer, as the case may be, shall assume the defense of such
claim (with counsel reasonably satisfactory to the Trustee, the Paying Agent or
the Depositor) and pay all expenses in connection therewith, including counsel
fees, and promptly pay, discharge and satisfy any judgment or decree which may
be entered against it or them in respect of such claim. Any failure to so notify
the Servicer or the Special Servicer, as the case may be, shall not affect any
rights any of the foregoing Persons may have to indemnification under this
Agreement or otherwise, unless the Servicer's, or the Special Servicer's, as the
case may be, defense of such claim is materially prejudiced thereby.
(d) Each of the Trustee and the Paying Agent, respectively (and not
jointly and severally) agrees to indemnify the Servicer and the Special Servicer
and any director, officer, employee or agent thereof, and hold them harmless,
from and against any and all claims, losses, penalties, fines, forfeitures,
reasonable legal fees and related costs, judgments, and any other costs,
liabilities, fees and expenses that any of them may sustain arising from or as a
result of any willful misfeasance, bad faith or negligence of the Trustee or the
Paying Agent, respectively, in the performance of its obligations and duties
under this Agreement or by reason of negligent disregard by the Trustee or the
Paying Agent, respectively, of its duties and obligations hereunder or by reason
of breach of any representations or warranties made herein; provided, that such
indemnity shall not cover indirect or consequential damages. The Servicer or the
Special Servicer, as the case may be, shall immediately notify the Trustee and
the Paying Agent if a claim is made by a third party with respect to this
Agreement, whereupon the Trustee or the Paying Agent, respectively, shall assume
the defense of such claim (with counsel reasonably satisfactory to the Servicer
or the Special Servicer) and pay all expenses in connection therewith, including
counsel fees, and promptly pay, discharge and satisfy any judgment or decree
which may be entered against it or them in respect of such claim. Any failure to
so notify the Trustee or the Paying Agent shall not affect any rights any of the
foregoing Persons may have to indemnification under this Agreement or otherwise,
unless the Trustee's or the Paying Agent's defense of such claim is materially
prejudiced thereby.
(e) The Depositor agrees to indemnify the Servicer and the Special
Servicer and any director, officer, employee or agent thereof, and hold them
harmless, from and against any and all claims, losses, penalties, fines,
forfeitures, reasonable legal fees and related costs, judgments, and any other
costs, liabilities, fees and expenses that any of them may sustain arising from
or as a result of any willful misfeasance, bad faith or negligence of the
Depositor, in the performance of its obligations and duties under this Agreement
or by reason of negligent disregard by the Depositor of its duties and
obligations hereunder or by reason of breach of any representations or
warranties made herein; provided, that such indemnity shall not cover indirect
or consequential damages. The Servicer or the Special Servicer, as the case may
be, shall immediately notify the Depositor if a claim is made by a third party
with respect to this Agreement, whereupon the Depositor shall assume the defense
of such claim (with counsel reasonably satisfactory to the Servicer or the
Special Servicer) and pay all expenses in connection therewith, including
counsel fees, and promptly pay, discharge and satisfy any judgment or decree
which may be entered against it or them in respect of such claim. Any failure to
so notify the Depositor shall not affect any rights any of the foregoing Persons
may have to indemnification under this Agreement or otherwise, unless the
Depositor's defense of such claim is materially prejudiced thereby.
(f) The indemnification provided herein shall survive the
termination of this Agreement and the termination or resignation of the
Servicer, the Trustee, the Paying Agent and the Special Servicer.
Section 6.04 Depositor, Servicer and Special Servicer Not to Resign.
Subject to the provisions of Section 6.02, neither the Servicer nor
the Special Servicer shall resign from their respective obligations and duties
hereby imposed on each of them except upon (a) determination that such party's
duties hereunder are no longer permissible under applicable law or (b) in the
case of the Servicer, upon the appointment of, and the acceptance of such
appointment by, a successor Servicer and receipt by the Trustee of written
confirmation from each applicable Rating Agency that such resignation and
appointment will not cause such Rating Agency to downgrade, withdraw or qualify
any of the then current ratings assigned by such Rating Agency to any Class of
Certificates. Only the Servicer shall be permitted to resign pursuant to clause
(b) above. Any such determination permitting the resignation of the Servicer or
the Special Servicer pursuant to clause (a) above shall be evidenced by an
Opinion of Counsel (at the expense of the resigning party) to such effect
delivered to the Trustee and the Directing Certificateholder. No such
resignation by the Servicer or the Special Servicer shall become effective until
the Trustee or a successor Servicer shall have assumed the Servicer's or Special
Servicer's, as applicable, responsibilities and obligations in accordance with
Section 7.02. Upon any termination or resignation of the Servicer hereunder, the
Servicer shall have the right and opportunity to appoint any successor Servicer
with respect to this Section 6.04, provided that such successor Servicer is
approved by the Directing Certificateholder, such approval not to be
unreasonably withheld.
Section 6.05 Rights of the Depositor in Respect of the Servicer and
the Special Servicer.
The Depositor may, but is not obligated to, enforce the obligations
of the Servicer and the Special Servicer hereunder and may, but is not obligated
to, perform, or cause a designee to perform, any defaulted obligation of the
Servicer and the Special Servicer hereunder or exercise the rights of the
Servicer or Special Servicer, as applicable, hereunder; provided, however, that
the Servicer and the Special Servicer shall not be relieved of any of their
respective obligations hereunder by virtue of such performance by the Depositor
or its designee. The Depositor shall not have any responsibility or liability
for any action or failure to act by the Servicer or the Special Servicer and is
not obligated to supervise the performance of the Servicer or the Special
Servicer under this Agreement or otherwise.
Section 6.06 The Directing Certificateholder, the Simon
Representative.
The Directing Certificateholder (or with respect to the Simon
Mortgage Loan, the Simon Representative) shall be entitled to advise (1) the
Special Servicer with respect to all Specially Serviced Mortgage Loans, (2) the
Special Servicer and the Servicer with respect to Non-Specially Serviced
Mortgage Loans having Stated Principal Balances greater than or equal to
$2,500,000 (other than with respect to the extension of maturity of any Mortgage
Loan), and (3) the Special Servicer with respect to all Mortgage Loans for which
an extension of maturity is being considered, and notwithstanding anything
herein to the contrary, except as set forth in, and in any event subject to,
Section 3.08(f) and the second paragraph of this Section 6.07, the Servicer or
Special Servicer, as applicable, shall not be permitted to take any of the
following actions as to which the Directing Certificateholder (or with respect
to the Simon Mortgage Loan, the Simon Representative) has objected in writing
within ten (10) Business Days of being notified thereof (or thirty (30) days
with respect to clause (x) below) (provided that if such written objection has
not been received by the Servicer or the Special Servicer, as applicable, within
such ten (10) Business Day period or other period, then the Directing
Certificateholder (or with respect to the Simon Mortgage Loan, the Simon
Representative) will be deemed to have waived its right to object):
(i) any proposed foreclosure upon or comparable conversion (which
may include acquisitions of an REO Property) of the ownership of
properties securing such of the Mortgage Loans as come into and continue
in default;
(ii) any modification or consent to a modification of a monetary
term of a Mortgage Loan or any extension of the maturity date of any
Mortgage Loan;
(iii) any proposed sale of a Defaulted Mortgage Loan or REO Property
(other than pursuant to Section 3.18(d), Section 3.18(e) or Section 9.01)
for less than the applicable Purchase Price;
(iv) any determination to bring an REO Property into compliance with
applicable environmental laws or to otherwise address Hazardous Materials
located at an REO Property;
(v) any release of collateral or any acceptance of substitute or
additional collateral for a Mortgage Loan other than pursuant to the
specific terms of the related Mortgage Loan;
(vi) any waiver of a "due-on-sale" or "due-on-encumbrance" clause
with respect to a Mortgage Loan or any consent to such waiver;
(vii) any management company changes or franchise changes with
respect to a Mortgage Loan for which the Servicer is required to consent
or approve;
(viii) releases of any escrows, reserves or letters of credit held
as performance escrows or reserves, other than pursuant to the specific
terms of the Mortgage Loans;
(ix) any acceptance of an assumption agreement releasing a Mortgagor
from liability under a Mortgage Loan other than pursuant to the specific
terms of such Mortgage Loan; and
(x) any determination of an Acceptable Insurance Default.
provided that, in the event that the Special Servicer or Servicer, as
applicable, determines that immediate action is necessary to protect the
interests of the Certificateholders (as a collective whole), the Special
Servicer or Servicer, as applicable may take any such action without waiting for
the Directing Certificateholder's or the Simon Representative's, as applicable,
response.
In addition, the Directing Certificateholder may direct the Special
Servicer to take, or to refrain from taking, such other actions with respect to
a Mortgage Loan, as the Directing Certificateholder may deem advisable or as to
which provision is otherwise made herein; provided that notwithstanding anything
herein to the contrary, no such direction, and no objection contemplated by the
preceding paragraph, may require or cause the Special Servicer to violate any
provision of this Agreement or the REMIC Provisions, including without
limitation the Special Servicer's obligation to act in accordance with the
Servicing Standards, or expose the Servicer, the Special Servicer, the Trust
Fund or the Trustee to liability, or materially expand the scope of the Special
Servicer's responsibilities hereunder or cause the Special Servicer to act, or
fail to act, in a manner which in the reasonable judgment of the Special
Servicer is not in the best interests of the Certificateholders.
In the event the Servicer or Special Servicer determines that a
refusal to consent by the Directing Certificateholder or any advice from the
Directing Certificateholder would otherwise cause the Servicer or the Special
Servicer, as the case may be, to violate the terms of this Agreement, including
without limitation, the Servicing Standards, the Servicer or the Special
Servicer, as the case may be, shall disregard such refusal to consent or advice
and notify the other servicer, the Directing Certificateholder, the Trustee and
the Rating Agencies of its determination, including a reasonably detailed
explanation of the basis therefor.
The Directing Certificateholder (and with respect to the Simon
Mortgage Loan, the Simon Representative) shall have no liability to the Trust
Fund or the Certificateholders for any action taken, or for refraining from the
taking of any action in good faith, or for errors in judgment; provided,
however, that the Directing Certificateholder (and with respect to the Simon
Mortgage Loan, the Simon Representative) shall not be protected against any
liability to the Controlling Class Certificateholder (or with respect to the
Simon Representative, the Simon Controlling Holder) which would otherwise be
imposed by reason of willful misfeasance, bad faith or negligence in the
performance of duties or by reason of reckless disregard of obligations or
duties. By its acceptance of a Certificate, each Certificateholder confirms its
understanding that the Directing Certificateholder (and with respect to the
Simon Mortgage Loan, the Simon Representative) may take actions that favor the
interests of one or more Classes of the Certificates over other Classes of the
Certificates, and that the Directing Certificateholder (and with respect to the
Simon Mortgage Loan, the Simon Representative) may have special relationships
and interests that conflict with those of Holders of some Classes of the
Certificates, that the Directing Certificateholder (or with respect to the Simon
Mortgage Loan, the Simon Representative) may act solely in the interests of the
Holders of the Controlling Class, that the Directing Certificateholder does not
have any duties to the Holders of any Class of Certificates other than the
Controlling Class (or with respect to the Simon Representative, the Simon
Controlling Holder), that the Directing Certificateholder may take actions that
favor the interests of the Holders of the Controlling Class (or with respect to
the Simon Representative, the Simon Controlling Holder) over the interests of
the Holders of one or more other classes of Certificates, that the Directing
Certificateholder (or with respect to the Simon Mortgage Loan, the Simon
Representative) shall not be liable to any Certificateholder, by reason of its
having acted solely in the interests of the Holders of the Controlling Class (or
with respect to the Simon Representative, the Simon Controlling Holder), and
that the Directing Certificateholder (and with respect to the Simon Mortgage
Loan, the Simon Representative) shall have no liability whatsoever for having so
acted, and no Certificateholder may take any action whatsoever against the
Directing Certificateholder (and with respect to the Simon Mortgage Loan, the
Simon Representative) or any director, officer, employee, agent or principal
thereof for having so acted.
[End of Article VI]
ARTICLE VII
DEFAULT
Section 7.01 Events of Default; Servicer and Special Servicer
Termination.
(a) "Event of Default", wherever used herein, means any one of the
following events:
(i) (A) any failure by the Servicer to make any deposit required to
be made by the Servicer to the Certificate Account on the day and by the
time such remittance is required to be made under the terms of this
Agreement, which failure is not remedied within one Business Day or (B)
any failure by the Servicer to deposit into, or remit to the Paying Agent
for deposit into, any Distribution Account any amount required to be so
deposited or remitted, which failure is not remedied by 11:00 a.m. (New
York City time) on the relevant Distribution Date; or
(ii) any failure by the Special Servicer to deposit into the REO
Account, within one Business Day after such deposit is required to be made
or to remit to the Servicer for deposit into the Certificate Account, or
to deposit into, or to remit to the Paying Agent for deposit into, the
Lower-Tier Distribution Account any amount required to be so deposited or
remitted by the Special Servicer pursuant to, and at the time specified
by, the terms of this Agreement; or
(iii) any failure on the part of the Servicer or the Special
Servicer duly to observe or perform in any material respect any of its
other covenants or obligations contained in this Agreement which continues
unremedied for a period of 30 days (10 days in the case of the Servicer's
failure to make a Servicing Advance or 15 days in the case of a failure to
pay the premium for any insurance policy required to be maintained
hereunder) after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to the Servicer
or the Special Servicer, as the case may be, by any other party hereto,
with a copy to each other party to this Agreement by the Holders of
Certificates of any Class evidencing, as to such Class, Percentage
Interests aggregating not less than 25%; provided, however, if such
failure is capable of being cured and the Servicer or Special Servicer, as
applicable, is diligently pursuing such cure, such 30-day period will be
extended an additional 30 days; or
(iv) any breach on the part of the Servicer or the Special Servicer
of any representation or warranty contained in Section 3.23 or Section
3.24, as applicable, which materially and adversely affects the interests
of any Class of Certificateholders and which continues unremedied for a
period of 30 days after the date on which notice of such breach, requiring
the same to be remedied, shall have been given to the Servicer or the
Special Servicer, as the case may be, by the Depositor, the Paying Agent
or the Trustee, or to the Servicer, the Special Servicer, the Depositor,
the Paying Agent and the Trustee by the Holders of Certificates of any
Class evidencing, as to such Class, Percentage Interests aggregating not
less than 25%; provided, however, if such breach is capable of being cured
and the Servicer or Special Servicer, as applicable, is diligently
pursuing such cure, such 30-day period will be extended an additional 30
days; or
(v) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law
for the appointment of a conservator, receiver, liquidator, trustee or
similar official in any bankruptcy, insolvency, readjustment of debt,
marshaling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against
the Servicer or the Special Servicer and such decree or order shall have
remained in force undischarged, undismissed or unstayed for a period of 60
days; or
(vi) the Servicer or the Special Servicer shall consent to the
appointment of a conservator, receiver, liquidator, trustee or similar
official in any bankruptcy, insolvency, readjustment of debt, marshaling
of assets and liabilities or similar proceedings of or relating to the
Servicer or the Special Servicer or of or relating to all or substantially
all of its property; or
(vii) the Servicer or the Special Servicer shall admit in writing
its inability to pay its debts generally as they become due, file a
petition to take advantage of any applicable bankruptcy, insolvency or
reorganization statute, make an assignment for the benefit of its
creditors, voluntarily suspend payment of its obligations or take any
corporate action in furtherance of the foregoing; or
(viii) Moody's places its ratings of any Class of Certificates on a
"watch" status in contemplation of a ratings downgrade or withdrawal,
citing servicing or special servicing concerns, as applicable, as the sole
or a contributory factor in such rating action and such "watch" status is
not rescinded within 90 days (or such longer period as would not, as
confirmed by such Rating Agency in writing, result in a qualification,
downgrade or withdrawal of one or more ratings assigned by such Rating
Agency to the Certificates); or
(ix) Moody's downgrades the then current ratings of any Class of
Certificates, citing servicing or special servicing concerns, as
applicable, as the sole or a contributory factor in such downgrade; or
(x) the Servicer or Special Servicer is removed from S&P or Moody's
approved master servicer list or approved special servicer list, as
applicable, and is not reinstated to the approved master servicer or
special servicer list, as applicable, within 90 days of such removal.
(b) If any Event of Default with respect to the Servicer or the
Special Servicer (in either case, for purposes of this Section 7.01(b), the
"Defaulting Party") shall occur and be continuing, then, and in each and every
such case, so long as such Event of Default shall not have been remedied, the
Trustee may, and at the written direction of the Directing Certificateholder or
Holders of Certificates entitled to at least 51% of the Voting Rights, the
Trustee shall, terminate, by notice in writing to the Defaulting Party, with a
copy of such notice to the Depositor, all of the rights (subject to Section 3.11
and Section 6.03) and obligations of the Defaulting Party under this Agreement
and in and to the Mortgage Loans and the proceeds thereof; provided, however,
that the Defaulting Party shall be entitled to the payment of accrued and unpaid
compensation and reimbursement through the date of such termination as provided
for under this Agreement for services rendered and expenses incurred. From and
after the receipt by the Defaulting Party of such written notice except as
otherwise provided in this Article VII, all authority and power of the
Defaulting Party under this Agreement, whether with respect to the Certificates
(other than as a Holder of any Certificate) or the Mortgage Loans or otherwise,
shall pass to and be vested in the Trustee with respect to a termination of the
Servicer and to the Servicer with respect to a termination of the Special
Servicer pursuant to and under this Section, and, without limitation, the
Trustee or Servicer, as applicable, is hereby authorized and empowered to
execute and deliver, on behalf of and at the expense of the Defaulting Party, as
attorney-in-fact or otherwise, any and all documents and other instruments, and
to do or accomplish all other acts or things necessary or appropriate to effect
the purposes of such notice of termination, whether to complete the transfer and
endorsement or assignment of the Mortgage Loans and related documents, or
otherwise. The Servicer and Special Servicer each agree that if it is terminated
pursuant to this Section 7.01(b), it shall promptly (and in any event no later
than 20 Business Days subsequent to its receipt of the notice of termination)
provide the Trustee or the Servicer, as applicable, with all documents and
records requested by it to enable it to assume the Servicer's or the Special
Servicer's, as the case may be, functions hereunder, and shall cooperate with
the Trustee or the Servicer, as applicable, in effecting the termination of the
Servicer's or the Special Servicer's, as the case may be, responsibilities and
rights (subject to Section 3.11 and Section 6.03) hereunder, including, without
limitation, the transfer within 5 Business Days to the Trustee or the Servicer,
as applicable, for administration by it of all cash amounts which shall at the
time be or should have been credited by the Servicer to the Certificate Account
or any Servicing Account (if it is the Defaulting Party) or by the Special
Servicer to the REO Account (if it is the Defaulting Party) or thereafter be
received with respect to the Mortgage Loans or any REO Property (provided,
however, that the Servicer and the Special Servicer each shall, if terminated
pursuant to this Section 7.01(b), continue to be entitled to receive all amounts
accrued or owing to it under this Agreement on or prior to the date of such
termination, whether in respect of Advances (in the case of the Special Servicer
or the Servicer) or otherwise, and it and its directors, managers, officers,
members, employees and agents shall continue to be entitled to the benefits of
Section 3.11 and Section 6.03 notwithstanding any such termination).
(c) If the Servicer receives notice of termination solely due to an
Event of Default under Section 7.01(b) solely due to an Event of Default under
Section 7.01(a)(ix) or (x) and if the Servicer to be terminated pursuant to
Section 7.01(b) provides the Trustee with the appropriate "request for proposal"
materials within five (5) Business Days following such termination notice, then
the Servicer shall continue to service as Servicer hereunder until a successor
Servicer is selected in accordance with this Section 7.01(c). Upon receipt of
the "request for proposal" materials, Trustee shall promptly thereafter (using
such "request for proposal" materials provided by the Servicer pursuant to
Section 7.01(b)) solicit good faith bids for the rights to service the Mortgage
Loans under this Agreement from at least three (3) Persons qualified to act as
Servicer hereunder in accordance with Sections 6.02 and 7.02 (any such Person so
qualified, a "Qualified Bidder") or, if three (3) Qualified Bidders cannot be
located, then from as many persons as the Trustee can determine are Qualified
Bidders; provided that, at the Trustee's request, the Servicer shall supply the
Trustee with the names of Persons from whom to solicit such bids; and provided,
further, that the Trustee shall not be responsible if less than three (3) or no
Qualified Bidders submit bids for the right to service the Mortgage Loans under
this Agreement. The bid proposal shall require any Successful Bidder (as defined
below), as a condition of such bid, to enter into this Agreement as successor
Servicer, and to agree to be bound by the terms hereof, within 45 days after the
notice of termination of the Servicer. The materials provided to the Trustee
shall provide for soliciting bids: (i) on the basis of such successor Servicer
retaining all Sub-Servicers to continue the primary servicing of the Mortgage
Loans pursuant to the terms of the respective Sub-Servicing Agreements (each, a
"Servicing-Retained Bid"); and (ii) on the basis of terminating each
Sub-Servicing Agreement and Sub-Servicer that it is permitted to terminate in
accordance with Section 3.22 (each, a "Servicing-Released Bid"). The Trustee
shall select the Qualified Bidder with the highest cash Servicing-Retained Bid
(or, if none, the highest cash Servicing-Released Bid) (the "Successful Bidder")
to act as successor Servicer hereunder; provided, however, that if the Trustee
does not receive confirmation in writing by each Rating Agency that the
appointment of such Successful Bidder as successor Servicer will not result in
the withdrawal, downgrade, or qualification of the rating assigned by the Rating
to any class of Certificates then rated by the Rating Agency within 10 days
after the selection of such Successful Bidder, then the Trustee shall repeat the
bid process described above (but subject to the above-described 45-day time
period) until such confirmation is obtained. The Trustee shall direct the
Successful Bidder to enter into this Agreement as successor Servicer pursuant to
the terms hereof no later than 45 days after notice of the termination of the
Servicer.
Upon the assignment and acceptance of master servicing rights
hereunder to and by the Successful Bidder, the Trustee shall remit or cause to
be remitted (i) if the successful bid was a Servicing-Retained Bid, to the
Servicer to be terminated pursuant to Section 7.01(b), the amount of such cash
bid received from the Successful Bidder (net of "out-of-pocket" expenses
incurred in connection with obtaining such bid and transferring servicing) and
(ii) if the successful bid was a Servicing-Released Bid, to the Servicer and
each terminated Sub-Servicer its respective Bid Allocation.
The Servicer to be terminated pursuant to Section 7.01(b) shall be
responsible for all out-of-pocket expenses incurred in connection with the
attempt to sell its rights to service the Mortgage Loans, which expenses are not
reimbursed to the party that incurred such expenses pursuant to the preceding
paragraph.
If the Successful Bidder has not entered into this Agreement as
successor Servicer within the above-described time period or no Successful
Bidder was identified within the above-described time period, the Servicer to be
terminated pursuant to Section 7.01(b) shall reimburse the Trustee for all
reasonable "out-of-pocket" expenses incurred by the Trustee in connection with
such bid process and the Trustee shall have no further obligations under this
Section 7.01(c). The Trustee thereafter may act or may select a successor to act
as Servicer hereunder in accordance with Section 7.02.
(d) The Directing Certificateholder shall be entitled to terminate
the rights (subject to Section 3.11 and Section 6.03(d)) and obligations of the
Special Servicer under this Agreement, with or without cause, upon ten (10)
Business Days' notice to the Special Servicer, the Servicer, the Paying Agent
and the Trustee. Upon a termination or resignation of the Special Servicer, the
Directing Certificateholder shall appoint a successor Special Servicer;
provided, however, that (i) such successor will meet the requirements set forth
in Section 7.02 and (ii) as evidenced in writing by each of the Rating Agencies,
the proposed successor of such Special Servicer will not, in and of itself,
result in a downgrading, withdrawal or qualification of the then-current ratings
provided by the Rating Agencies in respect to any Class of then outstanding
Certificates that is rated. No penalty or fee shall be payable to the Special
Servicer with respect to any termination pursuant to this Section 7.01(d). All
costs and expenses of any such termination made without cause shall be paid by
the Holders of the Controlling Class.
(e) The Servicer and Special Servicer shall, from time to time, take
all such reasonable actions as are required by them in order to prevent the
Certificates being placed on "watch" status or downgraded due to servicing or
special servicing concerns by Moody's and maintain minimum ratings required by
S&P to secure future commercial mortgage loan securitization transactions.
Section 7.02 Trustee to Act; Appointment of Successor.
On and after the time the Servicer or the Special Servicer, as the
case may be, either resigns pursuant to Subsection (a) of the first sentence of
Section 6.04 or receives a notice of termination for cause pursuant to Section
7.01(b), and provided that no acceptable successor has been appointed within the
time period specified in Section 7.01(c), the Trustee shall be the successor to
the Servicer and the Servicer shall be the successor to the Special Servicer,
until such successor is appointed by the Directing Certificateholder as provided
in Section 7.01(c), as applicable, in all respects in its capacity as Servicer
or Special Servicer under this Agreement and the transactions set forth or
provided for herein and shall be subject to, and have the benefit of, all of the
rights, (subject to Section 3.11 and Section 6.03) benefits, responsibilities,
duties, liabilities and limitations on liability relating thereto and that arise
thereafter placed on or for the benefit of the Servicer or Special Servicer by
the terms and provisions hereof; provided, however, that any failure to perform
such duties or responsibilities caused by the terminated party's failure under
Section 7.01 to provide information or moneys required hereunder shall not be
considered a default by such successor hereunder. The appointment of a successor
Servicer shall not affect any liability of the predecessor Servicer which may
have arisen prior to its termination as Servicer, and the appointment of a
successor Special Servicer shall not affect any liability of the predecessor
Special Servicer which may have arisen prior to its termination as Special
Servicer. The Trustee or Servicer, as applicable, in its capacity as successor
to the Servicer or the Special Servicer, as the case may be, shall not be liable
for any of the representations and warranties of the Servicer or the Special
Servicer, respectively, herein or in any related document or agreement, for any
acts or omissions of the predecessor Servicer or Special Servicer or for any
losses incurred by the Servicer pursuant to Section 3.06 hereunder, nor shall
the Trustee or the Servicer, as applicable, be required to purchase any Mortgage
Loan hereunder solely as a result of its obligations as successor Servicer or
Special Servicer, as the case may be. Subject to Section 3.11, as compensation
therefor, the Trustee as successor Servicer shall be entitled to the Servicing
Fees and all fees relating to the Mortgage Loans which the Servicer would have
been entitled to if the Servicer had continued to act hereunder, including but
not limited to any income or other benefit from any Permitted Investment
pursuant to Section 3.06, and subject to Section 3.11, the Servicer as successor
to the Special Servicer shall be entitled to the Special Servicing Fees to which
the Special Servicer would have been entitled if the Special Servicer had
continued to act hereunder. Should the Trustee or the Servicer, as applicable,
succeed to the capacity of the Servicer or the Special Servicer, as the case may
be, the Trustee or the Servicer, as applicable, shall be afforded the same
standard of care and liability as the Servicer or the Special Servicer, as
applicable, hereunder notwithstanding anything in Section 8.01 to the contrary,
but only with respect to actions taken by it in its role as successor Servicer
or successor Special Servicer, as the case may be, and not with respect to its
role as Trustee or Servicer, as applicable, hereunder. Notwithstanding the
above, the Trustee may, if it shall be unwilling to act as successor to the
Servicer, or shall, if it is unable to so act, or if the Trustee is not approved
as a servicer by each Rating Agency, or if the Directing Certificateholder or
the Holders of Certificates entitled to at least 51% of the Voting Rights so
request in writing to the Trustee, promptly appoint, or petition a court of
competent jurisdiction to appoint, any established mortgage loan servicing
institution which meets the criteria set forth in Section 6.04 and otherwise
herein, as the successor to the Servicer or the Special Servicer, as applicable,
hereunder in the assumption of all or any part of the responsibilities, duties
or liabilities of the Servicer or Special Servicer hereunder. No appointment of
a successor to the Servicer or the Special Servicer hereunder shall be effective
until the assumption in writing by the successor to the Servicer or the Special
Servicer of all its responsibilities, duties and liabilities hereunder that
arise thereafter and upon Rating Agency confirmation, and which appointment has
been approved by the Directing Certificateholder, such approval not to be
unreasonably withheld. Pending appointment of a successor to the Servicer or the
Special Servicer hereunder, unless the Trustee or the Servicer, as applicable,
shall be prohibited by law from so acting, the Trustee or the Servicer, as
applicable, shall act in such capacity as herein above provided. In connection
with such appointment and assumption of a successor to the Servicer or Special
Servicer as described herein, the Trustee or the Servicer, as applicable, may
make such arrangements for the compensation of such successor out of payments on
Mortgage Loans as it and such successor shall agree; provided, however, that no
such compensation with respect to a successor Servicer or successor Special
Servicer, as the case may be, shall be in excess of that permitted the
terminated Servicer or Special Servicer, as the case may be, hereunder. The
Trustee, the Servicer or the Special Servicer (whichever is not the terminated
party) and such successor shall take such action, consistent with this
Agreement, as shall be necessary to effectuate any such succession. Any costs
and expenses associated with the transfer of the servicing function (other than
with respect to a termination without cause) under this Agreement shall be borne
by the predecessor servicer.
Section 7.03 Notification to Certificateholders.
(a) Upon any resignation of the Servicer or the Special Servicer
pursuant to Section 6.04, any termination of the Servicer or the Special
Servicer pursuant to Section 7.01 or any appointment of a successor to the
Servicer or the Special Servicer pursuant to Section 7.02, the Paying Agent
shall give prompt written notice thereof to Certificateholders at their
respective addresses appearing in the Certificate Register.
(b) Not later than the later of (i) 60 days after the occurrence of
any event which constitutes or, with notice or lapse of time or both, would
constitute an Event of Default and (ii) five (5) days after the Paying Agent
would be deemed to have notice of the occurrence of such an event in accordance
with Section 8.02(vii), the Paying Agent shall transmit by mail to the Depositor
and all Certificateholders notice of such occurrence, unless such default shall
have been cured.
Section 7.04 Waiver of Events of Default.
The Holders of Certificates representing at least 662/3% of the
Voting Rights allocated to each Class of Certificates affected by any Event of
Default hereunder may waive such Event of Default within 20 days of the receipt
of notice from the Paying Agent of the occurrence of such Event of Default;
provided, however, that an Event of Default under clause (i) of Section 7.01(a)
may be waived only by all of the Certificateholders of the affected Classes.
Upon any such waiver of an Event of Default, such Event of Default shall cease
to exist and shall be deemed to have been remedied for every purpose hereunder.
Upon any such waiver of an Event of Default by Certificateholders, the Trustee
shall be entitled to recover all costs and expenses incurred by it in connection
with enforcement action taken with respect to such Event of Default prior to
such waiver from the Trust Fund. No such waiver shall extend to any subsequent
or other Event of Default or impair any right consequent thereon except to the
extent expressly so waived. Notwithstanding any other provisions of this
Agreement, for purposes of waiving any Event of Default pursuant to this Section
7.04, Certificates registered in the name of the Depositor or any Affiliate of
the Depositor shall be entitled to the same Voting Rights with respect to the
matters described above as they would if any other Person held such
Certificates.
Section 7.05 Trustee as Maker of Advances.
(a) In the event that the Servicer fails to fulfill its obligations
hereunder to make any Advances and such failure remains uncured, the Trustee
shall perform such obligations (x) within five Business Days following such
failure by the Servicer with respect to Servicing Advances resulting in an Event
of Default under Section 7.01(a)(iii) hereof to the extent a Responsible Officer
of the Trustee has actual knowledge of such failure with respect to such
Servicing Advances and (y) by noon, New York City time, on the related
Distribution Date with respect to P&I Advances pursuant to the Paying Agent's
notice of failure pursuant to Section 4.03(a) unless such failure has been
cured. With respect to any such Advance made by the Trustee, the Trustee shall
succeed to all of the Servicer's rights with respect to Advances hereunder,
including, without limitation, the Servicer's rights of reimbursement and
interest on each Advance at the Reimbursement Rate, and rights to determine that
a proposed Advance is a Nonrecoverable P&I Advance or Servicing Advance, as the
case may be, (without regard to any impairment of any such rights of
reimbursement caused by such Servicer's default in its obligations hereunder);
provided, however, that if Advances made by both the Trustee and the Servicer
shall at any time be outstanding, or any interest on any Advance shall be
accrued and unpaid, all amounts available to repay such Advances and the
interest thereon hereunder shall be applied entirely to the Advances outstanding
to the Trustee, until such Advances shall have been repaid in full, together
with all interest accrued thereon, prior to reimbursement of the Servicer for
such Advances. The Trustee shall be entitled to conclusively rely on any notice
given with respect to a Nonrecoverable Advance hereunder.
[End of Article VII]
ARTICLE VIII
CONCERNING THE TRUSTEE AND PAYING AGENT
Section 8.01 Duties of Trustee and the Paying Agent.
(a) The Trustee, prior to the occurrence of an Event of Default and
after the curing or waiving of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Agreement. If an Event of Default occurs and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in their exercise as a
prudent person would exercise or use under the circumstances in the conduct of
his own affairs. Any permissive right of the Trustee contained in this Agreement
shall not be construed as a duty.
(b) The Trustee or the Paying Agent, upon receipt of all
resolutions, certificates, statements, opinions, reports, documents, orders or
other instruments furnished to the Trustee or the Paying Agent which are
specifically required to be furnished pursuant to any provision of this
Agreement (other than the Mortgage Files, the review of which is specifically
governed by the terms of Article II), shall examine them to determine whether
they conform to the requirements of this Agreement. If any such instrument is
found not to conform to the requirements of this Agreement in a material manner,
the Trustee or the Paying Agent shall notify the party providing such instrument
and requesting the correction thereof. The Trustee or the Paying Agent shall not
be responsible for the accuracy or content of any resolution, certificate,
statement, opinion, report, document, order or other instrument furnished by the
Depositor, the Servicer or the Special Servicer or another Person, and accepted
by the Trustee or the Paying Agent in good faith, pursuant to this Agreement.
(c) No provision of this Agreement shall be construed to relieve the
Trustee or the Paying Agent from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct or bad faith; provided,
however, that:
(i) Prior to the occurrence of an Event of Default, and after the
curing of all such Events of Default which may have occurred, the duties
and obligations of the Trustee shall be determined solely by the express
provisions of this Agreement, the Trustee shall not be liable except for
the performance of such duties and obligations as are specifically set
forth in this Agreement, no implied covenants or obligations shall be read
into this Agreement against the Trustee and, in the absence of bad faith
on the part of the Trustee, the Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Trustee and
conforming to the requirements of this Agreement;
(ii) Neither the Trustee nor the Paying Agent shall be liable for an
error of judgment made in good faith by a Responsible Officer or
Responsible Officers of the Trustee or the Paying Agent, respectively,
unless it shall be proved that the Trustee or the Paying Agent,
respectively, was negligent in ascertaining the pertinent facts; and
(iii) The Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it in good faith in accordance
with the direction of Holders of Certificates entitled to at least 25% of
the Voting Rights relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee, under this Agreement (unless a
higher percentage of Voting Rights is required for such action).
(d) The Paying Agent shall promptly make available via its Internet
Website to the Companion Holder all reports that the Paying Agent has made
available to Certificateholders under this Agreement.
Section 8.02 Certain Matters Affecting the Trustee and the Paying
Agent.
Except as otherwise provided in Section 8.01:
(i) The Trustee and the Paying Agent may rely upon and shall be
protected in acting or refraining from acting upon any resolution,
Officer's Certificate, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent, order,
Appraisal, bond or other paper or document reasonably believed by it to be
genuine and to have been signed or presented by the proper party or
parties;
(ii) The Trustee and the Paying Agent may consult with counsel and
the written advice of such counsel or any Opinion of Counsel shall be full
and complete authorization and protection in respect of any action taken
or suffered or omitted by it hereunder in good faith and in accordance
therewith;
(iii) Neither the Trustee nor the Paying Agent shall be under any
obligation to exercise any of the trusts or powers vested in it by this
Agreement or to make any investigation of matters arising hereunder or to
institute, conduct or defend any litigation hereunder or in relation
hereto at the request, order or direction of any of the
Certificateholders, pursuant to the provisions of this Agreement, unless
such Certificateholders shall have offered to the Trustee or the Paying
Agent, as applicable, reasonable security or indemnity against the costs,
expenses and liabilities which may be incurred therein or thereby; neither
the Trustee nor the Paying Agent shall be required to expend or risk its
own funds or otherwise incur any financial liability in the performance of
any of its duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that repayment
of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it; nothing contained herein shall, however, relieve
the Trustee of the obligation, upon the occurrence of an Event of Default
which has not been cured, to exercise such of the rights and powers vested
in it by this Agreement, and to use the same degree of care and skill in
their exercise as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs;
(iv) Neither the Trustee nor the Paying Agent shall be liable for
any action reasonably taken, suffered or omitted by it in good faith and
believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Agreement;
(v) Prior to the occurrence of an Event of Default hereunder and
after the curing of all Events of Default which may have occurred, neither
the Trustee nor the Paying Agent shall be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, order,
approval, bond or other paper or document, unless requested in writing to
do so by Holders of Certificates entitled to at least 50% of the Voting
Rights; provided, however, that if the payment within a reasonable time to
the Trustee or the Paying Agent of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is, in the
opinion of the Trustee or the Paying Agent, respectively, not reasonably
assured to the Trustee or the Paying Agent by the security afforded to it
by the terms of this Agreement, the Trustee or the Paying Agent,
respectively, may require reasonable indemnity from such requesting
Holders against such expense or liability as a condition to taking any
such action. The reasonable expense of every such reasonable examination
shall be paid by the requesting Holders;
(vi) The Trustee or the Paying Agent may execute any of the trusts
or powers hereunder or perform any duties hereunder either directly or by
or through agents or attorneys; provided, however, that the appointment of
such agents or attorneys shall not relieve the Trustee or the Paying Agent
of its duties or obligations hereunder;
(vii) For all purposes under this Agreement, the Trustee shall not
be deemed to have notice of any Event of Default unless a Responsible
Officer of the Trustee has actual knowledge thereof or unless written
notice of any event which is in fact such a default is received by the
Trustee at the Corporate Trust Office and such notice references the
Certificates or this Agreement; and
(viii) Neither the Trustee nor the Paying Agent shall be responsible
for any act or omission of the Servicer or the Special Servicer (unless
the Trustee is acting as Servicer or Special Servicer, as the case may be
in which case the Trustee shall only be responsible for its own actions as
Servicer or Special Servicer) or of the Depositor.
Section 8.03 Trustee and Paying Agent Not Liable for Validity or
Sufficiency of Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates, other than
the acknowledgments of the Trustee or the Paying Agent in Sections 2.02, 2.04
and 2.05 and the signature, if any, of the Certificate Registrar and
Authenticating Agent set forth on any outstanding Certificate, shall be taken as
the statements of the Depositor, the Servicer or the Special Servicer, as the
case may be, and the Trustee or the Paying Agent assume no responsibility for
their correctness. Neither the Trustee nor the Paying Agent makes any
representations as to the validity or sufficiency of this Agreement or of any
Certificate (other than as to the signature, if any, of the Trustee or the
Paying Agent set forth thereon) or of any Mortgage Loan or related document.
Neither the Trustee nor the Paying Agent shall be accountable for the use or
application by the Depositor of any of the Certificates issued to it or of the
proceeds of such Certificates, or for the use or application of any funds paid
to the Depositor in respect of the assignment of the Mortgage Loans to the Trust
Fund, or any funds deposited in or withdrawn from the Certificate Account or any
other account by or on behalf of the Depositor, the Servicer, the Special
Servicer or in the case of the Trustee, the Paying Agent (unless the Trustee is
acting as Paying Agent). The Trustee and the Paying Agent shall not be
responsible for the accuracy or content of any resolution, certificate,
statement, opinion, report, document, order or other instrument furnished by the
Depositor, the Servicer or the Special Servicer and accepted by the Trustee, or
the Paying Agent, as applicable, in good faith, pursuant to this Agreement.
Section 8.04 Trustee or Paying Agent May Own Certificates.
The Trustee or the Paying Agent each in its individual capacity, not
as Trustee or Paying Agent, may become the owner or pledgee of Certificates, and
may deal with the Depositor, the Servicer, the Special Servicer, the Initial
Purchasers and the Underwriters in banking transactions, with the same rights it
would have if it were not Trustee or Paying Agent.
Section 8.05 Fees and Expenses of Trustee and Paying Agent;
Indemnification of Trustee and the Paying Agent.
(a) As compensation for the performance of their respective duties
hereunder, the Trustee will be paid the Trustee Fee and the Paying Agent will be
paid the Paying Agent Fee, in each case, equal to the Trustee's and the Paying
Agent's respective portion of one month's interest at the Trustee Fee Rate,
which shall cover recurring and otherwise reasonably anticipated expenses of the
Trustee and the Paying Agent, respectively. The Trustee Fee and the Paying Agent
Fee shall be paid monthly on a Mortgage Loan-by-Mortgage Loan basis. As to each
Mortgage Loan and REO Loan, the Trustee Fee and the Paying Agent Fee shall
accrue from time to time at the Trustee's and the Paying Agent's respective
portion of Trustee Fee Rate and shall be computed on the basis of the Stated
Principal Balance of such Mortgage Loan and a 360-day year consisting of twelve
30-day months. The Trustee Fee and the Paying Agent Fee (which shall not be
limited to any provision of law in regard to the compensation of a trustee of an
express trust) shall constitute the Trustee's and the Paying Agent's,
respectively, sole form of compensation for all services rendered by it in the
execution of the trusts hereby created and in the exercise and performance of
any of the powers and duties of the Trustee and the Paying Agent, respectively,
hereunder. No Trustee Fee shall be payable with respect to the Companion Loan.
(b) The Trustee, the Paying Agent and any director, officer,
employee or agent of the Trustee and the Paying Agent, respectively, shall be
entitled to be indemnified and held harmless by the Trust Fund (to the extent of
amounts on deposit in the Certificate Account or Lower-Tier Distribution Account
from time to time) against any loss, liability or expense (including, without
limitation, costs and expenses of litigation, and of investigation, counsel
fees, damages, judgments and amounts paid in settlement, and expenses incurred
in becoming successor servicer or successor Special Servicer, to the extent not
otherwise paid hereunder) arising out of, or incurred in connection with, any
act or omission of the Trustee or the Paying Agent, respectively, relating to
the exercise and performance of any of the powers and duties of the Trustee or
the Paying Agent, respectively, hereunder; provided, however, that none of the
Trustee, the Paying Agent nor any of the other above specified Persons shall be
entitled to indemnification pursuant to this Section 8.05(b) for (i) allocable
overhead, (ii) expenses or disbursements incurred or made by or on behalf of the
Trustee or the Paying Agent, respectively, in the normal course of the Trustee's
or the Paying Agent, respectively, performing its duties in accordance with any
of the provisions hereof, which are not "unanticipated expenses of the REMIC"
within the meaning of Treasury Regulations Section 1.860G-1(b)(3)(ii), (iii) any
expense or liability specifically required to be borne thereby pursuant to the
terms hereof or (iv) any loss, liability or expense incurred by reason of
willful misfeasance, bad faith or negligence in the performance of the Trustee's
or the Paying Agent, respectively, obligations and duties hereunder, or by
reason of negligent disregard of such obligations or duties, or as may arise
from a breach of any representation, warranty or covenant of the Trustee or the
Paying Agent, respectively, made herein. The provisions of this Section 8.05(b)
shall survive the termination of this Agreement and any resignation or removal
of the Trustee or the Paying Agent, respectively, and appointment of a successor
thereto.
Section 8.06 Eligibility Requirements for Trustee and the Paying
Agent.
The Trustee and Paying Agent hereunder shall at all times be, and
will be required to resign if it fails to be, (i) a corporation, national bank,
national banking association or a trust company, organized and doing business
under the laws of any state or the United States of America, authorized under
such laws to exercise corporate trust powers and to accept the trust conferred
under this Agreement, having a combined capital and surplus of at least
$100,000,000 and subject to supervision or examination by federal or state
authority and shall not be an Affiliate of the Servicer or the Special Servicer
(except during any period when the Trustee is acting as, or has become successor
to, the Servicer or the Special Servicer, as the case may be, pursuant to
Section 7.02), (ii) an institution insured by the Federal Deposit Insurance
Corporation and (iii) an institution whose long-term senior unsecured debt is
rated "Aa3" by Moody's and "AA-" by S&P (or such entity as would not, as
evidenced in writing by such Rating Agency, result in the qualification,
downgrading or withdrawal of any of the ratings then assigned thereby to the
Certificates).
If such corporation, national bank or national banking association
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section the combined capital and surplus of such corporation,
national bank or national banking association shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. In the event the place of business from which the Paying Agent
administers the Loan REMICs, the Upper-Tier REMIC and the Lower-Tier REMIC or in
which the Trustee's office is located is in a state or local jurisdiction that
imposes a tax on the Trust Fund on the net income of a REMIC (other than a tax
corresponding to a tax imposed under the REMIC Provisions), the Paying Agent or
the Trustee, as applicable shall elect either to (i) resign immediately in the
manner and with the effect specified in Section 8.07, (ii) pay such tax at no
expense to the Trust or (iii) administer the Loan REMICs, the Upper-Tier REMIC
and the Lower-Tier REMIC from a state and local jurisdiction that does not
impose such a tax.
Section 8.07 Resignation and Removal of the Trustee and Paying
Agent.
(a) The Trustee and the Paying Agent may at any time resign and be
discharged from the trusts hereby created by giving written notice thereof to
the Depositor, the Servicer, the Special Servicer and to all Certificateholders.
Upon receiving such notice of resignation, the Depositor shall promptly appoint
a successor trustee or paying agent acceptable to the Servicer by written
instrument, in duplicate, which instrument shall be delivered to the resigning
Trustee or Paying Agent and to the successor trustee or paying agent. A copy of
such instrument shall be delivered to the Servicer, the Special Servicer, the
Certificateholders and the Trustee or Paying Agent, as applicable, by the
Depositor. If no successor trustee or paying agent shall have been so appointed
and have accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Trustee or Paying Agent may petition any court of
competent jurisdiction for the appointment of a successor trustee.
(b) If at any time the Trustee or Paying Agent shall cease to be
eligible in accordance with the provisions of Section 8.06 and shall fail to
resign after written request therefor by the Depositor or the Servicer, or if at
any time the Trustee or Paying Agent shall become incapable of acting, or shall
be adjudged bankrupt or insolvent, or a receiver of the Trustee or Paying Agent
or of its property shall be appointed, or any public officer shall take charge
or control of the Trustee or Paying Agent or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation, or if the Trustee or
Paying Agent (if different than the Trustee) shall fail (other than by reason of
the failure of either the Servicer or the Special Servicer to timely perform its
obligations hereunder or as a result of other circumstances beyond the Trustee's
or Paying Agent's, as applicable, reasonable control), to timely publish any
report to be delivered, published or otherwise made available by the Trustee or
Paying Agent, as applicable, pursuant to Section 4.02 and such failure shall
continue unremedied for a period of five days, or if the Trustee or Paying Agent
(if different from the Trustee) fails to make distributions required pursuant to
Sections 3.05(d), 4.01 or 9.01, then the Depositor may remove the Trustee or
Paying Agent, as applicable, and appoint a successor trustee or paying agent
acceptable to the Servicer or paying agent acceptable to the Trustee or Paying
Agent, as applicable, by written instrument, in duplicate, which instrument
shall be delivered to the Trustee or Paying Agent so removed and to the
successor trustee or paying agent in the case of the removal of the Trustee or
Paying Agent. A copy of such instrument shall be delivered to the Servicer, the
Special Servicer and the Certificateholders by the Depositor.
(c) The Holders of Certificates entitled to at least 51% of the
Voting Rights may at any time remove the Trustee or Paying Agent and appoint a
successor trustee or paying agent by written instrument or instruments, in
triplicate, signed by such Holders or their attorneys-in-fact duly authorized,
one complete set of which instruments shall be delivered to the Servicer, one
complete set to the Trustee or Paying Agent so removed and one complete set to
the successor so appointed. A copy of such instrument shall be delivered to the
Depositor, the Special Servicer and the remaining Certificateholders by the
Servicer.
(d) Any resignation or removal of the Trustee or Paying Agent and
appointment of a successor Trustee or Paying Agent pursuant to any of the
provisions of this Section 8.07 shall not become effective until acceptance of
appointment by the successor Trustee or Paying Agent as provided in Section
8.08.
Upon any succession of the Trustee or Paying Agent under this
Agreement, the predecessor Trustee or Paying Agent shall be entitled to the
payment of accrued and unpaid compensation and reimbursement as provided for
under this Agreement for services rendered and expenses incurred (including
without limitation, unreimbursed Advances). No Trustee or Paying Agent shall be
personally liable for any action or omission of any successor Trustee or Paying
Agent.
Section 8.08 Successor Trustee or Paying Agent.
(a) Any successor Trustee or Paying Agent appointed as provided in
Section 8.07 shall execute, acknowledge and deliver to the Depositor, the
Servicer, the Special Servicer and to its predecessor Trustee or Paying Agent an
instrument accepting such appointment hereunder, and thereupon the resignation
or removal of the predecessor Trustee or Paying Agent shall become effective and
such successor Trustee or Paying Agent without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with the like effect as if originally
named as Trustee or Paying Agent herein. The predecessor Trustee shall deliver
to the successor trustee all Mortgage Files and related documents and statements
held by it hereunder (other than any Mortgage Files at the time held on its
behalf by a Custodian, which Custodian, at Custodian's option shall become the
agent of the successor Trustee), and the Depositor, the Servicer, the Special
Servicer and the predecessor Trustee shall execute and deliver such instruments
and do such other things as may reasonably be required to more fully and
certainly vest and confirm in the successor Trustee all such rights, powers,
duties and obligations, and to enable the successor Trustee to perform its
obligations hereunder.
(b) No successor trustee or successor paying agent shall accept
appointment as provided in this Section 8.08 unless at the time of such
acceptance such successor trustee or successor paying agent, as applicable,
shall be eligible under the provisions of Section 8.06.
(c) Upon acceptance of appointment by a successor trustee or
successor paying agent as provided in this Section 8.08, the Servicer shall mail
notice of the succession of such trustee or paying agent, as applicable, to the
Depositor and the Certificateholders. If the Servicer fails to mail such notice
within 10 days after acceptance of appointment by the successor Trustee or
successor paying agent, as applicable, such successor trustee or successor
paying agent, shall cause such notice to be mailed at the expense of the
Servicer.
Section 8.09 Merger or Consolidation of Trustee or Paying Agent.
Any Person into which the Trustee or the Paying Agent may be merged
or converted or with which it may be consolidated or any Person resulting from
any merger, conversion or consolidation to which the Trustee or the Paying Agent
shall be a party, or any Person succeeding to all or substantially all of the
corporate trust business of the Trustee or the Paying Agent shall be the
successor of the Trustee or the Paying Agent, as applicable, hereunder;
provided, that, in the case of the Trustee, such successor Person shall be
eligible under the provisions of Section 8.06, without the execution or filing
of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding. The Trustee or the Paying
Agent, as applicable, will provide notice of such event to the Servicer, the
Special Servicer, the Depositor and the Rating Agencies.
Section 8.10 Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions hereof, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which any
part of the Trust Fund or property securing the same may at the time be located,
the Servicer and the Trustee acting jointly shall have the power and shall
execute and deliver all instruments to appoint one or more Persons approved by
the Trustee to act as co-trustee or co-trustees, jointly with the Trustee, or
separate trustee or separate trustees, of all or any part of the Trust Fund, and
to vest in such Person or Persons, in such capacity, such title to the Trust
Fund, or any part thereof, and, subject to the other provisions of this Section
8.10, such powers, duties, obligations, rights and trusts as the Servicer and
the Trustee may consider necessary or desirable. If the Servicer shall not have
joined in such appointment within 15 days after the receipt by it of a request
to do so, or in case an Event of Default shall have occurred and be continuing,
the Trustee alone shall have the power to make such appointment. No co-trustee
or separate trustee hereunder shall be required to meet the terms of eligibility
as a successor trustee under Section 8.06 hereunder and no notice to Holders of
Certificates of the appointment of co-trustee(s) or separate trustee(s) shall be
required under Section 8.08 hereof. All co-trustee fees shall be payable out of
the Trust Fund.
(b) In the case of any appointment of a co-trustee or separate
trustee pursuant to this Section 8.10, all rights, powers, duties and
obligations conferred or imposed upon the Trustee shall be conferred or imposed
upon and exercised or performed by the Trustee and such separate trustee or
co-trustee jointly, except to the extent that under any law of any jurisdiction
in which any particular act or acts are to be performed (whether as Trustee
hereunder or as successor to the Servicer or the Special Servicer hereunder),
the Trustee shall be incompetent or unqualified to perform such act or acts, in
which event such rights, powers, duties and obligations (including the holding
of title to the Trust Fund or any portion thereof in any such jurisdiction)
shall be exercised and performed by such separate trustee or co-trustee at the
direction of the Trustee.
(c) Any notice, request or other writing given to the Trustee shall
be deemed to have been given to each of the then-separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article VIII. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Trustee. Every such instrument shall be filed with the Trustee.
(d) Any separate trustee or co-trustee may, at any time, constitute
the Trustee, its agent or attorney-in-fact, with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
(e) The appointment of a co-trustee or separate trustee under this
Section 8.10 shall not relieve the Trustee of its duties and responsibilities
hereunder.
Section 8.11 Appointment of Custodians.
The Trustee may, with the consent of the Servicer, appoint one or
more Custodians to hold all or a portion of the Mortgage Files as agent for the
Trustee. Each Custodian shall be a depository institution subject to supervision
by federal or state authority, shall have combined capital and surplus of at
least $15,000,000 and shall be qualified to do business in the jurisdiction in
which it holds any Mortgage File and shall not be the Depositor or any Affiliate
of the Depositor. Each Custodian shall be subject to the same obligations and
standard of care as would be imposed on the Trustee hereunder in connection with
the retention of Mortgage Files directly by the Trustee. The appointment of one
or more Custodians shall not relieve the Trustee from any of its obligations
hereunder, and the Trustee shall remain responsible for all acts and omissions
of any Custodian. Any Custodian appointed hereunder must maintain a fidelity
bond and errors and omissions policy in an amount customary for Custodians which
serve in such capacity in commercial mortgage loan securitization transactions.
Section 8.12 Access to Certain Information.
(a) On or prior to the date of the first sale of any Non-Registered
Certificate to an Independent third party, the Depositor shall provide to the
Paying Agent and the Trustee three copies of any private placement memorandum or
other disclosure document used by the Depositor or its Affiliate in connection
with the offer and sale of the Class of Certificates to which such
Non-Registered Certificate relates. In addition, if any such private placement
memorandum or disclosure document is revised, amended or supplemented at any
time following the delivery thereof to the Trustee and the Paying Agent, the
Depositor promptly shall inform the Trustee of such event and shall deliver to
the Paying Agent and the Trustee a copy of the private placement memorandum or
disclosure document, as revised, amended or supplemented. The Paying Agent (or
with respect to item (ii)(j) below, the Trustee) shall maintain at its offices
primarily responsible for administering the Trust Fund and shall, upon
reasonable advance notice, make available during normal business hours for
review by any Holder of a Certificate, the Depositor, the Servicer, the Special
Servicer, any Rating Agency or any other Person to whom the Paying Agent (or the
Trustee, if applicable) believes such disclosure is appropriate, originals or
copies of the following items: (i) in the case of a Holder or prospective
transferee of a Non-Registered Certificate, any private placement memorandum or
other disclosure document relating to the Class of Certificates to which such
Non-Registered Certificate belongs, in the form most recently provided to the
Paying Agent and (ii) in all cases, (a) this Agreement and any amendments hereto
entered into pursuant to Section 11.01, (b) all statements required to be
delivered to Certificateholders of the relevant Class pursuant to Section 4.02
since the Closing Date, (c) all Officer's Certificates delivered to the Trustee
and the Paying Agent since the Closing Date pursuant to Section 3.13, (d) all
accountants' reports delivered to the Trustee and the Paying Agent since the
Closing Date pursuant to Section 3.14, (e) any inspection report prepared by the
Servicer, Sub-Servicer or Special Servicer, as applicable, and delivered to the
Trustee and the Paying Agent and Servicer in respect of each Mortgaged Property
pursuant to Section 3.12(a), (f) as to each Mortgage Loan pursuant to which the
related Mortgagor is required to deliver such items or the Special Servicer has
otherwise acquired such items, the most recent annual operating statement and
rent roll of the related Mortgaged Property and financial statements of the
related Mortgagor and any other reports of the Mortgagor collected by the
Servicer, Sub-Servicer or Special Servicer, as applicable, and delivered to the
Paying Agent pursuant to Section 3.12(c), together with the accompanying written
reports to be prepared by the Special Servicer and delivered to the Paying Agent
pursuant to Section 3.12(c), (g) any and all notices, reports and Environmental
Assessments delivered to the Paying Agent with respect to any Mortgaged Property
securing a Defaulted Mortgage Loan as to which the environmental testing
contemplated by Section 3.09(c) revealed that either of the conditions set forth
in clauses (i) and (ii) of the first sentence thereof was not satisfied (but
only for so long as such Mortgaged Property or the related Mortgage Loan are
part of the Trust Fund), (h) any and all modifications, waivers and amendments
of the terms of a Mortgage Loan entered into by the Servicer or the Special
Servicer and delivered to the Paying Agent pursuant to Section 3.20 (but only
for so long as the affected Mortgage Loan is part of the Trust Fund), (i) any
and all Officer's Certificates delivered to the Paying Agent to support the
Servicer's determination that any P&I Advance or Servicing Advance was or, if
made, would be a Nonrecoverable P&I Advance or Nonrecoverable Servicing Advance,
as the case may be, (j) any and all of the Mortgage Loan documents contained in
the Mortgage File, (k) any and all Appraisals obtained pursuant to the
definition of "Appraisal Reduction" herein, (l) information regarding the
occurrence of Servicing Transfer Events as to the Mortgage Loans and (m) any and
all Sub-Servicing Agreements and any amendments thereto and modifications
thereof. Copies of any and all of the foregoing items will be available from the
Paying Agent upon request; provided, however, that the Paying Agent shall be
permitted to require payment of a sum sufficient to cover the reasonable costs
and expenses of providing such copies, except in the case of copies provided to
the Directing Certificateholder or the Rating Agencies, which shall be free of
charge (except for extraordinary or duplicate requests). In addition, without
limiting the generality of the foregoing, any Class G, Class H, Class J, Class
K, Class L, Class M, Class N and Class NR Certificateholder may upon request
from the Paying Agent obtain a copy of any factual report (other than the Asset
Status Report) delivered to the Rating Agencies under this Agreement.
(b) The Paying Agent shall provide or make available to certain
financial market publishers, which initially shall be Bloomberg, L.P., on a
monthly basis, all CMSA reports and any other reports required to be delivered
by the Paying Agent pursuant to Article IV hereof. If such information delivered
pursuant to the preceding sentence is provided by the Paying Agent to Bloomberg
on or before March 10, 2003, the Paying Agent shall provide the Prospectus to
Bloomberg, L.P.
(c) Notwithstanding anything to the contrary herein, in addition to
the reports and information made available and distributed pursuant to the terms
of this Agreement (including the information set forth in Section 8.12(a)), the
Paying Agent shall, in accordance with such reasonable rules and procedures as
each may adopt (which may include the requirement that an agreement that
provides that such information shall be used solely for purposes of evaluating
the investment characteristics of the Certificates be executed), also provide
the reports available to Certificateholders pursuant to Section 4.02, as well as
certain additional information received by the Paying Agent, to any
Certificateholder, the Underwriters, the Placement Agents, any Certificate Owner
or any prospective investor identified as such by a Certificate Owner or
Underwriter, that requests such reports or information; provided that the Paying
Agent, as the case may be, shall be permitted to require payment of a sum
sufficient to cover the reasonable costs and expenses of providing copies of
such reports or information.
(d) With respect to any information furnished by the Paying Agent
pursuant to this Section 8.12, the Paying Agent shall be entitled to indicate
the source of such information and the Paying Agent may affix thereto any
disclaimer it deems appropriate in its discretion. The Paying Agent shall notify
Certificateholders of the availability of any such information in any manner as
it, in its sole discretion, may determine. In connection with providing access
to or copies of the items described in the preceding paragraph, the Paying Agent
may require (a) in the case of Certificate Owners, a confirmation executed by
the requesting Person substantially in form and substance reasonably acceptable
to the Paying Agent, as applicable, generally to the effect that such Person is
a beneficial holder of Certificates, is requesting the information solely for
use in evaluating such Person's investment in the Certificates and will
otherwise keep such information confidential and (b) in the case of a
prospective purchaser, confirmation executed by the requesting Person in form
and substance reasonably acceptable to the Paying Agent, generally to the effect
that such Person is a prospective purchaser of a Certificate or an interest
therein, is requesting the information solely for use in evaluating a possible
investment in Certificates and will otherwise keep such information
confidential. The Paying Agent shall not be liable for the dissemination of
information in accordance with this Agreement.
Section 8.13 Representations and Warranties of the Trustee.
(a) The Trustee hereby represents and warrants to the Depositor, the
Servicer and the Special Servicer, the Paying Agent and for the benefit of the
Certificateholders, as of the Closing Date, that:
(i) The Trustee is a national banking association duly organized
under the laws of the United States, duly organized, validly existing and
in good standing under the laws thereof;
(ii) The execution and delivery of this Agreement by the Trustee,
and the performance and compliance with the terms of this Agreement by the
Trustee, will not violate the Trustee's charter and by-laws or constitute
a default (or an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any material
agreement or other instrument to which it is a party or which is
applicable to it or any of its assets;
(iii) The Trustee has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement;
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Trustee, enforceable against the Trustee in
accordance with the terms hereof, subject to (a) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally and the rights of creditors of
national banking associations specifically and (b) general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law;
(v) The Trustee is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Trustee's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the Trustee to perform its obligations under this Agreement or the
financial condition of the Trustee;
(vi) No litigation is pending or, to the best of the Trustee's
knowledge, threatened against the Trustee which would prohibit the Trustee
from entering into this Agreement or, in the Trustee's good faith and
reasonable judgment, is likely to materially and adversely affect either
the ability of the Trustee to perform its obligations under this Agreement
or the financial condition of the Trustee; and
(vii) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Trustee, or compliance by the Trustee with, this
Agreement or the consummation of the transactions contemplated by this
Agreement, except for any consent, approval, authorization or order which
has not been obtained or cannot be obtained prior to the actual
performance by the Trustee of its obligations under this Agreement, and
which, if not obtained would not have a materially adverse effect on the
ability of the Trustee to perform its obligations hereunder.
Section 8.14 Representations and Warranties of the Paying Agent.
(a) The Paying Agent hereby represents and warrants to the
Depositor, the Servicer and the Special Servicer, the Trustee and for the
benefit of the Certificateholders, as of the Closing Date, that:
(i) The Paying Agent is a national banking association, duly
organized under the laws of the United States, duly organized, validly
existing and in good standing under the laws thereof;
(ii) The execution and delivery of this Agreement by the Paying
Agent, and the performance and compliance with the terms of this Agreement
by the Paying Agent, will not violate the Paying Agent's charter and
by-laws or constitute a default (or an event which, with notice or lapse
of time, or both, would constitute a default) under, or result in the
breach of, any material agreement or other instrument to which it is a
party or which is applicable to it or any of its assets;
(iii) The Paying Agent has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement, has
duly authorized the execution, delivery and performance of this Agreement,
and has duly executed and delivered this Agreement;
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Paying Agent, enforceable against the Paying
Agent in accordance with the terms hereof, subject to (a) applicable
bankruptcy, insolvency, reorganization, moratorium and other laws
affecting the enforcement of creditors' rights generally and the rights of
creditors of national banking associations specifically and (b) general
principles of equity, regardless of whether such enforcement is considered
in a proceeding in equity or at law;
(v) The Paying Agent is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Paying Agent's good faith and
reasonable judgment, is likely to affect materially and adversely either
the ability of the Paying Agent to perform its obligations under this
Agreement or the financial condition of the Paying Agent;
(vi) No litigation is pending or, to the best of the Paying Agent's
knowledge, threatened against the Paying Agent which would prohibit the
Paying Agent from entering into this Agreement or, in the Paying Agent's
good faith and reasonable judgment, is likely to materially and adversely
affect either the ability of the Paying Agent to perform its obligations
under this Agreement or the financial condition of the Paying Agent; and
(b) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Paying Agent, or compliance by the Paying Agent with, this
Agreement or the consummation of the transactions contemplated by this
Agreement, except for any consent, approval, authorization or order which has
not been obtained or cannot be obtained prior to the actual performance by the
Paying Agent of its obligations under this Agreement, and which, if not obtained
would not have a materially adverse effect on the ability of the Paying Agent to
perform its obligations hereunder.
[End of Article VIII]
ARTICLE IX
TERMINATION
Section 9.01 Termination upon Repurchase or Liquidation of All
Mortgage Loans.
Subject to Section 9.02, the Trust Fund and the respective
obligations and responsibilities under this Agreement of the Paying Agent, the
Depositor, the Servicer, the Special Servicer and the Trustee (other than the
obligations of the Paying Agent to provide for and make payments to
Certificateholders as hereafter set forth) shall terminate upon payment (or
provision for payment) to the Certificateholders of all amounts held by the
Paying Agent on behalf of the Trustee and required hereunder to be so paid on
the Distribution Date following the earlier to occur of (i) the final payment
(or related Advance) or other liquidation of the last Mortgage Loan or REO
Property subject thereto or (ii) the purchase or other liquidation by the
Holders of the majority of the Controlling Class, the Special Servicer, the
Servicer or the Holders of the Class LR Certificates, in that order of priority,
of all the Mortgage Loans and each REO Property remaining in the Trust Fund at a
price equal to (a) the sum of (1) the aggregate Purchase Price of all the
Mortgage Loans (exclusive of REO Loans) included in the Trust Fund, (2) the
Appraised Value of each REO Property, if any, included in the Trust Fund (such
Appraisals in clause (a)(2) to be conducted by an Independent MAI-designated
appraiser selected and mutually agreed upon by the Servicer and the Trustee, and
approved by more than 50% of the Voting Rights of the Classes of Certificates
then outstanding (other than the Controlling Class unless the Controlling Class
is the only Class of Certificates then outstanding)) (which approval shall be
deemed given unless more than 50% of such Certificateholders object within 20
days of receipt of notice thereof) and (3) the reasonable out-of-pocket expenses
of the Servicer with respect to such termination, unless the Servicer is the
purchaser of such Mortgage Loans, minus (b) solely in the case where the
Servicer is effecting such purchase, the aggregate amount of unreimbursed
Advances, together with any interest accrued and payable to the Servicer in
respect of such Advances in accordance with Sections 3.03(d) and 4.03(d) and any
unpaid Servicing Fees, remaining outstanding (which items shall be deemed to
have been paid or reimbursed to the Servicer in connection with such purchase)
and (ii) the final payment or other liquidation (or any advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in the Trust Fund;
provided, however, that in no event shall the trust created hereby continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late ambassador of the United States to
the Court of St. James's, living on the date hereof.
The obligations and responsibilities under this Agreement of the
Depositor, the Servicer, the Special Servicer, the Trustee and the Companion
Paying Agent shall terminate with respect to any Companion Loan to the extent
(i) its related AB Mortgage Loan has been paid in full or is no longer part of
the Trust Fund and (ii) no amounts payable by the related Companion Holder to or
for the benefit of the Trust or any party hereof in accordance with the related
Intercreditor Agreement remain due and owing.
The Holders of the majority of the Controlling Class, the Special
Servicer, the Servicer or the Holders of the Class LR Certificates, in that
order of priority, may, at their option, elect to purchase all of the Mortgage
Loans (and all property acquired through exercise of remedies in respect of any
Mortgage Loan) and each REO Property remaining in the Trust Fund as contemplated
by clause (i) of the preceding paragraph by giving written notice to the
Trustee, the Paying Agent and the other parties hereto no later than 60 days
prior to the anticipated date of purchase; provided, however, that the Servicer,
the Special Servicer, the Holders of the Controlling Class or the Holders of the
Class LR Certificates may so elect to purchase all of the Mortgage Loans and
each REO Property remaining in the Trust Fund only on or after the first
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is less than 1% of
the aggregate Cut-off Date Principal Balance of the Mortgage Loans set forth in
the Preliminary Statement. In the event that the Servicer, the Special Servicer,
the Holders of the Controlling Class or the Holders of the Class LR Certificates
purchases all of the Mortgage Loans and each REO Property remaining in the Trust
Fund in accordance with the preceding sentence, the Servicer, the Special
Servicer, the Holders of the Controlling Class or the Holders of the Class LR
Certificates, as applicable, shall deposit in the Lower-Tier Distribution
Account (or (A) in the Simon Loan REMIC Distribution Account to the extent
allocable to the Simon Mortgage Loan or (B) in the Walgreens Loan REMIC
Distribution Account to the extent allocable to the Walgreens Mortgage Loan) not
later than the P&I Advance Date relating to the Distribution Date on which the
final distribution on the Certificates is to occur, an amount in immediately
available funds equal to the above-described purchase price (exclusive of any
portion thereof payable to any Person other than the Certificateholders pursuant
to Section 3.05(a), which portion shall be deposited in the Certificate
Account). In addition, the Servicer shall transfer to the Simon Loan REMIC
Distribution Account, the Walgreens Loan REMIC Distribution Account and the
Lower-Tier Distribution Account all amounts required to be transferred thereto
on such P&I Advance Date from the Certificate Account pursuant to the first
paragraph of Section 3.04(b), together with any other amounts on deposit in the
Certificate Account that would otherwise be held for future distribution. Upon
confirmation that such final deposits have been made, the Trustee shall release
or cause to be released to the Servicer, the Special Servicer, the Holders of
the Controlling Class or the Holders of the Class LR Certificates, as
applicable, the Mortgage Files for the remaining Mortgage Loans and shall
execute all assignments, endorsements and other instruments furnished to it by
the Servicer, the Special Servicer, the Holders of the Controlling Class or the
Holders of the Class LR Certificates, as applicable, as shall be necessary to
effectuate transfer of the Mortgage Loans and REO Properties remaining in the
Trust Fund.
For purposes of this Section 9.01, the Holders of the majority of
the Controlling Class shall have the first option to terminate the Trust Fund,
then the Special Servicer, then the Servicer, and then the Holders of the Class
LR Certificates. For purposes of this Section 9.01, the Directing
Certificateholder, with the consent of the Holders of the Controlling Class,
shall act on behalf of the Holders of the Controlling Class in purchasing the
assets of the Trust Fund and terminating the Trust.
Notice of any termination pursuant to this Section 9.01 shall be
given promptly by the Paying Agent by letter to Certificateholders and each
Rating Agency and, if not previously notified pursuant to this Section 9.01, to
the other parties hereto mailed (a) in the event such notice is given in
connection with the purchase of all of the Mortgage Loans and each REO Property
remaining in the Trust Fund, not earlier than the 15th day and not later than
the 25th day of the month next preceding the month of the final distribution on
the Certificates, or (b) otherwise during the month of such final distribution
on or before the P&I Advance Determination Date in such month, in each case
specifying (i) the Distribution Date upon which the Trust Fund will terminate
and final payment of the Certificates will be made, (ii) the amount of any such
final payment and (iii) that the Record Date otherwise applicable to such
Distribution Date is not applicable, payments being made only upon presentation
and surrender of the Certificates at the offices of the Certificate Registrar or
such other location therein designated.
After transferring (i) amounts distributable on (A) the Simon Loan
REMIC Regular Interests and the amount of any Yield Maintenance Charges with
respect to the Simon Mortgage Loan distributable pursuant to Section 4.01(d) to
the Lower-Tier Distribution Account and (B) the Walgreens Loan REMIC Regular
Interests and the amount of any Yield Maintenance Charges with respect to the
Walgreens Mortgage Loan distributable pursuant to Section 4.01(d) to the
Lower-Tier Distribution Account, and (ii) the Lower-Tier Distribution Amount and
the amount of any Yield Maintenance Charges distributable pursuant to Section
4.01(d) to the Upper-Tier Distribution Account, in each case pursuant to Section
3.04(b), and upon presentation and surrender of the Certificates by the
Certificateholders on the final Distribution Date, the Paying Agent shall
distribute to each Certificateholder so presenting and surrendering its
Certificates such Certificateholder's Percentage Interest of that portion of the
amounts then on deposit in the Upper-Tier Distribution Account that are
allocable to payments on the Class of Certificates so presented and surrendered
and to the Holders of the Class NR Certificates any amounts remaining on deposit
in the Excess Interest Distribution Account. Amounts transferred from the Simon
Loan REMIC Distribution Account to the Lower-Tier Distribution Account and from
the Lower-Tier Distribution Account to the Upper-Tier Distribution Account as of
the final Distribution Date (exclusive of any portion of such amounts payable or
reimbursable to any Person pursuant to clause (ii) of Section 3.05(f)) shall be
allocated for the purposes, in the amounts and in accordance with the priority
set forth in Sections 4.01(b), 4.01(d), 4.01(j), 4.01(k) and 4.01(l) and shall
be distributed in termination and liquidation of the Simon Loan REMIC Regular
Interests and the Uncertificated Lower-Tier Interests and the Class LR
Certificates in accordance with Sections 4.01(b) and 4.01(d). Amounts
transferred from the Walgreens Loan REMIC Distribution Account to the Lower-Tier
Distribution Account and from the Lower-Tier Distribution Account to the
Upper-Tier Distribution Account as of the final Distribution Date (exclusive of
any portion of such amounts payable or reimbursable to any Person pursuant to
clause (ii) of Section 3.05(f)) shall be allocated for the purposes, in the
amounts and in accordance with the priority set forth in Sections 4.01(b),
4.01(d), 4.01(n), 4.01(o) and 4.01(p) and shall be distributed in termination
and liquidation of the Walgreens Loan REMIC Regular Interests and the
Uncertificated Lower-Tier Interests and the Class LR Certificates in accordance
with Sections 4.01(b) and 4.01(d). Any funds not distributed on such
Distribution Date shall be set aside and held uninvested in trust for the
benefit of the Certificateholders not presenting and surrendering their
Certificates in the aforesaid manner and shall be disposed of in accordance with
this Section 9.01 and Section 4.01(f).
Section 9.02 Additional Termination Requirements.
In the event the Servicer, the Special Servicer, the Holders of the
Controlling Class or the Holders of the Class LR Certificates purchases all of
the Mortgage Loans and each REO Property remaining in the Trust Fund as provided
in Section 9.01, the Trust Fund shall be terminated in accordance with the
following additional requirements, which meet the definition of a "qualified
liquidation" in Section 860F(a)(4) of the Code:
(i) the Paying Agent shall specify the date of adoption of the plan
of complete liquidation (which shall be the date of mailing of the notice
specified in Section 9.01) in a statement attached to each of the Loan
REMIC's, the Upper-Tier REMIC's and the Lower-Tier REMIC's final Tax
Return pursuant to Treasury Regulations Section 1.860F-1;
(ii) during the 90-day liquidation period and at or prior to the
time of the making of the final payment on the Certificates, the Paying
Agent on behalf of the Trustee shall sell all of the assets of the Trust
Fund to the Servicer, the Special Servicer, the Holders of the Controlling
Class or the Holders of the Class LR Certificates, as applicable, for
cash; and
(iii) within such 90 day liquidation period and immediately
following the making of the final payment on the Loan REMIC Regular
Interests, the Uncertificated Lower-Tier Interests and the Certificates,
the Paying Agent shall distribute or credit, or cause to be distributed or
credited, to the Holders of the Class LR Certificates (in the case of the
Lower-Tier REMIC and the Loan REMICs) and the Class R Certificates (in the
case of the Upper-Tier REMIC) all cash on hand (other than cash retained
to meet claims), and the Trust Fund and each of the Loan REMICs, the
Lower-Tier REMIC and the Upper-Tier REMIC shall terminate at that time.
[End of Article IX]
ARTICLE X
ADDITIONAL REMIC PROVISIONS
Section 10.01 REMIC Administration.
(a) The Paying Agent shall make elections or cause elections to be
made to treat each of the Loan REMICs, the Lower-Tier REMIC and the Upper-Tier
REMIC as a REMIC under the Code and, if necessary, under Applicable State and
Local Tax Law. Such elections shall be made on Form 1066 or other appropriate
federal tax return for the taxable year ending on December 31, 2002. For the
purposes of the REMIC election in respect of the Upper-Tier REMIC, each Class of
the Regular Certificates and the Class SP Certificates shall be designated as
the "regular interests" (in the case of the Class NR Certificates, exclusive of
the portion thereof representing the right to Excess Interest and Amounts in the
Excess Interest Distribution Account) and the Class R Certificates shall be
designated as the sole class of "residual interests" in the Upper-Tier REMIC.
For purposes of the REMIC election in respect of the Lower-Tier REMIC, each
Class of Uncertificated Lower-Tier Interests shall be designated as the "regular
interests" and the Class LR Certificates shall represent the sole class of
"residual interests" in the Lower-Tier REMIC. For purposes of the REMIC
elections in respect of the Loan REMICs, each Class of related Loan REMIC
Regular Interests shall be designated as the "regular interests" and the related
Loan REMIC Residual Interest shall be designated as the sole class of "residual
interests" in the related Loan REMIC and shall be represented by the Class LR
Certificates. None of the Special Servicer, the Servicer, the Paying Agent nor
the Trustee shall permit the creation of any "interests" (within the meaning of
Section 860G of the Code) in the Loan REMICs, Lower-Tier REMIC or the Upper-Tier
REMIC other than the foregoing interests.
(b) The Closing Date is hereby designated as the "Startup Day" of
each of the Loan REMICs, the Lower-Tier REMIC and the Upper-Tier REMIC within
the meaning of Section 860G(a)(9) of the Code.
(c) The Paying Agent shall act on behalf of each REMIC in relation
to any tax matter or controversy involving any REMIC hereunder and shall
represent any REMIC hereunder in any administrative or judicial proceeding
relating to an examination or audit by any governmental taxing authority with
respect thereto. The legal expenses, including without limitation attorneys' or
accountants' fees, and costs of any such proceeding and any liability resulting
therefrom shall be expenses of the Trust Fund and the Paying Agent shall be
entitled to reimbursement therefor out of amounts attributable to the Mortgage
Loans and any REO Properties on deposit in the Certificate Account as provided
by Section 3.05(a) unless such legal expenses and costs are incurred by reason
of the Paying Agent's willful misfeasance, bad faith or gross negligence. The
Holder of the largest Percentage Interest of the Class LR Certificates shall be
designated, in the manner provided under Treasury Regulations Section
1.860F-4(d) and temporary Treasury Regulations Section 301.6231(a)(7)-1T, as the
"tax matters person" of each of the Lower-Tier REMIC and the Loan REMICs. The
Holder of the largest Percentage Interest of the Class R Certificates shall be
designated, in the manner provided under Treasury Regulations Section
1.860F-4(d) and temporary Treasury Regulations Section 301.6231(a)(7)-1T, as the
"tax matters person" of the Upper-Tier REMIC. By their acceptance thereof, the
Holders of the largest Percentage Interest in each of the Class R and Class LR
Certificates hereby agree to irrevocably appoint the Paying Agent as their agent
to perform all of the duties of the "tax matters person" for (x) the Upper-Tier
REMIC and (y) the Lower-Tier REMIC and Loan REMICs, respectively.
(d) The Paying Agent shall prepare or cause to be prepared and shall
file, or cause to be filed, all of the Tax Returns that it determines are
required with respect to each of the Loan REMICs, the Lower-Tier REMIC and the
Upper-Tier REMIC, and shall cause the Trustee to sign such Tax Returns in a
timely manner. The ordinary expenses of preparing such returns shall be borne by
the Paying Agent without any right of reimbursement therefor.
The Paying Agent agrees to indemnify and hold harmless the Trustee
with respect to any tax or liability arising from the Trustee's signing of Tax
Returns that contain errors or omissions.
(e) The Paying Agent shall provide or cause to be provided (i) to
any Transferor of a Class R Certificate or Class LR Certificate such information
as is necessary for the application of any tax relating to the transfer of such
Class R Certificate or Class LR Certificate to any Person who is a Disqualified
Organization, or in the case of a Transfer to an Agent thereof, to such Agent,
(ii) to the Certificateholders such information or reports as are required by
the Code or the REMIC Provisions including reports relating to interest,
original issue discount and market discount or premium (using the Prepayment
Assumption) and (iii) to the Internal Revenue Service on Form 8811, within 30
days after the Closing Date, the name, title, address and telephone number of
the "tax matters person" who will serve as the representative of each of the
Loan REMICs, the Lower-Tier REMIC and the Upper-Tier REMIC.
(f) The Paying Agent shall take such actions and shall cause the
Trust Fund to take such actions as are reasonably within the Paying Agent's
control and the scope of its duties more specifically set forth herein as shall
be necessary to maintain the status of each of the Loan REMICs, the Lower-Tier
REMIC and the Upper-Tier REMIC as a REMIC under the REMIC Provisions (and the
Trustee shall assist the Paying Agent, to the extent reasonably requested by the
Paying Agent to do so). Neither the Servicer nor the Special Servicer shall
knowingly or intentionally take any action, cause the Trust Fund to take any
action or fail to take (or fail to cause to be taken) any action reasonably
within its control and the scope of duties more specifically set forth herein,
that, under the REMIC Provisions, if taken or not taken, as the case may be,
could (i) endanger the status of the Loan REMICs, the Lower-Tier REMIC or the
Upper-Tier REMIC as a REMIC or (ii) result in the imposition of a tax upon the
Loan REMICs, the Lower-Tier REMIC or the Upper-Tier REMIC or the Trust Fund
(including but not limited to the tax on "prohibited transactions" as defined in
Section 860F(a)(2) of the Code and the tax on contributions to a REMIC set forth
in Section 860G(d) of the Code, but not including the tax on "net income from
foreclosure property") (either such event, an "Adverse REMIC Event") unless the
Paying Agent receives an Opinion of Counsel (at the expense of the party seeking
to take such action or, if such party fails to pay such expense, and the Paying
Agent determines that taking such action is in the best interest of the Trust
Fund and the Certificateholders, at the expense of the Trust Fund, but in no
event at the expense of the Paying Agent or the Trustee) to the effect that the
contemplated action will not, with respect to the Trust Fund, the Loan REMICs,
the Lower-Tier REMIC or the Upper-Tier REMIC created hereunder, endanger such
status or, unless the Paying Agent determines in its sole discretion to
indemnify the Trust Fund against such tax, result in the imposition of such a
tax (not including a tax on "net income from foreclosure property"). The Trustee
shall not take or fail to take any action (whether or not authorized hereunder)
as to which the Paying Agent has advised it in writing that it has received an
Opinion of Counsel to the effect that an Adverse REMIC Event could occur with
respect to such action. In addition, prior to taking any action with respect to
the Trust Fund, the Loan REMICs, the Lower-Tier REMIC or the Upper-Tier REMIC or
any of their respective assets, or causing the Trust Fund or the Loan REMICs or
the Lower Tier REMIC or the Upper-Tier REMIC to take any action, which is not
expressly permitted under the terms of this Agreement, the Trustee will consult
with the Paying Agent or its designee, in writing, with respect to whether such
action could cause an Adverse REMIC Event to occur with respect to the Trust
Fund or the Loan REMICs, the Lower-Tier REMIC or the Upper-Tier REMIC and the
Trustee shall not take any such action or cause the Trust Fund or the Loan
REMICs, the Lower-Tier REMIC or the Upper-Tier to take any such action as to
which the Paying Agent has advised it in writing that an Adverse REMIC Event
could occur. The Paying Agent may consult with counsel to make such written
advice, and the cost of same shall be borne by the party seeking to take the
action not expressly permitted by this Agreement, but in no event at the expense
of the Paying Agent or the Trustee. At all times as may be required by the Code,
the Paying Agent will to the extent within its control and the scope of its
duties more specifically set forth herein, maintain substantially all of the
assets of each of the Loan REMICs, the Lower-Tier REMIC and the Upper-Tier REMIC
as "qualified mortgages" as defined in Section 860G(a)(3) of the Code and
"permitted investments" as defined in Section 860G(a)(5) of the Code.
(g) In the event that any applicable federal, state or local tax,
including interest, penalties or assessments, additional amounts or additions to
tax, is imposed on the Loan REMICs, the Lower-Tier REMIC or the Upper-Tier
REMIC, such tax shall be charged against amounts otherwise distributable to the
Holders of the Certificates, except as provided in the last sentence of this
Section 10.01(g); provided that with respect to the estimated amount of tax
imposed on any "net income from foreclosure property" pursuant to Code Section
860G(c) or any similar tax imposed by a state or local tax authority, the
Special Servicer shall retain in the related REO Account a reserve for the
payment of such taxes in such amounts and at such times as it shall deem
appropriate (or as advised by the Trustee in writing), and shall remit to the
Servicer such reserved amounts as the Servicer shall request in order to pay
such taxes. Except as provided in the preceding sentence, the Servicer shall
withdraw from the Certificate Account sufficient funds to pay or provide for the
payment of, and to actually pay, such tax as is estimated to be legally owed by
the Loan REMICs, the Lower-Tier REMIC or the Upper-Tier REMIC (but such
authorization shall not prevent the Paying Agent from contesting, at the expense
of the Trust Fund (other than as a consequence of a breach of its obligations
under this Agreement), any such tax in appropriate proceedings, and withholding
payment of such tax, if permitted by law, pending the outcome of such
proceedings). The Paying Agent is hereby authorized to and shall segregate, into
a separate non-interest bearing account, the net income from any "prohibited
transaction" under Code Section 860F(a) or the amount of any taxable
contribution to the Loan REMICs, the Lower-Tier REMIC or the Upper-Tier REMIC
after its respective Startup Day that is subject to tax under Code Section
860G(d) and use such income or amount, to the extent necessary, to pay such
prohibited transactions tax. To the extent that any such tax (other than any
such tax paid in respect of "net income from foreclosure property") is paid to
the Internal Revenue Service or applicable state or local tax authorities, the
Paying Agent shall retain an equal amount from future amounts otherwise
distributable to the Holders of Residual Certificates (as applicable) and shall
distribute such retained amounts, (x) in the case of the Loan REMICs and the
Lower-Tier REMIC, to the Trustee as holder of the Loan REMIC Regular Interests
and the Uncertificated Lower-Tier Interests, respectively, to the extent it is
fully reimbursed for any Collateral Support Deficit arising therefrom and then
to the Holders of the Class LR Certificates in the manner specified in Section
4.01(b) and (y) in the case of the Upper-Tier REMIC, to the Holders of Class A,
Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K,
Class L, Class M, Class N, Class NR, Class X-1 and Class X-2 Certificates, as
applicable, in the manner specified in Section 4.01(a), to the extent they are
fully reimbursed for any Collateral Support Deficit arising therefrom and then
to the Holders of the Class R Certificates. None of the Trustee, the Paying
Agent, the Servicer or the Special Servicer shall be responsible for any taxes
imposed on the Loan REMICs, the Lower-Tier REMIC or the Upper-Tier REMIC except
to the extent such taxes arise as a consequence of a breach of their respective
obligations under this Agreement which breach constitutes willful misfeasance,
bad faith, or negligence by such party.
(h) The Trustee (but only to the extent, if any, specifically
required to maintain books and records hereunder) and the Paying Agent shall,
for federal income tax purposes, maintain books and records with respect to each
of the Loan REMICs, the Lower-Tier REMIC and the Upper-Tier REMIC on a calendar
year and on an accrual basis or as otherwise may be required by the REMIC
Provisions.
(i) Following the Startup Day, neither the Paying Agent nor the
Trustee shall accept any contributions of assets to the Loan REMICs, the
Lower-Tier REMIC and the Upper-Tier REMIC unless the Paying Agent and the
Trustee shall have received an Opinion of Counsel (at the expense of the party
seeking to make such contribution) to the effect that the inclusion of such
assets in the Loan REMICs, the Lower-Tier REMIC or the Upper-Tier REMIC will not
(i) cause the Loan REMICs, the Lower-Tier REMIC or the Upper-Tier REMIC to fail
to qualify as a REMIC at any time that any Loan REMIC Regular Interests,
Uncertificated Lower-Tier Interests or Certificates are outstanding or (ii)
subject any of the Trust Fund or the Loan REMICs, the Lower-Tier REMIC or the
Upper-Tier REMIC to any tax under the REMIC Provisions or other applicable
provisions of federal, state and local law or ordinances.
(j) Neither the Paying Agent nor the Trustee shall enter into any
arrangement by which the Trust Fund or the Loan REMICs, the Lower-Tier REMIC or
the Upper-Tier REMIC will receive a fee or other compensation for services nor
permit the Trust Fund or the Loan REMICs, the Lower-Tier REMIC or the Upper-Tier
REMIC to receive any income from assets other than "qualified mortgages" as
defined in Section 860G(a)(3) of the Code or "permitted investments" as defined
in Section 860G(a)(5) of the Code.
(k) Solely for the purposes of Section 1.860G-1(a)(4)(iii) of the
Treasury Regulations, the "latest possible maturity date", by which (i) the
Certificate Balance or Notional Amount of each Class of Certificates (other than
the Class X-2 Certificates) representing a "regular interest" in the Upper-Tier
REMIC and (ii) the Lower-Tier Principal Amount of each Class of Uncertificated
Lower-Tier Interests representing a "regular interest" in the Lower-Tier REMIC,
the Simon Loan REMIC Principal Amount of any Class of Simon Loan REMIC Regular
Interests representing a "regular interest" in the Simon Loan REMIC and the
Walgreens Loan REMIC Principal Amount of any Class of Walgreens Loan REMIC
Regular Interests representing a "regular interest" in the Walgreens Loan REMIC
would be reduced to zero, is the Rated Final Distribution Date. The "latest
possible maturity date" of the Class X-2 Certificates is the Class X-2
Termination Date.
(l) None of the Trustee, the Servicer or the Special Servicer, as
applicable, shall sell, dispose of or substitute for any of the Mortgage Loans
(except in connection with (i) the default, imminent default or foreclosure of a
Mortgage Loan, including but not limited to, the acquisition or sale of a
Mortgaged Property acquired by foreclosure or deed in lieu of foreclosure, (ii)
the bankruptcy of the Trust Fund, (iii) the termination of the Trust Fund
pursuant to Article IX of this Agreement or (iv) a purchase of Mortgage Loans
pursuant to Article II or III of this Agreement) or acquire any assets for the
Trust Fund or the Loan REMICs, the Lower-Tier REMIC or the Upper-Tier REMIC or
sell or dispose of any investments in the Certificate Account or the REO Account
for gain unless it has received an Opinion of Counsel that such sale,
disposition or substitution will not (a) affect adversely the status of the Loan
REMICs, the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC or (b) unless
the Servicer or the Special Servicer, as applicable, has determined in its sole
discretion to indemnify the Trust Fund against such tax, cause the Trust Fund or
the Loan REMICs, the Lower-Tier REMIC or the Upper-Tier REMIC to be subject to a
tax on "prohibited transactions" pursuant to the REMIC Provisions.
Section 10.02 Depositor, Servicer and Special Servicer to Cooperate
with Paying Agent.
(a) The Depositor shall provide or cause to be provided to the
Paying Agent, within 10 days after the Closing Date, all information or data
that the Paying Agent reasonably determines to be relevant for tax purposes as
to the valuations and issue prices of the Certificates, including, without
limitation, the price, yield, Prepayment Assumption and projected cash flow of
the Certificates.
(b) The Servicer, the Special Servicer, the Paying Agent and the
Trustee shall each furnish such reports, certifications and information, and
upon reasonable notice and during normal business hours, access to such books
and records maintained thereby, as may relate to the Certificates or the Trust
Fund and as shall be reasonably requested by the Paying Agent in order to enable
it to perform its duties hereunder.
Section 10.03 Use of Agents.
The Paying Agent shall execute all of its obligations and duties
under this Article X through its corporate trust department located at 000 Xxxxx
XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. The Trustee may execute any
of its obligations and duties under this Article X either directly or by or
through agents or attorneys. The Paying Agent shall not be relieved of any of
its duties or obligations under this Article X by virtue of the appointment of
any such agents or attorneys.
Section 10.04 Appointment of REMIC Administrators.
(a) The Paying Agent may appoint at the Paying Agent's expense, one
or more REMIC Administrators, which shall be authorized to act on behalf of the
Paying Agent in performing the functions set forth in Sections 2.03, 10.01 and
10.02 herein. The Paying Agent shall cause any such REMIC Administrator to
execute and deliver to the Paying Agent an instrument in which such REMIC
Administrator shall agree to act in such capacity, with the obligations and
responsibilities herein. The appointment of a REMIC Administrator shall not
relieve the Paying Agent from any of its obligations hereunder, and the Paying
Agent shall remain responsible and liable for all acts and omissions of the
REMIC Administrator. Each REMIC Administrator must be acceptable to the Paying
Agent and must be organized and doing business under the laws of the United
States of America or of any State and be subject to supervision or examination
by federal or state authorities. In the absence of any other Person appointed in
accordance herewith acting as REMIC Administrator, the Paying Agent hereby
agrees to act in such capacity in accordance with the terms hereof. If LaSalle
Bank National Association is removed as Paying Agent, then LaSalle Bank National
Association shall be terminated as REMIC Administrator.
(b) Any Person into which any REMIC Administrator may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion, or consolidation to which any REMIC Administrator shall be a
party, or any Person succeeding to the corporate agency business of any REMIC
Administrator, shall continue to be the REMIC Administrator without the
execution or filing of any paper or any further act on the part of the Paying
Agent or the REMIC Administrator.
(c) Any REMIC Administrator may at any time resign by giving at
least 30 days' advance written notice of resignation to the Trustee, the
Certificate Registrar, the Paying Agent, the Servicer, the Special Servicer and
the Depositor. The Paying Agent may at any time terminate the agency of any
REMIC Administrator by giving written notice of termination to such REMIC
Administrator, the Servicer, the Certificate Registrar and the Depositor. Upon
receiving a notice of resignation or upon such a termination, or in case at any
time any REMIC Administrator shall cease to be eligible in accordance with the
provisions of this Section 10.04, the Paying Agent may appoint a successor REMIC
Administrator, in which case the Paying Agent shall given written notice of such
appointment to the Servicer and the Depositor and shall mail notice of such
appointment to all Certificateholders; provided, however, that no successor
REMIC Administrator shall be appointed unless eligible under the provisions of
this Section 10.04. Any successor REMIC Administrator upon acceptance of its
appointment hereunder shall become vested with all the rights, powers, duties
and responsibilities of its predecessor hereunder, with like effect as if
originally named as REMIC Administrator. No REMIC Administrator shall have
responsibility or liability for any action taken by it as such at the direction
of the Paying Agent.
[End of Article X]
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment.
(a) This Agreement may be amended from time to time by the parties
hereto, without the consent of any of the Certificateholders or the Companion
Holders:
(i) to cure any ambiguity to the extent it does not adversely affect
any Certificateholder;
(ii) to correct or supplement any provisions herein or in the
Prospectus or Prospectus Supplement, which may be inconsistent with any
other provisions herein or therein or to correct any error to the extent
it does not materially and adversely affect the interests of any
Certificateholder, as evidenced by an opinion of counsel (at the expense
of the party requesting the amendment);
(iii) to modify, eliminate or add to any of its provisions to such
extent as shall be necessary to maintain the qualification of the Trust
Fund or any of the Loan REMIC, the Lower-Tier REMIC or the Upper-Tier
REMIC as a REMIC, or the Grantor Trust as a grantor trust at all times
that any Certificate is outstanding or to avoid or minimize the risk of
the imposition of any tax on the Trust Fund or any of the Loan REMICs, the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would
be a claim against the Trust Fund or any of the Loan REMICs, the
Lower-Tier REMIC or the Upper-Tier REMIC, provided that the Trustee and
the Paying Agent have received an Opinion of Counsel to the effect that
(a) such action is necessary or desirable to maintain such qualification
or to avoid or minimize the risk of the imposition of any such tax and (b)
such action will not adversely affect in any material respect the
interests of any Certificateholder;
(iv) to change the timing and/or nature of deposits into the
Certificate Account, the Simon Collection Account, the Walgreens
Collection Account, the Distribution Accounts or REO Account or to change
the name in which the Certificate Account, the Simon Collection Account or
the Walgreens Collection Account is maintained, provided that (a) the P&I
Advance Date shall in no event be later than the related Distribution
Date, (b) such change shall not, as evidenced by an Opinion of Counsel,
adversely affect in any material respect the interests of any
Certificateholder and (c) such change shall not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any
Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect;
(v) to modify, eliminate or add to the provisions of Section 5.02(c)
or any other provision hereof restricting transfer of the Residual
Certificates by virtue of their being "residual interests" in a REMIC
provided that such change shall not, as evidenced by an Opinion of
Counsel, cause the Trust Fund, the Loan REMICs, the Lower-Tier REMIC, the
Upper-Tier REMIC or any of the Certificateholders (other than the
Transferor) to be subject to a federal tax caused by a Transfer to a
Person that is a Disqualified Organization or a Non-U.S. Person;
(vi) to make any other provisions with respect to matters or
questions arising under this Agreement which shall not be materially
inconsistent with the provisions of this Agreement, provided that such
action shall not, (x) as evidenced by an Opinion of Counsel, adversely
affect in any material respect the interests of any Certificateholder not
consenting thereto (y) result in the downgrade, withdrawal or
qualification of the then-current rating assigned to any Class of
Certificates, as evidenced by a letter from each Rating Agency to such
effect; and
(vii) to amend or supplement any provision hereof to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency provided that such change shall not
result in the downgrade, withdrawal or qualification of the then-current
rating assigned to any Class of Certificates, as evidenced by a letter
from each Rating Agency to such effect; provided that no such amendment
changes in any manner the obligations of any Mortgage Loan Seller under a
Mortgage Loan Purchase Agreement without the consent of each affected
Mortgage Loan Seller.
(b) This Agreement may also be amended from time to time by the
parties hereto with the consent of the Holders of Certificates evidencing in the
aggregate not less than 662/3% of the Percentage Interests of each Class of
Certificates affected thereby for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement or
of modifying in any manner the rights of the Holders of Certificates of such
Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of
each affected Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders or written
confirmation that such amendment would not result in the downgrading,
qualification or withdrawal of ratings assigned to any Class of
Certificates by any Rating Agency, amend the Servicing Standards.
(c) Notwithstanding the foregoing, neither the Trustee nor the
Paying Agent will be entitled to consent to any amendment hereto without having
first received an Opinion of Counsel (at the Trust Fund's expense) to the effect
that such amendment is permitted hereunder and that such amendment or the
exercise of any power granted to the Servicer, the Depositor, the Special
Servicer, the Trustee or any other specified person in accordance with such
amendment will not result in the imposition of a tax on any portion of the Trust
Fund, the Loan REMICs, the Lower-Tier REMIC, the Upper-Tier REMIC or the Grantor
Trust, cause the Loan REMICs, the Lower-Tier REMIC or the Upper-Tier REMIC to
fail to qualify as a REMIC, or cause the Grantor Trust to fail to qualify as a
grantor trust.
(d) Promptly after the execution of any such amendment, the Paying
Agent shall furnish a statement describing the amendment to each
Certificateholder and the Trustee and shall furnish a copy of such amendment to
each Rating Agency.
(e) It shall not be necessary for the consent of Certificateholders
under this Section 11.01 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject to
such reasonable regulations as the Paying Agent may prescribe.
(f) The Trustee shall not be obligated to enter into any amendment
pursuant to this Section that affects its rights, duties and immunities under
this Agreement or otherwise.
(g) The cost of any Opinion of Counsel to be delivered pursuant to
Section 11.01(a) or (c) shall be borne by the Person seeking the related
amendment, except that if the Servicer or the Trustee requests any amendment of
this Agreement in furtherance of the rights and interests of Certificateholders,
the cost of any Opinion of Counsel required in connection therewith pursuant to
Section 11.01(a) or (c) shall be payable out of the Certificate Account.
(h) The Servicing Standards shall not be amended unless each Rating
Agency provides a written confirmation that such amendment would not cause a
downgrading, qualification or withdrawal of the then current ratings assigned to
any of the Certificates.
Section 11.02 Recordation of Agreement; Counterparts.
(a) To the extent permitted by applicable law, this Agreement is
subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the properties subject to the Mortgages are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected by the Trustee at the expense of the Depositor on direction by the
Special Servicer and with the consent of the Depositor (which may not be
unreasonably withheld), but only upon direction accompanied by an Opinion of
Counsel (the cost of which shall be paid by the Depositor) to the effect that
such recordation materially and beneficially affects the interests of the
Certificateholders.
(b) For the purpose of facilitating the recordation of this
Agreement as herein provided and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute but one and the same instrument.
(c) The Trustee shall make any filings required under the laws of
the state of its place of business required solely by virtue of the fact of the
location of the Trustee's place of business, the costs of which, if any, to be
at the Trustee's expense.
Section 11.03 Limitation on Rights of Certificateholders.
(a) The death or incapacity of any Certificateholder shall not
operate to terminate this Agreement or the Trust Fund, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or to
take any action or proceeding in any court for a partition or winding up of the
Trust Fund, nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them.
(b) No Certificateholder shall have any right to vote (except as
expressly provided for herein) or in any manner otherwise control the operation
and management of the Trust Fund, or the obligations of the parties hereto, nor
shall anything herein set forth, or contained in the terms of the Certificates,
be construed so as to constitute the Certificateholders from time to time as
partners or members of an association; nor shall any Certificateholder be under
any liability to any third party by reason of any action taken by the parties to
this Agreement pursuant to any provision hereof.
(c) No Certificateholder shall have any right by virtue of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement or any Mortgage
Loan, unless, with respect to any suit, action or proceeding upon or under or
with respect to this Agreement, such Holder previously shall have given to the
Trustee and the Paying Agent a written notice of default hereunder, and of the
continuance thereof, as herein before provided, and unless also (except in the
case of a default by the Trustee) the Holders of Certificates of any Class
evidencing not less than 25% of the related Percentage Interests in such Class
shall have made written request upon the Trustee to institute such action, suit
or proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the costs, expenses
and liabilities to be incurred therein or thereby, and the Trustee, for 60 days
after its receipt of such notice, request and offer of indemnity, shall have
neglected or refused to institute any such action, suit or proceeding. The
Trustee shall be under no obligation to exercise any of the trusts or powers
vested in it hereunder or to institute, conduct or defend any litigation
hereunder or in relation hereto at the request, order or direction of any of the
Holders of Certificates unless such Holders have offered to the Trustee
reasonable security against the costs, expenses and liabilities which may be
incurred therein or hereby. It is understood and intended, and expressly
covenanted by each Certificateholder with every other Certificateholder and the
Trustee, that no one or more Holders of Certificates shall have any right in any
manner whatsoever by virtue of any provision of this Agreement to affect,
disturb or prejudice the rights of the Holders of any other of such
Certificates, or to obtain or seek to obtain priority over or preference to any
other such Holder, which priority or preference is not otherwise provided for
herein, or to enforce any right under this Agreement, except in the manner
herein provided and for the equal, ratable and common benefit of all
Certificateholders. For the protection and enforcement of the provisions of this
Section 11.03(c), each and every Certificateholder and the Trustee shall be
entitled to such relief as can be given either at law or in equity.
Section 11.04 Governing Law.
This Agreement and the Certificates shall be construed in accordance
with the internal laws of the State of New York applicable to agreements made
and to be performed in said State, and the obligations, rights and remedies of
the parties hereunder shall be determined in accordance with such laws.
Section 11.05 Notices.
Any communications provided for or permitted hereunder shall be in
writing and, unless otherwise expressly provided herein, shall be deemed to have
been duly given if personally delivered at or mailed by registered mail, postage
prepaid (except for notices to the Trustee which shall be deemed to have been
duly given only when received), to: (i) in the case of the Depositor, X.X.
Xxxxxx Xxxxx Commercial Mortgage Securities Corp., 000 Xxxx Xxxxxx, 00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxxx, Vice President, telecopy
number (000) 000-0000, with a copy to Xxxxxx Xxxxx, Esq., telecopy number: (212)
270-5092; (ii) in the case of the Servicer, Wachovia Bank, National Association,
NC 1075, 0000 Xxxxxxxx Xxxxx, XXX0, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000 (for
overnight mail only) or 28288-1075 (for regular mail), Attention: Portfolio
Manager, RE: JPMorgan Chase Commercial Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2002-C2, telecopy number: (704)
593-7735, with a copy to Wachovia Corporation, 000 Xxxxx Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000, Attention: Xxxx Xxxxxxxx, Esq.; (iii) in
the case of the Special Servicer, ARCap Special Servicing, Inc., 0000 Xxxxx
XxxXxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000, Attention: Xxxxx X.
Xxxxxxx, telecopy number (000) 000-0000; (iv) in the case of the Trustee, Xxxxx
Fargo Bank Minnesota, N.A., 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx,
00000-0000, Attention: Corporate Trust (CMBS), X.X. Xxxxxx Xxxxx Commercial
Mortgage Securities Corp., Series 2002-C2, telecopy number (000) 000-0000; (v)
in the case of the initial Paying Agent, the initial Certificate Registrar and
the initial Authenticating Agent, LaSalle Bank National Association, 000 Xxxxx
XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Asset-Backed
Securities Trust Services Group-JPMorgan Chase Commercial Mortgage Securities
Corp., Commercial Mortgage Pass-Through Certificates, Series 2002-C2, telecopy
number: (000) 000-0000; (vi) in the case of the Rating Agencies, (a) Xxxxx'x
Investors Services, Inc., 00 Xxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Commercial Mortgage Surveillance Group, telecopy number: (212)
553-0300, and (b) Standard and Poor's, 00 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: CMBS Surveillance Group, telecopy number:
000-000-0000; (vii) in the case of the Mortgage Loan Sellers, (a) JPMorgan Chase
Bank, 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx
Xxxxx, Vice President, telecopy number (000) 000-0000; (b) Xxxxxxx Xxxxx
Mortgage Lending, Inc., 4 World Financial Center, 000 Xxxxx Xxxxxx - 00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: X.X. Xxxxxx Xxxxx Commercial Mortgage
Securities Corp., Series 2002-C2, telecopy number (000) 000-0000; and (c)
LaSalle Bank National Association, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxxx 00000, Attention: Managing Director RECM, telecopy number:
(000) 000-0000; or as to each such Person such other address as may hereafter be
furnished by such Person to the parties hereto in writing; and (viii) in the
case of the Directing Certificateholder, ARCap REIT, Inc., 0000 Xxxxx XxxXxxxxx
Xxxxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000, Attention: Xxxxx X. Xxxxxxx, telecopy
number (000) 000-0000. Any communication required or permitted to be delivered
to a Certificateholder shall be deemed to have been duly given when mailed first
class, postage prepaid, to the address of such Holder as shown in the
Certificate Register. Any notice so mailed within the time prescribed in this
Agreement shall be conclusively presumed to have been duly given, whether or not
the Certificateholder receives such notice.
Section 11.06 Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms
of this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the Holders thereof.
Section 11.07 Grant of a Security Interest.
The Depositor intends that the conveyance of the Depositor's right,
title and interest in and to the Mortgage Loans pursuant to this Agreement shall
constitute a sale and not a pledge of security for a loan. If such conveyance is
deemed to be a pledge of security for a loan, however, the Depositor intends
that the rights and obligations of the parties to such loan shall be established
pursuant to the terms of this Agreement. The Depositor also intends and agrees
that, in such event, (i) the Depositor shall be deemed to have granted to the
Trustee (in such capacity) a first priority security interest in the Depositor's
entire right, title and interest in and to the assets comprising the Trust Fund,
including without limitation, the Mortgage Loans, all principal and interest
received or receivable with respect to the Mortgage Loans (other than principal
and interest payments due and payable prior to the Cut-off Date and Principal
Prepayments received prior to the Cut-off Date), all amounts held from time to
time in the Certificate Account, the Simon Collection Account, the Walgreens
Collection Account, the Simon Loan REMIC Distribution Account, the Walgreens
Loan REMIC Distribution Account, the Lower-Tier Distribution Account, the
Upper-Tier Distribution Account, the Gain-on-Sale Reserve Account, the Excess
Interest Distribution Account, the Interest Reserve Account and, if established,
the REO Account, and all reinvestment earnings on such amounts, and all of the
Depositor's right, title and interest in and to the proceeds of any title,
hazard or other Insurance Policies related to such Mortgage Loans and (ii) this
Agreement shall constitute a security agreement under applicable law. This
Section 11.07 shall constitute notice to the Trustee pursuant to any of the
requirements of the applicable UCC.
Section 11.08 Successors and Assigns; Beneficiaries.
The provisions of this Agreement shall be binding upon and inure to
the benefit of the respective successors and assigns of the parties hereto, and
all such provisions shall inure to the benefit of the Certificateholders. No
other person, including, without limitation, any Mortgagor, shall be entitled to
any benefit or equitable right, remedy or claim under this Agreement.
Section 11.09 Article and Section Headings.
The article and section headings herein are for convenience of
reference only, and shall not limit or otherwise affect the meaning hereof.
Section 11.10 Notices to the Rating Agencies.
(a) The Trustee shall use reasonable efforts promptly to provide
notice to each Rating Agency with respect to each of the following of which it
has actual knowledge:
(i) any material change or amendment to this Agreement;
(ii) the occurrence of any Event of Default that has not been cured;
(iii) the resignation or termination of the Paying Agent, the
Servicer or the Special Servicer; and
(iv) the repurchase or substitution of Mortgage Loans by a Mortgage
Loan Seller pursuant to Section 6 of the Mortgage Loan Purchase Agreement.
(b) The Servicer shall use reasonable efforts promptly to provide
notice to each Rating Agency with respect to each of the following of which it
has actual knowledge:
(i) the resignation or removal of the Trustee;
(ii) any change in the location of the Certificate Account;
(iii) any event that would result in the voluntary or involuntary
termination of any insurance of the accounts of the Trustee;
(iv) any change in the lien priority of any Mortgage Loan with
respect to an assumption of the Mortgage Loan or additional encumbrance
described in Section 3.08;
(v) any additional lease to an anchor tenant or termination of any
existing lease to an anchor tenant at retail properties for any Mortgage
Loan with a Stated Principal Balance that is equal to or greater than the
lesser of (1) an amount greater than 5% of the then aggregate outstanding
principal balances of the Mortgage Loans or (2) $35,000,000;
(vi) any material damage to any Mortgaged Property;
(vii) any assumption with respect to a Mortgage Loan; and
(viii) any release or substitution of any Mortgaged Property.
(c) Upon written request, each of the Servicer and the Special
Servicer shall promptly furnish to each Rating Agency copies of inspection
reports and other items delivered to each of the Servicer and Special Servicer
pursuant to Sections 3.12(a) and 3.12(b).
(d) The Paying Agent shall promptly furnish notice to the Rating
Agencies of (i) any change in the location of either of the Distribution
Accounts and (ii) the final payment to any Class of Certificateholders.
(e) The Trustee, the Paying Agent, the Servicer and the Special
Servicer, as applicable, shall furnish to each Rating Agency with respect to
each Mortgage Loan such information as the Rating Agency shall reasonably
request and which the Trustee, the Servicer or Special Servicer, can reasonably
provide in accordance with applicable law and without waiving any
attorney-client privilege relating to such information or violating the terms of
this Agreement or any Mortgage Loan documents. The Trustee, the Paying Agent,
the Servicer and Special Servicer, as applicable, may include any reasonable
disclaimer it deems appropriate with respect to such information.
Notwithstanding anything to the contrary herein, nothing in this Section 11.10
shall require a party to provide duplicative notices or copies to the Rating
Agencies with respect to any of the above listed items.
[End of Article XI]
[SIGNATURES COMMENCE ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective officers thereunto duly authorized, in each
case as of the day and year first above written.
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE
SECURITIES CORP.,
Depositor
By: /s/ Xxxxxxx X. Xxx
------------------------------------
Name: Xxxxxxx X. Xxx
Title: Vice President
WACHOVIA BANK, NATIONAL ASSOCIATION,
Servicer
By: /s/ Xxxxxxx Xxxxxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxxxxx
Title: Associate
ARCAP SPECIAL SERVICING, INC.,
Special Servicer
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: President
XXXXX FARGO BANK MINNESOTA, N.A.,
Trustee
By: /s/ Xxxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
LASALLE BANK NATIONAL ASSOCIATION,
Paying Agent
By: /s/ Xxxxx X. Xxxx
------------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 4th day of December, 2002, before me, a notary public in and
for said State, personally appeared Xxxxxxx X. Xxx known to me to be Vice
President of X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., one of the
corporations that executed the within instrument, and also known to me to be the
person who executed it on behalf of such corporation, and acknowledged to me
that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxxxxxx Xxxxxx
--------------------------------------
Notary Public
[Notarial Seal]
STATE OF NORTH CAROLINA )
) ss.:
COUNTY OF MECKLENBURG )
On the 6th day of December, 2002, before me, a notary public in and
for said State, personally appeared Xxxxxxx Xxxxxxxxxx known to me to be an
Associate of Wachovia Bank, National Association that executed the within
instrument, and also known to me to be the person who executed it on behalf of
such corporation, and acknowledged to me that such corporation executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxxxx Xxxx Xxxxx
--------------------------------------
Notary Public
[Notarial Seal]
STATE OF TEXAS )
) ss.:
COUNTY OF DALLAS )
On the 9th day of December, 2002, before me, a notary public in and
for said State, personally appeared Xxxxx X. Xxxxxxx known to me to be the
President of ARCap Special Servicing, Inc., that executed the within
instrument, and also known to me to be the person who executed it on behalf of
such corporation, and acknowledged to me that such corporation executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ C. F. Greenhouse
--------------------------------------
Notary Public
[Notarial Seal]
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 10th day of December, 2002, before me, a notary public in and
for said State, personally appeared Xxxxxxx Xxxxxxx known to me to be a
Vice President of Xxxxx Fargo Bank Minnesota, N.A., that executed the
within instrument, and also known to me to be the person who executed it on
behalf of such national banking association, and acknowledged to me that such
national banking association executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Alooma-Xxx Xxxxxx
--------------------------------------
Notary Public
[Notarial Seal]
STATE OF ILLINOIS )
) ss.:
COUNTY OF XXXX )
On the 10th day of December, 2002, before me, Xxxxx X'Xxxx, a notary
public in and for said State, personally appeared Xxxxx X. Xxxx, known to me to
be a Vice President of LaSalle Bank National Association, one of the
corporations that executed the within instrument, and also known to me to be the
person who executed it on behalf of such corporation, and acknowledged to me
that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxx X'Xxxx
--------------------------------------
Notary Public
[Notarial Seal]
SCHEDULE 1
----------
Mortgage Loans Containing Additional Debt
Loan No. Loan Name
-------- ---------
2 00/000 Xxxxxxx Xxxxxx
0 Xxxx Xxxxxx Industrial Portfolio II
74 Twin City Crossing
SCHEDULE 2
----------
Mortgage Loans that Initially Pay Interest Only
Loan No. Loan Name
-------- ---------
96 Sugar Tree Shopping Center
CW&T DRAFT 12/10/02
EXHIBIT A-1
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2002-C2, CLASS A-1
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
PASS-THROUGH RATE: 4.3260% APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL
BALANCE OF THE MORTGAGE LOANS AFTER
DENOMINATION: $234,000,000 DEDUCTING PAYMENTS DUE AND PREPAYMENTS
RECEIVED ON OR BEFORE CUT-OFF DATE:
DATE OF POOLING AND SERVICING $1,051,299,658
AGREEMENT: AS OF DECEMBER 1, 2002
SERVICER: WACHOVIA BANK, NATIONAL
CUT-OFF DATE: AS SET FORTH IN THE ASSOCIATION
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN) SPECIAL SERVICER: ARCAP SPECIAL
SERVICING, INC.
CLOSING DATE: DECEMBER 10, 2002
TRUSTEE: XXXXX FARGO BANK MINNESOTA, N.A.
FIRST DISTRIBUTION DATE:
JANUARY 13, 2003 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE CUSIP NO.: 00000XXX0
OF THE CLASS A-1 CERTIFICATES
AS OF THE CLOSING DATE: $234,000,000 ISIN NO.: US46625MPL71
COMMON CODE NO.: 015949678
CERTIFICATE NO.: A-1-1
CLASS A-1 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial and multifamily fixed rate balloon and fully amortizing
mortgage loans (the "Mortgage Loans"), all payments on or collections in respect
of the Mortgage Loans due after the Cut-off Date, all REO Properties and
revenues received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Simon Collection Account, the Walgreens Collection Account, the Interest Reserve
Account, the Excess Interest Distribution Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class A-1 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2002 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-1 Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2002-C2 and are issued in twenty-three classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-1 Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account, the Simon
Collection Account, the Walgreens Collection Account and the Distribution
Accounts will be held on behalf of the Trustee on behalf of the Holders of
Certificates specified in the Pooling and Servicing Agreement and the Servicer
(with respect to the Certificate Account, the Simon Collection Account and the
Walgreens Collection Account) or the Paying Agent (with respect to the
Distribution Accounts) will be authorized to make withdrawals therefrom. Amounts
on deposit in such accounts may be invested in Permitted Investments. Interest
or other income earned on funds in the Certificate Account will be paid to the
Servicer as set forth in the Pooling and Servicing Agreement. As provided in the
Pooling and Servicing Agreement, withdrawals from the Certificate Account shall
be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(f) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(f) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Offered Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Paying Agent and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Servicer, the Special
Servicer, the Paying Agent, the Certificate Registrar nor any such agents shall
be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer, the Paying Agent and the
Trustee, without the consent of any of the Certificateholders, to cure any
ambiguity, to correct or supplement any provisions therein that may be
inconsistent with any other provisions therein or the Prospectus or the
Prospectus Supplement or to correct any error; to maintain the rating or ratings
assigned to each Class of Certificates by each Rating Agency; to modify,
eliminate or add to any provisions to such extent as is necessary to maintain
the qualification of any of the Upper-Tier REMIC, the Lower-Tier REMIC or the
Loan REMICs as a REMIC, or the Grantor Trust as a grantor trust at all times any
Certificate is outstanding or to avoid or minimize the imposition of any tax,
provided, however, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and such action is necessary or desirable to avoid such tax;
to change the timing and/or nature of deposits into the Certificate Account, the
Simon Collection Account, the Walgreens Collection Account or Distribution
Accounts or REO Account or to change the name in which the Certificate Account,
the Simon Collection Account or the Walgreens Collection Account is maintained,
provided, however, that the P&I Advance Date shall not be later than the related
Distribution Date, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating by any Rating Agency, as
evidenced by a letter from such Rating Agency to such effect; to modify,
eliminate or add to the provisions of Section 5.02(c) of the Pooling and
Servicing Agreement or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
and such change shall not, as evidenced by an Opinion of Counsel, cause any of
the Upper-Tier REMIC, the Lower-Tier REMIC, the Loan REMICs or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; and to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of each Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Trustee and the
Paying Agent with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing
of, payments which are required to be distributed on any Certificate
without the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any
Class the Holders of which are required to consent to any such
amendment, without the consent of the Holders of all Certificates of
such Class then outstanding;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent
of each Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders or
written confirmation that such amendment would not result in the
downgrading, qualification or withdrawal of ratings assigned to any
Class of Certificates by any Rating Agency, amend the Servicing
Standard.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause any of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan
REMICs to fail to qualify as a REMIC or result in the imposition of a tax on any
of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMICs or cause the
Grantor Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust Fund is
reduced to less than 1% of the aggregate Cut-off Date Principal Balance of all
the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: December 10, 2002
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-1 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
----------------------------------------
Dated:_________________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-2
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2002-C2, CLASS A-2
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
PASS-THROUGH RATE: 5.0500% APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL
BALANCE OF THE MORTGAGE LOANS AFTER
DENOMINATION: $[500,000,000] DEDUCTING PAYMENTS DUE AND PREPAYMENTS
[106,587,000] RECEIVED ON OR BEFORE CUT-OFF DATE:
$1,051,299,658
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF DECEMBER 1, 2002 SERVICER: WACHOVIA BANK, NATIONAL
ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS SPECIAL SERVICER: ARCAP SPECIAL
DEFINED HEREIN) SERVICING, INC.
CLOSING DATE: DECEMBER 10, 2002 TRUSTEE: XXXXX FARGO BANK MINNESOTA, N.A.
FIRST DISTRIBUTION DATE: PAYING AGENT: LASALLE BANK NATIONAL
JANUARY 13, 2003 ASSOCIATION
APPROXIMATE AGGREGATE CUSIP NO.: 00000XXX0
CERTIFICATE BALANCE
OF THE CLASS A-2 CERTIFICATES ISIN NO.: US46625MPM54
AS OF THE CLOSING DATE: $606,587,000
COMMON CODE NO.: 015949708
CERTIFICATE NO.: A-2-[1] [2]
CLASS A-2 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial and multifamily fixed rate balloon and fully amortizing
mortgage loans (the "Mortgage Loans"), all payments on or collections in respect
of the Mortgage Loans due after the Cut-off Date, all REO Properties and
revenues received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Simon Collection Account, the Walgreens Collection Account, the Interest Reserve
Account, the Excess Interest Distribution Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class A-2 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2002 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-2 Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2002-C2 and are issued in twenty-three classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class A-2 Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account, the Simon
Collection Account, the Walgreens Collection Account and the Distribution
Accounts will be held on behalf of the Trustee on behalf of the Holders of
Certificates specified in the Pooling and Servicing Agreement and the Servicer
(with respect to the Certificate Account, the Simon Collection Account and the
Walgreens Collection Account) or the Paying Agent (with respect to the
Distribution Accounts) will be authorized to make withdrawals therefrom. Amounts
on deposit in such accounts may be invested in Permitted Investments. Interest
or other income earned on funds in the Certificate Account will be paid to the
Servicer as set forth in the Pooling and Servicing Agreement. As provided in the
Pooling and Servicing Agreement, withdrawals from the Certificate Account shall
be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(f) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(f) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Offered Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Paying Agent and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Servicer, the Special
Servicer, the Certificate Registrar, the Paying Agent nor any such agents shall
be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer, the Paying Agent and the
Trustee, without the consent of any of the Certificateholders, to cure any
ambiguity, to correct or supplement any provisions therein that may be
inconsistent with any other provisions therein or the Prospectus or the
Prospectus Supplement or to correct any error; to maintain the rating or ratings
assigned to each Class of Certificates by each Rating Agency; to modify,
eliminate or add to any provisions to such extent as is necessary to maintain
the qualification of any of the Upper-Tier REMIC, the Lower-Tier REMIC or the
Loan REMICs as a REMIC, or the Grantor Trust as a grantor trust at all times any
Certificate is outstanding or to avoid or minimize the imposition of any tax,
provided, however, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and such action is necessary or desirable to avoid such tax;
to change the timing and/or nature of deposits into the Certificate Account, the
Simon Collection Account, the Walgreens Collection Account or Distribution
Accounts or REO Account or to change the name in which the Certificate Account,
Simon Collection Account or the Walgreens Collection Account is maintained,
provided, however, that the P&I Advance Date shall not be later than the related
Distribution Date, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating by any Rating Agency, as
evidenced by a letter from such Rating Agency to such effect; to modify,
eliminate or add to the provisions of Section 5.02(c) of the Pooling and
Servicing Agreement or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
and such change shall not, as evidenced by an Opinion of Counsel, cause any of
the Upper-Tier REMIC, the Lower-Tier REMIC, the Loan REMICs or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; and to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of each Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Trustee and the
Paying Agent with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing
of, payments which are required to be distributed on any Certificate
without the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any
Class the Holders of which are required to consent to any such
amendment, without the consent of the Holders of all Certificates of
such Class then outstanding;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent
of each Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders or
written confirmation that such amendment would not result in the
downgrading, qualification or withdrawal of ratings assigned to any
Class of Certificates by any Rating Agency, amend the Servicing
Standard.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause any of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan
REMICs to fail to qualify as a REMIC or result in the imposition of a tax on any
of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMICs or cause the
Grantor Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust Fund is
reduced to less than 1% of the aggregate Cut-off Date Principal Balance of all
the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: December 10, 2002
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-2 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
----------------------------------------
Dated:_________________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-3
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2002-C2, CLASS X-1
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, (D) IN AN OFFSHORE TRANSACTION MEETING
THE REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES
ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.
THIS CLASS X-1 CERTIFICATE HAS NO PRINCIPAL BALANCE AND WILL NOT RECEIVE ANY
DISTRIBUTION OF PRINCIPAL.
THE NOTIONAL AMOUNT ON WHICH THE INTEREST PAYABLE TO THE HOLDERS OF THE CLASS
X-1 CERTIFICATES IS BASED WILL BE REDUCED AS A RESULT OF PRINCIPAL PAYMENTS AND
LOSSES ON THE MORTGAGE LOANS. ACCORDINGLY, THE INTEREST PAYABLE PURSUANT TO THIS
CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. THIS CERTIFICATE CONSTITUTES
A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.]1
THE PASS-THROUGH RATE ON THE CLASS X-1 APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL
CERTIFICATES WILL BE EQUAL TO, FOR ANY BALANCE OF THE MORTGAGE LOANS AFTER
DISTRIBUTION DATE, THE CLASS X-1 DEDUCTING PAYMENTS DUE AND PREPAYMENTS
PASS-THROUGH RATE AS SET FORTH IN THE RECEIVED ON OR BEFORE CUT-OFF DATE:
POOLING AND SERVICING AGREEMENT $1,051,299,658
DENOMINATION: $[500,000,000] SERVICER: WACHOVIA BANK, NATIONAL
[500,000,000] [31,395,510] ASSOCIATION
DATE OF POOLING AND SERVICING SPECIAL SERVICER: ARCAP SPECIAL
AGREEMENT: AS OF DECEMBER 1, 2002 SERVICING, INC.
CUT-OFF DATE: AS DEFINED IN THE TRUSTEE: XXXXX FARGO BANK MINNESOTA, N.A.
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN) PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
CLOSING DATE: DECEMBER 10, 2002
CUSIP NO.: 00000XXX0 (2) 00000XXX0 (3)
FIRST DISTRIBUTION DATE: X00000XX0 (1)
JANUARY 13, 2003
ISIN NO.: US46625MPS25 (2) US46625MQG77 (3)
APPROXIMATE XXXXXXXXX XXXXXXXX XXXXXX XXX00000XX00 (1)
OF THE CLASS X-1 CERTIFICATES AS OF
THE CLOSING DATE: $1,031,395,510 COMMON CODE: 015952423 (0) 000000000 (1)
CERTIFICATE NO.: X-1-[1][2][3]
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1 For Book-Entry Regulation S Certificates Only.
2 For Book-Entry Rule 144A Only.
3 For Institutional Accredited Investors Only.
CLASS X-1 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial and multifamily fixed rate balloon and fully amortizing
mortgage loans (the "Mortgage Loans"), all payments on or collections in respect
of the Mortgage Loans due after the Cut-off Date, all REO Properties and
revenues received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Simon Collection Account, the Walgreens Collection Account, the Interest Reserve
Account, the Excess Interest Distribution Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class X-1 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2002 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Special
Servicer, the Servicer and the Paying Agent. A summary of certain of the
pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the percentage interest in the Class
of Certificates specified on the face hereof. The Certificates are designated as
the X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage
Pass-Through Certificates, Series 2002-C2 and are issued in twenty-three classes
as specifically set forth in the Pooling and Servicing Agreement. The
Certificates will evidence in the aggregate 100% of the beneficial ownership of
the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of interest then distributable, if any,
allocable to the Class of Certificates of the same Class as this Certificate for
such Distribution Date, all as more fully described in the Pooling and Servicing
Agreement. Holders of this Certificate will not be entitled to distributions in
respect of principal. Holders of this Certificate may be entitled to Yield
Maintenance Charges as provided in the Pooling and Servicing Agreement. All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
This Class X-1 Certificate has no principal balance and will not
receive any distribution of principal.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date Class X-1 Pass-Through Rate
specified above on the Notional Amount of this Certificate immediately prior to
such Distribution Date, as specified above. Interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account, the Simon
Collection Account, the Walgreens Collection Account and the Distribution
Accounts will be held on behalf of the Trustee on behalf of the Holders of
Certificates specified in the Pooling and Servicing Agreement and the Servicer
(with respect to the Certificate Account, the Simon Collection Account and the
Walgreens Collection Account) or the Paying Agent (with respect to the
Distribution Accounts) will be authorized to make withdrawals therefrom. Amounts
on deposit in such accounts may be invested in Permitted Investments. Interest
or other income earned on funds in the Certificate Account will be paid to the
Servicer as set forth in the Pooling and Servicing Agreement. As provided in the
Pooling and Servicing Agreement, withdrawals from the Certificate Account shall
be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(f) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(f) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class X Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of not less than $1,000,000 initial Notional Amount and in
integral multiples of $1 in excess thereof, with one Certificate of such Class
evidencing an additional amount equal to the remainder of the initial Notional
Amount of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Paying Agent and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Servicer, the Special
Servicer, the Paying Agent, the Certificate Registrar nor any such agents shall
be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer, the Paying Agent and the
Trustee, without the consent of any of the Certificateholders, to cure any
ambiguity, to correct or supplement any provisions therein that may be
inconsistent with any other provisions therein or the Prospectus or the
Prospectus Supplement or to correct any error; to maintain the rating or ratings
assigned to each Class of Certificates by each Rating Agency; to modify,
eliminate or add to any provisions to such extent as is necessary to maintain
the qualification of any of the Upper-Tier REMIC, the Lower-Tier REMIC or the
Loan REMICs as a REMIC, or the Grantor Trust as a grantor trust at all times any
Certificate is outstanding or to avoid or minimize the imposition of any tax,
provided, however, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and such action is necessary or desirable to avoid such tax;
to change the timing and/or nature of deposits into the Certificate Account, the
Simon Collection Account, the Walgreens Collection Account or Distribution
Accounts or REO Account or to change the name in which the Certificate Account,
Simon Collection Account or the Walgreens Collection Account is maintained,
provided, however, that the P&I Advance Date shall not be later than the related
Distribution Date, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating by any Rating Agency, as
evidenced by a letter from such Rating Agency to such effect; to modify,
eliminate or add to the provisions of Section 5.02(c) of the Pooling and
Servicing Agreement or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
and such change shall not, as evidenced by an Opinion of Counsel, cause any of
the Upper-Tier REMIC, the Lower-Tier REMIC, the Loan REMICs or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; and to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of each Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Trustee and the
Paying Agent with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing
of, payments which are required to be distributed on any Certificate
without the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any
Class the Holders of which are required to consent to any such
amendment, without the consent of the Holders of all Certificates of
such Class then outstanding;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent
of each Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders or
written confirmation that such amendment would not result in the
downgrading, qualification or withdrawal of ratings assigned to any
Class of Certificates by any Rating Agency, amend the Servicing
Standard.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause any of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan
REMICs to fail to qualify as a REMIC or result in the imposition of a tax on any
of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMICs or cause the
Grantor Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust Fund is
reduced to less than 1% of the aggregate Cut-off Date Principal Balance of all
the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: December 10, 2002
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS X-1 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
NOTIONAL AMOUNT OF
DEFINITIVE CERTIFICATES
EXCHANGED OR TRANSFERRED
FOR, OR ISSUED IN EXCHANGE
FOR OR UPON TRANSFER OF, AN REMAINING NOTIONAL
INTEREST IN THIS AMOUNT OF BOOK-ENTRY NOTATION
DATE BOOK-ENTRY CERTIFICATE CERTIFICATE MADE BY
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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 Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
----------------------------------------
Dated:_________________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-4
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2002-C2, CLASS X-2
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, (D) IN AN OFFSHORE TRANSACTION MEETING
THE REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES
ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.
THIS CLASS X-2 CERTIFICATE HAS NO PRINCIPAL BALANCE AND WILL NOT RECEIVE ANY
DISTRIBUTION OF PRINCIPAL.
THE NOTIONAL AMOUNT ON WHICH THE INTEREST PAYABLE TO THE HOLDERS OF THE CLASS
X-2 CERTIFICATES IS BASED WILL BE REDUCED AS A RESULT OF PRINCIPAL PAYMENTS AND
LOSSES ON THE MORTGAGE LOANS. ACCORDINGLY, THE INTEREST PAYABLE PURSUANT TO THIS
CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. THIS CERTIFICATE CONSTITUTES
A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.] 1
THE PASS-THROUGH RATE ON THE CLASS X-2 APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL
CERTIFICATES WILL BE EQUAL TO, FOR ANY BALANCE OF THE MORTGAGE LOANS AFTER
DISTRIBUTION DATE, THE CLASS X-2 DEDUCTING PAYMENTS DUE AND PREPAYMENTS
PASS-THROUGH RATE AS SET FORTH IN THE RECEIVED ON OR BEFORE CUT-OFF DATE:
POOLING AND SERVICING AGREEMENT $1,051,299,658
DENOMINATION: $[500,000,000] SERVICER: WACHOVIA BANK, NATIONAL
[486,495,000] ASSOCIATION
DATE OF POOLING AND SERVICING SPECIAL SERVICER: ARCAP SPECIAL
AGREEMENT: AS OF DECEMBER 1, 2002 SERVICING, INC.
CUT-OFF DATE: AS DEFINED IN THE TRUSTEE: XXXXX FARGO BANK MINNESOTA, N.A.
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN) PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
CLOSING DATE: DECEMBER 10, 2002
CUSIP NO.: 00000XXX0 (2) 00000XXX0 (3)
FIRST DISTRIBUTION DATE: X00000XX0 (1)
JANUARY 13, 2003
ISIN NO.: US46625MPT08 (2) US46625MQH50 (3)
APPROXIMATE XXXXXXXXX XXXXXXXX XXXXXX XXX00000XX00 (1)
OF THE CLASS X-1 CERTIFICATES AS OF
THE CLOSING DATE: $986,495,000 COMMON CODE: 015952628 (0) 000000000 (1)
CERTIFICATE NO.: X-2-[1]-[2
--------
1 For Book-Entry Regulation S Certificates Only.
2 For Book-Entry Rule 144A Only.
3 For Institutional Accredited Investors Only.
CLASS X-2 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial and multifamily fixed rate balloon and fully amortizing
mortgage loans (the "Mortgage Loans"), all payments on or collections in respect
of the Mortgage Loans due after the Cut-off Date, all REO Properties and
revenues received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Simon Collection Account, the Walgreens Collection Account, the Interest Reserve
Account, the Excess Interest Distribution Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class X-2 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2002 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Special
Servicer, the Servicer and the Paying Agent. A summary of certain of the
pertinent provisions of the Pooling and Servicing Agreement is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the percentage interest in the Class
of Certificates specified on the face hereof. The Certificates are designated as
the X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage
Pass-Through Certificates, Series 2002-C2 and are issued in twenty-three classes
as specifically set forth in the Pooling and Servicing Agreement. The
Certificates will evidence in the aggregate 100% of the beneficial ownership of
the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of interest then distributable, if any,
allocable to the Class of Certificates of the same Class as this Certificate for
such Distribution Date, all as more fully described in the Pooling and Servicing
Agreement. Holders of this Certificate will not be entitled to distributions in
respect of principal. Holders of this Certificate may be entitled to Yield
Maintenance Charges as provided in the Pooling and Servicing Agreement. All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
This Class X-2 Certificate has no principal balance and will not
receive any distribution of principal.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date Class X-2 Pass-Through Rate
specified above on the Notional Amount of this Certificate immediately prior to
such Distribution Date, as specified above. Interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account, the Simon
Collection Account, the Walgreens Collection Account and the Distribution
Accounts will be held on behalf of the Trustee on behalf of the Holders of
Certificates specified in the Pooling and Servicing Agreement and the Servicer
(with respect to the Certificate Account, the Simon Collection Account and the
Walgreens Collection Account) or the Paying Agent (with respect to the
Distribution Accounts) will be authorized to make withdrawals therefrom. Amounts
on deposit in such accounts may be invested in Permitted Investments. Interest
or other income earned on funds in the Certificate Account will be paid to the
Servicer as set forth in the Pooling and Servicing Agreement. As provided in the
Pooling and Servicing Agreement, withdrawals from the Certificate Account shall
be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(f) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(f) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class X Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of not less than $1,000,000 initial Notional Amount and in
integral multiples of $1 in excess thereof, with one Certificate of such Class
evidencing an additional amount equal to the remainder of the initial Notional
Amount of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Paying Agent and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Servicer, the Special
Servicer, the Paying Agent, the Certificate Registrar nor any such agents shall
be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer, the Paying Agent and the
Trustee, without the consent of any of the Certificateholders, to cure any
ambiguity, to correct or supplement any provisions therein that may be
inconsistent with any other provisions therein or the Prospectus or the
Prospectus Supplement or to correct any error; to maintain the rating or ratings
assigned to each Class of Certificates by each Rating Agency; to modify,
eliminate or add to any provisions to such extent as is necessary to maintain
the qualification of any of the Upper-Tier REMIC, the Lower-Tier REMIC or the
Loan REMICs as a REMIC, or the Grantor Trust as a grantor trust at all times any
Certificate is outstanding or to avoid or minimize the imposition of any tax,
provided, however, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and such action is necessary or desirable to avoid such tax;
to change the timing and/or nature of deposits into the Certificate Account, the
Simon Collection Account, the Walgreens Collection Account or Distribution
Accounts or REO Account or to change the name in which the Certificate Account,
Simon Collection Account or the Walgreens Collection Account is maintained,
provided, however, that the P&I Advance Date shall not be later than the related
Distribution Date, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating by any Rating Agency, as
evidenced by a letter from such Rating Agency to such effect; to modify,
eliminate or add to the provisions of Section 5.02(c) of the Pooling and
Servicing Agreement or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
and such change shall not, as evidenced by an Opinion of Counsel, cause any of
the Upper-Tier REMIC, the Lower-Tier REMIC, the Loan REMICs or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; and to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of each Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Trustee and the
Paying Agent with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing
of, payments which are required to be distributed on any Certificate
without the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any
Class the Holders of which are required to consent to any such
amendment, without the consent of the Holders of all Certificates of
such Class then outstanding;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent
of each Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders or
written confirmation that such amendment would not result in the
downgrading, qualification or withdrawal of ratings assigned to any
Class of Certificates by any Rating Agency, amend the Servicing
Standard.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause any of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan
REMICs to fail to qualify as a REMIC or result in the imposition of a tax on any
of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMICs or cause the
Grantor Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust Fund is
reduced to less than 1% of the aggregate Cut-off Date Principal Balance of all
the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: December 10, 2002
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS X-2 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
NOTIONAL AMOUNT OF
DEFINITIVE CERTIFICATES
EXCHANGED OR TRANSFERRED
FOR, OR ISSUED IN EXCHANGE
FOR OR UPON TRANSFER OF, AN REMAINING NOTIONAL
INTEREST IN THIS AMOUNT OF BOOK-ENTRY NOTATION
DATE BOOK-ENTRY CERTIFICATE CERTIFICATE MADE BY
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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 Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
----------------------------------------
Dated:_________________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-5
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2002-C2, CLASS B
THIS CLASS B CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
PASS-THROUGH RATE: 5.2110% SUBJECT APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL
TO A MAXIMUM PASS-THROUGH RATE AS SET BALANCE OF THE MORTGAGE LOANS AFTER
FORTH IN THE POOLING AND SERVICING DEDUCTING PAYMENTS DUE AND PREPAYMENTS
AGREEMENT RECEIVED ON OR BEFORE CUT-OFF DATE:
$1,051,299,658
DENOMINATION: $41,256,000
SERVICER: WACHOVIA BANK, NATIONAL
DATE OF POOLING AND SERVICING ASSOCIATION
AGREEMENT: AS OF DECEMBER 1, 2002
SPECIAL SERVICER: ARCAP SPECIAL
CUT-OFF DATE: AS DEFINED IN THE SERVICING, INC.
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN) TRUSTEE: XXXXX FARGO BANK MINNESOTA, N.A.
CLOSING DATE: DECEMBER 10, 2002 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
FIRST DISTRIBUTION DATE:
JANUARY 13, 2003 CUSIP NO.: 00000XXX0
APPROXIMATE AGGREGATE ISIN NO.: US46625MPN38
CERTIFICATE BALANCE
OF THE CLASS B CERTIFICATES COMMON CODE NO.: 015949724
AS OF THE CLOSING DATE:
$41,256,000 CERTIFICATE NO.: B-1
CLASS B CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial and multifamily fixed rate balloon and fully amortizing
mortgage loans (the "Mortgage Loans"), all payments on or collections in respect
of the Mortgage Loans due after the Cut-off Date, all REO Properties and
revenues received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Simon Collection Account, the Walgreens Collection Account, the Interest Reserve
Account, the Excess Interest Distribution Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class B Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2002 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class B
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2002-C2 and are issued in twenty-three classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class B Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account, the Simon
Collection Account, the Walgreens Collection Account and the Distribution
Accounts will be held on behalf of the Trustee on behalf of the Holders of
Certificates specified in the Pooling and Servicing Agreement and the Servicer
(with respect to the Certificate Account, the Simon Collection Account and the
Walgreens Collection Account) or the Paying Agent (with respect to the
Distribution Accounts) will be authorized to make withdrawals therefrom. Amounts
on deposit in such accounts may be invested in Permitted Investments. Interest
or other income earned on funds in the Certificate Account will be paid to the
Servicer as set forth in the Pooling and Servicing Agreement. As provided in the
Pooling and Servicing Agreement, withdrawals from the Certificate Account shall
be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(f) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(f) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Offered Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Paying Agent and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Servicer, the Special
Servicer, the Paying Agent, the Certificate Registrar nor any such agents shall
be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer, the Paying Agent and the
Trustee, without the consent of any of the Certificateholders, to cure any
ambiguity, to correct or supplement any provisions therein that may be
inconsistent with any other provisions therein or the Prospectus or the
Prospectus Supplement or to correct any error; to maintain the rating or ratings
assigned to each Class of Certificates by each Rating Agency; to modify,
eliminate or add to any provisions to such extent as is necessary to maintain
the qualification of any of the Upper-Tier REMIC, the Lower-Tier REMIC or the
Loan REMICs as a REMIC, or the Grantor Trust as a grantor trust at all times any
Certificate is outstanding or to avoid or minimize the imposition of any tax,
provided, however, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and such action is necessary or desirable to avoid such tax;
to change the timing and/or nature of deposits into the Certificate Account, the
Simon Collection Account, the Walgreens Collection Account or Distribution
Accounts or REO Account or to change the name in which the Certificate Account,
Simon Collection Account or the Walgreens Collection Account is maintained,
provided, however, that the P&I Advance Date shall not be later than the related
Distribution Date, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating by any Rating Agency, as
evidenced by a letter from such Rating Agency to such effect; to modify,
eliminate or add to the provisions of Section 5.02(c) of the Pooling and
Servicing Agreement or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
and such change shall not, as evidenced by an Opinion of Counsel, cause any of
the Upper-Tier REMIC, the Lower-Tier REMIC, the Loan REMICs or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; and to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of each Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Trustee and the
Paying Agent with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing
of, payments which are required to be distributed on any Certificate
without the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any
Class the Holders of which are required to consent to any such
amendment, without the consent of the Holders of all Certificates of
such Class then outstanding;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent
of each Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders or
written confirmation that such amendment would not result in the
downgrading, qualification or withdrawal of ratings assigned to any
Class of Certificates by any Rating Agency, amend the Servicing
Standard.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause any of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan
REMICs to fail to qualify as a REMIC or result in the imposition of a tax on any
of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMICs or cause the
Grantor Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent, and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust Fund is
reduced to less than 1% of the aggregate Cut-off Date Principal Balance of all
the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:_______________________________
AUTHORIZED SIGNATORY
Dated: December 10, 2002
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS B CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:_______________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
----------------------------------------
Dated:_________________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-6
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2002-C2, CLASS C
THIS CLASS C CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES AS DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED
BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS
ON THE CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO
THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY
BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT. THIS
CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
PASS-THROUGH RATE: 5.2900% SUBJECT APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL
TO A MAXIMUM PASS-THROUGH RATE AS SET BALANCE OF THE MORTGAGE LOANS AFTER
FORTH IN THE POOLING AND SERVICING DEDUCTING PAYMENTS DUE AND PREPAYMENTS
AGREEMENT RECEIVED ON OR BEFORE CUT-OFF DATE:
$1,051,299,658
DENOMINATION: $10,314,000
SERVICER: WACHOVIA BANK, NATIONAL
DATE OF POOLING AND SERVICING ASSOCIATION
AGREEMENT: AS OF DECEMBER 1, 2002
SPECIAL SERVICER: ARCAP SPECIAL
CUT-OFF DATE: AS DEFINED IN THE SERVICING, INC.
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN) TRUSTEE: XXXXX FARGO BANK MINNESOTA, N.A.
CLOSING DATE: DECEMBER 10, 2002 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
FIRST DISTRIBUTION DATE:
JANUARY 13, 2003 CUSIP NO.: 00000XXX0
APPROXIMATE AGGREGATE ISIN NO.: US46625MPP85
CERTIFICATE BALANCE
OF THE CLASS C CERTIFICATES COMMON CODE NO.: 015949775
AS OF THE CLOSING DATE: $10,314,000
CERTIFICATE NO.: C-1
CLASS C CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial and multifamily fixed rate balloon and fully amortizing
mortgage loans (the "Mortgage Loans"), all payments on or collections in respect
of the Mortgage Loans due after the Cut-off Date, all REO Properties and
revenues received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Simon Collection Account, the Walgreens Collection Account, the Interest Reserve
Account, the Excess Interest Distribution Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE
UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE
UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class C Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2002 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class C
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2002-C2 and are issued in twenty-three classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class C Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account, the Simon
Collection Account, the Walgreens Collection Account and the Distribution
Accounts will be held on behalf of the Trustee on behalf of the Holders of
Certificates specified in the Pooling and Servicing Agreement and the Servicer
(with respect to the Certificate Account, the Simon Collection Account and the
Walgreens Collection Account) or the Paying Agent (with respect to the
Distribution Accounts) will be authorized to make withdrawals therefrom. Amounts
on deposit in such accounts may be invested in Permitted Investments. Interest
or other income earned on funds in the Certificate Account will be paid to the
Servicer as set forth in the Pooling and Servicing Agreement. As provided in the
Pooling and Servicing Agreement, withdrawals from the Certificate Account shall
be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(f) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(f) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Offered Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Paying Agent and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Servicer, the Special
Servicer, the Paying Agent, the Certificate Registrar nor any such agents shall
be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer, the Paying Agent and the
Trustee, without the consent of any of the Certificateholders, to cure any
ambiguity, to correct or supplement any provisions therein that may be
inconsistent with any other provisions therein or the Prospectus or the
Prospectus Supplement or to correct any error; to maintain the rating or ratings
assigned to each Class of Certificates by each Rating Agency; to modify,
eliminate or add to any provisions to such extent as is necessary to maintain
the qualification of any of the Upper-Tier REMIC, the Lower-Tier REMIC or the
Loan REMICs as a REMIC, or the Grantor Trust as a grantor trust at all times any
Certificate is outstanding or to avoid or minimize the imposition of any tax,
provided, however, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and such action is necessary or desirable to avoid such tax;
to change the timing and/or nature of deposits into the Certificate Account, the
Simon Collection Account, the Walgreens Collection Account or Distribution
Accounts or REO Account or to change the name in which the Certificate Account,
Simon Collection Account or the Walgreens Collection Account, is maintained,
provided, however, that the P&I Advance Date shall not be later than the related
Distribution Date, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating by any Rating Agency, as
evidenced by a letter from such Rating Agency to such effect; to modify,
eliminate or add to the provisions of Section 5.02(c) of the Pooling and
Servicing Agreement or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
and such change shall not, as evidenced by an Opinion of Counsel, cause any of
the Upper-Tier REMIC, the Lower-Tier REMIC, the Loan REMICs or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; and to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of each Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Trustee and the
Paying Agent with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing
of, payments which are required to be distributed on any Certificate
without the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any
Class the Holders of which are required to consent to any such
amendment, without the consent of the Holders of all Certificates of
such Class then outstanding;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent
of each Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders or
written confirmation that such amendment would not result in the
downgrading, qualification or withdrawal of ratings assigned to any
Class of Certificates by any Rating Agency, amend the Servicing
Standard.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause any of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan
REMICs to fail to qualify as a REMIC or result in the imposition of a tax on any
of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMICs or cause the
Grantor Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust Fund is
reduced to less than 1% of the aggregate Cut-off Date Principal Balance of all
the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: December 10, 2002
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS C CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
CERTIFICATE BALANCE OF
DEFINITIVE CERTIFICATES
EXCHANGED OR TRANSFERRED
FOR, OR ISSUED IN EXCHANGE
FOR OR UPON TRANSFER OF, AN REMAINING CERTIFICATE
INTEREST IN THIS BALANCE OF BOOK-ENTRY NOTATION
DATE BOOK-ENTRY CERTIFICATE CERTIFICATE MADE BY
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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 Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
----------------------------------------
Dated:_________________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-7
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2002-C2, CLASS D
THIS CLASS D CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES AS DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED
BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS
ON THE CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO
THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY
BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT. THIS
CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
PASS-THROUGH RATE: 5.4080% SUBJECT APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL
TO A MAXIMUM PASS-THROUGH RATE AS SET BALANCE OF THE MORTGAGE LOANS AFTER
FORTH IN THE POOLING AND SERVICING DEDUCTING PAYMENTS DUE AND PREPAYMENTS
AGREEMENT RECEIVED ON OR BEFORE CUT-OFF DATE:
$1,051,299,658
DENOMINATION: $28,363,000
SERVICER: WACHOVIA BANK, NATIONAL
DATE OF POOLING AND SERVICING ASSOCIATION
AGREEMENT: AS OF DECEMBER 1, 2002
SPECIAL SERVICER: ARCAP SPECIAL
CUT-OFF DATE: AS SET FORTH IN THE SERVICING, INC.
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN) TRUSTEE: XXXXX FARGO BANK MINNESOTA, N.A.
CLOSING DATE: DECEMBER 10, 2002 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
FIRST DISTRIBUTION DATE:
JANUARY 13, 2003 CUSIP NO.: 00000XXX0
APPROXIMATE AGGREGATE ISIN NO.: US46625MPQ68
CERTIFICATE BALANCE
OF THE CLASS D CERTIFICATES COMMON CODE NO.: 015949805
AS OF THE CLOSING DATE: $28,363,000
CERTIFICATE NO.: D-1
CLASS D CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial and multifamily fixed rate balloon and fully amortizing
mortgage loans (the "Mortgage Loans"), all payments on or collections in respect
of the Mortgage Loans due after the Cut-off Date, all REO Properties and
revenues received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Simon Collection Account, the Walgreens Collection Account, the Interest Reserve
Account, the Excess Interest Distribution Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE
UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE
UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class D Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2002 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class D
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2002-C2 and are issued in twenty-three classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class D Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account, the Simon
Collection Account, the Walgreens Collection Account and the Distribution
Accounts will be held on behalf of the Trustee on behalf of the Holders of
Certificates specified in the Pooling and Servicing Agreement and the Servicer
(with respect to the Certificate Account, the Simon Collection Account and the
Walgreens Collection Account) or the Paying Agent (with respect to the
Distribution Accounts) will be authorized to make withdrawals therefrom. Amounts
on deposit in such accounts may be invested in Permitted Investments. Interest
or other income earned on funds in the Certificate Account will be paid to the
Servicer as set forth in the Pooling and Servicing Agreement. As provided in the
Pooling and Servicing Agreement, withdrawals from the Certificate Account shall
be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(f) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(f) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Offered Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Paying Agent and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Servicer, the Special
Servicer, the Paying Agent, the Certificate Registrar nor any such agents shall
be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer, the Paying Agent and the
Trustee, without the consent of any of the Certificateholders, to cure any
ambiguity, to correct or supplement any provisions therein that may be
inconsistent with any other provisions therein or the Prospectus or the
Prospectus Supplement or to correct any error; to maintain the rating or ratings
assigned to each Class of Certificates by each Rating Agency; to modify,
eliminate or add to any provisions to such extent as is necessary to maintain
the qualification of any of the Upper-Tier REMIC, the Lower-Tier REMIC or the
Loan REMICs as a REMIC, or the Grantor Trust as a grantor trust at all times any
Certificate is outstanding or to avoid or minimize the imposition of any tax,
provided, however, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and such action is necessary or desirable to avoid such tax;
to change the timing and/or nature of deposits into the Certificate Account, the
Simon Collection Account, the Walgreens Collection Account or Distribution
Accounts or REO Account or to change the name in which the Certificate Account,
Simon Collection Account or Walgreens Collection Account is maintained,
provided, however, that the P&I Advance Date shall not be later than the related
Distribution Date, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating by any Rating Agency, as
evidenced by a letter from such Rating Agency to such effect; to modify,
eliminate or add to the provisions of Section 5.02(c) of the Pooling and
Servicing Agreement or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
and such change shall not, as evidenced by an Opinion of Counsel, cause any of
the Upper-Tier REMIC, the Lower-Tier REMIC, the Loan REMICs or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; and to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of each Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Trustee and the
Paying Agent with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing
of, payments which are required to be distributed on any Certificate
without the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any
Class the Holders of which are required to consent to any such
amendment, without the consent of the Holders of all Certificates of
such Class then outstanding;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent
of each Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders or
written confirmation that such amendment would not result in the
downgrading, qualification or withdrawal of ratings assigned to any
Class of Certificates by any Rating Agency, amend the Servicing
Standard.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause any of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan
REMICs to fail to qualify as a REMIC or result in the imposition of a tax on any
of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMICs or cause the
Grantor Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee and each of the other
parties to the Pooling and Servicing Agreement, to purchase all, but not less
than all, of the Mortgage Loans and all property acquired in respect of any
Mortgage Loan remaining in the Trust Fund, and thereby effect termination of the
Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: December 10, 2002
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS D CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
CERTIFICATE BALANCE OF
DEFINITIVE CERTIFICATES
EXCHANGED OR TRANSFERRED
FOR, OR ISSUED IN EXCHANGE
FOR OR UPON TRANSFER OF, AN REMAINING CERTIFICATE
INTEREST IN THIS BALANCE OF BOOK-ENTRY NOTATION
DATE BOOK-ENTRY CERTIFICATE CERTIFICATE MADE BY
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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 Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
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Dated:_________________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-8
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2002-C2, CLASS E
THIS CLASS E CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES AS DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED
BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS
ON THE CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO
THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY
BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT. THIS
CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE PASS-THROUGH RATE ON THE CLASS E APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL
CERTIFICATES WILL BE EQUAL TO THE BALANCE OF THE MORTGAGE LOANS AFTER
WEIGHTED AVERAGE NET MORTGAGE RATE FOR DEDUCTING PAYMENTS DUE AND PREPAYMENTS
ANY DISTRIBUTION DATE MINUS 0.9030% AS RECEIVED ON OR BEFORE CUT-OFF DATE:
SET FORTH IN THE POOLING AND $1,051,299,658
SERVICING AGREEMENT
SERVICER: WACHOVIA BANK, NATIONAL
DENOMINATION: $14,182,000 ASSOCIATION
DATE OF POOLING AND SERVICING SPECIAL SERVICER: ARCAP SPECIAL
AGREEMENT: AS OF DECEMBER 1, 2002 SERVICING, INC.
CUT-OFF DATE: AS SET FORTH IN THE TRUSTEE: XXXXX FARGO BANK MINNESOTA, N.A.
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN) PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
CLOSING DATE: DECEMBER 10, 2002
CUSIP NO.: 00000XXX0
FIRST DISTRIBUTION DATE:
JANUARY 13, 2003 ISIN NO.: US46625MPR42
APPROXIMATE AGGREGATE COMMON CODE NO.: 015949830
CERTIFICATE BALANCE
OF THE CLASS E CERTIFICATES CERTIFICATE NO.: E-1
AS OF THE CLOSING DATE: $14,182,000
CLASS E CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial and multifamily fixed rate balloon and fully amortizing
mortgage loans (the "Mortgage Loans"), all payments on or collections in respect
of the Mortgage Loans due after the Cut-off Date, all REO Properties and
revenues received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Simon Collection Account, the Walgreens Collection Account, the Interest Reserve
Account, the Excess Interest Distribution Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE
UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE
UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class E Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2002 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class E
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2002-C2 and are issued in twenty-three classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class E Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account, the Simon
Collection Account, the Walgreens Collection Account and the Distribution
Accounts will be held on behalf of the Trustee on behalf of the Holders of
Certificates specified in the Pooling and Servicing Agreement and the Servicer
(with respect to the Certificate Account, the Simon Collection Account and the
Walgreens Collection Account) or the Paying Agent (with respect to the
Distribution Account) will be authorized to make withdrawals therefrom. Amounts
on deposit in such accounts may be invested in Permitted Investments. Interest
or other income earned on funds in the Certificate Account will be paid to the
Servicer as set forth in the Pooling and Servicing Agreement. As provided in the
Pooling and Servicing Agreement, withdrawals from the Certificate Account shall
be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(f) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(f) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Offered Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $1 initial Certificate Balance, and in integral
multiples of $10,000 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Paying Agent and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Servicer, the Special
Servicer, the Paying Agent, the Certificate Registrar nor any such agents shall
be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer, the Paying Agent and the
Trustee, without the consent of any of the Certificateholders, to cure any
ambiguity, to correct or supplement any provisions therein that may be
inconsistent with any other provisions therein or the Prospectus or the
Prospectus Supplement or to correct any error; to maintain the rating or ratings
assigned to each Class of Certificates by each Rating Agency; to modify,
eliminate or add to any provisions to such extent as is necessary to maintain
the qualification of any of the Upper-Tier REMIC, the Lower-Tier REMIC or the
Loan REMICs as a REMIC, or the Grantor Trust as a grantor trust at all times any
Certificate is outstanding or to avoid or minimize the imposition of any tax,
provided, however, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and such action is necessary or desirable to avoid such tax;
to change the timing and/or nature of deposits into the Certificate Account, the
Simon Collection Account, the Walgreens Collection Account or Distribution
Accounts or REO Account or to change the name in which the Certificate Account,
the Simon Collection Account or the Walgreens Collection Account is maintained,
provided, however, that the P&I Advance Date shall not be later than the related
Distribution Date, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating by any Rating Agency, as
evidenced by a letter from such Rating Agency to such effect; to modify,
eliminate or add to the provisions of Section 5.02(c) of the Pooling and
Servicing Agreement or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
and such change shall not, as evidenced by an Opinion of Counsel, cause any of
the Upper-Tier REMIC, the Lower-Tier REMIC, the Loan REMICs or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; and to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of each Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Trustee and the
Paying Agent with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing
of, payments which are required to be distributed on any Certificate
without the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any
Class the Holders of which are required to consent to any such
amendment, without the consent of the Holders of all Certificates of
such Class then outstanding;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent
of each Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders or
written confirmation that such amendment would not result in the
downgrading, qualification or withdrawal of ratings assigned to any
Class of Certificates by any Rating Agency, amend the Servicing
Standard.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause any of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan
REMICs to fail to qualify as a REMIC or result in the imposition of a tax on any
of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMICs or cause the
Grantor Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust Fund is
reduced to less than 1% of the aggregate Cut-off Date Principal Balance of all
the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: December 10, 2002
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS E CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
CERTIFICATE BALANCE OF
DEFINITIVE CERTIFICATES
EXCHANGED OR TRANSFERRED
FOR, OR ISSUED IN EXCHANGE
FOR OR UPON TRANSFER OF, AN REMAINING CERTIFICATE
INTEREST IN THIS BALANCE OF BOOK-ENTRY NOTATION
DATE BOOK-ENTRY CERTIFICATE CERTIFICATE MADE BY
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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 Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
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Dated:_________________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-9
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2002-C2, CLASS F
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, (D) IN AN OFFSHORE TRANSACTION MEETING
THE REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES
ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.
THIS CLASS F CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.] 1
THE PASS-THROUGH RATE ON THE CLASS F APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL
CERTIFICATES WILL BE EQUAL TO THE BALANCE OF THE MORTGAGE LOANS AFTER
WEIGHTED AVERAGE NET MORTGAGE RATE FOR DEDUCTING PAYMENTS DUE AND PREPAYMENTS
ANY DISTRIBUTION DATE MINUS 0.3330% AS RECEIVED ON OR BEFORE CUT-OFF DATE:
SET FORTH IN THE POOLING AND $1,051,299,658
SERVICING AGREEMENT
SERVICER: WACHOVIA BANK, NATIONAL
DENOMINATION: $19,339,000 ASSOCIATION
SPECIAL SERVICER: ARCAP SPECIAL
DATE OF POOLING AND SERVICING SERVICING, INC.
AGREEMENT: AS OF DECEMBER 1, 2002
TRUSTEE: XXXXX FARGO BANK MINNESOTA, N.A.
CUT-OFF DATE: AS DEFINED IN THE
POOLING AND SERVICING AGREEMENT (AS PAYING AGENT: LASALLE BANK NATIONAL
DEFINED HEREIN) ASSOCIATION
CLOSING DATE: DECEMBER 10, 2002 CUSIP NO.: 00000XXX0 (2) 00000XXX0 (3)
X00000XX0 (1)
FIRST DISTRIBUTION DATE:
JANUARY 13, 2003 ISIN NO.: US46625MPU70 (2) US46625MQJ17 (3)
USU48138GD4 (1)
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE COMMON CODE NO.: 015952733 (0) 000000000 (1)
OF THE CLASS F CERTIFICATES
AS OF THE CLOSING DATE: $19,339,000 CERTIFICATE NO.: F-1
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1 For Book-Entry Regulation S Certificates Only.
2 For Book-Entry Rule 144A Only.
3 For Institutional Accredited Investors Only.
CLASS F CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial and multifamily fixed rate balloon and fully amortizing
mortgage loans (the "Mortgage Loans"), all payments on or collections in respect
of the Mortgage Loans due after the Cut-off Date, all REO Properties and
revenues received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Simon Collection Account, the Walgreens Collection Account, the Interest Reserve
Account, the Excess Interest Distribution Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO
is the registered owner of the interest evidenced by this Certificate in the
Class F Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2002 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class F
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2002-C2 and are issued in twenty-three classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class F Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account, the Simon
Collection Account, the Walgreens Collection Account and the Distribution
Accounts will be held on behalf of the Trustee on behalf of the Holders of
Certificates specified in the Pooling and Servicing Agreement and the Servicer
(with respect to the Certificate Account, the Simon Collection Account and the
Walgreens Collection Account) or the Paying Agent (with respect to the
Distribution Accounts) will be authorized to make withdrawals therefrom. Amounts
on deposit in such accounts may be invested in Permitted Investments. Interest
or other income earned on funds in the Certificate Account will be paid to the
Servicer as set forth in the Pooling and Servicing Agreement. As provided in the
Pooling and Servicing Agreement, withdrawals from the Certificate Account shall
be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(f) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(f) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Non-Registered Certificates (other than the Residual Certificates) will be
issued in book-entry form through the facilities of DTC in Denominations of
$250,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Paying Agent and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Servicer, the Special
Servicer, the Paying Agent, the Certificate Registrar nor any such agents shall
be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer, the Paying Agent and the
Trustee, without the consent of any of the Certificateholders, to cure any
ambiguity, to correct or supplement any provisions therein that may be
inconsistent with any other provisions therein or the Prospectus or the
Prospectus Supplement or to correct any error; to maintain the rating or ratings
assigned to each Class of Certificates by each Rating Agency; to modify,
eliminate or add to any provisions to such extent as is necessary to maintain
the qualification of any of the Upper-Tier REMIC, the Lower-Tier REMIC or the
Loan REMICs as a REMIC, or the Grantor Trust as a grantor trust at all times any
Certificate is outstanding or to avoid or minimize the imposition of any tax,
provided, however, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and such action is necessary or desirable to avoid such tax;
to change the timing and/or nature of deposits into the Certificate Account, the
Simon Collection Account, the Walgreens Collection Account or Distribution
Accounts or REO Account or to change the name in which the Certificate Account,
the Simon Collection Account or the Walgreens Collection Account is maintained,
provided, however, that the P&I Advance Date shall not be later than the related
Distribution Date, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating by any Rating Agency, as
evidenced by a letter from such Rating Agency to such effect; to modify,
eliminate or add to the provisions of Section 5.02(c) of the Pooling and
Servicing Agreement or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
and such change shall not, as evidenced by an Opinion of Counsel, cause any of
the Upper-Tier REMIC, the Lower-Tier REMIC, the Loan REMICs or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; and to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of each Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Trustee and the
Paying Agent with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing
of, payments which are required to be distributed on any Certificate
without the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any
Class the Holders of which are required to consent to any such
amendment, without the consent of the Holders of all Certificates of
such Class then outstanding;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent
of each Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders or
written confirmation that such amendment would not result in the
downgrading, qualification or withdrawal of ratings assigned to any
Class of Certificates by any Rating Agency, amend the Servicing
Standard.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause any of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan
REMICs to fail to qualify as a REMIC or result in the imposition of a tax on any
of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMICs or cause the
Grantor Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust Fund is
reduced to less than 1% of the aggregate Cut-off Date Principal Balance of all
the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: December 10, 2002
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS F CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
CERTIFICATE BALANCE OF
DEFINITIVE CERTIFICATES
EXCHANGED OR TRANSFERRED
FOR, OR ISSUED IN EXCHANGE
FOR OR UPON TRANSFER OF, AN REMAINING CERTIFICATE
INTEREST IN THIS BALANCE OF BOOK-ENTRY NOTATION
DATE BOOK-ENTRY CERTIFICATE CERTIFICATE MADE BY
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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 Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
----------------------------------------
Dated:_________________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-10
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2002-C2, CLASS G
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, (D) IN AN OFFSHORE TRANSACTION MEETING
THE REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES
ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.
THIS CLASS G CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.]10
THE PASS-THROUGH RATE ON THE CLASS G APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL
CERTIFICATES WILL BE EQUAL TO THE BALANCE OF THE MORTGAGE LOANS AFTER
WEIGHTED AVERAGE NET MORTGAGE RATE FOR DEDUCTING PAYMENTS DUE AND PREPAYMENTS
ANY DISTRIBUTION DATE AS SET FORTH IN RECEIVED ON OR BEFORE CUT-OFF DATE:
THE POOLING AND SERVICING AGREEMENT $1,051,299,658
DENOMINATION: $12,892,000 SERVICER: WACHOVIA BANK, NATIONAL
ASSOCIATION
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF DECEMBER 1, 2002 SPECIAL SERVICER: ARCAP SPECIAL
SERVICING, INC.
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS TRUSTEE: XXXXX FARGO BANK MINNESOTA, N.A.
DEFINED HEREIN)
PAYING AGENT: LASALLE BANK NATIONAL
CLOSING DATE: DECEMBER 10, 2002 ASSOCIATION
FIRST DISTRIBUTION DATE: CUSIP NO.: 00000XXX0 (2) 00000XXX0 (3)
JANUARY 13, 2003 X00000XX0 (1)
APPROXIMATE AGGREGATE ISIN NO.: US46625MPV53 (2) US46625MQK89 (3)
CERTIFICATE BALANCE USU48138GE21 (1)
OF THE CLASS G CERTIFICATES
AS OF THE CLOSING DATE: $12,892,000 COMMON CODE NO.: 015952920 (0) 000000000 (1)
CERTIFICATE NO.: G-1
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1 For Book-Entry Regulation S Certificates Only.
1 For Book-Entry Regulation S Certificates Only.
2 For Book-Entry Rule 144A Only.
3 For Institutional Accredited Investors Only.
CLASS G CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial and multifamily fixed rate balloon and fully amortizing
mortgage loans (the "Mortgage Loans"), all payments on or collections in respect
of the Mortgage Loans due after the Cut-off Date, all REO Properties and
revenues received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Simon Collection Account, the Walgreens Collection Account, the Interest Reserve
Account, the Excess Interest Distribution Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE
UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE
UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class G Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2002 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class G
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2002-C2 and are issued in twenty-three classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class G Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account, the Simon
Collection Account, the Walgreens Collection Account and the Distribution
Accounts will be held on behalf of the Trustee on behalf of the Holders of
Certificates specified in the Pooling and Servicing Agreement and the Servicer
(with respect to the Certificate Account, the Simon Collection Account and the
Walgreens Collection Account) or the Paying Agent (with respect to the
Distribution Accounts) will be authorized to make withdrawals therefrom. Amounts
on deposit in such accounts may be invested in Permitted Investments. Interest
or other income earned on funds in the Certificate Account will be paid to the
Servicer as set forth in the Pooling and Servicing Agreement. As provided in the
Pooling and Servicing Agreement, withdrawals from the Certificate Account shall
be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(f) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(f) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Non-Registered Certificates (other than the Residual Certificates) will be
issued in book-entry form through the facilities of DTC in Denominations of
$250,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Paying Agent and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Servicer, the Special
Servicer, the Paying Agent, the Certificate Registrar nor any such agents shall
be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer, the Paying Agent and the
Trustee, without the consent of any of the Certificateholders, to cure any
ambiguity, to correct or supplement any provisions therein that may be
inconsistent with any other provisions therein or the Prospectus or the
Prospectus Supplement or to correct any error; to maintain the rating or ratings
assigned to each Class of Certificates by each Rating Agency; to modify,
eliminate or add to any provisions to such extent as is necessary to maintain
the qualification of any of the Upper-Tier REMIC, the Lower-Tier REMIC or the
Loan REMICs as a REMIC, or the Grantor Trust as a grantor trust at all times any
Certificate is outstanding or to avoid or minimize the imposition of any tax,
provided, however, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and such action is necessary or desirable to avoid such tax;
to change the timing and/or nature of deposits into the Certificate Account, the
Simon Collection Account, the Walgreens Collection Account or Distribution
Accounts or REO Account or to change the name in which the Certificate Account,
the Simon Collection Account or the Walgreens Collection Account is maintained,
provided, however, that the P&I Advance Date shall not be later than the related
Distribution Date, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating by any Rating Agency, as
evidenced by a letter from such Rating Agency to such effect; to modify,
eliminate or add to the provisions of Section 5.02(c) of the Pooling and
Servicing Agreement or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
and such change shall not, as evidenced by an Opinion of Counsel, cause any of
the Upper-Tier REMIC, the Lower-Tier REMIC, the Loan REMICs or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; and to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of each Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Trustee and the
Paying Agent with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing
of, payments which are required to be distributed on any Certificate
without the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any
Class the Holders of which are required to consent to any such
amendment, without the consent of the Holders of all Certificates of
such Class then outstanding;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent
of each Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders or
written confirmation that such amendment would not result in the
downgrading, qualification or withdrawal of ratings assigned to any
Class of Certificates by any Rating Agency, amend the Servicing
Standard.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause any of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan
REMICs to fail to qualify as a REMIC or result in the imposition of a tax on any
of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMICs or cause the
Grantor Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust Fund is
reduced to less than 1% of the aggregate Cut-off Date Principal Balance of all
the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: December 10, 2002
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS G CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
CERTIFICATE BALANCE OF
DEFINITIVE CERTIFICATES
EXCHANGED OR TRANSFERRED
FOR, OR ISSUED IN EXCHANGE
FOR OR UPON TRANSFER OF, AN REMAINING CERTIFICATE
INTEREST IN THIS BALANCE OF BOOK-ENTRY NOTATION
DATE BOOK-ENTRY CERTIFICATE CERTIFICATE MADE BY
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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 Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
----------------------------------------
Dated:_________________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-11
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2002-C2, CLASS H
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, (D) IN AN OFFSHORE TRANSACTION MEETING
THE REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES
ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.
THIS CLASS H CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS DEFINED IN SECTION
3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER SECTION 410(D) OF THE
CODE SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A
MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH
A "PLAN") OR (II) A PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH
PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON
OF INVESTMENT IN THE ENTITY BY SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF
LABOR REGULATION SS. 2510.3-101), OTHER THAN AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND
HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT
FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER
PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS
PRESENTED FOR REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (I) OR
(II) ABOVE, AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE
CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND
HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT
RESULT IN THE ASSETS OF THE TRUST FUND BEING DEEMED TO BE "PLAN ASSETS" AND
SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA, THE PROHIBITED
TRANSACTION PROVISIONS OF THE CODE OR THE PROVISIONS OF ANY SIMILAR LAW, WILL
NOT CONSTITUTE OR RESULT IN A "PROHIBITED TRANSACTION" WITHIN THE MEANING OF
ERISA, SECTION 4975 OF THE CODE OR ANY SIMILAR LAW, AND WILL NOT SUBJECT THE
TRUSTEE, THE CERTIFICATE REGISTRAR, THE SERVICER, THE SPECIAL SERVICER, THE
PLACEMENT AGENT OR THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY (INCLUDING
OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR ANY SUCH
SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE THAT IS A
BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON
DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.] 1
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1 For Book-Entry Regulation S Certificates Only.
PASS-THROUGH RATE: 5.0770% SUBJECT APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL
TO A MAXIMUM PASS-THROUGH RATE AS SET BALANCE OF THE MORTGAGE LOANS AFTER
FORTH IN THE POOLING AND SERVICING DEDUCTING PAYMENTS DUE AND PREPAYMENTS
AGREEMENT RECEIVED ON OR BEFORE CUT-OFF DATE:
$1,051,299,658
DENOMINATION: $15,471,000
SERVICER: WACHOVIA BANK, NATIONAL
DATE OF POOLING AND SERVICING ASSOCIATION
AGREEMENT: AS OF DECEMBER 1, 2002
SPECIAL SERVICER: ARCAP SPECIAL
CUT-OFF DATE: AS SET FORTH IN THE SERVICING, INC.
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN) TRUSTEE: XXXXX FARGO BANK MINNESOTA, N.A.
CLOSING DATE: DECEMBER 10, 2002 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
FIRST DISTRIBUTION DATE:
JANUARY 13, 2003 CUSIP NO.: 00000XXX0 (2)00000XXX0 (3)
X00000XX0 (1)
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE ISIN NO.: US46625MPW37 (2) US46625MQL62
OF THE CLASS H CERTIFICATES (3) USU48138GF95 (1)
AS OF THE CLOSING DATE: $15,471,000
COMMON CODE NO.: 015953071 (0) 000000000
(1)
CERTIFICATE NO.: H-1
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1 For Book-Entry Regulation S Certificates Only.
2 For Book-Entry Rule 144A Only.
3 For Institutional Accredited Investors Only.
CLASS H CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial and multifamily fixed rate balloon and fully amortizing
mortgage loans (the "Mortgage Loans"), all payments on or collections in respect
of the Mortgage Loans due after the Cut-off Date, all REO Properties and
revenues received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Simon Collection Account, the Walgreens Collection Account, the Interest Reserve
Account, the Excess Interest Distribution Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE
UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE
UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class H Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2002 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class H
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2002-C2 and are issued in twenty-three classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class H Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account, the Simon
Collection Account, the Walgreens Collection Account and the Distribution
Accounts will be held on behalf of the Trustee on behalf of the Holders of
Certificates specified in the Pooling and Servicing Agreement and the Servicer
(with respect to the Certificate Account, the Simon Collection Account and the
Walgreens Collection Account) or the Paying Agent (with respect to the
Distribution Accounts) will be authorized to make withdrawals therefrom. Amounts
on deposit in such accounts may be invested in Permitted Investments. Interest
or other income earned on funds in the Certificate Account will be paid to the
Servicer as set forth in the Pooling and Servicing Agreement. As provided in the
Pooling and Servicing Agreement, withdrawals from the Certificate Account shall
be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(f) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(f) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Non-Registered Certificates (other than the Residual Certificates) will be
issued in book-entry form through the facilities of DTC in Denominations of
$250,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Paying Agent and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Servicer, the Special
Servicer, the Paying Agent, the Certificate Registrar nor any such agents shall
be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer, the Paying Agent and the
Trustee, without the consent of any of the Certificateholders, to cure any
ambiguity, to correct or supplement any provisions therein that may be
inconsistent with any other provisions therein or the Prospectus or the
Prospectus Supplement or to correct any error; to maintain the rating or ratings
assigned to each Class of Certificates by each Rating Agency; to modify,
eliminate or add to any provisions to such extent as is necessary to maintain
the qualification of any of the Upper-Tier REMIC, the Lower-Tier REMIC or the
Loan REMICs as a REMIC, or the Grantor Trust as a grantor trust at all times any
Certificate is outstanding or to avoid or minimize the imposition of any tax,
provided, however, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and such action is necessary or desirable to avoid such tax;
to change the timing and/or nature of deposits into the Certificate Account, the
Simon Collection Account, the Walgreens Collection Account or Distribution
Accounts or REO Account or to change the name in which the Certificate Account,
the Simon Collection Account and the Walgreens Collection Account is maintained,
provided, however, that the P&I Advance Date shall not be later than the related
Distribution Date, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating by any Rating Agency, as
evidenced by a letter from such Rating Agency to such effect; to modify,
eliminate or add to the provisions of Section 5.02(c) of the Pooling and
Servicing Agreement or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
and such change shall not, as evidenced by an Opinion of Counsel, cause any of
the Upper-Tier REMIC, the Lower-Tier REMIC, the Loan REMICs or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; and to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of each Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Trustee and the
Paying Agent with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing
of, payments which are required to be distributed on any Certificate
without the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any
Class the Holders of which are required to consent to any such
amendment, without the consent of the Holders of all Certificates of
such Class then outstanding;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent
of each Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders or
written confirmation that such amendment would not result in the
downgrading, qualification or withdrawal of ratings assigned to any
Class of Certificates by any Rating Agency, amend the Servicing
Standard.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause any of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan
REMICs to fail to qualify as a REMIC or result in the imposition of a tax on any
of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMICs or cause the
Grantor Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust Fund is
reduced to less than 1% of the aggregate Cut-off Date Principal Balance of all
the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: December 10, 2002
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS H CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
CERTIFICATE BALANCE OF
DEFINITIVE CERTIFICATES
EXCHANGED OR TRANSFERRED
FOR, OR ISSUED IN EXCHANGE
FOR OR UPON TRANSFER OF, AN REMAINING CERTIFICATE
INTEREST IN THIS BALANCE OF BOOK-ENTRY NOTATION
DATE BOOK-ENTRY CERTIFICATE CERTIFICATE MADE BY
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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 Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
----------------------------------------
Dated:_________________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-12
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2002-C2, CLASS J
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, (D) IN AN OFFSHORE TRANSACTION MEETING
THE REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES
ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.
THIS CLASS J CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS DEFINED IN SECTION
3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER SECTION 410(D) OF THE
CODE SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A
MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH
A "PLAN") OR (II) A PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH
PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON
OF INVESTMENT IN THE ENTITY BY SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF
LABOR REGULATION SS. 2510.3-101), OTHER THAN AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND
HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT
FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER
PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS
PRESENTED FOR REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (I) OR
(II) ABOVE, AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE
CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND
HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT
RESULT IN THE ASSETS OF THE TRUST FUND BEING DEEMED TO BE "PLAN ASSETS" AND
SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA, THE PROHIBITED
TRANSACTION PROVISIONS OF THE CODE OR THE PROVISIONS OF ANY SIMILAR LAW, WILL
NOT CONSTITUTE OR RESULT IN A "PROHIBITED TRANSACTION" WITHIN THE MEANING OF
ERISA, SECTION 4975 OF THE CODE OR ANY SIMILAR LAW, AND WILL NOT SUBJECT THE
TRUSTEE, THE CERTIFICATE REGISTRAR, THE SERVICER, THE SPECIAL SERVICER, THE
PLACEMENT AGENT OR THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY (INCLUDING
OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR ANY SUCH
SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE THAT IS A
BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON
DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.] 1
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1 For Book-Entry Regulation S Certificates Only.
PASS-THROUGH RATE: 5.0770% SUBJECT TO APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL
A MAXIMUM PASS-THROUGH RATE AS SET BALANCE OF THE MORTGAGE LOANS AFTER
FORTH IN THE POOLING AND SERVICING DEDUCTING PAYMENTS DUE AND PREPAYMENTS
AGREEMENT RECEIVED ON OR BEFORE CUT-OFF DATE:
$1,051,299,658
DENOMINATION: $11,603,000
SERVICER: WACHOVIA BANK, NATIONAL
DATE OF POOLING AND SERVICING ASSOCIATION
AGREEMENT: AS OF DECEMBER 1, 2002
SPECIAL SERVICER: ARCAP SPECIAL
CUT-OFF DATE: AS SET FORTH IN THE SERVICING, INC.
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN) TRUSTEE: XXXXX FARGO BANK MINNESOTA, N.A.
CLOSING DATE: DECEMBER 10, 2002 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
FIRST DISTRIBUTION DATE:
JANUARY 13, 2003 CUSIP NO.: 00000XXX0 (2) 00000XXX0 (3)
X00000XX0 (1)
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE ISIN NO.: US46625MPX10 (2) US46625MQM46
OF THE CLASS J CERTIFICATES (3) USU48138GG78 (1)
AS OF THE CLOSING DATE: $11,603,000
COMMON CODE NO.: 015953136 (0) 000000000
(1)
CERTIFICATE NO.: J-1
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1 For Book-Entry Regulation S Certificates Only.
2 For Book-Entry Rule 144A Only.
3 For Institutional Accredited Investors Only.
CLASS J CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial and multifamily fixed rate balloon and fully amortizing
mortgage loans (the "Mortgage Loans"), all payments on or collections in respect
of the Mortgage Loans due after the Cut-off Date, all REO Properties and
revenues received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Simon Collection Account, the Walgreens Collection Account, the Interest Reserve
Account, the Excess Interest Distribution Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE
UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE
UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class J Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2002 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class J
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2002-C2 and are issued in twenty-three classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class J Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account, the Simon
Collection Account, the Walgreens Collection Account and the Distribution
Accounts will be held on behalf of the Trustee on behalf of the Holders of
Certificates specified in the Pooling and Servicing Agreement and the Servicer
(with respect to the Certificate Account, the Simon Collection Account and the
Walgreens Collection Account) or the Paying Agent (with respect to the
Distribution Accounts) will be authorized to make withdrawals therefrom. Amounts
on deposit in such accounts may be invested in Permitted Investments. Interest
or other income earned on funds in the Certificate Account will be paid to the
Servicer as set forth in the Pooling and Servicing Agreement. As provided in the
Pooling and Servicing Agreement, withdrawals from the Certificate Account shall
be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(f) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(f) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Non-Registered Certificates (other than the Residual Certificates) will be
issued in book-entry form through the facilities of DTC in Denominations of
$250,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Paying Agent and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Servicer, the Special
Servicer, the Paying Agent, the Certificate Registrar nor any such agents shall
be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer, the Paying Agent and the
Trustee, without the consent of any of the Certificateholders, to cure any
ambiguity, to correct or supplement any provisions therein that may be
inconsistent with any other provisions therein or the Prospectus or the
Prospectus Supplement or to correct any error; to maintain the rating or ratings
assigned to each Class of Certificates by each Rating Agency; to modify,
eliminate or add to any provisions to such extent as is necessary to maintain
the qualification of any of the Upper-Tier REMIC, the Lower-Tier REMIC or the
Loan REMICs as a REMIC, or the Grantor Trust as a grantor trust at all times any
Certificate is outstanding or to avoid or minimize the imposition of any tax,
provided, however, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and such action is necessary or desirable to avoid such tax;
to change the timing and/or nature of deposits into the Certificate Account, the
Simon Collection Account, the Walgreens Collection Account or Distribution
Accounts or REO Account or to change the name in which the Certificate Account,
the Simon Collection Account or the Walgreens Collection Account is maintained,
provided, however, that the P&I Advance Date shall not be later than the related
Distribution Date, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating by any Rating Agency, as
evidenced by a letter from such Rating Agency to such effect; to modify,
eliminate or add to the provisions of Section 5.02(c) of the Pooling and
Servicing Agreement or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
and such change shall not, as evidenced by an Opinion of Counsel, cause any of
the Upper-Tier REMIC, the Lower-Tier REMIC, the Loan REMICs or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; and to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of each Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Trustee, and the
Paying Agent with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing
of, payments which are required to be distributed on any Certificate
without the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any
Class the Holders of which are required to consent to any such
amendment, without the consent of the Holders of all Certificates of
such Class then outstanding;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent
of each Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders or
written confirmation that such amendment would not result in the
downgrading, qualification or withdrawal of ratings assigned to any
Class of Certificates by any Rating Agency, amend the Servicing
Standard.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause any of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan
REMICs to fail to qualify as a REMIC or result in the imposition of a tax on any
of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMICs or cause the
Grantor Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust Fund is
reduced to less than 1% of the aggregate Cut-off Date Principal Balance of all
the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: December 10, 2002
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS J CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
CERTIFICATE BALANCE OF
DEFINITIVE CERTIFICATES
EXCHANGED OR TRANSFERRED
FOR, OR ISSUED IN EXCHANGE
FOR OR UPON TRANSFER OF, AN REMAINING CERTIFICATE
INTEREST IN THIS BALANCE OF BOOK-ENTRY NOTATION
DATE BOOK-ENTRY CERTIFICATE CERTIFICATE MADE BY
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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 Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
----------------------------------------
Dated:_________________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-13
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2002-C2, CLASS K
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, (D) IN AN OFFSHORE TRANSACTION MEETING
THE REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES
ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.
THIS CLASS K CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS DEFINED IN SECTION
3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER SECTION 410(D) OF THE
CODE SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A
MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH
A "PLAN") OR (II) A PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH
PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON
OF INVESTMENT IN THE ENTITY BY SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF
LABOR REGULATION SS. 2510.3-101), OTHER THAN AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND
HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT
FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER
PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS
PRESENTED FOR REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (I) OR
(II) ABOVE, AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE
CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND
HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT
RESULT IN THE ASSETS OF THE TRUST FUND BEING DEEMED TO BE "PLAN ASSETS" AND
SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA, THE PROHIBITED
TRANSACTION PROVISIONS OF THE CODE OR THE PROVISIONS OF ANY SIMILAR LAW, WILL
NOT CONSTITUTE OR RESULT IN A "PROHIBITED TRANSACTION" WITHIN THE MEANING OF
ERISA, SECTION 4975 OF THE CODE OR ANY SIMILAR LAW, AND WILL NOT SUBJECT THE
TRUSTEE, THE CERTIFICATE REGISTRAR, THE SERVICER, THE SPECIAL SERVICER, THE
PLACEMENT AGENT OR THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY (INCLUDING
OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR ANY SUCH
SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE THAT IS A
BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON
DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.] 1
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1 For Book-Entry Regulation S Certificates Only.
PASS-THROUGH RATE: 5.0770% SUBJECT TO A APPROXIMATE AGGREGATE SCHEDULED
MAXIMUM PASS-THROUGH RATE AS SET FORTH PRINCIPAL BALANCE OF THE MORTGAGE LOANS
IN THE POOLING AND SERVICING AGREEMENT AFTER DEDUCTING PAYMENTS DUE AND
PREPAYMENTS RECEIVED ON OR BEFORE
DENOMINATION: $3,868,000 CUT-OFF DATE: $1,051,299,658
DATE OF POOLING AND SERVICING SERVICER: WACHOVIA BANK, NATIONAL
AGREEMENT: AS OF DECEMBER 1, 2002 ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE SPECIAL SERVICER: ARCAP SPECIAL
POOLING AND SERVICING AGREEMENT (AS SERVICING, INC.
DEFINED HEREIN)
TRUSTEE: XXXXX FARGO BANK MINNESOTA,
CLOSING DATE: DECEMBER 10, 2002 N.A.
FIRST DISTRIBUTION DATE: PAYING AGENT: LASALLE BANK NATIONAL
JANUARY 13, 2003 ASSOCIATION
APPROXIMATE AGGREGATE CUSIP NO.: 00000XXX0 (2) 00000XXX0 (3)
CERTIFICATE BALANCE U4813GH5 (1)
OF THE CLASS K CERTIFICATES
AS OF THE CLOSING DATE: ISIN NO.: US46625MPY92 (2) US46625MQN29
$3,868,000 (3) USU48138GH51 (1)
COMMON CODE NO.:
015953217 (0) 000000000 (1)
CERTIFICATE NO.: K-1
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1 For Book-Entry Regulation S Certificates Only.
2 For Book-Entry Rule 144A Only.
3 For Institutional Accredited Investors Only.
CLASS K CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial and multifamily fixed rate balloon and fully amortizing
mortgage loans (the "Mortgage Loans"), all payments on or collections in respect
of the Mortgage Loans due after the Cut-off Date, all REO Properties and
revenues received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Simon Collection Account, the Walgreens Collection Account, the Interest Reserve
Account, the Excess Interest Distribution Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class K Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2002 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class K
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2002-C2 and are issued in twenty-three classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class K Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account, the Simon
Collection Account, the Walgreens Collection Account and the Distribution
Accounts will be held on behalf of the Trustee on behalf of the Holders of
Certificates specified in the Pooling and Servicing Agreement and the Servicer
(with respect to the Certificate Account, the Simon Collection Account and the
Walgreens Collection Account) or the Paying Agent (with respect to the
Distribution Accounts) will be authorized to make withdrawals therefrom. Amounts
on deposit in such accounts may be invested in Permitted Investments. Interest
or other income earned on funds in the Certificate Account will be paid to the
Servicer as set forth in the Pooling and Servicing Agreement. As provided in the
Pooling and Servicing Agreement, withdrawals from the Certificate Account shall
be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(f) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(f) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Non-Registered Certificates (other than the Residual Certificates) will be
issued in book-entry form through the facilities of DTC in Denominations of
$250,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Paying Agent and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Servicer, the Special
Servicer, the Paying Agent, the Certificate Registrar nor any such agents shall
be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer, the Paying Agent and the
Trustee, without the consent of any of the Certificateholders, to cure any
ambiguity, to correct or supplement any provisions therein that may be
inconsistent with any other provisions therein or the Prospectus or the
Prospectus Supplement or to correct any error; to maintain the rating or ratings
assigned to each Class of Certificates by each Rating Agency; to modify,
eliminate or add to any provisions to such extent as is necessary to maintain
the qualification of any of the Upper-Tier REMIC, the Lower-Tier REMIC or the
Loan REMICs as a REMIC, or the Grantor Trust as a grantor trust at all times any
Certificate is outstanding or to avoid or minimize the imposition of any tax,
provided, however, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and such action is necessary or desirable to avoid such tax;
to change the timing and/or nature of deposits into the Certificate Account, the
Simon Collection Account, the Walgreens Collection Account or Distribution
Accounts or REO Account or to change the name in which the Certificate Account,
Simon Collection Account or the Walgreens Collection Account is maintained,
provided, however, that the P&I Advance Date shall not be later than the related
Distribution Date, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating by any Rating Agency, as
evidenced by a letter from such Rating Agency to such effect; to modify,
eliminate or add to the provisions of Section 5.02(c) of the Pooling and
Servicing Agreement or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
and such change shall not, as evidenced by an Opinion of Counsel, cause any of
the Upper-Tier REMIC, the Lower-Tier REMIC, the Loan REMICs or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; and to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of each Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Trustee and the
Paying Agent with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing
of, payments which are required to be distributed on any Certificate
without the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any
Class the Holders of which are required to consent to any such
amendment, without the consent of the Holders of all Certificates of
such Class then outstanding;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent
of each Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders or
written confirmation that such amendment would not result in the
downgrading, qualification or withdrawal of ratings assigned to any
Class of Certificates by any Rating Agency, amend the Servicing
Standard.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause any of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan
REMICs to fail to qualify as a REMIC or result in the imposition of a tax on any
of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMICs or cause the
Grantor Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust Fund is
reduced to less than 1% of the aggregate Cut-off Date Principal Balance of all
the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: December 10, 2002
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS K CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
CERTIFICATE BALANCE OF
DEFINITIVE CERTIFICATES
EXCHANGED OR TRANSFERRED
FOR, OR ISSUED IN EXCHANGE
FOR OR UPON TRANSFER OF, AN REMAINING CERTIFICATE
INTEREST IN THIS BALANCE OF BOOK-ENTRY NOTATION
DATE BOOK-ENTRY CERTIFICATE CERTIFICATE MADE BY
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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 Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
----------------------------------------
Dated:_________________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-14
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2002-C2, CLASS L
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, (D) IN AN OFFSHORE TRANSACTION MEETING
THE REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES
ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.
THIS CLASS L CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS DEFINED IN SECTION
3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER SECTION 410(D) OF THE
CODE SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A
MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH
A "PLAN") OR (II) A PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH
PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON
OF INVESTMENT IN THE ENTITY BY SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF
LABOR REGULATION SS. 2510.3-101), OTHER THAN AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND
HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT
FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER
PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS
PRESENTED FOR REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (I) OR
(II) ABOVE, AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE
CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND
HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT
RESULT IN THE ASSETS OF THE TRUST FUND BEING DEEMED TO BE "PLAN ASSETS" AND
SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA, THE PROHIBITED
TRANSACTION PROVISIONS OF THE CODE OR THE PROVISIONS OF ANY SIMILAR LAW, WILL
NOT CONSTITUTE OR RESULT IN A "PROHIBITED TRANSACTION" WITHIN THE MEANING OF
ERISA, SECTION 4975 OF THE CODE OR ANY SIMILAR LAW, AND WILL NOT SUBJECT THE
TRUSTEE, THE CERTIFICATE REGISTRAR, THE SERVICER, THE SPECIAL SERVICER, THE
PLACEMENT AGENT OR THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY (INCLUDING
OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR ANY SUCH
SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE THAT IS A
BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON
DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.] 1
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1 For Book-Entry Regulation S Certificates Only.
PASS-THROUGH RATE: 5.0770% SUBJECT TO A APPROXIMATE AGGREGATE SCHEDULED
MAXIMUM PASS-THROUGH RATE AS SET FORTH PRINCIPAL BALANCE OF THE MORTGAGE LOANS
IN THE POOLING AND SERVICING AGREEMENT AFTER DEDUCTING PAYMENTS DUE AND
PREPAYMENTS RECEIVED ON OR BEFORE
DENOMINATION: $7,736,000 CUT-OFF DATE: $1,051,299,658
DATE OF POOLING AND SERVICING SERVICER: WACHOVIA BANK, NATIONAL
AGREEMENT: AS OF DECEMBER 1, 2002 ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE SPECIAL SERVICER: ARCAP SPECIAL
POOLING AND SERVICING AGREEMENT (AS SERVICING, INC.
DEFINED HEREIN)
TRUSTEE: XXXXX FARGO BANK MINNESOTA,
CLOSING DATE: DECEMBER 10, 2002 N.A.
FIRST DISTRIBUTION DATE: PAYING AGENT: LASALLE BANK NATIONAL
JANUARY 13, 2003 ASSOCIATION
APPROXIMATE AGGREGATE CUSIP NO.: 00000XXX0 (2) 00000XXX0 (3)
CERTIFICATE BALANCE X00000XX0 (1)
OF THE CLASS L CERTIFICATES
AS OF THE CLOSING DATE: $7,736,000 ISIN NO.: US46625MPZ67 (2) US46625MQP76
(3) USU48138GJ18 (1)
COMMON CODE NO.:
015954442 (0) 000000000 (1)
CERTIFICATE NO.: L-1
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1 For Book-Entry Regulation S Certificates Only.
2 For Book-Entry Rule 144A Only.
3 For Institutional Accredited Investors Only.
CLASS L CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial and multifamily fixed rate balloon and fully amortizing
mortgage loans (the "Mortgage Loans"), all payments on or collections in respect
of the Mortgage Loans due after the Cut-off Date, all REO Properties and
revenues received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Simon Collection Account, the Walgreens Collection Account, the Interest Reserve
Account the Excess Interest Distribution Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE
UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE
UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class L Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2002 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class L
Certificates. The Certificates are designated as the X.X. XXXXXX XXXXX
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2002-C2 and are issued in twenty-three classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class L Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account, the Simon
Collection Account, the Walgreens Collection Account and the Distribution
Accounts will be held on behalf of the Trustee on behalf of the Holders of
Certificates specified in the Pooling and Servicing Agreement and the Servicer
(with respect to the Certificate Account, the Simon Collection Account and the
Walgreens Collection Account) or the Paying Agent (with respect to the
Distribution Accounts) will be authorized to make withdrawals therefrom. Amounts
on deposit in such accounts may be invested in Permitted Investments. Interest
or other income earned on funds in the Certificate Account will be paid to the
Servicer as set forth in the Pooling and Servicing Agreement. As provided in the
Pooling and Servicing Agreement, withdrawals from the Certificate Account shall
be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(f) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(f) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Non-Registered Certificates (other than the Residual Certificates) will be
issued in book-entry form through the facilities of DTC in Denominations of
$250,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Paying Agent and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Servicer, the Paying
Agent, the Special Servicer, the Certificate Registrar nor any such agents shall
be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer, the Paying Agent and the
Trustee, without the consent of any of the Certificateholders, to cure any
ambiguity, to correct or supplement any provisions therein that may be
inconsistent with any other provisions therein or the Prospectus or the
Prospectus Supplement or to correct any error; to maintain the rating or ratings
assigned to each Class of Certificates by each Rating Agency; to modify,
eliminate or add to any provisions to such extent as is necessary to maintain
the qualification of any of the Upper-Tier REMIC, the Lower-Tier REMIC or the
Loan REMICs as a REMIC, or the Grantor Trust as a grantor trust at all times any
Certificate is outstanding or to avoid or minimize the imposition of any tax,
provided, however, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and such action is necessary or desirable to avoid such tax;
to change the timing and/or nature of deposits into the Certificate Account, the
Simon Collection Account, the Walgreens Collection Account or Distribution
Accounts or REO Account or to change the name in which the Certificate Account,
Simon Collection Account or the Walgreens Collection Account is maintained,
provided, however, that the P&I Advance Date shall not be later than the related
Distribution Date, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating by any Rating Agency, as
evidenced by a letter from such Rating Agency to such effect; to modify,
eliminate or add to the provisions of Section 5.02(c) of the Pooling and
Servicing Agreement or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
and such change shall not, as evidenced by an Opinion of Counsel, cause any of
the Upper-Tier REMIC, the Lower-Tier REMIC, the Loan REMICs or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; and to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of each Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Trustee and the
Paying Agent with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing
of, payments which are required to be distributed on any Certificate
without the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any
Class the Holders of which are required to consent to any such
amendment, without the consent of the Holders of all Certificates of
such Class then outstanding;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent
of each Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders or
written confirmation that such amendment would not result in the
downgrading, qualification or withdrawal of ratings assigned to any
Class of Certificates by any Rating Agency, amend the Servicing
Standard.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause any of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan
REMICs to fail to qualify as a REMIC or result in the imposition of a tax on any
of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMICs or cause the
Grantor Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust Fund is
reduced to less than 1% of the aggregate Cut-off Date Principal Balance of all
the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: December 10, 2002
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS L CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
CERTIFICATE BALANCE OF
DEFINITIVE CERTIFICATES
EXCHANGED OR TRANSFERRED
FOR, OR ISSUED IN EXCHANGE
FOR OR UPON TRANSFER OF, AN REMAINING CERTIFICATE
INTEREST IN THIS BALANCE OF BOOK-ENTRY NOTATION
DATE BOOK-ENTRY CERTIFICATE CERTIFICATE MADE BY
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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 Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
----------------------------------------
Dated:_________________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-15
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2002-C2, CLASS M
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, (D) IN AN OFFSHORE TRANSACTION MEETING
THE REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES
ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.
THIS CLASS M CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS DEFINED IN SECTION
3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER SECTION 410(D) OF THE
CODE SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A
MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH
A "PLAN") OR (II) A PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH
PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON
OF INVESTMENT IN THE ENTITY BY SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF
LABOR REGULATION SS. 2510.3-101), OTHER THAN AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND
HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT
FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER
PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS
PRESENTED FOR REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (I) OR
(II) ABOVE, AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE
CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND
HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT
RESULT IN THE ASSETS OF THE TRUST FUND BEING DEEMED TO BE "PLAN ASSETS" AND
SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA, THE PROHIBITED
TRANSACTION PROVISIONS OF THE CODE OR THE PROVISIONS OF ANY SIMILAR LAW, WILL
NOT CONSTITUTE OR RESULT IN A "PROHIBITED TRANSACTION" WITHIN THE MEANING OF
ERISA, SECTION 4975 OF THE CODE OR ANY SIMILAR LAW, AND WILL NOT SUBJECT THE
TRUSTEE, THE CERTIFICATE REGISTRAR, THE SERVICER, THE SPECIAL SERVICER, THE
PLACEMENT AGENT OR THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY (INCLUDING
OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR ANY SUCH
SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE THAT IS A
BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON
DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.] 1
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1 For Book-Entry Regulation S Certificates Only.
PASS-THROUGH RATE: 5.0770% SUBJECT APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL
TO A MAXIMUM PASS-THROUGH RATE AS SET BALANCE OF THE MORTGAGE LOANS AFTER
FORTH IN THE POOLING AND SERVICING DEDUCTING PAYMENTS DUE AND PREPAYMENTS
AGREEMENT RECEIVED ON OR BEFORE CUT-OFF DATE:
$1,051,299,658
DENOMINATION: $3,867,000
SERVICER: WACHOVIA BANK, NATIONAL
DATE OF POOLING AND SERVICING ASSOCIATION
AGREEMENT: AS OF DECEMBER 1, 2002
SPECIAL SERVICER: ARCAP SPECIAL
CUT-OFF DATE: AS SET FORTH IN THE SERVICING, INC.
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN) TRUSTEE: XXXXX FARGO BANK MINNESOTA,
N.A.
CLOSING DATE: DECEMBER 10, 2002
PAYING AGENT: LASALLE BANK NATIONAL
FIRST DISTRIBUTION DATE: ASSOCIATION
JANUARY 13, 2003
CUSIP NO.: 00000XXX0 (2) 00000XXX0 (3)
APPROXIMATE AGGREGATE X00000XX0 (1)
CERTIFICATE BALANCE
OF THE CLASS M CERTIFICATES ISIN NO.: US46625MQA08 (2) US46625MQQ59
AS OF THE CLOSING DATE: $3,867,000 (3) USU48138GK80 (1)
COMMON CODE NO.: 015955066 (0) 000000000
(1)
CERTIFICATE NO.: M-1
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1 For Book-Entry Regulation S Certificates Only.
2 For Book-Entry Rule 144A Only.
3 For Institutional Accredited Investors Only.
CLASS M CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial and multifamily fixed rate balloon and fully amortizing
mortgage loans (the "Mortgage Loans"), all payments on or collections in respect
of the Mortgage Loans due after the Cut-off Date, all REO Properties and
revenues received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Simon Collection Account, the Walgreens Collection Account, the Interest Reserve
Account, the Excess Interest Distribution Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE
UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE
UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class M Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2002 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer and
the Special Servicer. A summary of certain of the pertinent provisions of the
Pooling and Servicing Agreement is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein shall have the meanings
assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class M
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2002-C2 and are issued in twenty-three classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class M Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account, the Simon
Collection Account, the Walgreens Collection Account and the Distribution
Accounts will be held on behalf of the Trustee on behalf of the Holders of
Certificates specified in the Pooling and Servicing Agreement and the Servicer
(with respect to the Certificate Account, the Simon Collection Account and the
Walgreens Collection Account) or the Paying Agent (with respect to the
Distribution Accounts) will be authorized to make withdrawals therefrom. Amounts
on deposit in such accounts may be invested in Permitted Investments. Interest
or other income earned on funds in the Certificate Account will be paid to the
Servicer as set forth in the Pooling and Servicing Agreement. As provided in the
Pooling and Servicing Agreement, withdrawals from the Certificate Account shall
be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(f) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(f) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Non-Registered Certificates (other than the Residual Certificates) will be
issued in book-entry form through the facilities of DTC in Denominations of
$250,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer , the
Paying Agent and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Servicer, the Special
Servicer, the Paying Agent, the Certificate Registrar nor any such agents shall
be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer, the Paying Agent and the
Trustee, without the consent of any of the Certificateholders, to cure any
ambiguity, to correct or supplement any provisions therein that may be
inconsistent with any other provisions therein or the Prospectus or the
Prospectus Supplement or to correct any error; to maintain the rating or ratings
assigned to each Class of Certificates by each Rating Agency; to modify,
eliminate or add to any provisions to such extent as is necessary to maintain
the qualification of any of the Upper-Tier REMIC, the Lower-Tier REMIC or the
Loan REMICs as a REMIC, or the Grantor Trust as a grantor trust at all times any
Certificate is outstanding or to avoid or minimize the imposition of any tax,
provided, however, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and such action is necessary or desirable to avoid such tax;
to change the timing and/or nature of deposits into the Certificate Account, the
Simon Collection Account, the Walgreens Collection Account or Distribution
Accounts or REO Account or to change the name in which the Certificate Account,
Simon Collection Account or the Walgreens Collection Account is maintained,
provided, however, that the P&I Advance Date shall not be later than the related
Distribution Date, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating by any Rating Agency, as
evidenced by a letter from such Rating Agency to such effect; to modify,
eliminate or add to the provisions of Section 5.02(c) of the Pooling and
Servicing Agreement or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
and such change shall not, as evidenced by an Opinion of Counsel, cause any of
the Upper-Tier REMIC, the Lower-Tier REMIC, the Loan REMICs or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; and to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of each Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Trustee and the
Paying Agent with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing
of, payments which are required to be distributed on any Certificate
without the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any
Class the Holders of which are required to consent to any such
amendment, without the consent of the Holders of all Certificates of
such Class then outstanding;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent
of each Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders or
written confirmation that such amendment would not result in the
downgrading, qualification or withdrawal of ratings assigned to any
Class of Certificates by any Rating Agency, amend the Servicing
Standard.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause any of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan
REMICs to fail to qualify as a REMIC or result in the imposition of a tax on any
of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMICs or cause the
Grantor Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee and each of the other
parties to the Pooling and Servicing Agreement, to purchase all, but not less
than all, of the Mortgage Loans and all property acquired in respect of any
Mortgage Loan remaining in the Trust Fund, and thereby effect termination of the
Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: December 10, 2002
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS M CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
CERTIFICATE BALANCE OF
DEFINITIVE CERTIFICATES
EXCHANGED OR TRANSFERRED
FOR, OR ISSUED IN EXCHANGE
FOR OR UPON TRANSFER OF, AN REMAINING CERTIFICATE
INTEREST IN THIS BALANCE OF BOOK-ENTRY NOTATION
DATE BOOK-ENTRY CERTIFICATE CERTIFICATE MADE BY
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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 Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
----------------------------------------
Dated:_________________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-16
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2002-C2, CLASS N
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, (D) IN AN OFFSHORE TRANSACTION MEETING
THE REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES
ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.
THIS CLASS N CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS DEFINED IN SECTION
3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER SECTION 410(D) OF THE
CODE SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A
MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH
A "PLAN") OR (II) A PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH
PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON
OF INVESTMENT IN THE ENTITY BY SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF
LABOR REGULATION SS. 2510.3-101), OTHER THAN AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND
HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT
FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER
PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS
PRESENTED FOR REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (I) OR
(II) ABOVE, AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE
CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND
HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT
RESULT IN THE ASSETS OF THE TRUST FUND BEING DEEMED TO BE "PLAN ASSETS" AND
SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA, THE PROHIBITED
TRANSACTION PROVISIONS OF THE CODE OR THE PROVISIONS OF ANY SIMILAR LAW, WILL
NOT CONSTITUTE OR RESULT IN A "PROHIBITED TRANSACTION" WITHIN THE MEANING OF
ERISA, SECTION 4975 OF THE CODE OR ANY SIMILAR LAW, AND WILL NOT SUBJECT THE
TRUSTEE, THE CERTIFICATE REGISTRAR, THE SERVICER, THE SPECIAL SERVICER, THE
PLACEMENT AGENT OR THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY (INCLUDING
OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR ANY SUCH
SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE THAT IS A
BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON
DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.] 1
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1 For Book-Entry Regulation S Certificates Only.
PASS-THROUGH RATE: 5.0770% SUBJECT APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL
TO A MAXIMUM PASS-THROUGH RATE AS SET BALANCE OF THE MORTGAGE LOANS AFTER
FORTH IN THE POOLING AND SERVICING DEDUCTING PAYMENTS DUE AND PREPAYMENTS
AGREEMENT RECEIVED ON OR BEFORE CUT-OFF DATE:
$1,051,299,658
DENOMINATION: $5,157,000
SERVICER: WACHOVIA BANK, NATIONAL
DATE OF POOLING AND SERVICING ASSOCIATION
AGREEMENT: AS OF DECEMBER 1, 2002
SPECIAL SERVICER: ARCAP SPECIAL
CUT-OFF DATE: AS SET FORTH IN THE SERVICING, INC.
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN) TRUSTEE: XXXXX FARGO BANK MINNESOTA,
N.A.
CLOSING DATE: DECEMBER 10, 2002
PAYING AGENT: LASALLE BANK NATIONAL
FIRST DISTRIBUTION DATE: ASSOCIATION
JANUARY 13, 2003
CUSIP NO.: 00000XXX0 (2) 00000XXX0 (3)
APPROXIMATE XXXXXXXXX X00000XX0 (1)
CERTIFICATE BALANCE
OF THE CLASS N CERTIFICATES ISIN NO.: US46625MQB80 (2) US46625MQR33
AS OF THE CLOSING DATE: $5,157,000 (3) USU48138GL63 (1)
COMMON CODE NO.: 015955244 (0) 000000000
(1)
CERTIFICATE NO.: N-1
--------
1 For Book-Entry Regulation S Certificates Only.
2 For Book-Entry Rule 144A Only.
3 For Institutional Accredited Investors Only.
CLASS N CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial and multifamily fixed rate balloon and fully amortizing
mortgage loans (the "Mortgage Loans"), all payments on or collections in respect
of the Mortgage Loans due after the Cut-off Date, all REO Properties and
revenues received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Simon Collection Account, the Walgreens Collection Account, the Interest Reserve
Account, the Excess Interest Distribution Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE
UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE
UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class N Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2002 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class N
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2002-C2 and are issued in twenty-three classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class N Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account, the Simon
Collection Account, the Walgreens Collection Account and the Distribution
Accounts will be held on behalf of the Trustee on behalf of the Holders of
Certificates specified in the Pooling and Servicing Agreement and the Servicer
(with respect to the Certificate Account, the Simon Collection Account and the
Walgreens Collection Account) or the Paying Agent (with respect to the
Distribution Accounts) will be authorized to make withdrawals therefrom. Amounts
on deposit in such accounts may be invested in Permitted Investments. Interest
or other income earned on funds in the Certificate Account will be paid to the
Servicer as set forth in the Pooling and Servicing Agreement. As provided in the
Pooling and Servicing Agreement, withdrawals from the Certificate Account shall
be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(f) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(f) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Non-Registered Certificates (other than the Residual Certificates) will be
issued in book-entry form through the facilities of DTC in Denominations of
$250,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Paying Agent and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Servicer, the Paying
Agent, the Special Servicer, the Certificate Registrar nor any such agents shall
be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer, the Paying Agent and the
Trustee, without the consent of any of the Certificateholders, to cure any
ambiguity, to correct or supplement any provisions therein that may be
inconsistent with any other provisions therein or the Prospectus or the
Prospectus Supplement or to correct any error; to maintain the rating or ratings
assigned to each Class of Certificates by each Rating Agency; to modify,
eliminate or add to any provisions to such extent as is necessary to maintain
the qualification of any of the Upper-Tier REMIC, the Lower-Tier REMIC or the
Loan REMICs as a REMIC, or the Grantor Trust as a grantor trust at all times any
Certificate is outstanding or to avoid or minimize the imposition of any tax,
provided, however, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and such action is necessary or desirable to avoid such tax;
to change the timing and/or nature of deposits into the Certificate Account, the
Simon Collection Account, the Walgreens Collection Account or Distribution
Accounts or REO Account or to change the name in which the Certificate Account,
Simon Collection Account or the Walgreens Collection Account is maintained,
provided, however, that the P&I Advance Date shall not be later than the related
Distribution Date, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating by any Rating Agency, as
evidenced by a letter from such Rating Agency to such effect; to modify,
eliminate or add to the provisions of Section 5.02(c) of the Pooling and
Servicing Agreement or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
and such change shall not, as evidenced by an Opinion of Counsel, cause any of
the Upper-Tier REMIC, the Lower-Tier REMIC, the Loan REMICs or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; and to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of each Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Trustee and the
Paying Agent with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing
of, payments which are required to be distributed on any Certificate
without the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any
Class the Holders of which are required to consent to any such
amendment, without the consent of the Holders of all Certificates of
such Class then outstanding;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent
of each Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders or
written confirmation that such amendment would not result in the
downgrading, qualification or withdrawal of ratings assigned to any
Class of Certificates by any Rating Agency, amend the Servicing
Standard.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause any of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan
REMICs to fail to qualify as a REMIC or result in the imposition of a tax on any
of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMICs or cause the
Grantor Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee and each of the other
parties to the Pooling and Servicing Agreement, to purchase all, but not less
than all, of the Mortgage Loans and all property acquired in respect of any
Mortgage Loan remaining in the Trust Fund, and thereby effect termination of the
Trust Fund and early retirement of the then outstanding Certificates, on any
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is reduced to less
than 1% of the aggregate Cut-off Date Principal Balance of all the Mortgage
Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: December 10, 2002
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS N CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
CERTIFICATE BALANCE OF
DEFINITIVE CERTIFICATES
EXCHANGED OR TRANSFERRED
FOR, OR ISSUED IN EXCHANGE
FOR OR UPON TRANSFER OF, AN REMAINING CERTIFICATE
INTEREST IN THIS BALANCE OF BOOK-ENTRY NOTATION
DATE BOOK-ENTRY CERTIFICATE CERTIFICATE MADE BY
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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 Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
----------------------------------------
Dated:_________________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-17
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2002-C2, CLASS NR
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, (D) IN AN OFFSHORE TRANSACTION MEETING
THE REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES
ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.
THIS CLASS NR CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE REPRESENTS (1) A REMIC REGULAR
INTEREST AND (2) AN INTEREST IN A GRANTOR TRUST UNDER THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS DEFINED IN SECTION
3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER SECTION 410(D) OF THE
CODE SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A
MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH
A "PLAN") OR (II) A PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH
PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON
OF INVESTMENT IN THE ENTITY BY SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF
LABOR REGULATION SS. 2510.3-101), OTHER THAN AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND
HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT
FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER
PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS
PRESENTED FOR REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (I) OR
(II) ABOVE, AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE
CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND
HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT
RESULT IN THE ASSETS OF THE TRUST FUND BEING DEEMED TO BE "PLAN ASSETS" AND
SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA, THE PROHIBITED
TRANSACTION PROVISIONS OF THE CODE OR THE PROVISIONS OF ANY SIMILAR LAW, WILL
NOT CONSTITUTE OR RESULT IN A "PROHIBITED TRANSACTION" WITHIN THE MEANING OF
ERISA, SECTION 4975 OF THE CODE OR ANY SIMILAR LAW, AND WILL NOT SUBJECT THE
TRUSTEE, THE CERTIFICATE REGISTRAR, THE SERVICER, THE SPECIAL SERVICER, THE
PLACEMENT AGENT OR THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY (INCLUDING
OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR ANY SUCH
SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE THAT IS A
BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON
DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.] 1
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1 For Book-Entry Regulation S Certificates Only.
PASS-THROUGH RATE: 5.0770% SUBJECT TO A APPROXIMATE AGGREGATE SCHEDULED
MAXIMUM PASS-THROUGH RATE AS SET FORTH PRINCIPAL BALANCE OF THE MORTGAGE LOANS
IN THE POOLING AND SERVICING AGREEMENT AFTER DEDUCTING PAYMENTS DUE AND
PREPAYMENTS RECEIVED ON OR BEFORE
DENOMINATION: $16,760,510 CUT-OFF DATE: $1,051,299,658
DATE OF POOLING AND SERVICING SERVICER: WACHOVIA BANK, NATIONAL
AGREEMENT: AS OF DECEMBER 1, 2002 ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE SPECIAL SERVICER: ARCAP SPECIAL
POOLING AND SERVICING AGREEMENT (AS SERVICING, INC.
DEFINED HEREIN)
TRUSTEE: XXXXX FARGO BANK MINNESOTA,
CLOSING DATE: DECEMBER 10, 2002 N.A.
FIRST DISTRIBUTION DATE: PAYING AGENT: LASALLE BANK NATIONAL
JANUARY 13, 2003 ASSOCIATION
APPROXIMATE AGGREGATE CUSIP NO.: 00000XXX0 (2) 00000XXX0 (3)
CERTIFICATE BALANCE X00000XX0 (1)
OF THE CLASS NR CERTIFICATES
AS OF THE CLOSING DATE: $ 16,760,510 ISIN NO.: US46625MQC63 (2) US46625MQS16
(3) USU48138GM47 (1)
COMMON CODE NO.:
015955392 (0) 000000000 (1)
CERTIFICATE NO.: NR-1
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1 For Book-Entry Regulation S Certificates Only.
2 For Book-Entry Rule 144A Only.
3 For Institutional Accredited Investors Only.
CLASS NR CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial and multifamily fixed rate balloon and fully amortizing
mortgage loans (the "Mortgage Loans"), all payments on or collections in respect
of the Mortgage Loans due after the Cut-off Date, all REO Properties and
revenues received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Simon Collection Account, the Walgreens Collection Account, the Interest Reserve
Account, the Excess Interest Distribution Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class NR Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2002 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class NR
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2002-C2 and are issued in twenty-three classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate represents (i) a "regular interest" in a "real
estate mortgage investment conduit," as those terms are defined, respectively,
in Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended
(the "Code") and (ii) a beneficial interest in a grantor trust under Subpart E,
Part I of Subchapter J of the Code with respect to the Excess Interest. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class NR Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account, the Simon
Collection Account, the Walgreens Collection Account and the Distribution
Accounts will be held on behalf of the Trustee on behalf of the Holders of
Certificates specified in the Pooling and Servicing Agreement and the Servicer
(with respect to the Certificate Account, the Simon Collection Account and the
Walgreens Collection Account) or the Paying Agent (with respect to the
Distribution Accounts) will be authorized to make withdrawals therefrom. Amounts
on deposit in such accounts may be invested in Permitted Investments. Interest
or other income earned on funds in the Certificate Account will be paid to the
Servicer as set forth in the Pooling and Servicing Agreement. As provided in the
Pooling and Servicing Agreement, withdrawals from the Certificate Account shall
be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(f) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(f) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Non-Registered Certificates (other than the Residual Certificates) will be
issued in book-entry form through the facilities of DTC in Denominations of
$250,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Paying Agent and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Servicer, the Special
Servicer, the Paying Agent, the Certificate Registrar nor any such agents shall
be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer, the Paying Agent and the
Trustee, without the consent of any of the Certificateholders, to cure any
ambiguity, to correct or supplement any provisions therein that may be
inconsistent with any other provisions therein or the Prospectus or the
Prospectus Supplement or to correct any error; to maintain the rating or ratings
assigned to each Class of Certificates by each Rating Agency; to modify,
eliminate or add to any provisions to such extent as is necessary to maintain
the qualification of any of the Upper-Tier REMIC, the Lower-Tier REMIC or the
Loan REMICs as a REMIC, or the Grantor Trust as a grantor trust at all times any
Certificate is outstanding or to avoid or minimize the imposition of any tax,
provided, however, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and such action is necessary or desirable to avoid such tax;
to change the timing and/or nature of deposits into the Certificate Account, the
Simon Collection Account, the Walgreens Collection Account or Distribution
Accounts or REO Account or to change the name in which the Certificate Account,
Simon Collection Account or the Walgreens Collection Account is maintained,
provided, however, that the P&I Advance Date shall not be later than the related
Distribution Date, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating by any Rating Agency, as
evidenced by a letter from such Rating Agency to such effect; to modify,
eliminate or add to the provisions of Section 5.02(c) of the Pooling and
Servicing Agreement or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
and such change shall not, as evidenced by an Opinion of Counsel, cause any of
the Upper-Tier REMIC, the Lower-Tier REMIC, the Loan REMICs or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; and to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of each Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Trustee and the
Paying Agent with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing
of, payments which are required to be distributed on any Certificate
without the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any
Class the Holders of which are required to consent to any such
amendment, without the consent of the Holders of all Certificates of
such Class then outstanding;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent
of each Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders or
written confirmation that such amendment would not result in the
downgrading, qualification or withdrawal of ratings assigned to any
Class of Certificates by any Rating Agency, amend the Servicing
Standard.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause any of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan
REMICs to fail to qualify as a REMIC or result in the imposition of a tax on any
of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMICs or cause the
Grantor Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust Fund is
reduced to less than 1% of the aggregate Cut-off Date Principal Balance of all
the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: December 10, 2002
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS NR CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
CERTIFICATE BALANCE OF
DEFINITIVE CERTIFICATES
EXCHANGED OR TRANSFERRED
FOR, OR ISSUED IN EXCHANGE
FOR OR UPON TRANSFER OF, AN REMAINING CERTIFICATE
INTEREST IN THIS BALANCE OF BOOK-ENTRY NOTATION
DATE BOOK-ENTRY CERTIFICATE CERTIFICATE MADE BY
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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 Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
----------------------------------------
Dated:_________________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-18
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2002-C2, CLASS SP-1
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, (D) IN AN OFFSHORE TRANSACTION MEETING
THE REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES
ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.
THIS CLASS SP-1 CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF SIMON COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS DEFINED IN SECTION
3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER SECTION 410(D) OF THE
CODE SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A
MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH
A "PLAN") OR (II) A PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH
PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON
OF INVESTMENT IN THE ENTITY BY SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF
LABOR REGULATION SS. 2510.3-101), OTHER THAN AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND
HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT
FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER
PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS
PRESENTED FOR REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (I) OR
(II) ABOVE, AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE
CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND
HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT
RESULT IN THE ASSETS OF THE TRUST FUND BEING DEEMED TO BE "PLAN ASSETS" AND
SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA, THE PROHIBITED
TRANSACTION PROVISIONS OF THE CODE OR THE PROVISIONS OF ANY SIMILAR LAW, WILL
NOT CONSTITUTE OR RESULT IN A "PROHIBITED TRANSACTION" WITHIN THE MEANING OF
ERISA, SECTION 4975 OF THE CODE OR ANY SIMILAR LAW, AND WILL NOT SUBJECT THE
TRUSTEE, THE CERTIFICATE REGISTRAR, THE SERVICER, THE SPECIAL SERVICER, THE
PLACEMENT AGENT OR THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY (INCLUDING
OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR ANY SUCH
SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE THAT IS A
BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON
DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.] 1
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1 For Book-Entry Regulation S Certificates Only.
PASS-THROUGH RATE: 7.4555% APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL
BALANCE OF THE MORTGAGE LOANS AFTER
DENOMINATION: $5,508,000 DEDUCTING PAYMENTS DUE AND PREPAYMENTS
RECEIVED ON OR BEFORE CUT-OFF DATE:
DATE OF POOLING AND SERVICING $1,051,299,658
AGREEMENT: AS OF DECEMBER 1, 2002
SERVICER: WACHOVIA BANK, NATIONAL
CUT-OFF DATE: AS SET FORTH IN THE ASSOCIATION
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN) SPECIAL SERVICER: ARCAP SPECIAL
SERVICING, INC.
CLOSING DATE: DECEMBER 10, 2002
TRUSTEE: XXXXX FARGO BANK MINNESOTA, N.A.
FIRST DISTRIBUTION DATE:
JANUARY 13, 2003 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE CUSIP NO.: 00000XXX0 (2) 00000XXX0 (3)
OF THE CLASS SP-1 CERTIFICATES X00000XX0 (1)
AS OF THE CLOSING DATE: $5,508,000
ISIN NO.: US46625MQD47 (2) US46625MQT98
(3) USU48138GN20 (1)
COMMON CODE NO.: 015955660 (0) 000000000
(1)
CERTIFICATE NO.: SP-1-1
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1 For Book-Entry Regulation S Certificates Only.
2 For Book-Entry Rule 144A Only.
3 For Institutional Accredited Investors Only.
CLASS SP-1 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial and multifamily fixed rate balloon and fully amortizing
mortgage loans (the "Mortgage Loans"), all payments on or collections in respect
of the Mortgage Loans due after the Cut-off Date, all REO Properties and
revenues received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Simon Collection Account, the Walgreens Collection Account, the Interest Reserve
Account, the Excess Interest Distribution Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class SP-1 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2002 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
SP-1 Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2002-C2 and are issued in twenty-three classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class SP-1 Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Simon Collateral Support Deficit and Certificate Deferred Interest
on the Simon Mortgage Loan shall be allocated on the applicable Distribution
Date to Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Simon Collateral Support Deficit or Certificate Deferred Interest
on the Simon Mortgage Loan allocated to any Class of Certificates will be
allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Simon Non-Pooled
Component, all as more specifically set forth in the Pooling and Servicing
Agreement. As provided in the Pooling and Servicing Agreement, the Certificate
Account, the Simon Collection Account, the Walgreens Collection Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account, the Simon Collection Account
and the Walgreens Collection Account) or the Paying Agent (with respect to the
Distribution Account) will be authorized to make withdrawals therefrom. Amounts
on deposit in such accounts may be invested in Permitted Investments. Interest
or other income earned on funds in the Certificate Account will be paid to the
Servicer as set forth in the Pooling and Servicing Agreement. As provided in the
Pooling and Servicing Agreement, withdrawals from the Certificate Account shall
be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Simon Mortgage Loan and
administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(f) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(f) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Non-Registered Certificates (other than the Residual Certificates) will be
issued in book-entry form through the facilities of DTC in Denominations of
$250,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Paying Agent and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Servicer, the Special
Servicer, the Certificate Registrar, the Paying Agent nor any such agents shall
be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer, the Paying Agent and the
Trustee, without the consent of any of the Certificateholders, to cure any
ambiguity, to correct or supplement any provisions therein that may be
inconsistent with any other provisions therein or the Prospectus or the
Prospectus Supplement or to correct any error; to maintain the rating or ratings
assigned to each Class of Certificates by each Rating Agency; to modify,
eliminate or add to any provisions to such extent as is necessary to maintain
the qualification of any of the Upper-Tier REMIC, the Lower-Tier REMIC or the
Loan REMICs as a REMIC, or the Grantor Trust as a grantor trust at all times any
Certificate is outstanding or to avoid or minimize the imposition of any tax,
provided, however, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and such action is necessary or desirable to avoid such tax;
to change the timing and/or nature of deposits into the Certificate Account, the
Simon Collection Account, the Walgreens Collection Account or Distribution
Accounts or REO Account or to change the name in which the Certificate Account,
Simon Collection Account or the Walgreens Collection Account is maintained,
provided, however, that the P&I Advance Date shall not be later than the related
Distribution Date, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating by any Rating Agency, as
evidenced by a letter from such Rating Agency to such effect; to modify,
eliminate or add to the provisions of Section 5.02(c) of the Pooling and
Servicing Agreement or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
and such change shall not, as evidenced by an Opinion of Counsel, cause any of
the Upper-Tier REMIC, the Lower-Tier REMIC, the Loan REMICs or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; and to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of each Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Trustee and the
Paying Agent with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing
of, payments which are required to be distributed on any Certificate
without the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any
Class the Holders of which are required to consent to any such
amendment, without the consent of the Holders of all Certificates of
such Class then outstanding;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent
of each Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders or
written confirmation that such amendment would not result in the
downgrading, qualification or withdrawal of ratings assigned to any
Class of Certificates by any Rating Agency, amend the Servicing
Standard.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause any of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan
REMICs to fail to qualify as a REMIC or result in the imposition of a tax on any
of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMICs or cause the
Grantor Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust Fund is
reduced to less than 1% of the aggregate Cut-off Date Principal Balance of all
the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: December 10, 2002
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS SP-1 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
CERTIFICATE BALANCE OF
DEFINITIVE CERTIFICATES
EXCHANGED OR TRANSFERRED
FOR, OR ISSUED IN EXCHANGE
FOR OR UPON TRANSFER OF, AN REMAINING CERTIFICATE
INTEREST IN THIS BALANCE OF BOOK-ENTRY NOTATION
DATE BOOK-ENTRY CERTIFICATE CERTIFICATE MADE BY
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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 Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
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Dated:_________________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-19
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2002-C2, CLASS SP-2
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, (D) IN AN OFFSHORE TRANSACTION MEETING
THE REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES
ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.
THIS CLASS SP-2 CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF SIMON COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS DEFINED IN SECTION
3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER SECTION 410(D) OF THE
CODE SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A
MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH
A "PLAN") OR (II) A PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH
PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON
OF INVESTMENT IN THE ENTITY BY SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF
LABOR REGULATION SS. 2510.3-101), OTHER THAN AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND
HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT
FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER
PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS
PRESENTED FOR REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (I) OR
(II) ABOVE, AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE
CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND
HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT
RESULT IN THE ASSETS OF THE TRUST FUND BEING DEEMED TO BE "PLAN ASSETS" AND
SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA, THE PROHIBITED
TRANSACTION PROVISIONS OF THE CODE OR THE PROVISIONS OF ANY SIMILAR LAW, WILL
NOT CONSTITUTE OR RESULT IN A "PROHIBITED TRANSACTION" WITHIN THE MEANING OF
ERISA, SECTION 4975 OF THE CODE OR ANY SIMILAR LAW, AND WILL NOT SUBJECT THE
TRUSTEE, THE CERTIFICATE REGISTRAR, THE SERVICER, THE SPECIAL SERVICER, THE
PLACEMENT AGENT OR THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY (INCLUDING
OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR ANY SUCH
SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE THAT IS A
BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON
DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.] 1
--------
1 For Book-Entry Regulation S Certificates Only.
PASS-THROUGH RATE: 7.4555% APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL
BALANCE OF THE MORTGAGE LOANS AFTER
DENOMINATION: $8,400,000 DEDUCTING PAYMENTS DUE AND PREPAYMENTS
RECEIVED ON OR BEFORE CUT-OFF DATE:
DATE OF POOLING AND SERVICING $1,051,299,658
AGREEMENT: AS OF DECEMBER 1, 2002
SERVICER: WACHOVIA BANK, NATIONAL
CUT-OFF DATE: AS SET FORTH IN THE ASSOCIATION
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN) SPECIAL SERVICER: ARCAP SPECIAL
SERVICING, INC.
CLOSING DATE: DECEMBER 10, 2002
TRUSTEE: XXXXX FARGO BANK MINNESOTA, N.A.
FIRST DISTRIBUTION DATE:
JANUARY 13, 2003 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE CUSIP NO.: 00000XXX0 (2) 00000XXX0 (3)
OF THE CLASS SP-2 CERTIFICATES X00000XX0 (1)
AS OF THE CLOSING DATE: $8,400,000
ISIN NO.: US46625MQE20 (2) US46625MQU61
(3) USU48138GP77 (1)
COMMON CODE NO.: 015955902 (0) 000000000
(1)
CERTIFICATE NO.: SP-2-1
--------
1 For Book-Entry Regulation S Certificates Only.
2 For Book-Entry Rule 144A Only.
3 For Institutional Accredited Investors Only.
CLASS SP-2 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial and multifamily fixed rate balloon and fully amortizing
mortgage loans (the "Mortgage Loans"), all payments on or collections in respect
of the Mortgage Loans due after the Cut-off Date, all REO Properties and
revenues received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Simon Collection Account, the Walgreens Collection Account, the Interest Reserve
Account, the Excess Interest Distribution Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class SP-2 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2002 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
SP-2 Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2002-C2 and are issued in twenty-three classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class SP-2 Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Simon Collateral Support Deficit and Certificate Deferred Interest
on the Simon Mortgage Loan shall be allocated on the applicable Distribution
Date to Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Simon Collateral Support Deficit or Certificate Deferred Interest
on the Simon Mortgage Loan allocated to any Class of Certificates will be
allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Simon Non-Pooled
Component, all as more specifically set forth in the Pooling and Servicing
Agreement. As provided in the Pooling and Servicing Agreement, the Certificate
Account, the Simon Collection Account, the Walgreens Collection Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account, the Simon Collection Account
and the Walgreens Collection Account) or the Paying Agent (with respect to the
Distribution Account) will be authorized to make withdrawals therefrom. Amounts
on deposit in such accounts may be invested in Permitted Investments. Interest
or other income earned on funds in the Certificate Account will be paid to the
Servicer as set forth in the Pooling and Servicing Agreement. As provided in the
Pooling and Servicing Agreement, withdrawals from the Certificate Account shall
be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Simon Mortgage Loan and
administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(f) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(f) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Non-Registered Certificates (other than the Residual Certificates) will be
issued in book-entry form through the facilities of DTC in Denominations of
$250,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Paying Agent and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Servicer, the Special
Servicer, the Certificate Registrar, the Paying Agent nor any such agents shall
be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer, the Paying Agent and the
Trustee, without the consent of any of the Certificateholders, to cure any
ambiguity, to correct or supplement any provisions therein that may be
inconsistent with any other provisions therein or the Prospectus or the
Prospectus Supplement or to correct any error; to maintain the rating or ratings
assigned to each Class of Certificates by each Rating Agency; to modify,
eliminate or add to any provisions to such extent as is necessary to maintain
the qualification of any of the Upper-Tier REMIC, the Lower-Tier REMIC or the
Loan REMICs as a REMIC, or the Grantor Trust as a grantor trust at all times any
Certificate is outstanding or to avoid or minimize the imposition of any tax,
provided, however, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and such action is necessary or desirable to avoid such tax;
to change the timing and/or nature of deposits into the Certificate Account, the
Simon Collection Account, the Walgreens Collection Account or Distribution
Accounts or REO Account or to change the name in which the Certificate Account,
Simon Collection Account or the Walgreens Collection Account is maintained,
provided, however, that the P&I Advance Date shall not be later than the related
Distribution Date, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating by any Rating Agency, as
evidenced by a letter from such Rating Agency to such effect; to modify,
eliminate or add to the provisions of Section 5.02(c) of the Pooling and
Servicing Agreement or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
and such change shall not, as evidenced by an Opinion of Counsel, cause any of
the Upper-Tier REMIC, the Lower-Tier REMIC, the Loan REMICs or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; and to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of each Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Trustee and the
Paying Agent with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing
of, payments which are required to be distributed on any Certificate
without the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any
Class the Holders of which are required to consent to any such
amendment, without the consent of the Holders of all Certificates of
such Class then outstanding;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent
of each Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders or
written confirmation that such amendment would not result in the
downgrading, qualification or withdrawal of ratings assigned to any
Class of Certificates by any Rating Agency, amend the Servicing
Standard.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause any of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan
REMICs to fail to qualify as a REMIC or result in the imposition of a tax on any
of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMICs or cause the
Grantor Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust Fund is
reduced to less than 1% of the aggregate Cut-off Date Principal Balance of all
the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: December 10, 2002
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS SP-2 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
CERTIFICATE BALANCE OF
DEFINITIVE CERTIFICATES
EXCHANGED OR TRANSFERRED
FOR, OR ISSUED IN EXCHANGE
FOR OR UPON TRANSFER OF, AN REMAINING CERTIFICATE
INTEREST IN THIS BALANCE OF BOOK-ENTRY NOTATION
DATE BOOK-ENTRY CERTIFICATE CERTIFICATE MADE BY
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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 Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
----------------------------------------
Dated:_________________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-20
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2002-C2, CLASS SP-3
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, (D) IN AN OFFSHORE TRANSACTION MEETING
THE REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES
ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.
THIS CLASS SP-3 CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF SIMON COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS DEFINED IN SECTION
3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER SECTION 410(D) OF THE
CODE SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A
MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH
A "PLAN") OR (II) A PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH
PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON
OF INVESTMENT IN THE ENTITY BY SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF
LABOR REGULATION SS. 2510.3-101), OTHER THAN AN INSURANCE COMPANY USING THE
ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND
HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT
FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER
PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS
PRESENTED FOR REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (I) OR
(II) ABOVE, AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE
CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND
HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT
RESULT IN THE ASSETS OF THE TRUST FUND BEING DEEMED TO BE "PLAN ASSETS" AND
SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF ERISA, THE PROHIBITED
TRANSACTION PROVISIONS OF THE CODE OR THE PROVISIONS OF ANY SIMILAR LAW, WILL
NOT CONSTITUTE OR RESULT IN A "PROHIBITED TRANSACTION" WITHIN THE MEANING OF
ERISA, SECTION 4975 OF THE CODE OR ANY SIMILAR LAW, AND WILL NOT SUBJECT THE
TRUSTEE, THE CERTIFICATE REGISTRAR, THE SERVICER, THE SPECIAL SERVICER, THE
PLACEMENT AGENT OR THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY (INCLUDING
OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR ANY SUCH
SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE THAT IS A
BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A PERSON
DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.] 1
--------
1 For Book-Entry Regulation S Certificates Only.
PASS-THROUGH RATE: 7.4555% APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL
BALANCE OF THE MORTGAGE LOANS AFTER
DENOMINATION: $5,657,741 DEDUCTING PAYMENTS DUE AND PREPAYMENTS
RECEIVED ON OR BEFORE CUT-OFF DATE:
DATE OF POOLING AND SERVICING $1,051,299,658
AGREEMENT: AS OF DECEMBER 1, 2002
SERVICER: WACHOVIA BANK, NATIONAL
CUT-OFF DATE: AS SET FORTH IN THE ASSOCIATION
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN) SPECIAL SERVICER: ARCAP SPECIAL
SERVICING, INC.
CLOSING DATE: DECEMBER 10, 2002
TRUSTEE: XXXXX FARGO BANK MINNESOTA, N.A.
FIRST DISTRIBUTION DATE:
JANUARY 13, 2003 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE CUSIP NO.: 00000XXX0 (2) 00000XXX0 (3)
OF THE CLASS SP-3 CERTIFICATES X00000XX0 (1)
AS OF THE CLOSING DATE: $5,657,741
ISIN NO.: US46625MQF94 (2) US46625MQV45
(3) USU48138GQ50 (1)
COMMON CODE NO.: 015956011 (0) 000000000
(1)
CERTIFICATE NO.: SP-3-1
--------
1 For Book-Entry Regulation S Certificates Only.
2 For Book-Entry Rule 144A Only.
3 For Institutional Accredited Investors Only.
CLASS SP-3 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial and multifamily fixed rate balloon and fully amortizing
mortgage loans (the "Mortgage Loans"), all payments on or collections in respect
of the Mortgage Loans due after the Cut-off Date, all REO Properties and
revenues received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Simon Collection Account, the Walgreens Collection Account, the Interest Reserve
Account, the Excess Interest Distribution Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class SP-3 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2002 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
SP-3 Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2002-C2 and are issued in twenty-three classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class SP-3 Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Simon Collateral Support Deficit and Certificate Deferred Interest
on the Simon Mortgage Loan shall be allocated on the applicable Distribution
Date to Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Simon Collateral Support Deficit or Certificate Deferred Interest
on the Simon Mortgage Loan allocated to any Class of Certificates will be
allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Simon Non-Pooled
Component, all as more specifically set forth in the Pooling and Servicing
Agreement. As provided in the Pooling and Servicing Agreement, the Certificate
Account, the Simon Collection Account, the Walgreens Collection Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account, the Simon Collection Account
and the Walgreens Collection Account) or the Paying Agent (with respect to the
Distribution Account) will be authorized to make withdrawals therefrom. Amounts
on deposit in such accounts may be invested in Permitted Investments. Interest
or other income earned on funds in the Certificate Account will be paid to the
Servicer as set forth in the Pooling and Servicing Agreement. As provided in the
Pooling and Servicing Agreement, withdrawals from the Certificate Account shall
be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Simon Mortgage Loan and
administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(f) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(f) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Non-Registered Certificates (other than the Residual Certificates) will be
issued in book-entry form through the facilities of DTC in Denominations of
$250,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Paying Agent and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Servicer, the Special
Servicer, the Certificate Registrar, the Paying Agent nor any such agents shall
be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer, the Paying Agent and the
Trustee, without the consent of any of the Certificateholders, to cure any
ambiguity, to correct or supplement any provisions therein that may be
inconsistent with any other provisions therein or the Prospectus or the
Prospectus Supplement or to correct any error; to maintain the rating or ratings
assigned to each Class of Certificates by each Rating Agency; to modify,
eliminate or add to any provisions to such extent as is necessary to maintain
the qualification of any of the Upper-Tier REMIC, the Lower-Tier REMIC or the
Loan REMICs as a REMIC, or the Grantor Trust as a grantor trust at all times any
Certificate is outstanding or to avoid or minimize the imposition of any tax,
provided, however, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and such action is necessary or desirable to avoid such tax;
to change the timing and/or nature of deposits into the Certificate Account, the
Simon Collection Account, the Walgreens Collection Account or Distribution
Accounts or REO Account or to change the name in which the Certificate Account,
Simon Collection Account, the Walgreens Collection Account is maintained,
provided, however, that the P&I Advance Date shall not be later than the related
Distribution Date, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating by any Rating Agency, as
evidenced by a letter from such Rating Agency to such effect; to modify,
eliminate or add to the provisions of Section 5.02(c) of the Pooling and
Servicing Agreement or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
and such change shall not, as evidenced by an Opinion of Counsel, cause any of
the Upper-Tier REMIC, the Lower-Tier REMIC, the Loan REMICs or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; and to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of each Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Trustee and the
Paying Agent with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing
of, payments which are required to be distributed on any Certificate
without the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any
Class the Holders of which are required to consent to any such
amendment, without the consent of the Holders of all Certificates of
such Class then outstanding;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent
of each Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders or
written confirmation that such amendment would not result in the
downgrading, qualification or withdrawal of ratings assigned to any
Class of Certificates by any Rating Agency, amend the Servicing
Standard.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause any of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan
REMICs to fail to qualify as a REMIC or result in the imposition of a tax on any
of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMICs or cause the
Grantor Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust Fund is
reduced to less than 1% of the aggregate Cut-off Date Principal Balance of all
the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: December 10, 2002
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS SP-3 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
CERTIFICATE BALANCE OF
DEFINITIVE CERTIFICATES
EXCHANGED OR TRANSFERRED
FOR, OR ISSUED IN EXCHANGE
FOR OR UPON TRANSFER OF, AN REMAINING CERTIFICATE
INTEREST IN THIS BALANCE OF BOOK-ENTRY NOTATION
DATE BOOK-ENTRY CERTIFICATE CERTIFICATE MADE BY
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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 Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
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Dated:_________________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-21
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2002-C2, CLASS WM
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, (D) IN AN OFFSHORE TRANSACTION MEETING
THE REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES
ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.
THIS CLASS WM CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF WALGREENS
COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE
CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW.
ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE
BY INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN
INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT IF SUCH TRANSFEREE IS A QUALIFIED INSTITUTIONAL
BUYER OR AN INSTITUTIONAL ACCREDITED INVESTOR, AND MAY ALSO BE REQUIRED TO
DELIVER AN OPINION OF COUNSEL IF SUCH TRANSFEREE IS NOT A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY PERSON WHICH IS
AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974. AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY GOVERNMENTAL PLAN, AS
DEFINED IN SECTION 3(32) OF ERISA, OR ANY CHURCH PLAN (AS DEFINED IN SECTION
3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MAD UNDER SECTION 410(D) OF THE
CODE SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN"), OR ANY
PERSON ACTING ON BEHALF OF OR INVESTING THE ASSETS OF A PLAN.
PASS-THROUGH RATE: 7.2079% APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL
BALANCE OF THE MORTGAGE LOANS AFTER
DENOMINATION: $338,406 DEDUCTING PAYMENTS DUE AND PREPAYMENTS
RECEIVED ON OR BEFORE CUT-OFF DATE:
DATE OF POOLING AND SERVICING $1,051,299,658
AGREEMENT: AS OF DECEMBER 1, 2002
SERVICER: WACHOVIA BANK, NATIONAL
CUT-OFF DATE: AS SET FORTH IN THE ASSOCIATION
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN) SPECIAL SERVICER: ARCAP SPECIAL
SERVICING, INC.
CLOSING DATE: DECEMBER 10, 2002
TRUSTEE: XXXXX FARGO BANK MINNESOTA, N.A.
FIRST DISTRIBUTION DATE:
JANUARY 13, 2003 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE CUSIP NO.: 00000XXX0
OF THE CLASS WM CERTIFICATES
AS OF THE CLOSING DATE: $338,406 ISIN NO.: US46625MQY83
COMMON CODE NO.: [_________________]
CERTIFICATE NO.: WM-1
CLASS WM CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial and multifamily fixed rate balloon and fully amortizing
mortgage loans (the "Mortgage Loans"), all payments on or collections in respect
of the Mortgage Loans due after the Cut-off Date, all REO Properties and
revenues received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Simon Collection Account, the Walgreens Collection Account, the Interest Reserve
Account, the Excess Interest Distribution Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT ABN AMRO CCC PRIVATE EQUITY INVESTMENTS, INC.
is the registered owner of the interest evidenced by this Certificate in the
Class WM Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2002 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class WM
Certificates. The Certificates are designated as the X.X. XXXXXX XXXXX
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2002-C2 and are issued in twenty-three classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Class WM Pass-Through
Rate specified above on the Certificate Balance of this Certificate immediately
prior to each Distribution Date. Principal and interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Walgreens Collateral Support Deficit and Certificate Deferred
Interest on the Walgreens Mortgage Loan shall be allocated on the applicable
Distribution Date to Certificateholders in the manner set forth in the Pooling
and Servicing Agreement. All Walgreens Collateral Support Deficit or Certificate
Deferred Interest on the Walgreens Mortgage Loan allocated to any Class of
Certificates will be allocated pro rata among the outstanding Certificates of
such Class.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Walgreens Non-Pooled
Component, all as more specifically set forth in the Pooling and Servicing
Agreement. As provided in the Pooling and Servicing Agreement, the Certificate
Account, the Simon Collection Account, the Walgreens Collection Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account, the Simon Collection Account
and the Walgreens Collection Account) or the Paying Agent (with respect to the
Distribution Account) will be authorized to make withdrawals therefrom. Amounts
on deposit in such accounts may be invested in Permitted Investments. Interest
or other income earned on funds in the Certificate Account will be paid to the
Servicer as set forth in the Pooling and Servicing Agreement. As provided in the
Pooling and Servicing Agreement, withdrawals from the Certificate Account shall
be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Walgreens Mortgage Loan and
administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(f) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(f) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Non-Registered Certificates (other than the Residual Certificates) will be
issued in book-entry form through the facilities of DTC in Denominations of
$250,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Paying Agent and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Servicer, the Special
Servicer, the Certificate Registrar, the Paying Agent nor any such agents shall
be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer, the Paying Agent and the
Trustee, without the consent of any of the Certificateholders, to cure any
ambiguity, to correct or supplement any provisions therein that may be
inconsistent with any other provisions therein or the Prospectus or the
Prospectus Supplement or to correct any error; to maintain the rating or ratings
assigned to each Class of Certificates by each Rating Agency; to modify,
eliminate or add to any provisions to such extent as is necessary to maintain
the qualification of any of the Upper-Tier REMIC, the Lower-Tier REMIC or the
Loan REMICs as a REMIC, or the Grantor Trust as a grantor trust at all times any
Certificate is outstanding or to avoid or minimize the imposition of any tax,
provided, however, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and such action is necessary or desirable to avoid such tax;
to change the timing and/or nature of deposits into the Certificate Account, the
Simon Collection Account, the Walgreens Collection Account or Distribution
Accounts or REO Account or to change the name in which the Certificate Account,
Simon Collection Account or the Walgreens Collection Account is maintained,
provided, however, that the P&I Advance Date shall not be later than the related
Distribution Date, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating by any Rating Agency, as
evidenced by a letter from such Rating Agency to such effect; to modify,
eliminate or add to the provisions of Section 5.02(c) of the Pooling and
Servicing Agreement or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
and such change shall not, as evidenced by an Opinion of Counsel, cause any of
the Upper-Tier REMIC, the Lower-Tier REMIC, the Loan REMICs or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; and to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of each Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Trustee and the
Paying Agent with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing
of, payments which are required to be distributed on any Certificate
without the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any
Class the Holders of which are required to consent to any such
amendment, without the consent of the Holders of all Certificates of
such Class then outstanding;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent
of each Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders or
written confirmation that such amendment would not result in the
downgrading, qualification or withdrawal of ratings assigned to any
Class of Certificates by any Rating Agency, amend the Servicing
Standard.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause any of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan
REMICs to fail to qualify as a REMIC or result in the imposition of a tax on any
of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMICs or cause the
Grantor Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust Fund is
reduced to less than 1% of the aggregate Cut-off Date Principal Balance of all
the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: December 10, 2002
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS WM CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
CERTIFICATE BALANCE OF
DEFINITIVE CERTIFICATES
EXCHANGED OR TRANSFERRED
FOR, OR ISSUED IN EXCHANGE
FOR OR UPON TRANSFER OF, AN REMAINING CERTIFICATE
INTEREST IN THIS BALANCE OF BOOK-ENTRY NOTATION
DATE BOOK-ENTRY CERTIFICATE CERTIFICATE MADE BY
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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 Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
----------------------------------------
Dated:_________________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-22
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2002-C2, CLASS R
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OR (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN
INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT IF SUCH TRANSFEREE IS A QUALIFIED INSTITUTIONAL
BUYER OR AN INSTITUTIONAL ACCREDITED INVESTOR, AND MAY ALSO BE REQUIRED TO
DELIVER AN OPINION OF COUNSEL IF SUCH TRANSFEREE IS NOT A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY PERSON WHICH IS
AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974. AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY GOVERNMENTAL PLAN, AS
DEFINED IN SECTION 3(32) OF ERISA, OR ANY CHURCH PLAN (AS DEFINED IN SECTION
3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MAD UNDER SECTION 410(D) OF THE
CODE SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN"), OR ANY
PERSON ACTING ON BEHALF OF OR INVESTING THE ASSETS OF A PLAN.
THIS CERTIFICATE IS A "RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(A)(2) AND
860D OF THE CODE. EACH TRANSFEREE OF THIS CERTIFICATE, BY ACCEPTANCE HEREOF, IS
DEEMED TO HAVE ACCEPTED THIS CERTIFICATE SUBJECT TO CERTAIN RESTRICTIONS ON
TRANSFERABILITY TO DISQUALIFIED ORGANIZATIONS, NON-U.S. PERSONS OR AGENTS OF
EITHER, AS SET FORTH IN SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT AND
SHALL BE REQUIRED TO FURNISH AN AFFIDAVIT TO THE TRANSFEROR, THE PAYING AGENT
AND THE TRUSTEE TO THE EFFECT THAT, AMONG OTHER THINGS, (A) IT IS NOT A
DISQUALIFIED ORGANIZATION, AS SUCH TERM IS DEFINED IN CODE SECTION 860E(E)(5),
OR AN AGENT (INCLUDING A BROKER, NOMINEE OR OTHER MIDDLEMAN) FOR SUCH
DISQUALIFIED ORGANIZATION AND IS OTHERWISE A PERMITTED TRANSFEREE, (B) IT HAS
HISTORICALLY PAID ITS DEBTS AS THEY HAVE COME DUE AND INTENDS TO PAY ITS DEBTS
AS THEY COME DUE IN THE FUTURE, (C) IT UNDERSTANDS THAT IT MAY INCUR TAX
LIABILITIES WITH RESPECT TO THIS CERTIFICATE IN EXCESS OF CASH FLOWS GENERATED
HEREBY, (D) IT INTENDS TO PAY ANY TAXES ASSOCIATED WITH HOLDING THIS CERTIFICATE
AS THEY BECOME DUE, (E) IT WILL NOT CAUSE INCOME WITH RESPECT TO THIS
CERTIFICATE TO BE ATTRIBUTABLE TO A FOREIGN PERMANENT ESTABLISHMENT OR FIXED
BASE, WITHIN THE MEANING OF AN APPLICABLE INCOME TAX TREATY OF SUCH PERSON OR
ANY OTHER U.S. PERSON AND (F) IT WILL NOT TRANSFER THIS CERTIFICATE TO ANY
PERSON OR ENTITY THAT DOES NOT PROVIDE A SIMILAR AFFIDAVIT. ANY PURPORTED
TRANSFER TO A DISQUALIFIED ORGANIZATION OR OTHER PERSON THAT IS NOT A PERMITTED
TRANSFEREE OR OTHERWISE IN VIOLATION OF THESE RESTRICTIONS SHALL BE ABSOLUTELY
NULL AND VOID AND SHALL VEST NO RIGHTS IN ANY PURPORTED TRANSFEREE. THIS
CERTIFICATE REPRESENTS A "NON-ECONOMIC RESIDUAL INTEREST," AS DEFINED IN
TREASURY REGULATIONS SECTION 1.860E-L(C), AND THEREFORE, TRANSFERS OF THIS
CERTIFICATE MAY BE DISREGARDED FOR FEDERAL INCOME TAX PURPOSES. IN ORDER TO
SATISFY A REGULATORY SAFE HARBOR UNDER WHICH SUCH TRANSFERS WILL NOT BE
DISREGARDED, THE TRANSFEROR MAY BE REQUIRED, AMONG OTHER THINGS, TO SATISFY
ITSELF AS TO THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE AND EITHER TO
TRANSFER AT A MINIMUM PRICE OR TO AN ELIGIBLE TRANSFEREE AS SPECIFIED IN
REGULATIONS.
PERCENTAGE INTEREST EVIDENCED BY THIS APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL
CERTIFICATE: 100% BALANCE OF THE MORTGAGE LOANS AFTER
DEDUCTING PAYMENTS DUE AND PREPAYMENTS
DATE OF POOLING AND SERVICING RECEIVED ON OR BEFORE CUT-OFF DATE:
AGREEMENT: AS OF DECEMBER 1, 2002 $1,051,299,658
CUT-OFF DATE: AS SET FORTH IN THE SERVICER: WACHOVIA BANK, NATIONAL
POOLING AND SERVICING AGREEMENT (AS ASSOCIATION
DEFINED HEREIN)
SPECIAL SERVICER: ARCAP SPECIAL
CLOSING DATE: DECEMBER 10, 2002 SERVICING, INC.
FIRST DISTRIBUTION DATE: TRUSTEE: XXXXX FARGO BANK MINNESOTA, N.A.
JANUARY 13, 2003
PAYING AGENT: LASALLE BANK NATIONAL
CLASS R PERCENTAGE INTEREST: 100% ASSOCIATION
CUSIP: 00000XXX0 CERTIFICATE NO.: R-1-[1]
CLASS R CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial and multifamily fixed rate balloon and fully amortizing
mortgage loans (the "Mortgage Loans"), all payments on or collections in respect
of the Mortgage Loans due after the Cut-off Date, all REO Properties and
revenues received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Simon Collection Account, the Walgreens Collection Account, the Interest Reserve
Account, the Excess Interest Distribution Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE
UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE
UNITED STATES.
THIS CERTIFIES THAT X.X. XXXXXX SECURITIES INC.
is the registered owner of the interest evidenced by this Certificate in the
Class R Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2002 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the percentage interest in the Class
of Certificates specified on the face hereof. The Certificates are designated as
the X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage
Pass-Through Certificates, Series 2002-C2 and are issued in twenty-three classes
as specifically set forth in the Pooling and Servicing Agreement. The
Certificates will evidence in the aggregate 100% of the beneficial ownership of
the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Class R Certificate is a "residual interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take
no action inconsistent with the treatment of, this Certificate in accordance
with the preceding sentence for purposes of federal income taxes, state and
local income and franchise taxes and other taxes imposed on or measured by
income. The Holder of the largest Percentage Interest in the Class R
Certificates shall be the "tax matters person" for the Upper-Tier REMIC pursuant
to Treasury Regulations Section 1.860F-4(d), and the Servicer is hereby
irrevocably designated and shall serve as attorney-in-fact and agent for any
such Person that is the "tax matters person".
Pursuant to the terms of the Pooling and Servicing Agreement,
distributions, if any, on this Certificate shall be made by the Paying Agent to
the extent and subject to the limitations set forth in the Pooling and Servicing
Agreement, on the Distribution Date to the Person in whose name this Certificate
is registered as of the related Record Date. All sums distributable on this
Certificate are payable in the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account, the Simon
Collection Account, the Walgreens Collection Account and the Distribution
Accounts will be held on behalf of the Trustee on behalf of the Holders of
Certificates specified in the Pooling and Servicing Agreement and the Servicer
(with respect to the Certificate Account, the Simon Collection Account and the
Walgreens Collection Account) or the Paying Agent (with respect to the
Distribution Accounts) will be authorized to make withdrawals therefrom. Amounts
on deposit in such accounts may be invested in Permitted Investments. Interest
or other income earned on funds in the Certificate Account will be paid to the
Servicer as set forth in the Pooling and Servicing Agreement. As provided in the
Pooling and Servicing Agreement, withdrawals from the Certificate Account shall
be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(f) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(f) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Each Person who has or who acquires any Ownership Interest in a
Class R Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions and to
have irrevocably authorized the Paying Agent under Section 5.02(c) of the
Pooling and Servicing Agreement to deliver payments to a Person other than such
Person. The rights of each Person acquiring any Ownership Interest in a Class R
Certificate are expressly subject to the following provisions: (A) No Person
holding or acquiring any Ownership Interest in a Class R Certificate shall be a
Disqualified Organization or agent thereof (including a nominee, middleman or
similar person) (an "Agent"), a Plan or a Person acting on behalf of or
investing the assets of a Plan (such Plan or Person, an "ERISA Prohibited
Holder") or a Non-U.S. Person and shall promptly notify the Servicer, the
Trustee and the Certificate Registrar of any change or impending change to such
status; (B) In connection with any proposed Transfer of any Ownership Interest
in a Class R Certificate, the Certificate Registrar shall require delivery to
it, and no Transfer of any Class R Certificate shall be registered until the
Certificate Registrar receives, an affidavit substantially in the form attached
to the Pooling and Servicing Agreement as Exhibit D-1 (a "Transfer Affidavit")
from the proposed Transferee, in form and substance satisfactory to the
Certificate Registrar, representing and warranting, among other things, that
such Transferee is not a Disqualified Organization or Agent thereof, an ERISA
Prohibited Holder or a Non-U.S. Person, and that it has reviewed the provisions
of Section 5.02(c) of the Pooling and Servicing Agreement and agrees to be bound
by them; (C) Notwithstanding the delivery of a Transfer Affidavit by a proposed
Transferee under clause (B) above, if the Certificate Registrar has actual
knowledge that the proposed Transferee is a Disqualified Organization or Agent
thereof, an ERISA Prohibited Holder or a Non-U.S. Person, no Transfer of an
Ownership Interest in a Class R Certificate to such proposed Transferee shall be
effected; (D) The Transferee will not cause the income with respect to any Class
R Certificate to be attributable to a foreign permanent establishment or fixed
base (within the meaning of an applicable income tax treaty) of such Transferee
or any other Person; and (E) Each Person holding or acquiring any Ownership
Interest in a Class R Certificate shall agree (1) to require a Transfer
Affidavit from any prospective Transferee to whom such Person attempts to
transfer its Ownership Interest in such Class R Certificate and (2) not to
transfer its Ownership Interest in such Class R Certificate unless it provides
to the Certificate Registrar a letter substantially in the form attached to the
Pooling and Servicing Agreement as Exhibit D-2 (a "Transferor Letter")
certifying that, among other things, it has no actual knowledge that such
prospective Transferee is a Disqualified Organization, an Agent thereof, an
ERISA Prohibited Holder or a Non-U.S. Person.
The Class R and Class LR Certificates will be issued in fully
registered, certificated form, in Denominations representing Percentage
Interests of not less than 20%.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Paying Agent and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Servicer, the Special
Servicer, the Paying Agent the Certificate Registrar nor any such agents shall
be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer, the Paying Agent and the
Trustee, without the consent of any of the Certificateholders, to cure any
ambiguity, to correct or supplement any provisions therein that may be
inconsistent with any other provisions therein or the Prospectus or the
Prospectus Supplement or to correct any error; to maintain the rating or ratings
assigned to each Class of Certificates by each Rating Agency; to modify,
eliminate or add to any provisions to such extent as is necessary to maintain
the qualification of any of the Upper-Tier REMIC, the Lower-Tier REMIC or the
Loan REMICs as a REMIC, or the Grantor Trust as a grantor trust at all times any
Certificate is outstanding or to avoid or minimize the imposition of any tax,
provided, however, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and such action is necessary or desirable to avoid such tax;
to change the timing and/or nature of deposits into the Certificate Account, the
Simon Collection Account, the Walgreens Collection Account or Distribution
Accounts or REO Account or to change the name in which the Certificate Account,
Simon Collection Account or the Walgreens Collection Account is maintained,
provided, however, that the P&I Advance Date shall not be later than the related
Distribution Date, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating by any Rating Agency, as
evidenced by a letter from such Rating Agency to such effect; to modify,
eliminate or add to the provisions of Section 5.02(c) of the Pooling and
Servicing Agreement or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
and such change shall not, as evidenced by an Opinion of Counsel, cause any of
the Upper-Tier REMIC, the Lower-Tier REMIC, the Loan REMICs or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; and to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of each Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Trustee and the
Paying Agent with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing
of, payments which are required to be distributed on any Certificate
without the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any
Class the Holders of which are required to consent to any such
amendment, without the consent of the Holders of all Certificates of
such Class then outstanding;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent
of each Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders or
written confirmation that such amendment would not result in the
downgrading, qualification or withdrawal of ratings assigned to any
Class of Certificates by any Rating Agency, amend the Servicing
Standard.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee shall have received an Opinion of Counsel that such amendment
is permitted under the Pooling and Servicing Agreement and will not cause any of
the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMICs to fail to qualify
as a REMIC or result in the imposition of a tax on any of the Upper-Tier REMIC,
the Lower-Tier REMIC or the Loan REMICs or cause the Grantor Trust to fail to
qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust Fund is
reduced to less than 1% of the aggregate Cut-off Date Principal Balance of all
the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: December 10, 2002
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS R CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:_______________________________
AUTHORIZED SIGNATORY
Dated: December 10, 2002
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 Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
----------------------------------------
Dated:_________________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-23
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2002-C2, CLASS LR
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OR (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN
INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT IF SUCH TRANSFEREE IS A QUALIFIED INSTITUTIONAL
BUYER OR AN INSTITUTIONAL ACCREDITED INVESTOR, AND MAY ALSO BE REQUIRED TO
DELIVER AN OPINION OF COUNSEL IF SUCH TRANSFEREE IS NOT A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY PERSON WHICH IS
AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974. AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR ANY GOVERNMENTAL PLAN, AS
DEFINED IN SECTION 3(32) OF ERISA, OR ANY CHURCH PLAN (AS DEFINED IN SECTION
3(33) OF ERISA) FOR WHICH NO ELECTION HAS BEEN MAD UNDER SECTION 410(D) OF THE
CODE SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW WHICH IS, TO A MATERIAL EXTENT,
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN"), OR ANY
PERSON ACTING ON BEHALF OF OR INVESTING THE ASSETS OF A PLAN.
THIS CERTIFICATE IS A "RESIDUAL INTEREST" IN THREE "REAL ESTATE MORTGAGE
INVESTMENT CONDUITS," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G(A)(2) AND 860D OF THE CODE. EACH TRANSFEREE OF THIS CERTIFICATE, BY
ACCEPTANCE HEREOF, IS DEEMED TO HAVE ACCEPTED THIS CERTIFICATE SUBJECT TO
CERTAIN RESTRICTIONS ON TRANSFERABILITY TO DISQUALIFIED ORGANIZATIONS, NON-U.S.
PERSONS OR AGENTS OF EITHER, AS SET FORTH IN SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT AND SHALL BE REQUIRED TO FURNISH AN AFFIDAVIT TO THE
TRANSFEROR, THE PAYING AGENT AND THE TRUSTEE TO THE EFFECT THAT, AMONG OTHER
THINGS, (A) IT IS NOT A DISQUALIFIED ORGANIZATION, AS SUCH TERM IS DEFINED IN
CODE SECTION 860E(E)(5), OR AN AGENT (INCLUDING A BROKER, NOMINEE OR OTHER
MIDDLEMAN) FOR SUCH DISQUALIFIED ORGANIZATION AND IS OTHERWISE A PERMITTED
TRANSFEREE, (B) IT HAS HISTORICALLY PAID ITS DEBTS AS THEY HAVE COME DUE AND
INTENDS TO PAY ITS DEBTS AS THEY COME DUE IN THE FUTURE, (C) IT UNDERSTANDS THAT
IT MAY INCUR TAX LIABILITIES WITH RESPECT TO THIS CERTIFICATE IN EXCESS OF CASH
FLOWS GENERATED HEREBY, (D) IT INTENDS TO PAY ANY TAXES ASSOCIATED WITH HOLDING
THIS CERTIFICATE AS THEY BECOME DUE, (E) IT WILL NOT CAUSE INCOME WITH RESPECT
TO THIS CERTIFICATE TO BE ATTRIBUTABLE TO A FOREIGN PERMANENT ESTABLISHMENT OR
FIXED BASE, WITHIN THE MEANING OF AN APPLICABLE INCOME TAX TREATY OF SUCH PERSON
OR ANY OTHER U.S. PERSON AND (F) IT WILL NOT TRANSFER THIS CERTIFICATE TO ANY
PERSON OR ENTITY THAT DOES NOT PROVIDE A SIMILAR AFFIDAVIT. ANY PURPORTED
TRANSFER TO A DISQUALIFIED ORGANIZATION OR OTHER PERSON THAT IS NOT A PERMITTED
TRANSFEREE OR OTHERWISE IN VIOLATION OF THESE RESTRICTIONS SHALL BE ABSOLUTELY
NULL AND VOID AND SHALL VEST NO RIGHTS IN ANY PURPORTED TRANSFEREE. THIS
CERTIFICATE REPRESENTS A "NON-ECONOMIC RESIDUAL INTEREST," AS DEFINED IN
TREASURY REGULATIONS SECTION 1.860E-L(C), AND THEREFORE, TRANSFERS OF THIS
CERTIFICATE MAY BE DISREGARDED FOR FEDERAL INCOME TAX PURPOSES. IN ORDER TO
SATISFY A REGULATORY SAFE HARBOR UNDER WHICH SUCH TRANSFERS WILL NOT BE
DISREGARDED, THE TRANSFEROR MAY BE REQUIRED, AMONG OTHER THINGS, TO SATISFY
ITSELF AS TO THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE AND EITHER TO
TRANSFER AT A MINIMUM PRICE OR TO AN ELIGIBLE TRANSFEREE AS SPECIFIED IN
REGULATIONS.
PERCENTAGE INTEREST EVIDENCED BY THIS APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL
CERTIFICATE: 100% BALANCE OF THE MORTGAGE LOANS AFTER
DEDUCTING PAYMENTS DUE AND PREPAYMENTS
DATE OF POOLING AND SERVICING RECEIVED ON OR BEFORE CUT-OFF DATE:
AGREEMENT: AS OF DECEMBER 1, 2002 $1,051,299,658
CUT-OFF DATE: AS SET FORTH IN THE SERVICER: WACHOVIA BANK, NATIONAL
POOLING AND SERVICING AGREEMENT (AS ASSOCIATION
DEFINED HEREIN)
SPECIAL SERVICER: ARCAP SPECIAL
CLOSING DATE: DECEMBER 10, 2002 SERVICING, INC.
FIRST DISTRIBUTION DATE: TRUSTEE: XXXXX FARGO BANK MINNESOTA, N.A.
JANUARY 13, 2003
PAYING AGENT: LASALLE BANK NATIONAL
CLASS LR PERCENTAGE INTEREST: 100% ASSOCIATION
CUSIP: 00000XXX0 CERTIFICATE NO.: LR-1-[1]
CLASS LR CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial and multifamily fixed rate balloon and fully amortizing
mortgage loans (the "Mortgage Loans"), all payments on or collections in respect
of the Mortgage Loans due after the Cut-off Date, all REO Properties and
revenues received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Simon Collection Account, the Walgreens Collection Account, the Interest Reserve
Account, the Excess Interest Distribution Account, the Gain-on-Sale Reserve
Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE
UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE
UNITED STATES.
THIS CERTIFIES THAT X.X. XXXXXX SECURITIES INC.
is the registered owner of the interest evidenced by this Certificate in the
Class LR Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of December 1, 2002 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the percentage interest in the Class
of Certificates specified on the face hereof. The Certificates are designated as
the X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage
Pass-Through Certificates, Series 2002-C2 and are issued in twenty-three classes
as specifically set forth in the Pooling and Servicing Agreement. The
Certificates will evidence in the aggregate 100% of the beneficial ownership of
the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Class LR Certificate represents the "residual interest" in
three "real estate mortgage investment conduits," as those terms are defined,
respectively, in Sections 860G(a)(1) and 860D of the Internal Revenue Code of
1986, as amended. Each Holder of this Certificate, by acceptance hereof, agrees
to treat, and take no action inconsistent with the treatment of, this
Certificate in accordance with the preceding sentence for purposes of federal
income taxes, state and local income and franchise taxes and other taxes imposed
on or measured by income. The Holder of the largest Percentage Interest in the
Class LR Certificates shall be the "tax matters person" for each Loan REMIC and
the Lower-Tier REMIC pursuant to Treasury Regulations Section 1.860F-4(d), and
the Servicer is hereby irrevocably designated and shall serve as
attorney-in-fact and agent for any such Person that is the "tax matters person".
Pursuant to the terms of the Pooling and Servicing Agreement,
distributions, if any, on this Certificate shall be made by the Paying Agent to
the extent and subject to the limitations set forth in the Pooling and Servicing
Agreement, on the Distribution Date to the Person in whose name this Certificate
is registered as of the related Record Date. All sums distributable on this
Certificate are payable in the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
The Certificates are limited in right of payment to, among other
things, certain collections and recoveries respecting the Mortgage Loans, all as
more specifically set forth in the Pooling and Servicing Agreement. As provided
in the Pooling and Servicing Agreement, the Certificate Account, the Simon
Collection Account, the Walgreens Collection Account and the Distribution
Accounts will be held on behalf of the Trustee on behalf of the Holders of
Certificates specified in the Pooling and Servicing Agreement and the Servicer
(with respect to the Certificate Account, the Simon Collection Account and the
Walgreens Collection Account) or the Paying Agent (with respect to the
Distribution Accounts) will be authorized to make withdrawals therefrom. Amounts
on deposit in such accounts may be invested in Permitted Investments. Interest
or other income earned on funds in the Certificate Account will be paid to the
Servicer as set forth in the Pooling and Servicing Agreement. As provided in the
Pooling and Servicing Agreement, withdrawals from the Certificate Account shall
be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(f) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(f) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Each Person who has or who acquires any Ownership Interest in a
Class LR Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions and to
have irrevocably authorized the Paying Agent under Section 5.02(b) of the
Pooling and Servicing Agreement to deliver payments to a Person other than such
Person. The rights of each Person acquiring any Ownership Interest in a Class LR
Certificate are expressly subject to the following provisions: (A) No Person
holding or acquiring any Ownership Interest in a Class LR Certificate shall be a
Disqualified Organization or agent thereof (including a nominee, middleman or
similar person) (an "Agent"), a Plan or a Person acting on behalf of or
investing the assets of a Plan (such Plan or Person, an "ERISA Prohibited
Holder") or a Non-U.S. Person and shall promptly notify the Servicer, the
Trustee and the Certificate Registrar of any change or impending change to such
status; (B) In connection with any proposed Transfer of any Ownership Interest
in a Class LR Certificate, the Certificate Registrar shall require delivery to
it, and no Transfer of any Class LR Certificate shall be registered until the
Certificate Registrar receives, an affidavit substantially in the form attached
to the Pooling and Servicing Agreement as Exhibit D-1 (a "Transfer Affidavit")
from the proposed Transferee, in form and substance satisfactory to the
Certificate Registrar, representing and warranting, among other things, that
such Transferee is not a Disqualified Organization or Agent thereof, an ERISA
Prohibited Holder or a Non-U.S. Person, and that it has reviewed the provisions
of Section 5.02(c) of the Pooling and Servicing Agreement and agrees to be bound
by them; (C) Notwithstanding the delivery of a Transfer Affidavit by a proposed
Transferee under clause (B) above, if the Certificate Registrar has actual
knowledge that the proposed Transferee is a Disqualified Organization or an
Agent thereof, an ERISA Prohibited Holder or a Non-U.S. Person, no Transfer of
an Ownership Interest in a Class LR Certificate to such proposed Transferee
shall be effected; (D) The Transferee will not cause the income with respect to
any Class LR Certificate to be attributable to a foreign permanent establishment
or fixed base (within the meaning of an applicable income tax treaty) of such
Transferee or any other Person; and (E) Each Person holding or acquiring any
Ownership Interest in a Class LR Certificate shall agree (1) to require a
Transfer Affidavit from any prospective Transferee to whom such Person attempts
to transfer its Ownership Interest in such Class LR Certificate and (2) not to
transfer its Ownership Interest in such Class LR Certificate unless it provides
to the Certificate Registrar a letter substantially in the form attached to the
Pooling and Servicing Agreement as Exhibit D-2 (a "Transferor Letter")
certifying that, among other things, it has no actual knowledge that such
prospective Transferee is a Disqualified Organization, an Agent thereof, an
ERISA Prohibited Holder or a Non-U.S. Person.
The Class R and Class LR Certificates will be issued in fully
registered, certificated form, in Denominations representing Percentage
Interests of not less than 20%.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Paying Agent and the Certificate Registrar and any of their agents may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Depositor, the Trustee, the Servicer, the Special
Servicer, the Certificate Registrar nor any such agents shall be affected by any
notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer, the Paying Agent and the
Trustee, without the consent of any of the Certificateholders, to cure any
ambiguity, to correct or supplement any provisions therein that may be
inconsistent with any other provisions therein or the Prospectus or the
Prospectus Supplement or to correct any error; to maintain the rating or ratings
assigned to each Class of Certificates by each Rating Agency; to modify,
eliminate or add to any provisions to such extent as is necessary to maintain
the qualification of any of the Upper-Tier REMIC, the Lower-Tier REMIC or the
Loan REMICs as a REMIC, or the Grantor Trust as a grantor trust at all times any
Certificate is outstanding or to avoid or minimize the imposition of any tax,
provided, however, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and such action is necessary or desirable to avoid such tax;
to change the timing and/or nature of deposits into the Certificate Account, the
Simon Collection Account, the Walgreens Collection Account or Distribution
Accounts or REO Account or to change the name in which the Certificate Account,
Simon Collection Account or the Walgreens Collection Account is maintained,
provided, however, that the P&I Advance Date shall not be later than the related
Distribution Date, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating by any Rating Agency, as
evidenced by a letter from such Rating Agency to such effect; to modify,
eliminate or add to the provisions of Section 5.02(c) of the Pooling and
Servicing Agreement or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
and such change shall not, as evidenced by an Opinion of Counsel, cause any of
the Upper-Tier REMIC, the Lower-Tier REMIC, the Loan REMICs or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; and to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of each Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Trustee and the
Paying Agent with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing
of, payments which are required to be distributed on any Certificate
without the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any
Class the Holders of which are required to consent to any such
amendment, without the consent of the Holders of all Certificates of
such Class then outstanding;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent
of each Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders or
written confirmation that such amendment would not result in the
downgrading, qualification or withdrawal of ratings assigned to any
Class of Certificates by any Rating Agency, amend the Servicing
Standard.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause any of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan
REMICs to fail to qualify as a REMIC or result in the imposition of a tax on any
of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMICs or cause the
Grantor Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust Fund is
reduced to less than 1% of the aggregate Cut-off Date Principal Balance of all
the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: December 10, 2002
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS LR CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
AUTHENTICATING AGENT
By:_______________________________
AUTHORIZED SIGNATORY
Dated: December 10, 2002
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 Under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
----------------------------------------
Dated:_________________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
_______________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT B
MORTGAGE LOAN SCHEDULE
Zip
Seq # Borrower Name Address City State Code
------------------------------------------------------------------------------------------------------------------------------------
1 Century III Mall, L.P., Longview Mall, L.P., Various Various Various Various
Highland Lakes Center, LLC
1.1 Century III Mall, L.P., Longview Mall, L.P., 0000 Xxxxxxxx Xxxx Xxxx Xxxxxxx XX 00000
Highland Lakes Center, LLC
1.2 Century III Mall, L.P., Longview Mall, L.P., 0000 XxXxxx Xxxx Xxxxxxxx XX 00000
Highland Lakes Center, LLC
1.3 Century III Mall, L.P., Longview Mall, L.P., 0000 X. Xxxxxxxx Xxxxx Xxxxxxx XX 00000
Highland Lakes Center, LLC
2 00-000 Xxxxxxx Xx., LLC 00/000 Xxxxxxx Xxxxxx Xxxxxx XX 00000
3 ARC Communities I, LLC Various Various Various Various
3.1 ARC Communities I, LLC 0000 X Xxxxxx Xxxxxxx XX 00000
3.2 ARC Communities I, LLC 000 X. Xxxxxxxx Xxx Xxx Xxxxxxxxxx XX 00000
3.3 ARC Communities I, LLC 0000 Xxxxxx Xxxx Xx Xxxxxxxxxx XX 00000
3.4 ARC Communities I, LLC 000 Xxxxxxx Xxxxxx Xx. Xxxxxxxxxx XX 00000
3.5 ARC Communities I, LLC 0000 X. XxxXxxxxx Xx. &
0000 X. Xxxxxx Xx Xxxxxxx XX 00000
3.6 ARC Communities I, LLC 0000 Xxx Xxxxx Xxxxxxx Xx Xxxxxx XX 00000
3.7 ARC Communities I, LLC 0000 X. Xxxxxxx Xxx Xxxxxx XX 00000
3.8 ARC Communities I, LLC 000 Xxxxx Xxxxxxx Xx. Xxxxxxx XX 00000
3.9 ARC Communities I, LLC 0000 Xxxxx Xxxxxxxx Xx. Xxxxxx XX 00000
3.10 ARC Communities I, LLC 000 Xxxx Xx. Xxxxxxx XX 00000
3.11 ARC Communities I, LLC 0000 Xxxx Xxxxxx Xxx Xxxxxxx XX 00000
4 Long Island Industrial Group Two LLC, 000 Xxxx Xxxxxxx Xxxxxxx XX Various
Xxxx LLC, 270-280 Xxxxx LLC, 290 Xxxxx LLC
4.1 Long Island Industrial Group Two LLC, 000 Xxxx 000, 000 & 000 Xxxxx Xxxxxx Xxxxxxxxxx XX 00000
Xxxx LLC, 270-280 Xxxxx LLC, 290 Xxxxx LLC
4.2 Long Island Industrial Group Two LLC, 600 West 000 Xxxx Xxxx Xxxxxx Xxxxxxxxxx XX 00000
Xxxx LLC, 270-280 Xxxxx LLC, 290 Xxxxx LLC
4.3 Long Island Industrial Group Two LLC, 000 Xxxx 000 Xxxx Xxxxx Xxxxxxxxxxx XX 00000
Xxxx LLC, 270-280 Xxxxx LLC, 290 Xxxxx LLC
4.4 Long Island Industrial Group Two LLC, 000 Xxxx Xxx Xxxxxxxxx Xxxxx Xxxxxxxxx XX 00000
Xxxx LLC, 270-280 Xxxxx LLC, 290 Xxxxx LLC
4.5 Long Island Industrial Group Two LLC, 000 Xxxx 000 Xxxxx Xxxxxxx Xxxxxxxxxxx XX 00000
Xxxx LLC, 270-280 Xxxxx LLC, 290 Xxxxx LLC
4.6 Long Island Industrial Group Two LLC, 000 Xxxx 000 Xxxxx Xxxxxx Xxxxxxxxxxx XX 00000
Xxxx LLC, 270-280 Xxxxx LLC, 290 Xxxxx LLC
4.7 Long Island Industrial Group Two LLC, 600 West 000-000 Xxxxxxx Xxxx Xxxx Xxxx XX 00000
Xxxx LLC, 270-280 Xxxxx LLC, 290 Xxxxx LLC
5 West 50th (DEL) LLC 000 Xxxx 00xx Xxxxxx Xxx Xxxx XX 00000
6 1400 LSD, LLC 0000 Xxxx Xxxxx Xxxxx Xxxxxxx XX 00000
7 000 0xx Xxxxxx, LLC 000 Xxxxx Xxxxxx Xxx Xxxx XX 00000
8 CCDC Marion Portfolio LP 000 Xxxxxxx Xxxx Xxxx Xxxxxx XX 00000
0 Xxxxxxxxx Xxxxxxx Xxxxxx, X.X.X. xxx Xxxxxxxxx 000 Xxxxxxxxx Xxxx Xxxxxxxxx XX 00000
Xxxxxxx Xxxxxx XX, X.X.X.
00 XXXX Xxxxxxxxx Ltd. 0000 X.X. 000xx Xxxxxx Xxxxx Xxxxx XX 00000
11 Thirty-Four Marketplace Acceptance, LLC 00 Xxxxxx Xxxxx Xxxxxxxxx XX 00000
12 Coventry Green LLC 0000 Xxxxxxxx Xxxxx Xxxxxx Xxxxxxxx XX 00000
13 Aviana Company, Ltd., LLC 00000 Xxxx XX Xxxxxxx 00 Xxxx XX 00000
00 Xxxx Xxxxxx Xxxxxxxx, XXX, XXX Xxxx Xxxxxx 6601 South 190th Street,
and 9200-66th Xxxx XX 00000
Business Park Partners LLC Avenue South
15 ZKS Richmond Holdings, LLC 0000 Xxxxxxx Xxxx. Xxxxxxxx XX 00000
16 Twenty-Six SAC Self-Storage, LP Various Various Various Various
16.1 Twenty-Six SAC Self-Storage, LP 0000 Xxxxxxxx Xxxxxxxxx Xxx Xxxxxxxxx XX 00000
16.2 Twenty-Six SAC Self-Storage, LP 00000 XX 00 Xxxxx Xxxxxxxxxx XX 00000
16.3 Twenty-Six SAC Self-Storage, LP 0000 X Xxxxxx Xxxxxx Xxxxxxx XX 00000
16.4 Twenty-Six SAC Self-Storage, LP 0000 Xxxxx Xxxxx Xxxxxx Xxxxxx XX 00000
16.5 Twenty-Six SAC Self-Storage, LP 00 Xxxxxxxx Xxxxxx Xxxxx Xxxx XX 00000
17 First Xxxxxx LLC 0000 Xxxxx Xxxxx Xxxx Xxxxxxx XX 00000
18 Xxxxxxxx Massillon, LLC, WC Massillon, LLC, SBW 0000 Xxxx Xxx. XX Xxxxxxxxx XX 00000
Massillon, LLC, WMS Massillon, LLC, NSHE
Xxxxxxxx, LLC
19 Biscayne Centre, LLC 00000 Xxxxxxxx Xxxxxxxxx Xxxxx XX 00000
00 Xxx Xxxxxx Xxxxxx LLC 0000 Xxxxxxxx Xxxxxxxxx Xxxxxx XX 00000
21 NNN Wolf Pen Plaza, LLC 1901 - 0000 Xxxxx Xxxxxx
Xxxxx Xxxxxxx Xxxxxxx XX 00000
22 J. Supor, LLC 000 Xxxxx Xxxxxxxxx Xxxxxxxx XX 00000
23 Hillsdale, L.P. 00000 Xxxxxxx Xxxxxxx Xxxxxxx XX 00000
24 SFT Tigerfish LLC 0000 Xxxxx 0xx Xxxxxx Xxxxxxx XX 00000
00 Xxxxxx Xxxxx Xxxxxx, X.X.X. 0000-0000 & 0000-0000 Xxxx
000xx Xxxxxx Xxxxxx Xxxxx XX 00000
26 Xxxx/Legacy Limited Partnership 4130, 4140, 0000 Xxxxxx
Xxxxx, 0000 xxx Xxxxx XX 00000
0000 Xxxx Xxxx
27 000 Xxxxxxxx Xxxx LLC 000 Xxxxxxxx Xxxx Xxxxxxxxxxxx XX 00000
00 Xxxx Xxx - Xxxxxxxx, X.X.X. 0000 Xxxx Xxxxx Xxxxxxxx XX 00000
29 Opelika Portfolio, L.P. 0000 Xxxxxxxxx Xxxx Xxxxxxx XX 00000
30 Arbor Green Apartments LLC 0000 Xxxxx Xxxxx Xxxx Xxxxxxxxxxxx XX 00000
00 Xxxxx Xxxxxx Xxxxxx, LLC 0000 Xxxxxx Xxxxxx Xxx Xxxxxxxxx XX 00000
32 Vanstory Apartments, LLC 0000 Xxxxxxxx Xxxxxx Xxxxxxxxxx XX 00000
33 Xxxx Xxxxxx Bank 000 Xxxxx Xxxxxxxx Xxxxxx Xxxxxxx XX 00000
00 XXX Xxxxxxx Limited Partnership 0000-0000 Xxxxx Xxxxxxxxxx
Xxxxx Xxxxxxx XX 00000
35 IFP, LLC 216-218, 220-222, 000-000
Xxxxxx Xxxxxx Xxxxxxxx XX 00000
36 The Advantages Apartments LLC 0000 Xxxxxxxx Xxxxxx Xxxxxxx XX 00000
37 Lake Xxxxxx Investments, Ltd. 0000 Xxxxx Xx Xxxxxx Xxxxx Xxxxxx XX 00000
38 Family Car Johnston, Inc 0000 XX 00xx Xxxxxx Xxxxxxxx XX 00000
39 Richland Mobile Home Park LLC 00 Xxxxxxx Xxxx Xxxxxxxx XX 00000
00 Xxxxxxxx Xxxxxx LLC 0000 Xxxxxxxx Xxxxx Xxxxxxxx XX 00000
41 Belair Center, LP 0000-0000 Xxxxxxxxx Xxxxxx Xxxxxxxxxxxx XX 00000
42 Kalamazoo Properties Limited Partnership Xxxxxxx Xxxxxxxxx XX 00000
42.1 Kalamazoo Properties Limited Partnership 0000-0000 Xxxxxxxxx Xxxxxx
& 1504, 1514 Kalamazoo MI 00000
Xxxxxxxxxx Xxxxxx
42.2 Kalamazoo Properties Limited Partnership 2725 & 0000 Xxxxxxx Xxx Xxxxxxxxx XX 00000
42.3 Kalamazoo Properties Limited Partnership 0000-0000 Xxxxxxxxx Xxx Xxxxxxxxx XX 00000
43 Kings Ambassador Associates, Ltd 0000 Xxxx Xxxxx Xxxxxxxxx Xxxxx XX 00000
00 Xxxxxxxx Xxxx Investors Group, LTD 000 Xxxxxxxx Xxxx Xxxxx Xxxxxxxxxx XX 00000
45 Lincoln-Inwood Plaza, Ltd. 13615 - 00000 Xxxxxx Xxxx Xxxxxxx Xxxxxx XX 00000
46 DonBev Properties I, Ltd. LP 0000 X. Xxxxxx Xxx Xxxxxx XX 00000
47 Fiesta Grande RV I, LLC 0000 Xxxx Xxxxxxxx
Xxxxxxxxx Xxxx Xxxxxx XX 00000
00 Xxxxxx Xxxxxxx Company, LP 000 Xxxxxxxxxxx Xxxxx Xxxxx Xxxx Xxxxx XX 00000
Hundred
49 Springhill Properties, L.P. 0000 Xxxxxx Xxxx Xxxx Xxxxxxxxxxxx XX 00000
50 Northwood Domit Apartments, Ltd. 000 Xxxx Xxxxxxxx XxXxxxx XX 00000
51 REA Riverside General, LLC 9867 - 0000 Xxxxxxxx Xxxxxx Xxxxxxxxx XX 00000
00 XXX Xxxxx Xxxx LLC 0000 Xxxxxxxxx Xxxx Xxxx XX 00000
53 Access Self Storage of Xxxxx, LLC 000 Xxxxxxx Xxxxxx Xxxxx XX 00000
54 Ventnor Associates Company, LP 0000 Xxxxxxx Xxxx Xxxxxxxx XX 00000
55 Regency 2000, LLC 0000 Xxxxxxx Xxxxx Xxxxxx XX 00000
56 Hartford Centre Associates, LLC 729, 755, & 000 X. Xxxxx 00 Xxxxxxxxxxx XX 00000
57 MLMD Realty, LP 0000 Xxxxxxx Xxxxxxx Xxxxxxxxx XX 00000
00 Xxxxxxxxxx Xxxxx Partners, LP 00000 Xxxxxxxxxx Xxxxx Xxxxxxx XX 00000
59 Palm Beach SA, LLC 0000 Xxxxxxxxx Xxxx Xxxx Xxxxx Xxxxxxx XX 00000
00 X & X Xxxxxxxxx Xxxx X.X. 00 Xxxxxxxxx Xxxx Xxxxxxxxxxx XX 00000
61 Seneca Townhouse Apartments LLC 0000 Xxxxxx Xxxxxxxxx Xxxxxxxxx Xxxxxxx XX 00000
00 Xxxxxxx Xxxxx Combined Joint Venture 0000 Xxxxxxx Xxxxxx Xxxx Xxxxxxxxxxxx XX 00000
63 Carnegie Investors, L.P. 0000-0000 Xxxxxxxx Xxxxxx Xxxxx Xxx XX 00000
64 GPI Real Estate, LLC 0000-0000 X Xxxxxx Xxxxx Xxxxxxxx XX 00000
65 Coit/Legacy Limited Partnership 0000 Xxxxxx Xxxxx Xxxxx XX 00000
66 Marina Corporate Center, LLC 0000 Xxxxxx Xxxxxx Xxx Xxxxxxx XX 00000
67 Xxxxxx Vista Apartments, LLC 0000 Xxxxxx Xxxxxx Xxxxxxxx XX 00000
68 DLJ/Xxxxxxxx, LLC 0000 Xxxx Xxxxxx Xxxxxx Xxxxxxx XX 00000
69 Royal Timber Associates, LP 000 Xxxx Xxxx Xxxxx Xxxxxx Xxx Xxxxxx XX 00000
00 Xxxxx Xxxxxx Xxxxxx LP 000-000 Xxxxxxxxxx Xxxxxx Xxxxxxxxxx XX 00000
71 King Xxxxxx Apartments, LLC 000 Xxxxxx Xxxxx Xxxx Xxxxxxxx XX 00000
72 South Brook Villa Limited Dividend Housing 000-000 X. Xxxxxxxx Xxxx Xxxxxxx XX 00000
Association LLC
73 Bluegrass Xxxxxxx Rentals LLC Calumet Drive, Jockey
Drive & Xxxx Xxxx Xx Xxxxxxxxxxx XX 00000
00 Xxxx Xxxx Xxxxxxxx, LLC 000 Xxxx Xxxxxxxx Xxxxxx Xxxxxxxxx-Xxxxxxxxx XX 00000
75 Olde English Village, LP 3400 - 0000 Xxxxx Xxxxxxxx Xxxxx XX 00000
76 BLMA Ltd. 000-000 Xxxxx XxxXxxxxx
Xxxx. Xxxxxx Xxxxx XX 00000
(Coppell)
00 Xxxxxxx Xxxxx LP 0000 Xxxxx Xxxx Xxxxx Xxxxxxxx XX 00000
Hills
78 Xxxxxx Investments, LLC 0000 Xxxx Xxxxxx Xxxxxx Xxxxxxx XX 00000
79 Aberdeen Associates, LP 000 Xxxxx 00 Xxxxxxxxx XX 00000
00 Xxxxx Xxxxx Xxxxxxxx Apartments, LLC 000 Xxxxxxxxx Xxxxxx Xxxxx Xxxx XX 00000
81 The Liu Family Trust 00000 Xxxxxxx Xxxxx Xxxx Xxxxxxxx XX 00000
82 Family Car Missoula, Inc. 0000 Xxxxxx Xxxx Xxxxxxxx XX 00000
00 Xxxxxxxx Xxxxx, LLC 00000 Xxxxxxxx Xxxx Xxxxx XX 00000
84 Woodlawn Corner, LLC 0000 Xxxx Xxxxxx Xxxx. Xxxxxx XX 00000
85 MDR Cookeville LLC, HRT Cookeville LLC, AJB 000 X. Xxxxxx Xxx Xxxxxxxxxx XX 00000
Cookeville LLC, KSB Cookeville LLC, and VRH
Cookeville LLC
86 C&D Madison, LLC 0000 Xxxxx Xxx Xxxxxxx XX 00000
87 0000 Xxxxxxxx Xxxx, LLC 0000 Xxxxxxxx Xxxxx Xxxxxxxxxx XX 00000
00 Xxxxxxxx Xxxxxxxx, LLC 0000 Xxxxxxxxx Xxxxxx Xxxxx Xxxxxxx XX 00000
89 Okoboji's Holidays of Crescent Beach, Inc. 0000 Xxx Xxx Xxxx Xx Xxxxxx Xxxxxxx XX 00000
00 Xxx Xxxx Villas, LLC 0000 Xxx Xxx Xxxxx Xxxxxxxxxxxx XX 00000
91 Xxxx X. Xxxxxxxxx, Trustee of the 0000 Xxxxxxx 1545-1555 Xxxxxxx Xxxxxx Xxxxxx XX 00000
Street Realty Trust
92 Tibo Management, Inc. 0000 Xxxxxxxxxx Xxxxx Xx Xxxxxx XX 00000
93 Trio Investments, LLC 0000 X. Xxxxxx Xxxx Xxxxxxx XX 00000
00 Xxxx-Xxx/0 Xxxxxx, LLC 0000 Xxxxxxxxxx Xxxx Xxxx Xxxxxxxxxx XX 00000
00 Xxxxxxxx Xxxxxxxxxx, XXX 0000-0000 00xx Xxxxxx XX Xxxxx XX 00000
96 Sugar Tree Square, L.L.C. 0000-0000 Xxxxxxx Xxxx Xxxx Xxxx Xxxxxxxxxx XX 00000
97 Metro Junction, LLC 0000 Xxxxxxx 00 Xxxx Xxxxxxx XX 00000
98 PVM, LLC 0000 Xxxxxxxxx Xxxxx Xxxxxxx XX 00000
99 Sports Shed, Inc. 0000 Xxxxx Xxxxxxx 000 XxxXxxxx XX 00000
000 Xxxx Xxxxx Xxxxxxx MHC, LLC 0000 Xxxx X.X. Xxxxx 00 Xxxxxxxxxx XX 00000
000 Xxxxxx Xxx Properties, LP 000 Xxxxx Xxxxx Xxxxxx Xxxxxxx XX 00000
102 Cedarwood Domit Apartments, Ltd. 0000 Xxxxx X Xxxxxx XxXxxxx XX 00000
000 Xxxx Xxxxx Mobile Associates, L.L.C. 0000 Xxxx 00 Xxxx Xxxx Xxxxxx XX 00000
000 Xxxxxxx X. Xxxxxx 000 Xxxx 00xx Xxxxxx Xxx Xxxx XX 00000
105 Sun Village LLC 00000 Xxxxxxxx Xxxx. Xxxxx XX 00000
000 Xxxxxxxx Xxxx Apartments, LLC 0000-0000 Xxxxxxxx Xxxx Xxxxxxxxxxx XX 00000
000 Xxxxxxx Xxxxxxx MHP, Inc. 000 Xxxxxxx Xxxx Xxxxxxxxxx XX 00000
108 Open Sky Inc. 0000 Xxxxx Xxxxxx & 5000,
5011. 5021. Xxxxxxx XX 00000
5031-5041 Lancaster St.
Net
Interest Mortgage
Rate Interest Original
Seq # Borrower Name County Property Name (%) Rate Balance
------------------------------------------------------------------------------------------------------------------------------------
1 Century III Mall, L.P., Longview Mall, L.P., Various Simon Portfolio II 6.2000 6.15790 139,000,000.00
Highland Lakes Center, LLC
1.1 Century III Mall, L.P., Longview Mall, L.P., Allegheny Century III Mall
Highland Lakes Center, LLC
1.2 Century III Mall, L.P., Longview Mall, L.P., Xxxx Longview Mall
Highland Lakes Center, LLC
1.3 Century III Mall, L.P., Longview Mall, L.P., Orange Highland Lakes Center
Highland Lakes Center, LLC
2 00-000 Xxxxxxx Xx., LLC Suffolk 00/000 Xxxxxxx Xxxxxx 4.8593 4.83220 100,000,000.00
3 ARC Communities I, LLC Various ARC Portfolio A 7.3500 7.32790 45,716,015.00
3.1 ARC Communities I, LLC Weld Villa West
3.2 ARC Communities I, LLC San Bernardino Meridian Terrace
3.3 ARC Communities I, LLC Xxxxxx Highland Acres
3.4 ARC Communities I, LLC Xxxxxx Eagle Ridge
3.5 ARC Communities I, LLC Sedgwick Twin Oaks
3.6 ARC Communities I, LLC Pueblo Sunset Country
3.7 ARC Communities I, LLC Pueblo Oasis
3.8 ARC Communities I, LLC Dallas Golden Triangle
3.9 ARC Communities I, LLC Dallas Rolling Hills
3.10 ARC Communities I, LLC Dallas Oak Park Village
3.11 ARC Communities I, LLC Madison Oak Grove
4 Long Island Industrial Group Two LLC, 000 Xxxx Xxxxxxx Xxxx Xxxxxx Industrial 6.0440 6.00190 39,540,000.00
Xxxx LLC, 270-280 Xxxxx LLC, 290 Xxxxx LLC Portfolio II
4.1 Long Island Industrial Group Two LLC, 000 Xxxx Xxxxxx 000, 280 & 290 Xxxxx
Xxxx LLC, 270-280 Xxxxx LLC, 290 Xxxxx LLC Avenue
4.2 Long Island Industrial Group Two LLC, 000 Xxxx Xxxxxx 000 Xxxx Xxxx Xxxxxx
Xxxx LLC, 270-280 Xxxxx LLC, 290 Xxxxx LLC
4.3 Long Island Industrial Group Two LLC, 000 Xxxx Xxxxxxx 200 Xxxx Court
Xxxx LLC, 270-280 Xxxxx LLC, 290 Xxxxx LLC
4.4 Long Island Industrial Group Two LLC, 000 Xxxx Xxxxxx One Xxxxxxxxx Court
Xxxx LLC, 270-280 Xxxxx LLC, 290 Xxxxx LLC
4.5 Long Island Industrial Group Two LLC, 000 Xxxx Xxxxxxx 185 Price Parkway
Xxxx LLC, 270-280 Xxxxx LLC, 290 Xxxxx LLC
4.6 Long Island Industrial Group Two LLC, 000 Xxxx Xxxxxxx 000 Xxxxx Xxxxxx
Xxxx LLC, 270-280 Xxxxx LLC, 290 Xxxxx LLC
4.7 Long Island Industrial Group Two LLC, 000 Xxxx Xxxxxxx 000-000 Xxxxxxx Xxxx
Xxxx LLC, 270-280 Xxxxx LLC, 290 Xxxxx LLC
5 West 50th (DEL) LLC New York The Cameo Apartments 6.0600 6.01790 26,400,000.00
6 1400 LSD, LLC Xxxx 0000 Xxxx Xxxxx Xxxxx 5.5880 5.5459 26,100,000.00
7 000 0xx Xxxxxx, XXX Xxx Xxxx 000 Xxxxx Xxxxxx 5.2500 5.20790 25,000,000.00
8 CCDC Marion Portfolio XX Xxxxxxxxxx Circuit City Distribution 6.8500 6.80790 22,650,000.00
Center
0 Xxxxxxxxx Xxxxxxx Xxxxxx, X.X.X. xxx Xxxxxxxxx Xxxx Xxxxxxxxx Village 7.2500 7.20790 22,500,000.00
Xxxxxxx Xxxxxx XX, X.X.X.
00 XXXX Xxxxxxxxx Ltd. Miami-Dade Greenwich Park Apartments 6.0000 5.95790 22,000,000.00
11 Thirty-Four Marketplace Acceptance, LLC Baltimore City Power Plant Live 7.4300 7.38790 21,882,733.78
12 Coventry Green LLC Erie Coventry Green Apartments 6.4000 6.35790 17,750,000.00
13 Aviana Company, Ltd., LLC Xxxxxxxxx Avon Commons 6.9300 6.83790 17,500,000.00
14 West Valley Partners, LLC, DBA Xxxx Xxxxxx Xxxx Xxxx Xxxxxx Xxxxxxxx Xxxx 6.1500 6.10790 17,400,000.00
Business Park Partners LLC
15 ZKS Richmond Holdings, LLC Contra Costa Richmond Distribution 6.8900 6.84790 16,000,000.00
Center
16 Twenty-Six SAC Self-Storage, LP Various U-Haul Portfolio 7.8700 7.82790 15,599,000.00
16.1 Twenty-Six SAC Self-Storage, LP San Francisco 708066 U-Haul San
Francisco
16.2 Twenty-Six SAC Self-Storage, LP Pinellas 786069 U-Haul Clearwater
16.3 Twenty-Six SAC Self-Storage, LP Orange 785057 U-Haul Orlando
16.4 Twenty-Six SAC Self-Storage, LP Los Angeles 716024 U-Haul Pomona
16.5 Twenty-Six SAC Self-Storage, XX Xxxxxxxxxx 725069 U-Haul Rapid City
17 First Xxxxxx LLC Xxxxx The Barrington Apts. 6.1000 5.97790 14,560,000.00
18 Xxxxxxxx Massillon, LLC, WC Massillon, LLC, SBW Xxxxx 0000 Xxxx Xxx. XX 6.0500 6.00790 13,916,000.00
Massillon, LLC, WMS Massillon, LLC, NSHE
Xxxxxxxx, LLC
19 Biscayne Centre, LLC Miami-Dade Biscayne Center 5.9500 5.90790 13,500,000.00
00 Xxx Xxxxxx Xxxxxx LLC Jefferson Cub Square 7.2200 7.17790 12,500,000.00
21 NNN Wolf Pen Plaza, LLC Brazos Wolf Pen Plaza 6.4000 6.35790 12,265,000.00
22 J. Supor, LLC Xxxxxx Supor Industrial Park 6.9000 6.85790 12,000,000.00
23 Hillsdale, X.X. Xxxxxx Willowbrook II Shopping 7.3600 7.31790 11,750,000.00
Center
24 SFT Tigerfish LLC Maricopa Acapella Apartments 6.0000 5.95790 11,000,000.00
00 Xxxxxx Xxxxx Xxxxxx, X.X.X. Xxxx Xxxxxx Xxxx Center 6.9100 6.86790 10,850,000.00
26 Coit/Legacy Limited Partnership Collin Plaza on Legacy 6.7200 6.67790 10,625,000.00
27 000 Xxxxxxxx Xxxx LLC Worcester Southborough Place 7.0000 6.95790 10,500,000.00
00 Xxxx Xxx - Xxxxxxxx, X.X.X. San Xxxxxxx Xxxxxx Xxxxxx Distribution 6.8500 6.80790 9,850,000.00
29 Opelika Portfolio, L.P. Xxx Xxxx'x Home Improvement 6.0300 5.98790 9,260,000.00
30 Arbor Green Apartments LLC Xxxxxx Arbor Green Apartments 6.6750 6.60290 9,080,000.00
00 Xxxxx Xxxxxx Xxxxxx, LLC San Francisco 0000 Xxxxxx Xxxxxx 7.0000 6.95790 8,900,000.00
32 Vanstory Apartments, LLC Xxxxxxxx Xxxxxxxx Pointe Apartments 5.9000 5.85790 8,000,000.00
33 Xxxx Xxxxxx Bank Xxxx 000 Xxxxx Xxxxxxxx Xxxxxx 6.2000 6.15790 7,800,000.00
00 XXX Xxxxxxx Limited Partnership Broward Miramar Parkway Plaza 8.6250 8.58290 7,660,000.00
35 IFP, LLC Xxxxxxxx Indian Footprint 6.9500 6.90790 7,450,000.00
Apartments
36 The Advantages Apartments LLC Xxxxx Advantages Apartments 6.7500 6.70790 7,200,000.00
37 Lake Xxxxxx Investments, Ltd. San Xxxxxxxxxx Xxxxxx Creek Mobile Home
& Park 6.0800 6.03790 7,150,000.00
Unincorporated
Riverside
38 Family Car Xxxxxxxx, Inc Polk Wynnsong 16 Theatre 9.0200 8.97790 6,878,000.00
(Xxxxxxx)
39 Richland Mobile Home Park LLC Xxxxxx Richland MHP 6.0000 5.90790 6,700,000.00
40 Xxxxxxxx Exeter LLC Xxxxxxxx Xxxxxxxx Village 7.2500 7.20790 6,500,000.00
Apartments
41 Belair Center, LP Philadelphia Belair Shopping Center 6.0000 5.95790 6,350,000.00
42 Kalamazoo Properties Limited Partnership Kalamazoo Kalamazoo Apt. Portfolio 6.2500 6.20790 6,300,000.00
42.1 Kalamazoo Properties Limited Partnership Kalamazoo West Campus Apartments
42.2 Kalamazoo Properties Limited Partnership Kalamazoo Redwood Apartments
42.3 Kalamazoo Properties Limited Partnership Kalamazoo Oak Forest Apartments
43 Kings Ambassador Associates, Ltd Hillsborough Andover Club Apartments 7.4000 7.35790 6,170,000.00
00 Xxxxxxxx Xxxx Investors Group, LTD Jefferson Heritage Hill 6.2500 6.15790 5,950,000.00
45 Lincoln-Inwood Plaza, Ltd. Dallas Inwood Plaza 6.2500 6.20790 5,750,000.00
46 DonBev Properties I, Ltd. LP San Bernardino Las Brisas Apartments 5.7500 5.70790 5,700,000.00
47 Fiesta Grande RV I, LLC Pinal Fiesta Grande 6.0000 5.90790 5,600,000.00
48 Xxxxxx Gardens Company, LP New Castle Spring Run Apartments 6.0000 5.95790 5,500,000.00
49 Springhill Properties, X.X. Xxxxxx SpringHill Apartments 6.2500 6.20790 5,500,000.00
50 Northwood Domit Apartments, Ltd. Xxxxxxx Northwood Domit Apartments 6.3100 6.26790 5,400,000.00
51 REA Riverside General, LLC Riverside Riverside General Plaza 6.2300 6.18790 5,400,000.00
00 XXX Xxxxx Xxxx LLC Washoe North Reno Plaza 7.3000 7.25790 5,400,000.00
53 Access Self Storage of Clark, LLC Union Access Self Storage 6.3000 6.25790 5,000,000.00
54 Ventnor Associates Company, LP Bucks Shaminy Brook Apartments 6.0000 5.95790 5,000,000.00
55 Regency 2000, LLC Xxxxx 2000 Regency 7.7300 7.68790 5,000,000.00
56 Hartford Centre Associates, LLC DuPage Hartford Center 6.4050 6.36290 4,850,000.00
57 MLMD Realty, XX Xxxx Walgreens Knoxville 7.4780 7.43590 4,800,000.00
00 Xxxxxxxxxx Xxxxx Partners, XX Xxxxxx Wellington Place 5.9000 5.85790 4,650,000.00
Apartments
59 Palm Beach SA, LLC Palm Beach Sports Authority 7.1500 7.10790 4,650,000.00
00 X & X Xxxxxxxxx Xxxx X.X. Delaware Raymour & Xxxxxxxx 7.1500 7.10790 4,425,000.00
61 Seneca Townhouse Apartments LLC Cuyahoga Seneca Lake 6.0000 5.90790 4,350,000.00
62 Regency Place Combined Joint Venture Xxxxx Regency Place Apartments 6.6500 6.60790 4,300,000.00
63 Carnegie Investors, L.P. Orange Santa Xxx Business Center 6.2500 6.20790 4,300,000.00
64 GPI Real Estate, LLC Milwaukee Glendale Industrial 7.4900 7.44790 4,275,000.00
65 Xxxx/Legacy Limited Partnership Collin Plaza on Legacy - Rainbow 6.5000 6.45790 4,240,000.00
66 Marina Corporate Center, LLC Alameda Marina Corporate Center 6.9000 6.85790 4,200,000.00
67 Xxxxxx Vista Apartments, LLC San Xxxxxxxxxx Xxxxxx Vista Apts 6.0000 5.90790 4,200,000.00
68 DLJ/Xxxxxxxx, LLC Alameda 0000 Xxxx Xxxxxx Xxxxxx 6.5000 6.40790 4,000,000.00
69 Royal Timber Associates, LP Ocean County Royal Timbers Apartments 8.0000 7.95790 3,870,000.00
00 Xxxxx Xxxxxx Xxxxxx XX Xxxxxxxxx Apple Valley Shopping 6.4500 6.40790 3,800,000.00
Center
71 King Xxxxxx Apartments, LLC Chatham King Xxxxxx Apartments - 6.0000 5.95790 3,750,000.00
Phase II
72 South Brook Villa Limited Dividend Housing Xxxxxx Southbrook Villa 6.7000 6.65790 3,500,000.00
Association LLC
73 Bluegrass Xxxxxxx Rentals LLC Xxxxxxxxxx Bluegrass Xxxxxxx 7.0000 6.95790 3,500,000.00
74 Twin City Crossing, LLC Lexington Twin City Crossing 6.7900 6.74790 3,500,000.00
75 Olde English Village, XX Xxxxx Olde English Village 7.1000 7.05790 3,500,000.00
76 BLMA Ltd. Dallas Valley Ranch Plaza 6.5000 6.45790 3,450,000.00
Shopping Center
00 Xxxxxxx Xxxxx XX Xxxxxxx Xxxxxxxxx Xxxxx Xxxxxxxx 7.1500 7.10790 3,350,000.00
Hills
78 Xxxxxx Investments, LLC Xxxx Xxxxxx House 6.0000 5.90790 3,300,000.00
79 Aberdeen Associates, LP Monmouth Eckerds Drug Store 6.2900 6.24790 3,050,000.00
00 Xxxxx Xxxxx Xxxxxxxx Apartments, LLC Orange South Coast Paularino 5.7500 5.70790 3,000,000.00
Apartments
81 The Liu Family Trust Los Angeles Hillside Terrace 5.7500 5.70790 3,000,000.00
Apartments
82 Family Car Missoula, Inc. Missoula Carmike 10 Missoula 9.0200 8.97790 2,975,000.00
00 Xxxxxxxx Xxxxx, LLC Pinellas Cardinal Court 6.3500 6.30790 2,880,000.00
00 Xxxxxxxx Xxxxxx, XXX Xxxx Xxxxxxxxx Xxxxxx 6.5150 6.47290 2,850,000.00
85 MDR Cookeville LLC, HRT Cookeville LLC, AJB Xxxxxx Walgreens Cookeville 6.9500 6.90790 2,770,000.00
Cookeville LLC, KSB Cookeville LLC, and VRH
Cookeville LLC
86 C&D Madison, LLC Xxxxxx Xxxxxxx Square Apartments 6.5000 6.37790 2,720,000.00
87 0000 Xxxxxxxx Xxxx, LLC Allegheny Eckerds-Brighton Heights 6.9000 6.79790 2,550,000.00
00 Xxxxxxxx Xxxxxxxx, LLC Xxxxxxx Westgate Apartments 7.6100 7.56790 2,450,000.00
89 Okoboji's Holidays of Crescent Beach, Inc. Seminole Walgreens Winter Springs 6.9750 6.82790 2,400,000.00
00 Xxx Xxxx Villas, LLC Christian Oak Tree Villas 6.2500 6.15790 2,390,000.00
91 Xxxx X. Xxxxxxxxx, Trustee of the 1545 Xxxxxxx Norfolk Landmark Office Building 7.4300 7.38790 2,365,000.00
Street Realty Trust
92 Tibo Management, Inc. Xxxxxxx Eckerds-Naples 7.0000 6.85290 2,352,000.00
93 Trio Investments, LLC Shelby Walgreens Memphis 7.2500 7.20790 2,625,000.00
94 Sher-Wil/5 Points, LLC Tuscaloosa CVS Tuscalloosa 6.3000 6.17790 2,230,000.00
00 Xxxxxxxx Xxxxxxxxxx, XXX Xxxx Xxxxxxxx Apartments 5.6000 5.55790 2,205,000.00
00 Xxxxx Xxxx Xxxxxx, X.X.X. Xxxxxxx Sugar Tree Shopping Center 6.2800 6.15790 2,100,000.00
97 Metro Junction, LLC Xxxxx Metro Junction 6.9500 6.90790 2,000,000.00
98 PVM, LLC Orange PVM Industrial Building 7.1110 7.06890 2,000,000.00
99 Sports Shed, Inc. Xxxxxx Sports Shed 8.4200 8.37790 2,000,000.00
000 Xxxx Xxxxx Xxxxxxx MHC, LLC Xxxxxxx Blue Ridge MHC 6.5500 6.44790 1,750,000.00
000 Xxxxxx Xxx Properties, XX Xxxxxxx CVS Oakland 6.7500 6.70790 1,660,000.00
000 Xxxxxxxxx Xxxxx Xxxxxxxxxx, Ltd. Xxxxxxx Cedarwood Domit Apartments 6.3100 6.26790 1,600,000.00
000 Xxxx Xxxxx Mobile Associates, L.L.C. Xxxxx Twin Pines MHP 7.0000 6.95790 1,600,000.00
000 Xxxxxxx X. Xxxxxx Xxx Xxxx 000 Xxxx 00xx Xxxxxx 6.3500 6.30790 1,520,000.00
105 Sun Village LLC Pinellas Sun Village MHP 6.3500 6.30790 1,500,000.00
000 Xxxxxxxx Xxxx Apartments, LLC Xxxxxxxx Xxxxxxxx Cove Apartments 7.0000 6.95790 1,440,000.00
000 Xxxxxxx Xxxxxxx MHP, Inc. Chemung Pioneer Village Mobile 6.2500 6.20790 1,400,000.00
Home Park
108 Open Sky Inc. Dauphin C & F Apts 7.1500 7.10790 1,145,000.00
Monthly
Cutoff Rem. Maturity/ Amort. Rem. Debt Servicing Accrual
Seq # Borrower Name Balance Term Term ARD Date Term Amort. Service Fee Rate Type
------------------------------------------------------------------------------------------------------------------------------------
1 Century III Mall, L.P.,
Longview Mall, L.P., 138,757,044.70 120 118 10/10/12 360 358 709,426.29 0.040000 Actual/360
Highland Lakes Center, LLC
1.1 Century III Mall, L.P.,
Longview Mall, L.P.,
Highland Lakes Center, LLC
1.2 Century III Mall, L.P.,
Longview Mall, L.P.,
Highland Lakes Center, LLC
1.3 Century III Mall, L.P.,
Longview Mall, L.P.,
Highland Lakes Center, LLC
2 00-000 Xxxxxxx Xx., LLC 99,880,850.30 120 119 11/1/12 360 359 524,091.36 0.025000 Actual/360
3 ARC Communities I, LLC 45,531,430.70 119 113 5/1/12 360 354 314,971.00 0.020000 Actual/360
3.1 ARC Communities I, LLC
3.2 ARC Communities I, LLC
3.3 ARC Communities I, LLC
3.4 ARC Communities I, LLC
3.5 ARC Communities I, LLC
3.6 ARC Communities I, LLC
3.7 ARC Communities I, LLC
3.8 ARC Communities I, LLC
3.9 ARC Communities I, LLC
3.10 ARC Communities I, LLC
3.11 ARC Communities I, LLC
4 Long Island Industrial
Group Two LLC, 600 West 39,468,410.85 120 118 10/10/12 360 358 238,181.96 0.040000 Actual/360
Xxxx LLC, 270-280 Xxxxx
LLC, 290 Xxxxx LLC
4.1 Long Island Industrial
Group Two LLC, 600 Xxxx
Xxxx LLC, 270-280 Xxxxx
LLC, 290 Xxxxx LLC
4.2 Long Island Industrial
Group Two LLC, 600 Xxxx
Xxxx LLC, 270-280 Xxxxx
LLC, 290 Xxxxx LLC
4.3 Long Island Industrial
Group Two LLC, 600 Xxxx
Xxxx LLC, 270-280 Xxxxx
LLC, 290 Xxxxx LLC
4.4 Long Island Industrial
Group Two LLC, 600 Xxxx
Xxxx LLC, 270-280 Xxxxx
LLC, 290 Xxxxx LLC
4.5 Long Island Industrial
Group Two LLC, 600 Xxxx
Xxxx LLC, 270-280 Xxxxx
LLC, 290 Xxxxx LLC
4.6 Long Island Industrial
Group Two LLC, 600 Xxxx
Xxxx LLC, 270-280 Xxxxx
LLC, 290 Xxxxx LLC
4.7 Long Island Industrial
Group Two LLC, 600 Xxxx
Xxxx LLC, 270-280 Xxxxx
LLC, 290 Xxxxx LLC
5 West 50th (DEL) LLC 26,374,018.84 120 119 11/1/12 360 359 159,301.16 0.040000 Actual/360
6 1400 LSD, LLC 26,047,742.97 120 118 10/1/12 360 358 149,637.18 0.040000 Actual/360
7 000 0xx Xxxxxx, LLC 24,971,324.07 120 119 11/1/12 360 359 138,050.93 0.040000 Actual/360
8 CCDC Xxxxxx Portfolio LP 22,543,200.23 120 116 8/1/12 300 296 157,924.67 0.040000 Actual/360
0 Xxxxxxxxx Xxxxxxx Xxxxxx,
X.X.X. xxx Xxxxxxxxx 22,253,380.81 120 105 9/1/11 360 345 153,489.66 0.040000 Actual/360
Xxxxxxx Xxxxxx XX, X.X.X.
00 XXXX Xxxxxxxxx Ltd. 21,978,098.88 120 119 11/1/12 360 359 131,901.12 0.040000 Actual/360
11 Thirty-Four Marketplace
Acceptance, LLC 21,852,106.21 120 109 1/1/12 360 349 153,022.26 0.040000 Actual/360
12 Coventry Green LLC 17,720,363.86 120 118 10/1/12 360 358 111,027.30 0.040000 Actual/360
13 Aviana Company, Ltd., LLC 17,437,474.32 180 177 9/1/17 300 297 122,906.00 0.090000 Actual/360
00 Xxxx Xxxxxx Xxxxxxxx, XXX,
XXX Xxxx Xxxxxx 17,369,240.08 120 118 10/1/12 360 358 106,005.70 0.040000 Actual/360
Business Park Partners LLC
15 ZKS Richmond Holdings, LLC 15,976,198.15 120 118 10/1/12 360 358 105,269.02 0.040000 Actual/360
16 Twenty-Six SAC Self-
Storage, LP 15,475,776.80 120 112 4/1/12 300 292 119,055.35 0.040000 Actual/360
16.1 Twenty-Six SAC Self-
Storage, LP
16.2 Twenty-Six SAC Self-
Storage, LP
16.3 Twenty-Six SAC Self-
Storage, LP
16.4 Twenty-Six SAC Self-
Storage, LP
16.5 Twenty-Six SAC Self-
Storage, LP
17 First Xxxxxx LLC 14,533,968.35 120 118 10/1/12 360 358 88,232.84 0.120000 Actual/360
18 Xxxxxxxx Massillon, LLC,
WC Massillon, LLC, SBW 13,916,000.00 120 120 12/1/12 300 300 90,086.79 0.040000 Actual/360
Massillon, LLC, WMS
Massillon, LLC, NSHE
Xxxxxxxx, LLC
19 Biscayne Centre, LLC 13,486,431.64 120 119 11/1/12 360 359 80,505.86 0.040000 Actual/360
00 Xxx Xxxxxx Xxxxxx LLC 12,457,994.62 120 115 7/1/12 360 355 85,017.83 0.040000 Actual/360
21 NNN Wolf Pen Plaza, LLC 12,244,521.85 60 58 10/1/07 360 358 76,718.30 0.040000 Actual/360
22 J. Supor, LLC 11,984,950.47 120 119 11/1/12 300 299 84,049.53 0.040000 Actual/360
23 Hillsdale, L.P. 11,718,658.78 120 116 8/1/12 360 356 81,034.24 0.040000 Actual/360
24 SFT Tigerfish LLC 10,979,886.63 120 118 10/1/12 360 358 65,950.56 0.040000 Actual/360
25 Xxxxxx Xxxxx Center, L.L.C. 10,824,777.80 120 117 9/1/12 360 357 71,530.70 0.040000 Actual/360
26 Xxxx/Legacy Limited
Partnership 10,545,478.65 180 175 7/1/17 270 265 76,419.26 0.040000 Actual/360
27 000 Xxxxxxxx Xxxx LLC 10,469,398.76 120 116 8/1/12 360 356 69,856.76 0.040000 Actual/360
28 Lone Oak - Stockton, L.L.C. 9,814,316.00 120 117 9/1/12 300 297 68,678.06 0.040000 Actual/360
29 Opelika Portfolio, L.P. 9,250,834.39 120 119 11/1/12 360 359 55,697.11 0.040000 Actual/360
30 Arbor Green Apartments LLC 9,072,066.75 60 59 11/1/07 360 359 58,440.75 0.070000 Actual/360
00 Xxxxx Xxxxxx Xxxxxx, LLC 8,879,725.54 120 117 9/1/12 360 357 59,211.92 0.040000 Actual/360
32 Xxxxxxxx Apartments, LLC 7,991,882.41 120 119 11/1/12 360 359 47,450.92 0.040000 Actual/360
33 Xxxx Xxxxxx Bank 7,789,086.60 120 119 11/1/12 300 299 51,213.40 0.040000 Actual/360
00 XXX Xxxxxxx Limited
Partnership 7,541,124.39 120 91 7/1/10 360 331 59,578.69 0.040000 Actual/360
35 IFP, LLC 7,428,023.92 120 116 8/1/12 360 356 49,315.12 0.040000 Actual/360
36 The Advantages Apartments
LLC 7,182,654.43 120 117 9/1/12 360 357 46,699.06 0.040000 Actual/360
37 Lake Xxxxxx Investments,
Ltd. 7,130,076.85 120 117 9/1/12 360 357 43,236.30 0.040000 Actual/360
38 Family Car Xxxxxxxx, Inc 6,697,852.14 120 90 6/1/10 300 270 57,814.15 0.040000 Actual/360
39 Richland Mobile Home Park
LLC 6,693,330.11 120 119 11/1/12 360 359 40,169.89 0.090000 Actual/360
40 Xxxxxxxx Exeter LLC 6,486,011.94 60 57 9/1/07 360 357 44,341.46 0.040000 Actual/360
41 Belair Center, LP 6,343,678.54 120 119 11/1/12 360 359 38,071.46 0.040000 Actual/360
42 Kalamazoo Properties
Limited Partnership 6,294,022.32 120 119 11/1/12 360 359 38,790.18 0.040000 Actual/360
42.1 Kalamazoo Properties
Limited Partnership
42.2 Kalamazoo Properties
Limited Partnership
42.3 Kalamazoo Properties
Limited Partnership
43 Kings Ambassador
Associates, Ltd 6,113,479.54 120 107 11/1/11 360 347 42,719.83 0.040000 Xxxxxx/000
00 Xxxxxxxx Xxxx Investors
Group, LTD 5,939,717.78 60 58 10/1/07 360 358 36,635.17 0.090000 Actual/360
45 Lincoln-Inwood Plaza, Ltd. 5,742,016.93 120 119 11/1/12 300 299 37,930.99 0.040000 Actual/360
46 DonBev Properties I, Ltd.
LP 5,700,000.00 120 120 12/1/12 360 360 33,263.65 0.040000 Actual/360
47 Fiesta Grande RV I, LLC 5,600,000.00 60 60 12/1/07 360 360 33,574.83 0.090000 Actual/360
00 Xxxxxx Xxxxxxx Company, LP 5,489,943.31 120 118 10/1/12 360 358 32,975.28 0.040000 Actual/360
49 Springhill Properties, L.P. 5,485,648.10 120 118 10/1/12 300 298 36,281.82 0.040000 Actual/360
50 Northwood Domit Apartments,
Ltd. 5,394,935.26 120 119 11/1/12 360 359 33,459.74 0.040000 Actual/360
51 REA Riverside General, LLC 5,390,625.61 120 118 10/1/12 360 358 33,178.52 0.040000 Actual/360
00 XXX Xxxxx Xxxx LLC 5,382,226.48 120 115 7/1/12 360 355 37,020.83 0.040000 Actual/360
53 Access Self Storage of
Xxxxx, LLC 4,993,111.83 120 119 11/1/12 300 299 33,138.17 0.040000 Actual/360
54 Ventnor Associates
Company, LP 4,990,857.55 120 118 10/1/12 360 358 29,977.53 0.040000 Actual/360
55 Regency 2000, LLC 4,979,099.09 120 113 5/1/12 360 353 35,751.53 0.040000 Xxxxxx/000
00 Xxxxxxxx Xxxxxx
Associates, LLC 4,841,911.58 120 118 10/1/12 360 358 30,352.92 0.040000 Actual/360
57 MLMD Realty, LP 4,772,095.78 120 111 3/1/12 360 351 33,490.02 0.040000 Actual/360
00 Xxxxxxxxxx Xxxxx Partners,
LP 4,641,305.94 120 118 10/1/12 360 358 27,580.85 0.040000 Actual/360
59 Palm Beach SA, LLC 4,636,934.43 120 116 8/1/12 360 356 31,406.41 0.040000 Actual/360
00 X & X Xxxxxxxxx Xxxx X.X. 4,409,859.76 120 115 7/1/12 360 355 29,886.75 0.040000 Actual/360
61 Seneca Townhouse
Apartments LLC 4,340,585.25 240 239 11/1/22 240 239 31,164.75 0.090000 Actual/360
00 Xxxxxxx Xxxxx Combined
Joint Venture 4,293,227.14 120 118 10/1/12 360 358 27,604.49 0.040000 Actual/360
63 Carnegie Investors, L.P. 4,292,569.15 84 82 10/1/09 360 358 26,475.84 0.040000 Xxxxxx/000
00 XXX Xxxx Xxxxxx, LLC 4,222,107.93 120 102 6/1/11 360 342 29,862.15 0.040000 Actual/360
65 Xxxx/Legacy Limited
Partnership 4,219,476.51 178 175 7/1/17 268 265 30,025.67 0.040000 Actual/360
66 Marina Corporate Center,
LLC 4,200,000.00 120 120 12/1/12 360 360 27,661.21 0.040000 Actual/360
00 Xxxxxx Xxxxx Xxxxxxxxxx,
LLC 4,195,818.88 120 119 11/1/12 360 359 25,181.12 0.090000 Actual/360
68 DLJ/Xxxxxxxx, LLC 3,993,474.44 120 118 10/1/12 360 358 25,282.72 0.090000 Actual/360
69 Royal Timber Associates, LP 3,808,800.99 120 95 11/1/10 360 335 28,396.69 0.040000 Actual/360
00 Xxxxx Xxxxxx Xxxxxx LP 3,790,221.52 120 117 9/1/12 360 357 23,893.77 0.040000 Actual/360
71 King Xxxxxx Apartments, LLC 3,746,266.86 120 119 11/1/12 360 359 22,483.14 0.040000 Actual/360
72 South Brook Villa Limited
Dividend Housing 3,496,956.94 120 119 11/1/12 360 359 22,584.73 0.040000 Actual/360
Association LLC
73 Bluegrass Xxxxxxx Rentals
LLC 3,494,929.95 120 118 10/1/12 360 358 23,285.59 0.040000 Actual/360
00 Xxxx Xxxx Xxxxxxxx, LLC 3,489,272.76 120 116 8/1/12 360 356 22,794.07 0.040000 Actual/360
75 Olde English Village, LP 3,487,859.90 120 117 9/1/12 300 297 24,960.99 0.040000 Actual/360
76 BLMA Ltd. 3,441,387.04 120 118 10/1/12 300 298 23,294.65 0.040000 Actual/360
00 Xxxxxxx Xxxxx LP 3,340,587.17 120 116 8/1/12 360 356 22,626.13 0.040000 Actual/360
78 Xxxxxx Investments, LLC 3,296,714.83 120 119 11/1/12 360 359 19,785.17 0.090000 Actual/360
79 Aberdeen Associates, LP 3,050,000.00 120 120 12/1/12 300 300 20,195.39 0.040000 Actual/360
00 Xxxxx Xxxxx Xxxxxxxx
Apartments, LLC 3,000,000.00 120 120 12/1/12 360 360 17,507.19 0.040000 Actual/360
81 The Liu Family Trust 2,981,444.23 120 119 11/1/12 120 119 32,930.77 0.04 Actual/360
82 Family Car Missoula, Inc. 2,897,079.11 120 90 6/1/10 300 270 25,006.85 0.040000 Actual/360
00 Xxxxxxxx Xxxxx, LLC 2,877,319.61 120 119 11/1/12 360 359 17,920.39 0.040000 Actual/360
84 Woodlawn Corner, LLC 2,845,366.75 120 118 10/1/12 360 358 18,042.06 0.040000 Actual/360
85 MDR Cookeville LLC, HRT
Cookeville LLC, AJB 2,765,938.50 120 118 10/1/12 360 358 18,335.96 0.040000 Actual/360
Cookeville LLC, KSB
Cookeville LLC, and VRH
Cookeville LLC
86 C&D Madison, LLC 2,713,076.54 120 117 9/1/12 360 357 17,192.25 0.120000 Actual/360
87 0000 Xxxxxxxx Xxxx, LLC 2,547,868.20 120 119 11/1/12 360 359 16,794.30 0.100000 Actual/360
00 Xxxxxxxx Xxxxxxxx, LLC 2,437,564.79 120 112 4/1/12 360 352 17,315.67 0.040000 Actual/360
89 Okoboji's Holidays of
Crescent Beach, Inc. 2,394,501.82 132 129 9/1/13 360 357 15,926.98 0.145000 Actual/360
00 Xxx Xxxx Villas, LLC 2,387,367.49 120 119 11/1/12 336 335 15,080.43 0.090000 Actual/360
91 Xxxx X. Xxxxxxxxx, Trustee
of the 1545 Xxxxxxx 2,355,640.17 120 114 6/1/12 360 354 16,423.21 0.040000 Actual/360
Street Realty Trust
92 Tibo Management, Inc. 2,348,592.93 120 118 10/1/12 360 358 15,647.91 0.145000 Actual/360
93 Trio Investments, LLC 2,615,314.51 120 115 7/1/12 347 342 18,091.31 0.040000 Actual/360
00 Xxxx-Xxx/0 Xxxxxx, LLC 2,227,904.41 120 119 11/1/12 360 359 13,803.09 0.120000 Actual/360
00 Xxxxxxxx Xxxxxxxxxx, XXX 2,202,631.56 120 119 11/1/12 360 359 12,658.44 0.040000 Actual/360
00 Xxxxx Xxxx Xxxxxx, L.L.C. 2,100,000.00 120 115 7/1/12 0 0 11,142.64 0.120000 Actual/360
97 Metro Junction, LLC 1,995,392.33 120 117 9/1/12 360 357 13,238.96 0.040000 Actual/360
98 PVM, LLC 1,988,928.45 120 115 7/1/12 300 295 14,277.52 0.040000 Actual/360
99 Sports Shed, Inc. 1,924,302.82 120 97 1/1/11 240 217 17,255.33 0.040000 Actual/360
000 Xxxx Xxxxx Xxxxxxx MHC, LLC 1,745,594.01 120 117 9/1/12 360 357 11,118.80 0.100000 Actual/360
000 Xxxxxx Xxx Properties, LP 1,657,868.37 120 119 11/1/12 300 299 11,469.13 0.040000 Actual/360
000 Xxxxxxxxx Xxxxx Xxxxxxxxxx,
Ltd. 1,598,499.23 120 119 11/1/12 360 359 9,914.00 0.040000 Actual/360
000 Xxxx Xxxxx Mobile
Associates, L.L.C. 1,594,352.51 120 117 9/1/12 300 297 11,308.47 0.040000 Actual/360
000 Xxxxxxx X. Xxxxxx 1,518,585.35 120 119 11/1/12 360 359 9,457.98 0.040000 Actual/360
105 Sun Village LLC 1,498,603.96 120 119 11/1/12 360 359 9,333.54 0.040000 Actual/360
000 Xxxxxxxx Xxxx Apartments,
LLC 1,440,000.00 120 120 12/1/12 360 360 9,580.36 0.040000 Actual/360
000 Xxxxxxx Xxxxxxx MHP, Inc. 1,400,000.00 120 120 12/1/12 300 300 9,235.37 0.040000 Actual/360
108 Open Sky Inc. 1,142,478.92 120 117 9/1/12 360 357 7,733.41 0.040000 Actual/360
ARD
ARD Step Title Crossed
Seq # Borrower Name (Y/N) Up (%) Type Loan Originator Principal Name
------------------------------------------------------------------------------------------------------------------------------------
1 Century III Mall, L.P., Longview Mall, L.P., No NAP Fee JPMCB Simon Property Group, L.P.
Highland Lakes Center, LLC
1.1 Century III Mall, L.P., Longview Mall, L.P., Fee JPMCB
Highland Lakes Center, LLC
1.2 Century III Mall, L.P., Longview Mall, L.P., Fee JPMCB
Highland Lakes Center, LLC
1.3 Century III Mall, L.P., Longview Mall, L.P., Fee JPMCB
Highland Lakes Center, LLC
2 00-000 Xxxxxxx Xx., LLC No NAP Fee Xxxxxxx Equity Office Properties
Trust,
Xxxxx General Motors Salaried
Employees Pension Trust
and General Motors
Hourly-Rate Employees Pension
Trust
3 ARC Communities I, LLC No NAP Fee LaSalle Affordable Residential
Communities IV, LP
3.1 ARC Communities I, LLC Fee LaSalle
3.2 ARC Communities I, LLC Fee LaSalle
3.3 ARC Communities I, LLC Fee LaSalle
3.4 ARC Communities I, LLC Fee LaSalle
3.5 ARC Communities I, LLC Fee LaSalle
3.6 ARC Communities I, LLC Fee LaSalle
3.7 ARC Communities I, LLC Fee LaSalle
3.8 ARC Communities I, LLC Fee LaSalle
3.9 ARC Communities I, LLC Fee LaSalle
3.10 ARC Communities I, LLC Fee LaSalle
3.11 ARC Communities I, LLC Fee LaSalle
4 Long Island Industrial Group Two LLC, 600 West No NAP Fee JPMCB Xxxx Xxxxxx, Xxxxxxx
Xxxx LLC, 270-280 Xxxxx LLC, 290 Xxxxx LLC Xxxxxxxxxxxxx
4.1 Long Island Industrial Group Two LLC, 600 West Fee JPMCB
Xxxx LLC, 270-280 Xxxxx LLC, 290 Xxxxx LLC
4.2 Long Island Industrial Group Two LLC, 600 West Fee JPMCB
Xxxx LLC, 270-280 Xxxxx LLC, 290 Xxxxx LLC
4.3 Long Island Industrial Group Two LLC, 600 West Fee JPMCB
Xxxx LLC, 270-280 Xxxxx LLC, 290 Xxxxx LLC
4.4 Long Island Industrial Group Two LLC, 600 West Fee JPMCB
Xxxx LLC, 270-280 Xxxxx LLC, 290 Xxxxx LLC
4.5 Long Island Industrial Group Two LLC, 600 West Fee JPMCB
Xxxx LLC, 270-280 Xxxxx LLC, 290 Xxxxx LLC
4.6 Long Island Industrial Group Two LLC, 600 West Fee JPMCB
Xxxx LLC, 270-280 Xxxxx LLC, 290 Xxxxx LLC
4.7 Long Island Industrial Group Two LLC, 600 West Fee JPMCB
Xxxx LLC, 270-280 Xxxxx LLC, 290 Xxxxx LLC
5 West 50th (DEL) LLC No NAP Fee JPMCB Xxxxxxx X. Xxxxxx
6 1400 LSD, LLC No NAP Fee LaSalle Xxxxxxx Xxxxx, Xxxxxxx
Xxxxxxxx, Xxxxx
Xxxxxx, Xxxxx X Xxxxx
7 000 0xx Xxxxxx, LLC Yes 2.0 Fee Xxxxxxx Collegiate Properties Corp
Xxxxx
8 CCDC Xxxxxx Portfolio LP Yes 2.0 Fee Xxxxxxx CCDC Marion, G.P., LLC; H&R
Xxxxx Real Estate Holdings Inc.
0 Xxxxxxxxx Xxxxxxx Xxxxxx, X.X.X. xxx Xxxxxxxxx Yes The Fee LaSalle Mesirow Realty Services,Inc.
Village Centre II, L.L.C. greater & Northern Realty Group
of a)
Initial
Rate+2.0%
or B)
Treasury
+1.45%
10 GREC Greenwich Ltd. No NAP Fee Xxxxxxx Xxxxxxxx Xxxxxx, Xxxxxx
Xxxxx Poyastro, Xxxxx Xxxxx
11 Thirty-Four Marketplace Acceptance, LLC No NAP Leasehold Xxxxxxx Xxxxx X. Xxxxxxx
Xxxxx
12 Coventry Green LLC No NAP Fee LaSalle J. Xxxxxxx Xxxxxxxxxxx,
Xxxxxx X. Xxxxx,
Xxxxxxx Xxxxxxx
13 Aviana Company, Ltd., LLC Yes The Fee JPMCB Xxxx Xxxxxx
greater
of a)
Initial
Rate+2%
or b)
Treasury
+4.05%
00 Xxxx Xxxxxx Xxxxxxxx, XXX, XXX Xxxx Xxxxxx No NAP Fee JPMCB Xxxxxx X. Xxxxxx, III,
Business Park Partners LLC Xxxxxxx X. Xxxxxx
15 ZKS Richmond Holdings, LLC Yes 2.0 Fee Xxxxxxx Xxxxxxxxx Xxxxxxxx
Xxxxx
16 Twenty-Six SAC Self-Storage, LP Yes 2.0 Fee Merrill SAC
Xxxxx
16.1 Twenty-Six SAC Self-Storage, LP Fee Xxxxxxx
Xxxxx
16.2 Twenty-Six SAC Self-Storage, LP Fee Xxxxxxx
Xxxxx
16.3 Twenty-Six SAC Self-Storage, LP Fee Xxxxxxx
Xxxxx
16.4 Twenty-Six SAC Self-Storage, LP Fee Xxxxxxx
Xxxxx
16.5 Twenty-Six SAC Self-Storage, LP Fee Xxxxxxx
Xxxxx
17 First Xxxxxx LLC No NAP Fee JPMCB XxXxxxxx Associates, Inc.
18 Xxxxxxxx Massillon, LLC, WC Massillon, LLC, SBW Yes 2.0 Fee Xxxxxxx Xxxx Xxxx Xxxxxxx
Massillon, LLC, WMS Massillon, LLC, NSHE Xxxxx
Xxxxxxxx, LLC
19 Biscayne Centre, LLC No NAP Fee JPMCB Xxxx Xxxxxx, Xxxxxxx Xxxxxx
00 Xxx Xxxxxx Xxxxxx LLC No NAP Fee JPMCB Xxxxxx X. Xxxxxxxxxx,
Xxxxxxx X.
Xxxxxxxxxx
21 NNN Wolf Pen Plaza, LLC Yes 2.0 Fee Merrill Xxxxxxx Xxxxxxxx; Triple Net
Xxxxx Properties, LLC
22 J. Supor, LLC No NAP Fee Xxxxxxx Xxxxxx Supor Jr.
Xxxxx
23 Hillsdale, L.P. No NAP Fee JPMCB Xxx Xxxx and
Xxxxx Xxxxxxxxxxx
24 SFT Tigerfish LLC No NAP Fee Xxxxxxx Xxxx X. Xxxxxxxxx and
Xxxxx Xxxxxxxxxx X. Xxxxxxxxx
25 Xxxxxx Xxxxx Center, L.L.C. No NAP Fee JPMCB Xxxxxxxx Xxxxxxxx,
Xxxxxx Xxxxxxxx,
Xxxxxxx X. Xxxxxxxx
26 Xxxx/Legacy Limited Partnership No NAP Fee 1 JPMCB Xxxx/Legacy GP, L.L.C.
27 000 Xxxxxxxx Xxxx LLC No NAP Fee Merrill Xxxxxxx Xxxxxxxx,
Xxxxx Xxxxxxx Xxxxxxx
28 Lone Oak - Stockton, L.L.C. No NAP Fee JPMCB J. Christophers Xxxxx
29 Opelika Portfolio, L.P. Yes 2.0 Fee Merrill H&R REIT Holdings, Inc;
Xxxxx Opelika GP, L.L.C
30 Arbor Green Apartments LLC No NAP Fee Xxxxxxx Xxxxx X. Xxxxxxx,
Xxxxx Allah X. Xxxxxx
00 Xxxxx Xxxxxx Xxxxxx, LLC No NAP Fee XxXxxxx Xxxxxxx and Xxxxx Xxxxx
32 Xxxxxxxx Apartments, LLC No NAP Fee JPMCB Xxxxxxxxxxx X. Xxxxxx,
Xxxxx X. Xxxxx
33 Xxxx Xxxxxx Bank No NAP Fee JPMCB Xxxx Xxxxxx Bank
34 DIM Parkway Limited Partnership No NAP Fee Xxxxxxx Xxx X. Xxxx and Xxxxx X. Xxxx
Xxxxx
35 IFP, LLC No NAP Fee Merrill Xxxxx X Xxxxx
Xxxxx
36 The Advantages Apartments LLC No NAP Fee LaSalle Xxxxx X. Xxxxxxxxxx and
Xxxxx Xxxxxxxx
37 Lake Xxxxxx Investments, Ltd. No NAP Fee JPMCB Xxxxxxx X. Xxxxxx
38 Family Car Xxxxxxxx, Inc No NAP Fee LaSalle Family Realty II Inc.
39 Richland Mobile Home Park LLC No NAP Fee JPMCB Xxxxxxx X. Xxxxx,
Xxxxx X. Xxxxx
40 Xxxxxxxx Exeter LLC No NAP Fee Xxxxxxx X. Xxxxx Xxxxxxxx,
Xxxxxxx X. Xxxxxxx,
Xxxxx Xxxx X. Xxxxx,
Xxxxx X. Xxxxx, Xxxx X.
Xxxxx, and
Xxxxxxxx Associates
41 Belair Center, LP No NAP Fee Xxxxxxx Xxxxxx X. Xxxxxx &
Xxxxx Xxxxxx Xxxx
42 Kalamazoo Properties Limited Partnership No NAP Fee LaSalle Xxxxxx Xxxxxxxx and
Xxxxx X. Xxxxx
42.1 Kalamazoo Properties Limited Partnership Fee LaSalle
42.2 Kalamazoo Properties Limited Partnership Fee LaSalle
42.3 Kalamazoo Properties Limited Partnership Fee LaSalle
43 Kings Ambassador Associates, Ltd No NAP Fee Xxxxxxx Xxxxxx R. Fieldstone &
Xxxxx Xxxxxx X. Xxxxxx
44 Heritage Hill Investors Group, LTD No NAP Fee JPMCB Xxxxxxx X., Xxxxxxxxx,
Xxxx Xxxxxxxxx
45 Lincoln-Inwood Plaza, Ltd. No NAP Fee Xxxxxxx Xxxxxxx Property Company
Xxxxx No. 264, Ltd.,
Xxxx Xxxxx, Xxxxxxx Xxxxxx
46 DonBev Properties I, Ltd. LP No NAP Fee Xxxxxxx Xxxxx X. Xxxxxxxx and
Xxxxx The Xxxxx Family Trust
47 Fiesta Grande RV I, LLC No NAP Fee JPMCB Xxxxxx Xxxxxx
48 Xxxxxx Gardens Company, LP No NAP Fee Merrill Xxxxxx Xxxxxxxxx
Xxxxx
49 Springhill Properties, L.P. No NAP Fee LaSalle Xxxx Xxxxxx & Xxxx Xxx Xxxx
50 Northwood Domit Apartments, Ltd. No NAP Fee Xxxxxxx Xxxxx Domit; Xxxxxxx Xxxxx
Xxxxx
51 REA Riverside General, LLC No NAP Fee Xxxxxxx XXX Riverside, LLC &
Xxxxx Riverside Investment
Partners, LLC
00 XXX Xxxxx Xxxx LLC No NAP Fee Merrill Xxxxxxx Xxxxxxxx
Xxxxx
53 Access Self Storage of Xxxxx, LLC No NAP Fee Xxxxxxx Xxxxxxx Xxxxxx, Xxx X.
Xxxxx Xxxxxx, Xxxxxxx Xxxxx and
Xxxxxx Xxxxx
54 Ventnor Associates Company, LP No NAP Fee Xxxxxxx Xxxxxx Xxxxxxxxx, Boardwalk
Xxxxx Properties of Bensalem
55 Regency 2000, LLC No NAP Fee XxXxxxx Xxxx, LLC, Xxxxxxx Xxxxx
Properties, Xx. Xxxx
Xxxxxxxxx, Dr. Adil Karamoli,
Xx. Xxxxxx Xxxxxxxx, Xxxxxxxx
Development, LLT Investments,
Aggie Titan Family
Partnership, Xxxx Xxxxx
56 Hartford Centre Associates, LLC No NAP Fee LaSalle Xxxxxxx Xxxxx
57 MLMD Realty, LP No NAP Fee LaSalle Xxxxx Xxxxxx Xxxxxxxxx
00 Xxxxxxxxxx Xxxxx Partners, LP No NAP Fee JPMCB Ryder, Xxxxxxxx Properties,
Inc.
59 Palm Beach SA, LLC No NAP Fee LaSalle Xxxxx Xxx
00 X & X Xxxxxxxxx Xxxx X.X. No NAP Fee LaSalle Xxxx Xxxxxxxx, Xxxxxx
Xxxxxxxx,
Xxxxxxx Xxxxxxxx
61 Seneca Townhouse Apartments LLC No NAP Fee JPMCB Xxxxx Xxxxxxxx, Xxxxx
Xxxxxxxx Trust,
Xxxxxx Xxxx Trust
62 Regency Place Combined Joint Venture No NAP Fee Merrill Xxxx Xxxxxxxx,
Xxxxx DMH Enterprises
63 Carnegie Investors, L.P. No NAP Fee JPMCB Xxxxxxx X. Xxxxx,
Xxxxxxx X. Zotavich,
Xxxxx X. Xxxxxxxx
64 GPI Real Estate, LLC No NAP Fee LaSalle Xxxxx Xxxxx, Xxxxxx Xxxxx,
Xxxxxxx Xxxxx, Xxxxx Xxxx,
Xxxxxxx Xxxxxxx
65 Xxxx/Legacy Limited Partnership No NAP Fee 1 JPMCB Xxxx/Legacy GP, L.L.C.
66 Marina Corporate Center, LLC Yes 2.0 Fee Xxxxxxx Xxxxxxxx X. Xxxxxxx
Xxxxx
67 Xxxxxx Vista Apartments, LLC No NAP Fee JPMCB Xxxxxxxx X. Xxxxxxxx,
Xxxxxxx X. Xxxxxxx
68 DLJ/Xxxxxxxx, LLC No NAP Fee JPMCB Xxxxxx X. Xxxxxxxx
69 Royal Timber Associates, LP No NAP Fee Merrill Century Pacific Housing
Xxxxx Fund VII, LP, Century Pacific
Equity Corporation &
CARE Housing Services
Corporation
00 Xxxxx Xxxxxx Xxxxxx LP Yes 2.0 Fee Xxxxxxx Xxxxx X. Xxxxxxxxx, Xxxxxxx
Xxxxx X. Xxxxxxxxxx,
Xxxxxxx X. Xxxxxxxx and
AVS, Inc.
71 King Xxxxxx Apartments, LLC No NAP Fee JPMCB Xxxxx X. Xxxxxx, Xx.
72 South Brook Villa Limited Dividend Housing No NAP Fee LaSalle Xxxxxx Xxxxx, Xxxxx X.
Xxxxxx, Xxxxxxx
Association LLC Xxxxx, Xxxxxx Golden
73 Bluegrass Xxxxxxx Rentals LLC No NAP Fee LaSalle Xxxxxxx X Xxxxx, Xx,
D. Xxxxxxxx Xxxxx
74 Twin City Crossing, LLC No NAP Fee JPMCB Du Rhone Group, Ltd.
75 Olde English Village, LP No NAP Fee JPMCB Xxxxx X. XxXxxxxx,
Xxxxxxx X. XxXxxxxx
76 BLMA Ltd. No NAP Fee Xxxxxxx Xxxx X. Xxxxx, XX
Xxxxx
77 Benwall Texas LP No NAP Fee LaSalle Xxxxxx Xxxxxx
78 Xxxxxx Investments, LLC No NAP Fee JPMCB Xxxxxx X. Xxxxxx Xxxxxxxxxx,
Xxxx X. Xxxx
79 Aberdeen Associates, LP Yes 2.0 Fee Xxxxxxx Xxxxxx X. Xxxxxx and
Xxxxx Xxxxxxx Xxxxxxxxx
00 Xxxxx Xxxxx Xxxxxxxx Apartments, LLC No NAP Fee Xxxxxxx Xxxx Xxx Xxxx and
Xxxxx Xxxxxx X.X. Xxxx
81 The Liu Family Trust No NAP Fee Xxxxxxx Xxxxx X.X. Xxx and Xxxxx Xxx
Xxxxx
82 Family Car Missoula, Inc. No NAP Fee LaSalle Family Realty II Inc. NW 450K
00 Xxxxxxxx Xxxxx, LLC No NAP Fee LaSalle Xxxxxxx Xxxxxxxx and
Xxxxxxx Xxxxxxxx
84 Woodlawn Corner, LLC No NAP Fee LaSalle Xxxxxxx X. Xxxx
85 MDR Cookeville LLC, HRT Cookeville LLC, AJB No NAP Fee LaSalle Xxxxxx Xxxxxxx,
Cookeville LLC, KSB Cookeville LLC, and VRH Xxxxxxx X. Xxxxxxx,
Cookeville LLC Xxxxx X. Xxxx,
Xxxxxxxxx X. Xxxx,
Xxxxxxxx Investment Corp
86 C&D Madison, LLC No NAP Fee LaSalle Xxxxxxx X Xxxxx &
Xxxxx X. Xxxxx
87 3730 Brighton Road, LLC No NAP Fee LaSalle Xxxxxx Xxxxxx and
Xxxxxxx X. Xxxxxx
00 Xxxxxxxx Xxxxxxxx, LLC No NAP Fee LaSalle Xxx Xxxxxx
89 Okoboji's Holidays of Crescent Beach, Inc. No NAP Fee LaSalle Xxxxxxx Xxxxxx & Xxxxx Xxxxxx
90 Oak Tree Villas, LLC No NAP Fee JPMCB Bradley S. Nolan
91 Dana D. Ricciardi, Trustee of the
1545 Hancock Street Realty Trust No NAP Fee LaSalle Dana Ricciardi
92 Tibo Management, Inc. No NAP Fee LaSalle Robin Thibeault
93 Trio Investments, LLC No NAP Fee LaSalle Sally Elman, June C. Wayne,
and Robin W. Park
94 Sher-Wil/5 Points, LLC No NAP Fee LaSalle Luther S. Pate, IV
95 Somerset Apartments, LLP No NAP Fee Merrill James S Wieland, Dale D. Lian
Lynch & Keneth P. Regan
96 Sugar Tree Square, L.L.C. No NAP Fee JPMCB Harold Beznos
97 Metro Junction, LLC No NAP Fee LaSalle Yandell H. Wideman,
Michael Harrell
98 PVM, LLC No NAP Fee LaSalle William H. Valdes,
M.A. Garcia III,
Anthony S. Pace
99 Sports Shed, Inc. No NAP Fee LaSalle Mark Wheat & Daniel Wheat
100 Blue Ridge Estates MHC, LLC No NAP Fee LaSalle Julio C. Jaramillo,
Kathleen C. Collins
101 Timber Oak Properties, LP No NAP Fee LaSalle Michael Timmons,
Douglas I. Bercu
102 Cedarwood Domit Apartments, Ltd. No NAP Fee Merrill Antun Domit; Marlene Domit
Lynch
103 Twin Pines Mobile Associates, L.L.C. No NAP Fee LaSalle Lawrence Becker,
Peter Kostishak,
Susan Becker
104 Charles E. Decker No NAP Fee JPMCB Charles E. Decker
105 Sun Village LLC No NAP Fee LaSalle William P. Hickmann and
Michael J. Hickmann
106 Spalding Cove Apartments, LLC No NAP Fee LaSalle Douglas DeGrave, and
Debra DeGrave
107 Pioneer Village MHP, Inc. No NAP Fee JPMCB Kenneth C. Burnham
108 Open Sky Inc. No NAP Fee LaSalle Paul John Sopensky
Letter
Seq of Upfront Monthly Grace O&M Lockbox Total Unit of
# Borrower Name Credit Escrows Escrows Period Recommended In-place SF/Units Measure
------------------------------------------------------------------------------------------------------------------------------------
1 Century III Mall, L.P., Longview Mall, L.P., No 2,186,197 437,742 0 No Yes 1,047,549 Square
Highland Lakes Center, LLC Feet
1.1 Century III Mall, L.P., Longview Mall, L.P., 0 0 558,616 Square
Highland Lakes Center, LLC Feet
1.2 Century III Mall, L.P., Longview Mall, L.P., 0 0 207,838 Square
Highland Lakes Center, LLC Feet
1.3 Century III Mall, L.P., Longview Mall, L.P., 0 0 281,095 Square
Highland Lakes Center, LLC Feet
2 75-101 Federal St., LLC No 4,000,000 24,000 0 Yes Yes 812,353 Square
Feet
3 ARC Communities I, LLC No 255,187 34,414 0 No Yes 2,222 Pads
3.1 ARC Communities I, LLC 0 0 333 Pads
3.2 ARC Communities I, LLC 0 0 257 Pads
3.3 ARC Communities I, LLC 0 0 199 Pads
3.4 ARC Communities I, LLC 0 0 193 Pads
3.5 ARC Communities I, LLC 0 0 386 Pads
3.6 ARC Communities I, LLC 0 0 204 Pads
3.7 ARC Communities I, LLC 0 0 161 Pads
3.8 ARC Communities I, LLC 0 0 138 Pads
3.9 ARC Communities I, LLC 0 0 183 Pads
3.10 ARC Communities I, LLC 0 0 95 Pads
3.11 ARC Communities I, LLC 0 0 73 Pads
4 Long Island Industrial Group Two LLC, 600 West Yes 1,118,210 160,727 0 No Yes 859,110 Square
John LLC, 270-280 Duffy LLC, 290 Duffy LLC Feet
4.1 Long Island Industrial Group Two LLC, 600 West 0 0 240,830 Square
John LLC, 270-280 Duffy LLC, 290 Duffy LLC Feet
4.2 Long Island Industrial Group Two LLC, 600 West 0 0 210,841 Square
John LLC, 270-280 Duffy LLC, 290 Duffy LLC Feet
4.3 Long Island Industrial Group Two LLC, 600 West 0 0 105,573 Square
John LLC, 270-280 Duffy LLC, 290 Duffy LLC Feet
4.4 Long Island Industrial Group Two LLC, 600 West 350,000 0 57,720 Square
John LLC, 270-280 Duffy LLC, 290 Duffy LLC Feet
4.5 Long Island Industrial Group Two LLC, 600 West 48,981 0 100,000 Square
John LLC, 270-280 Duffy LLC, 290 Duffy LLC Feet
4.6 Long Island Industrial Group Two LLC, 600 West 0 0 60,000 Square
John LLC, 270-280 Duffy LLC, 290 Duffy LLC Feet
4.7 Long Island Industrial Group Two LLC, 600 West 0 0 84,146 Square
John LLC, 270-280 Duffy LLC, 290 Duffy LLC Feet
5 West 50th (DEL) LLC No 223,429 15,547 5 No No 102 Units
6 1400 LSD, LLC No 571,804 86,293 5 Yes No 400 Square
Feet
7 600 5th Avenue, LLC No 0 0 3 Yes No 354,281 Square
Feet
8 CCDC Marion Portfolio LP No 157,925 0 5 Yes Yes 1,078,450 Square
Feet
9 Deerfield Village Centre, L.L.C. and Deerfield No 78,442 35,306 5 No Yes 124,418 Square
Village Centre II, L.L.C. Feet
10 GREC Greenwich Ltd. No 640,733 55,970 5 No No 402 Units
11 Thirty-Four Marketplace Acceptance, LLC No 100,015 11,707 5 No NAP 248,770 Square
Feet
12 Coventry Green LLC No 24,161 25,857 5 No No 216 Units
13 Aviana Company, Ltd., LLC No 36,285 25,503 7 No Yes 172,605 Square
Feet
14 West Valley Partners, LLC, DBA West Valley No 160,000 31,000 7 No No 205,655 Square
Business Park Partners LLC Feet
15 ZKS Richmond Holdings, LLC No 418,303 64,173 5 Yes Yes 425,676 Square
Feet
16 Twenty-Six SAC Self-Storage, LP No 304,348 37,612 5 No No 209,007 Square
Feet
16.1 Twenty-Six SAC Self-Storage, LP 0 0 113,949 Square
Feet
16.2 Twenty-Six SAC Self-Storage, LP 0 0 23,525 Square
Feet
16.3 Twenty-Six SAC Self-Storage, LP 0 0 25,580 Square
Feet
16.4 Twenty-Six SAC Self-Storage, LP 0 0 19,316 Square
Feet
16.5 Twenty-Six SAC Self-Storage, LP 0 0 26,637 Square
Feet
17 First Daniel LLC No 169,248 41,363 7 No No 336 Units
18 Sperling Massillon, LLC, WC Massillon, LLC, SBW Yes 65,542 7,030 5 Yes Yes 843,632 Square
Massillon, LLC, WMS Massillon, LLC, NSHE Feet
Sossaman, LLC
19 Biscayne Centre, LLC No 328,606 35,707 7 Yes No 156,289 Square
Feet
20 Cub Square Centre LLC No 87,84 32,235 7 No No 187,980 Square
Feet
21 NNN Wolf Pen Plaza, LLC No 436,466 12,221 10 No NAP 170,202 Square
Feet
22 J. Supor, LLC No 108,432 34,557 5 No NAP 406,200 Square
Feet
23 Hillsdale, L.P. No 133,474 19,850 7 No No 66,547 Square
Feet
24 SFT Tigerfish LLC No 36,323 13,493 5 No NAP 195 Units
25 Orland Towne Center, L.L.C. No 407,342 77,626 7 No No 147,018 Square
Feet
26 Coit/Legacy Limited Partnership No 166,109 25,125 7 No No 106,511 Square
Feet
27 136 Turnpike Road LLC No 48,686 22,908 5 No NAP 81,860 Square
Feet
28 Lone Oak - Stockton, L.L.C. No 138,050 19,437 7 No Yes 157,300 Square
Feet
29 Opelika Portfolio, L.P. No 66,137 1,690 5 No Yes 135,197 Square
Feet
30 Arbor Green Apartments LLC No 16,698 21,915 5 No Yes 208 Units
31 Lyons Market Street, LLC No 66,690 8,029 5 No No 29,369 Square
Feet
32 Vanstory Apartments, LLC No 23,970 15,312 7 No No 168 Units
33 Cole Taylor Bank No 230,875 11,424 7 Yes No 132,611 Square
Feet
34 DIM Parkway Limited Partnership No 2,238,121 28,778 5 No NAP 144,120 Square
Feet
35 IFP, LLC No 94,143 18,235 5 No Yes 204 Units
36 The Advantages Apartments LLC No 144,256 19,387 5 Yes No 252 Units
37 Lake Cadena Investments, Ltd. No 112,153 8,077 7 Yes No 281 Pads
38 Family Car Johnston, Inc No 148,296 3,925 5 No No 70,562 Square
Feet
39 Richland Mobile Home Park LLC No 38,842 10,025 7 Yes No 314 Pads
40 Ashberry Exeter LLC No 39,618 18,021 5 No NAP 172 Units
41 Belair Center, LP No 106,316 12,953 5 Yes NAP 40,246 Square
Feet
42 Kalamazoo Properties Limited Partnership No 204,493 22,389 5 Yes No 237 Units
42.1 Kalamazoo Properties Limited Partnership 0 0 139 Units
42.2 Kalamazoo Properties Limited Partnership 0 0 46 Units
42.3 Kalamazoo Properties Limited Partnership 0 0 52 Units
43 Kings Ambassador Associates, Ltd No 6,900 12,555 5 No NAP 186 Units
44 Heritage Hill Investors Group, LTD No 227,196 9,476 10 No No 163 Units
45 Lincoln-Inwood Plaza, Ltd. No 367,443 21,499 10 No NAP 98,198 Square
Feet
46 DonBev Properties I, Ltd. LP No 121,980 12,781 5 Yes NAP 209 Units
47 Fiesta Grande RV I, LLC No 482,081 8,850 7 No No 581 Pads
48 Marvin Gardens Company, LP No 29,466 13,160 5 No NAP 184 Units
49 Springhill Properties, L.P. No 294,112 21,985 5 Yes No 304 Units
50 Northwood Domit Apartments, Ltd. No 195,168 15,307 5 No NAP 125 Units
51 REA Riverside General, LLC No 31,110 7,362 5 No NAP 44,630 Square
Feet
52 NNN North Reno LLC No 31,754 13,216 5 No NAP 129,960 Square
Feet
53 Access Self Storage of Clark, LLC No 29,386 15,309 5 No NAP 78,313 Square
Feet
54 Ventnor Associates Company, LP No 37,464 14,912 5 Yes NAP 160 Units
55 Regency 2000, LLC Yes 0 7,125 5 No No 42,996 Square
Feet
56 Hartford Centre Associates, LLC No 14,171 11,046 5 No No 66,657 Square
Feet
57 MLMD Realty, LP No 0 251 5 No No 20,112 Square
Feet
58 Wellington Place Partners, LP No 154,509 17,695 7 No No 143 Units
59 Palm Beach SA, LLC Yes 6,059 13,331 5 No No 42,968 Square
Feet
60 R & F Baltimore Pike L.P. No 6,483 7,682 5 No Yes 40,800 Square
Feet
61 Seneca Townhouse Apartments LLC No 69,400 15,390 7 Yes No 151 Units
62 Regency Place Combined Joint Venture No 286,194 11,404 5 No NAP 120 Units
63 Carnegie Investors, L.P. No 60,670 8,128 7 No No 56,800 Square
Feet
64 GPI Real Estate, LLC No 499,884 14,545 5 No No 136,800 Square
Feet
65 Coit/Legacy Limited Partnership No 39,082 0 7 No No 68,982 Square
Feet
66 Marina Corporate Center, LLC No 483,803 11,684 5 No No 51,136 Square
Feet
67 Arroyo Vista Apartments, LLC No 42,742 6,015 7 No No 68 Units
68 DLJ/Stephens, LLC No 63,661 9,013 7 No No 69,840 Square
Feet
69 Royal Timber Associates, LP No 45,465 9,212 5 No NAP 104 Units
70 Apple Valley Square LP No 55,991 6,630 5 Yes No 74,903 Square
Feet
71 King George Apartments, LLC No 10,356 5,984 7 No No 80 Units
72 South Brook Villa Limited Dividend Housing No 152,666 9,598 5 Yes No 129 Units
Association LLC
73 Bluegrass Meadows Rentals LLC No 63,832 11,182 5 No No 104 Units
74 Twin City Crossing, LLC No 29,658 5,168 7 No No 47,680 Square
Feet
75 Olde English Village, LP No 88,302 12,793 7 Yes No 79,831 Square
Feet
76 BLMA Ltd. No 135,038 12,395 5 No No 19,200 Square
Feet
77 Benwall Texas LP No 9,669 1,266 5 No No 14,490 Square
Feet
78 Fisher Investments, LLC No 48,450 8,797 7 No No 24 Units
79 Aberdeen Associates, LP No 0 609 5 No Yes 10,908 Square
Feet
80 South Coast Paulrino Apartments, LLC No 17,254 6,980 5 Yes NAP 46 Units
81 The Liu Family Trust No 41,054 5,071 5 Yes NAP 77 Units
82 Family Car Missoula, Inc. No 54,235 1,966 5 No No 31,924 Square
Feet
83 Cardinal Court, LLC No 53,160 6,579 5 Yes No 159 Pads
84 Woodlawn Corner, LLC No 3,750 189 5 No No 15,120 Square
Feet
85 MDR Cookeville LLC, HRT Cookeville LLC, AJB No 496 437 5 No No 15,120 Square
Cookeville LLC, KSB Cookeville LLC, and VRH Feet
Cookeville LLC
86 C&D Madison, LLC No 24,699 4,066 5 No No 58 Units
87 3730 Brighton Road, LLC No 0 136 5 No No 10,908 Square
Feet
88 Westgate Greenway, LLC No 111,070 5,875 5 Yes No 90 Units
89 Okoboji's Holidays of Crescent Beach, Inc. No 442 410 5 No No 15,120 Square
Feet
90 Oak Tree Villas, LLC No 307,546 7,526 7 Yes No 120 Units
91 Dana D. Ricciardi, Trustee of the 1545 Hancock No 159,486 14,902 5 No No 34,520 Square
Street Realty Trust Feet
92 Tibo Management, Inc. No 0 176 5 No No 10,908 Square
Feet
93 Trio Investments, LLC No 211 294 5 No No 15,120 Square
Feet
94 Sher-Wil/5 Points, LLC No 0 169 5 No No 10,195 Square
Feet
95 Somerset Apartments, LLP No 21,679 8,999 5 No NAP 75 Units
96 Sugar Tree Square, L.L.C. No 162,188 6,910 7 Yes No 36,972 Square
Feet
97 Metro Junction, LLC Yes 11,762 2,730 5 No No 23,980 Square
Feet
98 PVM, LLC No 27,130 5,292 5 No No 30,300 Square
Feet
99 Sports Shed, Inc. No 1,624 5,946 5 No No 528 Units
100 Blue Ridge Estates MHC, LLC No 5,167 1,563 5 No No 113 Pads
101 Timber Oak Properties, LP No 0 127 5 No No 10,125 Square
Feet
102 Cedarwood Domit Apartments, Ltd. No 57,601 4,673 5 No NAP 40 Units
103 Twin Pines Mobile Associates, L.L.C. No 20,664 1,924 5 No No 118 Pads
104 Charles E. Decker No 9,378 2,394 7 No No 9 Units
105 Sun Village LLC No 40,660 3,622 5 Yes No 91 Pads
106 Spalding Cove Apartments, LLC No 9,679 3,184 5 No No 28 Units
107 Pioneer Village MHP, Inc. No 22,905 3,073 7 Yes No 87 Pads
108 Open Sky Inc. No 17,406 4,561 5 Yes No 41 Units
Defeasance Accrual Maturity/ARD Rem.
Seq # Borrower Name Property Type Allowed Period Date Amort.
------------------------------------------------------------------------------------------------------------------------------------
1 Century III Mall, L.P., Longview Mall, L.P., Retail Yes 10th - 9th NAP 358
Highland Lakes Center, LLC
1.1 Century III Mall, L.P., Longview Mall, L.P., Retail
Highland Lakes Center, LLC
1.2 Century III Mall, L.P., Longview Mall, L.P., Retail
Highland Lakes Center, LLC
1.3 Century III Mall, L.P., Longview Mall, L.P., Retail
Highland Lakes Center, LLC
2 75-101 Federal St., LLC Office Yes 1st - 31st NAP 359
3 ARC Communities I, LLC Manufactured Yes NAP 354
Housing
3.1 ARC Communities I, LLC Manufactured
Housing
3.2 ARC Communities I, LLC Manufactured
Housing
3.3 ARC Communities I, LLC Manufactured
Housing
3.4 ARC Communities I, LLC Manufactured
Housing
3.5 ARC Communities I, LLC Manufactured
Housing
3.6 ARC Communities I, LLC Manufactured
Housing
3.7 ARC Communities I, LLC Manufactured
Housing
3.8 ARC Communities I, LLC Manufactured
Housing
3.9 ARC Communities I, LLC Manufactured
Housing
3.10 ARC Communities I, LLC Manufactured
Housing
3.11 ARC Communities I, LLC Manufactured
Housing
4 Long Island Industrial Group Two LLC, 600 West Industrial Yes 10th - 9th NAP 358
John LLC, 270-280 Duffy LLC, 290 Duffy LLC
4.1 Long Island Industrial Group Two LLC, 600 West Industrial
John LLC, 270-280 Duffy LLC, 290 Duffy LLC
4.2 Long Island Industrial Group Two LLC, 600 West Industrial
John LLC, 270-280 Duffy LLC, 290 Duffy LLC
4.3 Long Island Industrial Group Two LLC, 600 West Industrial
John LLC, 270-280 Duffy LLC, 290 Duffy LLC
4.4 Long Island Industrial Group Two LLC, 600 West Industrial
John LLC, 270-280 Duffy LLC, 290 Duffy LLC
4.5 Long Island Industrial Group Two LLC, 600 West Industrial
John LLC, 270-280 Duffy LLC, 290 Duffy LLC
4.6 Long Island Industrial Group Two LLC, 600 West Industrial
John LLC, 270-280 Duffy LLC, 290 Duffy LLC
4.7 Long Island Industrial Group Two LLC, 600 West Industrial
John LLC, 270-280 Duffy LLC, 290 Duffy LLC
5 West 50th (DEL) LLC Multifamily Yes 1st - 31st NAP 359
6 1400 LSD, LLC Multifamily Yes 1st - 31st NAP 358
7 600 5th Avenue, LLC Office Yes 1st - 31st 11/1/12 NAP
8 CCDC Marion Portfolio LP Industrial Yes 1st - 31st 8/1/12 NAP
9 Deerfield Village Centre, L.L.C. and Deerfield Multifamily Yes 1st - 31st 9/1/11 NAP
Village Centre II, L.L.C.
10 GREC Greenwich Ltd. Multifamily Yes 1st - 31st NAP 359
11 Thirty-Four Marketplace Acceptance, LLC Office No 1st - 31st NAP 349
12 Coventry Green LLC Multifamily Yes 1st - 31st NAP 358
13 Aviana Company, Ltd., LLC Retail Yes 1st - 31st 9/1/17 NAP
14 West Valley Partners, LLC, DBA West Valley Industrial Yes 1st - 31st NAP 358
Business Park Partners LLC
15 ZKS Richmond Holdings, LLC Industrial Yes 1st - 31st 10/1/12 NAP
16 Twenty-Six SAC Self-Storage, LP Self Storage Yes 1st - 31st 4/1/12 NAP
16.1 Twenty-Six SAC Self-Storage, LP Self Storage
16.2 Twenty-Six SAC Self-Storage, LP Self Storage
16.3 Twenty-Six SAC Self-Storage, LP Self Storage
16.4 Twenty-Six SAC Self-Storage, LP Self Storage
16.5 Twenty-Six SAC Self-Storage, LP Self Storage
17 First Daniel LLC Multifamily Yes 1st - 31st NAP 358
18 Sperling Massillon, LLC, WC Massillon, LLC, SBW Industrial Yes 1st - 31st 12/1/12 NAP
Massillon, LLC, WMS Massillon, LLC, NSHE
Sossaman, LLC
19 Biscayne Centre, LLC Office Yes 1st - 31st NAP 359
20 Cub Square Centre LLC Retail Yes 1st - 31st NAP 355
21 NNN Wolf Pen Plaza, LLC Retail Yes 1st - 31st 10/1/07 NAP
22 J. Supor, LLC Industrial Yes 1st - 31st NAP 299
23 Hillsdale, L.P. Retail Yes 1st - 31st NAP 356
24 SFT Tigerfish LLC Multifamily Yes 1st - 31st NAP 358
25 Orland Towne Center, L.L.C. Retail Yes 1st - 31st NAP 357
26 Coit/Legacy Limited Partnership Retail Yes 1st - 31st NAP 265
27 136 Turnpike Road LLC Office Yes 1st - 31st NAP 356
28 Lone Oak - Stockton, L.L.C. Industrial Yes 1st - 31st NAP 297
29 Opelika Portfolio, L.P. Retail Yes 1st - 31st 11/1/12 NAP
30 Arbor Green Apartments LLC Multifamily Yes 1st - 31st NAP 359
31 Lyons Market Street, LLC Retail Yes 1st - 31st NAP 357
32 Vanstory Apartments, LLC Multifamily Yes 1st - 31st NAP 359
33 Cole Taylor Bank Office Yes 1st - 31st NAP 299
34 DIM Parkway Limited Partnership Retail Yes 1st - 31st NAP 331
35 IFP, LLC Multifamily Yes 1st - 31st NAP 356
36 The Advantages Apartments LLC Multifamily Yes 1st - 31st NAP 357
37 Lake Cadena Investments, Ltd. Manufactured Yes 1st - 31st NAP 357
Housing
38 Family Car Johnston, Inc Theater Yes 1st - 31st NAP 270
39 Richland Mobile Home Park LLC Manufactured Yes 1st - 31st NAP 359
Housing
40 Ashberry Exeter LLC Multifamily Yes 1st - 31st NAP 357
41 Belair Center, LP Retail Yes 1st - 31st NAP 359
42 Kalamazoo Properties Limited Partnership Multifamily Yes 1st - 31st NAP 359
42.1 Kalamazoo Properties Limited Partnership Multifamily
42.2 Kalamazoo Properties Limited Partnership Multifamily
42.3 Kalamazoo Properties Limited Partnership Multifamily
43 Kings Ambassador Associates, Ltd Multifamily Yes 1st - 31st NAP 347
44 Heritage Hill Investors Group, LTD Multifamily Yes 1st - 31st NAP 358
45 Lincoln-Inwood Plaza, Ltd. Office Yes 1st - 31st NAP 299
46 DonBev Properties I, Ltd. LP Multifamily Yes 1st - 31st NAP 360
47 Fiesta Grande RV I, LLC Manufactured Yes 1st - 31st NAP 360
Housing
48 Marvin Gardens Company, LP Multifamily Yes 1st - 31st NAP 358
49 Springhill Properties, L.P. Multifamily Yes 1st - 31st NAP 298
50 Northwood Domit Apartments, Ltd. Multifamily Yes 1st - 31st NAP 359
51 REA Riverside General, LLC Retail Yes 1st - 31st NAP 358
52 NNN North Reno LLC Retail Yes 1st - 31st NAP 355
53 Access Self Storage of Clark, LLC Self Storage Yes 1st - 31st NAP 299
54 Ventnor Associates Company, LP Multifamily Yes 1st - 31st NAP 358
55 Regency 2000, LLC Office Yes 1st - 31st NAP 353
56 Hartford Centre Associates, LLC Office Yes 1st - 31st NAP 358
57 MLMD Realty, LP Retail Yes 1st - 31st NAP 351
58 Wellington Place Partners, LP Multifamily Yes 1st - 31st NAP 358
59 Palm Beach SA, LLC Retail Yes 1st - 31st NAP 356
60 R & F Baltimore Pike L.P. Retail Yes 1st - 31st NAP 355
61 Seneca Townhouse Apartments LLC Multifamily Yes 1st - 31st NAP NAP
62 Regency Place Combined Joint Venture Multifamily Yes 1st - 31st NAP 358
63 Carnegie Investors, L.P. Industrial Yes 1st - 31st NAP 358
64 GPI Real Estate, LLC Industrial Yes 1st - 31st NAP 342
65 Coit/Legacy Limited Partnership Retail Yes 1st - 31st NAP 265
66 Marina Corporate Center, LLC Industrial Yes 1st - 31st 12/1/12 NAP
67 Arroyo Vista Apartments, LLC Multifamily Yes 1st - 31st NAP 359
68 DLJ/Stephens, LLC Industrial Yes 1st - 31st NAP 358
69 Royal Timber Associates, LP Multifamily Yes 1st - 31st NAP 335
70 Apple Valley Square LP Retail Yes 1st - 31st 9/1/12 NAP
71 King George Apartments, LLC Multifamily Yes 1st - 31st NAP 359
72 South Brook Villa Limited Dividend Housing Multifamily Yes 1st - 31st NAP 359
Association LLC
73 Bluegrass Meadows Rentals LLC Multifamily Yes 1st - 31st NAP 358
74 Twin City Crossing, LLC Retail Yes 1st - 31st NAP 356
75 Olde English Village, LP Retail Yes 1st - 31st NAP 297
76 BLMA Ltd. Retail Yes 1st - 31st NAP 298
77 Benwall Texas LP Retail Yes 1st - 31st NAP 356
78 Fisher Investments, LLC Multifamily Yes 1st - 31st NAP 359
79 Aberdeen Associates, LP Retail Yes 1st - 31st 12/1/12 NAP
80 South Coast Paulrino Apartments, LLC Multifamily Yes 1st - 31st NAP 360
81 The Liu Family Trust Multifamily Yes 1st - 31st NAP NAP
82 Family Car Missoula, Inc. Theater Yes 1st - 31st NAP 270
83 Cardinal Court, LLC Manufactured Yes 1st - 31st NAP 359
Housing
84 Woodlawn Corner, LLC Retail Yes 1st - 31st NAP 358
85 MDR Cookeville LLC, HRT Cookeville LLC, AJB Retail Yes 1st - 31st NAP 358
Cookeville LLC, KSB Cookeville LLC, and VRH
Cookeville LLC
86 C&D Madison, LLC Multifamily Yes 1st - 31st NAP 357
87 3730 Brighton Road, LLC Retail Yes 1st - 31st NAP 359
88 Westgate Greenway, LLC Multifamily Yes 1st - 31st NAP 352
89 Okoboji's Holidays of Crescent Beach, Inc. Retail Yes 1st - 31st NAP 357
90 Oak Tree Villas, LLC Multifamily Yes 1st - 31st NAP 335
91 Dana D. Ricciardi, Trustee of the 1545 Hancock Office Yes 1st - 31st NAP 354
Street Realty Trust
92 Tibo Management, Inc. Retail Yes 1st - 31st NAP 358
93 Trio Investments, LLC Retail Yes 1st - 31st NAP 342
94 Sher-Wil/5 Points, LLC Retail Yes 1st - 31st NAP 359
95 Somerset Apartments, LLP Multifamily Yes 1st - 31st NAP 359
96 Sugar Tree Square, L.L.C. Retail Yes 1st - 31st NAP NAP
97 Metro Junction, LLC Retail Yes 1st - 31st NAP 357
98 PVM, LLC Industrial Yes 1st - 31st NAP 295
99 Sports Shed, Inc. Self Storage Yes 1st - 31st NAP 217
100 Blue Ridge Estates MHC, LLC Manufactured Yes 1st - 31st NAP 357
Housing
101 Timber Oak Properties, LP Retail Yes 1st - 31st NAP 299
102 Cedarwood Domit Apartments, Ltd. Multifamily Yes 1st - 31st NAP 359
103 Twin Pines Mobile Associates, L.L.C. Manufactured Yes 1st - 31st NAP 297
Housing
104 Charles E. Decker Multifamily Yes 1st - 31st NAP 359
105 Sun Village LLC Manufactured Yes 1st - 31st NAP 359
Housing
106 Spalding Cove Apartments, LLC Multifamily Yes 1st - 31st NAP 360
107 Pioneer Village MHP, Inc. Manufactured Yes 1st - 31st NAP 300
Housing
108 Open Sky Inc. Multifamily Yes 1st - 31st NAP 357
EXHIBIT C
FORM OF INVESTMENT REPRESENTATION LETTER
LaSalle Bank National Association
as Certificate Registrar
135 South LaSalle Street, Suite 1625
Chicago, Illinois 60603
Attention: Asset-Backed Securities Trust Services Group-
J.P. Morgan Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2002-C2
J.P. Morgan Chase Commercial Mortgage Securities Corp.
270 Park Avenue, 10th Floor
New York, New York 10017
Attention: Dennis Schuh, Vice President
Re: Transfer of J.P. Morgan Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2002-C2
-------------------------------------------------------------------
Ladies and Gentlemen:
This letter is delivered pursuant to Section 5.02 of the Pooling and
Servicing Agreement, dated as of December 1, 2002 (the "Pooling and Servicing
Agreement"), by and among J.P. Morgan Chase Commercial Mortgage Securities
Corp., as Depositor, Wachovia Bank, National Association, as Servicer, ARCap
Special Servicing, Inc., as Special Servicer, LaSalle Bank National Association,
as Paying Agent and Wells Fargo Bank Minnesota, N.A., as Trustee, on behalf of
the holders of J.P. Morgan Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2002-C2 (the
"Certificates") in connection with the transfer by _________________ (the
"Seller") to the undersigned (the "Purchaser") of $_______________ aggregate
Certificate Balance of Class ___ Certificates (the "Certificate"). Capitalized
terms used and not otherwise defined herein shall have the respective meanings
ascribed to such terms in the Pooling and Servicing Agreement.
In connection with such transfer, the Purchaser hereby represents
and warrants to you and the addressees hereof as follows:
1. Check one of the following:*
[_] The Purchaser is not purchasing a Class R or Class LR Certificate
and the Purchaser is an institutional "accredited investor" (an
entity meeting the requirements of Rule 501(a)(1), (2), (3) or (7)
of Regulation D under the Securities Act of 1933, as amended (the
"1933 Act")) and has such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks
of its investment in the Certificates, and the Purchaser and any
accounts for which it is acting are each able to bear the economic
risk of the Purchaser's or such account's investment. The Purchaser
is acquiring the Certificates purchased by it for its own account or
for one or more accounts (each of which is an "institutional
accredited investor") as to each of which the Purchaser exercises
sole investment discretion. The Purchaser hereby undertakes to
reimburse the Trust Fund for any costs incurred by it in connection
with this transfer.
----------------------
* Purchaser must include one of the following two certifications.
[_] The Purchaser is a "qualified institutional buyer" within the
meaning of Rule 144A ("Rule 144A") promulgated under the Securities
Act of 1933, as amended (the "1933 Act") The Purchaser is aware that
the transfer is being made in reliance on Rule 144A, and the
Purchaser has had the opportunity to obtain the information required
to be provided pursuant to paragraph (d)(4)(i) of Rule 144A.
2. The Purchaser's intention is to acquire the Certificate (a) for
investment for the Purchaser's own account or (b) for resale to (i) "qualified
institutional buyers" in transactions under Rule 144A, and not in any event with
the view to, or for resale in connection with, any distribution thereof or (ii)
(other than with respect to a Residual Certificate) to institutional "accredited
investors" meeting the requirements of Rule 501(a)(1), (2), (3) or (7) of
Regulation D promulgated under the 1933 Act, pursuant to any other exemption
from the registration requirements of the 1933 Act, subject in the case of this
clause (ii) to (w) the receipt by the Certificate Registrar of a letter
substantially in the form hereof, (x) the receipt by the Certificate Registrar
of an opinion of counsel acceptable to the Certificate Registrar that such
reoffer, resale, pledge or transfer is in compliance with the 1933 Act, (y) the
receipt by the Certificate Registrar of such other evidence acceptable to the
Certificate Registrar that such reoffer, resale, pledge or transfer is in
compliance with the 1933 Act and other applicable laws and (z) a written
undertaking to reimburse the Trust for any costs incurred by it in connection
with the proposed transfer. The Purchaser understands that the Certificate (and
any subsequent Certificate) has not been registered under the 1933 Act, by
reason of a specified exemption from the registration provisions of the 1933 Act
which depends upon, among other things, the bona fide nature of the Purchaser's
investment intent (or intent to resell to only certain investors in certain
exempted transactions) as expressed herein.
3. The Purchaser has reviewed the Private Placement Memorandum
relating to the Certificates (the "Private Placement Memorandum") and the
agreements and other materials referred to therein and has had the opportunity
to ask questions and receive answers concerning the terms and conditions of the
transactions contemplated by the Private Placement Memorandum.
4. The Purchaser acknowledges that the Certificate (and any
Certificate issued on transfer or exchange thereof) has not been registered or
qualified under the 1933 Act or the securities laws of any State thereof or any
other jurisdiction, and that the Certificate cannot be resold unless it is
registered or qualified thereunder or unless an exemption from such registration
or qualification is available.
5. The Purchaser hereby undertakes to be bound by the terms and
conditions of the Pooling and Servicing Agreement in its capacity as an owner of
a Certificate or Certificates, as the case may be (each, a "Certificateholder"),
in all respects as if it were a signatory thereto. This undertaking is made for
the benefit of the Trust, the Certificate Registrar and all Certificateholders
present and future.
6. The Purchaser will not sell or otherwise transfer any portion of
the Certificate or Certificates, except in compliance with Section 5.02 of the
Pooling and Servicing Agreement.
7. Check one of the following:**
[_] The Purchaser is a U.S. Person (as defined below) and it has
attached hereto an Internal Revenue Service ("IRS") Form W-9 (or
successor form).
[_] The Purchaser is not a U.S. Person and under applicable law in
effect on the date hereof, no taxes will be required to be withheld
by the Trustee (or its agent) with respect to distributions to be
made on the Certificate. The Purchaser has attached hereto [either
(i) a duly executed IRS Form W-8BEN (or successor form), which
identifies such Purchaser as the beneficial owner of the Certificate
and states that such Purchaser is not a U.S. Person or (ii)]*** two
duly executed copies of IRS Form W-8ECI (or successor form), which
identify such Purchaser as the beneficial owner of the Certificate
and state that interest and original issue discount on the
Certificate and Permitted Investments is, or is expected to be,
effectively connected with a U.S. trade or business. The Purchaser
agrees to provide to the Certificate Registrar updated [IRS Forms
W-8BEN or]*** IRS Forms W-8ECI, [as the case may be,]*** any
applicable successor IRS forms, or such other certifications as the
Certificate Registrar may reasonably request, on or before the date
that any such IRS form or certification expires or becomes obsolete,
or promptly after the occurrence of any event requiring a change in
the most recent IRS form of certification furnished by it to the
Certificate Registrar.
------------------------------
** Each Purchaser must include one of the two alternative certifications.
*** Does not apply to a transfer of Class R or Class LR Certificates.
For this purpose, "U.S. Person" means a citizen or resident of the United
States, a corporation or partnership (except to the extent provided in
applicable Treasury Regulations) or other entity created or organized in, or
under the laws of, the United States, any State or the District of Columbia,
including any entity treated as a corporation or partnership for federal income
tax purposes, an estate whose income is subject to United States federal income
tax regardless of its source or a trust if a court within the United States is
able to exercise primary supervision over the administration of such trust, and
one or more such U.S. Persons have the authority to control all substantial
decisions of such trust (or, to the extent provided in applicable Treasury
Regulations, certain trusts in existence on August 20, 1996 which are eligible
to elect to be treated as U.S. Persons).
8. Please make all payments due on the Certificates:****
[_] (a) by wire transfer to the following account at a bank or entity
in New York, New York, having appropriate facilities therefor:
Bank:_________________________________________________
ABA#:_________________________________________________
Account #:____________________________________________
Attention:____________________________________________
[_] (b) by mailing a check or draft to the following address:
------------------------------------------------------
------------------------------------------------------
------------------------------------------------------
**** Only to be filled out by Purchasers of Definitive Certificates. Please
select (a) or (b). For holders of Definitive Certificates, wire transfers are
only available if such holder's Definitive Certificates have an aggregate
Certificate Balance or Notional Amount, as applicable, of at least U.S.
$5,000,000.
[9. The Purchaser is not a partnership (or any entity treated as a
partnership for U.S. federal income tax purposes), any interest in which is
owned, directly or indirectly, through one or more partnerships, trusts or other
pass-through entities, by a non-U.S. Person.]*****
***** Applies to a transfer of Class R or Class LR Certificates only.
Very truly yours,
---------------------------------------
[The Purchaser]
By:
-----------------------------------
Name:
Title:
Dated:
EXHIBIT D-1
FORM OF TRANSFER AFFIDAVIT
AFFIDAVIT PURSUANT TO
SECTION 860E(E)(4) OF THE
INTERNAL REVENUE CODE OF
1986, AS AMENDED
STATE OF )
) ss.:
COUNTY OF )
[NAME OF OFFICER], being first duly sworn, deposes and says:
1. That [he] [she] is [Title of Officer] of [Name of Transferee]
(the "Transferee"), a [description of type of entity] duly organized and
existing under the laws of the [State of __________] [United States], on behalf
of which he makes this affidavit.
2. That the Transferee's Taxpayer Identification Number is [ ].
3. That the Transferee of a J.P. Morgan Chase Commercial Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates, Series 2002-C2,
Class [R] [LR] Certificate (the "Class [R] [LR] Certificate") is not a
Disqualified Organization (as defined below) or an agent thereof (including
nominee, middleman or other similar person) (an "Agent"), an ERISA Prohibited
Holder or a Non-U.S. Person (as defined below). For these purposes, a
"Disqualified Organization" means any of (i) the United States, any State or
political subdivision thereof, any possession of the United States, or any
agency or instrumentality of any of the foregoing (other than an instrumentality
which is a corporation if all of its activities are subject to tax and, majority
of its board of directors is not selected by such governmental unit), (ii) a
foreign government, any international organization, or any agency or
instrumentality of any of the foregoing, (iii) any organization (other than
certain farmers' cooperatives described in Section 521 of the Code) which is
exempt from the tax imposed by Chapter 1 of the Code (including the tax imposed
by Section 511 of the Code on unrelated business taxable income), (iv) rural
electric and telephone cooperatives described in Section 1381(a)(2)(C) of the
Code and (v) any other Person so designated by the Servicer based upon an
Opinion of Counsel that the holding of an Ownership Interest in a Residual
Certificate by such Person may cause either of the Upper-Tier REMIC or the
Lower-Tier REMIC to fail to qualify as a REMIC or any Person having an Ownership
Interest in any Class of Certificates (other than such Person) to incur a
liability for any federal tax imposed under the Code that would not otherwise be
imposed but for the Transfer of an Ownership Interest in a Residual Certificate
to such Person. The terms "United States," "State" and "international
organization" shall have the meanings set forth in Section 7701 of the Code or
successor provisions. For these purposes, "ERISA Prohibited Holder" means an
employee benefit plan subject to Section 406 of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), or Section 4975 of the Code, or a
governmental plan (as defined in Section 3(32) of ERISA) or a church plan (as
defined in Section 3(33) of ERISA) for which no election has been made under
Section 410(d) of the Code subject to any federal, state or local law which is,
to a material extent, similar to the foregoing provisions of ERISA or the Code
(each, a "Plan") or a person acting on behalf of or investing the assets of such
a Plan. For these purposes, "Non-U.S. Person" means any person other than a U.S.
Person (within the meaning of Section 7701(a)(30) of the Code), unless, with
respect to the Transfer of a Residual Certificate, (i) such person holds such
Residual Certificate in connection with the conduct of a trade or business
within the United States and furnishes the Transferor and the Certificate
Registrar with an effective Internal Revenue Service Form W-8ECI or (ii) the
Transferee delivers to both the Transferor and the Certificate Registrar an
opinion of a nationally recognized tax counsel to the effect that such Transfer
is in accordance with the requirements of the Code and the regulations
promulgated thereunder and that such Transfer of the Residual Certificate will
not be disregarded for federal income tax purposes; provided, that a partnership
(including any entity treated as a partnership for U.S. federal income tax
purposes) shall be considered a Non-U.S. Person (and clause (i) of this sentence
shall not apply) if any of its interests are owned, directly or indirectly,
through one or more partnerships, trusts or other pass-through entities, by any
person that is not a U.S. Person.
4. That the Transferee historically has paid its debts as they have
come due and intends to pay its debts as they come due in the future and the
Transferee intends to pay taxes associated with holding the Class [R] [LR]
Certificate as they become due.
5. That the Transferee understands that it may incur tax liabilities
with respect to the Class [R] [LR] Certificate in excess of any cash flow
generated by the Class [R] [LR] Certificate.
6. That the Transferee agrees not to transfer the Class [R] [LR]
Certificate to any Person or entity unless (a) the Transferee has received from
such Person or entity an affidavit substantially in the form of this Transfer
Affidavit and (b) the Transferee provides to the Certificate Registrar a letter
substantially in the form of Exhibit D-2 to the Pooling and Servicing Agreement
certifying that it has no actual knowledge that such Person or entity is a
Disqualified Organization or an Agent thereof, an ERISA Prohibited Holder or a
Non-U.S. Person and that it has no reason to know that such Person or entity
does not satisfy the requirements set forth in paragraph 4 hereof.
7. That the Transferee agrees to such amendments of the Pooling and
Servicing Agreement, dated as of December 1, 2002 (the "Pooling and Servicing
Agreement") among J.P. Morgan Chase Commercial Mortgage Securities Corp., as
Depositor, Wachovia Bank, National Association, as Servicer, ARCap Special
Servicing, Inc., as Special Servicer, Wells Fargo Bank Minnesota, N.A., as
Trustee and LaSalle Bank National Association, as Paying Agent, as may be
required to further effectuate the restrictions on transfer of the Class [R]
[LR] Certificate to such a Disqualified Organization or an Agent thereof, an
ERISA Prohibited Holder or a Non-U.S. Person. To the extent not defined herein,
the capitalized terms used herein shall have the meanings assigned thereto in
the Pooling and Servicing Agreement.
8. That, if a "tax matters person" is required to be designated with
respect to the [Upper-Tier REMIC] [Lower-Tier REMIC], the Transferee agrees to
act as "tax matters person" and to perform the functions of "tax matters person"
of the [Upper-Tier REMIC] [Lower-Tier REMIC] pursuant to Section 10.01(c) of the
Pooling and Servicing Agreement, and agrees to the irrevocable designation of
the Trustee as the Transferee's agent in performing the function of "tax matters
person."
9. That the Transferee has reviewed, and agrees to be bound by and
to abide by, the provisions of Section 5.02(c) of the Pooling and Servicing
Agreement concerning registration of the transfer and exchange of Class [R] [LR]
Certificates.
10. That the Transferee will not cause income from the Class [R][LR]
Certificate to be attributable to a foreign permanent establishment or fixed
base, within the meaning of an applicable income tax treaty, of the Transferee
or any other U.S. Person.
11. Check one of the following:
[_] That the present value of the anticipated tax liabilities
associated with holding the Class [R] [LR] Certificate does not exceed the sum
of:
(i) the present value of any consideration given to the Transferee
to acquire such Class [R][LR] Certificate;
(ii) the present value of the expected future distributions on such
Class [R] [LR] Certificate; and
(iii) the present value of the anticipated tax savings associated
with holding such Class [R] [LR] Certificate as the related
REMIC generates losses.
For purposes of this calculation, (i) the Transferee is assumed to
pay tax at the highest rate currently specified in Section 11(b) of the Code
(but the tax rate in Section 55(b)(1)(B) of the Code may be used in lieu of the
highest rate specified in Section 11(b) of the Code if the Transferee has been
subject to the alternative minimum tax under Section 55 of the Code in the
preceding two years and will compute its taxable income in the current taxable
year using the alternative minimum tax rate) and (ii) present values are
computed using a discount rate equal to the short-term Federal rate prescribed
by Section 1274(d) of the Code for the month of the transfer and the compounding
period used by the Transferee.
[_] That the transfer of the Class [R] [LR] Certificate complies
with U.S. Treasury Regulations Sections 1.860G-1(c)(5) and (6) and, accordingly,
(i) the Transferee is an "eligible corporation," as defined in
U.S. Treasury Regulations Sections 1.860E-1(c)(6)(i), as to
which income from Class [R] [LR] Certificate will only be
taxed in the United States;
(ii) at the time of the transfer, and at the close of the
Transferee's two fiscal years preceding the year of the
transfer, the Transferee had gross assets for financial
reporting purposes (excluding any obligation of a person
related to the Transferee within the meaning of U.S. Treasury
Regulation Section 1.860E-1(c)(6)(ii)) in excess of $100
million and net assets in excess of $10 million;
(iii) the Transferee will transfer the Class [R] [LR] Certificate
only to another "eligible corporation," as defined in U.S.
Treasury Regulations Section 1.860E-1(c)(6)(i), in a
transaction that satisfies the requirements of U.S. Treasury
Regulations Sections 1.860G-1(c)(4)(i), (ii) and (iii) and
1.860E-1(c)(5); and
(iv) the Transferee determined the consideration paid to it to
acquire the Class [R] [LR] Certificate based on reasonable
market assumptions (including, but not limited to, borrowing
and investment rates, prepayment and loss assumptions, expense
and reinvestment assumptions, tax rates and other factors
specific to the Purchaser) that it has determined in good
faith.
[_] None of the above.
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, by its [Title of Officer] this _____ day of __________,
20__.
[NAME OF TRANSFEREE]
By:
------------------------------------
[Name of Officer]
[Title of Officer]
Personally appeared before me the above-named [Name of Officer],
known or proved to me to be the same person who executed the foregoing
instrument and to be the [Title of Officer] of the Transferee, and acknowledged
to me that he [she] executed the same as his [her] free act and deed and the
free act and deed of the Transferee.
Subscribed and sworn before me this ___ day of __________, 20__.
------------------------------
NOTARY PUBLIC
COUNTY OF _____________________
STATE OF _____________________
My commission expires the ___ day of __________, 20__.
EXHIBIT D-2
FORM OF TRANSFEROR LETTER
[Date]
LaSalle Bank National Association
as Authenticating Agent and Certificate Registrar
135 South LaSalle Street, Suite 1625
Chicago, Illinois 60603
Attention: Asset-Backed Securities Trust Services Group-
J.P. Morgan Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2002-C2
Re: J.P. Morgan Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2002-C2
-------------------------------------------------------------
Ladies and Gentlemen:
[Transferor] has reviewed the attached affidavit of [Transferee],
and has no actual knowledge that such affidavit is not true and has no reason to
know that the requirements set forth in paragraphs 3, 4 and 10 thereof are not
satisfied or, after conducting a reasonable investigation of the financial
condition of the transferee, that the information contained in paragraphs 3, 4
and 10 thereof is not true.
Very truly yours,
[Transferor]
----------------------------
EXHIBIT E
FORM OF REQUEST FOR RELEASE
[Date]
Wells Fargo Bank Minnesota, N.A.
9062 Old Annapolis Road
Columbia, Maryland 21045-1951
Attention: Corporate Trust Services (CMBS) Mortgage Document Custody
Re: J.P. Morgan Chase Commercial Mortgage Securities Corp,
Commercial Morgan Pass-Through Certificates, Series 2002-C2,
REQUEST FOR RELEASE
--------------------------------------------------------------
Dear _______________________,
In connection with the administration of the Mortgage Files held by
or on behalf of you as Trustee under a certain Pooling and Servicing Agreement,
dated as of December 1, 2002 (the "Pooling and Servicing Agreement"), by and
among J.P. Morgan Chase Commercial Mortgage Securities Corp., as Depositor,
Wachovia Bank, National Association, as Servicer, ARCap Special Servicing, Inc.,
as Special Servicer, LaSalle Bank National Association, as Paying Agent, and
you, as Trustee, the undersigned hereby requests a release of the Mortgage File
(or the portion thereof specified below) held by or on behalf of you as Trustee
with respect to the following described Mortgage Loan for the reason indicated
below.
Mortgagor's Name:
Address:
Loan No.:
If only particular documents in the Mortgage File are requested, please specify
which:
Reason for requesting file (or portion thereof):
______1. Mortgage Loan paid in full. The [Servicer] [Special
Servicer] hereby certifies that all amounts received in
connection with the Mortgage Loan have been or will be
credited to the Certificate Account pursuant to the
Pooling and Servicing Agreement.
______ 2. The Mortgage Loan is being foreclosed.
______ 3. Other. (Describe)
The undersigned acknowledges that the above Mortgage File (or
requested portion thereof) will be held by the undersigned in accordance with
the provisions of the Pooling and Servicing Agreement and will be returned to
you or your designee within ten (10) days of our receipt thereof, unless the
Mortgage Loan has been paid in full, in which case the Mortgage File (or such
portion thereof) will be retained by us permanently, or unless the Mortgage Loan
is being foreclosed, in which case the Mortgage File (or such portion thereof)
will be returned when no longer required by us for such purpose.
Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Pooling and Servicing Agreement.
[SERVICER] [SPECIAL SERVICER]
By:____________________________________
Name:_______________________________
Title:______________________________
EXHIBIT F
FORM OF ERISA REPRESENTATION LETTER
LaSalle Bank National Association
as Certificate Registrar
135 South LaSalle Street, Suite 1625
Chicago, Illinois 60603
Attention: Asset-Backed Securities Trust Services Group-
J.P. Morgan Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2002-C2
J.P. Morgan Chase Commercial Mortgage Securities Corp.
270 Park Avenue, 10th Floor
New York, New York 10017
Attention: Dennis Schuh, Vice President
Re: Transfer of J.P. Morgan Chase Commercial Mortgage Securities
Corp., Commercial Mortgage Pass-Through Certificates, Series
2002-C2
------------------------------------------------------------
Ladies and Gentlemen:
The undersigned (the "Purchaser") proposes to purchase $____________
initial Certificate Balance of J.P. Morgan Chase Commercial Mortgage Securities
Corp., Commercial Mortgage Pass-Through Certificates, Series 2002-C2, Class __
(the "Certificate") issued pursuant to that certain Pooling and Servicing
Agreement, dated as of December 1, 2002 (the "Pooling and Servicing Agreement"),
by and among J.P. Morgan Chase Commercial Mortgage Securities Corp., as
depositor (the "Depositor"), Wachovia Bank, National Association, as servicer
(the "Servicer"), ARCap Special Servicing, Inc., as special servicer (the
"Special Servicer"), Wells Fargo Bank Minnesota, N.A., as trustee (the
"Trustee") and LaSalle Bank National Association, as paying agent (the "Paying
Agent"). Capitalized terms used and not otherwise defined herein have the
respective meanings ascribed to such terms in the Pooling and Servicing
Agreement.
In connection with such transfer, the undersigned hereby represents
and warrants to you as follows:
1. The Purchaser is not (a) an employee benefit plan subject to the
fiduciary responsibility provisions of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA") or Section 4975 of the Internal Revenue Code
of 1986, as amended (the "Code"), or a governmental plan (as defined in Section
3(32) of ERISA) or a church plan (as defined in Section 3(33) of ERISA) for
which no election has been made under Section 410(d) of the Code subject to any
federal, state or local law ("Similar Law") which is, to a material extent,
similar to the foregoing provisions of ERISA or the Code (each, a "Plan") or (b)
a person acting on behalf of or using the assets of any such Plan (including an
entity whose underlying assets include Plan assets by reason of investment in
the entity by such a Plan or Plans and the application of Department of Labor
Regulation ss. 2510.3-101), other than an insurance company using the assets of
its general account under circumstances whereby the purchase and holding of
Offered Private Certificates by such insurance company would be exempt from the
prohibited transaction provisions of ERISA and the Code under Sections I and III
of Prohibited Transaction Class Exemption 95-60.
2. The Purchaser understands that if the Purchaser is a Person
referred to in 1(a) or (b) above, such Purchaser is required to provide to the
Certificate Registrar an opinion of counsel in form and substance satisfactory
to the Certificate Registrar and the Depositor to the effect that the
acquisition and holding of such Certificate by such purchaser or transferee will
not result in the assets of the Trust Fund being deemed to be "plan assets" and
subject to the fiduciary responsibility provisions of ERISA, the prohibited
transaction provisions of the Code or the provisions of any Similar Law,
(without regard to the identity or nature of the other Holders of Certificates
of any Class) will not constitute or result in a "prohibited transaction" within
the meaning of ERISA, Section 4975 of the Code or any Similar Law, and will not
subject the Trustee, the Certificate Registrar, the Servicer, the Special
Servicer, the Paying Agent or the Depositor to any obligation or liability
(including obligations or liabilities under ERISA, Section 4975 of the Code or
any such Similar Law) in addition to those set forth in the Pooling and
Servicing Agreement, which Opinion of Counsel shall not be at the expense of the
Depositor, the Servicer, the Special Servicer, the Trustee, the Paying Agent,
the Certificate Registrar or the Trust Fund.
IN WITNESS WHEREOF, the Purchaser hereby executes this ERISA
Representation Letter on the ___ day of _____________, 2002.
Very truly yours,
----------------------------------
[The Purchaser]
By:
-------------------------------
Name:
Title:
EXHIBIT G
FORM OF STATEMENT TO CERTIFICATEHOLDERS
[SEE ANNEX C TO PROSPECTUS SUPPLEMENT]
EXHIBIT H
FORM OF OMNIBUS ASSIGNMENT
[NAME OF CURRENT ASSIGNOR] having an address at [ADDRESS OF CURRENT
ASSIGNOR] (the "Assignor") for good and valuable consideration, the receipt and
sufficiency of which are acknowledged, hereby sells, transfers, assigns,
delivers, sets over and conveys, without recourse, representation or warranty,
express or implied, unto "Wells Fargo Bank Minnesota, N.A., as trustee for the
registered holders of J.P. Morgan Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2002-C2" (the "Assignee"),
having an office at 9062 Old Annapolis Road, Columbia, Maryland 21045-1951,
Attn: Corporate Trust Services (CMBS) JPMorgan 2002-C2, its successors and
assigns, all right, title and interest of the Assignor in and to:
That certain mortgage and security agreement, deed of trust and security
agreement, deed to secure debt and security agreement, or similar security
instrument (the "Security Instrument"), and that certain Promissory Note (the
"Note"), for each of the Mortgage Loans shown on the Mortgage Loan Schedule
attached hereto as Exhibit A, and that certain assignment of leases and rents
given in connection therewith and all of the Assignor's right, title and
interest in any claims, collateral, insurance policies, certificates of deposit,
letters of credit, escrow accounts, performance bonds, demands, causes of action
and any other collateral arising out of and/or executed and/or delivered in or
to or with respect to the Security Instrument and the Note, together with any
other documents or instruments executed and/or delivered in connection with or
otherwise related to the Security Instrument and the Note.
IN WITNESS WHEREOF, the Assignor has executed this instrument under
seal to be effective as of the [__] day of [ ], 2002.
[NAME OF CURRENT ASSIGNOR]
By:
--------------------------------------
Name:
Title:
EXHIBIT I
FORM OF REGULATION S TRANSFER CERTIFICATE
DURING RESTRICTED PERIOD
LaSalle Bank National Association
as Certificate Registrar
135 South LaSalle Street, Suite 1625
Chicago, Illinois 60603
Attention: Asset-Backed Securities Trust Services Group-
J.P. Morgan Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2002-C2
J.P. Morgan Chase Commercial Mortgage Securities Corp.
270 Park Avenue, 10th Floor
New York, New York 10017
Attention:
Re: Transfer of J.P. Morgan Chase Commercial Mortgage Securities
Corp., Commercial Mortgage Pass-Through Certificates, Series
2002-C2 Class ___
------------------------------------------------------------
Ladies and Gentlemen:
This certificate is delivered pursuant to Section 5.02(b) of the
Pooling and Servicing Agreement, dated as of December 1, 2002 (the "Pooling and
Servicing Agreement"), by and among J.P. Morgan Chase Commercial Mortgage
Securities Corp., as Depositor, Wachovia Bank, National Association, as
Servicer, ARCap Special Servicing, Inc., as Special Servicer, LaSalle Bank
National Association, as Paying Agent and Wells Fargo Bank Minnesota, N.A., as
Trustee, on behalf of the holders of J.P. Morgan Chase Commercial Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates, Series 2002-C2,
Class __ (the "Certificates") in connection with the transfer by the undersigned
(the "Transferor") to _________________ (the "Transferee") of
$__________________ [Certificate Balance] [Notional Amount]of Certificates, in
fully registered form (each, an "Definitive Certificate"), or a beneficial
interest of such aggregate [Certificate Balance] [Notional Amount] in the
Regulation S Book-Entry Certificate (the "Book-Entry Certificate") maintained by
The Depository Trust Company or its successor as Depositary under the Pooling
and Servicing Agreement (such transferred interest, in either form, being the
"Transferred Interest").
In connection with such transfer, the Transferor does hereby certify
that such transfer has been effected in accordance with the transfer
restrictions set forth in the Pooling and Servicing Agreement and the
Certificates and (i) with respect to transfers made in accordance with
Regulation S ("Regulation S") promulgated under the Securities Act of 1933, as
amended (the "Securities Act"), the Transferor does hereby certify that:
(1) the offer of the Transferred Interest was not made to a
person in the United States;
(2) [at the time the buy order was originated, the Transferee was
outside the United States or the Transferor and any person acting on
its behalf reasonably believed that the Transferee was outside the
United States] [the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither
the undersigned nor any person acting on its behalf knows that the
transaction was pre-arranged with a buyer in the United States];*
(3) the transferee is not a U.S. Person within the meaning of Rule
902(o) of Regulation S nor a person acting for the account or
benefit of a U.S. Person, and upon completion of the transaction,
the Transferred Interest will be held with the Depository through
[Euroclear] [Clearstream];**
(4) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as
applicable; and
(5) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Paying Agent,
the Servicer and the Special Servicer.
[Name of Transferor]
By:
--------------------------------------
Name:
Title:
Dated:
-----------------------------
* Insert one of these two provisions, which come from the definition of
"off-shore transaction" in Regulation S.
** Select appropriate depository.
EXHIBIT I-2
FORM OF REGULATION S TRANSFER CERTIFICATE
AFTER RESTRICTED PERIOD
LaSalle Bank National Association
as Certificate Registrar
135 South LaSalle Street, Suite 1625
Chicago, Illinois 60603
Attention: Asset-Backed Securities Trust Services Group-
J.P. Morgan Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2002-C2
J.P. Morgan Chase Commercial Mortgage Securities Corp.
270 Park Avenue, 10th Floor
New York, New York 10017
Attention:
Re: Transfer of J.P. Morgan Chase Commercial Mortgage Securities
Corp., Commercial Mortgage Pass-Through Certificates, Series
2002-C2 Class __
------------------------------------------------------------
Ladies and Gentlemen:
This certificate is delivered pursuant to Section 5.02(b) the
Pooling and Servicing Agreement, dated as of December 1, 2002 (the "Pooling and
Servicing Agreement"), by and among J.P. Morgan Chase Commercial Mortgage
Securities Corp., as Depositor, Wachovia Bank, National Association, as
Servicer, ARCap Special Servicing, Inc., as Special Servicer, LaSalle Bank
National Association, as Paying Agent and Wells Fargo Bank Minnesota, N.A., as
Trustee, on behalf of the holders of J.P. Morgan Chase Commercial Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates, Series 2002-C2,
Class __ (the "Certificates") in connection with the transfer by the undersigned
(the "Transferor") to _________________ (the "Transferee") of
$__________________ [Certificate Balance][Notional Amount] of Certificates, in
fully registered form (each, an "Definitive Certificate"), or a beneficial
interest of such aggregate [Certificate Balance][Notional Amount] in the
Regulation S Book-Entry Certificate (the "Book-Entry Certificate") maintained by
The Depository Trust Company or its successor as Depositary under the Pooling
and Servicing Agreement (such transferred interest, in either form, being the
"Transferred Interest").
In connection with such transfer, the Transferor does hereby certify
that such transfer has been effected in accordance with the transfer
restrictions set forth in the Pooling and Servicing Agreement and the
Certificates and (i) with respect to transfers made in accordance with
Regulation S ("Regulation S") promulgated under the Securities Act of 1933, as
amended (the "Securities Act"), the Transferor does hereby certify that:
(1) the offer of the Transferred Interest was not made to a
person in the United States;
(2) [at the time the buy order was originated, the Transferee was
outside the United States or the Transferor and any person acting on
its behalf reasonably believed that the Transferee was outside the
United States] [the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither
the undersigned nor any person acting on its behalf knows that the
transaction was pre-arranged with a buyer in the United States];*
(3) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as
applicable; and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act,
or (ii) with respect to transfers made in reliance on Rule 144 under the
Securities Act, the Transferor does hereby certify that the Certificates that
are being transferred are not "restricted securities" as defined in Rule 144
under the Securities Act.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Paying Agent,
the Servicer and the Special Servicer.
[Name of Transferor]
By:
--------------------------------------
Name:
Title:
Dated:
-----------------------------
* Insert one of these two provisions, which come from the definition of
"off-shore transaction" in Regulation S.
EXHIBIT J
FORM OF PURCHASE OPTION NOTICE
Wells Fargo Bank Minnesota, N.A.
9062 Old Annapolis Road
Columbia, Maryland 21045-1951
Attention: Corporate Trust Services (CMBS)
Wachovia Bank, National Association
NC 1075
8739 Research Drive, URP4
Charlotte, North Carolina 28262-1075
Attention: J.P. Morgan Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2002-C2
JPMorgan Chase Bank
450 West 33rd Street
14th Floor
New York, New York 10001
J.P. Morgan Chase Commercial Mortgage Securities Corp.
270 Park Avenue, 10th Floor
New York, New York 10017
Re: J.P. Morgan Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2002-C2
-------------------------------------------------------------
Ladies and Gentlemen:
The undersigned hereby acknowledges that it is the holder of an
assignable option (the "Purchase Option") to purchase Mortgage Loan number ____
from the Trust Fund, pursuant to Section 3.18 of the pooling and servicing
agreement (the "Pooling and Servicing Agreement"), dated as of December 1, 2002,
by and among J.P. Morgan Chase Commercial Mortgage Securities Corp., as
depositor (the "Depositor"), Wachovia Bank, National Association, as servicer
(the "Servicer"), ARCap Special Servicing, Inc., as special servicer (the
"Special Servicer"), LaSalle Bank National Association, as paying agent (the
"Paying Agent")and Wells Fargo Bank Minnesota, N.A., as trustee (the "Trustee").
Capitalized terms used herein and not otherwise defined shall have the meaning
set forth in the Pooling and Servicing Agreement.
The undersigned, holder of the Purchase Option (the "Option
Holder"), [is the Controlling Class Certificateholder] [acquired its Purchase
Option from the Controlling Class Certificateholder on ___________] [is the
Special Servicer] [acquired its Purchase Option from the Special Servicer].
The undersigned Option Holder is exercising its Purchase Option at
the cash price of $______________, which amount equals or exceeds the Option
Price, as defined in Section 3.18(a)(ii) of the Pooling and Servicing Agreement.
Within ten (10) Business Days of its receipt of the Servicer's notice confirming
that the exercise of its Purchase Option is effective, [the undersigned Option
Holder] [______________, an Affiliate of the undersigned Option Holder] will
deliver the Option Price to or at the direction of the Servicer in exchange for
the release of the Mortgage Loan, the related Mortgaged Property and delivery of
the related Mortgage File.
The undersigned Option Holder agrees that it shall prepare and
provide the Servicer with such instruments of transfer or assignment, in each
case without recourse, as shall be reasonably necessary to vest in it or its
designee the ownership of Mortgage Loan [__], together with such other documents
or instruments as the Servicer shall reasonably require to consummate the
purchase contemplated hereby.
The undersigned Option Holder acknowledges and agrees that its
exercise of its Purchase Option Notice may not be revoked and, further, that
upon receipt of the Servicer' notice confirming that the exercise of its
Purchase Option is effective, the undersigned Option Holder, or its designee,
shall be obligated to close its purchase of Mortgage Loan ___ in accordance with
the terms and conditions of this letter and of the Pooling and Servicing
Agreement.
Very truly yours,
[Option Holder]
By:____________________________________
Name:
Title:
[By signing this letter in the space provided below, the
[Controlling Class Certificateholder] [Special Servicer] hereby acknowledges and
affirms that it transferred its Purchase Option to the Option Holder identified
above on [_________].
[_______________________]
By:______________________
Name:
Title:]
EXHIBIT K
FORM OF TRANSFER CERTIFICATE FOR
RULE 144A BOOK-ENTRY CERTIFICATE TO REGULATION S
BOOK-ENTRY CERTIFICATE DURING RESTRICTED PERIOD
(PURSUANT TO SECTION 5.02(B) OF THE POOLING AND SERVICING AGREEMENT)
LaSalle Bank National Association
as Certificate Registrar
135 South LaSalle Street, Suite 1625
Chicago, Illinois 60603
Attention: Asset-Backed Securities Trust Services Group-
J.P. Morgan Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2002-C2
J.P. Morgan Chase Commercial Mortgage Securities Corp.
270 Park Avenue, 10th Floor
New York, New York 10017
Attention:
Re: Transfer of J.P. Morgan Chase Commercial Mortgage Securities
Corp., Commercial Mortgage Pass-Through Certificates, Series
2002-C2 Class
------------------------------------------------------------
Ladies and Gentlemen:
Reference is hereby made to the Pooling and Servicing Agreement,
dated as of December 1, 2002 (the "Pooling and Servicing Agreement"), by and
among J.P. Morgan Chase Commercial Mortgage Securities Corp., as Depositor,
Wachovia Bank, National Association, as Servicer, ARCap Special Servicing, Inc.,
as Special Servicer, LaSalle Bank National Association, as Paying Agent and
Wells Fargo Bank Minnesota, N.A., as Trustee, on behalf of the holders of J.P.
Morgan Chase Commercial Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 2002-C2. Capitalized terms used but not
defined herein shall have the meanings given to them in the Pooling and
Servicing Agreement.
This letter relates to US $_______ aggregate [Certificate
Balance][Notional Amount] of Certificates (the "Certificates") which are held in
the form of the Rule 144A Book-Entry Certificate (CUSIP No. _________) with the
Depository in the name of [insert name of transferor] (the "Transferor"). The
Transferor has requested a transfer of such beneficial interest for an interest
in the Regulation S Book-Entry Certificate (CUSIP No. __________) to be held
with [Euroclear] [CEDEL]* (Common Code No.____________) through the Depositary.
----------------------------
* Select appropriate depository.
In connection with such request and in respect of such Certificates,
the Transferor does hereby certify that such transfer has been effected in
accordance with the transfer restrictions set forth in the Pooling and Servicing
Agreement and pursuant to and in accordance with Regulation S under the
Securities Act of 1933, as amended (the "Securities Act"), and accordingly the
Transferor does hereby certify that:
(1) the offer of the Certificates was not made to a person in the
United States,
(2) [at the time the buy order was originated, the transferee was
outside the United States or the Transferor and any person acting on
its behalf reasonably believed that the transferee was outside the
United States] [the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither
the transferor nor any person acting on its behalf knows that the
transaction was pre-arranged with a buyer in the United States],*
(3) the transferee is not a U.S. Person within the meaning of
Rule 902(o) of Regulation S nor a Person acting for the account or
benefit of a U.S. Person,
(4) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as
applicable,
(5) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act, and
(6) upon completion of the transaction, the beneficial interest
being transferred as described above will be held with the
Depository through [Euroclear] [Clearstream].**
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Paying Agent,
the Servicer and the Special Servicer.
[Insert Name of Transferor]
By:
------------------------------------
Name:
Title:
Dated:
------------------------------
* Insert one of these two provisions, which come from the definition of
"off-shore transaction" in Regulation S.
** Select appropriate depository.
EXHIBIT L-1
FORM OF CMSA BOND FILE REPORT
CSSA
BOND LEVEL FILE LAYOUT
BOND LEVEL ONLY - REFLECTS DISTRIBUTION STATEMENTS
VERSION 1.0 (12/31/98)
---------------------------------- ----------------------------- ------------------------------------------------------------
FORMAT
FIELD NAME # TYPE EXAMPLE DESCRIPTION/COMMENTS
---------------------------------- ----------------------------- ------------------------------------------------------------
Character Set ASCII
Field Delineation Comma
---------------------------------- ----------------------------- ------------------------------------------------------------
Transaction Id 1 AN XXX97001 Unique Issue Identification Mnemonic (Consistent With CSSA
Periodic Loan File)
Distribution Date 2 AN YYYYMMDD Date Payments Made To Certificateholders
Record Date 3 AN YYYYMMDD Date Class Must Be Held As Of To Be Considered Holder Of
Record
Class Name/Class Id 4 AN A-1 Unique Class Identification Mnemonic
Cusip 5 AN 999999AA1 Cusip # (Null If No Cusip Exists)
Original Balance 6 Numeric 1000000.00 The Class Balance At Inception Of The Issue
Notional Flag 7 AN Y "Y" For Notional
Beginning Balance 8 Numeric 100000.00 The Outstanding Principal Balance Of The Class At The
Beginning Of The Current Period
Scheduled Principal 9 Numeric 1000.00 The Scheduled Principal Paid
Unscheduled Principal 10 Numeric 1000.00 The Unscheduled Principal Paid
Total Principal Distribution 11 Numeric 1000.00 Total Principal Payment Made
Deferred Interest 12 Numeric 1000.00 Any Interest Added To The Class Balance Including Negative
Amortization
Realized Loss (Gain) 13 Numeric 1000.00 The Total Realized Loss of (Gain) Allocated
Cumulative Realized Losses 14 Numeric 100000.00 Realized Losses Allocated Cumulative-To-Date.
Ending Balance 15 Numeric 1000.00 Outstanding Principal Balance Of The Class At The End Of
The Current Period
Current Index Rate 16 Numeric 0.055 The Current Index Rate Applicable To The Calculation Of
Current Period Remittance Interest Rate
Current Remittance Rate / Pass-
Through Rate 17 Numeric 0.075 Annualized Interest Rate Applicable To The Calculation Of
Current Period Remittance Interest
Accrual Method 18 Numeric 1 1=30/360, 2=Actual/365, 3=Actual/360,4=Actual/Actual,
5=Actual/366
Current Accrual Days 19 Numeric 30 The Number Of Accrual Days Applicable To The Calculation
Of Current Period Remittance Interest
Interest Accrued 20 Numeric 1000.00 The Amount Of Accrued Interest
Prepayment Penalty/Premium
Allocation 21 Numeric 1000.00 Total Amount Of Prepayment Penalties Allocated
Yield Maintenance Allocation 22 Numeric 1000.00 Total Amount Of Yield Maintenance Penalties Allocated
Other Interest Distribution 23 Numeric 1000.00 Other Specific Additions To Interest
Prepayment Interest Shortfall 24 Numeric 1000.00 Total Interest Adjustments For PPIS
Appraisal Reduction Allocation 25 Numeric 1000.00 Total Current Appraisal Reduction Allocated
Other Interest Shortfall 26 Numeric 1000.00 Total Interest Adjustments Other Than PPIS
Total Interest Distribution 27 Numeric 1000.00 The Total Interest Payment Made
Cumulative Appraisal Reduction 28 Numeric 1000.00 Total Cumulative Appraisal Reduction Allocated
Cumulative Prepayment Penalty/
Premium Allocation 29 Numeric 1000.00 Total Amount Of Prepayment Penalties Allocated To Date
Cumulative Yield Maintenance
Allocation 30 Numeric 1000.00 Total Amount Of Yield Maintenance Penalties Allocated To
Date
Beginning Unpaid Interest
Balance 31 Numeric 1000.00 Outstanding Interest Shortfall At The Beginning Of The
Current Period
Ending Unpaid Interest Balance 32 Numeric 1000.00 Outstanding Interest Shortfall At The End Of The Current
Period
DCR - Original Rating 33 AN AAA The Original Rating Of The Class By Duff & Phelps
DCR - Most Recent Rating 34 AN AAA The Most Recent Rating Of The Class By Duff & Phelps
DCR - Date Transmitted from
Rating Agency 35 AN YYYYMMDD The Date On Which The Most Recent Rating Was Provided To
The Trustee By Duff & Phelps
Fitch - Original Rating 36 AN AAA The Original Rating Of The Class By Fitch
Fitch - Most Recent Rating 37 AN AAA The Most Recent Rating Of The Class By Fitch
Fitch - Date Transmitted from
Rating Agency 38 AN YYYYMMDD The Date On Which The Most Recent Rating Was Provided To
The Trustee By Fitch
Moody's - Original Rating 39 AN AAA The Original Rating Of The Class By Moody's
Moody's - Most Recent Rating 40 AN AAA The Most Recent Rating Of The Class By Moody's
Moody's - Date Transmitted from
Rating Agency 41 AN YYYYMMDD The Date On Which The Most Recent Rating Was Provided To
The Trustee By Moody's
Standard & Poors - Original
Rating 42 AN AAA The Original Rating Of The Class By Standard & Poors
Standard & Poors - Most Recent
Rating 43 AN AAA The Most Recent Rating Of The Class By Standard & Poors
Standard & Poors - Date
Transmitted from Rating 44 AN YYYYMMDD The Date On Which The Most Recent Rating Was Provided To
Agency The Trustee By Standard & Poors
---------------------------------- ----------------------------- ------------------------------------------------------------
EXHIBIT L-2
FORM OF CMSA COLLATERAL SUMMARY FILE
CSSA
COLLATERAL SUMMARY FILE LAYOUT
COLLATERAL LEVEL SUMMARY - SUMMARIZES CSSA 100.1 PERIODIC FILE
VERSION 1.0 (12/31/98)
---------------------------------- ------------ ---------------------------- ---------------------------------------------------
FIELD NAME PERIODIC # TYPE
FIELD FORMAT
REFERENCE # EXAMPLE DESCRIPTION/COMMENTS
---------------------------------- ------------ ---------------------------- ---------------------------------------------------
Character Set ASCII
Field Delineation Comma
---------------------------------- ------------ ---------------------------- ---------------------------------------------------
Transaction Id 1 AN XXX97001 Unique Issue Identification Mnemonic
Group Id 2 AN XXX97001 Unique Identification Number Assigned To Each
Loan Group Within An Issue
Distribution Date 3 AN YYYYMMDD Date Payments Made To Certificateholders
Original Loan Count 4 Numeric 100 Number of loans at time of securitization
Ending current period loan count 5 Numeric 99 Number of loans at end of current period
Ending current period collateral 7 6 Numeric 1000000.00 Aggregate scheduled balance of loans at end of
balance current period
1 month Delinquent - number 7 Numeric 1 Number of loans one month delinquent
1 month Delinquent - scheduled 8 Numeric 1000.00 Scheduled principal balance of loans one month
balance delinquent
2 months Delinquent - number 9 Numeric 1 Number of loans two months delinquent
2 months Delinquent - scheduled 10 Numeric 1000.00 Scheduled principal balance of loans two months
balance delinquent
3 months Delinquent - number 11 Numeric 1 Number of loans three months delinquent
3 months Delinquent - scheduled 12 Numeric 1000.00 Scheduled principal balance of loans three months
balance delinquent
Foreclosure - number 13 Numeric 1 Number of loans in foreclosure - overrides loans
in delinquency
Foreclosure - scheduled balance 14 Numeric 1000.00 Scheduled principal balance of loans in
foreclosure - overrides loans in delinquency
REO - number 15 Numeric 1 Number of REOs - overrides loans in delinquency
or foreclosure
REO - scheduled balance 16 Numeric 1000.00 Book value of REOs - overrrides loans in
delinquency or foreclosure
Specially serviced - number 17 Numeric 1 Number of specially serviced loans - includes
loans in delinquency, foreclosure, REO
Specially serviced - scheduled 18 Numeric 1000.00 Scheduled principal of Specially Serviced loans
balance
In Bankruptcy - number 19 Numeric 1 Number of loans in bankruptcy - included in
delinquency aging category
In Bankruptcy - scheduled balance 20 Numeric 1000.00 Scheduled principal balance of loans in
bankruptcy - included in delinquency aging
category
Prepaid loans - number 21 Numeric 1 Number of prepayments in full for the current
period
Prepaid loans - principal 22 Numeric 1000.00 Principal balance of loans prepaid in full for
the current period.
Total unscheduled principal 27+28 23 Numeric 1000.00 Includes prepayments in full, partial
pre-payments, curtailments in the current period
Total Penalty for the period 24 Numeric 1000.00 The aggregate prepayment or yield maintenance
penalties on the loans for the period.
Current realized losses (gains) 47 25 Numeric 1000.00 Realized losses (gain) in the current period
Cumulative realized losses 26 Numeric 1000.00 Cumulative realized losses
Appraisal Reduction Amount 33 27 Numeric 1000.00 Total Current Appraisal Reduction Allocated
Cumulative Appraisal Reduction 35 28 Numeric 1000.00 Total Cumulative Appraisal Reduction Allocated
Total P&I Advance Outstanding 37 29 Numeric 1000.00 Outstanding P&I Advances At The End Of The
Current Period
Total T&I Advance Outstanding 38 30 Numeric 1000.00 Outstanding Taxes & Insurance Advances At The End
Of The Current Period
Other Expense Advance Outstanding 39 31 Numeric 1000.00 Other Outstanding Advances At The End Of The
Current Period
Reserve Balances 32 Numeric 1000.00 Balance of cash or equivalent reserve accounts
pledged as credit enhancement
LOC Balances 33 Numeric 1000.00 Balance of letter of credit reserve accounts
pledged as credit enhancement
Amortization WAM 34 Numeric 333 Weighted average maturity based on amortization
term
Maturity WAM 35 Numeric 333 Weighted average maturity based on term to
maturity
Calculated WAC 36 Numeric 0.105 Weighted average coupon used to calculate gross
interest
---------------------------------- ------------ ---------------------------- ---------------------------------------------------
FORM OF CMSA FINANCIAL FILE
ATTACHMENT A:
CMSA FINANCIAL FILE - CATEGORY CODE MATRIX
---------------------------------------------------------------------------------------------------------------------
PROPERTY TYPE
---------------------------------------------------------------------------------------------------------------------
CODE/ MULTI- HEALTH
---------------------------------------------------------------------------------------------------------------------
SORT ORDER DESCRIPTION COMMERCIAL FAMILY CARE LODGING
---------------------------------------------------------------------------------------------------------------------
INCOME
----------------------------------------------------------------------------------------------------------
010GROSRNT Gross Potential Rent .. . .
----------------------------------------------------------------------------------------------------------
020VACANCY Less: Vacancy/Collection Loss . . .
----------------------------------------------------------------------------------------------------------
030BASERNT Base Rent . .
----------------------------------------------------------------------------------------------------------
040EXPREMB Expense Reimbursement .
----------------------------------------------------------------------------------------------------------
050PCTRENT Percentage Rent .
----------------------------------------------------------------------------------------------------------
060ROOMREV Room Revenue .
----------------------------------------------------------------------------------------------------------
070FOODBEV Food & Beverage Revenues .
----------------------------------------------------------------------------------------------------------
080PHONE Telephone Revenue .
----------------------------------------------------------------------------------------------------------
090OTHDREV Other Departmental Revenue .
----------------------------------------------------------------------------------------------------------
100PVTPAY Private Pay .
----------------------------------------------------------------------------------------------------------
110MEDCARE Medicare/Medicaid .
----------------------------------------------------------------------------------------------------------
120NURSING Nursing/Medical Income .
----------------------------------------------------------------------------------------------------------
130MEALS Meals Income .
----------------------------------------------------------------------------------------------------------
140LAUNDRY Laundry/Vending Income .
----------------------------------------------------------------------------------------------------------
150PARKING Parking Income . .
----------------------------------------------------------------------------------------------------------
160OTHERIN Other Income . . . .
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
EXPENSES
----------------------------------------------------------------------------------------------------------
270ROOMS Room (Department) .
----------------------------------------------------------------------------------------------------------
280FOODBEV Food & Beverage (Departmental) .
----------------------------------------------------------------------------------------------------------
290PHONE Telephone Expenses (Departmental) .
----------------------------------------------------------------------------------------------------------
300OTHDEPT Other Dept. Expenses .
----------------------------------------------------------------------------------------------------------
310RETAXES Real Estate Taxes . . . .
----------------------------------------------------------------------------------------------------------
320PROPINS Property Insurance . . . .
----------------------------------------------------------------------------------------------------------
330UTILITI Utilities . . . .
----------------------------------------------------------------------------------------------------------
340REPAIRS Repairs and Maintenance . . . .
----------------------------------------------------------------------------------------------------------
350JANITOR Janitorial .
----------------------------------------------------------------------------------------------------------
360FRANCHI Franchise Fee .
----------------------------------------------------------------------------------------------------------
370MANAGEM Management Fees . . . .
----------------------------------------------------------------------------------------------------------
380PAYROLL Payroll & Benefits . . . .
----------------------------------------------------------------------------------------------------------
390MARKETI Advertising & Marketing . . . .
----------------------------------------------------------------------------------------------------------
400PROFESS Professional Fees . . . .
----------------------------------------------------------------------------------------------------------
410GENERAL General and Administrative . . . .
----------------------------------------------------------------------------------------------------------
420ROOMS Room Expense - Housekeeping .
----------------------------------------------------------------------------------------------------------
430MEALS Meal expense .
----------------------------------------------------------------------------------------------------------
440OTHEREX Other Expenses . . .
----------------------------------------------------------------------------------------------------------
450GROUNDR Ground Rent . . . .
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
RESRV & CAPEX
----------------------------------------------------------------------------------------------------------
490LEASING Leasing Commissions .
----------------------------------------------------------------------------------------------------------
500TENANTI Tenant Improvements .
----------------------------------------------------------------------------------------------------------
510CAPEX Capital Expenditures . . . .
----------------------------------------------------------------------------------------------------------
520EXCAPEX Extraordinary Capital . . . .
Expenditures
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
DATA TYPES
---------------------------------------------------------------------------------------------------------------------
YTD Current Year - Year to Date
---------------------------------------------------------------------------------------------------------------------
AN Annual (prior 12 months' data...fiscal year - audited)
---------------------------------------------------------------------------------------------------------------------
TR Trailing 12 months' data
---------------------------------------------------------------------------------------------------------------------
UB Underwriting Base Line
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
STATEMENT TYPES
---------------------------------------------------------------------------------------------------------------------
BOR Borrower's Statement (as submitted)
---------------------------------------------------------------------------------------------------------------------
ADJ Adjustments to Borrower's Statement
---------------------------------------------------------------------------------------------------------------------
NOR Normalized Statement (to CMSA format)
---------------------------------------------------------------------------------------------------------------------
ATTACHMENT B:
CMSA FINANCIAL FILE SPECIFICATIONS
--------------------------------------------------------------------------------
RECORD LAYOUT
--------------------------------------------------------------------------------
Fields: Trans ID From CMSA Loan Setup File, Field #1
Loan # From CMSA Property File, Field #2
Property Seq # 001 - 999
YYYYMM Financial Statement Beginning Date
YYYYMM Financial Statement Ending Date
Data Type See attached values
Stmt Type See attached values
Category Code See attached values
Amount Example : 999999.99 (Enter as an Absolute Value)
--------------------------------------------------------------------------------
Key: Trans ID
Loan #
Property Seq #
YYYYMM
Data Type Financial Statement Ending Date
Statement Type
Category Code
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
SAMPLE ASCII PRESENTATION (PREFERRED)
--------------------------------------------------------------------------------
XX97D4, 12768-34,001,199901,199903,YTD,NOR,010GROSRNT,999999.99
--------------------------------------------------------------------------------
XX97D4, 12768-34,001,199901,199903,YTD,NOR,020VACANCY,999999.99
--------------------------------------------------------------------------------
XX97D4, 12768-34,001,199901,199903,YTD,NOR,030BASERNT,999999.99
--------------------------------------------------------------------------------
XX97D4, 12768-34,001,199901,199903,YTD,NOR,160OTHERIN,999999.99
--------------------------------------------------------------------------------
XX97D4, 12768-34,001,199901,199903,YTD,NOR,310RETAXES,999999.99
--------------------------------------------------------------------------------
XX97D4, 12768-34,001,199901,199903,YTD,NOR,320PROPINS,999999.99
--------------------------------------------------------------------------------
XX97D4, 12768-34,001,199901,199903,YTD,NOR,330UTILITI,999999.99
--------------------------------------------------------------------------------
XX97D4, 12768-34,001,199901,199903,YTD,NOR,340REPAIRS,999999.99
--------------------------------------------------------------------------------
XX97D4, 12768-34,001,199901,199903,YTD,NOR,350JANITOR,999999.99
--------------------------------------------------------------------------------
XX97D4, 12768-34,001,199901,199903,YTD,NOR,370MANAGEM,999999.99
--------------------------------------------------------------------------------
XX97D4, 12768-34,001,199901,199903,YTD,NOR,380PAYROLL,999999.99
--------------------------------------------------------------------------------
XX97D4, 12768-34,001,199901,199903,YTD,NOR,390MARKETI,999999.99
--------------------------------------------------------------------------------
XX97D4, 12768-34,001,199901,199903,YTD,NOR,410GENERAL,999999.99
--------------------------------------------------------------------------------
XX97D4, 12768-34,001,199901,199903,YTD,NOR,440OTHEREX,999999.99
--------------------------------------------------------------------------------
XX97D4, 12768-34,001,199901,199903,YTD,NOR,500TENANTI,999999.99
--------------------------------------------------------------------------------
XX97D4, 12768-34,001,199901,199903,YTD,NOR,510CAPEX,999999.99
--------------------------------------------------------------------------------
SAMPLE SPREADSHEET PRESENTATION
----------------------------------------------------------------------------------------------------
TRANS ID LOAN # PROP # BEGIN ENDING DATA STMT CATEGORY AMOUNT
YYYYMM YYYYMM TYPE TYPE
----------------------------------------------------------------------------------------------------
XX97D4 12768-34 001 199901 199903 YTD NOR 010GROSRNT 999999.99
----------------------------------------------------------------------------------------------------
XX97D4 12768-34 001 199901 199903 YTD NOR 020VACANCY 999999.99
----------------------------------------------------------------------------------------------------
XX97D4 12768-34 001 199901 199903 YTD NOR 030BASERNT 999999.99
----------------------------------------------------------------------------------------------------
XX97D4 12768-34 001 199901 199903 YTD NOR 160OTHERIN 999999.99
----------------------------------------------------------------------------------------------------
XX97D4 12768-34 001 199901 199903 YTD NOR 310RETAXES 999999.99
----------------------------------------------------------------------------------------------------
XX97D4 12768-34 001 199901 199903 YTD NOR 320PROPINS 999999.99
----------------------------------------------------------------------------------------------------
XX97D4 12768-34 001 199901 199903 YTD NOR 330UTILITI 999999.99
----------------------------------------------------------------------------------------------------
XX97D4 12768-34 001 199901 199903 YTD NOR 340REPAIRS 999999.99
----------------------------------------------------------------------------------------------------
XX97D4 12768-34 001 199901 199903 YTD NOR 350JANITOR 999999.99
----------------------------------------------------------------------------------------------------
XX97D4 12768-34 001 199901 199903 YTD NOR 370MANAGEM 999999.99
----------------------------------------------------------------------------------------------------
XX97D4 12768-34 001 199901 199903 YTD NOR 380PAYROLL 999999.99
----------------------------------------------------------------------------------------------------
XX97D4 12768-34 001 199901 199903 YTD NOR 390MARKETI 999999.99
----------------------------------------------------------------------------------------------------
XX97D4 12768-34 001 199901 199903 YTD NOR 410GENERAL 999999.99
----------------------------------------------------------------------------------------------------
XX97D4 12768-34 001 199901 199903 YTD NOR 440OTHEREX 999999.99
----------------------------------------------------------------------------------------------------
XX97D4 12768-34 001 199901 199903 YTD NOR 500TENANTI 999999.99
----------------------------------------------------------------------------------------------------
XX97D4 12768-34 001 199901 199903 YTD NOR 510CAPEX 999999.99
----------------------------------------------------------------------------------------------------
XX97D4 12768-34 002 199901 199903 YTD NOR 010GROSRNT 999999.99
----------------------------------------------------------------------------------------------------
XX97D4 12768-34 002 199901 199903 YTD NOR 020VACANCY 999999.99
----------------------------------------------------------------------------------------------------
XX97D4 12768-34 002 199901 199903 YTD NOR 030BASERNT 999999.99
----------------------------------------------------------------------------------------------------
XX97D4 12768-34 002 199901 199903 YTD NOR 160OTHERIN 999999.99
----------------------------------------------------------------------------------------------------
XX97D4 12768-34 002 199901 199903 YTD NOR 310RETAXES 999999.99
----------------------------------------------------------------------------------------------------
XX97D4 12768-34 002 199901 199903 YTD NOR 320PROPINS 999999.99
----------------------------------------------------------------------------------------------------
XX97D4 12768-34 002 199901 199903 YTD NOR 330UTILITI 999999.99
----------------------------------------------------------------------------------------------------
XX97D4 12768-34 002 199901 199903 YTD NOR 340REPAIRS 999999.99
----------------------------------------------------------------------------------------------------
XX97D4 12768-34 002 199901 199903 YTD NOR 350JANITOR 999999.99
----------------------------------------------------------------------------------------------------
XX97D4 12768-34 002 199901 199903 YTD NOR 370MANAGEM 999999.99
----------------------------------------------------------------------------------------------------
XX97D4 12768-34 002 199901 199903 YTD NOR 380PAYROLL 999999.99
----------------------------------------------------------------------------------------------------
XX97D4 12768-34 002 199901 199903 YTD NOR 390MARKETI 999999.99
----------------------------------------------------------------------------------------------------
XX97D4 12768-34 002 199901 199903 YTD NOR 410GENERAL 999999.99
----------------------------------------------------------------------------------------------------
XX97D4 12768-34 002 199901 199903 YTD NOR 440OTHEREX 999999.99
----------------------------------------------------------------------------------------------------
XX97D4 12768-34 002 199901 199903 YTD NOR 500TENANTI 999999.99
----------------------------------------------------------------------------------------------------
XX97D4 12768-34 002 199901 199903 YTD NOR 510CAPEX 999999.99
----------------------------------------------------------------------------------------------------
EXHIBIT L-4
FORM OF CMSA LOAN PERIODIC UPDATE FILE
COMMERCIAL MORTGAGE SECURITIES ASSOCIATION
CMSA "LOAN PERIODIC" UPDATE FILE
(DATA RECORD LAYOUT)
CROSS REFERENCED AS "L"
-----------------------------------------------------------------------------------------------------------------------------------
SPECIFICATION DESCRIPTION/COMMENTS
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Acceptable Media Types Magnetic Tape, Diskette, Electronic Transfer
-----------------------------------------------------------------------------------------------------------------------------------
Character Set ASCII
-----------------------------------------------------------------------------------------------------------------------------------
Field Delineation Comma
-----------------------------------------------------------------------------------------------------------------------------------
Density (Bytes-Per-Inch) 1600 or 6250
-----------------------------------------------------------------------------------------------------------------------------------
Magnetic Tape Label None (unlabeled)
-----------------------------------------------------------------------------------------------------------------------------------
Magnetic Tape Blocking Factor 10285 (17 records per block)
-----------------------------------------------------------------------------------------------------------------------------------
Physical Media Label Servicer Name; Data Type (Collection Period Data); Density (Bytes-Per-Inch);
Blocking Factor; Record Length
-----------------------------------------------------------------------------------------------------------------------------------
Return Address Label Required for return of physical media (magnetic tape or diskette)
-----------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
FIELD FORMAT
--------------------------------------------------------------------------------------------------------------------------------
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
Transaction Id 1 AN XXX97001 Unique Issue Identification Mnemonic
--------------------------------------------------------------------------------------------------------------------------------
Group Id 2 AN XXX9701A Unique Identification Number Assigned To
Each Loan Group Within An Issue
--------------------------------------------------------------------------------------------------------------------------------
Loan Id 3 AN 00000000012345 Unique Servicer Loan Number Assigned To
Each Collateral Item In A Pool
--------------------------------------------------------------------------------------------------------------------------------
Prospectus Loan Id 4 AN 123 Unique Identification Number Assigned To
Each Collateral Item In The Prospectus
--------------------------------------------------------------------------------------------------------------------------------
Distribution Date 5 AN YYYYMMDD Date Payments - Made To Certificateholders
--------------------------------------------------------------------------------------------------------------------------------
Current Beginning Scheduled Balance 6 Numeric 100000.00 Outstanding Sched Prin Bal at Beginning of
current period that is part of the trust
--------------------------------------------------------------------------------------------------------------------------------
Current Ending Scheduled - Balance 7 Numeric 100000.00 Outstanding Sched Prin Bal at End of
current period that is part of the trust
--------------------------------------------------------------------------------------------------------------------------------
Paid To Date 8 AN YYYYMMDD Date loan is paid through. One frequency <
the date the loan is due for next payment
--------------------------------------------------------------------------------------------------------------------------------
Current Index Rate 9 Numeric 0.09 Index Rate Used In The Determination Of
The Current Period Gross Interest Rate
--------------------------------------------------------------------------------------------------------------------------------
Current Note Rate 10 Numeric 0.09 Annualized Gross Rate Applicable To
Calculate The Current Period Scheduled
Interest
--------------------------------------------------------------------------------------------------------------------------------
Maturity Date 11 AN YYYYMMDD Date Collateral Is Scheduled To Make Its
Final Payment
--------------------------------------------------------------------------------------------------------------------------------
Servicer and Trustee Fee Rate 12 Numeric 0.00025 Annualized Fee Paid To The Servicer And
Trustee
--------------------------------------------------------------------------------------------------------------------------------
Fee Rate/Strip Rate 1 13 Numeric 0.00001 Annualized Fee/Strip Netted Against
Current Note Rate = Net Rate
--------------------------------------------------------------------------------------------------------------------------------
Fee Rate/Strip Rate 2 14 Numeric 0.00001 Annualized Fee/Strip Netted Against
Current Note Rate = Net Rate
--------------------------------------------------------------------------------------------------------------------------------
Fee Rate/Strip Rate 3 15 Numeric 0.00001 Annualized Fee/Strip Netted Against
Current Note Rate = Net Rate
--------------------------------------------------------------------------------------------------------------------------------
Fee Rate/Strip Rate 4 16 Numeric 0.00001 Annualized Fee/Strip Netted Against
Current Note Rate = Net Rate
--------------------------------------------------------------------------------------------------------------------------------
Fee Rate/Strip Rate 5 17 Numeric 0.00001 Annualized Fee/Strip Netted Against
Current Note Rate = Net Rate
--------------------------------------------------------------------------------------------------------------------------------
Net Rate 18 Numeric 0.0947 Annualized Interest Rate Applicable To
Calculate The Current Period Remittance
Int.
--------------------------------------------------------------------------------------------------------------------------------
Next Index Rate 19 Numeric 0.09 Index Rate Used In The Determination Of
The Next Period Gross Interest Rate
--------------------------------------------------------------------------------------------------------------------------------
Next Note Rate 20 Numeric 0.09 Annualized Gross Interest Rate Applicable
To Calc Of The Next Period Sch. Interest
--------------------------------------------------------------------------------------------------------------------------------
Next Rate Adjustment Date 21 AN YYYYMMDD Date Note Rate Is Next Scheduled To Change
--------------------------------------------------------------------------------------------------------------------------------
Next Payment Adjustment Date 22 AN YYYYMMDD Date Scheduled P&I Amount Is Next
Scheduled To Change
--------------------------------------------------------------------------------------------------------------------------------
Scheduled Interest Amount 23 Numeric 1000.00 Scheduled Gross Interest Payment Due For
The Current Period that goes to the trust
--------------------------------------------------------------------------------------------------------------------------------
Scheduled Principal Amount 24 Numeric 1000.00 Scheduled Principal Payment Due For The
Current Period that goes to the trust
--------------------------------------------------------------------------------------------------------------------------------
Total Scheduled P&I Due 25 Numeric 1000.00 Scheduled Principal & Interest Payment Due
For Current Period for the trust
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
FIELD FORMAT
--------------------------------------------------------------------------------------------------------------------------------
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
Neg am/Deferred Interest Amount 26 Numeric 1000.00 Negative Amortization/Deferred Interest
Amount Due For The Current Period
--------------------------------------------------------------------------------------------------------------------------------
Unscheduled Principal Collections 27 Numeric 1000.00 Unscheduled Payments Of Principal Received
During The Related Collection Period
--------------------------------------------------------------------------------------------------------------------------------
Other Principal Adjustments 28 Numeric 1000.00 Unscheduled Principal Adjustments For The
Related Collection Period
--------------------------------------------------------------------------------------------------------------------------------
Liquidation/Prepayment Date 29 AN YYYYMMDD Date Unscheduled Payment Of Principal
Received
--------------------------------------------------------------------------------------------------------------------------------
Prepayment Penalty/Yld Maint Rec'd 30 Numeric 1000.00 Additional Payment Req'd From Borrower Due
To Prepayment Of Loan Prior To Maturity
--------------------------------------------------------------------------------------------------------------------------------
Prepayment Interest Excess (Shortfall) 31 Numeric 1000.00 Interest Shortfall or Excess as calculated
by Servicer per the Trust documents
--------------------------------------------------------------------------------------------------------------------------------
Liquidation/Prepayment Code 32 Numeric 1 See Liquidation/Prepayment Codes Legend
--------------------------------------------------------------------------------------------------------------------------------
Most Recent ASER Amount 33 Numeric 1000.00 Appraisal Subordinated Entitlement
Reduction - The difference between a full
advance and the reduced advance is the
ASER or as defined in the Trust documents
--------------------------------------------------------------------------------------------------------------------------------
Blank 34 AN Blank Left blank on purpose. (Note: was
previously Most Recent ASER Date. Field
not considered applicable to ASER.)
--------------------------------------------------------------------------------------------------------------------------------
Cumulative ASER Amount 35 Numeric 1000.00 Cumulative Appraisal Subordinated
Entitlement Reduction
--------------------------------------------------------------------------------------------------------------------------------
Actual Balance 36 Numeric 100000.00 Outstanding Actual Principal Balance At
The End Of The Current Period
--------------------------------------------------------------------------------------------------------------------------------
Total P&I Advance Outstanding 37 Numeric 1000.00 Outstanding P&I Advances At The End Of The
Current Period
--------------------------------------------------------------------------------------------------------------------------------
Total T&I Advance Outstanding 38 Numeric 1000.00 Outstanding Taxes & Insurance Advances At
The End Of The Current Period
--------------------------------------------------------------------------------------------------------------------------------
Other Expense Advance Outstanding 39 Numeric 1000.00 Other Outstanding Advances At The End Of
The Current Period
--------------------------------------------------------------------------------------------------------------------------------
Status of Loan 40 AN 1 See Status Of Loan Legend
--------------------------------------------------------------------------------------------------------------------------------
In Bankruptcy 41 AN Y Bankruptcy Status Of Loan (If In
Bankruptcy "Y", Else "N")
--------------------------------------------------------------------------------------------------------------------------------
Foreclosure Date 42 AN YYYYMMDD P27 - If Multiple properties have the
same date then print that date otherwise
leave empty
--------------------------------------------------------------------------------------------------------------------------------
REO Date 43 AN YYYYMMDD P28 - If Multiple properties have the
same date then print that date otherwise
leave empty
--------------------------------------------------------------------------------------------------------------------------------
Bankruptcy Date 44 AN YYYYMMDD Date Of Bankruptcy
--------------------------------------------------------------------------------------------------------------------------------
Net Proceeds Received on Liquidation 45 Numeric 100000.00 Net Proceeds Rec'd On Liquidation To Be
Remitted to the Trust per the Trust
Documents
--------------------------------------------------------------------------------------------------------------------------------
Liquidation Expense 46 Numeric 100000.00 Expenses Associated With The Liq'n To Be
Netted from the Trust per the Trust
Documents
--------------------------------------------------------------------------------------------------------------------------------
Realized Loss to Trust 47 Numeric 10000.00 Liquidation Balance Less Net Liquidation
Proceeds Received (as defined in Trust
documents)
--------------------------------------------------------------------------------------------------------------------------------
Date of Last Modification 48 AN YYYYMMDD Date Loan Was Modified
--------------------------------------------------------------------------------------------------------------------------------
Modification Code 49 Numeric 1 See Modification Codes Legend
--------------------------------------------------------------------------------------------------------------------------------
Modified Note Rate 50 Numeric 0.09 Note Rate Loan Modified To
--------------------------------------------------------------------------------------------------------------------------------
Modified Payment Rate 51 Numeric 0.09 Payment Rate Loan Modified To
--------------------------------------------------------------------------------------------------------------------------------
Preceding Fiscal Year Revenue 52 Numeric 1000.00 P54 - If Multiple properties then sum the
value, if missing any then populate using
the "DSCR Indicator Legend" rule
--------------------------------------------------------------------------------------------------------------------------------
Preceding Fiscal Year Operating Expenses 53 Numeric 1000.00 P55 - If Multiple properties then sum the
value, if missing any then populate using
the "DSCR Indicator Legend" rule
--------------------------------------------------------------------------------------------------------------------------------
Preceding Fiscal Year NOI 54 Numeric 1000.00 P56 - If Multiple properties then sum the
value, if missing any then populate using
the "DSCR Indicator Legend" rule
--------------------------------------------------------------------------------------------------------------------------------
Preceding Fiscal Year Debt Svc Amount 55 Numeric 1000.00 P57 - If Multiple properties then sum the
value, if missing any then populate using
the "DSCR Indicator Legend" rule
--------------------------------------------------------------------------------------------------------------------------------
Preceding Fiscal Year DSCR (NOI) 56 Numeric 2.55 P58 - If Multiple properties populate
using the "DSCR Indicator Legend" rule.
Preceding Fiscal Yr Debt Svc Cvrge Ratio
using NOI
--------------------------------------------------------------------------------------------------------------------------------
Preceding Fiscal Year Physical Occupancy 57 Numeric 0.85 P59 - If Multiple properties, Use weighted
average by using the calculation [ Current
Allocated % (Prop) * Occupancy (Oper) ]
for each Property, if missing any then
leave empty
--------------------------------------------------------------------------------------------------------------------------------
Preceding Fiscal Year Financial 58 AN YYYYMMDD P53 - If Multiple properties and all the
As of Date same then print the date, if missing any
then leave empty
--------------------------------------------------------------------------------------------------------------------------------
Second Preceding Fiscal Year Revenue 59 Numeric 1000.00 P61 - If Multiple properties then sum the
value, if missing any then populate using
the "DSCR Indicator Legend" rule
--------------------------------------------------------------------------------------------------------------------------------
Second Preceding Fiscal Year Operating 60 Numeric 1000.00 P62 - If Multiple properties then sum the
Expenses value, if missing any then populate using
the "DSCR Indicator Legend" rule
--------------------------------------------------------------------------------------------------------------------------------
Second Preceding Fiscal Year NOI 61 Numeric 1000.00 P63 - If Multiple properties then sum the
value, if missing any then populate using
the "DSCR Indicator Legend" rule
--------------------------------------------------------------------------------------------------------------------------------
Second Preceding Fiscal Year Debt Service 62 Numeric 1000.00 P64 - If Multiple properties then sum the
Amount value, if missing any then populate using
the "DSCR Indicator Legend" rule
--------------------------------------------------------------------------------------------------------------------------------
Second Preceding Fiscal Year DSCR (NOI) 63 Numeric 2.55 P65 - If Multiple properties populate
using the "DSCR Indicator Legend" rule.
Second Preceding Fiscal Year Debt Service
Coverage Ratio using NOI
--------------------------------------------------------------------------------------------------------------------------------
Second Preceding Fiscal Year Physical 64 Numeric 0.85 P66 - If Multiple properties, Use weighted
Occupancy average by using the calculation [ Current
Allocated % (Prop) * Occupancy (Oper) ]
for each Property, if missing any then
leave empty
--------------------------------------------------------------------------------------------------------------------------------
Second Preceding Fiscal Year Financial As 65 AN YYYYMMDD P60 - If Multiple properties and all the
of Date same then print the date, if missing any
then leave empty
--------------------------------------------------------------------------------------------------------------------------------
Most Recent Revenue 66 Numeric 1000.00 P68 - If Multiple properties then sum the
value, if missing any then populate using
the "DSCR Indicator Legend" rule
--------------------------------------------------------------------------------------------------------------------------------
Most Recent Operating Expenses 67 Numeric 1000.00 P69 - If Multiple properties then sum the
value, if missing any then populate using
the "DSCR Indicator Legend" rule
--------------------------------------------------------------------------------------------------------------------------------
Most Recent NOI 68 Numeric 1000.00 P70 - If Multiple properties then sum the
value, if missing any then populate using
the "DSCR Indicator Legend" rule
--------------------------------------------------------------------------------------------------------------------------------
Most Recent Debt Service Amount 69 Numeric 1000.00 P71 - If Multiple properties then sum the
value, if missing any then populate using
the "DSCR Indicator Legend" rule
--------------------------------------------------------------------------------------------------------------------------------
Most Recent DSCR (NOI) 70 Numeric 2.55 P72 - If Multiple properties populate
using the "DSCR Indicator Legend" rule.
Most Recent Debt Service Coverage Ratio
using NOI
--------------------------------------------------------------------------------------------------------------------------------
Most Recent Physical Occupancy 71 Numeric 0.85 P29 - If Multiple properties, Use weighted
average by using the calculation [ Current
Allocated % (Prop) * Occupancy (Oper) ]
for each Property, if missing any then
leave empty
--------------------------------------------------------------------------------------------------------------------------------
Most Recent Financial As of Start Date 72 AN YYYYMMDD P73 - If Multiple properties and all the
same then print the date, if missing any
then leave empty
--------------------------------------------------------------------------------------------------------------------------------
Most Recent Financial As of End Date 73 AN YYYYMMDD P74 - If Multiple properties and all the
same then print the date, if missing any
then leave empty
--------------------------------------------------------------------------------------------------------------------------------
Most Recent Appraisal Date 74 AN YYYYMMDD P24 - If Multiple properties and all the
same then print the date, if missing any
then leave empty
--------------------------------------------------------------------------------------------------------------------------------
Most Recent Appraisal Value 75 Numeric 100000.00 P25 - If Multiple properties then sum the
value, if missing any then leave empty
--------------------------------------------------------------------------------------------------------------------------------
Workout Strategy Code 76 Numeric 1 See Workout Strategy Codes Legend
--------------------------------------------------------------------------------------------------------------------------------
Most Recent Special Servicer Transfer 77 AN YYYYMMDD Date Transferred To The Special Servicer
Date
--------------------------------------------------------------------------------------------------------------------------------
Most Recent Master Servicer Return Date 78 AN YYYYMMDD Date Returned To The Master Servicer or
Primary Servicer
--------------------------------------------------------------------------------------------------------------------------------
Date Asset Expected to Be Resolved or 79 AN YYYYMMDD P26 - If Multiple properties then print
Foreclosed the latest date from the affiliated
properties. If in Foreclosure - Expected
Date of Foreclosure and if REO - Expected
Sale Date.
--------------------------------------------------------------------------------------------------------------------------------
Blank 80 AN Blank Left blank on purpose. (Note : was
previously Year Renovated. Use the
Property File field 15 instead)
--------------------------------------------------------------------------------------------------------------------------------
Current Hyper Amortizing Date 81 AN YYYYMMDD S79 - Current Anticipated Repayment Date.
Date will be the same as setup file unless
the loan is modified and a new date
assigned
--------------------------------------------------------------------------------------------------------------------------------
Most Recent Financial Indicator 82 AN T or Y P75 - T= Trailing 12 months Y = Year to
Date, Check Start & End Date Applies to
field L66 to L73. If Multiple properties
and all the same then print the value, if
missing any or if the values are not the
same, then leave empty
--------------------------------------------------------------------------------------------------------------------------------
Last Setup Change Date 83 AN YYYYMMDD S82 - Distribution Date that information
changed last in the setup file by loan
--------------------------------------------------------------------------------------------------------------------------------
Last Loan Contribution Date 84 AN YYYYMMDD Date the loan was contributed
--------------------------------------------------------------------------------------------------------------------------------
Last Property Contribution Date 85 AN YYYYMMDD P67 - Date the latest property or
properties were contributed. For Multiple
properties print the latest date from the
affiliated properties
--------------------------------------------------------------------------------------------------------------------------------
Number of Properties 86 Numeric 13.00 S54 - The Number of Properties Underlying
the Mortgage Loan
--------------------------------------------------------------------------------------------------------------------------------
Preceding Year DSCR Indicator 87 AN Text Flag used to explain how the DSCR was
calculated when there are multiple
properties. See DSCR Indicator Legend.
--------------------------------------------------------------------------------------------------------------------------------
Second Preceding Year DSCR Indicator 88 AN Text Flag used to explain how the DSCR was
calculated when there are multiple
properties. See DSCR Indicator Legend.
--------------------------------------------------------------------------------------------------------------------------------
Most Recent DSCR Indicator 89 AN Text Flag used to explain how the DSCR was
calculated when there are multiple
properties. See DSCR Indicator Legend.
--------------------------------------------------------------------------------------------------------------------------------
NOI/NCF Indicator 90 AN Text Indicates how NOI or Net Cash Flow was
calculated should be the same for each
financial period. See NOI/NCF Indicator
Legend. P84 - If Multiple Properties and
all the same then print value, if missing
any or if the values are not the same,
then leave empty.
--------------------------------------------------------------------------------------------------------------------------------
Date of Assumption 91 AN YYYYMMDD Date the loan last assumed by a new
borrower- empty if never assumed
--------------------------------------------------------------------------------------------------------------------------------
Preceding Fiscal Year NCF 92 Numeric 1000.00 P78 - Preceding Fiscal Year Net Cash Flow
related to Financial As of Date L58. If
Multiple properties then sum the value, if
missing any then populate using the "DSCR
Indicator Legend" rule
--------------------------------------------------------------------------------------------------------------------------------
Preceding Fiscal Year DSCR (NCF) 93 Numeric 2.55 P79 - Preceding Fiscal Yr Debt Service
Coverage Ratio using NCF related to
Financial As of Date L58. If Multiple
properties populate using the "DSCR
Indicator Legend" rule.
--------------------------------------------------------------------------------------------------------------------------------
Second Preceding Fiscal Year NCF 94 Numeric 1000.00 P80 - Second Preceding Fiscal Year Net
Cash Flow related to Financial As of Date
L65. If Multiple properties then sum the
value, if missing any then populate using
the "DSCR Indicator Legend" rule
--------------------------------------------------------------------------------------------------------------------------------
Second Preceding Fiscal Year DSCR (NCF) 95 Numeric 2.55 P81 - Second Preceding Fiscal Year Debt
Service Coverage Ratio using Net Cash Flow
related to Financial As of Date L65. If
Multiple properties populate using the
"DSCR Indicator Legend" rule.
--------------------------------------------------------------------------------------------------------------------------------
Most Recent NCF 96 Numeric 1000.00 P82 - Most Recent Net Cash Flow related to
Financial As of Ending Date L73. If
Multiple properties then sum the value, if
missing any then populate using the "DSCR
Indicator Legend" rule
--------------------------------------------------------------------------------------------------------------------------------
Most Recent DSCR (NCF) 97 Numeric 1000.00 P83 - Most Recent Debt Service Coverage
Ratio using Net Cash Flow related to
Financial As of Ending Date L73. If
Multiple properties populate using the
"DSCR Indicator Legend" rule.
--------------------------------------------------------------------------------------------------------------------------------
Defeasance Status 98 AN Text See Defeasance Status Legend
--------------------------------------------------------------------------------------------------------------------------------
ARA Amount 99 Numeric 1000.00 Appraisal Reduction Amount - Excess of the
principal balance over the defined
appraisal % or as defined in the trust
documents
--------------------------------------------------------------------------------------------------------------------------------
ARA Date 100 AN YYYYMMDD Date of appraisal used to calculate ARA
--------------------------------------------------------------------------------------------------------------------------------
Credit Tenant Lease 101 AN Y S87 - Y=Yes, N=No
--------------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------
WORKOUT STRATEGY CODE LEGEND STATUS OF MORTGAGE LOAN
---------------------------------------------------- -------------------------------------------------------
LEGEND
---------------------------------------------------- -------------------------------------------------------
1 Modification A Payment Not Received But Still In
Grace Period
---------------------------------------------------- -------------------------------------------------------
2 Foreclosure B Late Payment But Less Than 30
days Delinquent
---------------------------------------------------- -------------------------------------------------------
3 Bankruptcy 0 Current
---------------------------------------------------- -------------------------------------------------------
4 Extension 1 30-59 Days Delinquent
---------------------------------------------------- -------------------------------------------------------
5 Note Sale 2 60-89 Days Delinquent
---------------------------------------------------- -------------------------------------------------------
6 DPO 3 90+ Days Delinquent
---------------------------------------------------- -------------------------------------------------------
7 REO 4 Assumed Scheduled Payment
(Performing Matured Balloon)
---------------------------------------------------- -------------------------------------------------------
8 Resolved 7 Foreclosure
---------------------------------------------------- -------------------------------------------------------
9 Pending Return to Master Servicer 9 REO
---------------------------------------------------- -------------------------------------------------------
10 Deed In Lieu Of Foreclosure
---------------------------------------------------- -------------------------------------------------------
11 Full Payoff MODIFICATION CODE
---------------------------------------------------- -------------------------------------------------------
12 Repsand Warranties LEGEND
---------------------------------------------------- -------------------------------------------------------
13 Other or TBD 1 Maturity Date Extension
---------------------------------------------------- -------------------------------------------------------
2 Amortization Change
---------------------------------------------------- -------------------------------------------------------
LIQUIDATION/PREPAYMENT CODE 3 Principal Write-Off
---------------------------------------------------- -------------------------------------------------------
LEGEND 4 Combination
---------------------------------------------------- -------------------------------------------------------
1 Partial Liq'n (Curtailment)
---------------------------------------------------- -------------------------------------------------------
2 Payoff Prior To Maturity DSCR INDICATOR
---------------------------------------------------- -------------------------------------------------------
3 Disposition LEGEND
---------------------------------------------------- -------------------------------------------------------
4 Repurchase/Substitution P Partial - Not all properties
received financials, servicer to
leave empty
---------------------------------------------------- -------------------------------------------------------
5 Full Payoff At Maturity A Average - Not all properties
received financials, servicer
allocates Debt Service
only to properties where financials
are received.
---------------------------------------------------- -------------------------------------------------------
6 DPO F Full - All Statements Collected
for all properties
---------------------------------------------------- -------------------------------------------------------
7 Liquidation W Worst Case - Not all properties
received financials, servicer
allocates 100% of Debt
Service to all properties where
financials are received.
---------------------------------------------------- -------------------------------------------------------
8 Payoff w/penalty N None Collected - no financials
were received
---------------------------------------------------- -------------------------------------------------------
9 Payoff w/yield Maintenance C Consolidated - All properties
reported on one "rolled up"
financial from the borrower
---------------------------------------------------- -------------------------------------------------------
10 Curtailment w/Penalty
----------------------------------------------------
11 Curtailment w/Yield Maintenance
---------------------------------------------------- -------------------------------------------------------
NOI/NCF INDICATOR
---------------------------------------------------- -------------------------------------------------------
DEFEASANCE STATUS LEGEND
---------------------------------------------------- -------------------------------------------------------
LEGEND CMSA Calculated using CMSA standard
---------------------------------------------------- -------------------------------------------------------
P Partial Defeasance PSA Calculated using a definition
given in the PSA
---------------------------------------------------- -------------------------------------------------------
F Full Defeasance U/W Calculated using the underwriting
method
---------------------------------------------------- -------------------------------------------------------
N No Defeasance Occurred
----------------------------------------------------
X Defeasance not Allowable
----------------------------------------------------
EXHIBIT L-5
FORM OF CMSA LOAN SETUP FILE
CMSA "LOAN SETUP" FILE
(DATA RECORD LAYOUT)
CROSS REFERENCED AS "S"
------------------------------------------------------------------------------------------------------------------------------------
SPECIFICATION DESCRIPTION/COMMENTS
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Acceptable Media Types Magnetic Tape, Diskette, Electronic Transfer
------------------------------------------------------------------------------------------------------------------------------------
Character Set ASCII
------------------------------------------------------------------------------------------------------------------------------------
Field Delineation Comma
------------------------------------------------------------------------------------------------------------------------------------
Density (Bytes-Per-Inch) 1600 or 6250
------------------------------------------------------------------------------------------------------------------------------------
Magnetic Tape Label None (unlabeled)
------------------------------------------------------------------------------------------------------------------------------------
Magnetic Tape Blocking Factor 10285 (17 records per block)
------------------------------------------------------------------------------------------------------------------------------------
Physical Media Label Servicer Name; Data Type (Collection Period Data); Density (Bytes-Per-Inch); Blocking
Factor; Record Length
------------------------------------------------------------------------------------------------------------------------------------
Return Address Label Required for return of physical media (magnetic tape or diskette)
------------------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------------
FIELD FORMAT
-------------------------------------------------------------------------------------------------------------------------------
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS
-------------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------------
Transaction Id 1 AN XXX97001 Unique Issue Identification Mnemonic
--------------------------------------------------------------------------------------------------------------------------------
Group Id 2 AN XXX9701A Unique Indentification Number
Assigned To Each Loan Group Within An
Issue
--------------------------------------------------------------------------------------------------------------------------------
Loan Id 3 AN 00000000012345 Unique Servicer Loan Number Assigned
To Each Collateral Item In A Pool
--------------------------------------------------------------------------------------------------------------------------------
Prospectus Loan Id 4 AN 123 Unique Identification Number Assigned
To Each Collateral Item In The
Prospectus
--------------------------------------------------------------------------------------------------------------------------------
Original Note Amount 5 Numeric 1000000.00 The Mortgage Loan Balance At
Inception Of The Note
--------------------------------------------------------------------------------------------------------------------------------
Original Term Of Loan 6 Numeric 240 Original Number Of Months Until
Maturity Of Loan
--------------------------------------------------------------------------------------------------------------------------------
Original Amortization Term 7 Numeric 360 Original Number Of Months Loan
Amortized Over
--------------------------------------------------------------------------------------------------------------------------------
Original Note Rate 8 Numeric 0.095 The Note Rate At Inception Of The Note
--------------------------------------------------------------------------------------------------------------------------------
Original Payment Rate 9 Numeric 0.095 Original Rate Payment Calculated On
--------------------------------------------------------------------------------------------------------------------------------
First Loan Payment Due Date 10 AN YYYYMMDD First Payment Date On The Mortgage
Loan
--------------------------------------------------------------------------------------------------------------------------------
Grace Days Allowed 11 Numeric 10 Number Of Days From Due Date Borrower
Is Permitted To Remit Payment
--------------------------------------------------------------------------------------------------------------------------------
Interest Only (Y/N) 12 AN Y Y=Yes, N=No
--------------------------------------------------------------------------------------------------------------------------------
Balloon (Y/N) 13 AN Y Y=Yes, N=No
--------------------------------------------------------------------------------------------------------------------------------
Interest Rate Type 14 Numeric 1 1=Fixed, 2=Arm, 3=Step, 9=Other
--------------------------------------------------------------------------------------------------------------------------------
Interest Accrual Method Code 15 Numeric 1 1=30/360, 2=Actual/365, 3=Actual/360,
4=Actual/Actual, 5=Actual/366,
6=Simple, 7=78's
--------------------------------------------------------------------------------------------------------------------------------
Interest in Arrears (Y/N) 16 AN Y Y=Yes, N=No
--------------------------------------------------------------------------------------------------------------------------------
Payment Type Code 17 Numeric 1 See Payment Type Code Legend
--------------------------------------------------------------------------------------------------------------------------------
Prepayment Lock-out End Date 18 AN YYYYMMDD Date After Which Loan Can Be Prepaid
--------------------------------------------------------------------------------------------------------------------------------
Yield Maintenance End Date 19 AN YYYYMMDD Date After Which Loan Can Be Prepaid
Without Yield Maintenance
--------------------------------------------------------------------------------------------------------------------------------
Prepayment Premium End Date 20 AN YYYYMMDD Date After Which Loan Can Be Prepaid
Without Penalty
--------------------------------------------------------------------------------------------------------------------------------
Prepayment Terms Description 21 AN Text Should reflect the information in
Annex A or use the format of LO(36),
YM(28), 7(12), O(3). If manually derived,
the Cutoff Date should be the start date
for period counting.
--------------------------------------------------------------------------------------------------------------------------------
ARM Index Code 22 AN A See Arm Index Code Legend
---------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
FIELD FORMAT
--------------------------------------------------------------------------------------------------------------------------------
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
First Rate Adjustment Date 23 AN YYYYMMDD Date Note Rate Originally Changed
--------------------------------------------------------------------------------------------------------------------------------
First Payment Adjustment Date 24 AN YYYYMMDD Date Payment Originally Changed
--------------------------------------------------------------------------------------------------------------------------------
ARM Margin 25 Numeric 0.025 Rate Added To Index Used In The
Determination Of The Gross Interest
Rate
--------------------------------------------------------------------------------------------------------------------------------
Lifetime Rate Cap 26 Numeric 0.15 Maximum Rate That The Borrower Must
Pay On An Arm Loan Per The Loan
Agreement
--------------------------------------------------------------------------------------------------------------------------------
Lifetime Rate Floor 27 Numeric 0.05 Minimum Rate That The Borrower Must
Pay On An Arm Loan Per The Loan
Agreement
--------------------------------------------------------------------------------------------------------------------------------
Periodic Rate Increase Limit 28 Numeric 0.02 Maximum Periodic Increase To The Note
Rate Allowed Per The Loan Agreement
--------------------------------------------------------------------------------------------------------------------------------
Periodic Rate Decrease Limit 29 Numeric 0.02 Minimum Periodic Decrease To The Note
Rate Allowed Per The Loan Agreement
--------------------------------------------------------------------------------------------------------------------------------
Periodic Pay Adjustment Max-% 30 Numeric 0.03 Max Periodic % Increase To The P&I
Payment Allowed Per The Loan Agreement
--------------------------------------------------------------------------------------------------------------------------------
Periodic Pay Adjustment Max-$ 31 Numeric 5000.00 Max Periodic Dollar Increase To The
P&I Payment Allowed Per The Loan
Agreement
--------------------------------------------------------------------------------------------------------------------------------
Payment Frequency 32 Numeric 1 1=Monthly, 3=Quarterly,
6=Semi-Annually, 12=Annually...
--------------------------------------------------------------------------------------------------------------------------------
Rate Reset Frequency 33 Numeric 1 1=Monthly, 3=Quarterly,
6=Semi-Annually, 12=Annually, 365=Daily
--------------------------------------------------------------------------------------------------------------------------------
Pay Reset Frequency 34 Numeric 1 1=Monthly, 3=Quarterly,
6=Semi-Annually, 12=Annually, 365=Daily
--------------------------------------------------------------------------------------------------------------------------------
Rounding Code 35 Numeric 1 Rounding Method For Sum Of Index Plus
Margin (See Rounding Code Legend)
--------------------------------------------------------------------------------------------------------------------------------
Rounding Increment 36 Numeric 0.00125 Used In Conjunction With Rounding Code
--------------------------------------------------------------------------------------------------------------------------------
Index Look Back In Days 37 Numeric 45 Use Index In Effect X Days Prior To
Adjustment Date
--------------------------------------------------------------------------------------------------------------------------------
Negative Amortization Allowed (Y/N) 38 AN Y Y=Yes, N=No
--------------------------------------------------------------------------------------------------------------------------------
Max Neg Allowed (% Of Orig Bal) 39 Numeric 0.075 Max Lifetime % Increase to the
Original Balance Allowed Per The Loan
Agreement
--------------------------------------------------------------------------------------------------------------------------------
Maximum Negate Allowed ($) 40 Numeric 25000.00 Max Lifetime Dollar Increase to the
Original Balance Allowed Per The Loan
Agreement
--------------------------------------------------------------------------------------------------------------------------------
Remaining Term At Contribution 41 Numeric 240 Remaining Number Of Months Until
Maturity Of Loan At Cutoff
--------------------------------------------------------------------------------------------------------------------------------
Remaining Amort Term At Contribution 42 Numeric 360 Remaining Number Of Months Loan
Amortized Over At Cutoff
--------------------------------------------------------------------------------------------------------------------------------
Maturity Date At Contribution 43 AN YYYYMMDD The Scheduled Maturity Date Of The
Mortgage Loan At Contribution
--------------------------------------------------------------------------------------------------------------------------------
Scheduled Principal Balance At Contribution 44 Numeric 1000000.00 The Scheduled Principal Balance Of The
Mortgage Loan At Contribution
--------------------------------------------------------------------------------------------------------------------------------
Note Rate At Contribution 45 Numeric 0.095 Cutoff Annualized Gross Interest Rate
Applicable To The Calculation Of
Scheduled Interest
--------------------------------------------------------------------------------------------------------------------------------
Servicer And Trustee Fee Rate 46 Numeric 0.00025 Cutoff Annualized Fee Paid To The
Servicer And Trustee
--------------------------------------------------------------------------------------------------------------------------------
Fee Rate / Strip Rate 1 47 Numeric 0.00001 Cutoff Annualized Fee/Strip Netted
Against Current Note Rate = Net Rate
--------------------------------------------------------------------------------------------------------------------------------
Fee Rate / Strip Rate 2 48 Numeric 0.00001 Cutoff Annualized Fee/Strip Netted
Against Current Note Rate = Net Rate
--------------------------------------------------------------------------------------------------------------------------------
Fee Rate / Strip Rate 3 49 Numeric 0.00001 Cutoff Annualized Fee/Strip Netted
Against Current Note Rate = Net Rate
--------------------------------------------------------------------------------------------------------------------------------
Fee Rate / Strip Rate 4 50 Numeric 0.00001 Cutoff Annualized Fee/Strip Netted
Against Current Note Rate = Net Rate
--------------------------------------------------------------------------------------------------------------------------------
Fee Rate / Strip Rate 5 51 Numeric 0.00001 Cutoff Annualized Fee/Strip Netted
Against Current Note Rate = Net Rate
--------------------------------------------------------------------------------------------------------------------------------
Net Rate At Contribution 52 Numeric 0.0947 Cutoff Annualized Interest Rate
Applicable To The Calculation Of
Remittance Interest
--------------------------------------------------------------------------------------------------------------------------------
Periodic P&I Payment At Contribution 53 Numeric 3000.00 The Periodic Scheduled Principal &
Interest Payment at Contribution
--------------------------------------------------------------------------------------------------------------------------------
# Of Properties at Contribution 54 Numeric 13 L86 - The Number Of Properties
Underlying The Mortgage Loan
--------------------------------------------------------------------------------------------------------------------------------
Property Name 55 AN Text P7 - If Multiple properties print
"Various"
--------------------------------------------------------------------------------------------------------------------------------
Property Address 56 AN Text P8 - If Multiple properties print
"Various"
--------------------------------------------------------------------------------------------------------------------------------
Property City 57 AN Text P9 - If Multiple properties have the
same city then print the city,
otherwise print "Various". Missing
information print "Incomplete"
--------------------------------------------------------------------------------------------------------------------------------
Property State 58 AN Text P10 - If Multiple properties have the
same state then print the state,
otherwise print "XX" to represent
various. Missing information print "ZZ"
--------------------------------------------------------------------------------------------------------------------------------
Property Zip Code 59 AN Text P11 - If Multiple properties have the
same zip code then print the zip code,
otherwise print "Various". Missing
information print "Incomplete"
--------------------------------------------------------------------------------------------------------------------------------
Property County 60 AN Text P12 - If Multiple properties have the
same county then print the county,
otherwise print "Various". Missing
information print "Incomplete"
--------------------------------------------------------------------------------------------------------------------------------
Property Type Code 61 AN MF P13 - If Multiple properties have the
same property type code then print the
property code, otherwise print "XX" to
represent various. Missing
information print "ZZ"
--------------------------------------------------------------------------------------------------------------------------------
Net Square Feet At Contribution 62 Numeric 25000 P16 - For Multiple properties, if all
the same Property Type, sum the
values, if missing any leave empty
--------------------------------------------------------------------------------------------------------------------------------
# Of Units/Beds/Rooms At Contribution 63 Numeric 75 P17 - For Multiple properties, if all
the same Property Type, sum the
values, if missing any leave empty
--------------------------------------------------------------------------------------------------------------------------------
Year Built 64 AN YYYY P14 - If Multiple properties have the
same Year Built then print Year Built
else leave empty
--------------------------------------------------------------------------------------------------------------------------------
NOI At Contribution 65 Numeric 100000.00 P47 - If Multiple properties sum the
values, if missing any then populate
using the "DSCR Indicator Legend"
rule. Should match the prospectus if
available.
--------------------------------------------------------------------------------------------------------------------------------
DSCR (NOI) At Contribution 66 Numeric 2.11 P48 - If Multiple properties populate
using the "DSCR Indicator Legend"
rule. DSCR At Contribution using
NOI. Should match the prospectus if
available.
--------------------------------------------------------------------------------------------------------------------------------
Appraisal Value At Contribution 67 Numeric 1000000.00 P49 - If Multiple properties sum the
values , if missing any then leave
empty
--------------------------------------------------------------------------------------------------------------------------------
Appraisal Date At Contribution 68 AN YYYYMMDD P50 - If Multiple properties and all
the same then print the date, if
missing any then leave empty
--------------------------------------------------------------------------------------------------------------------------------
Physical Occupancy At Contribution 69 Numeric 0.88 P51 - If Multiple properties, Use
weighted average by using the
calculation [ Current Allocated %
(Prop) * Occupancy (Oper) ] for each
Property, if missing one then leave
empty
--------------------------------------------------------------------------------------------------------------------------------
Revenue At Contribution 70 Numeric 100000.00 P45 - If Multiple properties then sum
the value, if missing any then
populate using the "DSCR Indicator
Legend" rule. Should match the
prospectus if available.
--------------------------------------------------------------------------------------------------------------------------------
Operating Expenses At Contribution 71 Numeric 100000.00 P46 - If Multiple properties then sum
the value, if missing any then
populate using the "DSCR Indicator
Legend" rule. Should match the
prospectus if available.
--------------------------------------------------------------------------------------------------------------------------------
Contribution Financials As Of Date 72 AN YYYYMMDD P44 - If Multiple properties and all
the same then print the date, if
missing any then leave empty
--------------------------------------------------------------------------------------------------------------------------------
Recourse (Y/N) 73 AN Y Y=Yes, N=No
--------------------------------------------------------------------------------------------------------------------------------
Ground Lease (Y/S/N) 74 AN Y Y=Yes, S=Subordinate, N= No ground
lease, P22 - If Multiple properties
and any one property is "Y" or "S"
print "Y"
--------------------------------------------------------------------------------------------------------------------------------
Cross-Collateralized Loan Grouping 75 AN Text P6 - All Loans With The Same Value Are
Crossed, For example : "X02-1" would
be populated in this field for all
related loans, "X02-2" would be
populated for the next group of
related loans.
--------------------------------------------------------------------------------------------------------------------------------
Collection Of Escrows (Y/N) 76 AN Y Y=Yes, N=No - Referring to Taxes
and Insurance
--------------------------------------------------------------------------------------------------------------------------------
Collection Of Other Reserves (Y/N) 77 AN Y Y=Yes, N=No - Referring to Reserves
other than Taxes and Insurance. If
any property has a value > 0 in P23,
this field should be "Y"
--------------------------------------------------------------------------------------------------------------------------------
Lien Position At Contribution 78 Numeric 1 1=First, 2=Second...
--------------------------------------------------------------------------------------------------------------------------------
Hyper Amortizing Begin Date 79 AN YYYYMMDD L81 - Date used to track Anticipated
Repayment Date Loans
--------------------------------------------------------------------------------------------------------------------------------
Defeasance Option Start Date 80 AN YYYYMMDD Date loan can start defeasance
--------------------------------------------------------------------------------------------------------------------------------
Defeasance Option End Date 81 AN YYYYMMDD Date that defeasance ends
--------------------------------------------------------------------------------------------------------------------------------
Last Setup Change Date 82 AN YYYYMMDD L83 - Distribution Date that the
information was last changed by loan
--------------------------------------------------------------------------------------------------------------------------------
NCF At Contribution 83 Numeric 100000.00 P76 - If Multiple properties sum the
values, if missing any then populate
using the "DSCR Indicator Legend"
rule. Net Cash Flow At
Contribution. Should match the
prospectus if available.
--------------------------------------------------------------------------------------------------------------------------------
DSCR (NCF) At Contribution 84 Numeric 2.11 P77 - If Multiple properties populate
using the "DSCR Indicator Legend"
rule. DSCR At Contribution using NCF
to calculate. Should match the
prospectus if available.
--------------------------------------------------------------------------------------------------------------------------------
DSCR Indicator at Contribution 85 AN Text Flag used to explain how the DSCR was
calculated when there are multiple
properties. See DSCR Indicator Legend.
--------------------------------------------------------------------------------------------------------------------------------
Loan Contributor to Securitization 86 AN Text Name of entity ultimately responsible
for the reps and warranties of the
loan contributed
--------------------------------------------------------------------------------------------------------------------------------
Credit Tenant Lease 87 AN Y L101 - Y=Yes, N=No
--------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
ROUNDING CODE ARM INDEX CODE
-------------------------------------------------- ------------------------------------------------------
LEGEND LEGEND
-------------------------------------------------- ------------------------------------------------------
1 Unrounded A 11 FHLB COFI (1 Month)
-------------------------------------------------- ------------------------------------------------------
2 Nearest Percentage Increment B 11 FHLB COFI (6 Month)
-------------------------------------------------- ------------------------------------------------------
3 Up To Nearest Percentage Increment C 1 Year CMT Weekly Average
Treasury
-------------------------------------------------- ------------------------------------------------------
4 Down To Nearest Percentage D 3 Year CMT Weekly Average
Increment Treasury
-------------------------------------------------- ------------------------------------------------------
E 5 Year CMT Weekly Average
Treasury
------------------------------------------------------
F Wall Street Journal Prime Rate
-------------------------------------------------- ------------------------------------------------------
PROPERTY TYPES CODE G 1 Month LIBOR
-------------------------------------------------- ------------------------------------------------------
LEGEND H 3 Month LIBOR
-------------------------------------------------- ------------------------------------------------------
MF Multifamily I 6 Month LIBOR
-------------------------------------------------- ------------------------------------------------------
RT Retail J National Mortgage Index Rate
-------------------------------------------------- ------------------------------------------------------
HC Health Care All Others Use Short Text
Description
-------------------------------------------------- ------------------------------------------------------
IN Industrial
-------------------------------------------------- ------------------------------------------------------
WH Warehouse
-------------------------------------------------- ------------------------------------------------------
MH Mobile Home Park PAYMENT TYPE CODE
-------------------------------------------------- ------------------------------------------------------
OF Office LEGEND
-------------------------------------------------- ------------------------------------------------------
MU Mixed Use 1 Fully Amortizing
-------------------------------------------------- ------------------------------------------------------
LO Lodging 2 Amortizing Balloon
-------------------------------------------------- ------------------------------------------------------
SS Self Storage 3 Interest Only / Balloon
-------------------------------------------------- ------------------------------------------------------
OT Other 4 Interest Only / Amortizing
-------------------------------------------------- ------------------------------------------------------
SE Securities 5 Interest Only / Amortizing /
Balloon
-------------------------------------------------- ------------------------------------------------------
7 Hyper-Amortization
------------------------------------------------------
9 Other
------------------------------------------------------
DSCR INDICATOR
------------------------------------------------------
LEGEND
------------------------------------------------------
P Partial - Not all properties
received financials, servicer
to leave empty
------------------------------------------------------
A Average-Not all properties
received financials, servicer
allocates Debt Service only to
properties where financials
are received.
------------------------------------------------------
F Full - All Statements
Collected for all properties
------------------------------------------------------
W Worst Case-Not all properties
received financials, servicer
allocates 100% of Debt Service
to all properties where
financials are received.
------------------------------------------------------
N None Collected - no financials
were received
------------------------------------------------------
C Consolidated-All properties
reported on 1 "rolled up"
financial from the borrower
------------------------------------------------------------------------------------------------------------------
EXHIBIT L-6
FORM OF CMSA PROPERTY FILE
COMMERCIAL MORTGAGE SECURITIES ASSOCIATION
CMSA "PROPERTY" FILE
(Data Record Layout )
Cross Referenced as "P"
---------------------------------------------- ----------------------------------------------------------------------------------
SPECIFICATION DESCRIPTION/COMMENTS
---------------------------------------------- ----------------------------------------------------------------------------------
---------------------------------------------- ----------------------------------------------------------------------------------
Acceptable Media Types Magnetic Tape, Diskette, Electronic Transfer
---------------------------------------------- ----------------------------------------------------------------------------------
Character Set ASCI
---------------------------------------------- ----------------------------------------------------------------------------------
Field Delineation Comma
---------------------------------------------- ----------------------------------------------------------------------------------
Density (Bytes-Per-Inch) 1600 or 6250
---------------------------------------------- ----------------------------------------------------------------------------------
Magnetic Tape Label None (unlabeled )
---------------------------------------------- ----------------------------------------------------------------------------------
Magnetic Tape Blocking Factor 10285 (17 records per block )
---------------------------------------------- ----------------------------------------------------------------------------------
Physical Media Label Servicer Name; Data Type (Collection Period Data); Density (Bytes-Per-Inch);
Blocking Factor; Record Length
---------------------------------------------- ----------------------------------------------------------------------------------
Return Address Label Required for return of physical media (magnetic tape or diskette)
---------------------------------------------- ----------------------------------------------------------------------------------
---------------------------------------------- -----------------------------------------------------------------------------------
FIELD FORMAT LOAN
FIELD
---------------------------------------------- -----------------------------------------------------------------------------------
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS REFERENCE
---------------------------------------------- -----------------------------------------------------------------------------------
---------------------------------------------- -----------------------------------------------------------------------------------
Transaction Id 1 AN XXX97001 Unique Issue Identification Mnemonic S1, L1
---------------------------------------------- -----------------------------------------------------------------------------------
Loan ID 2 AN XXX9701A Unique Servicer Loan Number Assigned S3, L3
To Each Collateral Item In A Pool
---------------------------------------------- -----------------------------------------------------------------------------------
Prospectus Loan ID 3 AN 123 Unique Identification Number S4, L4
Assigned To Each Collateral Item In
The Prospectus
---------------------------------------------- -----------------------------------------------------------------------------------
Property ID 4 AN 1001-001 Should contain Prospectus ID and
property identifier, e.g., 1001-001,
1000-002
---------------------------------------------- -----------------------------------------------------------------------------------
Distribution Date 5 AN YYYYMMDD Date Payments Made To L5
Certificateholders
---------------------------------------------- -----------------------------------------------------------------------------------
Cross-Collateralized Loan Grouping 6 AN Text All Loans With The Same Value Are S75
Crossed, For example : "X02-1" would
be populated in this field for all
related loans, "X02-2" would be
populated for the next group of
related loans.
---------------------------------------------- -----------------------------------------------------------------------------------
Property Name 7 AN Text S55
---------------------------------------------- -----------------------------------------------------------------------------------
Property Address 8 AN Text S56
---------------------------------------------- -----------------------------------------------------------------------------------
Property City 9 AN Text S57
---------------------------------------------- -----------------------------------------------------------------------------------
Property State 10 AN FL S58
---------------------------------------------- -----------------------------------------------------------------------------------
Property Zip Code 11 AN 30303 S59
---------------------------------------------- -----------------------------------------------------------------------------------
Property County 12 AN Text S60
---------------------------------------------- -----------------------------------------------------------------------------------
Property Type Code 13 AN MF S61
---------------------------------------------- -----------------------------------------------------------------------------------
Year Built 14 AN YYYY S64
---------------------------------------------- -----------------------------------------------------------------------------------
Year Last Renovated 15 AN YYYY
---------------------------------------------- -----------------------------------------------------------------------------------
Net Square Feet At Contribution 16 Numeric 25000 RT, IN, WH, OF, MU, OT S62
---------------------------------------------- -----------------------------------------------------------------------------------
# Of Units/Beds/Rooms At Contribution 17 Numeric 75 MF, MH, LO,MU, HC, SS S63
---------------------------------------------- -----------------------------------------------------------------------------------
Property Status 18 AN 1 1=FCL, 2=REO, 3=Defeased, 4=Partial
Release, 5= Released, 6= Same as at
Contribution
---------------------------------------------- -----------------------------------------------------------------------------------
Allocated Percentage of Loan at Contribution 19 Numeric 0.75 Issuer to allocate loan %
attributable to property for
multi-property loans
---------------------------------------------- -----------------------------------------------------------------------------------
---------------------------------------------- -----------------------------------------------------------------------------------
FIELD FORMAT LOAN
FIELD
---------------------------------------------- -----------------------------------------------------------------------------------
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS REFERENCE
---------------------------------------------- -----------------------------------------------------------------------------------
---------------------------------------------- -----------------------------------------------------------------------------------
Current Allocated Percentage 20 Numeric 0.75 Maintained by servicer. If not
supplied in by Issuer or
Underwriter, use Underwritting NOI
or NCF to calculate
------------------------------------------------------------------------------------------------------------------------------------
Current Allocated Ending Scheduled Loan 21 Numeric 5900900.00 Calculation based on Current L7
Amount Allocated Percentage and Current
Ending Scheduled Principal
Balance (L7) for associated
loan.
---------------------------------------------- -----------------------------------------------------------------------------------
Ground Lease (Y/S/N) 22 AN N Either Y=Yes, S=Subordinate, N= No S74
ground lease
---------------------------------------------- -----------------------------------------------------------------------------------
Total Reserve Balance 23 Numeric 25000.00 For Maintenance, Repairs, & S77
Environmental. (Excludes Tax &
Insurance Escrows). An amount should
be printed if the value in Setup File
field 77 is "Y"
---------------------------------------------- -----------------------------------------------------------------------------------
Most Recent Appraisal Date 24 AN YYYYMMDD L74
---------------------------------------------- -----------------------------------------------------------------------------------
Most Recent Appraisal Value 25 Numeric 1000000.00 L75
------------------------------------------------------------------------------------------------------------------------------------
Date Asset Expected to Be Resolved or 26 AN YYYYMMDD Could be different dates for L79
Foreclosed different properties. If in
Foreclosure - Expected Date
of Foreclosure and if REO -
Expected Sale Date.
---------------------------------------------- -----------------------------------------------------------------------------------
Foreclosure Date 27 AN YYYYMMDD L42
---------------------------------------------- -----------------------------------------------------------------------------------
REO Date 28 AN YYYYMMDD L43
---------------------------------------------- -----------------------------------------------------------------------------------
Most Recent Physical Occupancy 29 Numeric 0.75 L71
---------------------------------------------- -----------------------------------------------------------------------------------
Occupancy As of Date 30 AN YYYYMMDD Typically should be the effective
date of the Rent Roll
---------------------------------------------- -----------------------------------------------------------------------------------
Date Lease Rollover Review 31 AN YYYYMMDD Roll over review to be completed
every 12 months
---------------------------------------------- -----------------------------------------------------------------------------------
% Sq. Feet expiring 1-12 months 32 Numeric 0.2 Apply to Property Types - RT, IN, S62
WH, OF, MU, OT
---------------------------------------------- -----------------------------------------------------------------------------------
% Sq. Feet expiring 13-24 months 33 Numeric 0.2 Apply to Property Types - RT, IN, S62
WH, OF, MU, OT
---------------------------------------------- -----------------------------------------------------------------------------------
% Sq. Feet expiring 25-36 months 34 Numeric 0.2 Apply to Property Types - RT, IN, S62
WH, OF, MU, OT
---------------------------------------------- -----------------------------------------------------------------------------------
% Sq. Feet expiring 37-48 months 35 Numeric 0.2 Apply to Property Types - RT, IN, S62
WH, OF, MU, OT
---------------------------------------------- -----------------------------------------------------------------------------------
% Sq. Feet expiring 49-60 months 36 Numeric 0.2 Apply to Property Types - RT, IN, S62
WH, OF, MU, OT
---------------------------------------------- -----------------------------------------------------------------------------------
Largest Tenant 37 AN Text For Office, WH, Retail, Industrial,
Other or Mixed Use, as applicable
---------------------------------------------- -----------------------------------------------------------------------------------
Square Feet of Largest Tenant 38 Numeric 15000
---------------------------------------------- -----------------------------------------------------------------------------------
2nd Largest Tenant 39 AN Text For Office, WH, Retail, Industrial,
Other or Mixed Use, as applicable
---------------------------------------------- -----------------------------------------------------------------------------------
Square Feet of 2nd Largest Tenant 40 Numeric 15000
---------------------------------------------- -----------------------------------------------------------------------------------
3rd Largest Tenant 41 AN Text For Office, WH, Retail, Industrial,
Other or Mixed Use, as applicable
---------------------------------------------- -----------------------------------------------------------------------------------
Square Feet of 3rd Largest Tenant 42 Numeric 15000
---------------------------------------------- -----------------------------------------------------------------------------------
Fiscal Year End Month 43 Numeric MM Needed to indicate month ending for
borrower's Fiscal Year. For example
: "12"
---------------------------------------------- -----------------------------------------------------------------------------------
Contribution Financials As Of Date 44 AN YYYYMMDD S72
---------------------------------------------- -----------------------------------------------------------------------------------
Revenue At Contribution 45 Numeric 1000000.00 Should match the prospectus if S70
available. At the Property Level
---------------------------------------------- -----------------------------------------------------------------------------------
Operating Expenses At Contribution 46 Numeric 1000000.00 Should match the prospectus if S71
available. At the Property Level
---------------------------------------------- -----------------------------------------------------------------------------------
NOI At Contribution 47 Numeric 1000000.00 Should match the prospectus if S65
available. At the Property Level
---------------------------------------------- -----------------------------------------------------------------------------------
DSCR (NOI) At Contribution 48 Numeric 1.5 Should match the prospectus if S66
available.
---------------------------------------------- -----------------------------------------------------------------------------------
Appraisal Value At Contribution 49 Numeric 1000000.00 S67
---------------------------------------------- -----------------------------------------------------------------------------------
Appraisal Date At Contribution 50 AN YYYYMMDD S68
---------------------------------------------- -----------------------------------------------------------------------------------
Physical Occupancy At Contribution 51 Numeric 0.9 S69
---------------------------------------------- -----------------------------------------------------------------------------------
Date of Last Inspection 52 AN YYYYMMDD Date of last physical site inspection
---------------------------------------------- -----------------------------------------------------------------------------------
Preceding Fiscal Year Financial As of Date 53 AN YYYYMMDD L58
---------------------------------------------- -----------------------------------------------------------------------------------
Preceding Fiscal Year Revenue 54 Numeric 1000000.00 L52
---------------------------------------------- -----------------------------------------------------------------------------------
Preceding Fiscal Year Operating Expenses 55 Numeric 1000000.00 L53
---------------------------------------------- -----------------------------------------------------------------------------------
Preceding Fiscal Year NOI 56 Numeric 1000000.00 L54
---------------------------------------------- -----------------------------------------------------------------------------------
Preceding Fiscal Yr Debt Service Amount 57 Numeric 1000000.00 Calculate using P20(percentage) to L55
get the allocated amount for each
property
---------------------------------------------- -----------------------------------------------------------------------------------
Preceding Fiscal Year DSCR (NOI) 58 Numeric 1.3 Uses the property NOI and the L56
allocated debt service amount
---------------------------------------------- -----------------------------------------------------------------------------------
Preceding Fiscal Year Physical Occupancy 59 Numeric 0.9 L57
---------------------------------------------- -----------------------------------------------------------------------------------
Second Preceding FY Financial As of Date 60 AN YYYYMMDD L65
---------------------------------------------- -----------------------------------------------------------------------------------
Second Preceding Fiscal Year Revenue 61 Numeric 1000000.00 L59
---------------------------------------------- -----------------------------------------------------------------------------------
Second Preceding FY Operating Expenses 62 Numeric 1000000.00 L60
---------------------------------------------- -----------------------------------------------------------------------------------
Second Preceding Fiscal Year NOI 63 Numeric 1000000.00 L61
---------------------------------------------- -----------------------------------------------------------------------------------
Second Preceding FY Debt Service Amount 64 Numeric 1000000.00 Calculate using P20(percentage) to L62
get the allocated amount for each
property
---------------------------------------------- -----------------------------------------------------------------------------------
Second Preceding Fiscal Year DSCR (NOI) 65 Numeric 1.3 Uses the property NOI and the L63
allocated debt service amount
---------------------------------------------- -----------------------------------------------------------------------------------
Second Preceding FY Physical Occupancy 66 Numeric 0.9 L64
---------------------------------------------- -----------------------------------------------------------------------------------
Property Contribution Date 67 AN YYYYMMDD Date Property was contributed L85
---------------------------------------------- -----------------------------------------------------------------------------------
Most Recent Revenue 68 Numeric 1000000.00 Most Recent Revenue L66
---------------------------------------------- -----------------------------------------------------------------------------------
Most Recent Operating Expenses 69 Numeric 1000000.00 Most Recent Operating Expenses L67
---------------------------------------------- -----------------------------------------------------------------------------------
Most Recent NOI 70 Numeric 1000000.00 Most Recent Net Operating Income L68
---------------------------------------------- -----------------------------------------------------------------------------------
Most Recent Debt Service Amount 71 Numeric 1000000.00 Calculate using P20(percentage) to L69
get the allocated amount for each
property
---------------------------------------------- -----------------------------------------------------------------------------------
Most Recent DSCR (NOI) 72 Numeric 2.55 Uses the property NOI and the L70
allocated debt service amount
---------------------------------------------- -----------------------------------------------------------------------------------
Most Recent Financial As of Start Date 73 AN YYYYMMDD Start date used to calculate Most L72
Recent information either YTD or
trailing 12 months
---------------------------------------------- -----------------------------------------------------------------------------------
Most Recent Financial As of End Date 74 AN YYYYMMDD End date used to calculate Most L73
Recent information either YTD or
trailing 12 months
---------------------------------------------- -----------------------------------------------------------------------------------
Most Recent Financial Indicator 75 AN T or Y T= Trailing 12 months Y = Year to L82
Date
---------------------------------------------- -----------------------------------------------------------------------------------
NCF At Contribution 76 Numeric 1000000.00 Net Cash Flow At Contribution. S83
Should match the prospectus if
available.
---------------------------------------------- -----------------------------------------------------------------------------------
DSCR (NCF) At Contribution 77 Numeric 1.5 DSCR At Contribution using NCF to S84
calculate. Should match the
prospectus if available.
---------------------------------------------- -----------------------------------------------------------------------------------
Preceding Fiscal Year NCF 78 Numeric 1000000.00 Preceding Fiscal Year Net Cash Flow L92
related to Financial As of Date P53.
---------------------------------------------- -----------------------------------------------------------------------------------
Preceding Fiscal Year DSCR (NCF) 79 Numeric 2.55 Preceding Fiscal Yr Debt Service L93
Coverage Ratio using NCF related to
Financial As of Date P53.
---------------------------------------------- -----------------------------------------------------------------------------------
Second Preceding FY NCF 80 Numeric 1000000.00 Second Preceding Fiscal Year Net L94
Cash Flow related to Financial As of
Date P60.
---------------------------------------------- -----------------------------------------------------------------------------------
Second Preceding FY DSCR (NCF) 81 Numeric 2.55 Second Preceding Fiscal Year Debt L95
Service Coverage Ratio using Net
Cash Flow related to Financial As of
Date P60.
---------------------------------------------- -----------------------------------------------------------------------------------
Most Recent NCF 82 Numeric 1000000.00 Most Recent Net Cash Flow related to L96
Financial As of Date P74.
---------------------------------------------- -----------------------------------------------------------------------------------
Most Recent DSCR (NCF) 83 Numeric 2.55 Most Recent Debt Service Coverage L97
Ratio using Net Cash Flow related to
Financial As of Date P74.
---------------------------------------------- -----------------------------------------------------------------------------------
NOI/NCF Indicator 84 AN Text Indicates how NOI or Net Cash Flow L90
was calculated should be the same
for each financial period. See
NOI/NCF Indicator Legend.
---------------------------------------------- -----------------------------------------------------------------------------------
Deferred Maintenance Flag 85 AN N Either Y=Yes or N= No, Deferred
Maintenance
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------
PROPERTY TYPES CODE NOI/NCF INDICATOR
------------------------------------------------ -----------------------------------------------
LEGEND LEGEND
------------------------------------------------ -----------------------------------------------
MF Multifamily CMSA Calculated using CMSA standard
------------------------------------------------ -----------------------------------------------
RT Retail PSA Calculated using a definition
given in the PSA
------------------------------------------------ -----------------------------------------------
HC HealthCare U/W Calculated using the
underwriting method
------------------------------------------------------------------------------------------------------
IN Industrial
------------------------------------------------
WH Warehouse
------------------------------------------------
MH Mobile Home Park
------------------------------------------------
OF Office
------------------------------------------------
MU Mixed Use
------------------------------------------------
LO Lodging
------------------------------------------------
SS Self Storage
------------------------------------------------
OT Other
------------------------------------------------
SE Securities
------------------------------------------------------------------------------------------------------
EXHIBIT L-7
FORM OF COMPARATIVE FINANCIAL STATUS REPORT
CMSA INVESTOR REPORTING PACKAGE
COMPARATIVE FINANCIAL STATUS REPORT
AS OF _____________
(PROPERTY LEVEL REPORT)
Operating Information Reflected As NOI____ or NCF______
-----------------------------------------------------------------------------------------------------------------------
P4 P9 P10 P52 P21 L8 P57 P44 P51 P45 P47 OR P76 P48 OR P77 P60
-----------------------------------------------------------------------------------------------------------------------
ORIGINAL UNDERWRITING
-----------------------------------------------------------------------------------------------------------------------
INFORMATION
-----------------------------------------------------------------------------------------------------------------------
BASE YEAR AS OF
_____
-----------------------------------------------------------------------------------------------------------------------
Last Current Allocated
Property Allocated Paid Annual Financial Financial
Property Inspection Loan Thru Debt Info as of Total $ Info as
ID City State Date Amount Date Service Date % Occ Revenue NOI/NCF (1) DSCR of Date
-----------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------
Yyyymmdd yyyymmdd Yyyymmdd
-----------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------
List all properties currently in deal with or without information largest to
smallest loan
-----------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------
This report should reflect the information provided in the CMSA Property File
and CMSA Loan Periodic Update File.
-----------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------
Total: $ $ ** WA $ $ WA
-----------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------
[TABLE CONTINUED]
Operating Information Reflected As NOI____ or NCF______
------------------------------------------------------------------------------------------------------------------------------
P4 P66 P61 P63 OR P80 P65 OR P81 P53 P59 P54 P56 OR P78 P58 OR P79 P73 P74
------------------------------------------------------------------------------------------------------------------------------
2ND PRECEDING ANNUAL OPERATING PRECEDING ANNUAL OPERATING
------------------------------------------------------------------------------------------------------------------------------
INFORMATION INFORMATION
------------------------------------------------------------------------------------------------------------------------------
NORMALIZED AS OF _____ NORMALIZED
------------------------------------------------------------------------------------------------------------------------------
Financial
Property % Total $ (1) Info as of % Total $ (1) FS Start FS End Occ As of
ID Occ Revenue NOI/NCF DSCR Date Occ Revenue NOI/NCF DSCR Date Date Date
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
yyyymmdd yyyymmdd yyyymmdd yyyymmdd
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
Total: WA $ $ WA WA $ $ WA WA
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
[TABLE CONTINUED]
Operating Information Reflected As NOI____ or NCF______
------------------------------------------------------------------------------
P4 P30 P29 P68 P70 OR P82 P72 OR P83 (2)
------------------------------------------------------------------------------
MOST RECENT FINANCIAL NET CHANGE
------------------------------------------------------------------------------
INFORMATION
------------------------------------------------------------------------------
*NORMALIZED OR ACTUAL PRECEDING & BASIS
------------------------------------------------------------------------------
Property % Total % % Total (1)
ID Occ Revenue $ NOI/NCF (1) DSCR Occ Revenue DSCR
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Total: $ $ WA WA $ WA
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
-----------------------------------------
(1) DSCR should match to Operating Statement Analysis Report and is normally
calculated using NOI or NCF / Debt Service times the allocated loan
percentage.
(2) Net change should compare the latest year to the Base Year.
* As required by Trust Agreements.
** Weighted Averages should be computed and reflected if the data is relevant
and applicable.
EXHIBIT L-8
FORM OF DELINQUENT LOAN STATUS REPORT
CMSA INVESTOR REPORTING PACKAGE
DELINQUENT LOAN STATUS REPORT
AS OF ____________________
(LOAN LEVEL REPORT)
Operating Information Reflected As NOI______ or NCF________
S62
S4 S55 S61 S57 S58 or S63 L8 L7 L37 L39 L38
------------------------------------------------------------------------------------------------------------------------------------
Other
Sq Ft Paid Ending Total P&I Expense Total T & I
Loan Property Property or Thru Scheduled Advances Advance Advances Total
Prospectus ID Name Type City State Units Date Loan Balance Outstanding Outstanding Outstanding Exposure
------------------------------------------------------------------------------------------------------------------------------------
LOANS IN FORECLOSURE AND NOT REO
90 + DAYS DELINQUENT
60 TO 89 DAYS DELINQUENT
30 TO 59 DAYS DELINQUENT
CURENT AND AT SPECIAL SERVICER
[TABLE CONTINUED]
L54 or L56 or
L58 L68/L92 L70/L93
S4 L25 L10 L11 or L73 or L96 or L97 L74 L75 L99 L77
-----------------------------------------------------------------------------------------------------------------------------------
Loss
using
LTM Appraisal 90% Total
Current Current NOI/ LTM DSCR BPO or Appr. Appraisal
Loan Monthly Interest Maturity NCF LTM NOI/ (NOI/ Valuation Internal or BPO Reduction Transfer
Prospectus ID P&I Rate Date Date NCF NCF) Date Value** (f) Realized Date
-----------------------------------------------------------------------------------------------------------------------------------
LOANS IN FORECLOSURE AND NOT REO
90 + DAYS DELINQUENT
60 TO 89 DAYS DELINQUENT
30 TO 59 DAYS DELINQUENT
CURENT AND AT SPECIAL SERVICER
[TABLE CONTINUED]
S4 L79 L76
-------------------------------------------------------
Date Asset
Expected to
Loan be Resolved Workout
Prospectus ID or Foreclosed Strategy* Comments
-------------------------------------------------------
LOANS IN FORECLOSURE AND NOT REO
90 + DAYS DELINQUENT
60 TO 89 DAYS DELINQUENT
30 TO 59 DAYS DELINQUENT
CURENT AND AT SPECIAL SERVICER
-----------------------------------------
FCL = Foreclosure
LTM = Latest 12 Months either Last Normalized Annual, Normalized YTD or Trailing
12 months, if available.
* Workout Strategy should match the CMSA Loan Periodic Update File using
abbreviated words in place of a code number such as (FCL - In Foreclosure,
MOD - Modification, DPO - Discount Payoff, NS - Note Sale, BK -
Bankruptcy, PP - Payment Plan, TBD - To be determined etc...). It is
possible to combine the status codes if the loan is going in more than one
direction (i.e. FCL/Mod, BK/Mod, BK/FCL/DPO).
** BPO - Broker opinion
EXHIBIT L-9
FORM OF HISTORICAL LIQUIDATION REPORT
CMSA INVESTOR REPORTING PACKAGE
HISTORICAL LIQUIDATION REPORT
(REO-SOLD, DISCOUNTED PAYOFF OR NOTE SALE)
AS OF ____________
(LOAN LEVEL REPORT)
L75 L45
S4 S55 S61 S57 S58 (c) = b/a (a) L29 (b) (d)
--------------------------------------------------------------------------------------------------------------------------------
PROSPECTUS PROPERTY PROPERTY CITY STATE % RECEIVED LATEST EFFECTIVE SALES NET AMT
LOAN ID NAME TYPE FROM APPRAISAL OR DATE OF PRICE RECEIVED FROM
LIQUIDATION BROKERS OPINION LIQUIDATION SALE
--------------------------------------------------------------------------------------------------------------------------------
THIS REPORT IS HISTORICAL
All information is from the liquidation date and does not need to be updated.
--------------------------------------------------------------------------------------------------------------------------------
TOTAL ALL LOANS:
CURRENT MONTH ONLY:
--------------------------------------------------------------------------------------------------------------------------------
[TABLE CONTINUED]
L7 L37 L39+L38 L47
S4 (e) (f) (g) (h) (i)=d - (f+g+h) (k)
--------------------------------------------------------------------------------------------------------------------------
PROSPECTUS ENDING TOTAL P&I TOTAL T & I AND SERVICING NET PROCEEDS REALIZED DATE LOSS
LOAN ID SCHEDULED ADVANCE OTHER EXPENSE FEES EXPENSE LOSS PASSED THRU
BALANCE OUTSTANDING ADVANCE OUTSTANDING
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
[TABLE CONTINUED]
S4 (m) (n)=k+m (o)=n/e
------------------------------------------------------------------------------
PROSPECTUS MINOR ADJ TO DATE OF MINOR TOTAL LOSS LOSS % OF
LOAN ID TRUST ADJ PASSED WITH SCHEDULED
THRU ADJUSTMENT BALANCE
------------------------------------------------------------------------------
THIS REPORT IS HISTORICAL
All information is from the liquidation date and does not need to be updated.
--------------------------------------------------------------------------------------------------------
TOTAL ALL LOANS:
CURRENT MONTH ONLY:
--------------------------------------------------------------------------------------------------------
-----------------------------------------
(h) Servicing Fee Expense includes fees such as Liquidation or Disposition fees
charged by the Special Servicer.
EXHIBIT L-10
FORM OF HISTORICAL LOAN MODIFICATION REPORT
CMSA INVESTOR REPORTING PACKAGE
HISTORICAL LOAN MODIFICATION REPORT
AS OF ____________
(LOAN LEVEL REPORT)
S4 S57 S58 L49 L48 L7* L7*
-----------------------------------------------------------------------------------------------------------------------------
BALANCE WHEN
MOD / EXTENSION PER SENT TO BALANCE AT THE
EXTENSION DOCS OR EFFECTIVE DATE SPECIAL EFFECTIVE DATE OF
PROSPECTUS ID CITY STATE FLAG SERVICER OF MODIFICATION SERVICER MODIFICATION
-----------------------------------------------------------------------------------------------------------------------------
THIS REPORT IS HISTORICAL
Information is as of modification. Each line should not change in the future. Only new modifications should be added.
-----------------------------------------------------------------------------------------------------------------------------
Total For All Loans:
[TABLE CONTINUED]
S4 L50* L50* L25* L25* L11* L11*
------------------------------------------------------------------------------------------------------------------------------
TOTAL # MTHS
# MTHS FOR FOR CHANGE
PROSPECTUS ID OLD RATE RATE CHANGE NEW RATE OLD P&I NEW P&I OLD MATURITY NEW MATURITY OF MOD
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
Total For All Loans:
[TABLE CONTINUED]
S4 L47
-------------------------------------------------------------------------
(2) EST. FUTURE
(1) REALIZED INTEREST LOSS TO
LOSS TO TRUST TRUST $ (RATE
PROSPECTUS ID $ REDUCTION) COMMENT
-------------------------------------------------------------------------
-------------------------------------------------------------------------
Total For All Loans:
-----------------------------------------
* The information in these columns is from a particular point in time and should
not change on this report once assigned. Future modifications done on the same
loan are additions to the report. (1) Actual principal loss taken by bonds (2)
Expected future loss due to a rate reduction. This is just an estimate
calculated at the time of the modification.
EXHIBIT L-11
FORM OF NOI ADJUSTMENT WORKSHEET
COMMERCIAL NOI ADJUSTMENT WORKSHEET
(INCLUDES RETAIL/OFFICE/INDUSTRIAL/WAREHOUSE/MIXED USE/SELF STORAGE)
AS OF MM/DD/YY
====================================================================================================================================
PROPERTY OVERVIEW
------------------
Prospectus ID
------------------ ---------------- -------------------
Current Scheduled Loan Balance/Paid to Current Allocated Loan
Date Amount %
------------------------------------------------------------
Property Name
------------------------------------------------------------
Property Type
------------------------------------------------------------
Property Address, City, State
------------------------------------------------------------------------------------------
Net Rentable SF/Units/Pads, Beds Use second box to specify sqft.,units...
------------------ ----------------
Year Built/Year Renovated
------------------ ----------------
Cap Ex Reserve (annually)/per Unit. etc. specify annual/per
(1) unit...
------------------ ----------------
Year of Operations
------------------
Occupancy Rate (physical)
------------------
Occupancy Date
------------------
Average Rental Rate
------------------
(1) Total $ amount of Capital Reserves required annually by loan documents, excl. Leasing
Commission and TI's
====================================================================================================================================
INCOME: YYYY NOTES
------------------ ---------------- -------------------
BORROWER ADJUSTMENT NORMALIZED
Statement Classification ACTUAL
------------------ ---------------- -------------------
Gross Potential Rent (2)
------------------ ---------------- -------------------
Less: Vacancy Loss
------------------ ---------------- -------------------
OR
------------------ ---------------- -------------------
Base Rent (2)
------------------ ---------------- -------------------
Expense Reimbursement
------------------ ---------------- -------------------
Percentage Rent
------------------ ---------------- -------------------
Parking Income
------------------ ---------------- -------------------
Other Income
------------------ ---------------- -------------------
EFFECTIVE GROSS INCOME
------------------ ---------------- -------------------
(2) Use either Gross Potential (with Vacancy Loss) or Base Rents; use negative $amt for
Vacancy Loss
OPERATING EXPENSES:
------------------ ---------------- -------------------
Real Estate Taxes
------------------ ---------------- -------------------
Property Insurance
------------------ ---------------- -------------------
Utilities
------------------ ---------------- -------------------
Repairs and Maintenance
------------------ ---------------- -------------------
Janitorial
------------------ ---------------- -------------------
Management Fees
------------------ ---------------- -------------------
Payroll & Benefits Expense
------------------ ---------------- -------------------
Advertising & Marketing
------------------ ---------------- -------------------
Professional Fees
------------------ ---------------- -------------------
General and Administrative
------------------ ---------------- -------------------
Other Expenses For self-storage include
franchise fees
------------------ ---------------- -------------------
Ground Rent
------------------ ---------------- -------------------
TOTAL OPERATING EXPENSES
------------------ -------------------
OPERATING EXPENSE RATIO
------------------ -------------------
NET OPERATING INCOME
------------------ ---------------- -------------------
Leasing Commissions (3)
------------------ ---------------- -------------------
Tenant Improvements (3)
------------------ ---------------- -------------------
Capital Expenditures
------------------ ---------------- -------------------
Extraordinary Capital Expenditures
------------------ ---------------- -------------------
TOTAL CAPITAL ITEMS
------------------ ---------------- -------------------------------------------------
(3) Actual current yr, but normalize for annual if possible via contractual, U/W or other
data
------------------------------------------------------------------------------------------
NET CASH FLOW
------------------ -------------------
DEBT SERVICE (PER SERVICER)
------------------ -------------------
NET CASH FLOW AFTER DEBT SERVICE
------------------ -------------------
DSCR: (NOI/DEBT SERVICE)
------------------ -------------------
DSCR: (NCF/DEBT SERVICE)
------------------ -------------------
------------------------------------------------------------
SOURCE OF FINANCIAL DATA:
------------------------------------------------------------
(i.e.. operating statements, financial statements, tax return,
other)
------------------------------------------------------------------------------------------------------------------------------------
NOTES AND ASSUMPTIONS: This report should be completed annually for
"Normalization" of Borrower's numbers. Methodology used is per MBA/CMSA Standard
Methodology unless otherwise noted. The "Normalized" column and corresponding
comments should roll through to the Operating Statement Analysis Report.
INCOME: COMMENTS
EXPENSE: COMMENTS
CAPITAL ITEMS: COMMENTS
MULTIFAMILY NOI ADJUSTMENT WORKSHEET (INCLUDES MOBILE HOME PARKS)
AS OF MM/DD/YY
====================================================================================================================================
PROPERTY OVERVIEW
------------------
Prospectus ID
------------------ ---------------- -------------------
Current Scheduled Loan Balance/Paid to Current Allocated Loan
Date Amount %
------------------ ---------------- -------------------
Property Name
------------------ ---------------- -------------------
Property Type
------------------ ---------------- -------------------
Property Address, City, State
------------------ ---------------- -------------------------------------------------
Net Rentable SF/Units/Pads, Beds Use second box to specify sqft.,units...
------------------ ----------------
Year Built/Year Renovated
------------------ ----------------
Cap Ex Reserve (annually)/per Unit. etc. specify annual/per
(1) unit...
------------------ ----------------
Year of Operations
------------------
Occupancy Rate (physical)
------------------
Occupancy Date
------------------
Average Rental Rate
------------------
(1) Total $ amount of Capital Reserves required annually by loan documents.
====================================================================================================================================
INCOME: YYYY NOTES
------------------- ---------------- -------------------
BORROWER ADJUSTMENT NORMALIZED
ACTUAL
------------------- ---------------- -------------------
Statement Classification
------------------- ---------------- -------------------
Gross Potential Rent (2) Include Pad/RV rent
------------------- ---------------- -------------------
Less: Vacancy Loss
------------------------------------------------------------
OR
------------------------------------------------------------
Base Rent (2)
------------------- ---------------- -------------------
Laundry/Vending Income
------------------- ---------------- -------------------
Parking Income
------------------- ---------------- -------------------
Other Income Include forfeited
security/late
fees/pet
------------------- ---------------- -------------------
EFFECTIVE GROSS INCOME
------------------- ---------------- -------------------
(2) Use either Gross Potential (with Vacancy Loss) or Base Rents;
use negative $ amt for Vacancy Loss
OPERATING EXPENSES:
------------------- ---------------- -------------------
Real Estate Taxes
------------------- ---------------- -------------------
Property Insurance
------------------- ---------------- -------------------
Utilities
------------------- ---------------- -------------------
Repairs and Maintenance
------------------- ---------------- -------------------
Management Fees
------------------- ---------------- -------------------
Payroll & Benefits Expense
------------------- ---------------- -------------------
Advertising & Marketing
------------------- ---------------- -------------------
Professional Fees
------------------- ---------------- -------------------
General and Administrative
------------------- ---------------- -------------------
Other Expenses
------------------- ---------------- -------------------
Ground Rent
------------------- ---------------- -------------------
TOTAL OPERATING EXPENSES
------------------- ---------------- -------------------
OPERATING EXPENSE RATIO
------------------- -------------------
NET OPERATING INCOME
------------------- -------------------
Capital Expenditures
------------------- ---------------- -------------------
Extraordinary Capital Expenditures
------------------- ---------------- -------------------
TOTAL CAPITAL ITEMS
------------------- -------------------
NET CASH FLOW
------------------- -------------------
DEBT SERVICE (PER SERVICER)
------------------- -------------------
NET CASH FLOW AFTER DEBT SERVICE
------------------- -------------------
DSCR: (NOI/DEBT SERVICE)
------------------- -------------------
DSCR: (NCF/DEBT SERVICE)
------------------- -------------------
SOURCE OF FINANCIAL DATA:
------------------------------------------------------------
(i.e.. operating statements, financial statements, tax
return, other)
------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
NOTES AND ASSUMPTIONS: This report should be completed annually for
"Normalization" of Borrower's numbers. Methodology used is per MBA/CMSA Standard
Methodology unless otherwise noted. The "Normalized" column and corresponding
comments should roll through to the Operating Statement Analysis Report
INCOME: COMMENTS
EXPENSE: COMMENTS
CAPITAL ITEMS: COMMENTS
LODGING NOI ADJUSTMENT WORKSHEET
AS OF MM/DD/YY
====================================================================================================================================
PROPERTY OVERVIEW
------------------
Prospectus ID
------------------ ---------------- -------------------
Current Scheduled Loan Balance/Paid to Current Allocated Loan
Date Amount %
------------------ ---------------- -------------------
Property Name
------------------ ---------------- -------------------
Property Type
------------------------------------------------------------
Property Address, City, State
------------------------------------------------------------------------------------------
Net Rentable SF/Units/Pads, Beds Use second box to specify sqft.,units...
------------------ ----------------
Year Built/Year Renovated
------------------ ----------------
Cap Ex Reserve (annually)/per Unit. etc. specify annual/per
(1) unit...
------------------ ----------------
Year of Operations
------------------
Occupancy Rate (physical)
------------------
Occupancy Date
------------------
Average Rental Rate
------------------
(1) Total $ amount of Capital Reserves required annually by loan documents.
====================================================================================================================================
INCOME: YYYY NOTES
------------------- ---------------- -------------------
BORROWER ADJUSTMENT NORMALIZED
ACTUAL
------------------- ---------------- -------------------
Statement Classification
------------------- ---------------- -------------------
Room Revenue
------------------- ---------------- -------------------
Food & Beverage Revenues
------------------- ---------------- -------------------
Telephone Revenue
------------------- ---------------- -------------------
Other Departmental Revenue
------------------- ---------------- -------------------
Other Income
------------------- ---------------- -------------------
DEPARTMENTAL REVENUE: (2)
------------------- ---------------- -------------------
(2) Report Departmental Revenue as EGI for CMSA Loan Periodic and Property files
OPERATING EXPENSES:
DEPARTMENTAL
------------------- ---------------- -------------------
Room
------------------- ---------------- -------------------
Food & Beverage
------------------- ---------------- -------------------
Telephone Expenses
------------------- ---------------- -------------------
Other Dept. Expenses
------------------- ---------------- -------------------
DEPARTMENTAL EXPENSES:
------------------- ---------------- -------------------
DEPARTMENTAL INCOME:
------------------- ---------------- -------------------
GENERAL/UNALLOCATED
------------------- ---------------- -------------------
Real Estate Taxes
------------------- ---------------- -------------------
Property Insurance
------------------- ---------------- -------------------
Utilities
------------------- ---------------- -------------------
Repairs and Maintenance
------------------- ---------------- -------------------
Franchise Fee
------------------- ---------------- -------------------
Management Fees
------------------- ---------------- -------------------
Payroll & Benefits
------------------- ---------------- -------------------
Advertising & Marketing
------------------- ---------------- -------------------
Professional Fees
------------------- ---------------- -------------------
General and Administrative
------------------- ---------------- -------------------
Other Expenses
------------------- ---------------- -------------------
Ground Rent
------------------- ---------------- -------------------
TOTAL GENERAL/UNALLOCATED
------------------- -------------------
(For CMSA files, Total Expenses = Dept.
Exp + General Exp.)
------------------- -------------------
OPERATING EXPENSE RATIO
------------------- -------------------
(=Departmental Revenue/(Dept. Exp. +
General Exp.))
------------------- -------------------
NET OPERATING INCOME
------------------- ---------------- -------------------
Capital Expenditures
------------------- ---------------- -------------------
Extraordinary Capital Expenditures
------------------- ---------------- -------------------
TOTAL CAPITAL ITEMS
------------------- -------------------
NET CASH FLOW
------------------- -------------------
DEBT SERVICE (PER SERVICER)
------------------- -------------------
NET CASH FLOW AFTER DEBT SERVICE
------------------- -------------------
DSCR: (NOI/DEBT SERVICE)
------------------- -------------------
DSCR: (NCF/DEBT SERVICE)
------------------------------------------------------------
SOURCE OF FINANCIAL DATA:
------------------------------------------------------------
(i.e.. operating statements, financial statements, tax return,
other)
------------------------------------------------------------------------------------------------------------------------------------
NOTES AND ASSUMPTIONS: This report should be completed annually for
"Normalization" of Borrower's numbers. Methodology used is per MBA/CMSA Standard
Methodology unless otherwise noted. The "Normalized" column and corresponding
comments should roll through to the Operating Statement Analysis Report.
INCOME: COMMENTS
EXPENSE: COMMENTS
CAPITAL ITEMS: COMMENTS
HEALTHCARE NOI ADJUSTMENT WORKSHEET
AS OF MM/DD/YY
====================================================================================================================================
PROPERTY OVERVIEW
------------------
Prospectus ID
------------------ ---------------- -------------------
Current Scheduled Loan Balance/Paid to Current Allocated Loan
Date Amount %
------------------ ---------------- -------------------
Property Name
------------------ ---------------- -------------------
Property Type
------------------------------------------------------------
Property Address, City, State
------------------------------------------------------------------------------------------
Net Rentable SF/Units/Pads, Beds Use second box to specify sqft.,units...
------------------ ----------------
Year Built/Year Renovated
------------------ ----------------
Cap Ex Reserve (annually)/per Unit. etc. specify annual/per
(1) unit...
------------------ ----------------
Year of Operations
------------------
Occupancy Rate (physical)
------------------
Occupancy Date
------------------
Average Rental Rate
------------------
(1) Total $ amount of Capital Reserves required annually by loan documents.
====================================================================================================================================
INCOME: YYYY NOTES
------------------- ---------------- -------------------
BORROWER ADJUSTMENT NORMALIZED
ACTUAL
------------------- ---------------- -------------------
Statement Classification
------------------- ---------------- -------------------
Gross Potential Rent (2)
------------------- ---------------- -------------------
Less: Vacancy Loss
------------------- ---------------- -------------------
OR
------------------- ---------------- -------------------
Private Pay (2)
------------------- ---------------- -------------------
Medicare/Medicaid
------------------- ---------------- -------------------
Nursing/Medical Income
------------------- ---------------- -------------------
Meals Income
------------------- ---------------- -------------------
Other Income
------------------- ---------------- -------------------
EFFECTIVE GROSS INCOME
------------------- ---------------- -------------------
(2) Use either Gross Potential (with Vacancy Loss) or Private
Pay/Medicare/Medicaid; use negative $ amt for Vacancy Loss
OPERATING EXPENSES:
------------------- ---------------- -------------------
Real Estate Taxes
------------------- ---------------- -------------------
Property Insurance
------------------- ---------------- -------------------
Utilities
------------------- ---------------- -------------------
Repairs and Maintenance
------------------- ---------------- -------------------
Management Fees
------------------- ---------------- -------------------
Payroll & Benefits
------------------- ---------------- -------------------
Advertising & Marketing
------------------- ---------------- -------------------
Professional Fees
------------------- ---------------- -------------------
General and Administrative
------------------- ---------------- -------------------
Room expense - housekeeping
------------------- ---------------- -------------------
Meal expense
------------------- ---------------- -------------------
Other Expenses
------------------- ---------------- -------------------
Ground Rent
------------------- ---------------- -------------------
TOTAL OPERATING EXPENSES
------------------- -------------------
OPERATING EXPENSE RATIO
------------------- -------------------
NET OPERATING INCOME
------------------- ---------------- -------------------
Capital Expenditures
------------------- ---------------- -------------------
Extraordinary Capital Expenditures
------------------- ---------------- -------------------
TOTAL CAPITAL ITEMS
------------------- ---------------- -------------------
NET CASH FLOW
------------------- -------------------
DEBT SERVICE (PER SERVICER)
------------------- -------------------
NET CASH FLOW AFTER DEBT SERVICE
------------------- -------------------
DSCR: (NOI/DEBT SERVICE)
------------------- -------------------
DSCR: (NCF/DEBT SERVICE)
------------------------------------------------------------
SOURCE OF FINANCIAL DATA:
------------------------------------------------------------
(i.e.. operating statements, financial statements, tax
return, other)
------------------------------------------------------------------------------------------------------------------------------------
NOTES AND ASSUMPTIONS: This report should be completed annually for
"Normalization" of Borrower's numbers. Methodology used is per MBA/CMSA Standard
Methodology unless otherwise noted. The "Normalized" column and corresponding
comments should roll through to the Operating Statement Analysis Report
INCOME: COMMENTS
EXPENSE: COMMENTS
CAPITAL ITEMS: COMMENTS
EXHIBIT L-12
FORM OF OPERATING STATEMENT ANALYSIS REPORT
COMMERCIAL OPERATING STATEMENT ANALYSIS REPORT
(INCLUDES RETAIL/OFFICE/INDUSTRIAL/WAREHOUSE/MIXED USE/SELF STORAGE)
AS OF MM/DD/YY
====================================================================================================================================
PROPERTY OVERVIEW
PROSPECTUS ID
----------------------------------------------------------------
Current Scheduled Loan Current Allocated Loan
Balance/Paid to Date Amount %
----------------------------------------------------------------------------------------
Property Name
----------------------------------------------------------------------------------------
Property Type
----------------------------------------------------------------------------------------
Property Address, City, State
----------------------------------------------------------------------------------------
Net Rentable -------------------------------------------Use second box to specify
SF/Units/Pads,Beds sqft.,units...
-------------------------------------------
Year Built/Year Renovated
-------------------------------------------
Cap Ex Reserve (annually)/per specify annual/per unit...
Unit.etc. (1)
----------------------------------------------------------------
Year of Operations UNDERWRITING MM/DD/YY MM/DD/YY MM/DD/YY MM/DD/YY
----------------------------------------------------------------
Occupancy Rate (physical)
----------------------------------------------------------------
Occupancy Date
----------------------------------------------------------------
Average Rental Rate
----------------------------------------------------------------
(1) Total $ amount of Capital Reserves required annually by loan documents, excl. Leasing
Commission and TI's
====================================================================================================================================
INCOME:
Number of Mos. Covered (prcdng yr (prcdng yr to
to base) 2nd prcdng)
-----------------------------------------------------------------------------------------------
Period Ended UNDERWRITING 3RD 2ND PRECEDING YR. TTM/YTD (2) YYYY-U/W YYYY-YYYY
PRECEDING PRECEDING (fm NOI Adj AS OF / /XX VARIANCE VARIANCE
Statement Classification(yr) BASE LINE Sheet)
----------------------------------------------------------------------------------------------
Gross Potential Rent (3)
----------------------------------------------------------------------------------------------
Less: Vacancy Loss
----------------------------------------------------------------------------------------------
OR
----------------------------------------------------------------------------------------------
Base Rent (3)
----------------------------------------------------------------------------------------------
Expense Reimbursement
----------------------------------------------------------------------------------------------
Percentage Rent
----------------------------------------------------------------------------------------------
Parking Income
----------------------------------------------------------------------------------------------
Other Income
----------------------------------------------------------------------------------------------
*EFFECTIVE GROSS INCOME
----------------------------------------------------------------------------------------------
(2) Servicer will not be expected to "Normalize" these YTD/TTM numbers.
(3) Use either Gross Potential (with Vacancy Loss) or Base Rents; use negative $amt for
Vacancy Loss
OPERATING EXPENSES:
----------------------------------------------------------------------------------------------
Real Estate Taxes
----------------------------------------------------------------------------------------------
Property Insurance
----------------------------------------------------------------------------------------------
Utilities
----------------------------------------------------------------------------------------------
Repairs and Maintenance
----------------------------------------------------------------------------------------------
Janitorial
----------------------------------------------------------------------------------------------
Management Fees
----------------------------------------------------------------------------------------------
Payroll & Benefits
----------------------------------------------------------------------------------------------
Advertising & Marketing
----------------------------------------------------------------------------------------------
Professional Fees
----------------------------------------------------------------------------------------------
General and Administrative
----------------------------------------------------------------------------------------------
Other Expenses
----------------------------------------------------------------------------------------------
Ground Rent
----------------------------------------------------------------------------------------------
*TOTAL OPERATING EXPENSES
----------------------------------------------------------------------------------------------
OPERATING EXPENSE RATIO
----------------------------------------------------------------------------------------------
*NET OPERATING INCOME
----------------------------------------------------------------------------------------------
Leasing Commissions
----------------------------------------------------------------------------------------------
Tenant Improvements
----------------------------------------------------------------------------------------------
Capital Expenditures
----------------------------------------------------------------------------------------------
Extraordinary Capital
Expenditures
----------------------------------------------------------------------------------------------
TOTAL CAPITAL ITEMS
----------------------------------------------------------------------------------------------
*NET CASH FLOW
----------------------------------------------------------------------------------------------
DEBT SERVICE (PER SERVICER)
----------------------------------------------------------------------------------------------
*NET CASH FLOW AFTER DEBT SERVICE
----------------------------------------------------------------------------------------------
*DSCR: (NOI/DEBT SERVICE)
----------------------------------------------------------------------------------------------
*DSCR: (NCF/DEBT SERVICE)
----------------------------------------------------------------------------------------------
SOURCE OF FINANCIAL DATA:
--------------------------------------------------
(ie. operating statements, financial statements, tax return, other)
-----------------------------------------------------------------------------------------------------------------------------------
NOTES AND ASSUMPTIONS: Years above will roll, always showing a 3yr sequential
history. Comments from the most recent NOI Adjustment Worksheet should be
carried forward to Operating Statement Analysis Report. Year-over-year variances
(either higher or lower) must be explained and noted for the following: >10%
DSCR CHANGE, >15% EGI/TOTAL OPERATING EXPENSES OR TOTAL CAPITAL ITEMS.
INCOME: COMMENTS
EXPENSE: COMMENTS
CAPITAL ITEMS: COMMENTS
* Used in the CMSA Comparative Financial Status Report/CMSA Property File/CMSA
Loan Periodic Update File. Note that information for multiple property loans
must be consolidated (if available) for reporting to the CMSA Loan Periodic
Update file.
MULTIFAMILY OPERATING STATEMENT ANALYSIS REPORT (includes Mobile Home Parks)
AS OF MM/DD/YY
====================================================================================================================================
PROPERTY OVERVIEW
----------------------------------------------------------------
Current Scheduled Loan Current Allocated Loan
Balance/Paid to Date Amount %
----------------------------------------------------------------------------------------
Property Name
----------------------------------------------------------------------------------------
Property Type
----------------------------------------------------------------------------------------
Property Address, City, State
----------------------------------------------------------------------------------------
Net Rentable -------------------------------------------Use second box to specify
SF/Units/Pads,Beds sqft.,units...
-------------------------------------------
Year Built/Year Renovated
-------------------------------------------
Cap Ex Reserve (annually)/per specify annual/per unit...
Unit.etc. (1)
----------------------------------------------------------------
Year of Operations UNDERWRITING MM/DD/YY MM/DD/YY MM/DD/YY MM/DD/YY
----------------------------------------------------------------
Occupancy Rate (physical)
----------------------------------------------------------------
Occupancy Date
----------------------------------------------------------------
Average Rental Rate
----------------------------------------------------------------
(1) Total $ amount of Capital Reserves required annually by loan documents, excl. Leasing
Commission and TI's
====================================================================================================================================
INCOME:
Number of Mos. Covered (prcdng yr (prcdng yr to
to base) 2nd prcdng)
-----------------------------------------------------------------------------------------------
Period Ended UNDERWRITING 3RD 2ND PRECEDING YR. TTM/YTD (2) YYYY-U/W YYYY-YYYY
PRECEDING PRECEDING (fm NOI Adj AS OF / /XX VARIANCE VARIANCE
Statement Classification(yr) BASE LINE Sheet)
----------------------------------------------------------------------------------------------
Gross Potential Rent (3)
----------------------------------------------------------------------------------------------
Less: Vacancy Loss
----------------------------------------------------------------------------------------------
OR
----------------------------------------------------------------------------------------------
Base Rent (3)
----------------------------------------------------------------------------------------------
Laundry/Vending Income
----------------------------------------------------------------------------------------------
Parking Income
----------------------------------------------------------------------------------------------
Other Income
----------------------------------------------------------------------------------------------
*EFFECTIVE GROSS INCOME
----------------------------------------------------------------------------------------------
(2) Servicer will not be expected to "Normalize" these YTD/TTM numbers.
(3) Use either Gross Potential (with Vacancy Loss) or Base Rents; use negative $amt for
Vacancy Loss
OPERATING EXPENSES:
----------------------------------------------------------------------------------------------
Real Estate Taxes
----------------------------------------------------------------------------------------------
Property Insurance
----------------------------------------------------------------------------------------------
Utilities
----------------------------------------------------------------------------------------------
Repairs and Maintenance
----------------------------------------------------------------------------------------------
Management Fees
----------------------------------------------------------------------------------------------
Payroll & Benefits
----------------------------------------------------------------------------------------------
Advertising & Marketing
----------------------------------------------------------------------------------------------
Professional Fees
----------------------------------------------------------------------------------------------
General and Administrative
----------------------------------------------------------------------------------------------
Other Expenses
----------------------------------------------------------------------------------------------
Ground Rent
----------------------------------------------------------------------------------------------
*TOTAL OPERATING EXPENSES
----------------------------------------------------------------------------------------------
OPERATING EXPENSE RATIO
----------------------------------------------------------------------------------------------
*NET OPERATING INCOME
----------------------------------------------------------------------------------------------
Capital Expenditures
----------------------------------------------------------------------------------------------
Extraordinary Capital
Expenditures
----------------------------------------------------------------------------------------------
TOTAL CAPITAL ITEMS
----------------------------------------------------------------------------------------------
*NET CASH FLOW
----------------------------------------------------------------------------------------------
DEBT SERVICE (PER SERVICER)
----------------------------------------------------------------------------------------------
*NET CASH FLOW AFTER DEBT SERVICE
----------------------------------------------------------------------------------------------
*DSCR: (NOI/DEBT SERVICE)
----------------------------------------------------------------------------------------------
*DSCR: (NCF/DEBT SERVICE)
----------------------------------------------------------------------------------------------
SOURCE OF FINANCIAL DATA:
--------------------------------------------------
(ie. operating statements, financial statements, tax return, other)
-----------------------------------------------------------------------------------------------------------------------------------
NOTES AND ASSUMPTIONS: Years above will roll, always showing a 3yr sequential
history. Comments from the most recent NOI Adjustment Worksheet should be
carried forward to Operating Statement Analysis Report. Year-over-year variances
(either higher or lower) must be explained and noted for the following: >10%
DSCR CHANGE, >15% EGI/TOTAL OPERATING EXPENSES OR TOTAL CAPITAL ITEMS.
INCOME: COMMENTS
EXPENSE: COMMENTS
CAPITAL ITEMS: COMMENTS
* Used in the CMSA Comparative Financial Status Report/CMSA Property File/CMSA
Loan Periodic Update File. Note that information for multiple property loans
must be consolidated (if available) for reporting to the CMSA Loan Periodic
Update file.
LODGING OPERATING STATEMENT ANALYSIS REPORT
AS OF MM/DD/YY
====================================================================================================================================
PROPERTY OVERVIEW
----------------------------------------------------------------
Current Scheduled Loan Current Allocated Loan
Balance/Paid to Date Amount %
----------------------------------------------------------------------------------------
Property Name
----------------------------------------------------------------------------------------
Property Type
----------------------------------------------------------------------------------------
Property Address, City, State
----------------------------------------------------------------------------------------
Net Rentable -------------------------------------------Use second box to specify
SF/Units/Pads,Beds sqft.,units...
-------------------------------------------
Year Built/Year Renovated
-------------------------------------------
Cap Ex Reserve (annually)/per specify annual/per unit...
Unit.etc. (1)
----------------------------------------------------------------
Year of Operations UNDERWRITING MM/DD/YY MM/DD/YY MM/DD/YY MM/DD/YY
----------------------------------------------------------------
Occupancy Rate (physical)
----------------------------------------------------------------
Occupancy Date
----------------------------------------------------------------
Average Daily Rate
----------------------------------------------------------------
Rev per Av. Room
----------------------------------------------------------------
(1) Total $ amount of Capital Reserves required annually by loan documents, excl. Leasing
Commission and TI's
====================================================================================================================================
INCOME:
Number of Mos. Covered (prcdng yr (prcdng yr to
to base) 2nd prcdng)
-----------------------------------------------------------------------------------------------
Period Ended UNDERWRITING 3RD 2ND PRECEDING YR. TTM/YTD (2) YYYY-U/W YYYY-YYYY
PRECEDING PRECEDING (fm NOI Adj AS OF / / VARIANCE VARIANCE
Statement Classification(yr) BASE LINE Sheet)
----------------------------------------------------------------------------------------------
Room Revenue
----------------------------------------------------------------------------------------------
Food & Beverage Revenues
----------------------------------------------------------------------------------------------
Telephone Revenue
----------------------------------------------------------------------------------------------
Other Departmental Revenue
----------------------------------------------------------------------------------------------
Other Income
----------------------------------------------------------------------------------------------
*DEPARTMENTAL REVENUE
----------------------------------------------------------------------------------------------
(2) Servicer will not be expected to "Normalize" these YTD/TTM numbers.
OPERATING EXPENSES:
DEPARTMENTAL
----------------------------------------------------------------------------------------------
Room
----------------------------------------------------------------------------------------------
Food & Beverage
----------------------------------------------------------------------------------------------
Telephone Expenses
----------------------------------------------------------------------------------------------
Other Dept. Expenses
----------------------------------------------------------------------------------------------
DEPARTMENTAL EXPENSES:
----------------------------------------------------------------------------------------------
DEPARTMENTAL INCOME:
----------------------------------------------------------------------------------------------
GENERAL/UNALLOCATED
----------------------------------------------------------------------------------------------
Real Estate Taxes
----------------------------------------------------------------------------------------------
Property Insurance
----------------------------------------------------------------------------------------------
Utilities
----------------------------------------------------------------------------------------------
Repairs and Maintenance
----------------------------------------------------------------------------------------------
Franchise Fee
----------------------------------------------------------------------------------------------
Management Fees
----------------------------------------------------------------------------------------------
Payroll & Benefits
----------------------------------------------------------------------------------------------
Advertising & Marketing
----------------------------------------------------------------------------------------------
Professional Fees
----------------------------------------------------------------------------------------------
General and Administrative
----------------------------------------------------------------------------------------------
Other Expenses
----------------------------------------------------------------------------------------------
Ground Rent
----------------------------------------------------------------------------------------------
TOTAL GENERAL/Unallocated
----------------------------------------------------------------------------------------------
(For CMSA files, Total Expenses =
Dept. Exp + General Exp.)
----------------------------------------------------------------------------------------------
OPERATING EXPENSE RATIO
----------------------------------------------------------------------------------------------
(=Departmental Revenue/
(Dept. Exp. + General Exp.))
----------------------------------------------------------------------------------------------
*NET OPERATING INCOME
----------------------------------------------------------------------------------------------
Capital Expenditures
----------------------------------------------------------------------------------------------
Extraordinary Capital
Expenditures ----------------------------------------------------------------------------------------------
TOTAL CAPITAL ITEMS
-----------------------------------------------------------------------------------------------
*NET CASH FLOW
----------------------------------------------------------------------------------------------
DEBT SERVICE (PER SERVICER)
----------------------------------------------------------------------------------------------
*NET CASH FLOW AFTER DEBT SERVICE
----------------------------------------------------------------------------------------------
*DSCR: (NOI/DEBT SERVICE)
----------------------------------------------------------------------------------------------
*DSCR: (NCF/DEBT SERVICE)
----------------------------------------------------------------------------------------------
SOURCE OF FINANCIAL DATA:
--------------------------------------------------
(ie. operating statements, financial statements, tax return, other)
-----------------------------------------------------------------------------------------------------------------------------------
NOTES AND ASSUMPTIONS: Years above will roll, always showing a 3yr sequential
history. Comments from the most recent NOI Adjustment Worksheet should be
carried forward to Operating Statement Analysis Report. Year-over-year variances
(either higher or lower) must be explained and noted for the following: >10%
DSCR CHANGE, >15% DEPT REVENUE, DEPT EXPENSES, GENERAL EXPENSES OR TOTAL CAPITAL
ITEMS.
INCOME: COMMENTS
EXPENSE: COMMENTS
CAPITAL ITEMS: COMMENTS
* Used in the CMSA Comparative Financial Status Report/CMSA Property File/CMSA
Loan Periodic Update File. Note that information for multiple property loans
must be consolidated (if available) for reporting to the CMSA Loan Periodic
Update file.
HEALTHCARE OPERATING STATEMENT ANALYSIS REPORT
AS OF MM/DD/YY
====================================================================================================================================
PROPERTY OVERVIEW
----------------------------------------------------------------
Current Scheduled Loan Current Allocated Loan
Balance/Paid to Date Amount %
----------------------------------------------------------------------------------------
Property Name
----------------------------------------------------------------------------------------
Property Type
----------------------------------------------------------------------------------------
Property Address, City, State
----------------------------------------------------------------------------------------
Net Rentable -------------------------------------------Use second box to specify
SF/Units/Pads,Beds sqft.,units...
-------------------------------------------
Year Built/Year Renovated
-------------------------------------------
Cap Ex Reserve (annually)/per specify annual/per unit...
Unit.etc. (1)
----------------------------------------------------------------
Year of Operations UNDERWRITING MM/DD/YY MM/DD/YY MM/DD/YY MM/DD/YY
----------------------------------------------------------------
Occupancy Rate (physical)
----------------------------------------------------------------
Occupancy Date
----------------------------------------------------------------
Rev per Av. Room
----------------------------------------------------------------
(1) Total $ amount of Capital Reserves required annually by loan documents, excl. Leasing
Commission and TI's
====================================================================================================================================
INCOME:
Number of Mos. Covered (prcdng yr (prcdng yr to
to base) 2nd prcdng)
-----------------------------------------------------------------------------------------------
Period Ended UNDERWRITING 3RD 2ND PRECEDING YR. TTM/YTD (2) YYYY-U/W YYYY-YYYY
PRECEDING PRECEDING (fm NOI Adj AS OF / / VARIANCE VARIANCE
Statement Classification(yr) BASE LINE Sheet)
----------------------------------------------------------------------------------------------
Gross Potential Rent (3)
----------------------------------------------------------------------------------------------
Less: Vacancy Loss
----------------------------------------------------------------------------------------------
OR
----------------------------------------------------------------------------------------------
Private Pay (3)
----------------------------------------------------------------------------------------------
Medicare/Medicaid
----------------------------------------------------------------------------------------------
Nursing/Medical Income
----------------------------------------------------------------------------------------------
Meals Income
----------------------------------------------------------------------------------------------
Other Income
----------------------------------------------------------------------------------------------
*EFFECTIVE GROSS INCOME
----------------------------------------------------------------------------------------------
(2) Servicer will not be expected to "Normalize" these YTD/TTM numbers.
(3) Use either Gross Potential (with Vacancy Loss) or Private Pay/Medicare/Medicaid; use
negative $amt for Vacancy Loss
OPERATING EXPENSES:
----------------------------------------------------------------------------------------------
Real Estate Taxes
----------------------------------------------------------------------------------------------
Property Insurance
----------------------------------------------------------------------------------------------
Utilities
----------------------------------------------------------------------------------------------
Repairs and Maintenance
----------------------------------------------------------------------------------------------
Management Fees
----------------------------------------------------------------------------------------------
Payroll & Benefits
----------------------------------------------------------------------------------------------
Advertising & Marketing
----------------------------------------------------------------------------------------------
Professional Fees
----------------------------------------------------------------------------------------------
General and Administrative
----------------------------------------------------------------------------------------------
Room expense - housekeeping
----------------------------------------------------------------------------------------------
Meal expense
----------------------------------------------------------------------------------------------
Other Expenses
----------------------------------------------------------------------------------------------
Ground Rent
----------------------------------------------------------------------------------------------
*TOTAL OPERATING EXPENSES
----------------------------------------------------------------------------------------------
OPERATING EXPENSE RATIO
----------------------------------------------------------------------------------------------
*NET OPERATING INCOME
----------------------------------------------------------------------------------------------
Capital Expenditures
----------------------------------------------------------------------------------------------
Extraordinary Capital
Expenditures
----------------------------------------------------------------------------------------------
TOTAL CAPITAL ITEMS
----------------------------------------------------------------------------------------------
*NET CASH FLOW
----------------------------------------------------------------------------------------------
DEBT SERVICE (PER SERVICER)
----------------------------------------------------------------------------------------------
*NET CASH FLOW AFTER DEBT SERVICE
----------------------------------------------------------------------------------------------
*DSCR: (NOI/DEBT SERVICE)
----------------------------------------------------------------------------------------------
*DSCR: (NCF/DEBT SERVICE)
----------------------------------------------------------------------------------------------
SOURCE OF FINANCIAL DATA:
--------------------------------------------------
(ie. operating statements, financial statements, tax return, other)
-----------------------------------------------------------------------------------------------------------------------------------
NOTES AND ASSUMPTIONS: Years above will roll, always showing a 3yr sequential
history. Comments from the most recent NOI Adjustment Worksheet should be
carried forward to Operating Statement Analysis Report. Year-over-year variances
(either higher or lower) must be explained and noted for the following: >10%
DSCR CHANGE, >15% EGI/TOTAL OPERATING EXPENSES OR TOTAL CAPITAL ITEMS.
INCOME: COMMENTS
EXPENSE: COMMENTS
CAPITAL ITEMS: COMMENTS
* Used in the CMSA Comparative Financial Status Report/CMSA Property File/CMSA
Loan Periodic Update File. Note that information for multiple property loans
must be consolidated (if available) for reporting to the CMSA Loan Periodic
Update file.
MULTI COMMERCIAL
FAMILY MULTI FAMILY COMMERCIAL COMMERCIAL INDUSTRIAL/ COMMERCIAL COMMERCIAL LODGING HEALTH CARE
-----------------------------------------------------------------------------------------------------
MULTI MOBILE HOME OFFICE RETAIL WAREHOUSE MIXED USE SELF STORAGE LODGING HEALTH CARE
FAMILY
-----------------------------------------------------------------------------------------------------
REVENUE LEGEND
---------------------------------------------------------------------------------------------------------------------------
GPR Gross Potential Rent X X X X X X X X
VAC Vacancy Loss X X X X X X X X
BR Base Rent X X X X X X X
ER Expense
Reimbursements X X X X
PR Percentage Rent X X
LV Laundry / Vending
Income X X
PI Parking Income X X X X
OI Other Income X X X X X X X X X
RMRV Room Revenue X
FBV Food & Xxx
Revenues X
TLRV Telephone Revenue X X
ODR Other Departmental
Revenue X
PRI Private Pay X
MED Medicare/Medicaid
Revenues X
NUR Nursing/Medical
Income X
MLS Meals Income X
[HEADING REPEATED]
MULTI COMMERCIAL
FAMILY MULTI FAMILY COMMERCIAL COMMERCIAL INDUSTRIAL/ COMMERCIAL COMMERCIAL LODGING HEALTH CARE
--------------------------------------------------------------------------------------------------------------
MULTI MOBILE HOME OFFICE RETAIL WAREHOUSE MIXED USE SELF STORAGE LODGING HEALTH CARE
FAMILY
--------------------------------------------------------------------------------------------------------------
REVENUE LINE ITEMS
----------------------------------------------------------------------------------------------------------------------------------
Application Fees OI OI OI OI OI OI OI ********* *********
----------------------------------------------------------------------------------------------------------------------------------
Bad Debt ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE
----------------------------------------------------------------------------------------------------------------------------------
Base Rent BR BR BR BR BR BR BR ********* *********
----------------------------------------------------------------------------------------------------------------------------------
Beverage Revenue ********* ********* ********* ********* ********* ********* ********* FBV *********
----------------------------------------------------------------------------------------------------------------------------------
Box & Lock Sales ********* ********* ********* ********* ********* ********* OI ********* *********
----------------------------------------------------------------------------------------------------------------------------------
Cable OI OI ********* ********* ********* ********* ********* ********* *********
----------------------------------------------------------------------------------------------------------------------------------
CAM ********* ********* ER ER ********* ER ********* ********* *********
----------------------------------------------------------------------------------------------------------------------------------
Club House Rental OI OI ********* ********* ********* ********* ********* ********* *********
----------------------------------------------------------------------------------------------------------------------------------
Concessions VAC VAC VAC VAC VAC VAC VAC ********* VAC
----------------------------------------------------------------------------------------------------------------------------------
Employee Rent BR BR ********* ********* ********* ********* ********* ********* *********
----------------------------------------------------------------------------------------------------------------------------------
Escalation Income ********* BR BR BR BR BR BR ********* *********
----------------------------------------------------------------------------------------------------------------------------------
Food & Beverage
Revenues ********* ********* ********* ********* ********* ********* ********* FBV MLS
----------------------------------------------------------------------------------------------------------------------------------
Forfeited Security
Deposits OI OI OI OI OI OI OI OI OI
----------------------------------------------------------------------------------------------------------------------------------
Gain on Sale ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE
----------------------------------------------------------------------------------------------------------------------------------
Garage PI PI PI PI ********* PI ********* OI OI
----------------------------------------------------------------------------------------------------------------------------------
Gross Potential
Rent GPR GPR GPR GPR GPR GPR GPR ********* GPR
----------------------------------------------------------------------------------------------------------------------------------
Gross Rent BR BR BR BR BR BR BR ********* *********
----------------------------------------------------------------------------------------------------------------------------------
Insurance Proceeds ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE
----------------------------------------------------------------------------------------------------------------------------------
Interest Income ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE
----------------------------------------------------------------------------------------------------------------------------------
Laundry LV LV ********* OI ********* OI ********* ********* *********
----------------------------------------------------------------------------------------------------------------------------------
Laundry / Vending LV LV ********* OI ********* OI ********* ********* *********
----------------------------------------------------------------------------------------------------------------------------------
Meals Income ********* ********* ********* ********* ********* ********* ********* ********* MLS
----------------------------------------------------------------------------------------------------------------------------------
Medicare/Medicaid
Revenues ********* ********* ********* ********* ********* ********* ********* ********* MED
----------------------------------------------------------------------------------------------------------------------------------
Miscellaneous
Income OI OI OI OI OI OI OI OI OI
----------------------------------------------------------------------------------------------------------------------------------
Mobile Home Sales ********* ELIMINATE ********* ********* ********* ********* ********* ********* *********
----------------------------------------------------------------------------------------------------------------------------------
NSF Fees OI OI OI OI OI OI OI OI OI
----------------------------------------------------------------------------------------------------------------------------------
Nursing/Medical ********* ********* ********* ********* ********* ********* ********* ********* NUR
----------------------------------------------------------------------------------------------------------------------------------
Other Departmental
Revenues ********* ********* ********* ********* ********* ********* ********* ODR *********
----------------------------------------------------------------------------------------------------------------------------------
Other Income OI OI OI OI OI OI OI OI OI
----------------------------------------------------------------------------------------------------------------------------------
Pad Rental ********* BR ********* ********* ********* ********* ********* ********* *********
----------------------------------------------------------------------------------------------------------------------------------
Parking Income PI PI PI PI OI PI OI OI OI
----------------------------------------------------------------------------------------------------------------------------------
Past Tenants Rent ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE
----------------------------------------------------------------------------------------------------------------------------------
Percentage Rent ********* ********* ********* PR ********* PR ********* ********* *********
----------------------------------------------------------------------------------------------------------------------------------
Prepaid Rent ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE
----------------------------------------------------------------------------------------------------------------------------------
Private Pay ********* ********* ********* ********* ********* ********* ********* ********* PRI
----------------------------------------------------------------------------------------------------------------------------------
Reimbursments OI OI ER ER ER ER ********* ********* *********
----------------------------------------------------------------------------------------------------------------------------------
Rent BR BR BR BR BR BR BR ********* *********
----------------------------------------------------------------------------------------------------------------------------------
Rent Loss ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE
----------------------------------------------------------------------------------------------------------------------------------
Rent on Park Owned
Homes ********* BR ********* ********* ********* ********* ********* ********* *********
----------------------------------------------------------------------------------------------------------------------------------
Room Revenue ********* ********* ********* ********* ********* ********* ********* RMRV *********
----------------------------------------------------------------------------------------------------------------------------------
Sales OI OI OI OI ********* ********* ********* ********* *********
----------------------------------------------------------------------------------------------------------------------------------
Security Deposits
Collected ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ********* *********
----------------------------------------------------------------------------------------------------------------------------------
Security Deposits
Returned ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ********* *********
----------------------------------------------------------------------------------------------------------------------------------
Storage OI OI OI OI OI OI OI ********* *********
----------------------------------------------------------------------------------------------------------------------------------
Tax Reimb ********* ********* ER ER ER ER ********* ********* *********
----------------------------------------------------------------------------------------------------------------------------------
Telephone
Commissions ********* ********* ********* ********* ********* ********* ********* TLRV *********
----------------------------------------------------------------------------------------------------------------------------------
Telephone Revenue ********* ********* ********* ********* ********* ********* ********* TLRV *********
----------------------------------------------------------------------------------------------------------------------------------
Temporary Tenants OI OI OI OI OI OI OI ********* *********
----------------------------------------------------------------------------------------------------------------------------------
Utilities ********* ********* ER ER ER ER ********* ********* *********
----------------------------------------------------------------------------------------------------------------------------------
Vacancy Loss VAC VAC VAC VAC VAC VAC VAC VAC VAC
----------------------------------------------------------------------------------------------------------------------------------
Vending LV LV OI OI OI OI OI OI OI
----------------------------------------------------------------------------------------------------------------------------------
MULTI COMMERCIAL
FAMILY MULTI FAMILY COMMERCIAL COMMERCIAL INDUSTRIAL/ COMMERCIAL COMMERCIAL LODGING HEALTH CARE
-----------------------------------------------------------------------------------------------------
MULTI MOBILE HOME OFFICE RETAIL WAREHOUSE MIXED USE SELF STORAGE LODGING HEALTH CARE
FAMILY
-----------------------------------------------------------------------------------------------------
EXPENSE LEGEND
---------------------------------------------------------------------------------------------------------------------------
RET Real Estate Taxes X X X X X X X X X
PINS Property Insurance X X X X X X X X X
UTL Utilities X X X X X X X X X
R&M Repairs and
Maintenance X X X X X X X X X
FFEE Franchise Fees X
JAN Janitorial X X X X
MFEE Management Fees X X X X X X X X X
P&B Payroll & Benefits X X X X X X X X X
A&M Advertising &
Marketing X X X X X X X X X
PFEE Professional Fees X X X X X X X X X
G&A General and
Administrative X X X X X X X X X
OEXP Other Expenses X X X X X X X X X
GDR Ground Rent X X X X X X X X X
RMSE Room Expense
(Departmental) X
RMSHK Room Expense-
Housekeeping X
F&B Food & Beverage
(Departmental) X
MLSE Meals Expense X
DTEL Telephone
(Departmental) X
ODE Other Departmental
Expense X
LC Leasing Comissions X X X X X
TI Tenant Improvements X X X X X
CAPEX Capital Expenditures X X X X X X X X X
ECAPEX Extraordinary Capital
Expenditures X X X X X X X X X
[HEADING REPEATED]
MULTI COMMERCIAL
FAMILY MULTI FAMILY COMMERCIAL COMMERCIAL INDUSTRIAL/ COMMERCIAL COMMERCIAL LODGING HEALTH CARE
--------------------------------------------------------------------------------------------------------------
MULTI MOBILE HOME OFFICE RETAIL WAREHOUSE MIXED USE SELF STORAGE LODGING HEALTH CARE
FAMILY
--------------------------------------------------------------------------------------------------------------
EXPENSE LINE ITEMS
-----------------------------------------------------------------------------------------------------------------------------------
401K P&B P&B P&B P&B P&B P&B P&B P&B P&B
-----------------------------------------------------------------------------------------------------------------------------------
Accounting Fees PFEE PFEE PFEE PFEE PFEE PFEE PFEE PFEE PFEE
-----------------------------------------------------------------------------------------------------------------------------------
Administrative Fee G&A G&A G&A G&A G&A G&A G&A G&A G&A
-----------------------------------------------------------------------------------------------------------------------------------
Advalorem Tax G&A G&A G&A G&A G&A G&A G&A G&A G&A
-----------------------------------------------------------------------------------------------------------------------------------
Advertising A&M A&M A&M A&M A&M A&M A&M A&M A&M
-----------------------------------------------------------------------------------------------------------------------------------
Advertising &
Marketing A&M A&M A&M A&M A&M A&M A&M A&M A&M
-----------------------------------------------------------------------------------------------------------------------------------
Alarm System G&A G&A G&A G&A G&A G&A G&A G&A G&A
-----------------------------------------------------------------------------------------------------------------------------------
Amortization ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE
-----------------------------------------------------------------------------------------------------------------------------------
Ancillary Expense OEXP OEXP OEXP OEXP OEXP OEXP OEXP OEXP OEXP
-----------------------------------------------------------------------------------------------------------------------------------
Answering Service G&A G&A G&A G&A G&A G&A G&A G&A G&A
-----------------------------------------------------------------------------------------------------------------------------------
Apartment Finder/
Guide A&M ********** ********** ********** ********** ********** ********** ********** **********
-----------------------------------------------------------------------------------------------------------------------------------
Asset Management
Fees MFEE MFEE MFEE MFEE MFEE MFEE MFEE MFEE MFEE
-----------------------------------------------------------------------------------------------------------------------------------
Auto Repairs G&A G&A G&A G&A G&A G&A G&A G&A G&A
-----------------------------------------------------------------------------------------------------------------------------------
Bad Debt ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE
-----------------------------------------------------------------------------------------------------------------------------------
Bank Charges G&A G&A G&A G&A G&A G&A G&A G&A G&A
-----------------------------------------------------------------------------------------------------------------------------------
Banners A&M A&M A&M A&M A&M A&M A&M A&M A&M
-----------------------------------------------------------------------------------------------------------------------------------
Bonuses P&B P&B P&B P&B P&B P&B P&B P&B P&B
-----------------------------------------------------------------------------------------------------------------------------------
Bookkeeping Fees PFEE PFEE PFEE PFEE PFEE PFEE PFEE PFEE PFEE
-----------------------------------------------------------------------------------------------------------------------------------
Brochures A&M A&M A&M A&M A&M A&M A&M A&M A&M
-----------------------------------------------------------------------------------------------------------------------------------
Business License G&A G&A G&A G&A G&A G&A G&A G&A G&A
-----------------------------------------------------------------------------------------------------------------------------------
Cable G&A G&A G&A G&A G&A G&A G&A G&A G&A
-----------------------------------------------------------------------------------------------------------------------------------
CAM R&M R&M R&M R&M R&M R&M R&M R&M R&M
-----------------------------------------------------------------------------------------------------------------------------------
Capital
Expenditures CAPEX CAPEX CAPEX CAPEX CAPEX CAPEX CAPEX CAPEX CAPEX
-----------------------------------------------------------------------------------------------------------------------------------
Cleaning R&M R&M JAN JAN JAN JAN R&M R&M RMSHK
-----------------------------------------------------------------------------------------------------------------------------------
Commissions G&A G&A G&A G&A G&A G&A G&A G&A G&A
-----------------------------------------------------------------------------------------------------------------------------------
Computer Repairs G&A G&A G&A G&A G&A G&A G&A G&A G&A
-----------------------------------------------------------------------------------------------------------------------------------
Contract Work P&B P&B P&B P&B P&B P&B P&B P&B P&B
-----------------------------------------------------------------------------------------------------------------------------------
Courtesy Patrol G&A G&A G&A G&A G&A G&A G&A G&A G&A
-----------------------------------------------------------------------------------------------------------------------------------
Credit Card Fees ********** ********** ********** ********** ********** ********** ********** G&A **********
-----------------------------------------------------------------------------------------------------------------------------------
Credit Check G&A G&A G&A G&A G&A G&A G&A G&A G&A
-----------------------------------------------------------------------------------------------------------------------------------
Depreciation ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE
-----------------------------------------------------------------------------------------------------------------------------------
Education G&A G&A G&A G&A G&A G&A G&A G&A G&A
-----------------------------------------------------------------------------------------------------------------------------------
Electrical R&M R&M R&M R&M R&M R&M R&M R&M R&M
-----------------------------------------------------------------------------------------------------------------------------------
Electricity UTL UTL UTL UTL UTL UTL UTL UTL UTL
-----------------------------------------------------------------------------------------------------------------------------------
Elevator R&M R&M R&M R&M R&M R&M R&M R&M R&M
-----------------------------------------------------------------------------------------------------------------------------------
Employee Benefits P&B P&B P&B P&B P&B P&B P&B P&B P&B
-----------------------------------------------------------------------------------------------------------------------------------
Employee Insurance P&B P&B P&B P&B P&B P&B P&B P&B P&B
-----------------------------------------------------------------------------------------------------------------------------------
Entertainment G&A G&A G&A G&A G&A G&A G&A G&A G&A
-----------------------------------------------------------------------------------------------------------------------------------
Eviction Expense G&A G&A G&A G&A G&A G&A G&A G&A G&A
-----------------------------------------------------------------------------------------------------------------------------------
Extraordinary
Capital
Expenditures ECAPEX ECAPEX ECAPEX ECAPEX ECAPEX ECAPEX ECAPEX ECAPEX ECAPEX
-----------------------------------------------------------------------------------------------------------------------------------
Exterminating
Service R&M R&M R&M R&M R&M R&M R&M R&M R&M
-----------------------------------------------------------------------------------------------------------------------------------
FF & E Reserve CAPEX CAPEX CAPEX CAPEX CAPEX CAPEX CAPEX CAPEX CAPEX
-----------------------------------------------------------------------------------------------------------------------------------
FICA P&B P&B P&B P&B P&B P&B P&B P&B P&B
-----------------------------------------------------------------------------------------------------------------------------------
Financing Fees ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE
-----------------------------------------------------------------------------------------------------------------------------------
Flood Insurance PINS PINS PINS PINS PINS PINS PINS PINS PINS
-----------------------------------------------------------------------------------------------------------------------------------
MULTI COMMERCIAL
FAMILY MULTI FAMILY COMMERCIAL COMMERCIAL INDUSTRIAL/ COMMERCIAL COMMERCIAL LODGING HEALTH CARE
--------------------------------------------------------------------------------------------------------------
MULTI MOBILE HOME OFFICE RETAIL WAREHOUSE MIXED USE SELF STORAGE LODGING HEALTH CARE
FAMILY
--------------------------------------------------------------------------------------------------------------
EXPENSE LINE ITEMS (CONTINUED)
----------------------------------------------------------------------------------------------------------------------------------
Floor Covering
Replacement R&M R&M R&M R&M R&M R&M R&M R&M R&M
-----------------------------------------------------------------------------------------------------------------------------------
Food & Beverage
Expense
(Departmental) ********** ********** ********** ********** ********** ********** ********** F&B **********
-----------------------------------------------------------------------------------------------------------------------------------
Franchise Fees ********** ********** ********** ********** ********** ********** ********** FFEE **********
-----------------------------------------------------------------------------------------------------------------------------------
Freight & Shipping G&A G&A G&A G&A G&A G&A G&A G&A G&A
-----------------------------------------------------------------------------------------------------------------------------------
Gas UTL UTL UTL UTL UTL UTL UTL UTL UTL
-----------------------------------------------------------------------------------------------------------------------------------
General &
Administrative G&A G&A G&A G&A G&A G&A G&A G&A G&A
-----------------------------------------------------------------------------------------------------------------------------------
Ground Rent GDR GDR GDR GDR GDR GDR GDR GDR GDR
-----------------------------------------------------------------------------------------------------------------------------------
Hazard Liability PINS PINS PINS PINS PINS PINS PINS PINS PINS
-----------------------------------------------------------------------------------------------------------------------------------
Health Benefits P&B P&B P&B P&B P&B P&B P&B P&B P&B
-----------------------------------------------------------------------------------------------------------------------------------
HVAC R&M R&M R&M R&M R&M R&M R&M R&M R&M
-----------------------------------------------------------------------------------------------------------------------------------
Insurance PINS PINS PINS PINS PINS PINS PINS PINS PINS
-----------------------------------------------------------------------------------------------------------------------------------
Interest ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE
-----------------------------------------------------------------------------------------------------------------------------------
Janitorial R&M R&M JAN JAN JAN JAN ********** ********** RMSHK
-----------------------------------------------------------------------------------------------------------------------------------
Land Lease GDR GDR GDR GDR GDR GDR GDR GDR GDR
-----------------------------------------------------------------------------------------------------------------------------------
Landscaping
(Exterior) R&M R&M R&M R&M R&M R&M R&M R&M R&M
-----------------------------------------------------------------------------------------------------------------------------------
Landscaping/Plants
(Interior) R&M R&M R&M R&M R&M R&M R&M R&M R&M
-----------------------------------------------------------------------------------------------------------------------------------
Leased Equipment G&A G&A G&A G&A G&A G&A G&A G&A G&A
-----------------------------------------------------------------------------------------------------------------------------------
Leasing Comissions ********** ********** LC LC LC LC LC ********** **********
-----------------------------------------------------------------------------------------------------------------------------------
Leasing Office
Expense G&A G&A G&A G&A G&A G&A G&A G&A G&A
-----------------------------------------------------------------------------------------------------------------------------------
Legal Fees PFEE PFEE PFEE PFEE PFEE PFEE PFEE PFEE PFEE
-----------------------------------------------------------------------------------------------------------------------------------
Licenses G&A G&A G&A G&A G&A G&A G&A G&A G&A
-----------------------------------------------------------------------------------------------------------------------------------
Life Insurance ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE
-----------------------------------------------------------------------------------------------------------------------------------
Life Safety G&A G&A G&A G&A G&A G&A G&A G&A G&A
-----------------------------------------------------------------------------------------------------------------------------------
Loan Prncipal ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE
-----------------------------------------------------------------------------------------------------------------------------------
Locks/Keys R&M R&M R&M R&M R&M R&M R&M R&M R&M
-----------------------------------------------------------------------------------------------------------------------------------
Maid Service R&M R&M JAN JAN JAN JAN ********** ********** RMSHK
-----------------------------------------------------------------------------------------------------------------------------------
Make Ready R&M R&M R&M R&M R&M R&M R&M R&M R&M
-----------------------------------------------------------------------------------------------------------------------------------
Management Fees MFEE MFEE MFEE MFEE MFEE MFEE MFEE MFEE MFEE
-----------------------------------------------------------------------------------------------------------------------------------
Manager Salaries P&B P&B P&B P&B P&B P&B P&B P&B P&B
-----------------------------------------------------------------------------------------------------------------------------------
Marketing A&M A&M A&M A&M A&M A&M A&M A&M A&M
-----------------------------------------------------------------------------------------------------------------------------------
Meals Expense ********** ********** ********** ********** ********** ********** ********** F&B MLSE
-----------------------------------------------------------------------------------------------------------------------------------
Mechanical R&M R&M R&M R&M R&M R&M R&M R&M R&M
-----------------------------------------------------------------------------------------------------------------------------------
Media Commissions A&M A&M A&M A&M A&M A&M A&M A&M A&M
-----------------------------------------------------------------------------------------------------------------------------------
Mileage G&A G&A G&A G&A G&A G&A G&A G&A G&A
-----------------------------------------------------------------------------------------------------------------------------------
Miscellaneous OEXP OEXP OEXP OEXP OEXP OEXP OEXP OEXP OEXP
-----------------------------------------------------------------------------------------------------------------------------------
Miscellaneous
G & A G&A G&A G&A G&A G&A G&A G&A G&A G&A
-----------------------------------------------------------------------------------------------------------------------------------
Model Apartment G&A ********** ********** ********** ********** ********** ********** ********** **********
-----------------------------------------------------------------------------------------------------------------------------------
Newspaper A&M A&M A&M A&M A&M A&M A&M A&M A&M
-----------------------------------------------------------------------------------------------------------------------------------
Office Supplies G&A G&A G&A G&A G&A G&A G&A G&A G&A
-----------------------------------------------------------------------------------------------------------------------------------
Other Departmental
Expense ********** ********** ********** ********** ********** ********** ********** ODE **********
-----------------------------------------------------------------------------------------------------------------------------------
Other Expenses OEXP OEXP OEXP OEXP OEXP OEXP OEXP OEXP OEXP
-----------------------------------------------------------------------------------------------------------------------------------
Owners Draw ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE
-----------------------------------------------------------------------------------------------------------------------------------
Painting R&M R&M R&M R&M R&M R&M R&M R&M R&M
-----------------------------------------------------------------------------------------------------------------------------------
Parking Lot R&M R&M R&M R&M R&M R&M R&M R&M R&M
-----------------------------------------------------------------------------------------------------------------------------------
Partnership Fees ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE ELIMINATE
-----------------------------------------------------------------------------------------------------------------------------------
Payroll & Benefits P&B P&B P&B P&B P&B P&B P&B P&B P&B
-----------------------------------------------------------------------------------------------------------------------------------
Payroll Taxes P&B P&B P&B P&B P&B P&B P&B P&B P&B
-----------------------------------------------------------------------------------------------------------------------------------
Permits G&A G&A G&A G&A G&A G&A G&A G&A G&A
-----------------------------------------------------------------------------------------------------------------------------------
Personal Property
Taxes G&A G&A G&A G&A G&A G&A G&A G&A G&A
-----------------------------------------------------------------------------------------------------------------------------------
Pest Control R&M R&M R&M R&M R&M R&M R&M R&M R&M
-----------------------------------------------------------------------------------------------------------------------------------
Plumbing R&M R&M R&M R&M R&M R&M R&M R&M R&M
-----------------------------------------------------------------------------------------------------------------------------------
Pool R&M R&M ********** ********** ********** R&M ********** R&M R&M
-----------------------------------------------------------------------------------------------------------------------------------
Postage G&A G&A G&A G&A G&A G&A G&A G&A G&A
-----------------------------------------------------------------------------------------------------------------------------------
Printing G&A G&A G&A G&A G&A G&A G&A G&A G&A
-----------------------------------------------------------------------------------------------------------------------------------
Professional Fees PFEE PFEE PFEE PFEE PFEE PFEE PFEE PFEE PFEE
-----------------------------------------------------------------------------------------------------------------------------------
Promotions A&M A&M A&M A&M A&M A&M A&M A&M A&M
-----------------------------------------------------------------------------------------------------------------------------------
Property Insurance PINS PINS PINS PINS PINS PINS PINS PINS PINS
-----------------------------------------------------------------------------------------------------------------------------------
Real Estate Taxes RET RET RET RET RET RET RET RET RET
-----------------------------------------------------------------------------------------------------------------------------------
Repair Escrow CAPEX CAPEX CAPEX CAPEX CAPEX CAPEX CAPEX CAPEX CAPEX
-----------------------------------------------------------------------------------------------------------------------------------
Repairs &
Maintenance R&M R&M R&M R&M R&M R&M R&M R&M R&M
-----------------------------------------------------------------------------------------------------------------------------------
Room Expense
(Departmental) ********** ********** ********** ********** ********** ********** ********** RMSE **********
-----------------------------------------------------------------------------------------------------------------------------------
Room Expense-
Housekeeping ********** ********** ********** ********** ********** ********** ********** RMSE RMSHK
-----------------------------------------------------------------------------------------------------------------------------------
Rubbish Removal R&M R&M R&M R&M R&M R&M R&M R&M R&M
-----------------------------------------------------------------------------------------------------------------------------------
Salaries P&B P&B P&B P&B P&B P&B P&B P&B P&B
-----------------------------------------------------------------------------------------------------------------------------------
Scavenger R&M R&M R&M R&M R&M R&M R&M R&M R&M
-----------------------------------------------------------------------------------------------------------------------------------
Security G&A G&A G&A G&A G&A G&A G&A G&A G&A
-----------------------------------------------------------------------------------------------------------------------------------
Sewer UTL UTL UTL UTL UTL UTL UTL UTL UTL
-----------------------------------------------------------------------------------------------------------------------------------
Signage A&M A&M A&M A&M A&M A&M A&M A&M A&M
-----------------------------------------------------------------------------------------------------------------------------------
Snow Removal R&M R&M R&M R&M R&M R&M R&M R&M R&M
-----------------------------------------------------------------------------------------------------------------------------------
Subscribtions/Dues G&A G&A G&A G&A G&A G&A G&A G&A G&A
-----------------------------------------------------------------------------------------------------------------------------------
Telephone G&A G&A G&A G&A G&A G&A G&A ********** G&A
-----------------------------------------------------------------------------------------------------------------------------------
Telephone
(Departmental) ********** ********** ********** ********** ********** ********** ********** DTEL **********
-----------------------------------------------------------------------------------------------------------------------------------
Temporary Help P&B P&B P&B P&B P&B P&B P&B P&B P&B
-----------------------------------------------------------------------------------------------------------------------------------
MULTI COMMERCIAL
FAMILY MULTI FAMILY COMMERCIAL COMMERCIAL INDUSTRIAL/ COMMERCIAL COMMERCIAL LODGING HEALTH CARE
--------------------------------------------------------------------------------------------------------------
MULTI MOBILE HOME OFFICE RETAIL WAREHOUSE MIXED USE SELF STORAGE LODGING HEALTH CARE
FAMILY
--------------------------------------------------------------------------------------------------------------
EXPENSE LINE ITEMS (CONTINUED)
----------------------------------------------------------------------------------------------------------------------
Tenant
Improvements ********** ********** TI TI TI TI TI ********** **********
-----------------------------------------------------------------------------------------------------------------------------------
Trash Removal UTL UTL UTL UTL UTL UTL UTL UTL UTL
-----------------------------------------------------------------------------------------------------------------------------------
Travel G&A G&A G&A G&A G&A G&A G&A G&A G&A
-----------------------------------------------------------------------------------------------------------------------------------
Turnover R&M R&M TI TI TI TI TI ********** R&M
-----------------------------------------------------------------------------------------------------------------------------------
Unemployement
Insurance P&B P&B P&B P&B P&B P&B P&B P&B P&B
-----------------------------------------------------------------------------------------------------------------------------------
Uniform Service G&A G&A G&A G&A G&A G&A G&A G&A G&A
-----------------------------------------------------------------------------------------------------------------------------------
Utilities UTL UTL UTL UTL UTL UTL UTL UTL UTL
-----------------------------------------------------------------------------------------------------------------------------------
Utility Vehicle G&A G&A G&A G&A G&A G&A G&A G&A G&A
-----------------------------------------------------------------------------------------------------------------------------------
Vehicle Lease G&A G&A G&A G&A G&A G&A G&A G&A G&A
-----------------------------------------------------------------------------------------------------------------------------------
Water UTL UTL UTL UTL UTL UTL UTL UTL UTL
-----------------------------------------------------------------------------------------------------------------------------------
Worker's Comp P&B P&B P&B P&B P&B P&B P&B P&B P&B
-----------------------------------------------------------------------------------------------------------------------------------
Yellow Pages A&M A&M A&M A&M A&M A&M A&M A&M A&M
-----------------------------------------------------------------------------------------------------------------------------------
EXHIBIT L-13
FORM OF REO STATUS REPORT
CMSA INVESTOR REPORTING PACKAGE
REO STATUS REPORT
AS OF ______________
(PROPERTY LEVEL REPORT)
Operating Information Reflected As NOI______ or XXX_______
X00 XX
X0 X0 X00 X0 X00 X00 X0 P21 L37 L39 L38 L25
-----------------------------------------------------------------------------------------------------------------------------
(a) (b) (c) (d) (e)=a+b+c+d
-----------------------------------------------------------------------------------------------------------------------------
ALLOCATED
ENDING OTHER
SQ FT PAID SCHEDULED TOTAL P&I EXPENSE TOTAL T & CURRENT
PROPERTY PROPERTY PROPERTY CITY STATE OR THRU LOAN ADVANCES ADVANCE I ADVANCE TOTAL MONTHLY
ID NAME TYPE UNITS DATE AMOUNT OUTSTANDING OUTSTANDING OUTSTANDING EXPOSURE P&I
-----------------------------------------------------------------------------------------------------------------------------
[TABLE CONTINUED]
P53 OR P58 OR X00/X00
X0 X00 X00 XX X00 X00 X00 L99 L77 P28
-----------------------------------------------------------------------------------------------------------------------------
(f) (g) (h)=(.90*g)-e
-----------------------------------------------------------------------------------------------------------------------------
APPRAISAL
BPO OR APPRAISAL TOTAL
LTM INTERNAL BPO OR LOSS USING APPRAISAL REO
PROPERTY MATURITY NOI/NCF LTM DSCR VALUATION VALUE INTERNAL 90% APPR. REDUCTION TRANSFER ACQUISITION
ID DATE DATE (NOI/NCF) DATE SOURCE (1) VALUE OR BPO (F) REALIZED DATE DATE
-----------------------------------------------------------------------------------------------------------------------------
[TABLE CONTINUED]
P4 P26
-----------------------------
-----------------------------
DATE
ASSET
EXPECTED
PROPERTY TO BE
ID RESOLVED COMMENTS
-----------------------------
----------------------------------
REO's data reflected at the property level for relationships with more than one
(1) property should use the Allocated Ending Scheduled Loan Amount, and prorate
all advances and expenses or other loan level data as appropriate. (1) Use the
following codes; App. - Appraisal, BPO - Brokers Opinion, Int - Internal Value.
EXHIBIT L-14
FORM OF UPDATED COLLECTION REPORT
UPDATED COLLECTION REPORT
Servicer
Wachovia Bank, National Association
For the Collection Period Ending:
Servicer Remittance Date
UPDATED COLLECTION REPORT
----------------- ----------------- -------------- --------------- --------------- -------------- --------------- ------------------
PRIMARY PROSPECTUS LOAN PRIMARY LOAN SCHEDULED SCHEDULED CURRENT CURRENT
SERVICER ID NUMBER NUMBER PRINCIPAL INTEREST PRINCIPAL INTEREST PAID TO DATE AT
AMOUNT AMOUNT ADVANCE ADVANCE DETERMINATION
----------------- ----------------- -------------- --------------- --------------- -------------- --------------- ------------------
------------------------------------------------------------------------------------------------------------------------------------
[TABLE CONTINUED]
-------------------------------- --------------- --------------- -------------- --------------- ---------------
PRIMARY UPDATED PAID PRIMARY SUB SERVICER MASTER
SERVICER ID TO DATE SERVICER FEES FEES SERVICER FEES RETAINED FEES NET ADVANCE
-------------------------------- --------------- --------------- -------------- --------------- ---------------
---------------------------------------------------------------------------------------------------------------
EXHIBIT L-15
SERVICER WATCHLIST CRITERIA
PROPERTY TYPE: GENERAL
------------------------------------------------------------------------------------------------------------------------------------
REFERENCE
------------------------------------------------------------------------------------------------------------------------------------
CODE CRITERIA TRIGGER LEVEL ON TRIGGER LEVEL OFF
------------------------------------------------------------------------------------------------------------------------------------
FINANCIAL CONDITIONS
------------------------------------------------------------------------------------------------------------------------------------
1 A Delinquent Payments 2 payments 3 payments received
------------------------------------------------------------------------------------------------------------------------------------
1 B Delinquent Taxes (Amount, Uncured x days, etc.) 30 days after delinquent Taxes paid in full by
due date the borrower
------------------------------------------------------------------------------------------------------------------------------------
1 C Delinquent or Forced Placed Insurance Delinquent-Day after Due Insurance is paid in
and FP is immediately full by the borrower
------------------------------------------------------------------------------------------------------------------------------------
1 D Outstanding servicing advances (excludes P & I) > 30 days No outstanding servicing
advances
------------------------------------------------------------------------------------------------------------------------------------
1 E DSCR less than or equal to > 1.10x [Lodging and
1.10x (other than Healthcare would be >
CTLs, < 1.0 x) [Lodging 1.20x] (CTLs equal or
and Healthcare would be greater than 1.0 x)
equal or < 1.20x]
------------------------------------------------------------------------------------------------------------------------------------
1 F DSCR decrease from Origination equal or < 1.50x and greater than 85% of UW DSCR
equal or < 85% of UW DSCR
------------------------------------------------------------------------------------------------------------------------------------
1 G Defaulted or matured senior lien Immediately Cured
------------------------------------------------------------------------------------------------------------------------------------
1 H Any unplanned draw on a Letter of Credit or any Immediately Letter of Credit or debt
draw on a reserve to pay debt service unless the service reserve is
draw on the Letter if Credit or reserve is restored (if applicable)
permitted due to the seasonal nature of the related and the borrower has
property. made three consecutive
payments.
------------------------------------------------------------------------------------------------------------------------------------
BORROWER ISSUES
------------------------------------------------------------------------------------------------------------------------------------
2 A Required repairs not finished by due date 30 Days after due Date Completion of required
repairs
------------------------------------------------------------------------------------------------------------------------------------
2 B O & M plan deficiencies Immediately Cure deficiencies
------------------------------------------------------------------------------------------------------------------------------------
2 C Occurrence of trigger event in documents Immediately Cure of the event that
required action under
the mortgage loan
documents, or satisfying
such mortgage loan
provisions or after 6
consecutive monthly
payments
------------------------------------------------------------------------------------------------------------------------------------
2 D Failure to remit operating statements or rent rolls 60 days after the time Statement received or
period provided in the next statement frequency
loan documents received that covers
period of missing
statement.
------------------------------------------------------------------------------------------------------------------------------------
2 E Ground lease default Immediately Cured
------------------------------------------------------------------------------------------------------------------------------------
2 F Expiration of groundlease within 6 months Immediately New lease or option has
been exercised
------------------------------------------------------------------------------------------------------------------------------------
2 G Franchise default or operating license default Immediately New franchise or license
in place
------------------------------------------------------------------------------------------------------------------------------------
2 H Poor Survey for Skilled Care or Assisted Living Immediately Cured
Facility
------------------------------------------------------------------------------------------------------------------------------------
PROPERTY CONDITION ISSUES
------------------------------------------------------------------------------------------------------------------------------------
4 A Prohibited collateral inspection access Immediately Site inspection is
completed
------------------------------------------------------------------------------------------------------------------------------------
4 B Inspection reveals below average, poor or Immediately Cure problem indicated
unsatisfactory condition by the inspection
------------------------------------------------------------------------------------------------------------------------------------
4 C Inspection reveals potentially harmful Immediately Cure problem indicated
environmental issue by the inspection
------------------------------------------------------------------------------------------------------------------------------------
4 D Property affected by major casualty or condemnation Immediately Cured (transferred to SS
proceeding affecting future cashflows or payoff)
------------------------------------------------------------------------------------------------------------------------------------
LEASE ROLLOVER, TENANT ISSUES AND VACANCY
------------------------------------------------------------------------------------------------------------------------------------
5 A Physical Occupancy (relative basis) equal to or > 15% less > 85% of occupancy at
than at origination Origination
------------------------------------------------------------------------------------------------------------------------------------
5 B EGI from Origination (For Hotel use REV PAR) equal to or > 15% less > 85% of EGI or REV PAR
than at Origination & equal for Hotel
or < 1.50 DSCR
[For Lodging, use Rev Par]
------------------------------------------------------------------------------------------------------------------------------------
5 C Leases expiring within next 12 months equal to or > 20% of Tenant spaces have been
net rentable area leased
------------------------------------------------------------------------------------------------------------------------------------
5 D Bankruptcy of major tenant (if Healthcare include equal to or > 20% of The existing tenant
Master Lease or of Management Company) net rentable area comes out of bankruptcy
or a new tenant is in
place.
------------------------------------------------------------------------------------------------------------------------------------
5 E Tenant lease is in default, terminated or is dark equal or > 20% of net rentable New lease signed
equal or area
------------------------------------------------------------------------------------------------------------------------------------
MATURITY MATURITY
------------------------------------------------------------------------------------------------------------------------------------
6 A Pending loan maturity equal or < 90 days Loan is extended or paid
off in full
------------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------
ASSUMPTIONS:
---------------------------------------------------------------
1 Major Tenants include top 5 tenants and or tenants
representing equal or > 20%NRA
---------------------------------------------------------------
2 All Servicers will use TTM or Annual or Normalized
Annualized (if YTD statements)
---------------------------------------------------------------
No YTD or Quarterly will be used for Watch List purposes.
---------------------------------------------------------------
EXHIBIT M
FORM OF TRANSFER CERTIFICATE FOR
RULE 144A BOOK-ENTRY CERTIFICATE TO REGULATION S
BOOK-ENTRY CERTIFICATE AFTER RESTRICTED PERIOD
(PURSUANT TO SECTION 5.02(B) OF THE POOLING AND SERVICING AGREEMENT)
LaSalle Bank National Association
as Certificate Registrar
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset-Backed Securities Trust Services Group-
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2002-C2
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Re: Transfer of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2002-C2,
Class____
-------------------------------------------------------------------
Ladies and Gentlemen:
Reference is hereby made to the Pooling and Servicing Agreement,
dated as of December 1, 2002 (the "Pooling and Servicing Agreement"), by and
among X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., as Depositor,
Wachovia Bank, National Association, as Servicer, ARCap Special Servicing, Inc.,
as Special Servicer, LaSalle Bank National Association, as Paying Agent and
Xxxxx Fargo Bank Minnesota, N.A., as Trustee, on behalf of the holders of X.X.
Xxxxxx Chase Commercial Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 2002-C2. Capitalized terms used but not
defined herein shall have the meanings given to them in the Pooling and
Servicing Agreement.
This letter relates to US $________ aggregate [Certificate Balance]
[Notional Amount] of Certificates (the "Certificates") which are held in the
form of the Rule 144A Book-Entry Certificate (CUSIP No. ________) with the
Depository in the name of [insert name of transferor] (the "Transferor"). The
Transferor has requested a transfer of such beneficial interest in the
Certificates for an interest in the Regulation S Book-Entry Certificate (Common
Code No. _____).
In connection with such request, and in respect of such
Certificates, the Transferor does hereby certify that such transfer has been
effected in accordance with the transfer restrictions set forth in the Pooling
and Servicing Agreement and, (i) with respect to transfers made in reliance on
Regulation S under the Securities Act of 1933, as amended (the "Securities
Act"), the Transferor does hereby certify that:
(1) the offer of the Certificates was not made to a person in the
United States;
(2) [at the time the buy order was originated, the transferee was
outside the United States or the Transferor and any person acting on
its behalf reasonably believed that the transferee was outside the
United States] [the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither
the Transferor nor any person acting on its behalf knows that the
transaction was pre-arranged with a buyer in the United States];*
(3) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as
applicable; and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act,
or (ii) with respect to transfers made in reliance on Rule 144 under the
Securities Act, the Transferor does hereby certify that the Certificates that
are being transferred are not "restricted securities" as defined in Rule 144
under the Securities Act.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Paying Agent,
the Servicer and the Special Servicer.
[Insert Name of Transferor]
By:
---------------------------------------
Name:
Title:
Dated:
------------------------------
* Insert one of these two provisions, which come from the definition of
"off-shore transaction" in Regulation S.
EXHIBIT N
FORM OF TRANSFER CERTIFICATE FOR
REGULATION S BOOK-ENTRY CERTIFICATE
TO RULE 144A GLOBAL BOOK-ENTRY CERTIFICATE
DURING RESTRICTED PERIOD
(PURSUANT TO SECTION 5.02(B) OF THE POOLING AND SERVICING AGREEMENT)
LaSalle Bank National Association
as Certificate Registrar
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset-Backed Securities Trust Services Group-
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2002-C2
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Re: Transfer of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2002-C2,
Class__
-------------------------------------------------------------------
Ladies and Gentlemen:
Reference is hereby made to the Pooling and Servicing Agreement,
dated as of December 1, 2002 (the "Pooling and Servicing Agreement"), by and
among X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., as Depositor,
Wachovia Bank, National Association, as Servicer, ARCap Special Servicing, Inc.,
as Special Servicer, LaSalle Bank National Association, as Paying Agent and
Xxxxx Fargo Bank Minnesota, N.A., as Trustee, on behalf of the holders of X.X.
Xxxxxx Chase Commercial Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 2002-C2. Capitalized terms used but not
defined herein shall have the meanings given to them in the Pooling and
Servicing Agreement.
This letter relates to US $________ aggregate [Certificate Balance]
[Notional Amount] of Certificates (the "Certificates") which are held in the
form of the Regulation S Book-Entry Certificate (CUSIP No. _______) with
[Euroclear] [Clearstream]* (Common Code No.__________) through the Depository in
the name of [insert name of transferor] (the "Transferor"). The Transferor has
requested a transfer of such beneficial interest in the Certificates for an
interest in the Regulation 144A Book-Entry Certificate (CUSIP No.____________).
-----------------------------
* Select appropriate depository.
In connection with such request, and in respect of such
Certificates, the Transferor does hereby certify that such Certificates are
being transferred in accordance with (i) the transfer restrictions set forth in
the Pooling and Servicing Agreement and (ii) Rule 144A under the Securities Act
to a transferee that the Transferor reasonably believes is purchasing the
Certificates for its own account with respect to which the transferee exercises
sole investment discretion and the transferee and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A, in each case in
a transaction meeting the requirements of Rule 144A and in accordance with any
applicable securities laws of any state of the United States or any
jurisdiction.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Paying Agent,
the Servicer, the Special Servicer and Initial Purchasers of the offering of the
Certificates.
[Insert Name of Transferor]
By:
------------------------------------------
Name:
Title:
Dated:
EXHIBIT O
FORM OF TRANSFER CERTIFICATE FOR REGULATION S
BOOK-ENTRY CERTIFICATE DURING THE RESTRICTED PERIOD
LaSalle Bank National Association
as Certificate Registrar
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset-Backed Securities Trust Services Group-
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2002-C2
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Re: Transfer of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2002-C2,
Class__
-------------------------------------------------------------------
Ladies and Gentlemen:
This certificate is delivered pursuant to Section 5.02(b) of the
Pooling and Servicing Agreement, dated as of December 1, 2002 (the "Pooling and
Servicing Agreement"), by and among X.X. Xxxxxx Chase Commercial Mortgage
Securities Corp., as Depositor, Wachovia Bank, National Association, as
Servicer, ARCap Special Servicing, Inc., as Special Servicer, LaSalle Bank
National Association, as Paying Agent and Xxxxx Fargo Bank Minnesota, N.A., as
Trustee, on behalf of the holders of X.X. Xxxxxx Chase Commercial Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates, Series 2002-C2
in connection with the transfer by _______________ of a beneficial interest of
$___________ [Certificate Balance] [Notional Amount] in a Book-Entry Certificate
during the Restricted Period to the undersigned (the "Transferee"). The
Transferee desires to beneficially own such transferred interest in the form of
the Regulation S Book-Entry Certificate. Capitalized terms used but not defined
herein shall have the meanings given to them in the Pooling and Servicing
Agreement.
In connection with such transfer, the Transferee does hereby certify
that it is not a "U.S. Person" (within the meaning of Rule 902 Regulation S
under the Securities Act of 1933, as amended). This certificate and the
statements contained herein are made for your benefit and the benefit of the
Depositor, the Trustee, the Paying Agent, the Servicer and the Special Servicer.
[Insert Name of Transferee]
By:
------------------------------------
Name:
Title:
Dated:
EXHIBIT P
FORM CERTIFICATION TO BE
PROVIDED WITH FORM 10-K
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates
Series 2002-C2 (the "Trust")
I, [identify the certifying individual], certify that:
1. I have reviewed this annual report on Form 10-K, and all reports on
Form 8-K containing distribution date reports filed in respect of
periods included in the year covered by this annual report, of the
Trust;
2. Based on my knowledge, the information in these reports, taken as a
whole, does not contain any untrue statement of a material fact or omit
to state a material fact necessary to make the statements made, in
light of the circumstances under which such statements were made, not
misleading as of the last day of the period covered by this annual
report;
3. Based on my knowledge, the servicing information required to be
provided to the trustee by the servicer and the special servicer under
the pooling and servicing agreement is included in these reports;
4. I am responsible for reviewing the activities performed by the servicer
and the special servicer under the pooling and servicing agreement and
based upon the review required under the pooling and servicing
agreement, and except as disclosed in the report, the servicer have
fulfilled their obligations under the pooling and servicing agreement;
and
5. I have disclosed to the Trust's certified public accountants all
significant deficiencies relating to the servicer's or special
servicer's compliance with the minimum servicing standards in
accordance with a review conducted in compliance with the Uniform
Single Attestation Program for Mortgage Bankers or similar standard as
set forth in the pooling and servicing agreement.
Date: ---------------------------------
---------------------------------------
[Signature]
[Title]
EXHIBIT Q
FORM OF CERTIFICATION TO BE
PROVIDED TO DEPOSITOR
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates
Series 2002-C2 (the "Trust")
I, [identify the certifying individual], certify to X.X. Xxxxxx
Xxxxx Commercial Mortgage Securities Corp.[and LaSalle Bank National
Association, as paying agent] [add for certifications signed by an officer of
the Servicer], [add for certifications signed by an officer of the Special
Servicer] and [its][their] [add for certifications signed by an officer of the
Servicer] [add for certifications signed by an officer of the Special Servicer]
officers, directors and affiliates, and with the knowledge and intent that they
will rely upon this certification, that:
1. [To be certified by the Paying Agent] [I have reviewed the
annual report on Form 10-K for the fiscal year [___], and all
reports on Form 8-K containing distribution date reports filed
in respect of periods included in the year covered by that
annual report, of the Trust;]
2. [To be certified by the Paying Agent] [Based on my knowledge,
the [distribution [for Paying Agent]/servicing [for Servicer]]
information in these reports, taken as a whole, does not
contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements made,
in light of the circumstances under which such statements were
made, not misleading as of the last day of the period covered
by that annual report;]
3. [To be certified by the Paying Agent] [Based on my knowledge,
the [distribution [for Paying Agent]/servicing [for Servicer]]
information required to be provided under the pooling and
servicing agreement is included in these reports;]
4. [To be certified by the Servicer] [I am responsible for
reviewing the activities performed by the servicer under the
pooling and servicing agreement and based upon the review
required under the pooling and servicing agreement, and except
as disclosed in the report, the servicer has fulfilled its
obligations under the pooling and servicing agreement; and]
5. [To be certified by the Servicer] [I have disclosed to the
Trust's certified public accountants all significant
deficiencies relating to the servicer's compliance with the
minimum servicing standards in accordance with a review
conducted in compliance with the Uniform Single Attestation
Program for Mortgage Bankers or similar standard as set forth
in the pooling and servicing agreement.]
6. [To be certified by the Special Servicer] [I am responsible
for reviewing the activities performed by the special servicer
under the pooling and servicing agreement and based upon the
review required under the pooling and servicing agreement, and
except as disclosed in the report, the special servicer has
fulfilled its obligations under the pooling and servicing
agreement; and]
7. [To be certified by the Special Servicer] [I have disclosed to
the Trust's certified public accountants all significant
deficiencies relating to the special servicer's compliance
with the minimum servicing standards in accordance with a
review conducted in compliance with the Uniform Single
Attestation Program for Mortgage Bankers or similar standard
as set forth in the pooling and servicing agreement.]
8.
Date: ---------------------------------
---------------------------------------
[Signature]
[Title]
EXHIBIT R
INITIAL COMPANION HOLDERS
LaSalle Bank National Association, as trustee for the registered
holders of Xxxxxxx Xxxxx Mortgage Trust Series 2002-FED, Commerical Mortgage
Pass-Through Certificates, Series 2002-FED, shall be the initial Companion
Holder for the 00/000 Xxxxxxx Xxxxxx Companion Loan.
CBA-Mezzanine Capital Finance, LLC shall be the initial Companion
Holder for the Long Island Industrial Companion Loan.
EXHIBIT S
ARCAP NAMING CONVENTION FOR ELECTRONIC FILE DELIVERY
Deal Name - Prospectus Loan I.D. - Statement Type - Statement Date - Months
Covered by Statement
For Example:
JPM2000C10-00001.1-OS-12312000-12
JPM2000C10-00001.2-OS-12312000-12
JPM2000C10-00001.1-OSAR-12312000-12
JPM2000C10-00001.1-FS-12312000-12
JPM2000C10-00001.1-RR-12312000
DLJ2000CKP1-00150.1-OS-12312000-12
DLJ2000CKP1-00001.1-OSAR-12312000-12
DLJ2000CKP1-00001.1-FS-12312000-12
DLJ2000CKP1-00001.1-RR-12312000
DLJ2000CKP1-00001.1-PI-12312000
Please note there should not be any special characters in the Deal Name, i.e.,
no spaces, no dashes, no underscores, etc.
The Prospectus I.D. should have five leading characters, a decimal point, and
the Property # (1, 2, 3, etc.).
The Statement Types are: OS -- Operating Statement (PDF or TIF format)
OSAR -- Operating Statement Analysis Report & NOI
ADJ
Worksheet* (Excel Format named
individually, not rolling format)
FS -- Borrower Financial Statement (PDF or
TIF)
RR -- Rent Roll (Excel or PDF or TIF)
PI* -- Property Inspection (Excel format)
HS* -- Healthcare Survey
FR* -- Franchise Annual Compliance Report
The Statement Date should be eight characters long - MODAYEAR where MO = months
from 01 to 12, DAY = day of month from 01 to 31, YEAR = year such as 1999 or
2000 or 2001.
The Months Covered by the Statement should range from 01 to 12.
---------------------------
* Servicer may, but is not required to, provide these reports pursuant to the
ARCap Naming Convention.
EXHIBIT T
CONTROLLING CLASS CERTIFICATEHOLDER'S REPORTS CHECKLIST
------------------------------------------------- ------------ -------------------- --------------------------------- --------------
Information Format Frequency Responsibility
------------------------------------------------- ------------ -------------------- --------------------------------- --------------
Property Operating Statement Actual PDF/TIF As received/Quarterly Servicer
------------------------------------------------- ------------ -------------------- --------------------------------- --------------
Property Rent Roll Actual PDF/TIF As received/Quarterly Servicer
------------------------------------------------- ------------ -------------------- --------------------------------- --------------
Other Financials as required by loan documents Actual PDF/TIF As received Servicer
------------------------------------------------- ------------ -------------------- --------------------------------- --------------
Property Inspection Actual PDF/TIF As received/Quarterly Servicer
------------------------------------------------- ------------ -------------------- --------------------------------- --------------
Payments Received After Determination Date Monthly Excel Servicer Remittance Date Paying Agent
Report (1)
------------------------------------------------- ------------ -------------------- --------------------------------- --------------
Mortgage Loans Delinquent Report (2) Monthly Excel 30th of each month Paying Agent
------------------------------------------------- ------------ -------------------- --------------------------------- --------------
Interest on Advance Reconciliation Monthly Excel Distribution Date Paying Agent
------------------------------------------------- ------------ -------------------- --------------------------------- --------------
CMSA Setup File (Issuer/Trustee/Servicer) CMSA IRP Access/Excel Monthly/Distribution Date Paying Agent
------------------------------------------------- ------------ -------------------- --------------------------------- --------------
CMSA Property File CMSA IRP Access/Excel Monthly/Distribution Date Paying Agent
------------------------------------------------- ------------ -------------------- --------------------------------- --------------
CMSA Loan Periodic Update File CMSA IRP Access/Excel Monthly/Distribution Date Paying Agent
------------------------------------------------- ------------ -------------------- --------------------------------- --------------
CMSA Financial File CMSA IRP Access/Excel Monthly/Distribution Date Paying Agent
------------------------------------------------- ------------ -------------------- --------------------------------- --------------
Distribution Statement (Trustee) Monthly Excel/PDF Monthly/Distribution Date Paying Agent
------------------------------------------------- ------------ -------------------- --------------------------------- --------------
CMSA Bond File (Trustee) CMSA IRP Access/Excel Monthly/Distribution Date Paying Agent
------------------------------------------------- ------------ -------------------- --------------------------------- --------------
CMSA Collateral File (Trustee) CMSA IRP Access/Excel Monthly/Distribution Date Paying Agent
------------------------------------------------- ------------ -------------------- --------------------------------- --------------
CMSA Supplemental Reports CMSA IRP Access/Excel Monthly/Distribution Date Paying Agent
------------------------------------------------- ------------ -------------------- --------------------------------- --------------
Operating Statement Analysis Report CMSA IRP Access/Excel Monthly/Distribution Date Servicer
------------------------------------------------- ------------ -------------------- --------------------------------- --------------
NOI Adjustment Worksheet CMSA IRP Access/Excel Monthly/Distribution Date Servicer
------------------------------------------------- ------------ -------------------- --------------------------------- --------------
Documentation Exceptions Report (Trustee) Quarterly Access/Excel Monthly/Distribution Date Paying Agent
------------------------------------------------- ------------ -------------------- --------------------------------- --------------
Footnotes:
1) On the Servicer Remittance Date following the Determination Date for
the related Bond Certificateholder Distribution, a list of all mortgage
loans which are delinquent as to the applicable Distribution Period on
the Servicer Remittance Date. This list should represent all delinquent
loans that required a P&I Advance be made.
2) On the last day of the month (30th), for all delinquencies reported in
#1 above, a list of A) all mortgage loans which remain delinquent for
such Distribution period (along with the number of days delinquent)
accompanied with any reason, in Servicer's opinion, for the mortgage
loans continued delinquency, along with an explanation of Servicer's
attempts to cure.
3) ARCap requests that the above information be organized in ascending
Prospectus Loan I.D. order and forwarded on each of the above listed
dates via E-Mail to the following address or all reports and data files
shall be available via the Servicer's or Trustee's Website.
Xxxxx Xxxxx Xxxxx Xxxxxxx
Director Bond/Mortgage Surveillance President
ARCap REIT, Inc. ARCap REIT, Inc.
xxxxxx@xxxxx.xxx xxxxxxxx@xxxxx.xxx
(972) 580-1688 ext. 29 (972) 580-1688 ext. 11
EXHIBIT U
FORM OF INITIAL CERTIFICATION OF THE TRUSTEE
December [__], 2002
X.X. Xxxxxx Xxxxx Commercial ARCap Special Servicing, Inc.
Mortgage Securities Corp. 0000 Xxxxx XxxXxxxxx Xxxxxxxxx
000 Xxxx Xxxxxx, 00xx Xxxxx Xxxxx 000
Xxx Xxxx, Xxx Xxxx 10017 Xxxxxx, Xxxxx 00000
Xxxxxxx Xxxxx Mortgage Lending, Inc. Xxxxx'x Investors Services, Inc.
4 World Financial Center 00 Xxxxxx Xxxxxx, 0xx Xxxxx
000 Xxxxx Xxxxxx - 15th Floor New York, New York 10007
Xxx Xxxx, Xxx Xxxx 00000
Standard & Poor's Ratings Services,
JPMorgan Chase Bank a division of The XxXxxx-Xxxx
000 Xxxx Xxxxxx, 00xx Xxxxx Companies, Inc.
Xxx Xxxx, Xxx Xxxx 00000 00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 10041
LaSalle Bank National Association
Park Avenue Plaza, 6th Floor LaSalle Bank National Association
New York, New York 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Wachovia Bank, National Association
NC1075
0000 Xxxxxxxx Xxxxx - URP4
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Re: X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP. COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2002-C2
Ladies and Gentlemen:
Pursuant to Section 2.02(a) of the Pooling and Servicing Agreement dated as of
December 1, relating to the above-referenced Certificates (the "Agreement"),
Xxxxx Fargo Bank Minnesota, N.A., as Trustee (the "Trustee"), hereby certifies
(subject to Section 2.01 of the Agreement) as to each Mortgage Loan listed in
the Mortgage Loan Schedule (other than any Loan paid in full or any Loan
specifically identified in the exception report attached hereto as not being
covered by this certification) that:
(i) all documents specified in clauses (i) of the definition of "Mortgage
File", as applicable, are in its possession.
Pursuant to Section 2.02(e) of the Agreement, the Trustee may conclusively
assume the due execution and genuineness of any such documents and the
genuineness of any signatures thereon. The scope of the review conducted in
connection with this certification is limited solely to confirming, after
receipt of the documents listed in clause (i) of the definition of "Mortgage
File", that such documents appear regular on their face, have been executed,
received and recorded, if applicable, and relate to the Mortgage Loans
identified in the Mortgage Loan Schedule. Pursuant to Section 2.02(e) of the
Agreement, the Trustee does not make any representation as to 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 or the collectibility, insurability, effectiveness or
suitability of any such Mortgage Loan.
Capitalized terms used herein and not otherwise defined shall have the
respective meanings assigned to them in the Agreement.
XXXXX FARGO BANK MINNESOTA, N.A.
as Trustee
By:
------------------------------------
Name:
-----------------------------------
Title: Assistant Vice President
ATTACHMENTS
-----------
Mortgage Loan Schedule
Trustee Exception Report
EXHIBIT V
FORM OF FINAL CERTIFICATION OF THE TRUSTEE
December [__], 2002
X.X. Xxxxxx Xxxxx Commercial ARCap Special Servicing, Inc.
Mortgage Securities Corp. 0000 Xxxxx XxxXxxxxx Xxxxxxxxx
000 Xxxx Xxxxxx, 00xx Xxxxx Xxxxx 000
Xxx Xxxx, Xxx Xxxx 10017 Xxxxxx, Xxxxx 00000
Xxxxxxx Xxxxx Mortgage Lending, Inc. Xxxxx'x Investors Services, Inc.
4 World Financial Center 00 Xxxxxx Xxxxxx, 0xx Xxxxx
000 Xxxxx Xxxxxx - 15th Floor New York, New York 10007
Xxx Xxxx, Xxx Xxxx 00000
Standard & Poor's Ratings Services,
JPMorgan Chase Bank a division of The XxXxxx-Xxxx
000 Xxxx Xxxxxx, 00xx Xxxxx Companies, Inc.
Xxx Xxxx, Xxx Xxxx 00000 00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 10041
LaSalle Bank National Association
Park Avenue Plaza, 6th Floor LaSalle Bank National Association
New York, New York 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Wachovia Bank, National Association
NC1075
0000 Xxxxxxxx Xxxxx - URP4
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Re: X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP. COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2002-C2
Ladies and Gentlemen:
Pursuant to Section 2.02(b) of the Pooling and Servicing Agreement dated as of
December 1, 2002, relating to the above-referenced Certificates (the
"Agreement"), Xxxxx Fargo Bank Minnesota, N.A., as Trustee (the "Trustee"),
hereby certifies (subject to Section 2.01 of the Agreement) as to each Mortgage
Loan listed in the Mortgage Loan Schedule (other than any Loan paid in full or
any Loan specifically identified in the exception report attached hereto as not
being covered by this certification) that:
(i) all documents specified in clauses (i) through (v), (ix) through
(xii), and (xvi) (or, with respect to clause (xvi), a copy of such
letter of credit and an Officer's Certificate as contemplated by the
penultimate sentence of Section 2.01(b) of the Agreement), if any, of
the definition of "Mortgage File", as applicable, are in its
possession;
(ii) the foregoing documents delivered or caused to be delivered by the
Mortgage Loan Sellers pursuant to Section 2.01 of the Agreement have
been reviewed by the Trustee and appear regular on their face, appear
to be executed, and relate to such Mortgage Loan; and
(iii) based on such examination and only as to the foregoing documents,
the information set forth in the Mortgage Loan Schedule with respect to
the items specified in clauses (iv), (vi) and (viii)(c) in the
definition of "Mortgage Loan Schedule" is correct, subject to any
exceptions identified in the attached Trustee Exception Report.
Pursuant to Section 2.02(e) of the Agreement, the Trustee may conclusively
assume the due execution and genuineness of any such documents and the
genuineness of any signatures thereon. The scope of the review called for is
limited solely to confirming, after receipt of the documents listed in Section
2.01 of the Agreement, that such documents appear regular on their face, have
been executed, received and recorded, if applicable, and relate to the Mortgage
Loans identified in the Mortgage Loan Schedule. Pursuant to Section 2.02(e) of
the Agreement, the Trustee does not make any representation 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 or the collectibility, insurability,
effectiveness or suitability of any such Mortgage Loan, (ii) whether any
document required to be reviewed by it is in the related Mortgage File, unless
such document is identified in the checklist relating to such Mortgage File
delivered pursuant to Section 2.02(e) of the Agreement, (iii) the documents
specified in clause (ix) of the definition of Mortgage File, whether insurance
is effective as of the date of recordation, whether all endorsements or riders
issued are included in the file or if the policy has not been issued whether any
acceptable replacement document has been dated the date of the related Mortgage
Loan funding, or (iv) whether more than one county or state financing statement
is required to be filed for any given Mortgage Loan.
Capitalized terms used herein and not otherwise defined shall have the
respective meanings assigned to them in the Agreement.
XXXXX FARGO BANK MINNESOTA, N.A.
as Trustee
By:
----------------------------------
Name:
-------------------------------
Title: Assistant Vice President
ATTACHMENTS
Mortgage Loan Schedule
Trustee Exception Report
EXHIBIT W
FORM OF
NOTICE AND CERTIFICATION
REGARDING DEFEASANCE OF MORTGAGE LOAN
To: Standard & Poor's Ratings Services
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Commercial Mortgage Surveillance
From: Wachovia Bank, National Association, in its capacity
as Master Servicer (the "Master Servicer") under the
Pooling and Servicing Agreement dated as of December
1, 2002 (the "Pooling and Servicing Agreement"),
among the Master Servicer, Xxxxx Fargo Bank
Minnesota, N.A., as Trustee, and others.
Date: _________, 20___
Re: X.X. Xxxxxx Commerical Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates,
Series 2002-C2
Mortgage Loan (the "Mortgage Loan") identified by
loan number _____ on the Mortgage Loan Schedule
attached to the Pooling and Servicing Agreement and
heretofore secured by the Mortgaged Properties
identified on the Mortgage Loan Schedule by
the following names:
--------------------------
--------------------------
Reference is made to the Pooling and Servicing Agreement described
above. Capitalized terms used but not defined herein have the meanings assigned
to such terms in the Pooling and Servicing Agreement.
As Master Servicer under the Pooling and Servicing Agreement, we
hereby:
(a) Notify you that the Mortgagor has consummated a defeasance of
the Mortgage Loan pursuant to the terms of the Mortgage Loan, of the type
checked below:
____ a full defeasance of the entire principal balance of the
Mortgage Loan; or
____ a partial defeasance of a portion of the principal
balance of the Mortgage Loan that represents and, an allocated loan
amount of $____________ or _______% of the entire principal balance
of the Mortgage Loan;
(b) Certify that each of the following is true, subject to those
exceptions set forth with explanatory notes on Exhibit A hereto, which
exceptions the Master Servicer has determined, consistent with the Servicing
Standard, will have no material adverse effect on the Mortgage Loan or the
defeasance transaction:
(i) The Mortgage Loan documents permit the defeasance, and the terms
and conditions for defeasance specified therein were satisfied in all
material respects in completing the defeasance.
(ii) The defeasance was consummated on __________, 20__.
(iii) The defeasance collateral consists of securities that (i)
constitute "government securities" as defined in Section 2(a)(16) of the
Investment Company Act of 1940 as amended (15 U.S.C. 80A1), (ii) are
listed as "Qualified Investments for `AAA' Financings" under Paragraphs 1,
2 or 3 of "Cash Flow Approach" in Standard & Poor's Public Finance
Criteria 2000, as amended to the date of the defeasance, (iii) are rated
`AAA' by S&P, (iv) if they include a principal obligation, the principal
due at maturity cannot vary or change, and (v) are not subject to
prepayment, call or early redemption.
(iv) The Master Servicer received an opinion of counsel (from
counsel approved by Master Servicer in accordance with the Servicing
Standard) that the defeasance will not result in an Adverse REMIC Event.
(v) The Master Servicer determined that the defeasance collateral
will be owned by an entity (the "Defeasance Obligor") that is a
Single-Purpose Entity (as defined in Standard & Poor's Structured Finance
Ratings Real Estate Finance Criteria, as amended to the date of the
defeasance (the "S&P Criteria")) as of the date of the defeasance, and
after the defeasance owns no assets other than the defeasance collateral
and real property securing Mortgage Loans included in the pool.
(vi) The Master Servicer received written confirmation of the
crediting of the defeasance collateral to an Eligible Account (as defined
in the S&P Criteria) in the name of the Defeasance Obligor, which account
is maintained as a securities account by a securities intermediary and has
been pledged to the Trustee.
(vii) The agreements executed in connection with the defeasance (i)
grant control of the pledged securities account to Trustee, (ii) require
the securities intermediary to make the scheduled payments on the Mortgage
Loan from the proceeds of the defeasance collateral directly to the
Servicer's collection account in the amounts and on the dates specified in
the Mortgage Loan documents or, in a partial defeasance, the portion of
such scheduled payments attributed to the allocated loan amount for the
real property defeased, increased by any defeasance premium specified in
the Mortgage Loan documents (the "Scheduled Payments"), (iii) permit
reinvestment of proceeds of the defeasance collateral only in Permitted
Investments (as defined in the S&P Criteria), (iv) permit release of
surplus defeasance collateral and earnings on reinvestment from the
pledged securities account only after the Mortgage Loan has been paid in
full, if any such release is permitted, (v) prohibit transfers by the
Defeasance Obligor of the defeasance collateral and subordinate liens
against the defeasance collateral, and (vi) provide for payment from
sources other than the defeasance collateral or other assets of the
Defeasance Obligor of all fees and expenses of the securities intermediary
for administering the defeasance and the securities account and all fees
and expenses of maintaining the existence of the Defeasance Obligor.
(viii) The Master Servicer received written confirmation from a firm
of independent certified public accountants, who were approved by Master
Servicer in accordance with the Servicing Standard stating that (i)
revenues from the defeasance collateral (without taking into account any
earnings on reinvestment of such revenues) will be sufficient to timely
pay each of the Scheduled Payments after the defeasance including the
payment in full of the Mortgage Loan (or the allocated portion thereof in
connection with a partial defeasance) on its Maturity Date (or, in the
case of an ARD Loan, on its Anticipated Repayment Date), (ii) the revenues
received in any month from the defeasance collateral will be applied to
make Scheduled Payments within four (4) months after the date of receipt,
and (iii) interest income from the defeasance collateral to the Defeasance
Obligor in any calendar or fiscal year will not exceed such Defeasance
Obligor's interest expense for the Mortgage Loan (or the allocated portion
thereof in a partial defeasance) for such year.
(ix) The Mortgage Loan is not among the ten (10) largest loans in
the pool. The entire principal balance of the Mortgage Loan as of the date
of defeasance was less than both $[______] and five percent of pool
balance, which is less than [__]% of the aggregate Certificate Balance of
the Certificates as of the date of the most recent Trustee's Distribution
Date Statement received by us (the "Current Report").
(x) The defeasance described herein, together with all prior and
simultaneous defeasances of Mortgage Loans, brings the total of all fully
and partially defeased Mortgage Loans to $__________________, which is
_____% of the aggregate Certificate Balance of the Certificates as of the
date of the Current Report.
(c) Certify that Exhibit B hereto is a list of the material
agreements, instruments, organizational documents for the Defeasance Obligor,
and opinions of counsel and independent accountants executed and delivered in
connection with the defeasance.
(d) Certify that the individual under whose hand the Master Servicer
has caused this Notice and Certification to be executed did constitute a
Servicing Officer as of the date of the defeasance described above.
(e) Agree to provide copies of all items listed in Exhibit B to you
upon request.
IN WITNESS WHEREOF, the Master Servicer has caused this Notice and
Certification to be executed as of the date captioned above.
WACHOVIA BANK, NATIONAL
ASSOCIATION
By:
---------------------------------
Name:
Title:
EXHIBIT X-1
FORM OF
INFORMATION REQUEST BY CERTIFICATEHOLDER OR
CERTIFIDCATE OWNER
[Date]
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset-Backed Securities Trust Services Group - XX Xxxxxx 2002-C2
Re: XX Xxxxxx Chase Commercial Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2002-C2
In accordance with the Pooling and Servicing Agreement, dated as of
December 10, 2002 (the "Pooling and Servicing Agreement"), by and among XX
Xxxxxx Xxxxx Commercial Mortgage Securities Corp., as depositor, Wachovia Bank
National Association, as servicer, ARCAP Special Servicing, Inc., as special
servicer, Xxxxx Fargo Bank Minnesota, N.A., as trustee, and LaSalle Bank
National Association, as paying agent (the "Paying Agent") with respect to the
XX Xxxxxx Xxxxx Commercial Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 2002-C2 (the "Certificates"), the undersigned
hereby certifies and agrees as follows:
1. The undersigned is a [holder] [beneficial holder] of $___________
aggregate [Certificate Principal Balance/Certificate Notional Amount] of the
Class ____ Certificates.
2. The undersigned is requesting access to the following information
(the "Information"):
___ The information available at the Corporate Trust Office of the
Paying Agent pursuant to Section 3.15 of the Pooling and
Servicing Agreement.
___ The information on the Paying Agent's Internet Website
pursuant to Section 4.02 of the Pooling and Servicing
Agreement.
3. In consideration of the Paying Agent's disclosure to the
undersigned of the Information, the undersigned will keep the Information
confidential (except from such outside persons as are assisting it in evaluating
the Information), and such Information will not, without the prior written
consent of the Trustee, be disclosed by the undersigned or by its officers,
directors, partners employees, agents or representatives (collectively, the
"Representatives") in any manner whatsoever, in whole or in part; provided that
the undersigned may provide all or any part of the Information to any other
person or entity that holds or is contemplating the purchase of any Certificate
or interest therein, but only if such person or entity confirms in writing such
ownership interest or prospective ownership interest and agrees to keep it
confidential; and provided that the undersigned may provide all or any part of
the Information to its auditors, legal counsel and regulators.
4. The undersigned will not use or disclose the
Information in any manner which could result in a violation of any provision of
the Securities Act of 1933, as amended (the "Securities Act"), or the Securities
Exchange Act of 1934, as amended, or would require registration of any
Non-Registered Certificate (as defined in the Pooling and Servicing Agreement)
pursuant to Section 5 of the Securities Act.
IN WITNESS WHEREOF, the undersigned has caused its name to be
signed hereto by its duly authorized officer, as of the day and year written
above.
--------------------------------------------
[CERTIFICATEHOLDER] [BENEFICIAL HOLDER OF A
CERTIFICATE]
By:
----------------------------------------
Name:
Title:
Telephone No.:
EXHIBIT X-2
FORM OF
INFORMATION REQUEST BY PROSPECTIVE PURCHASER
[Date]
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset-Backed Securities Trust Services Group - XX Xxxxxx 2002-C2
Re: XX Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2002-C2
In accordance with the Pooling and Servicing Agreement, dated as of
December 10, 2002 (the "Pooling and Servicing Agreement"), by and among XX
Xxxxxx Chase Commercial Mortgage Securities Corp., as depositor, Wachovia Bank
National Association, as servicer, ARCAP Special Servicing, Inc., as special
servicer, Xxxxx Fargo Bank Minnesota, N.A., as trustee, and LaSalle Bank
National Association, as paying agent (the "Paying Agent") with respect to the
XX Xxxxxx Chase Commercial Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 2002-C2 (the "Certificates"), the undersigned
hereby certifies and agrees as follows:
1. The undersigned is contemplating an investment in the Class ____
Certificates.
2. The undersigned is requesting access to the following information
(the "Information") for use in evaluating such possible investment:
___ The information available at the Corporate Trust Office of the
Paying Agent pursuant to Section 3.15 of the Pooling and
Servicing Agreement.
___ The information on the Paying Agent's Internet Website
pursuant to Section 4.02 of the Pooling and Servicing
Agreement.
3. In consideration of the Trustee's disclosure to the undersigned
of the Information, the undersigned will keep the Information confidential
(except from such outside persons as are assisting it in making the investment
decision described in paragraphs 1 and 2), and such Information will not,
without the prior written consent of the Trustee, be disclosed by the
undersigned or by its officers, directors, partners employees, agents or
representatives (collectively, the "Representatives") in any manner whatsoever,
in whole or in part; provided that in the event the undersigned purchases any
Certificate or any interest in any Certificate, the undersigned may provide all
or any part of the Information to any other person or entity that holds or is
contemplating the purchase of any Certificate or interest therein, but only if
such person or entity confirms in writing such ownership interest or prospective
ownership interest and agrees to keep it confidential; and provided that the
undersigned may provide all or any part of the Information to its auditors,
legal counsel and regulators.
4. The undersigned will not use or disclose the Information in any
manner which could result in a violation of any provision of the Securities Act
of 1933, as amended (the "Securities Act"), or the Securities Exchange Act of
1934, as amended, or would require registration of any Non-Registered
Certificate (as defined in the Trust and Servicing Agreement) pursuant to
Section 5 of the Securities Act.
IN WITNESS WHEREOF, the undersigned has caused its name to be signed
hereto by its duly authorized officer, as of the day and year written above.
---------------------------------------
[PROSPECTIVE PURCHASER]
By: ---------------------------------------
Name:
Title:
Telephone No.: