EXECUTION VERSION
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BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
as Depositor,
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Master Servicer,
ARCAP SERVICING, INC.,
as Special Servicer,
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee,
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Paying Agent and Certificate Registrar,
and
ABN AMRO BANK N.V.,
as Fiscal Agent
POOLING AND SERVICING AGREEMENT
Dated as of October 1, 2005
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2005-TOP20
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
Section 1.1 Definitions.............................................. 5
Section 1.2 Calculations Respecting Mortgage Loans................... 80
Section 1.3 Calculations Respecting Accrued Interest................. 81
Section 1.4 Interpretation........................................... 81
Section 1.5 ARD Loans................................................ 82
Section 1.6 Certain Matters with respect to Loan Pairs and A/B
Mortgage Loans........................................ 83
ARTICLE II
DECLARATION OF TRUST; ISSUANCES OF CERTIFICATES
Section 2.1 Conveyance of Mortgage Loans............................. 84
Section 2.2 Acceptance by Trustee.................................... 88
Section 2.3 Sellers' Repurchase of Mortgage Loans for Material
Document Defects and Material Breaches of
Representations and Warranties........................ 90
Section 2.4 Representations and Warranties........................... 97
Section 2.5 Conveyance of Interests.................................. 98
Section 2.6 Certain Matters Relating to Non-Serviced Mortgage Loans.. 98
ARTICLE III
THE CERTIFICATES
Section 3.1 The Certificates......................................... 99
Section 3.2 Registration............................................. 100
Section 3.3 Transfer and Exchange of Certificates.................... 100
Section 3.4 Mutilated, Destroyed, Lost or Stolen Certificates........ 106
Section 3.5 Persons Deemed Owners.................................... 107
Section 3.6 Access to List of Certificateholders' Names and Addresses 107
Section 3.7 Book-Entry Certificates.................................. 107
Section 3.8 Notices to Clearing Agency............................... 111
Section 3.9 Definitive Certificates.................................. 111
ARTICLE IV
ADVANCES
Section 4.1 P&I Advances by Master Servicer.......................... 112
SECTION 4.1A P&I ADVANCES WITH RESPECT TO NON-SERVICED MORTGAGE
LOANS AND SERVICED PARI PASSU MORTGAGE LOANS.......... 113
Section 4.2 Servicing Advances....................................... 114
Section 4.3 Advances by the Trustee and the Fiscal Agent............. 114
Section 4.4 Evidence of Nonrecoverability............................ 000
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Xxxxxxx 4.5 Interest on Advances; Calculation of Outstanding
Advances with Respect to a Mortgage Loan.............. 116
Section 4.6 Reimbursement of Advances and Advance Interest........... 117
Section 4.7 Fiscal Agent Termination Event........................... 119
Section 4.8 Procedure Upon Termination Event......................... 120
Section 4.9 Merger or Consolidation of Fiscal Agent.................. 120
Section 4.10 Limitation on Liability of the Fiscal Agent and Others... 120
Section 4.11 Indemnification of Fiscal Agent.......................... 121
ARTICLE V
ADMINISTRATION OF THE TRUST
Section 5.1 Collections.............................................. 122
Section 5.2 Application of Funds in the Certificate Account and
Interest Reserve Account.............................. 126
Section 5.3 Distribution Account and Reserve Account................. 136
Section 5.4 Paying Agent Reports..................................... 138
Section 5.5 Paying Agent Tax Reports................................. 140
ARTICLE VI
DISTRIBUTIONS
Section 6.1 Distributions Generally.................................. 141
Section 6.2 REMIC I.................................................. 141
Section 6.3 REMIC II................................................. 144
Section 6.4 Reserved................................................. 144
Section 6.5 REMIC III................................................ 144
Section 6.6 Allocation of Realized Losses, Expense Losses and
Shortfalls Due to Nonrecoverability................... 151
Section 6.7 Net Aggregate Prepayment Interest Shortfalls............. 153
Section 6.8 Adjustment of Servicing Fees............................. 154
Section 6.9 Appraisal Reductions..................................... 154
Section 6.10 Compliance with Withholding Requirements................. 155
Section 6.11 Prepayment Premiums...................................... 155
ARTICLE VII
CONCERNING THE TRUSTEE, THE FISCAL AGENT, THE PAYING AGENT AND THE LUXEMBOURG
PAYING AGENT
Section 7.1 Duties of the Trustee, the Fiscal Agent and the Paying
Agent................................................. 156
Section 7.2 Certain Matters Affecting the Trustee, the Fiscal Agent
and the Paying Agent.................................. 158
Section 7.3 The Trustee, the Fiscal Agent and the Paying Agent Not
Liable for Certificates or Interests or Mortgage
Loans................................................. 160
Section 7.4 The Trustee, the Fiscal Agent and the Paying Agent May
Own Certificates...................................... 161
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Section 7.5 Eligibility Requirements for the Trustee, the Fiscal
Agent and the Paying Agent............................ 161
Section 7.6 Resignation and Removal of the Trustee, the Fiscal
Agent or the Paying Agent............................. 162
Section 7.7 Successor Trustee, Fiscal Agent or Paying Agent.......... 164
Section 7.8 Merger or Consolidation of Trustee, Fiscal Agent or
Paying Agent.......................................... 165
Section 7.9 Appointment of Co-Trustee, Separate Trustee, Agents or
Custodian............................................. 165
Section 7.10 Authenticating Agents.................................... 167
Section 7.11 Indemnification of Trustee, the Fiscal Agent and the
Paying Agent.......................................... 168
Section 7.12 Fees and Expenses of Trustee, the Fiscal Agent and the
Paying Agent.......................................... 170
Section 7.13 Collection of Moneys..................................... 170
Section 7.14 Trustee To Act; Appointment of Successor................. 170
Section 7.15 Notification to Holders.................................. 173
Section 7.16 Representations and Warranties of the Trustee, the
Fiscal Agent and the Paying Agent..................... 173
Section 7.17 Fidelity Bond and Errors and Omissions Insurance
Policy Maintained by the Trustee, the Fiscal Agent
and the Paying Agent.................................. 175
Section 7.18 Appointment of Luxembourg Paying Agent; Notification to
Certificateholders.................................... 176
ARTICLE VIII
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 8.1 Servicing Standard; Servicing Duties..................... 177
Section 8.2 Fidelity Bond and Errors and Omissions Insurance Policy
Maintained by the Master Servicer..................... 179
Section 8.3 Master Servicer's General Power and Duties............... 180
Section 8.4 Primary Servicing and Sub-Servicing...................... 187
Section 8.5 Servicers May Own Certificates........................... 188
Section 8.6 Maintenance of Hazard Insurance, Other Insurance, Taxes
and Other............................................. 189
Section 8.7 Enforcement of Due-On-Sale Clauses; Assumption
Agreements; Due-On-Encumbrance Clause................. 192
Section 8.8 Trustee to Cooperate; Release of Trustee Mortgage Files.. 196
Section 8.9 Documents, Records and Funds in Possession of Master
Servicer to be Held for the Trustee for the Benefit
of the Certificateholders............................. 197
Section 8.10 Servicing Compensation................................... 198
Section 8.11 Master Servicer Reports; Account Statements.............. 199
Section 8.12 Annual Statement as to Compliance........................ 201
Section 8.13 Annual Independent Public Accountants' Servicing Report.. 202
Section 8.14 CMSA Operating Statement Analysis Reports Regarding the
Mortgaged Properties.................................. 202
Section 8.15 Other Available Information and Certain Rights of the
Master Servicer....................................... 203
Section 8.16 Rule 144A Information.................................... 205
Section 8.17 Inspections.............................................. 206
Section 8.18 Modifications, Waivers, Amendments, Extensions and
Consents.............................................. 207
Section 8.19 Specially Serviced Mortgage Loans........................ 210
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Section 8.20 Representations, Warranties and Covenants of the Master
Servicer.............................................. 210
Section 8.21 Merger or Consolidation.................................. 212
Section 8.22 Resignation of Master Servicer........................... 212
Section 8.23 Assignment or Delegation of Duties by Master Servicer.... 213
Section 8.24 Limitation on Liability of the Master Servicer and
Others................................................ 213
Section 8.25 Indemnification; Third-Party Claims...................... 215
Section 8.26 Exchange Act Reporting................................... 219
Section 8.27 Compliance with REMIC Provisions and Grantor Trust
Provisions............................................ 220
Section 8.28 Termination.............................................. 221
Section 8.29 Procedure Upon Termination............................... 223
Section 8.30 Operating Adviser Contact with Master Servicer and
Special Servicer...................................... 225
Section 8.31 Certain Matters with Respect to Certain Mortgage Loans... 225
Section 8.32 Certain Matters with Respect to the East Towne Mall
Mortgage Loan and the West Towne Mall Mortgage Loan... 226
ARTICLE IX
ADMINISTRATION AND SERVICING OF SPECIALLY SERVICED MORTGAGE LOANS BY SPECIAL
SERVICER
Section 9.1 Duties of Special Servicer............................... 230
Section 9.2 Fidelity Bond and Errors and Omissions Insurance
Policy of Special Servicer............................ 232
Section 9.3 Sub-Servicers............................................ 232
Section 9.4 Special Servicer General Powers and Duties............... 232
Section 9.5 "Due-on-Sale" Clauses; Assignment and Assumption
Agreements; Modifications of Specially Serviced
Mortgage Loans; Due-On-Encumbrance Clauses............ 236
Section 9.6 Release of Mortgage Files................................ 241
Section 9.7 Documents, Records and Funds in Possession of Special
Servicer To Be Held for the Trustee................... 241
Section 9.8 Representations, Warranties and Covenants of the
Special Servicer...................................... 242
Section 9.9 Standard Hazard, Flood and Comprehensive General
Liability Insurance Policies.......................... 244
Section 9.10 Presentment of Claims and Collection of Proceeds......... 246
Section 9.11 Compensation to the Special Servicer..................... 246
Section 9.12 Realization Upon Defaulted Mortgage Loans................ 247
Section 9.13 Foreclosure.............................................. 249
Section 9.14 Operation of REO Property................................ 250
Section 9.15 Sale of REO Property..................................... 253
Section 9.16 Realization on Collateral Security....................... 254
Section 9.17 Reserved................................................. 255
Section 9.18 Annual Officer's Certificate as to Compliance............ 255
Section 9.19 Annual Independent Accountants' Servicing Report......... 255
Section 9.20 Merger or Consolidation.................................. 256
Section 9.21 Resignation of Special Servicer.......................... 256
Section 9.22 Assignment or Delegation of Duties by Special Servicer... 257
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Section 9.23 Limitation on Liability of the Special Servicer and
Others................................................ 257
Section 9.24 Indemnification; Third-Party Claims...................... 260
Section 9.25 Reserved................................................. 261
Section 9.26 Special Servicer May Own Certificates.................... 262
Section 9.27 Tax Reporting............................................ 262
Section 9.28 Application of Funds Received............................ 262
Section 9.29 Compliance with REMIC Provisions and Grantor Trust
Provisions............................................ 262
Section 9.30 Termination.............................................. 263
Section 9.31 Procedure Upon Termination............................... 265
Section 9.32 Certain Special Servicer Reports......................... 267
Section 9.33 Special Servicer to Cooperate with the Master Servicer
and Paying Agent...................................... 270
Section 9.34 Reserved................................................. 271
Section 9.35 Reserved................................................. 271
Section 9.36 Sale of Defaulted Mortgage Loans......................... 271
Section 9.37 Operating Adviser; Elections............................. 276
Section 9.38 Limitation on Liability of Operating Adviser............. 278
Section 9.39 Duties of Operating Adviser.............................. 278
Section 9.40 Rights of the Holder of a B Note......................... 281
Section 9.41 Lakeforest Mall Mortgage Loan Operating Adviser Cure
Rights................................................ 282
ARTICLE X
PURCHASE AND TERMINATION OF THE TRUST
Section 10.1 Termination of Trust Upon Repurchase or Liquidation of
All Mortgage Loans.................................... 282
Section 10.2 Procedure Upon Termination of Trust...................... 284
Section 10.3 Additional Trust Termination Requirements................ 285
ARTICLE XI
RIGHTS OF CERTIFICATEHOLDERS
Section 11.1 Limitation on Rights of Holders.......................... 286
Section 11.2 Access to List of Holders................................ 286
Section 11.3 Acts of Holders of Certificates.......................... 287
ARTICLE XII
REMIC AND GRANTOR TRUST ADMINISTRATION
Section 12.1 REMIC Administration..................................... 288
Section 12.2 Prohibited Transactions and Activities................... 293
Section 12.3 Modifications of Mortgage Loans.......................... 293
Section 12.4 Liability with Respect to Certain Taxes and Loss of
REMIC Status.......................................... 294
Section 12.5 Class Q Grantor Trust.................................... 294
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ARTICLE XIII
MISCELLANEOUS PROVISIONS
Section 13.1 Binding Nature of Agreement.............................. 295
Section 13.2 Entire Agreement......................................... 295
Section 13.3 Amendment................................................ 295
Section 13.4 GOVERNING LAW............................................ 298
Section 13.5 Notices.................................................. 298
Section 13.6 Severability of Provisions............................... 299
Section 13.7 Indulgences; No Waivers.................................. 299
Section 13.8 Headings Not to Affect Interpretation.................... 299
Section 13.9 Benefits of Agreement.................................... 299
Section 13.10 Special Notices to the Rating Agencies................... 299
Section 13.11 Counterparts............................................. 301
Section 13.12 Intention of Parties..................................... 301
Section 13.13 Recordation of Agreement................................. 302
Section 13.14 Rating Agency Monitoring Fees............................ 303
Section 13.15 Acknowledgement by Primary Servicer...................... 303
EXHIBITS AND SCHEDULES
EXHIBIT A-1 Form of Class A-1 Certificate
EXHIBIT A-2 Form of Class A-2 Certificate
EXHIBIT A-3 Form of Class A-3 Certificate
EXHIBIT A-4 Form of Class A-AB Certificate
EXHIBIT A-5 Form of Class A-4A Certificate
EXHIBIT A-6 Form of Class A-4B Certificate
EXHIBIT A-7 Form of Class A-J Certificate
EXHIBIT A-8 Form of Class B Certificate
EXHIBIT A-9 Form of Class C Certificate
EXHIBIT A-10 Form of Class D Certificate
EXHIBIT A-11 Form of Class E Certificate
EXHIBIT A-12 Form of Class F Certificate
EXHIBIT A-13 Form of Class G Certificate
EXHIBIT A-14 Form of Class H Certificate
EXHIBIT A-15 Form of Class J Certificate
EXHIBIT A-16 Form of Class K Certificate
EXHIBIT A-17 Form of Class L Certificate
EXHIBIT A-18 Form of Class M Certificate
EXHIBIT A-19 Form of Class N Certificate
EXHIBIT A-20 Form of Class O Certificate
EXHIBIT A-21 Form of Class P Certificate
EXHIBIT A-22 Form of Class Q Certificate
EXHIBIT A-23 Form of Class LF Certificate
EXHIBIT A-24 Form of Class R-I Certificate
EXHIBIT A-25 Form of Class R-II Certificate
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EXHIBIT A-26 Form of Class R-III Certificate
EXHIBIT A-27 Form of Class X Certificate
EXHIBIT B-1 Form of Initial Certification of Trustee (Section 2.2)
EXHIBIT B-2 Form of Final Certification of Trustee (Section 2.2)
EXHIBIT C Form of Request for Release
EXHIBIT D-1 Form of Transferor Certificate for Transfers to Definitive
Privately Offered Certificates (Section 3.3(c))
EXHIBIT D-2A Form I of Transferee Certificate for Transfers of Definitive
Privately Offered Certificates (Section 3.3(c))
EXHIBIT D-2B Form II of Transferee Certificate for Transfers of Definitive
Privately Offered Certificates (Section 3.3(c))
EXHIBIT D-3A Form I of Transferee Certificate for Transfers of Interests in
Book-Entry Privately Offered Certificates (Section 3.3(c))
EXHIBIT D-3B Form II of Transferee Certificate for Transfers of Interests in
Book-Entry Privately Offered Certificates (Section 3.3(c))
EXHIBIT E-1 Form of Transfer Affidavit and Agreement (Section 3.3(e))
EXHIBIT E-2 Form of Transfer Affidavit and Agreement (Section 3.3(e))
EXHIBIT F Form of Regulation S Certificate
EXHIBIT G-1 Form of Principal Primary Servicing Agreement
EXHIBIT G-2 Reserved
EXHIBIT H Form of Exchange Certification
EXHIBIT I Form of Euroclear Bank or Clearstream Bank Certificate (Section
3.7(d))
EXHIBIT J List of Loans as to Which Excess Servicing Fees Are Paid
("Excess Servicing Fee")
EXHIBIT K-1 Form of Mortgage Loan Purchase Agreement I (BSCMI)
EXHIBIT K-2 Form of Mortgage Loan Purchase Agreement II (Xxxxx Fargo)
EXHIBIT K-3 Form of Mortgage Loan Purchase Agreement III (Principal)
EXHIBIT K-4 Form of Mortgage Loan Purchase Agreement IV (MSMC)
EXHIBIT K-5 Reserved
EXHIBIT L Form of Inspection Report
EXHIBIT M Form of Monthly Certificateholders Reports (Section 5.4(a))
EXHIBIT N Form of CMSA Operating Statement Analysis Report
EXHIBIT O Reserved
EXHIBIT P Reserved
EXHIBIT Q Reserved
EXHIBIT R Reserved
EXHIBIT S-1 Form of Power of Attorney to Master Servicer (Section 8.3(c))
EXHIBIT S-2 Form of Power of Attorney to Special Servicer (Section 9.4(a)
EXHIBIT T Form of Debt Service Coverage Ratio Procedures
EXHIBIT U Form of Assignment and Assumption Submission to Special Servicer
(Section 8.7(a))
EXHIBIT V Form of Additional Lien, Monetary Encumbrance and Mezzanine
Financing Submission Package to the Special Servicer (Section
8.7(e))
EXHIBIT W Restricted Servicer Reports
EXHIBIT X Unrestricted Servicer Reports
EXHIBIT Y Investor Certificate (Section 5.4(a))
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EXHIBIT Z Form of Notice and Certification Regarding Defeasance of
Mortgage Loans
EXHIBIT AA Form of Xxxxx Fargo primary servicing agreement (Section
8.29(b))
EXHIBIT BB Controlling Class Certificateholder's Reports Checklist
EXHIBIT CC Form of Performance Certification (Section 8.26 (b))
EXHIBIT DD Form of Notice with respect to Non-Serviced Mortgage Loans
SCHEDULE I BSCMI Loan Schedule
SCHEDULE II Xxxxx Fargo Loan Schedule
SCHEDULE III Principal Loan Schedule
SCHEDULE IV MSMC Loan Schedule
SCHEDULE V Reserved
SCHEDULE VI List of Escrow Accounts Not Currently Eligible Accounts (Section
8.3(e))
SCHEDULE VII Certain Escrow Accounts for Which a Report Under Section 5.1(g)
is Required
SCHEDULE VIII List of Mortgagors that are Third-Party Beneficiaries Under
Section 2.3(a)
SCHEDULE IX Reserved
SCHEDULE X Mortgage Loans Secured by Mortgaged Properties Covered by an
Environmental Insurance Policy
SCHEDULE XI List of Mortgage Loans that have Scheduled Payments after the
end of a Collection Period
SCHEDULE XII Loans that Accrue on an Actual/360 basis, but whose Servicing
Fees Accrue on a 30/360 Basis
SCHEDULE XIII Class A-AB Planned Principal Balance
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THIS POOLING AND SERVICING AGREEMENT is dated as of October 1, 2005
(this "Agreement") between BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC., a
Delaware corporation, as depositor (the "Depositor"), XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as master servicer (the "Master Servicer"), ARCAP SERVICING, INC.,
as special servicer (the "Special Servicer"), LASALLE BANK NATIONAL ASSOCIATION,
as trustee of the Trust (the "Trustee"), ABN AMRO BANK N.V., only in its
capacity as a fiscal agent pursuant to Article IV hereof (the "Fiscal Agent"),
and XXXXX FARGO BANK, NATIONAL ASSOCIATION, only in its capacity as paying agent
(the "Paying Agent") and certificate registrar.
PRELIMINARY STATEMENT
On the Closing Date, the Depositor will acquire the Mortgage Loans
from Xxxxxx Xxxxxxx Mortgage Capital Inc., as seller ("MSMC"), Principal
Commercial Funding, LLC, as seller ("Principal"), Bear Xxxxxxx Commercial
Mortgage, Inc., as seller ("BSCMI") and Xxxxx Fargo Bank, National Association,
as seller ("Xxxxx Fargo") and will be the owner of the Mortgage Loans and the
other property being conveyed by it to the Trustee for inclusion in the Trust
which is hereby created. On the Closing Date, the Depositor will acquire (i) the
REMIC I Regular Interests and the Class R-I Certificates as consideration for
its transfer to the Trust of the Mortgage Loans (other than any Excess Interest
payable thereon) and the other property constituting REMIC I; (ii) the REMIC II
Regular Interests and the Class R-II Certificates as consideration for its
transfer of the REMIC I Regular Interests to the Trust; (iii) the REMIC III
Certificates (other than the portion of the Class Q Certificates representing
the right to receive Excess Interest) as consideration for its transfer of the
REMIC II Regular Interests to the Trust; and (iv) the portion of the Class Q
Certificates representing the right to receive Excess Interest as consideration
for its transfer to the Trust of such right. The Depositor has duly authorized
the execution and delivery of this Agreement to provide for the foregoing and
the issuance of (A) the REMIC I Regular Interests and the Class R-I Certificates
representing in the aggregate the entire beneficial ownership of REMIC I, (B)
the REMIC II Regular Interests and the Class R-II Certificates representing in
the aggregate the entire beneficial ownership of REMIC II, and (C) the REMIC III
Certificates representing in the aggregate the entire beneficial ownership of
REMIC III and, in the case of the Class Q Certificates, the Class Q Grantor
Trust. Excess Interest received on the Mortgage Loans shall be held in the Class
Q Grantor Trust for the benefit of the Class Q Certificates. All covenants and
agreements made by the Depositor and the Trustee herein with respect to the
Mortgage Loans and the other property constituting the Trust are for the benefit
of the Holders of the REMIC I Regular Interests, the REMIC II Regular Interests,
the Residual Certificates and the REMIC Regular Certificates (including the
Class Q Certificates to the extent of their interest in any Excess Interest).
The parties hereto are entering into this Agreement, and the Trustee is
accepting the trusts created hereby, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged.
The Class A Senior, Class A-J, Class B, Class C, Class D and Class E
Certificates will be offered for sale pursuant to the prospectus (the
"Prospectus") dated September 2, 2005, as supplemented by the preliminary
prospectus supplement dated October 7, 2005 (together with the Prospectus, the
"Preliminary Prospectus Supplement"), and as further supplemented by the final
prospectus supplement dated October 20, 2005 (together with the Prospectus, the
"Final Prospectus Supplement"), and the Class X, Class F, Class G, Class H,
Class J, Class K, Class L,
Class M, Class N, Class O, Class P, Class Q and Class LF Certificates will be
offered for sale pursuant to a Private Placement Memorandum dated October 20,
2005.
REMIC I
Each REMIC I Regular Interest (a "Corresponding REMIC I Regular
Interest") will relate to a specific Mortgage Loan. Each Corresponding REMIC I
Regular Interest (other than the REMIC I Pooled Regular Interest and the REMIC I
Non-Pooled Regular Interest) will have a pass-through rate equal to the REMIC I
Net Mortgage Rate of the related Mortgage Loan, an initial principal amount (the
initial "Certificate Balance") equal to the Scheduled Principal Balance as of
the Cut-Off Date of the Mortgage Loan to which the Corresponding REMIC I Regular
Interest relates, and a "latest possible maturity date" set to the Maturity Date
of the Mortgage Loan to which the Corresponding REMIC I Regular Interest
relates. Each of the REMIC I Pooled Regular Interest and the REMIC I Non-Pooled
Regular Interest (each of which are Corresponding REMIC I Regular Interests with
respect to the Lakeforest Mall Mortgage Loan) will have a pass-through rate
equal to its REMIC I Net Mortgage Rate and a "latest possible maturity date" set
to the Maturity Date of the Lakeforest Mall Mortgage Loan. The REMIC I Pooled
Regular Interest and the REMIC I Non-Pooled Regular Interest have an initial
Certificate Balance equal to the Lakeforest Mall Mortgage Loan Pooled Balance
and the Lakeforest Mall Mortgage Loan Non-Pooled Balance, respectively, in each
case as of the Closing Date. The Class R-I Certificate will be designated as the
sole Class of residual interests in REMIC I and will have no Certificate Balance
and no Pass-Through Rate, but will be entitled to receive the proceeds of any
assets remaining in REMIC I after all Classes of REMIC I Regular Interests have
been paid in full.
REMIC II
The REMIC II Regular Interests have the pass-through rates and
Certificate Balances set forth in the definition thereof. The Class R-II
Certificates will be designated as the sole Class of residual interests in REMIC
II and will have no Certificate Balance and no Pass-Through Rate, but will be
entitled to receive the proceeds of any assets remaining in REMIC II after all
Classes of REMIC II Regular Interests have been paid in full.
The following table sets forth the Class designation, the
corresponding REMIC II Regular Interest (the "CORRESPONDING REMIC II REGULAR
INTEREST") and the initial Certificate Balance for each Class of Principal
Balance Certificates (the "CORRESPONDING CERTIFICATES").
CORRESPONDING INITIAL REMIC II
CORRESPONDING INITIAL CLASS REMIC II REGULAR REGULAR INTEREST
CERTIFICATES CERTIFICATE BALANCE INTERESTS CERTIFICATE BALANCE
------------- ------------------- ---------------- -------------------
Class A-1 $126,750,000 A-1 $126,750,000
Class A-2 $189,450,000 A-2 $189,450,000
Class A-3 $176,000,000 A-3 $176,000,000
Class A-AB $142,600,000 A-AB $142,600,000
Class A-4A $954,956,000 A-4A $954,956,000
Class A-4B $130,816,000 A-4B $130,816,000
Class A-J $147,699,000 A-J $147,699,000
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CORRESPONDING INITIAL REMIC II
CORRESPONDING INITIAL CLASS REMIC II REGULAR REGULAR INTEREST
CERTIFICATES CERTIFICATE BALANCE INTERESTS CERTIFICATE BALANCE
------------- ------------------- ---------------- -------------------
Class B $15,548,000 B $15,548,000
Class C $20,730,000 C $20,730,000
Class D $15,547,000 D $15,547,000
Class E $28,503,000 E $28,503,000
Class F $18,139,000 F $18,139,000
Class G $18,139,000 G $18,139,000
Class H $23,321,000 H $23,321,000
Class J $18,138,000 J $18,138,000
Class K $ 5,183,000 K $ 5,183,000
Class L $ 7,773,000 L $ 7,773,000
Class M $ 7,774,000 M $ 7,774,000
Class N $ 2,591,000 N $ 2,591,000
Class O $ 2,591,000 O $ 2,591,000
Class P $ 5,183,000 P $ 5,183,000
Class Q $15,547,628 Q $15,547,628
Class LF $20,000,000 LF $20,000,000
REMIC III AND CLASS Q GRANTOR TRUST
The following sets forth the Class designation, Pass-Through Rate,
initial Aggregate Certificate Balance (or initial Notional Amount) and Final
Scheduled Distribution Date for each Class of REMIC III Certificates comprising
the interests in REMIC III created hereunder, and in the case of the Class Q
Certificates, the beneficial ownership interest in the Class Q Grantor Trust.
INITIAL AGGREGATE FINAL SCHEDULED
REMIC III INTEREST INITIAL PASS- CERTIFICATE BALANCE DISTRIBUTION
DESIGNATION THROUGH RATE(A) OR NOTIONAL AMOUNT DATE(B)
------------------ --------------- ------------------- ---------------
Class A-1 4.940% $ 126,750,000 07/12/2010
Class A-2 5.127% $ 189,450,000 10/12/2010
Class A-3 5.303% $ 176,000,000 10/12/2012
Class A-AB 5.287% $ 142,600,000 10/12/2014
Class A-4A 5.303% $ 954,956,000 09/12/2015
Class A-4B 5.303% $ 130,816,000 10/12/2015
Class A-J 5.303% $ 147,699,000 11/12/2015
Class X 0.047% $2,072,978,628 09/12/2025
Class B 5.303% $ 15,548,000 11/12/2015
Class C 5.303% $ 20,730,000 11/12/2015
Class D 5.303% $ 15,547,000 11/12/2015
Class E 5.303% $ 28,503,000 11/12/2015
Class F 5.303% $ 18,139,000 11/12/2015
Class G 5.303% $ 18,139,000 11/12/2015
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INITIAL AGGREGATE FINAL SCHEDULED
REMIC III INTEREST INITIAL PASS- CERTIFICATE BALANCE DISTRIBUTION
DESIGNATION THROUGH RATE(A) OR NOTIONAL AMOUNT DATE(B)
------------------ --------------- ------------------- ---------------
Class H 5.303% $23,321,000 05/12/2016
Class J 5.303% $18,138,000 09/12/2016
Class K 4.973% $ 5,183,000 11/12/2016
Class L 4.973% $ 7,773,000 10/12/2018
Class M 4.973% $ 7,774,000 06/12/2020
Class N 4.973% $ 2,591,000 08/12/2020
Class O 4.973% $ 2,591,000 08/12/2020
Class P 4.973% $ 5,183,000 10/12/2021
Class Q(c) 4.973% $15,547,628 09/12/2025
Class LF 5.057% $20,000,000 07/12/2010
Class R-III(d) N/A N/A N/A
(a) On each Distribution Date after the initial Distribution Date, the
Pass-Through Rate for each Class of Certificates (other than the Residual
Certificates) will be determined as described herein under the definition
of "Pass-Through Rate." The initial Pass-Through Rates shown above are
approximate for the Class A-3, Class A-AB, Class X-0X, Xxxxx X-0X, Xxxxx
X-X, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class
J, Class X and Class LF Certificates.
(b) The Final Scheduled Distribution Date for each Class of Certificates is the
Distribution Date on which such Class is expected to be paid in full,
assuming that timely payments (and no prepayments) will be made on the
Mortgage Loans in accordance with their terms (except that each ARD Loan
will be prepaid in full on its Anticipated Repayment Date).
(c) The Class Q Certificates represent ownership of a REMIC III Regular
Interest (entitled to the principal and interest set forth above). In
addition, the Class Q Certificates will be entitled to Excess Interest
(which will not be a part of any REMIC Pool). The parties intend that (i)
the portion of the Trust representing the Excess Interest and the Excess
Interest Sub-account shall be treated as a grantor trust under subpart E of
Part 1 of subchapter J of Chapter 1 of Subtitle A of the Code and (ii) the
Class Q Certificates (other than the portion thereof consisting of a REMIC
III Regular Interest) shall represent undivided beneficial interests in the
portion of the Trust consisting of the entitlement to receive Excess
Interest (the "Class Q Grantor Trust").
(d) The Class R-III Certificates will be entitled to receive the proceeds of
any remaining assets in REMIC III after the principal amounts of all
Classes of Certificates have been reduced to zero and any Realized Losses
previously allocated thereto (and any interest thereon) have been
reimbursed.
As of the Cut-Off Date, the Mortgage Loans had an Aggregate Principal
Balance of $2,072,978,628, which balance does not include the Lakeforest Mall
Mortgage Loan Non-Pooled Component.
As provided herein, with respect to the Trust, the Paying Agent on
behalf of the Trustee will make an election for the segregated pool of assets
described in the first paragraph of Section 12.1(a) hereof (including the
Mortgage Loans (other than any Excess Interest payable with respect to such
Mortgage Loans)) to be treated for federal income tax purposes as a real estate
mortgage investment conduit ("REMIC I"). The REMIC I Regular Interests will be
designated as the "regular interests" in REMIC I and the Class R-I Certificates
will be designated as the sole Class of "residual interests" in REMIC I for
purposes of the REMIC Provisions.
As provided herein, with respect to the Trust, the Paying Agent on
behalf of the Trustee will make an election for the segregated pool of assets
described in the second paragraph of Section 12.1(a) hereof consisting of the
REMIC I Regular Interests to be treated for federal income tax purposes as a
real estate mortgage investment conduit ("REMIC II"). The REMIC II Regular
Interests will be designated as the "regular interests" in REMIC II and the
Class R-II
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Certificates will be designated as the sole Class of "residual interests" in
REMIC II for purposes of the REMIC Provisions.
As provided herein, with respect to the Trust, the Paying Agent on
behalf of the Trustee will make an election for the segregated pool of assets
described in the third paragraph of Section 12.1(a) hereof consisting of the
REMIC II Regular Interests to be treated for federal income tax purposes as a
real estate mortgage investment conduit ("REMIC III"). The REMIC III Regular
Interests (including, in the case of the Class Q Certificates, the Class Q REMIC
Interest represented by the Class Q Certificates) will be designated as the
"regular interests" in REMIC III and the Class R-III Certificates (together with
the REMIC Regular Certificates, the "REMIC III Certificates") will be designated
as the sole Class of "residual interests" in REMIC III for purposes of the REMIC
Provisions.
CLASS Q GRANTOR TRUST
As provided herein, with respect to the Trust, the Paying Agent on
behalf of the Trustee will treat the right to any Excess Interest in respect of
the ARD Loans and the Excess Interest Sub-Account as a grantor trust under
Subpart E of Part I of Subchapter J of the Code.
ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINITIONS. Whenever used in this Agreement, the
following words and phrases, unless the context otherwise requires, shall have
the following meanings:
"A NOTE" means, with respect to any A/B Mortgage Loan, the mortgage
note (or notes) included in the Trust that is senior in right of payment to the
related B Note to the extent set forth in the related Intercreditor Agreement.
"A/B LOAN CUSTODIAL ACCOUNT" means each of the custodial
sub-account(s) of the Certificate Account (but which are not included in the
Trust) created and maintained by the Master Servicer pursuant to Section 5.1(c)
on behalf of the holder of a related B Note. Any such sub-account(s) shall be
maintained as a sub-account of an Eligible Account.
"A/B MORTGAGE LOAN" means each of the PCF A/B Mortgage Loans and any
Mortgage Loan serviced under this Agreement that is divided into a senior
mortgage note and a subordinated mortgage note, which senior mortgage note is
included in the Trust. References herein to an A/B Mortgage Loan shall be
construed to refer to the aggregate indebtedness under the related A Note and
the related B Note.
"ACCOUNTANT" means a person engaged in the practice of accounting who
is Independent.
"ACCRUED CERTIFICATE INTEREST" means with respect to each Distribution
Date and any Class of Interests or Principal Balance Certificates or Class LF
Certificates, other than the Residual Certificates, interest accrued during the
Interest Accrual Period relating to such Distribution Date on the Aggregate
Certificate Balance of such Class or Interest as of the close of business on the
immediately preceding Distribution Date at the respective rates per annum set
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forth in the definition of the applicable Pass-Through Rate for each such Class.
Accrued Certificate Interest on the Class X Certificates for each Distribution
Date will equal the Class X Interest Amount.
"ACQUISITION DATE" means the date upon which, under the Code (and in
particular the REMIC Provisions and Section 856(e) of the Code), the Trust or a
REMIC Pool is deemed to have acquired a Mortgaged Property (or an interest
therein, in the case of the Mortgaged Properties securing any A/B Mortgage Loan,
Non-Serviced Mortgage Loan, Non-Serviced Companion Mortgage Loan and Loan Pair).
"ADDITIONAL REVIEW PERIOD" has the meaning set forth in Section
9.4(d).
"ADDITIONAL TRUST EXPENSE" means any of the following items: (i)
Special Servicing Fees, Work-Out Fees and Liquidation Fees (to the extent not
collected from the related Mortgagor); (ii) Advance Interest that cannot be paid
in accordance with Section 4.6(c); (iii) amounts paid to indemnify the Master
Servicer, the Special Servicer, any applicable Non-Serviced Mortgage Loan Master
Servicer, any applicable Non-Serviced Mortgage Loan Special Servicer, the
Primary Servicer, the Trustee, the Paying Agent, the Fiscal Agent (or any other
Person) pursuant to the terms of this Agreement; (iv) to the extent not
otherwise paid, any federal, state, or local taxes imposed on the Trust or its
assets and paid from amounts on deposit in the Certificate Account or
Distribution Account; and (v) to the extent not otherwise included in the
calculation of a Realized Loss and not covered by indemnification by one of the
parties hereto or otherwise, any other unanticipated cost, liability, or expense
(or portion thereof) of the Trust (including costs of collecting such amounts or
other Additional Trust Expenses) that the Trust has not recovered, and in the
judgment of the Master Servicer (or Special Servicer) will not, recover from the
related Mortgagor or Mortgaged Property or otherwise, including a Modification
Loss described in clause (ii) of the definition thereof; provided, however,
that, in the case of an A/B Mortgage Loan, "Additional Trust Expense" shall not
include any of the foregoing amounts that have been recovered from the related
Mortgagor or Mortgaged Property as a result of the subordination of the related
B Note in accordance with the terms of the related Intercreditor Agreement.
Notwithstanding anything to the contrary, "Additional Trust Expenses" shall not
include allocable overhead of the Master Servicer, the Special Servicer, any
Non-Serviced Mortgage Loan Master Servicer, any Non-Serviced Mortgage Loan
Special Servicer, the Trustee, the Paying Agent, the Certificate Registrar or
the Fiscal Agent, such as costs for office space, office equipment, supplies and
related expenses, employee salaries and related expenses, and similar internal
costs and expenses.
"ADMINISTRATIVE COST RATE" means with respect to each Mortgage Loan,
the sum of the Master Servicing Fee Rate, the Primary Servicing Fee Rate, the
Excess Servicing Fee Rate, the Trustee Fee Rate and in the case of any
Non-Serviced Mortgage Loan, the related Pari Passu Loan Servicing Fee Rate.
"ADVANCE" means either a P&I Advance or a Servicing Advance.
"ADVANCE INTEREST" means interest payable to the Master Servicer, the
Special Servicer, the Trustee or the Fiscal Agent on outstanding Advances (other
than Unliquidated Advances) pursuant to Section 4.5 of this Agreement and any
interest payable to any Non-
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Serviced Mortgage Loan Master Servicer, any Non-Serviced Mortgage Loan Trustee
or any Non-Serviced Mortgage Loan Fiscal Agent with respect to Pari Passu Loan
Nonrecoverable Advances pursuant to Section 4.4(b) hereof.
"ADVANCE RATE" means a per annum rate equal to the Prime Rate as
published in the "Money Rates" section of The Wall Street Journal from time to
time or such other publication as determined by the Trustee in its reasonable
discretion.
"ADVANCE REPORT DATE" means the second Business Day prior to each
Distribution Date.
"ADVERSE GRANTOR TRUST EVENT" means any action that, under the Code,
if taken or not taken, as the case may be, would either (i) endanger the status
of the Grantor Trust Pool as a grantor trust or (ii) result in the imposition of
a tax upon the income of the Grantor Trust Pool or its respective assets or
transactions.
"ADVERSE REMIC EVENT" means any action that, under the REMIC
Provisions, if taken or not taken, as the case may be, would either (i) endanger
the status of any REMIC Pool as a REMIC or (ii) subject to Section 9.14(e),
result in the imposition of a tax upon the income of any REMIC Pool or any of
their respective assets or transactions, including (without limitation) the tax
on prohibited transactions as defined in Section 860F(a)(2) of the Code and the
tax on prohibited contributions set forth in Section 860G(d) of the Code.
"AFFILIATE" means, with respect to any specified Person, any other
Person controlling or controlled by or under common control with such specified
Person. For the purposes of this definition, "control" when used with respect to
any specified Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"AGGREGATE CERTIFICATE BALANCE" means the aggregate of the Certificate
Balances of the Principal Balance Certificates, the REMIC I Regular Interests,
the REMIC II Regular Interests or REMIC III Regular Interests, as the case may
be, at any date of determination. With respect to a Class of Principal Balance
Certificates, REMIC I Regular Interests, REMIC II Regular Interests or REMIC III
Regular Interests, Aggregate Certificate Balance shall mean the aggregate of the
Certificate Balances of all Certificates or Interests, as the case may be, of
that Class at any date of determination.
"AGGREGATE PRINCIPAL BALANCE" means, at the time of any determination
and as the context may require, the aggregate of the Scheduled Principal
Balances for all Mortgage Loans.
"AGREEMENT" means this Pooling and Servicing Agreement and all
amendments and supplements hereto.
"ANTICIPATED REPAYMENT DATE" means, with respect to each ARD Loan, the
anticipated maturity date set forth in the related Mortgage Note.
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"APPRAISAL" means an appraisal by an Independent licensed MAI
appraiser having at least five years experience in appraising property of the
same type as, and in the same geographic area as, the Mortgaged Property being
appraised, which appraisal complies with the Uniform Standards of Professional
Appraisal Practices and states the "market value" of the subject property as
defined in 12 C.F.R. Section 225.62.
"APPRAISAL EVENT" means, with respect to any Mortgage Loan, A/B
Mortgage Loan or Loan Pair, not later than the earliest of (i) the date 120 days
after the occurrence of any delinquency in payment with respect to such Mortgage
Loan, A/B Mortgage Loan or Loan Pair if such delinquency remains uncured, (ii)
the date 30 days after receipt of notice that the related Mortgagor has filed a
bankruptcy petition or the related Mortgagor has become the subject of
involuntary bankruptcy proceedings or the related Mortgagor has consented to the
filing of a bankruptcy proceeding against it or a receiver is appointed in
respect of the related Mortgaged Property, provided such petition or appointment
is still in effect, (iii) the date that is 30 days following the date the
related Mortgaged Property becomes an REO Property and (iv) the effective date
of any modification to a Money Term of a Mortgage Loan, A/B Mortgage Loan or
Loan Pair, other than an extension of the date that a Balloon Payment is due for
a period of less than six months from the original due date of such Balloon
Payment.
"APPRAISAL REDUCTION" means, with respect to any Required Appraisal
Loan with respect to which an Appraisal or internal valuation is performed
pursuant to Section 6.9, an amount equal to the excess of (A) the sum of (i) the
Scheduled Principal Balance of such Mortgage Loan (including the Lakeforest Mall
Mortgage Loan Non-Pooled Component, if applicable), Loan Pair or A/B Mortgage
Loan (or, in the case of an REO Property, the related REO Mortgage Loan) less
the principal amount of any guaranty or surety bond with a rating of at least
"BBB-" (or its equivalent) by a nationally recognized statistical rating
organization and the undrawn principal amount of any letter of credit or debt
service reserve, if applicable, that is then securing such Mortgage Loan or Loan
Pair, (ii) to the extent not previously advanced by the Master Servicer, the
Trustee or the Fiscal Agent, all accrued and unpaid interest on such Mortgage
Loan, Loan Pair or A/B Mortgage Loan at a per annum rate equal to the Mortgage
Rate, (iii) all unreimbursed Advances (including Unliquidated Advances) and
interest on Advances (other than Unliquidated Advances) at the Advance Rate with
respect to such Mortgage Loan (including the Lakeforest Mall Mortgage Loan
Non-Pooled Component, if applicable), Loan Pair or A/B Mortgage Loan, and (iv)
to the extent funds on deposit in any applicable Escrow Accounts are not
sufficient therefor, and to the extent not previously advanced by the Master
Servicer, the Special Servicer, the Trustee or the Fiscal Agent, all currently
due and unpaid real estate taxes and assessments, insurance premiums and, if
applicable, ground rents and other amounts which were required to be deposited
in any Escrow Account (but were not deposited) in respect of such Mortgaged
Property or REO Property, as the case may be, over (B) 90% of the Appraised
Value (net of any prior mortgage liens) of such Mortgaged Property or REO
Property as determined by such Appraisal or internal valuation, as the case may
be, plus the full amount of any escrows held by or on behalf of the Trustee as
security for the Mortgage Loan (including the Lakeforest Mall Mortgage Loan
Non-Pooled Component, if applicable), Loan Pair or A/B Mortgage Loan (less the
estimated amount of the obligations anticipated to be payable in the next twelve
months to which such escrows relate). Each Appraisal or internal valuation for a
Required Appraisal Loan shall be updated annually for so long as an Appraisal
Reduction exists. The Appraisal Reduction for each Required Appraisal Loan will
be recalculated annually based
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on subsequent Appraisals, internal valuations or updates. In addition, the
Operating Adviser (including, without limitation, any request of (i) a B Note
holder with respect to the related A/B Mortgage Loan (or Operating Adviser on
its behalf) if there shall have been a determination that such holder will no
longer be the directing holder and (ii) the Lakeforest Mall Mortgage Loan
Operating Adviser with respect to the Lakeforest Mall Mortgage Loan) may at any
time request the Special Servicer to obtain, at the Operating Adviser's (or the
Lakeforest Mall Loan Operating Adviser's, as applicable) expense, an updated
Appraisal, with a corresponding adjustment to the amount of the Appraisal
Reduction. Any Appraisal Reduction for any Mortgage Loan (including the
Lakeforest Mall Mortgage Loan Non-Pooled Component, if applicable), Loan Pair or
A/B Mortgage Loan shall be reduced to reflect any Realized Principal Losses on
the Required Appraisal Loan (including the Lakeforest Mall Mortgage Loan
Non-Pooled Component, if applicable), Loan Pair or A/B Mortgage Loan. Each
Appraisal Reduction will be reduced to zero as of the date the related Mortgage
Loan (including the Lakeforest Mall Mortgage Loan Non-Pooled Component, if
applicable), Loan Pair or A/B Mortgage Loan is brought current under the then
current terms of the Mortgage Loan, Loan Pair or A/B Mortgage Loan for at least
three consecutive months, and no Appraisal Reduction will exist as to any
Mortgage Loan (including the Lakeforest Mall Mortgage Loan Non-Pooled Component,
if applicable), Loan Pair or A/B Mortgage Loan after it has been paid in full,
liquidated, repurchased or otherwise disposed of. Any Appraisal Reduction in
respect of any Non-Serviced Mortgage Loan shall be calculated in accordance with
the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement based
upon the applicable allocation of the items set forth in clauses (A) and (B)
above between the Non-Serviced Mortgage Loans and the related Non-Serviced
Companion Mortgage Loans and all other related pari passu loans. Any Appraisal
Reduction in respect of any Loan Pair shall be allocated, as between a Serviced
Pari Passu Mortgage Loan and the related Serviced Companion Mortgage Loan, pro
rata according to their respective Principal Balances. Any Appraisal Reduction
with respect to an A/B Mortgage Loan shall be allocated first to the related B
Note, up to the Principal Balance thereof, and any excess shall be allocated to
the related A Note. In the case of the Lakeforest Mall Mortgage Loan, any
Appraisal Reduction will be calculated in respect of the Lakeforest Mall
Mortgage Loan taken as a whole and any such Appraisal Reduction will be
allocated first to the Lakeforest Mall Loan Non-Pooled Component and then
allocated to the Lakeforest Mall Mortgage Loan Pooled Component.
"APPRAISED VALUE" means, (i) with respect to any Mortgaged Property
(other than the Mortgaged Property relating to a Non-Serviced Mortgage Loan),
the appraised value thereof determined by an Appraisal of the Mortgaged Property
securing such Mortgage Loan made by an Independent appraiser selected by the
Master Servicer or the Special Servicer, as applicable or, in the case of an
internal valuation performed by the Special Servicer pursuant to Section 6.9,
the value of the Mortgaged Property determined by such internal valuation and
(ii) with respect to the Mortgaged Property relating to a Non-Serviced Mortgage
Loan, the portion of the appraised value allocable thereto.
"ARD LOAN" means any Mortgage Loan designated as such on the Mortgage
Loan Schedule.
"ASSIGNMENT OF LEASES" means, with respect to any Mortgage Loan, any
assignment of leases, rents and profits or equivalent instrument, whether
contained in the related Mortgage or executed separately, assigning to the
holder or holders of such Mortgage all of the
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related Mortgagor's interest in the leases, rents and profits derived from the
ownership, operation, leasing or disposition of all or a portion of the related
Mortgaged Property as security for repayment of such Mortgage Loan.
"ASSIGNMENT OF MORTGAGE" means an assignment of the Mortgage, notice
of transfer or equivalent instrument, in recordable form, sufficient under the
laws of the jurisdiction wherein the related Mortgaged Property is located to
reflect the transfer of the Mortgage to the Trustee, which assignment, notice of
transfer or equivalent instrument may be in the form of one or more blanket
assignments covering the Mortgage Loans secured by Mortgaged Properties located
in the same jurisdiction, if permitted by law.
"ASSUMED SCHEDULED PAYMENT" means: (i) with respect to any Balloon
Mortgage Loan or any B Note as to which advancing is required hereunder for its
Maturity Date (provided that such Mortgage Loan or B Note has not been paid in
full, and no Final Recovery Determination or other sale or liquidation has
occurred in respect thereof, on or before the end of the Collection Period in
which such Maturity Date occurs) and for any subsequent Due Date therefor as of
which such Mortgage Loan or such B Note remains outstanding and part of the
Trust, if no Scheduled Payment (other than the related delinquent Balloon
Payment) is due for such Due Date, the scheduled monthly payment of principal
and/or interest deemed to be due in respect thereof on such Due Date equal to
the Scheduled Payment that would have been due in respect of such Mortgage Loan
or such B Note on such Due Date, if it had been required to continue to accrue
interest in accordance with its terms, and to pay principal in accordance with
the amortization schedule in effect immediately prior to, and without regard to
the occurrence of, its most recent Maturity Date (as such may have been extended
in connection with a bankruptcy or similar proceeding involving the related
Mortgagor or a modification, waiver or amendment of such Mortgage Loan or such B
Note granted or agreed to by the Master Servicer or the Special Servicer
pursuant to the terms hereof), and (ii) with respect to any REO Mortgage Loan
for any Due Date therefor as of which the related REO Property remains part of
the Trust, the scheduled monthly payment of principal and interest deemed to be
due in respect thereof on such Due Date equal to the Scheduled Payment (or, in
the case of a Balloon Mortgage Loan or B Note described in the preceding clause
of this definition, the Assumed Scheduled Payment) that was due in respect of
the related Mortgage Loan or the related B Note on the last Due Date prior to
its becoming an REO Mortgage Loan. The amount of the Assumed Scheduled Payment
for any A Note or B Note shall be calculated solely by reference to the terms of
such A Note or B Note, as applicable (as modified in connection with any
bankruptcy or similar proceeding involving the related Mortgagor or pursuant to
a modification, waiver or amendment of such Mortgage Loan granted or agreed to
by the Master Servicer or the Special Servicer pursuant to the terms hereof) and
without regard to the remittance provisions of the related Intercreditor
Agreement.
"AUTHENTICATING AGENT" means any authenticating agent serving in such
capacity pursuant to Section 7.10.
"AUTHORIZED OFFICER" means any Person that may execute an Officer's
Certificate on behalf of the Depositor.
"AVAILABLE ADVANCE REIMBURSEMENT AMOUNT" has the meaning set forth in
Section 4.6(a).
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"AVAILABLE DISTRIBUTION AMOUNT" means, with respect to any
Distribution Date, an amount equal to the aggregate of (a) all amounts on
deposit in the Distribution Account as of the commencement of business on such
Distribution Date that represent payments and other collections on or in respect
of the Mortgage Loans (excluding the portion of amounts received on the
Lakeforest Mall Mortgage Loan that are allocated to the Lakeforest Mall Mortgage
Loan Non-Pooled Component) and any REO Properties that were received by the
Master Servicer or the Special Servicer through the end of the related
Collection Period exclusive of (i) any such amounts that were deposited in the
Distribution Account in error, (ii) amounts that are payable or reimbursable to
any Person other than the Certificateholders (including amounts payable to the
Master Servicer in respect of unpaid Master Servicing Fees, the Primary Servicer
in respect of unpaid Primary Servicing Fees, the Special Servicer in respect of
unpaid Special Servicer Compensation, the Trustee in respect of unpaid Trustee
Fees, the Paying Agent in respect of unpaid Paying Agent Fees or to the parties
entitled thereto in respect of the unpaid Excess Servicing Fees), (iii) amounts
that constitute Prepayment Premiums, (iv) if such Distribution Date occurs
during January, other than in a leap year, or February of any year, the Interest
Reserve Amounts with respect to Interest Reserve Loans deposited in the Interest
Reserve Account, (v) in the case of each REO Property related to an A/B Mortgage
Loan or Loan Pair, all amounts received with respect to such A/B Mortgage Loan
or Loan Pair that are required to be paid to the holder of the related B Note or
Serviced Companion Mortgage Loan, as applicable, pursuant to the terms of the
related B Note or Serviced Companion Mortgage Loan, as applicable, and the
related Intercreditor Agreement or Loan Pair Intercreditor Agreement (which
amounts will be deposited into the related A/B Loan Custodial Account or
Serviced Companion Mortgage Loan Custodial Account, as applicable, pursuant to
Section 5.1(c) and withdrawn from such accounts pursuant to Section 5.2(a)) and
(vi) Scheduled Payments collected but due on a Due Date subsequent to the
related Collection Period and (b) if and to the extent not already among the
amounts described in clause (a), (i) the aggregate amount of any P&I Advances
made by the Master Servicer, the Trustee or the Fiscal Agent for such
Distribution Date pursuant to Section 4.1 and/or Section 4.3, (ii) the aggregate
amount of any Compensating Interest payments made by the Master Servicer for
such Distribution Date pursuant to the terms hereof, and (iii) if such
Distribution Date occurs in March of any year, commencing March 2006, the
aggregate of the Interest Reserve Amounts (in the case of the Lakeforest Mall
Mortgage Loan, the portion of the Interest Reserve amount for the Lakeforest
Mall Mortgage Loan Pooled Component) then held on deposit in the Interest
Reserve Account in respect of each Interest Reserve Loan.
"B NOTE" means, with respect to any A/B Mortgage Loan, the related
subordinated Mortgage Note not included in the Trust, which is subordinated in
right of payment to the related A Note to the extent set forth in the related
Intercreditor Agreement.
"BALLOON MORTGAGE LOAN" means a Mortgage Loan, a Serviced Companion
Mortgage Loan or a B Note that provides for Scheduled Payments based on an
amortization schedule that is significantly longer than its term to maturity and
that is expected to have a remaining principal balance equal to or greater than
5% of its original principal balance as of its stated maturity date, unless
prepaid prior thereto.
"BALLOON PAYMENT" means, with respect to any Balloon Mortgage Loan,
the Scheduled Payment payable on the Maturity Date of such Mortgage Loan.
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"BANKRUPTCY LOSS" means a loss arising from a proceeding under the
United States Bankruptcy Code or any other similar state law or other proceeding
with respect to the Mortgagor of, or Mortgaged Property under, a Mortgage Loan,
including, without limitation, any Deficient Valuation Amount or losses, if any,
resulting from any Debt Service Reduction Amount for the month in which the
related Remittance Date occurs.
"BASE INTEREST FRACTION" means, with respect to any Principal
Prepayment of any Mortgage Loan that provides for payment of a Prepayment
Premium, and with respect to any Class of Certificates, a fraction (A) whose
numerator is the greater of (x) zero and (y) the difference between (i) the
Pass-Through Rate on that Class of Certificates and (ii) the Discount Rate used
in calculating the Prepayment Premium with respect to the Principal Prepayment
(or the current Discount Rate if not used in such calculation) and (B) whose
denominator is the difference between (i) the Mortgage Rate on the related
Mortgage Loan and (ii) the Discount Rate used in calculating the Prepayment
Premium with respect to that Principal Prepayment (or the current Discount Rate
if not used in such calculation), provided, however, that under no circumstances
will the Base Interest Fraction be greater than one. If the Discount Rate
referred to above is greater than the Mortgage Rate on the related Mortgage
Loan, then the Base Interest Fraction will equal zero.
"BENEFIT PLAN OPINION" means an Opinion of Counsel satisfactory to the
Paying Agent and the Master Servicer to the effect that any proposed transfer
will not (i) cause the assets of the Trust to be regarded as plan assets for
purposes of the Plan Asset Regulations or (ii) give rise to any fiduciary duty
on the part of the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent, the Certificate Registrar or the Fiscal Agent.
"BOOK-ENTRY CERTIFICATES" means certificates evidencing a beneficial
interest in a Class of Certificates, ownership and transfer of which shall be
made through book entries as described in Section 3.7; provided, that after the
occurrence of a condition whereupon book-entry registration and transfer are no
longer authorized and Definitive Certificates are to be issued to the
Certificate Owners, such certificates shall no longer be "Book-Entry
Certificates."
"BSCMI" has the meaning set forth in the Preliminary Statement hereto.
"BSCMI LOANS" means, collectively, those Mortgage Loans sold to the
Depositor pursuant to the Mortgage Loan Purchase Agreement I and shown on
Schedule I hereto.
"BUSINESS DAY" means any day other than (i) a Saturday or a Sunday,
(ii) a legal holiday in New York, New York, Chicago, Illinois, Des Moines, Iowa
(but only with respect to matters related to the performance of obligations of
Principal Global Investors, LLC as Primary Servicer under the Primary Servicing
Agreement), San Francisco, California or the principal cities in which the
Special Servicer, the Trustee, the Paying Agent or the Master Servicer conducts
servicing or trust operations, or (iii) a day on which banking institutions or
savings associations in Minneapolis, Minnesota, Columbia, Maryland, New York,
New York, Chicago, Illinois or San Francisco, California are authorized or
obligated by law or executive order to be closed.
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"CASH LIQUIDATION" means, as to any Defaulted Mortgage Loan other than
a Mortgage Loan with respect to which the related Mortgaged Property became REO
Property, the sale of such Defaulted Mortgage Loan. The Master Servicer shall
maintain records in accordance with the Servicing Standard (and, in the case of
Specially Serviced Mortgage Loans, based on the written reports with respect to
such Cash Liquidation delivered by the Special Servicer to the Master Servicer),
of each Cash Liquidation.
"CATEGORY 1 REQUEST" means a "Category 1 Request" and a "Deemed
Category 1 Request" as such terms are defined in the Primary Servicing
Agreement.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended (42 U.S.C. Section 9601, et seq.).
"CERTIFICATE ACCOUNT" means one or more separate accounts established
and maintained by the Master Servicer (or any Sub-Servicer or Primary Servicer
on behalf of the Master Servicer) pursuant to Section 5.1(a), each of which
shall be an Eligible Account.
"CERTIFICATE BALANCE" means, with respect to any Certificate (other
than the Class X Certificates and the Residual Certificates) or Interest as of
any Distribution Date, the maximum specified dollar amount of principal to which
the Holder thereof is then entitled hereunder, such amount being equal to the
initial principal amount set forth on the face of such Certificate (in the case
of a Certificate), or as ascribed thereto in the Preliminary Statement hereto
(in the case of an Interest), minus (A)(i) the amount of all principal
distributions previously made with respect to such Certificate pursuant to
Section 6.5(a) or 6.5(b), as the case may be, or deemed to have been made with
respect to such Interest pursuant to Section 6.2(a), 6.2(b), 6.2(c) or Section
6.3(a), as the case may be, and (ii) all Realized Losses allocated or deemed to
have been allocated to such Interest or Certificate in reduction of Certificate
Balance pursuant to Section 6.6, plus (B) an amount equal to the amounts
identified in clause (I)(C) of the definition of Principal Distribution Amount
with respect to such Distribution Date, such increases to be allocated to the
Principal Balance Certificates or Interests in sequential order (i.e. to the
most senior Class first), in each case up to the amount of Realized Losses
previously allocated thereto and not otherwise reimbursed hereunder.
"CERTIFICATE OWNER" means, with respect to a Book-Entry Certificate,
the Person who is the beneficial owner of such Book-Entry Certificate, as may be
reflected on the books of the Clearing Agency, or on the books of a Person
maintaining an account with such Clearing Agency (directly or as an indirect
participant, in accordance with the rules of such Clearing Agency).
"CERTIFICATE REGISTER" has the meaning set forth in Section 3.2.
"CERTIFICATE REGISTRAR" means the registrar appointed pursuant to
Section 3.2 and initially shall be the Paying Agent.
"CERTIFICATEHOLDERS" has the meaning set forth in the definition of
"Holder."
"CERTIFICATES" means, collectively, the REMIC III Certificates, the
Class R-I Certificates and the Class R-II Certificates.
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"CERTIFICATION PARTIES" has the meaning set forth in Section 8.26(b).
"CERTIFYING PERSON" has the meaning set forth in Section 8.26(b).
"CIRCLE K PORTFOLIO POD 3 MORTGAGE LOAN" means the Mortgage Loan
designated as Mortgage Loan Nos. 107-116 on the Mortgage Loan Schedule.
"CIRCLE K PORTFOLIO POD 10 MORTGAGE LOAN" means the Mortgage Loan
designated as Mortgage Loan Nos. 124-133 on the Mortgage Loan Schedule.
"CIRCLE K PORTFOLIO POD MORTGAGE LOANS" means the Circle K Portfolio
Pod 3 Mortgage Loan and the Circle K Portfolio Pod 10 Mortgage Loan.
"CLASS" means, with respect to the REMIC I Interests, REMIC II
Interests or REMIC III Certificates, any Class of such Certificates or
Interests.
"CLASS A-1 CERTIFICATES," "CLASS A-2 CERTIFICATES," "CLASS A-3 CERTIFICATES,"
"CLASS A-AB CERTIFICATES," "CLASS A-4A CERTIFICATES," "CLASS A-4B CERTIFICATES,"
"CLASS A-J CERTIFICATES," "CLASS X CERTIFICATES," "CLASS B CERTIFICATES," "CLASS
C CERTIFICATES," "CLASS D CERTIFICATES," "CLASS E CERTIFICATES," "CLASS F
CERTIFICATES," "CLASS G CERTIFICATES," "CLASS H CERTIFICATES," "CLASS J
CERTIFICATES," "CLASS K CERTIFICATES," "CLASS L CERTIFICATES," "CLASS M
CERTIFICATES," "CLASS N CERTIFICATES," "CLASS O CERTIFICATES," "CLASS P
CERTIFICATES," "CLASS Q CERTIFICATES," "CLASS LF CERTIFICATES," "CLASS R-I
CERTIFICATES," "CLASS R-II CERTIFICATES" or "CLASS R-III CERTIFICATES," mean the
Certificates designated as "Class A-1," "Class A-2," "Class X-0," "Xxxxx X-XX,"
"Class A-4A," "Class X-0X," "Xxxxx X-X," "Class X," "Class B," "Class C," "Class
D," "Class E," "Class F," "Class G," "Class H," "Class J," "Class K," "Class L,"
"Class M," "Class N," "Class O," "Class P," "Class Q," "Class LF," "Class R-I,"
"Class R-II" and "Class R-III" respectively, on the face thereof, in
substantially the form attached hereto as Exhibits.
"CLASS A-4 CERTIFICATES" means the Class A-4A Certificates and the
Class A-4B Certificates, collectively.
"CLASS A SENIOR CERTIFICATES" means the Class A-1 Certificates, the
Class A-2 Certificates, the Class A-3 Certificates, the Class A-AB Certificates
and the Class A-4 Certificates, collectively.
"CLASS Q GRANTOR TRUST" means that portion of the Trust consisting of
the Class Q Grantor Trust Interest.
"CLASS Q GRANTOR TRUST INTEREST" means that portion of the rights
represented by the Class Q Certificates that evidences beneficial ownership of
the Excess Interest and the Excess Interest Sub-account, as described in Section
12.5(a) hereof.
"CLASS Q REMIC INTEREST" means that portion of the rights represented
by the Class Q Certificates that evidences a regular interest in REMIC III,
which rights consist of the rights to the distributions described in Section 6.5
hereof and all other rights of the Holders of the Class Q Certificates other
than those comprising the Class Q Grantor Trust.
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"CLASS X CERTIFICATES" means the Class X Certificates.
"CLASS X INTEREST AMOUNT" means, with respect to any Distribution Date
and the related Interest Accrual Period, interest equal to the product of (i)
one-twelfth of a per annum rate equal to the weighted average of the Class X
Strip Rates for the REMIC III Regular Interests (other than the Class LF
Certificates), weighted on the basis of the respective Certificate Balances of
such Classes, and (ii) the Class X Notional Amount for such Distribution Date.
"CLASS X NOTIONAL AMOUNT" means, with respect to the Class X
Certificates and any date of determination, the aggregate of the outstanding
Certificate Balances of the Principal Balance Certificates.
"CLASS X STRIP RATE" means, for any Distribution Date, with respect to
any Class of REMIC III Regular Interests (other than the Class LF Certificates),
the excess, if any, of the Weighted Average REMIC I Net Mortgage Rate for such
Distribution Date over the Pass-Through Rate for such Class of REMIC III Regular
Interests.
"CLEARING AGENCY" means an organization registered as a "clearing
agency" pursuant to Section 17A of the 1934 Act, which initially shall be the
Depository.
"CLEARSTREAM BANK" means Clearstream Bank, societe anonyme.
"CLOSING DATE" means October 28, 2005.
"CMSA" means the Commercial Mortgage Securities Association, or any
association or organization that is a successor thereto. If neither such
association nor any successor remains in existence, "CMSA" shall be deemed to
refer to such other association or organization as may exist whose principal
membership consists of servicers, trustees, certificateholders, issuers, the
placement agent and underwriters generally involved in the commercial mortgage
loan securitization industry, which is the principal such association or
organization in the commercial mortgage loan securitization industry and whose
principal purpose is the establishment of industry standards for reporting
transaction-specific information relating to commercial mortgage pass-through
certificates and commercial mortgage-backed bonds and the commercial mortgage
loans and foreclosed properties underlying or backing them to investors holding
or owning such certificates or bonds, and any successor to such other
association or organization. If an organization or association described in one
of the preceding sentences of this definition does not exist, "CMSA" shall be
deemed to refer to such other association or organization as shall be selected
by the Master Servicer and reasonably acceptable to the Trustee, the Paying
Agent, the Special Servicer, the Primary Servicer and the majority
certificateholder of the Controlling Class.
"CMSA ADVANCE RECOVERY REPORT" means a report substantially in the
form of, and containing the information called for in, the downloadable form of
the "Advance Recovery Report" available as of the Closing Date on the CMSA
Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be approved by
the CMSA for commercial mortgage securities transactions generally.
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"CMSA OPERATING STATEMENT ANALYSIS REPORT" means a report which is one
element of the CMSA Methodology for Analyzing and Reporting Property Income
Statements and which is substantially in the form of Exhibit N.
"CMSA REPORTS" means the Restricted Servicer Reports and the
Unrestricted Servicer Reports, collectively.
"CODE" means the Internal Revenue Code of 1986, as amended, any
successor statutes thereto, and applicable U.S. Department of Treasury
regulations issued pursuant thereto in temporary or final form and proposed
regulations thereunder, to the extent that, by reason of their proposed
effective date, such proposed regulations would apply to the Trust.
"COLLECTION PERIOD" means, with respect to any Distribution Date, the
period beginning on the day after the Determination Date in the month preceding
the month of such Distribution Date (or in the case of the first Distribution
Date, the Cut-Off Date) and ending on the Determination Date in the month in
which the Distribution Date occurs.
"COMMISSION" has the meaning set forth in Section 8.26(a).
"COMPENSATING INTEREST" means with respect to any Distribution Date,
an amount equal to the lesser of (A) the excess of (i) Prepayment Interest
Shortfalls incurred in respect of the Mortgage Loans other than the Specially
Serviced Mortgage Loans resulting from (x) voluntary Principal Prepayments on
such Mortgage Loans (but not including any B Note, Non-Serviced Companion
Mortgage Loan or Serviced Companion Mortgage Loan) or (y) to the extent that the
Master Servicer did not apply the proceeds thereof in accordance with the terms
of the related Mortgage Loan documents, involuntary Principal Prepayments during
the related Collection Period over (ii) the aggregate of Prepayment Interest
Excesses resulting from Principal Prepayments on the Mortgage Loans (but not
including any B Note, Non-Serviced Companion Mortgage Loan or Serviced Companion
Mortgage Loan) during the same Collection Period and (B) the aggregate of the
portion of the aggregate Master Servicing Fee accrued at a rate per annum equal
to 2 basis points for the related Collection Period calculated in respect of all
the Mortgage Loans (including REO Mortgage Loans but not including any B Note,
Non-Serviced Companion Mortgage Loan or Serviced Companion Mortgage Loan), plus
any investment income earned on the amount prepaid prior to such Distribution
Date. No Compensating Interest will be payable on the Lakeforest Mall Mortgage
Loan Non-Pooled Component. For the avoidance of doubt, no Compensating Interest
will be payable on any Repurchased Note.
"CONDEMNATION PROCEEDS" means any awards resulting from the full or
partial condemnation or any eminent domain proceeding or any conveyance in lieu
or in anticipation thereof with respect to a Mortgaged Property by or to any
governmental, quasi-governmental authority or private entity with condemnation
powers other than amounts to be applied to the restoration, preservation or
repair of such Mortgaged Property or released to the related Mortgagor in
accordance with the terms of the Mortgage Loan and (if applicable) its related B
Note or Serviced Companion Mortgage Loan. With respect to the Mortgaged Property
securing any Non-Serviced Mortgage Loan or Non-Serviced Companion Mortgage Loan,
only the portion of such amounts payable to the holder of the related
Non-Serviced Mortgage Loan shall be included in Condemnation Proceeds, and with
respect to the Mortgaged Property securing any
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Loan Pair or A/B Mortgage Loan, only the portion of such amounts payable to the
holder of the related Serviced Pari Passu Mortgage or A Note, as applicable,
shall be included in Condemnation Proceeds.
"CONTROLLING CLASS" means the most subordinate Class of REMIC Regular
Certificates (other than the Class LF Certificates) outstanding at any time of
determination; provided, that, if the Aggregate Certificate Balance of such
Class is less than 25% of the initial Certificate Balance of such Class as of
the Closing Date, the Controlling Class shall be the next most subordinate Class
of REMIC Regular Certificates (other than the Class LF Certificates)
outstanding. As of the Closing Date, the Controlling Class will be the Class Q
Certificates.
"CONTROLLING PERSON" means, with respect to any Person, any other
Person who "controls" such Person within the meaning of the 1933 Act.
"CORPORATE TRUST OFFICE" means, with respect to the presentment and
surrender of Certificates for the final distribution thereon or the presentment
and surrender of Certificates for any other purpose, the principal corporate
trust office of the Certificate Registrar. The principal corporate trust office
of the Trustee is presently located at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, XX 00000, Attention: Global Securities and Trust Services Group -- Bear
Xxxxxxx Commercial Mortgage Securities Inc. Series 2005-TOP20 and the office of
the Certificate Registrar is presently located for certificate transfer purposes
at Xxxxx Fargo Center, Sixth Street and Marquette Avenue, MAC #N9303-121,
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000, Attention: Corporate Trust Services (CMBS) --
Bear Xxxxxxx Commercial Mortgage Securities Inc. Series 2005-TOP20, and for all
other purposes at 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention:
Corporate Trust Services (CMBS) -- Bear Xxxxxxx Commercial Mortgage Securities
Inc. Series 2005-TOP20, or at such other address as the Trustee or Certificate
Registrar may designate from time to time by notice to the Certificateholders,
the Depositor, the Master Servicer, the Paying Agent and the Special Servicer.
"CORRESPONDING CERTIFICATE" means the Class of Certificates as set
forth in the Preliminary Statement with respect to any Corresponding REMIC II
Regular Interest.
"CORRESPONDING REMIC I REGULAR INTEREST" means, with respect to each
Mortgage Loan other than the Lakeforest Mall Mortgage Loan, the REMIC I Regular
Interest having an initial Certificate Balance equal to the Principal Balance of
such Mortgage Loan outstanding as of the Cut-Off Date, after taking into account
all principal and interest payments made or due prior to the Cut-Off Date, and
with respect to the Lakeforest Mall Mortgage Loan, each of the REMIC I Pooled
Regular Interest and the REMIC I Non-Pooled Regular Interest.
"CORRESPONDING REMIC II REGULAR INTEREST" means the REMIC II Regular
Interest as defined in the Preliminary Statement with respect to any Class of
Corresponding Certificates.
"CROSSED MORTGAGE LOAN" has the meaning set forth in Section 2.3(a).
"CUSTODIAN" means the Trustee or any Person who is appointed by the
Trustee at any time as custodian pursuant to Section 7.9 and who is unaffiliated
with the Depositor and each Seller and satisfies the eligibility requirements of
the Trustee as set forth in Section 7.5.
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"CUSTOMER" means a broker, dealer, bank, other financial institution
or other Person for whom the Clearing Agency effects book-entry transfers and
pledges of securities deposited with the Clearing Agency.
"CUT-OFF DATE" means the end of business on October 1, 2005, provided
that with respect to any Mortgage Loan that was originated in October 2005 that
has its first Scheduled Payment in December 2005, the date of origination. The
Cut-Off Date for any Mortgage Loan that has a Due Date on a date other than the
first day of each month shall be the end of business on October 1, 2005, and
Scheduled Payments due in October 2005 with respect to Mortgage Loans not having
Due Dates on the first of each month have been deemed received on October 1,
2005, not the actual day on which such Scheduled Payments were due.
"DEBT SERVICE COVERAGE RATIO" means, with respect to any Mortgage
Loan, as of any date of determination and for any period, the amount calculated
for such date of determination in accordance with the procedures set forth in
Exhibit T, whether or not the Mortgage Loan has an interest-only period that has
not expired as of the Cut-Off Date.
"DEBT SERVICE REDUCTION AMOUNT" means, with respect to a Due Date and
the related Determination Date, the amount of the reduction of the Scheduled
Payment which a Mortgagor is obligated to pay on such Due Date with respect to a
Mortgage Loan, a Serviced Companion Mortgage Loan or a B Note as a result of any
proceeding under bankruptcy law or any similar proceeding (other than a
Deficient Valuation Amount); provided, however, that in the case of an amount
that is deferred, but not forgiven, such reduction shall include only the net
present value (calculated at the related Mortgage Rate) of the reduction.
"DEFAULTED MORTGAGE LOAN" means a Mortgage Loan or Serviced Companion
Mortgage Loan that is in default under the terms of the applicable Mortgage Loan
documentation and for which any applicable grace period has expired.
"DEFEASANCE COLLATERAL" means, with respect to any Defeasance Loan,
the United States Treasury obligations required to be pledged in lieu of
prepayment pursuant to the terms thereof.
"DEFEASANCE LOAN" means any Mortgage Loan, Serviced Companion Mortgage
Loan or B Note which requires or permits the related Mortgagor (or permits the
holder of such Mortgage Loan, Serviced Companion Mortgage Loan or B Note to
require the related Mortgagor) to pledge Defeasance Collateral to such holder in
lieu of prepayment.
"DEFECTIVE MORTGAGE LOAN" has the meaning set forth in Section 2.3(a).
"DEFICIENT VALUATION" means, with respect to any Mortgage Loan (other
than an A Note or a Serviced Pari Passu Mortgage Loan), any A/B Mortgage Loan or
any Loan Pair, a valuation by a court of competent jurisdiction of the Mortgaged
Property (or, with respect to a Non-Serviced Mortgage Loan or a Serviced Pari
Passu Mortgage Loan, the pro rata portion of the valuation allocable to such
Non-Serviced Mortgage Loan or Serviced Pari Passu Mortgage Loan, as applicable)
relating to such Mortgage Loan, A/B Mortgage Loan or Loan Pair in an amount less
than the then outstanding indebtedness under such Mortgage Loan, A/B Mortgage
Loan or Loan Pair, which valuation results from a proceeding initiated under the
United States
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Bankruptcy Code, as amended from time to time, and that reduces the amount the
Mortgagor is required to pay under such Mortgage Loan, A/B Mortgage Loan or Loan
Pair.
"DEFICIENT VALUATION AMOUNT" means (i) with respect to each Mortgage
Loan (other than an A Note or a Serviced Pari Passu Mortgage Loan), any A/B
Mortgage Loan or any Loan Pair, the amount by which the total amount due with
respect to such Mortgage Loan, A/B Mortgage Loan or Loan Pair (excluding
interest not yet accrued), including the Principal Balance of such Mortgage
Loan, A/B Mortgage Loan or Loan Pair plus any accrued and unpaid interest
thereon and any other amounts recoverable from the Mortgagor with respect
thereto pursuant to the terms thereof, is reduced in connection with a Deficient
Valuation and (ii) with respect to any A Note or Serviced Pari Passu Mortgage
Loan, the portion of any Deficient Valuation Amount for the related A/B Mortgage
Loan or Loan Pair, as applicable, that is borne by the holder of the A Note or
Serviced Pari Passu Mortgage Loan, as applicable, under the related
Intercreditor Agreement or Loan Pair Intercreditor Agreement, as applicable.
"DEFINITIVE CERTIFICATES" means Certificates of any Class issued in
definitive, fully registered, certificated form without interest coupons.
"DELETED MORTGAGE LOAN" means a Mortgage Loan which is repurchased
from the Trust pursuant to the terms hereof or as to which one or more
Qualifying Substitute Mortgage Loans are substituted.
"DEPOSITOR" means Bear Xxxxxxx Commercial Mortgage Securities Inc., a
Delaware corporation, and its successors in interest.
"DEPOSITORY" has the meaning set forth in Section 3.7(a).
"DEPOSITORY AGREEMENT" means the Letter of Representations dated the
Closing Date and by and among the Depositor, the Paying Agent and the
Depository.
"DETERMINATION DATE" means, with respect to any Distribution Date, the
earlier of (i) the 7th day of the month in which such Distribution Date occurs
or, if such day is not a Business Day, the immediately preceding Business Day,
and (ii) the 5th Business Day prior to the related Distribution Date, commencing
November 7, 2005.
"DIRECTLY OPERATE" means, with respect to any REO Property, the
furnishing or rendering of services to the tenants thereof, the management of
such REO Property, the holding of such REO Property primarily for sale to
customers (other than a sale of an REO Property pursuant to and in accordance
with Section 9.15) or the performance of any construction work thereon, in each
case other than through an Independent Contractor; provided, however, that the
Trustee (or the Special Servicer on behalf of the Trustee) shall not be
considered to Directly Operate an REO Property solely because the Trustee (or
the Special Servicer on behalf of the Trustee) establishes rental terms, chooses
tenants, enters into or renews leases, deals with taxes and insurance, or makes
decisions as to repairs, tenant improvements or capital expenditures with
respect to such REO Property (including, without limitation, construction
activity to effect repairs or in connection with leasing activity) or undertakes
any ministerial action incidental thereto.
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"DISCOUNT RATE" means the rate which, when compounded monthly, is
equivalent to the Treasury Rate when compounded semi-annually. The "Treasury
Rate," unless a different term methodology or source is otherwise set forth in
the Mortgage Loan documents, is the yield calculated by the linear interpolation
of the yields, as reported in Federal Reserve Statistical Release H.15--Selected
Interest Rates under the heading "U.S. government securities/Treasury constant
maturities" for the week ending prior to the date of the relevant principal
prepayment, of U.S. Treasury constant maturities with a maturity date (one
longer and one shorter) most nearly approximating the maturity date (or the
Anticipated Repayment Date, if applicable) of the Mortgage Loan prepaid. If
Release H.15 is no longer published, the Master Servicer will select a
comparable publication to determine the Treasury Rate.
"DISQUALIFIED ORGANIZATION" means any of (i) the United States, any
State or any political subdivision thereof, or any agency or instrumentality of
any of the foregoing (other than an instrumentality which is a corporation if
all of its activities are subject to tax and, except for FHLMC, a majority of
its board of directors is not selected by any such governmental unit), (ii) a
foreign government, international organization or any agency or instrumentality
of either of the foregoing, (iii) an organization (except certain farmers'
cooperatives described in Section 521 of the Code) which is exempt from tax
imposed by Chapter 1 of the Code (unless such organization is subject to the tax
imposed by Section 511 of the Code on unrelated business taxable income), (iv)
rural electric and telephone cooperatives described in Section 1381 of the Code,
and (v) any other Person so designated by the Master Servicer based upon an
Opinion of Counsel that the holding of an ownership interest in a Residual
Certificate by such Person may cause any of the REMICs, or any Person having an
Ownership Interest in any Class of Certificates, other than such Person, to
incur a liability for any federal tax imposed under the Code that would not
otherwise be imposed but for the transfer of an ownership interest in a Residual
Certificate to such Person. The terms "United States," "State" and
"international organization" shall have the meanings set forth in Section 7701
of the Code or successor provisions.
"DISTRIBUTABLE CERTIFICATE INTEREST" means, with respect to any
Distribution Date and any Class (or in the case of Classes A-4A and A-4B, such
Classes collectively or individually as the context may require) of Certificates
(other than the Residual Certificates) or Interests, the sum of (A) Accrued
Certificate Interest in respect of such Class or Classes or Interest, reduced
(to not less than zero) by (i) any Net Aggregate Prepayment Interest Shortfalls
for such Class or Classes of Certificates or Interests, allocated on such
Distribution Date to such Class or Classes or Interest pursuant to Section 6.7,
and (ii) Realized Losses allocated on such Distribution Date to reduce the
Distributable Certificate Interest payable to such Class or Classes or Interest
pursuant to Section 6.6, plus (B) the Unpaid Interest, plus (C) if the Aggregate
Certificate Balance is reduced because of a diversion of principal in accordance
with Section 5.2(a)(II)(iv), and there is a subsequent recovery of amounts as
described in Section 6.6(c)(i), then interest at the applicable Pass-Through
Rate that would have accrued and been distributable with respect to the amount
that the Aggregate Certificate Balance was so reduced, which interest shall
accrue from the date that the related Realized Loss is allocated through the end
of the Interest Accrual Period related to the Distribution Date on which such
amounts are subsequently recovered.
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"DISTRIBUTION ACCOUNT" means the Distribution Account maintained by
the Paying Agent on behalf of the Trustee, in accordance with the provisions of
Section 5.3, which account shall be an Eligible Account.
"DISTRIBUTION DATE" means the 12th day of each month or, if such day
is not a Business Day, the next succeeding Business Day, commencing November 14,
2005.
"DUE DATE" means, with respect to a Mortgage Loan, a Serviced
Companion Mortgage Loan or a B Note, the date on which a Scheduled Payment is
due.
"EAST TOWNE MALL MORTGAGE LOAN" means that certain Mortgage Loan
evidenced by two pari passu Mortgage Notes, both of which are assets of the
Trust and secured by the Mortgaged Property identified on Schedule III and
Schedule IV as the East Towne Mall.
"ELIGIBLE ACCOUNT" means an account (or accounts) that is any of the
following: (i) maintained with a depository institution or trust company whose
(A) commercial paper, short-term unsecured debt obligations or other short-term
deposits are rated at least "P-1" by Moody's and "F-1" by Fitch, if the deposits
are to be held in the account for 30 days or less, or (B) long-term unsecured
debt obligations are rated at least "Aa3" by Moody's and at least "AA-" by
Fitch, if the deposits are to be held in the account more than 30 days or (ii) a
segregated trust account or accounts maintained in the trust department of the
Trustee, the Paying Agent or other financial institution having a combined
capital and surplus of at least $50,000,000 and subject to regulations regarding
fiduciary funds on deposit similar to Title 12 of the Code of Federal
Regulations Section 9.10(b) and whose long-term senior unsecured debt
obligations or other long-term deposits are rated at least "Baa3" by Moody's, or
(iii) an account or accounts of a depository institution acceptable to each
Rating Agency, as evidenced by Rating Agency Confirmation with respect to the
use of any such account as the Certificate Account or the Distribution Account.
Notwithstanding anything in the foregoing to the contrary, an account shall not
fail to be an Eligible Account solely because it is maintained with Xxxxx Fargo
Bank, National Association, a wholly-owned subsidiary of Xxxxx Fargo & Co.,
provided that such subsidiary's or its parent's (A) commercial paper, short-term
unsecured debt obligations or other short-term deposits are at least "P-1" in
the case of Moody's, and "F-1" in the case of Fitch, if the deposits are to be
held in the account for 30 days or less, or (B) long-term unsecured debt
obligations are rated at least "Aa3" in the case of Moody's and at least "A+" in
the case of Fitch, if the deposits are to be held in the account for more than
30 days.
"ELIGIBLE INVESTMENTS" means any one or more of the following
financial assets or other property:
(i) direct obligations of, and obligations fully guaranteed as to
timely payment of principal and interest by, the United States of America, FNMA,
FHLMC or any agency or instrumentality of the United States of America the
obligations of which are backed by the full faith and credit of the United
States of America; provided that any obligation of FNMA or FHLMC, other than an
unsecured senior debt obligation of FNMA or FHLMC, shall be an Eligible
Investment only if Rating Agency Confirmation is obtained with respect to such
investment;
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(ii) demand or time deposits in, unsecured certificates of
deposit of, money market deposit accounts of, or bankers' acceptances issued by,
any depository institution or trust company (including the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent or any Affiliate of the Master
Servicer, the Special Servicer, the Paying Agent or the Trustee, acting in its
commercial capacity) incorporated or organized under the laws of the United
States of America or any State thereof and subject to supervision and
examination by federal or state banking authorities, so long as the commercial
paper or other short-term debt obligations of such depository institution or
trust company are rated "F-1" by Fitch and "Prime-1" by Moody's or the long-term
unsecured debt obligations of such depository institution or trust company have
been assigned a rating by each Rating Agency at least equal "AA" by Fitch and
"Aa2" by Moody's or its equivalent or, in each case, if not rated by a Rating
Agency, then such Rating Agency has issued a Rating Agency Confirmation;
(iii) repurchase agreements or obligations with respect to any
security described in clause (i) above where such security has a remaining
maturity of one year or less and where such repurchase obligation has been
entered into with a depository institution or trust company (acting as
principal) described in clause (ii) above and where such repurchase obligation
will mature prior to the Business Day preceding the next date upon which, as
described in this Agreement, such amounts are required to be withdrawn from the
Certificate Account and which meets the minimum rating requirement for such
entity described above (or for which Rating Agency Confirmation is obtained with
respect to such ratings);
(iv) debt obligations (other than stripped bonds or stripped
coupons) bearing interest or sold at a discount issued by any corporation
incorporated under the laws of the United States of America or any state
thereof, which securities are rated "AA-" or its equivalent by each Rating
Agency, unless otherwise specified in writing by the Rating Agency; provided
that securities issued by any particular corporation will not be Eligible
Investments to the extent that investment therein will cause the
then-outstanding principal amount of securities issued by such corporation and
held in the Certificate Account to exceed 5% of the sum of the aggregate
Certificate Principal Balance of the Principal Balance Certificates and the
aggregate principal amount of all Eligible Investments in the Certificate
Account;
(v) commercial paper (including both non-interest-bearing
discount obligations and interest-bearing obligations payable on demand or on a
specified date not more than one year after the date of issuance thereof) rated
"F-1+" by Fitch and "Prime-1" by Moody's (or for which Rating Agency
Confirmation is obtained with respect to such ratings);
(vi) units of investment funds (including money market funds)
that are rated in the highest long-term category by Fitch, or if not rated by
Fitch then Fitch has issued a Rating Agency Confirmation, and the highest
long-term category by Moody's, or if not rated by Moody's, then Moody's has
issued a Rating Agency Confirmation;
(vii) guaranteed reinvestment agreements maturing within 365 days
or less issued by any bank, insurance company or other corporation whose
long-term unsecured debt rating is not less than "AA" (or its equivalent) by
Fitch and "Aa2" by Moody's (if rated by Fitch or, if not rated by Fitch, by
Moody's and another nationally recognized statistical rating organization), or
for which Rating Agency Confirmation is obtained with respect to such ratings;
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(viii) any money market funds (including those managed or advised
by the Paying Agent or its affiliates) that maintain a constant asset value and
that are rated "Aaa" (or its equivalent rating) by Moody's and "AAA" (or its
equivalent) by Fitch (if so rated by Fitch), and any other demand, money-market
or time deposit, or any other obligation, security or investment, with respect
to which Rating Agency Confirmation has been obtained; and
(ix) such other investments bearing interest or sold at a
discount, earning a return "in the nature of interest" within the meaning of
Treasury Regulation Section 1.860G-2(g)(1)(i) (as evidenced by an Opinion of
Counsel delivered to the Trustee and the Paying Agent by the Master Servicer at
the Master Servicer's expense), as are acceptable to the Rating Agencies (as
evidenced by Rating Agency Confirmation) and treated as "permitted investments"
that are "cash flow investments" under Section 860G(a)(5) of the Code;
provided (A) such investment is held for a temporary period pursuant to Section
1.860G-2(g)(i) of the Treasury Regulations, (B) such investment is payable by
the obligor in U.S. dollars, and (C) that no such instrument shall be an
Eligible Investment (1) if such instrument evidences either (a) a right to
receive only interest payments or only principal payments with respect to the
obligations underlying such instrument or (b) a right to receive both principal
and interest payments derived from obligations underlying such instrument and
the principal and interest payments with respect to such instrument provide a
yield to maturity of greater than 120% of the yield to maturity at par of such
underlying obligations, or (2) if it may be redeemed at a price below the
purchase price or (3) if it is not treated as a "permitted investment" that is a
"cash flow investment" under Section 860G(a)(5) of the Code; and provided,
further, that any such instrument shall have a maturity date no later than the
date such instrument is required to be used to satisfy the obligations under
this Agreement, and, in any event, shall not have a maturity in excess of one
year; any such instrument must have a predetermined fixed dollar of principal
due at maturity that cannot vary or change; if rated, the obligation must not
have an "r" highlighter affixed to its rating; interest on any variable rate
instrument shall be tied to a single interest rate index plus a single fixed
spread (if any) and move proportionally with that index; and provided, further,
that no amount beneficially owned by any REMIC Pool (including any amounts
collected by the Master Servicer but not yet deposited in the Certificate
Account) may be invested in investments treated as equity interests for Federal
income tax purposes. No Eligible Investments shall be purchased at a price in
excess of par. For the purpose of this definition, units of investment funds
(including money market funds) shall be deemed to mature daily.
"ENVIRONMENTAL INSURANCE POLICY" shall mean, with respect to any
Mortgage Loan or the related Mortgaged Property or REO Property, any insurance
policy covering pollution conditions and/or other environmental conditions that
is maintained from time to time in respect of such Mortgage Loan, Mortgaged
Property or REO Property, as the case may be, for the benefit of, among others,
the Trustee on behalf of the Certificateholders.
"ENVIRONMENTAL LAWS" means any and all federal, state and local
statutes, laws, regulations, ordinances, rules, judgments, orders, decrees,
permits, concessions, grants, franchises, licenses, agreements or other
governmental restrictions, now or hereafter in effect, relating to health or the
environment or to emissions, discharges or releases of chemical substances,
including, without limitation, any and all pollutants, contaminants, petroleum
or petroleum products, asbestos or asbestos-containing materials,
polychlorinated biphenyls, urea-
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formaldehyde insulation, radon, industrial, toxic or hazardous substances or
wastes, into the environment, including, without limitation, ambient air,
surface water, ground water or land, or otherwise relating to the manufacture,
processing, distribution, use, labeling, registration, treatment, storage,
disposal, transport or handling of any of the foregoing substances or wastes or
the clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"ESCROW ACCOUNT" means an account established by or on behalf of the
Master Servicer pursuant to Section 8.3(e).
"ESCROW AMOUNT" means any amount payable with respect to a Mortgage
Loan (including an A/B Mortgage Loan) for taxes, assessments, water rates,
Standard Hazard Insurance Policy premiums, ground lease payments, reserves for
capital improvements, deferred maintenance, repairs, tenant improvements,
leasing commissions, rental achievements, environmental matters and other
reserves or comparable items.
"EUROCLEAR BANK" means Euroclear Bank, S.A./N.V., as operator of the
Euroclear system.
"EVENT OF DEFAULT" has the meaning set forth in Section 8.28(a).
"EXCESS INTEREST" means, with respect to an ARD Loan if an ARD Loan is
not prepaid in full on or before its Anticipated Repayment Date, the excess, if
any of (i) interest accrued at the rate of interest applicable to such Mortgage
Loan after such Anticipated Repayment Date (plus any interest on such interest
as may be provided for under the related Mortgage Loan documents) over (ii)
interest accrued at the rate of interest applicable to such Mortgage Loan before
such Anticipated Repayment Date. Excess Interest on an ARD Loan is an asset of
the Trust, but shall not be an asset of any REMIC Pool formed hereunder.
"EXCESS INTEREST SUB-ACCOUNT" means an administrative account deemed
to be a sub-account of the Distribution Account. The Excess Interest Sub-account
shall not be an asset of any REMIC Pool.
"EXCESS LIQUIDATION PROCEEDS" means, with respect to any Mortgage
Loan, the excess of (i) Liquidation Proceeds of a Mortgage Loan or related REO
Property, over (ii) the amount that would have been received if a Principal
Prepayment in full had been made with respect to such Mortgage Loan (or, in the
case of an REO Property related to an A/B Mortgage Loan, a Principal Prepayment
in full had been made with respect to both the related A Note and B Note, or, in
the case of an REO Property related to a Loan Pair, a Principal Prepayment in
full had been made with respect to both the Serviced Pari Passu Mortgage Loan
and the Serviced Companion Mortgage Loan) on the date such proceeds were
received plus accrued and unpaid interest with respect to such Mortgage Loan and
any and all expenses (including Additional Trust Expenses and Unliquidated
Advances) with respect to such Mortgage Loan.
"EXCESS SERVICING FEE" means, with respect to the Mortgage Loans or
the Serviced Companion Mortgage Loans for which an "excess servicing fee rate"
is designated on
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the Mortgage Loan Schedule, the monthly fee payable to Xxxxx Fargo Bank,
National Association or its successors and assigns as holder of excess servicing
rights, which fee shall accrue on the Scheduled Principal Balance of each such
Mortgage Loan immediately prior to the Due Date occurring in each month at the
per annum rate (determined in the same manner as the applicable Mortgage Rate
for such Mortgage Loan is determined for such month) specified on the Mortgage
Loan Schedule (the "Excess Servicing Fee Rate"). The holder of excess servicing
rights is entitled to Excess Servicing Fees only with respect to the Mortgage
Loans or Serviced Companion Mortgage Loans as indicated on Exhibit J hereto. No
Excess Servicing Fee will be payable with respect to the Lakeforest Mall
Mortgage Loan Non-Pooled Component.
"EXCHANGE ACT" has the meaning set forth in Section 8.26(a).
"EXCHANGE CERTIFICATION" means an Exchange Certification substantially
in the form set forth in Exhibit H hereto executed by a holder of an interest in
a Regulation S Global Certificate or a Rule 144A-IAI Global Certificate, as
applicable.
"EXEMPTION" means each of the individual prohibited transaction
exemptions relating to pass-through certificates and the operation of asset pool
investment trusts granted by the United States Department of Labor to the
Underwriters, as amended.
"EXPENSE LOSS" means a loss realized upon payment by the Trust of an
Additional Trust Expense.
"EXTENSION" has the meaning set forth in Section 9.15(a).
"FDIC" means the Federal Deposit Insurance Corporation or any
successor thereto.
"FEDEX MIAMI A/B MORTGAGE LOAN" means the FedEx Miami Mortgage Loan
and the FedEx Miami B Note.
"FEDEX MIAMI B NOTE" means, with respect to the FedEx Miami A/B
Mortgage Loan, the related subordinated B Note not included in the Trust, which
is subordinated in right of payment to the FedEx Miami Mortgage Loan to the
extent set forth in the related Intercreditor Agreement.
"FEDEX MIAMI MORTGAGE" means the Mortgage securing the FedEx Miami A/B
Mortgage Loan and any other note secured by the related Mortgaged Property.
"FEDEX MIAMI MORTGAGE LOAN" means the Mortgage Loan designated as
Mortgage Loan No. 62 on the Mortgage Loan Schedule and which is senior to the
FedEx Miami B Note and is secured by the related Mortgaged Property pursuant to
the FedEx Miami Mortgage. The FedEx Miami Mortgage Loan is a "Mortgage Loan."
"FHLMC" means the Federal Home Loan Mortgage Corporation, or any
successor thereto.
"FHLMC AUDIT PROGRAM" has the meaning set forth in Section 8.13.
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"FINAL CERTIFICATION" has the meaning set forth in Section 2.2.
"FINAL JUDICIAL DETERMINATION" has the meaning set forth in Section
2.3(a).
"FINAL PROSPECTUS SUPPLEMENT" has the meaning set forth in the
Preliminary Statement hereto.
"FINAL RECOVERY DETERMINATION" means a determination with respect to
any Mortgage Loan, B Note, Specially Serviced Mortgage Loan or Serviced
Companion Mortgage Loan by the Special Servicer in consultation with the
Operating Adviser (or the Lakeforest Mall Mortgage Loan Operating Adviser with
respect to the Lakeforest Mall Mortgage Loan) and the Master Servicer (including
a Mortgage Loan, a Serviced Companion Mortgage Loan or a B Note that became an
REO Property), in each case, in its good faith discretion, consistent with the
Servicing Standard, that all Insurance Proceeds, Condemnation Proceeds,
Liquidation Proceeds, Purchase Proceeds and other payments or recoveries that
the Special Servicer expects to be finally recoverable on such Mortgage Loan,
Serviced Companion Mortgage Loan or B Note, without regard to any obligation of
the Master Servicer, the Special Servicer, the Trustee or the Fiscal Agent, as
the case may be, to make payments from its own funds pursuant to Article IV
hereof, have been recovered. The Special Servicer shall be required to provide
the Master Servicer with prompt written notice of any Final Recovery
Determination with respect to any Specially Serviced Mortgage Loan upon making
such determination. The Master Servicer shall notify the Trustee and the Paying
Agent of such determination and the Paying Agent shall deliver a copy of such
notice to each Rating Agency.
"FINAL SCHEDULED DISTRIBUTION DATE" means, for each Class of rated
Certificates, the Distribution Date on which such Class would be paid in full if
payments were made on the Mortgage Loans in accordance with their terms, except
that ARD Loans are assumed to be repaid on their Anticipated Repayment Dates.
"FINANCIAL MARKET PUBLISHERS" means Xxxxx, LLC and Intex Solutions,
Inc., or any successor entities thereof.
"FISCAL AGENT" means ABN AMRO Bank N.V., a banking association
organized under the laws of the Netherlands and its permitted successors and
assigns.
"FISCAL AGENT TERMINATION EVENT" has the meaning set forth in Section
4.7.
"FITCH" means Fitch, Inc. or its successor in interest.
"FNMA" means the Federal National Mortgage Association, or any
successor thereto.
"GLOBAL CERTIFICATE" means any Rule 144A-IAI Global Certificate,
Regulation S Temporary Global Certificate or Regulation S Permanent Global
Certificate.
"GRANTOR TRUST POOL" means the segregated pool of assets designated as
the "Class Q Grantor Trust" pursuant to Section 12.5 hereof.
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"GSMSC 2005-GG4 DEPOSITOR" means the "depositor" under the GSMSC
2005-GG4 Pooling and Servicing Agreement, which as of the date hereof is GS
Mortgage Securities Corporation II.
"GSMSC 2005-GG4 MASTER SERVICER" means the "master servicer" under the
GSMSC 2005-GG4 Pooling and Servicing Agreement, which as of the date hereof is
GMAC Commercial Mortgage Corporation.
"GSMSC 2005-GG4 POOLING AND SERVICING AGREEMENT" means the pooling and
servicing agreement dated as of June 1, 2005 by and between the GSMSC 2005-GG4
Depositor, the GSMSC 2005-GG4 Master Servicer, the GSMSC 2005-GG4 Special
Servicer and the GSMSC 2005-GG4 Trustee, pursuant to which the GSMSC 2005-GG4
Trust issued its Series 2005-GG4 Commercial Mortgage Pass-Through Certificates.
"GSMSC 2005-GG4 SPECIAL SERVICER" means the "special servicer" under
the GSMSC 2005-GG4 Pooling and Servicing Agreement, which as of the date hereof
is LNR Partners, Inc.
"GSMSC 2005-GG4 TRUST" means the trust established pursuant to the
GSMSC 2005-GG4 Pooling and Servicing Agreement.
"GSMSC 2005-GG4 TRUSTEE" means the "trustee" under the GSMSC 2005-GG4
Pooling and Servicing Agreement, which as of the date hereof is Xxxxx Fargo
Bank, National Association.
"HINCKLEY PORTFOLIO COMPANION LOAN" means, with respect to the
Mortgage Loan designated as Mortgage Loan Nos. 43-47 on the Mortgage Loan
Schedule, collectively, the note secured by the Hinckley Portfolio Pari Passu
Mortgage on a pari passu basis with the Hinckley Portfolio Pari Passu Loan and
which is not included in the Trust. The Hinckley Portfolio Companion Loan is not
a "Mortgage Loan."
"HINCKLEY PORTFOLIO PARI PASSU LOAN" means, the Mortgage Loan
designated as Mortgage Loan Nos. 43-47 on the Mortgage Loan Schedule and which
is secured on a pari passu basis with the Hinckley Portfolio Companion Loan
secured by the related Mortgaged Property pursuant to the Hinckley Portfolio
Pari Passu Mortgage. The Hinckley Portfolio Pari Passu Loan is a "Mortgage
Loan."
"HINCKLEY PORTFOLIO PARI PASSU MORTGAGE" means, the Mortgage securing
the Hinckley Portfolio Companion Loan and the Hinckley Portfolio Pari Passu
Loan.
"HOLDER" means the Person in whose name a Certificate is registered on
the Certificate Register.
"IAI DEFINITIVE CERTIFICATE" means, with respect to any Class of
Certificates sold to Institutional Accredited Investors who are not Qualified
Institutional Buyers, a Certificate in definitive, fully registered certificated
form without interest coupons.
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"INDEPENDENT" means, when used with respect to any Accountants, a
Person who is "independent" within the meaning of Rule 2-01(B) of the Securities
and Exchange Commission's Regulation S-X. Independent means, when used with
respect to any other Person, a Person who (A) is in fact independent of another
specified Person and any Affiliate of such other Person, (B) does not have any
material direct or indirect financial interest in such other Person or any
Affiliate of such other Person, (C) is not connected with such other Person or
any Affiliate of such other Person as an officer, employee, promoter,
underwriter, trustee, partner, director or Person performing similar functions
and (D) is not a member of the immediate family of a Person defined in clause
(B) or (C) above.
"INDEPENDENT CONTRACTOR" means, either (i) with respect to any
Mortgage Loan (A) that is not a Specially Serviced Mortgage Loan, any Person
designated by the Master Servicer (other than the Master Servicer, but which may
be an Affiliate of the Master Servicer), or (B) that is a Specially Serviced
Mortgage Loan, any Person designated by the Special Servicer that would be an
"independent contractor" with respect to a REMIC Pool within the meaning of
Section 856(d)(3) of the Code if such REMIC Pool were a real estate investment
trust (except that the ownership test set forth in such Section shall be
considered to be met by any Person that owns, directly or indirectly, 35% or
more of the Aggregate Certificate Balance or Notional Amount, as the case may
be, of any Class of the Certificates (other than the Residual Certificates), a
Percentage Interest of 35% or more in the Residual Certificates or such other
interest in any Class of the Certificates or of the applicable REMIC Pool as is
set forth in an Opinion of Counsel, which shall be at no expense to the Trustee
or the Trust) so long as such REMIC Pool does not receive or derive any income
from such Person and provided that the relationship between such Person and such
REMIC is at arm's length, all within the meaning of Treasury Regulations Section
1.856-4(b)(5), or (ii) any other Person (including the Master Servicer or the
Special Servicer) upon receipt by the Trustee of an Opinion of Counsel, which
shall be at the expense of the Person delivering such opinion to the Trustee, to
the effect that the taking of any action in respect of any REO Property by such
Person, subject to any conditions therein specified, that is otherwise herein
contemplated to be taken by an Independent Contractor will not cause such REO
Property to cease to qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code (determined without regard to the exception
applicable for purposes of Section 860D(a) of the Code), or cause any income
realized in respect of such REO Property to fail to qualify as Rents from Real
Property.
"INITIAL CERTIFICATION" has the meaning set forth in Section 2.2.
"INITIAL DEPOSIT" means the amount of all collections made on the
Mortgage Loans from the Cut-Off Date to and excluding the Closing Date and, with
respect to Mortgage Loans Nos. 2 and 5, which were originated in October 2005
and have their first Due Dates in December 2005, an amount equal to $804,166.67,
which amount represents one month's interest on the initial Principal Balance of
such Mortgage Loans.
"INITIAL REVIEW PERIOD" has the meaning set forth in Section 9.4(d).
"INSPECTION REPORT" means the report delivered by the Master Servicer
or the Special Servicer, as the case may be, substantially in the form of
Exhibit L hereto.
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"INSTITUTIONAL ACCREDITED INVESTOR" means an institutional accredited
investor qualifying pursuant to Rule 501(a)(1), (2), (3) or (7) of Regulation D
of the 1933 Act.
"INSURED ENVIRONMENTAL EVENT" has the meaning set forth in Section
9.1(f).
"INSURANCE POLICIES" means, collectively, any Standard Hazard
Insurance Policy, flood insurance policy, title insurance policy, terrorism
insurance policy or Environmental Insurance Policy relating to the Mortgage
Loans or the Mortgaged Properties in effect as of the Closing Date or thereafter
during the term of this Agreement.
"INSURANCE PROCEEDS" means amounts paid by the insurer under any
Insurance Policy, other than amounts required to be paid over to the Mortgagor
pursuant to law, the related Mortgage Loan, the related Serviced Companion
Mortgage Loan, the related B Note or the Servicing Standard. With respect to the
Mortgaged Property securing any Non-Serviced Mortgage Loan or Non-Serviced
Companion Mortgage Loan, only the portion of such amounts payable to the holder
of the related Non-Serviced Mortgage Loan shall be included in Insurance
Proceeds, and with respect to the Mortgaged Property securing any Loan Pair or
A/B Mortgage Loan, only the portion of such amounts payable to the holder of the
related Serviced Pari Passu Mortgage Loan or the related A Note, as applicable,
shall be included in Insurance Proceeds.
"INTERCREDITOR AGREEMENT" means, with respect to an A/B Mortgage Loan,
the related intercreditor agreement by and between the holder of the related A
Note(s) and the holder of the related B Note relating to the relative rights of
such holders of the respective A Note(s) and B Note, as the same may be further
amended from time to time in accordance with the terms thereof.
"INTEREST" means a REMIC I Interest or a REMIC II Interest, as
applicable.
"INTEREST ACCRUAL PERIOD" means, for any Distribution Date, with
respect to all Classes of Certificates and Interests (other than the Residual
Certificates), the period beginning on the first day of the month preceding the
month in which such Distribution Date occurs and ending on the last day of the
month preceding the month in which such Distribution Date occurs.
"INTEREST RESERVE ACCOUNT" means that Interest Reserve Account
maintained by the Master Servicer pursuant to Section 5.1(a), which account
shall be an Eligible Account.
"INTEREST RESERVE AMOUNT" has the meaning set forth in Section 5.1(d).
"INTEREST RESERVE LOANS" shall mean the Mortgage Loans which bear
interest other than on the basis of a 360-day year consisting of twelve (12)
30-day months and, in the case of the Lakeforest Mall Mortgage Loan, only the
Lakeforest Mall Mortgage Loan Pooled Component.
"INTERESTED PERSON" means, as of any date of determination, the Master
Servicer, the Special Servicer, the Depositor, the holder of any related Junior
Indebtedness (with respect to any particular Mortgage Loan), a holder of 50% or
more of the Controlling Class, the Operating Adviser (or the Lakeforest Mall
Mortgage Loan Operating Adviser with respect to the Lakeforest Mall Mortgage
Loan), any Independent Contractor engaged by the Master Servicer or the Special
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Servicer pursuant to this Agreement, or any Person actually known to a
Responsible Officer of the Trustee to be an Affiliate of any of them.
"JOINT MORTGAGE LOAN" means each of the East Towne Mall Mortgage Loan
and the West Towne Mall Mortgage Loan.
"JUNIOR INDEBTEDNESS" means any indebtedness of any Mortgagor that is
secured by a lien that is junior in right of payment to the lien of the Mortgage
securing the related Mortgage Note.
"LAKEFOREST MALL MORTGAGE LOAN" means the Mortgage Loan designated as
Mortgage Loan No. 1 on the Mortgage Loan Schedule.
"LAKEFOREST MALL MORTGAGE LOAN AVAILABLE FUNDS" means, in general, for
any Distribution Date, an amount equal to the aggregate of (a) all amounts on
deposit in the Certificate Account as of the Business Day preceding the related
Distribution Date that represent payments and other collections on or in respect
of the Lakeforest Mall Mortgage Loan, including in the event that the Lakeforest
Mall Mortgage Loan is an REO Property, that were received by the Master Servicer
or the Special Servicer through the end of the related Collection Period,
exclusive of, to the extent attributable to the Lakeforest Mall Mortgage Loan,
(i) Scheduled Payments collected but due on a Due Date subsequent to the related
Collection Period with respect to the Lakeforest Mall Mortgage Loan, (ii)
amounts that are payable or reimbursable to any Person other than the
Certificateholders (including amounts payable to the Master Servicer in respect
of unpaid Master Servicing Fees, the Primary Servicer in respect of unpaid
Primary Servicing Fees, the Special Servicer in respect of unpaid Special
Servicer Compensation, the Trustee in respect of unpaid Trustee Fees, the Paying
Agent in respect of unpaid Paying Agent Fees or to the parties entitled thereto
in respect of the unpaid Excess Servicing Fees), (iii) any such amounts that
were deposited in the Certificate Account in error, and (iv) if such
Distribution Date occurs during January, other than a leap year, or February of
any year, any applicable Interest Reserve Amounts to be deposited into the
Interest Reserve Account and (b) if and to the extent not already among the
amounts described in clause (a), (i) the aggregate amount of any Compensating
Interest Payment with respect to the Lakeforest Mall Mortgage Loan paid with
respect to such Distribution Date pursuant to the terms hereof, and (ii) if such
Distribution Date occurs during March of any year, commencing in March 2006, the
portion of the Interest Reserve Amount then on deposit in the Interest Reserve
Account in respect of the Lakeforest Mall Mortgage Loan.
"LAKEFOREST MALL MORTGAGE LOAN DEFAULT DISTRIBUTION PRIORITY" has the
meaning set forth in Section 6.2(b).
"LAKEFOREST MALL MORTGAGE LOAN COMPONENTS" means the Lakeforest Mall
Mortgage Loan Non-Pooled Component and the Lakeforest Mall Mortgage Loan Pooled
Component.
"LAKEFOREST MALL MORTGAGE LOAN NON-DEFAULT DISTRIBUTION PRIORITY" has
the meaning set forth in Section 6.2(a).
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"LAKEFOREST MALL MORTGAGE LOAN NON-POOLED BALANCE" means, with respect
to the Lakeforest Mall Mortgage Loan Non-Pooled Component, the principal amount
of the Lakeforest Mall Mortgage Loan Non-Pooled Component outstanding from time
to time which, on the Closing Date, shall equal $20,000,000. On each
Distribution Date, the Lakeforest Mall Mortgage Loan Non-Pooled Balance shall be
reduced by the amount of any distributions of principal allocated in respect of
the Class LF Certificates (in respect of the Lakeforest Mall Mortgage Loan
Non-Pooled Component) on such Distribution Date pursuant to Section 6.2(b)(v),
Section 6.2(c)(v), or Section 10.1, as applicable, and shall be further reduced
by the amount of any Realized Losses and Expense Losses allocated to the Class
LF Certificates on such Distribution Date pursuant to Section 6.6. Distributions
in respect of a reimbursement of any Realized Losses and Expense Losses in
respect of the Lakeforest Mall Mortgage Loan previously allocated to any Class
LF Certificates shall not constitute distributions of principal and shall not
result in reduction of the Lakeforest Mall Mortgage Loan Non-Pooled Balance.
"LAKEFOREST MALL MORTGAGE LOAN NON-POOLED COMPONENT" means with
respect to the Lakeforest Mall Mortgage Loan, a subordinated component of the
beneficial interest in the Lakeforest Mall Mortgage Loan from which the Class LF
Certificates are entitled to distributions.
"LAKEFOREST MALL MORTGAGE LOAN NON-POOLED PERCENTAGE" means with
respect to the Lakeforest Mall Mortgage Loan, for any Distribution Date, a
fraction expressed as a percentage, the numerator of which is the principal
balance of the Lakeforest Mall Mortgage Loan Non-Pooled Component and the
denominator of which is the sum of (a) the principal balance of the Lakeforest
Mall Mortgage Loan Pooled Component and (b) the principal balance of the
Lakeforest Mall Mortgage Loan Non-Pooled Component.
"LAKEFOREST MALL MORTGAGE LOAN NON-POOLED PRINCIPAL" means, with
respect to the Lakeforest Mall Mortgage Loan, (a) in the event that the
Lakeforest Mall Mortgage Loan Default Distribution Priority is not in effect, an
amount equal to the product of (x) the Lakeforest Mall Mortgage Loan Principal
Distribution Amount for that Distribution Date and (y) the Lakeforest Mall
Mortgage Loan Non-Pooled Percentage for that Distribution Date or (b) in the
event that the Lakeforest Mall Mortgage Loan Default Distribution Priority is in
effect, any amounts required to be distributed to the Class LF Certificates as
principal pursuant to the Lakeforest Mall Mortgage Loan Default Distribution
Priority for that Distribution Date.
"LAKEFOREST MALL MORTGAGE LOAN OPERATING ADVISER" means (i) the entity
appointed by the holders of a majority of the Class LF Certificates, for so long
as the aggregate Certificate Balance of the Class LF Certificates, net of the
amount of any Appraisal Reduction with respect to the Lakeforest Mall Mortgage
Loan, is equal to or greater than 25% of the initial aggregate Certificate
Balance of the Class LF Certificates or (ii) the Operating Adviser, for so long
as the aggregate Certificate Balance of the Class LF Certificates, net of the
amount of any Appraisal Reduction with respect to the Lakeforest Mall Mortgage
Loan, is less than 25% of the initial aggregate Certificate Balance of the Class
LF Certificates. The Lakeforest Mall Mortgage Loan Operating Adviser will have
the right to receive notification from, and in specified cases direct, the
special servicer in regard to specified actions with respect to the Lakeforest
Mall Mortgage Loan.
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"LAKEFOREST MALL MORTGAGE LOAN OPTION" has the meaning set forth in
Section 9.37(g).
"LAKEFOREST MALL MORTGAGE LOAN OPTION HOLDER" has the meaning set
forth in Section 9.37(g).
"LAKEFOREST MALL MORTGAGE LOAN POOLED BALANCE" means the principal
balance of the Lakeforest Mall Mortgage Loan Pooled Component outstanding from
time to time which, as of the Closing Date is equal to $121,050,000. On each
Distribution Date, the Lakeforest Mall Mortgage Loan Pooled Balance shall be
reduced by the amount of any distributions of principal allocated in respect of
the Lakeforest Mall Mortgage Loan Pooled Component on such Distribution Date
pursuant to Section 6.2(b)(ii), 6.2(c)(ii) or Section 10.1, as applicable, and
shall be further reduced by the amount of any Realized Losses and Expense Losses
incurred with respect to the Lakeforest Mall Mortgage Loan allocated to the
Lakeforest Mall Mortgage Loan Pooled Component on such Distribution Date
pursuant to Section 6.6. Distributions in respect of a reimbursement of any
Realized Losses and Expense Losses in respect of the Lakeforest Mall Mortgage
Loan previously allocated to any Class of Certificates (other than the Class LF
Certificates) shall not constitute distributions of principal and shall not
result in reduction of the Lakeforest Mall Mortgage Loan Pooled Balance.
"LAKEFOREST MALL MORTGAGE LOAN POOLED COMPONENT" means, with respect
to the Lakeforest Mall Mortgage Loan, a senior component of the beneficial
interest in the Lakeforest Mall Mortgage Loan from which the Certificates (other
than the Class LF Certificates) are entitled to distributions.
"LAKEFOREST MALL MORTGAGE LOAN POOLED PERCENTAGE" means, with respect
to the Lakeforest Mall Mortgage Loan, for any Distribution Date, a fraction
expressed as a percentage, the numerator of which is the principal balance of
the Lakeforest Mall Mortgage Loan Pooled Component and the denominator of which
is the sum of (a) the principal balance of the Lakeforest Mall Mortgage Loan
Pooled Component and (b) the principal balance of the Lakeforest Mall Mortgage
Loan Non-Pooled Component.
"LAKEFOREST MALL MORTGAGE LOAN PRINCIPAL DISTRIBUTION AMOUNT" means,
with respect to the Lakeforest Mall Mortgage Loan, for any Distribution Date the
amount equal to the sum of (a) the Lakeforest Mall Mortgage Loan Principal
Shortfall for that Distribution Date, and (b) all payments of principal of the
Lakeforest Mall Mortgage Loan, including but not limited to the principal
portions of all Scheduled Payments (other than the principal portion of Balloon
Payments) and any Assumed Scheduled Payments, in each case, to the extent
received or advanced, as the case may be, in respect of such Mortgage Loan and
any related REO Mortgage Loan for its Due Date occurring during the related
Collection Period; and all payments (including Principal Prepayments and the
principal portion of the Balloon Payment and other collections (including
Liquidation Proceeds (other than the portion, if any, constituting Excess
Liquidation Proceeds), Condemnation Proceeds, Insurance Proceeds and REO Income
(each as defined herein) and proceeds of Mortgage Loan repurchases) that were
received on or in respect of such Mortgage Loan during the related Collection
Period and that were identified and applied by the Master Servicer as recoveries
of principal. The Lakeforest Mall Mortgage Loan Principal Distribution Amount
shall be adjusted to the extent necessary to take account of any Workout
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Delayed Reimbursement Amount on reimbursement thereof in accordance with the
provisions of the definition of Principal Distribution Amount.
"LAKEFOREST MALL MORTGAGE LOAN PRINCIPAL SHORTFALL" means, for any
Distribution Date, the amount, if any, by which (a) the Lakeforest Mall Mortgage
Loan Principal Distribution Amount for the prior Distribution Date exceeds (b)
the aggregate amount distributed in respect of principal in respect of the
Lakeforest Mall Mortgage Loan Pooled Component and the Class LF Certificates on
the preceding Distribution Date.
"LATE COLLECTIONS" means, with respect to any Mortgage Loan, Serviced
Companion Mortgage Loan or B Note, all amounts received during any Collection
Period, whether as late payments or as Liquidation Proceeds, Insurance Proceeds,
Condemnation Proceeds, Purchase Proceeds or otherwise, that represent payments
or collections of Scheduled Payments due but delinquent for a previous
Collection Period and not previously recovered.
"LATE FEE" means a fee payable to the Master Servicer or the Special
Servicer, as the case may be, to the extent actually collected from the
Mortgagor as provided in the related Mortgage Loan, Serviced Companion Mortgage
Loan or the related B Note in connection with a late payment made by such
Mortgagor. References in this Agreement to Late Fees and default interest in
respect of any Loan Pair or in respect of any Non-Serviced Mortgage Loan and its
related Non-Serviced Companion Mortgage Loan shall mean only the portion thereof
that is received by the Trust in accordance with the applicable Loan Pair
Intercreditor Agreement (or with respect to a Joint Mortgage Loan treated as a
Loan Pair in accordance with Section 8.32 hereof, the applicable Mortgage Loan
documents) or Non-Serviced Mortgage Loan Intercreditor Agreement.
Notwithstanding anything to the contrary in this Agreement, Late Fees relating,
and allocated, to each of the PCF B Notes in accordance with the related
Intercreditor Agreement (after being first applied to Advance Interest) shall be
payable to the Holder of the related PCF B Note in accordance with the related
Intercreditor Agreement.
"LIQUIDATION EXPENSES" means reasonable and direct expenses incurred
by the Special Servicer on behalf of the Trust in connection with the
liquidation of any Specially Serviced Mortgage Loan or REO Property acquired in
respect thereof including, without limitation, reasonable legal fees and
expenses in connection with a closing, brokerage commissions and conveyance
taxes for such Specially Serviced Mortgage Loan. All Liquidation Expenses
relating to disposition of the Specially Serviced Mortgage Loan shall be (i)
paid out of income from the related REO Property, to the extent available, (ii)
paid out of related proceeds from liquidation or (iii) advanced by the Master
Servicer or the Special Servicer, subject to Section 4.4 and Section 4.6(e)
hereof, as a Servicing Advance.
"LIQUIDATION FEE" means a fee equal to the product of (x) 1.0% and (y)
the Liquidation Proceeds received in connection with a final disposition of a
Specially Serviced Mortgage Loan or REO Property or portion thereof and any
Condemnation Proceeds and Insurance Proceeds received by the Trust (net of any
expenses incurred by the Special Servicer on behalf of the Trust in connection
with the collection of such Condemnation Proceeds and Insurance Proceeds) other
than Liquidation Proceeds, Condemnation Proceeds or Insurance Proceeds received
in connection with any Non-Serviced Mortgage Loan. For the avoidance of
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doubt, a Liquidation Fee will be payable in connection with a repurchase of an A
Note by the holder of the related B Note unless otherwise provided in the
related Intercreditor Agreement.
"LIQUIDATION PROCEEDS" means proceeds from the sale or liquidation
(provided that for the purposes of calculating Liquidation Fees hereunder,
Liquidation Proceeds shall not include any proceeds from a repurchase of a
Mortgage Loan by a Seller due to a Material Breach of a representation or
warranty or Material Document Defect) of a Mortgage Loan, a Serviced Companion
Mortgage Loan or a B Note or related REO Property (net of Liquidation Expenses).
With respect to the mortgaged property or properties securing any Non-Serviced
Mortgage Loan or Non-Serviced Companion Mortgage Loan, only the portion of such
amounts payable to the holder of the related Non-Serviced Mortgage Loan will be
included in Liquidation Proceeds, and with respect to the mortgaged property or
properties securing any Loan Pair or A/B Mortgage Loan, only an allocable
portion of such Liquidation Proceeds will be distributable to the
Certificateholders.
"LIQUIDATION REALIZED LOSS" means, with respect to each Mortgage Loan
or REO Property, as the case may be, as to which a Cash Liquidation or REO
Disposition has occurred, an amount equal to the sum, without duplication, of
(A) the Principal Balance (as increased by any Unliquidated Advance with respect
to such Mortgage Loan) of the Mortgage Loan (or such deemed Principal Balance,
in the case of an REO Mortgage Loan) as of the date of the Cash Liquidation or
REO Disposition (adjusted in accordance with Section 6.6(c)(i)), plus (B) unpaid
interest and interest accrued thereon at the applicable Mortgage Rate (including
interest accrued and unpaid on the portion of the Principal Balance added in
accordance with Section 6.6(c)(i), which interest shall accrue from the date of
the reduction in the Principal Balance resulting from the allocation of a
Realized Loss incurred pursuant to Section 6.6(b)(i)), plus (C) any expenses
(including Additional Trust Expenses, unpaid Servicing Advances and unpaid
Advance Interest) incurred in connection with such Mortgage Loan that have been
paid or are payable or reimbursable to any Person, other than amounts included
in the definition of Liquidation Expenses and amounts previously treated as
Expense Losses attributable to principal (and interest thereon) minus the sum of
(i) REO Income applied as recoveries of principal or interest on the related
Mortgage Loan or REO Property, and (ii) Liquidation Proceeds, Condemnation
Proceeds, Insurance Proceeds, Late Collections and all other amounts recovered
from the related Mortgagor and received during the Collection Period in which
such Cash Liquidation or REO Disposition occurred and which are not required
under any Intercreditor Agreement, any Loan Pair Intercreditor Agreement (or
with respect to a Joint Mortgage Loan treated as a Loan Pair in accordance with
Section 8.32 hereof, the applicable Mortgage Loan documents) or Non-Serviced
Mortgage Loan Intercreditor Agreement to be payable or reimbursable to any
holder of a B Note, a Serviced Companion Mortgage Loan or a Non-Serviced
Companion Mortgage Loan. REO Income and Liquidation Proceeds shall be applied
first to reimburse the Master Servicer, the Special Servicer, the Trustee and
the Fiscal Agent, as applicable, to the extent that Section 5.2(a)(I) otherwise
entitles such party to reimbursement, for any Nonrecoverable Advance with
respect to the related Mortgage Loan, and then for all Workout-Delayed
Reimbursement Amounts with respect to such related Mortgage Loan (but not any
such amount that has become Unliquidated Advances), and any remaining REO Income
and Liquidation Proceeds and any Condemnation Proceeds and Insurance Proceeds
shall be applied first against any Additional Trust Expenses (to the extent not
included in the definition of Liquidation Expenses) for such Mortgage Loan, next
as a recovery of any Nonrecoverable
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Advance (and interest thereon) with respect to such Mortgage Loan previously
paid from principal collections pursuant to Section 5.2(a)(II), next to any
Unliquidated Advances with respect to such Mortgage Loan, next to the unpaid
interest on the Mortgage Loan, calculated as described in clause (B) above, and
then against the Principal Balance of such Mortgage Loan, calculated as
described in clause (A) above.
"LOAN PAIR" means a Serviced Pari Passu Mortgage Loan and the related
Serviced Companion Mortgage Loan, collectively.
"LOAN PAIR INTERCREDITOR AGREEMENT" means, with respect to a Loan
Pair, the related intercreditor agreement by and between the holders of the
related Serviced Pari Passu Mortgage Loan and the related Serviced Companion
Mortgage Loan relating to the relative rights of such holders, as the same may
be further amended from time to time in accordance with the terms thereof.
"LOAN-TO-VALUE RATIO" means, as of any date with respect to a Mortgage
Loan, the fraction, expressed as a percentage, the numerator of which is the
Principal Balance of such Mortgage Loan at the date of determination and the
denominator of which is the value of the Mortgaged Property as shown on the most
recent Appraisal or valuation of the Mortgaged Property which is available as of
such date or, in the case of any Non-Serviced Mortgage Loan or Loan Pair, the
allocable portion thereof.
"LOCK-BOX ACCOUNT" has the meaning set forth in Section 8.3(g).
"LOCK-BOX AGREEMENT" means, with respect to any Mortgage Loan, any
lock-box agreement relating to such Mortgage Loan among the related Mortgagor, a
depositary institution and the Master Servicer (or the Primary Servicer or
Sub-Servicer on its behalf) pursuant to which a Lock-Box Account is created.
"LOSSES" has the meaning set forth in Section 12.4.
"LUXEMBOURG PAYING AGENT" has the meaning set forth in Section 7.18.
"LUXEMBOURG TRANSFER AGENT" has the meaning set forth in Section 7.18.
"MAI" means Member of the Appraisal Institute.
"MASTER SERVICER" means Xxxxx Fargo Bank, National Association and its
permitted successors or assigns.
"MASTER SERVICER CONSENT MATTERS" has the meaning set forth in Section
8.3(a).
"MASTER SERVICER INDEMNIFIED PARTIES" has the meaning set forth in
Section 8.25(a).
"MASTER SERVICER LOSSES" has the meaning set forth in Section 8.25(a).
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"MASTER SERVICER REMITTANCE DATE" means, for each Distribution Date,
the Business Day immediately preceding such Distribution Date.
"MASTER SERVICER REMITTANCE REPORT" means a report prepared by the
Master Servicer and in such media as may be agreed upon by the Master Servicer
and the Paying Agent containing such information regarding the Mortgage Loans as
will permit the Paying Agent to calculate the amounts to be distributed to the
Certificateholders pursuant to this Agreement and to furnish the Monthly
Certificateholders Report to Certificateholders required to be delivered
hereunder and containing such additional information as the Master Servicer, the
Paying Agent and the Depositor may from time to time mutually agree.
"MASTER SERVICING FEE" means for each calendar month, as to each
Mortgage Loan, Serviced Companion Mortgage Loan and B Note (including REO
Mortgage Loans and Defeasance Loans) but not as to any Non-Serviced Mortgage
Loan (as to which there is no Master Servicing Fee payable to the Master
Servicer under this Trust), an amount equal to the Master Servicing Fee Rate
applicable to such month (determined in the same manner (other than the rate of
accrual) as the applicable Mortgage Rate is determined for such Mortgage Loan,
Serviced Companion Mortgage Loan or B Note for such month) multiplied by the
Scheduled Principal Balance of such Mortgage Loan, Serviced Companion Mortgage
Loan or B Note immediately before the Due Date occurring in such month, subject
to reduction in respect of Compensating Interest, as set forth in Section
8.10(c). Notwithstanding the foregoing, no Master Servicing Fee will be payable
with respect to any of the PCF B Notes or the Lakeforest Mall Mortgage Loan
Non-Pooled Component, or otherwise be allocable to any of the PCF B Notes or the
Lakeforest Mall Mortgage Loan Non-Pooled Component or the Trust with respect to
such PCF B Notes or the Lakeforest Mall Mortgage Loan Non-Pooled Component.
"MASTER SERVICING FEE RATE" means, with respect to each Mortgage Loan,
Serviced Companion Mortgage Loan and B Note (including any Mortgage Loan
relating to an REO Property), the rate per annum specified as such on the
Mortgage Loan Schedule. With respect to a Non-Serviced Mortgage Loan, no Master
Servicing Fee Rate is charged by the Master Servicer, but the Pari Passu Loan
Servicing Fee Rate is charged by the applicable Non-Serviced Mortgage Loan
Master Servicer pursuant to the related Non-Serviced Mortgage Loan Pooling and
Servicing Agreement. Notwithstanding the foregoing, no Master Servicing Fee will
be payable with respect to any of the PCF B Notes or the Lakeforest Mall
Mortgage Loan Non-Pooled Component, or otherwise allocable to any of the PCF B
Notes or the Lakeforest Mall Mortgage Loan Non-Pooled Component, as the case may
be, or the Trust with respect to such PCF B Notes or the Lakeforest Mall
Mortgage Loan Non-Pooled Component.
"MATERIAL BREACH" has the meaning set forth in Section 2.3(a).
"MATERIAL DOCUMENT DEFECT" has the meaning set forth in Section
2.3(a).
"MATURITY DATE" means, with respect to any Mortgage Loan, Serviced
Companion Mortgage Loan or B Note as of any date of determination, the date on
which the last payment of principal is due and payable thereunder, after taking
into account all Principal
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Prepayments received and any Deficient Valuation, Debt Service Reduction Amount
or modification of the Mortgage Loan, Serviced Companion Mortgage Loan or B Note
occurring prior to such date of determination, but without giving effect to (i)
any acceleration of the principal of such Mortgage Loan, Serviced Companion
Mortgage Loan or B Note or (ii) any grace period permitted by such Mortgage
Loan, B Note or Serviced Companion Mortgage Loan.
"MERS" means Mortgage Electronic Registration Systems, Inc.
"MODIFICATION FEE" means a fee, if any, collected from a Mortgagor by
the Master Servicer in connection with a modification of any Mortgage Loan
(other than a Non-Serviced Mortgage Loan), Serviced Companion Mortgage Loan or B
Note other than a Specially Serviced Mortgage Loan or collected in connection
with a modification by the Special Servicer of a Specially Serviced Mortgage
Loan.
"MODIFICATION LOSS" means, with respect to each Mortgage Loan, (i) a
decrease in the Principal Balance of such Mortgage Loan as a result of a
modification thereof in accordance with the terms hereof, (ii) any expenses
connected with such modification, to the extent (x) reimbursable to the Trustee,
the Special Servicer or the Master Servicer and (y) not recovered from the
Mortgagor or (iii) in the case of a modification of such Mortgage Loan that
reduces the Mortgage Rate thereof, the excess, on each Due Date, of the amount
of interest that would have accrued at a rate equal to the original Mortgage
Rate, over interest that actually accrued on such Mortgage Loan during the
preceding Collection Period.
"MONEY TERM" means with respect to any Mortgage Loan, Serviced
Companion Mortgage Loan or B Note, the Maturity Date, Mortgage Rate, Principal
Balance, amortization term or payment frequency thereof or any provision thereof
requiring the payment of a prepayment premium, yield maintenance charge or
percentage premium in connection with a principal prepayment (and shall not
include late fees or default interest provisions).
"MONTHLY CERTIFICATEHOLDERS REPORT" means a report provided pursuant
to Section 5.4 by the Paying Agent monthly as of the related Determination Date
generally in the form and substance of Exhibit M, which sets forth, to the
extent applicable: (i) the amount, if any, of such distributions to the holders
of each Class of Principal Balance Certificates applied to reduce the respective
Certificate Balances thereof; (ii) the amount of such distribution to holders of
each Class of Certificates allocable to (A) interest accrued (including Excess
Interest) at the respective Pass-Through Rates, less any Net Aggregate
Prepayment Interest Shortfalls and (B) Prepayment Premiums; (iii) the number of
outstanding Mortgage Loans and the aggregate Principal Balance and Scheduled
Principal Balance of the Mortgage Loans at the close of business on such
Determination Date; (iv) the number and aggregate Scheduled Principal Balance of
Mortgage Loans (A) delinquent 30-59 days, (B) delinquent 60-89 days, (C)
delinquent 90 or more days, (D) as to which foreclosure proceedings have been
commenced, or (E) as to which bankruptcy proceedings have been commenced; (v)
with respect to any REO Property included in the Trust, the Principal Balance of
the related Mortgage Loan as of the date of acquisition of the REO Property and
the Scheduled Principal Balance thereof; (vi) as of the related Determination
Date (A) as to any REO Property sold during the related Collection Period, the
date of the related determination by the Special Servicer that it has recovered
all payments which it expects to be finally recoverable and the amount of the
proceeds of such sale
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deposited into the Certificate Account, and (B) the aggregate amount of other
revenues collected by the Special Servicer with respect to each REO Property
during the related Collection Period and credited to the Certificate Account, in
each case identifying such REO Property by the loan number of the related
Mortgage Loan; (vii) the Aggregate Certificate Balance or Notional Amount, as
the case may be, of each Class of Certificates before and after giving effect to
the distribution made on such Distribution Date; (viii) the aggregate amount of
Principal Prepayments made during the related Collection Period; (ix) the
Pass-Through Rate applicable to each Class of Certificates for such Distribution
Date; (x) the aggregate amount of the Master Servicing Fee, the Primary
Servicing Fee, the Special Servicing Fee, the Excess Servicing Fees and the fees
paid to the applicable Non-Serviced Mortgage Loan Master Servicer and the
Non-Serviced Mortgage Loan Special Servicer solely as such fees relate to the
Non-Serviced Mortgage Loans; (xi) the amount of Unpaid Interest and Realized
Losses, if any, incurred with respect to the Mortgage Loans (including the
Lakeforest Mall Mortgage Loan Non-Pooled Component, if applicable), including a
breakout by type of such Realized Losses; (xii) the aggregate amount of
Servicing Advances and P&I Advances outstanding separately stated that have been
made by the Master Servicer, the Special Servicer, the Trustee and the Fiscal
Agent and the aggregate amount of Servicing Advances and P&I Advances made by
the applicable Non-Serviced Mortgage Loan Master Servicer and Non-Serviced
Mortgage Loan Special Servicer in respect of the Non-Serviced Mortgage Loans and
(xiii) the amount of any Appraisal Reductions effected during the related
Collection Period on a loan-by-loan basis and the total Appraisal Reductions in
effect as of such Distribution Date (and in the case of the Non-Serviced
Mortgage Loans, the amount of any appraisal reductions effected under the
related Non-Serviced Mortgage Loan Pooling and Servicing Agreement). In the case
of information furnished pursuant to subclauses (i), (ii) and (xi) above, the
amounts shall be expressed in the aggregate and as a dollar amount per $1,000 of
original principal amount of the Certificates for all Certificates of each
applicable Class.
"MOODY'S" means Xxxxx'x Investors Service Inc. or its successor in
interest.
"MORTGAGE" means the mortgage, deed of trust or other instrument
securing a Mortgage Note.
"MORTGAGE FILE" means the mortgage documents listed below:
(i) the original Mortgage Note bearing all intervening endorsements,
endorsed in blank or endorsed "Pay to the order of LaSalle Bank National
Association, as Trustee for Bear Xxxxxxx Commercial Mortgage Securities Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2005-TOP20, without
recourse, representation or warranty" or if the original Mortgage Note is not
included therein, then a lost note affidavit with a copy of the Mortgage Note
attached thereto;
(ii) the original Mortgage, with evidence of recording thereon, and,
if the Mortgage was executed pursuant to a power of attorney, a certified true
copy of the power of attorney certified by the public recorder's office, with
evidence of recording thereon (if recording is customary in the jurisdiction in
which such power of attorney was executed) or certified by a title insurance
company or escrow company to be a true copy thereof; provided that if such
original Mortgage cannot be delivered with evidence of recording thereon on or
prior to the 45th
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day following the Closing Date because of a delay caused by the public recording
office where such original Mortgage has been delivered for recordation or
because such original Mortgage has been lost, the Depositor shall deliver or
cause to be delivered to the Trustee a true and correct copy of such Mortgage,
together with (A) in the case of a delay caused by the public recording office,
an Officer's Certificate of the applicable Seller stating that such original
Mortgage has been sent to the appropriate public recording official for
recordation or (B) in the case of an original Mortgage that has been lost after
recordation, a certification by the appropriate county recording office where
such Mortgage is recorded that such copy is a true and complete copy of the
original recorded Mortgage;
(iii) the originals of all agreements modifying a Money Term or other
material modification, consolidation and extension agreements, if any, with
evidence of recording thereon (which are reflected in the Mortgage Loan
Schedule), or if such original modification, consolidation and extension
agreements have been delivered to the appropriate recording office for
recordation and either have not yet been returned on or prior to the 45th day
following the Closing Date with evidence of recordation thereon or have been
lost after recordation, true copies of such modifications, consolidations and
extensions certified by the applicable Seller together with (A) in the case of a
delay caused by the public recording office, an Officer's Certificate of the
applicable Seller stating that such original modification, consolidation or
extension agreement has been dispatched or sent to the appropriate public
recording official for recordation or (B) in the case of an original
modification, consolidation or extension agreement that has been lost after
recordation, a certification by the appropriate county recording office where
such document is recorded that such copy is a true and complete copy of the
original recorded modification, consolidation or extension agreement, and the
originals of all assumption agreements, if any;
(iv) an original Assignment of Mortgage for each Mortgage Loan, in
form and substance acceptable for recording, signed by the holder of record in
blank or in favor of "LaSalle Bank National Association, as Trustee for Bear
Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 2005-TOP20"; provided, if the related Mortgage has been
recorded in the name of MERS or its designee, no Assignment of Mortgage in favor
of the Trustee will be required to be recorded or delivered and instead, the
applicable Seller shall take all actions as are necessary to cause the Trustee
to be shown as, and the Trustee shall take all actions necessary to confirm that
it is shown as, the owner of the related Mortgage on the record of MERS for
purposes of the system of recording transfers of beneficial ownership of
mortgages maintained by MERS;
(v) originals of all intervening assignments of Mortgage (except with
respect to any Mortgage that has been recorded in the name of MERS or its
designees), if any, with evidence of recording thereon or, if such original
assignments of Mortgage have been delivered to the appropriate recorder's office
for recordation, certified true copies of such assignments of Mortgage certified
by the applicable Seller, or in the case of an original blanket intervening
assignment of Mortgage retained by the applicable Seller, a copy thereof
certified by the applicable Seller or, if any original intervening assignment of
Mortgage has not yet been returned on or prior to the 45th day following the
Closing Date from the applicable recording office or has been lost, a true and
correct copy thereof, together with (A) in the case of a delay caused by the
public recording office, an Officer's Certificate of the applicable Seller
stating that
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such original intervening assignment of Mortgage has been sent to the
appropriate public recording official for recordation or (B) in the case of an
original intervening assignment of Mortgage that has been lost after
recordation, a certification by the appropriate county recording office where
such assignment is recorded that such copy is a true and complete copy of the
original recorded intervening assignment of Mortgage;
(vi) if the related Assignment of Leases is separate from the
Mortgage, the original of such Assignment of Leases with evidence of recording
thereon or, if such Assignment of Leases has not been returned on or prior to
the 45th day following the Closing Date from the applicable public recording
office, a copy of such Assignment of Leases certified by the applicable Seller
to be a true and complete copy of the original Assignment of Leases submitted
for recording, together with (A) an original of each assignment of such
Assignment of Leases with evidence of recording thereon and showing a complete
recorded chain of assignment from the named assignee to the holder of record,
and if any such assignment of such Assignment of Leases has not been returned
from the applicable public recording office, a copy of such assignment certified
by the applicable Seller to be a true and complete copy of the original
assignment submitted for recording, and (B) an original assignment of such
Assignment of Leases, in recordable form, signed by the holder of record in
favor of "LaSalle Bank National Association, as Trustee for Bear Xxxxxxx
Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 2005-TOP20," which assignment may be effected in the
related Assignment of Mortgage; provided, if the related Assignment of Leases
has been recorded in the name of MERS or its designee, no assignment of
Assignment of Leases in favor of the Trustee will be required to be recorded or
delivered and instead, the applicable Seller shall take all actions as are
necessary to cause the Trustee to be shown as, and the Trustee shall take all
actions necessary to confirm that it is shown as, the owner of the related
Assignment of Leases on the record of MERS for purposes of the system of
recording transfers of beneficial ownership of mortgages maintained by MERS;
(vii) the original of each guaranty, if any, constituting additional
security for the repayment of such Mortgage Loan;
(viii) the original Title Insurance Policy or in the event such
original Title Insurance Policy has not been issued, an original binder or
actual title commitment or a copy thereof certified by the title company with
the original Title Insurance Policy to follow within 180 days of the Closing
Date or a preliminary title report with an original Title Insurance Policy to
follow within 180 days of the Closing Date;
(ix) (A) UCC financing statements (together with all assignments
thereof) and (B) UCC-2 or UCC-3 financing statements to the Trustee duly
authorized and executed and delivered in connection with the Mortgage Loan;
provided, if the related Mortgage has been recorded in the name of MERS or its
designee, no such UCC-2 or UCC-3 financing statements will be required to be
recorded or delivered and instead, the applicable Seller shall take all actions
as are necessary to cause the Trustee to be shown as, and the Trustee shall take
all actions necessary to confirm that it is shown as, the owner of the related
UCC financing statements on the record of MERS for purposes of the system of
recording transfers of beneficial ownership of mortgages maintained by MERS;
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(x) copies of the related ground lease(s), if any, related to any
Mortgage Loan where the Mortgagor is the lessee under such ground lease and
there is a lien in favor of the mortgagee in such lease;
(xi) copies of any loan agreements, lock-box agreements and
intercreditor agreements (including, without limitation, any Intercreditor
Agreement, any Non-Serviced Mortgage Loan Intercreditor Agreement and any Loan
Pair Intercreditor Agreement, and a copy (that is, not the original) of the
mortgage note evidencing the related Serviced Companion Mortgage Loan and B
Note) related to any Mortgage Loan;
(xii) either (A) the original of each letter of credit, if any,
constituting additional collateral for such Mortgage Loan, which shall be
assigned and delivered to the Trustee on behalf of the Trust with a copy to be
held by the Primary Servicer (or the Master Servicer), and applied, drawn,
reduced or released in accordance with documents evidencing or securing the
applicable Mortgage Loan, this Agreement and the Primary Servicing Agreement or
(B) the original of each letter of credit, if any, constituting additional
collateral for such Mortgage Loan, which shall be held by the Primary Servicer
(or the Master Servicer) on behalf of the Trustee, with a copy to be held by the
Trustee, and applied, drawn, reduced or released in accordance with documents
evidencing or securing the applicable Mortgage Loan, this Agreement and the
Primary Servicing Agreement (it being understood that each Seller has agreed (a)
that the proceeds of such letter of credit belong to the Trust, (b) to notify,
on or before the Closing Date, the bank issuing the letter of credit that the
letter of credit and the proceeds thereof belong to the Trust, and to use
reasonable efforts to obtain within 30 days (but in any event to obtain within
90 days) following the Closing Date, an acknowledgement thereof by the bank
(with a copy of such acknowledgement to be sent to the Trustee) or a reissued
letter of credit and (c) to indemnify the Trust for any liabilities, charges,
costs, fees or other expenses accruing from the failure of the Seller to assign
all rights in and to the letter of credit hereunder including the right and
power to draw on the letter of credit). In the case of clause (B) above, the
Primary Servicer (and the Master Servicer) acknowledges that any letter of
credit held by it shall be held in its capacity as agent of the Trust, and if
the Primary Servicer (or Master Servicer) sells its rights to service the
applicable Mortgage Loan, the Primary Servicer (or Master Servicer) will assign
the applicable letter of credit to the Trust or at the direction of the Special
Servicer (with respect to any Specially Serviced Mortgage Loan) to such party as
the Special Servicer may instruct, in each case, at the expense of the Primary
Servicer (or Master Servicer). The Primary Servicer (or Master Servicer) shall
indemnify the Trust for any loss caused by the ineffectiveness of such
assignment;
(xiii) the original environmental indemnity agreement, if any, related
to any Mortgage Loan;
(xiv) third-party management agreements for all Mortgaged Properties
operated as hotels and for all Mortgaged Properties securing Mortgage Loans with
a Cut-Off Date Principal Balance equal to or greater than $20,000,000;
(xv) any Environmental Insurance Policy;
(xvi) any affidavit and indemnification agreement; and
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(xvii) with respect to any Non-Serviced Mortgage Loan, a copy of the
related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
With respect to any Non-Serviced Mortgage Loan, the preceding document
delivery requirements will be met by the delivery by the Depositor of copies of
the documents specified above (other than the Mortgage Notes (and all
intervening endorsements) respectively evidencing such Non-Serviced Mortgage
Loan with respect to which the originals shall be required), including a copy of
such Non-Serviced Mortgage Loan Mortgage.
Notwithstanding anything to the contrary contained herein, with
respect to either the East Towne Mall Mortgage Loan or the West Towne Mall
Mortgage Loan, delivery of the Mortgage File by either MSMC or Principal shall
satisfy the delivery requirements for MSMC and Principal.
"MORTGAGE LOAN" means a Mortgage Note secured by a Mortgage, and all
amendments and modifications thereof, identified on the Mortgage Loan Schedule,
as amended from time to time, provided that the term "Mortgage Loan" shall
include any Defeasance Loan and any Non-Serviced Mortgage Loan (but shall not
include any Non-Serviced Companion Mortgage Loan) but with respect to (i) any
A/B Mortgage Loan, shall include the A Note (but shall not include the related B
Note) and (ii) any Loan Pair, shall include the Serviced Pari Passu Mortgage
Loan (but shall not include the related Serviced Companion Mortgage Loan).
"MORTGAGE LOAN PURCHASE AGREEMENT" means Mortgage Loan Purchase
Agreement I, Mortgage Loan Purchase Agreement II, Mortgage Loan Purchase
Agreement III or Mortgage Loan Purchase Agreement IV, as the case may be.
"MORTGAGE LOAN PURCHASE AGREEMENT I" means that certain Mortgage Loan
Purchase Agreement between BSCMI and the Depositor dated as of October 20, 2005
with respect to the BSCMI Loans, a form of which is attached hereto as Exhibit
K-1.
"MORTGAGE LOAN PURCHASE AGREEMENT II" means that certain Mortgage Loan
Purchase Agreement between Xxxxx Fargo and the Depositor dated as of October 20,
2005 with respect to the Xxxxx Fargo Loans, a form of which is attached hereto
as Exhibit K-2.
"MORTGAGE LOAN PURCHASE AGREEMENT III" means that certain Mortgage
Loan Purchase Agreement between Principal and the Depositor dated as of October
20, 2005 with respect to the Principal Loans, a form of which is attached hereto
as Exhibit K-3.
"MORTGAGE LOAN PURCHASE AGREEMENT IV" means that certain Mortgage Loan
Purchase Agreement between MSMC and the Depositor dated as of October 20, 2005
with respect to the MSMC Loans, a form of which is attached hereto as Exhibit
K-4.
"MORTGAGE LOAN SCHEDULE" or "LOAN SCHEDULE" means collectively the
schedule attached hereto as Schedule I, which identifies each BSCMI Loan, the
schedule attached hereto as Schedule II, which identifies each Xxxxx Fargo Loan,
the schedule attached hereto as Schedule III, which identifies each Principal
Loan and the schedule attached hereto as Schedule IV, which identifies each MSMC
Loan, as such schedules may be amended from time to time pursuant to Section
2.3.
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"MORTGAGE NOTE" means the note or other evidence of indebtedness
evidencing the indebtedness of a Mortgagor under a Mortgage Loan.
"MORTGAGE RATE" means, for a given Mortgage Loan, Serviced Companion
Mortgage Loan or B Note, the per annum rate at which interest accrues on such
Mortgage Loan, Serviced Companion Mortgage Loan or B Note.
"MORTGAGED PROPERTY" means the real property, together with
improvements thereto, securing the indebtedness of the Mortgagor under the
related Mortgage Loan and, in the case of an A/B Mortgage Loan, the related B
Note and, in the case of a Loan Pair, the related Serviced Companion Mortgage
Loan.
"MORTGAGEE" means, with respect to any Mortgage as of any date of
determination, the mortgagee named therein as of such date.
"MORTGAGOR" means the obligor on a Mortgage Note.
"XXXX XX 0000-0 XXXXXXXXX" means the "depositor" under the XXXX XX
0000-0 Xxxxxxx and Servicing Agreement, which as of the date hereof is Xxxxxx
Xxxxxxx Capital I Inc.
"MSCI FB 2005-1 FISCAL AGENT" means the "fiscal agent" under the XXXX
XX 0000-0 Xxxxxxx and Servicing Agreement, which as of the date hereof is ABN
AMRO Bank N.V.
"MSCI FB 2005-1 MASTER SERVICER" means the "servicer" under the XXXX
XX 0000-0 Xxxxxxx and Servicing Agreement, which as of the date hereof is Xxxxx
Fargo Bank, National Association.
"MSCI FB 2005-1 POOLING AND SERVICING AGREEMENT" means the pooling and
servicing agreement dated as of August 25, 2005 by and between the MSCI FB
2005-1 Depositor, the MSCI FB 2005-1 Master Servicer, the MSCI FB 2005-1 Special
Servicer, the MSCI FB 2005-1 Trustee and the MSCI FB 2005-1 Fiscal Agent,
pursuant to which the MSCI 1345 Avenue of the Americas and Park Avenue Plaza
Trust issued its Commercial Mortgage Pass-Through Certificates, Series FB
2005-1.
"MSCI FB 2005-1 SPECIAL SERVICER" means the "special servicer" under
the XXXX XX 0000-0 Xxxxxxx and Servicing Agreement, which as of the date hereof
is Xxxxx Fargo Bank, National Association.
"MSCI FB 2005-1 TRUSTEE" means the "trustee" under the XXXX XX 0000-0
Xxxxxxx and Servicing Agreement, which as of the date hereof is LaSalle Bank
National Association.
"MSCI 0000 XXXXXX XX XXX XXXXXXXX AND PARK AVENUE PLAZA TRUST" means
the trust established pursuant to the XXXX XX 0000-0 Xxxxxxx and Servicing
Agreement.
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"MSCI 2005-TOP19 CERTIFICATE REGISTRAR" means the "certificate
registrar" under the MSCI 2005-TOP19 Pooling and Servicing Agreement, which as
of the date hereof is Xxxxx Fargo Bank, National Association.
"MSCI 0000-XXX00 XXXXXXXXX" means the "depositor" under the MSCI
2005-TOP19 Pooling and Servicing Agreement, which as of the date hereof is
Xxxxxx Xxxxxxx Capital I Inc.
"MSCI 2005-TOP19 FISCAL AGENT" means the "fiscal agent" under the MSCI
2005-TOP19 Pooling and Servicing Agreement, which as of the date hereof is ABN
AMRO Bank N.V.
"MSCI 2005-TOP19 MASTER SERVICER" means the "master servicer" under
the MSCI 2005-TOP19 Pooling and Servicing Agreement, which as of the date hereof
is Xxxxx Fargo Bank, National Association.
"MSCI 2005-TOP19 PAYING AGENT" means the "paying agent" under the MSCI
2005-TOP19 Pooling and Servicing Agreement, which as of the date hereof is Xxxxx
Fargo Bank, National Association.
"MSCI 2005-TOP19 POOLING AND SERVICING AGREEMENT" means the pooling
and servicing agreement dated as of July 1, 2005 by and between the MSCI
2005-TOP19 Depositor, the MSCI 2005-TOP19 Master Servicer, the MSCI 2005-TOP19
Special Servicer, the MSCI 2005-TOP19 Trustee, the MSCI 2005-TOP19 Paying Agent,
the MSCI 2005-TOP19 Certificate Registrar and the MSCI 2005-TOP19 Fiscal Agent,
pursuant to which the MSCI 2005-TOP19 Trust issued its Series 2005-TOP19
Mortgage Pass-Through Certificates.
"MSCI 2005-TOP19 SPECIAL SERVICER" means the "special servicer" under
the MSCI 2005-TOP19 Pooling and Servicing Agreement, which as of the date hereof
is ARCap Servicing, Inc.
"MSCI 2005-TOP19 TRUST" means the trust established pursuant to the
MSCI 2005-TOP19 Pooling and Servicing Agreement.
"MSCI 2005-TOP19 TRUSTEE" means the "trustee" under the MSCI
2005-TOP19 Pooling and Servicing Agreement, which as of the date hereof is
LaSalle Bank National Association.
"MSMC" has the meaning set forth in the Preliminary Statement hereto.
"MSMC LOANS" means, collectively, those Mortgage Loans sold to the
Depositor pursuant to the Mortgage Loan Purchase Agreement IV and shown on
Schedule IV hereto.
"NET AGGREGATE PREPAYMENT INTEREST SHORTFALL" means for any
Distribution Date, with respect to all Mortgage Loans (but not including the
Lakeforest Mall Mortgage Loan Non-Pooled Component) which are not Specially
Serviced Mortgage Loans, the excess, if any, of aggregate Prepayment Interest
Shortfalls for such Mortgage Loans over the sum of (A) the Compensating Interest
to be paid by the Master Servicer on such Distribution Date and (B) the
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aggregate Prepayment Interest Excesses for such Collection Period for all
Mortgage Loans which are not Specially Serviced Mortgage Loans.
"NEW LEASE" means any lease of any REO Property entered into on behalf
of the Trust, including any lease renewed or extended on behalf of the Trust if
the Trust has the right to renegotiate the terms of such lease.
"1933 ACT" means the Securities Act of 1933, as amended.
"1934 ACT" means the Securities Exchange Act of 1934, as amended.
"NONDISQUALIFICATION OPINION" means a written Opinion of Counsel to
the effect that a contemplated action (i) will neither cause any REMIC Pool to
fail to qualify as a REMIC at any time that any Certificates are outstanding nor
cause a "prohibited transaction," "prohibited contribution" or any other tax
(other than a tax on "net income from foreclosure property" permitted to be
incurred under this Agreement) to be imposed on any REMIC Pool or the Trust and
(ii) will not cause the Class Q Grantor Trust to fail to qualify as a grantor
trust.
"NONECONOMIC RESIDUAL INTEREST" means a residual interest that is a
"noneconomic residual interest" within the meaning of Treasury Regulation
Section 1.860E-1(c).
"NON-INVESTMENT GRADE CERTIFICATES" means each Class of Certificates
that, at the time of transfer, is not rated in one of the four highest generic
rating categories by at least one of Fitch or Xxxxx'x.
"NON-POOLED COMPONENT NET MORTGAGE RATE" means, with respect to any
Distribution Date, as to each of the REMIC I Non-Pooled Regular Interest, the
REMIC II Regular Interest LF and the Class LF Certificates, the REMIC I Net
Mortgage Rate with respect to the REMIC I Non-Pooled Regular Interest.
"NONRECOVERABLE ADVANCE" means any of the following: (i) any Pari
Passu Loan Nonrecoverable Advance (including interest accrued thereon at the
Advance Rate) and (ii) the portion of any Advance (including interest accrued
thereon at the Advance Rate) or Unliquidated Advance (not including interest
thereon) previously made (and, in the case of an Unliquidated Advance, not
previously reimbursed to the Trust) or proposed to be made by the Master
Servicer, the Special Servicer, the Trustee or the Fiscal Agent, that, in its
respective sole discretion, exercised in good faith and, with respect to the
Master Servicer and the Special Servicer, taking into account the Servicing
Standard, will not be or, in the case of a current delinquency, would not be,
ultimately recoverable, from Insurance Proceeds, Condemnation Proceeds,
Liquidation Proceeds or Purchase Proceeds (or from any other collections) with
respect to the related Mortgage Loan or Serviced Companion Mortgage Loan (and
taking into consideration any Crossed Mortgage Loans) (in the case of Servicing
Advances) or B Note (in the case of Servicing Advances) or REO Property (in the
case of P&I Advances and Servicing Advances), as evidenced by an Officer's
Certificate delivered pursuant to Section 4.4. Such Officer's Certificate shall
be delivered to the Trustee (upon which the Trustee may conclusively rely) or to
the Depositor (if the Trustee or the Fiscal Agent is delivering such Officer's
Certificate) and (in either case) to the Special Servicer and the Paying Agent
in the time periods as specified in Section 4.4 and shall include the
information and reports set forth in Section 4.4. Absent bad
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faith, the Master Servicer's determination as to the recoverability of any
Advance shall be conclusive and binding on the Certificateholders and, in the
case of any B Note or Serviced Companion Mortgage Loan, the holder of such B
Note or Serviced Companion Mortgage Loan, as applicable, and may, in all cases,
be relied on by the Trustee and the Fiscal Agent; provided, however, that the
Special Servicer may, at its option, make a determination in accordance with the
Servicing Standard that any P&I Advance or Servicing Advance, if made, would be
a Nonrecoverable Advance and shall deliver to the Master Servicer and the
Trustee notice of such determination. Absent bad faith, any such determination
shall be conclusive and binding on the Certificateholders, the Master Servicer,
the Trustee and the Fiscal Agent. Absent bad faith, and pursuant to Section 4.1A
of this Agreement, any determination as to the recoverability of any advance
made with respect to any Non-Serviced Mortgage Loan by the Master Servicer or
any Other Master Servicer shall be conclusive and binding on the
Certificateholders and may, in all cases, be relied on by the Trustee, the
Fiscal Agent and the Master Servicer. In making any nonrecoverability
determination as described above, the relevant party shall be entitled (i) to
consider (among other things) the obligations of the Mortgagor under the terms
of the Mortgage Loan as it may have been modified, (ii) to consider (among other
things) the related Mortgaged Properties in their "as is" then-current
conditions and occupancies and such party's assumptions (consistent with the
Servicing Standard in the case of the Master Servicer or the Special Servicer)
regarding the possibility and effects of future adverse change with respect to
such Mortgaged Properties, (iii) to estimate and consider, consistent with the
Servicing Standard in the case of the Master Servicer or the Special Servicer
(among other things), future expenses and (iv) to estimate and consider,
consistent with the Servicing Standard (among other things), the timing of
recovery to such party. In addition, the relevant party may, consistent with the
Servicing Standard in the case of the Master Servicer or the Special Servicer,
update or change its nonrecoverability determinations at any time in accordance
with the terms hereof and may, consistent with the Servicing Standard in the
case of the Master Servicer or the Special Servicer, obtain from the Special
Servicer any analysis, appraisals or other information in the possession of the
Special Servicer for such purposes.
"NON-REGISTERED CERTIFICATE" means unless and until registered under
the Securities Act, any Class X, Class F, Class G, Class H, Class J, Class K,
Class L, Class M, Class N, Class O, Class P, Class Q, Class LF or Residual
Certificate.
"NON-SERVICED COMPANION MORTGAGE LOAN" means the Hinckley Portfolio
Companion Loan, the Park Avenue Plaza Companion Loan, the 1345 Avenue of the
Americas Companion Loan and the 000 Xxxxxxx Xxxxxx Companion Loan.
"NON-SERVICED MORTGAGE LOAN" means a Mortgage Loan included in the
Trust but serviced under another agreement. The Non-Serviced Mortgage Loans in
the Trust are the Hinckley Portfolio Pari Passu Loan, the Park Avenue Plaza Pari
Passu Loan, the 1345 Avenue of the Americas Pari Passu Loan and the 000 Xxxxxxx
Xxxxxx Pari Passu Loan.
"NON-SERVICED MORTGAGE LOAN FISCAL AGENT" means the applicable "fiscal
agent" under the related Non-Serviced Mortgage Loan Pooling and Servicing
Agreement.
"NON-SERVICED MORTGAGE LOAN INTERCREDITOR AGREEMENT" means, with
respect to (i) Mortgage Loan Nos. 43-47, that certain co-lender agreement, dated
as of July 25, 2005, by
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and between the holders of the Hinckley Portfolio Pari Passu Loan and the
Hinckley Portfolio Companion Loan, as the same may be amended from time to time
in accordance with the terms thereof, (ii) Mortgage Loan No. 38, that certain
co-lender agreement, dated as of July 25, 2005, by and between the holders of
the Park Avenue Plaza Pari Passu Loan and the Park Avenue Plaza Companion Loan,
as the same may be amended from time to time in accordance with the terms
thereof, (iii) Mortgage Loan No. 11, that certain co-lender agreement, dated as
of July 6, 2005, by and between the holders of the 1345 Avenue of the Americas
Pari Passu Loan and the 1345 Avenue of the Americas Companion Loan, as the same
may be amended from time to time in accordance with the terms thereof, and (iv)
Mortgage Loan No. 12, that certain co-lender agreement, dated as of March 15,
2005, by and between the holders of the 200 Madison Avenue Pari Passu Loan and
the 000 Xxxxxxx Xxxxxx Companion Loan, as the same may be amended from time to
time in accordance with the terms thereof.
"NON-SERVICED MORTGAGE LOAN MASTER SERVICER" means the applicable
"master servicer" under the related Non-Serviced Mortgage Loan Pooling and
Servicing Agreement.
"NON-SERVICED MORTGAGE LOAN MORTGAGE" means the Hinckley Portfolio
Pari Passu Mortgage, the Park Avenue Plaza Pari Passu Mortgage, the 1345 Avenue
of the Americas Pari Passu Mortgage and the 200 Madison Avenue Pari Passu
Mortgage.
"NON-SERVICED MORTGAGE LOAN POOLING AND SERVICING AGREEMENT" means the
MSCI 2005-TOP19 Pooling and Servicing Agreement, the MSCI FB 2005-1 Pooling and
Servicing Agreement and the GSMSC 2005-GG4 Pooling and Servicing Agreement.
"NON-SERVICED MORTGAGE LOAN SPECIAL SERVICER" means the applicable
"special servicer" under the related Non-Serviced Mortgage Loan Pooling and
Servicing Agreement.
"NON-SERVICED MORTGAGE LOAN TRUSTEE" means the applicable "trustee"
under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
"NOTIONAL AMOUNT" means, as of any date of determination: (i) with
respect to all of the Class X Certificates as a Class, the Class X Notional
Amount as of such date of determination and (ii) with respect to any Class X
Certificate, the product of the Percentage Interest evidenced by such
Certificate and the Class X Notional Amount as of such date of determination.
"OFFICER'S CERTIFICATE" means (v) in the case of the Depositor, a
certificate signed by one or more of the Chairman of the Board, any Vice
Chairman, the President, or any Senior Vice President, Vice President or
Assistant Vice President, and by one or more of the Treasurer, any Assistant
Treasurer, the Secretary or any Assistant Secretary of the Depositor, or (w) in
the case of the Master Servicer and the Special Servicer, any of the officers
referred to above or an employee thereof designated as a Servicing Officer or
Special Servicing Officer pursuant to this Agreement, (x) in the case of the
Trustee or the Fiscal Agent, a certificate signed by a Responsible Officer, (y)
in the case of a Seller, a certificate signed by one or more of the Chairman of
the Board, any Vice Chairman, any Managing Director or Director, the President,
or any Executive Vice President, any Senior Vice President, Vice President,
Second Vice President or Assistant Vice President and (z) in the case of the
Paying Agent, a certificate signed by a
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Responsible Officer, each with specific responsibilities for the matters
contemplated by this Agreement.
"OPERATING ADVISER" shall mean the Person elected to serve as the
Operating Adviser pursuant to Section 9.37(a).
"OPINION OF COUNSEL" means a written opinion of counsel addressed to
the Trustee and the Paying Agent, reasonably acceptable in form and substance to
the Trustee and the Paying Agent, and who is not in-house counsel to the party
required to deliver such opinion but who, in the good faith judgment of the
Trustee and the Paying Agent, is Independent outside counsel knowledgeable of
the issues occurring in the practice of securitization with respect to any such
opinion of counsel concerning the taxation, or status as a REMIC for tax
purposes, of any REMIC Pool or status as a "grantor trust" under the Code of the
Class Q Grantor Trust.
"OPTION PURCHASE PRICE" has the meaning set forth in Section 9.36(b)
hereof.
"OTHER ADVANCE REPORT DATE" means with respect to a Non-Serviced
Companion Mortgage Loan or a Serviced Companion Mortgage Loan, as applicable,
which has been deposited into a commercial mortgage securitization trust, the
date under the related Other Companion Loan Pooling and Servicing Agreement that
the related Other Master Servicer is required (pursuant to the terms thereof) to
make a determination as to whether it will make a P&I Advance as required under
such Other Companion Loan Pooling and Servicing Agreement.
"OTHER COMPANION LOAN POOLING AND SERVICING AGREEMENT" means the MSCI
2005-TOP19 Pooling and Servicing Agreement, the MSCI FB 2005-1 Pooling and
Servicing Agreement, the GSMSC 2005-GG4 Pooling and Servicing Agreement or any
other pooling and servicing agreement relating to a Non-Serviced Companion
Mortgage Loan or a Serviced Companion Mortgage Loan that creates a commercial
mortgage securitization trust, as applicable.
"OTHER MASTER SERVICER" means the MSCI 2005-TOP19 Master Servicer, the
MSCI FB 2005-1 Master Servicer, the GSMSC 2005-GG4 Master Servicer or any other
master servicer under an Other Companion Loan Pooling and Servicing Agreement
relating to a Non-Serviced Companion Mortgage Loan or a Serviced Companion
Mortgage Loan, as applicable.
"OTHER OPERATING ADVISER" has the meaning set forth in Section 9.4(d)
hereof.
"OTHER POOLING AND SERVICING AGREEMENT" has the meaning set forth in
Section 9.4(d) hereof.
"OTHER SECURITIZATION" has the meaning set forth in Section 9.4(d)
hereof.
"OTHER SPECIAL SERVICER" has the meaning set forth in Section 9.4(d)
hereof.
"OWNERSHIP INTEREST" means, as to any Certificate, any ownership or
security interest in such Certificate as the Holder thereof and any other
interest therein, whether direct or indirect, legal or beneficial, as owner or
as pledgee.
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"P&I ADVANCE" shall mean (other than with respect to a Serviced
Companion Mortgage Loan, a B Note or in the case of the Lakeforest Mall Mortgage
Loan, the Lakeforest Mall Mortgage Loan Non-Pooled Component) (i) with respect
to any Mortgage Loan or Specially Serviced Mortgage Loan as to which all or a
portion of the Scheduled Payment (other than a Balloon Payment) due during the
related Collection Period was not received by the Master Servicer as of the
related Determination Date (subject to Section 5.1(h)), the portion of such
Scheduled Payment not received; (ii) with respect to any Mortgage Loan that is a
Balloon Mortgage Loan (including any REO Property as to which the related
Mortgage Loan provided for a Balloon Payment) as to which a Balloon Payment was
due during or prior to the related Collection Period but was delinquent, in
whole or in part, as of the related Determination Date, an amount equal to the
excess, if any, of the Assumed Scheduled Payment for such Balloon Mortgage Loan
for the related Collection Period, over any Late Collections received in respect
of such Balloon Payment during such Collection Period; and (iii) with respect to
each REO Property, an amount equal to the excess, if any, of the Assumed
Scheduled Payment for the Mortgage Loan related to such REO Property during the
related Collection Period, over remittances of REO Income to the Master Servicer
by the Special Servicer, reduced by any amounts required to be paid as taxes on
such REO Income (including taxes imposed pursuant to Section 860G(c) of the
Code); provided, however, that the interest portion of any Scheduled Payment or
Assumed Scheduled Payment shall be advanced at a per annum rate equal to the sum
of the REMIC I Net Mortgage Rate relating to such Mortgage Loan or such REO
Mortgage Loan and the Trustee Fee Rate, such that the Scheduled Payment or
Assumed Scheduled Payment to be advanced as a P&I Advance shall be net of the
Master Servicing Fee, the Excess Servicing Fee and the Primary Servicing Fee;
and provided, further, that the Scheduled Payment or Assumed Scheduled Payment
for any Mortgage Loan which has been modified shall be calculated based on its
terms as modified and provided, further, that the interest component of any P&I
Advance with respect to a Mortgage Loan as to which there has been an Appraisal
Reduction shall be an amount equal to the product of (i) the amount of interest
required to be advanced without giving effect to this proviso and (ii) a
fraction, the numerator of which is the Principal Balance of such Mortgage Loan
(or, in the case of the Lakeforest Mall Mortgage Loan, the Lakeforest Mall
Mortgage Loan Pooled Component) as of the immediately preceding Determination
Date less any Appraisal Reduction applicable to such Mortgage Loan (or, in the
case of a Non-Serviced Mortgage Loan or a Serviced Pari Passu Mortgage Loan, the
portion of such Appraisal Reduction allocable (based upon their respective
Principal Balances) to such Non-Serviced Mortgage Loan or Serviced Pari Passu
Mortgage Loan under the related Intercreditor Agreement or the related Loan Pair
Intercreditor Agreement (or with respect to a Joint Mortgage Loan treated as a
Loan Pair in accordance with Section 8.32 hereof, the applicable Mortgage Loan
documents), or in the case of an A/B Mortgage Loan, the portion of such
Appraisal Reduction allocable to the A Note pursuant to the definition of
"Appraisal Reduction" (or, in the case of the Lakeforest Mall Mortgage Loan, the
portion of the Appraisal Reduction that is allocated to the Lakeforest Mall
Mortgage Loan Pooled Component) and the denominator of which is the Principal
Balance of such Mortgage Loan (or, in the case of the Lakeforest Mall Mortgage
Loan, the Lakeforest Mall Mortgage Loan Pooled Component) as of such
Determination Date. All P&I Advances for any Mortgage Loans that have been
modified shall be calculated on the basis of their terms as modified.
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"P&I ADVANCE AMOUNT" means, with respect to any Mortgage Loan or any
REO Property, the amount of the P&I Advance for each Mortgage Loan computed for
any Distribution Date.
"PARI PASSU LOAN NONRECOVERABLE ADVANCE" means any "Nonrecoverable
Servicing Advance" (as defined in the related Non-Serviced Mortgage Loan Pooling
and Servicing Agreement) made with respect to any Non-Serviced Mortgage Loan
pursuant to and in accordance with the related Non-Serviced Mortgage Loan
Pooling and Servicing Agreement; provided that if the applicable Non-Serviced
Mortgage Loan Master Servicer shall have made a "Servicing Advance" (as defined
in the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement) in
the nature of an expenditure benefiting the related Mortgaged Property
generally, the portion thereof attributable to any Non-Serviced Mortgage Loan
shall be determined based on the outstanding balances of such Non-Serviced
Mortgage Loan and all the related pari passu loans secured by such Non-Serviced
Mortgage Loan Mortgage on a pari passu basis on the date such advance was made.
"PARI PASSU LOAN SERVICING FEE RATE" means the "Master Servicing Fee
Rate" (as defined in the related Non-Serviced Mortgage Loan Pooling and
Servicing Agreement) and any other servicing fee rate (other than those payable
to the applicable Non-Serviced Mortgage Loan Special Servicer) applicable to any
Non-Serviced Mortgage Loan; provided, however, that the Pari Passu Loan
Servicing Fee Rate for purposes of any Non-Serviced Mortgage Loan set forth on
Schedule XIX as to which such fee is calculated on a 30/360 basis shall be (a)
the related "Master Servicing Fee Rate" set forth in the Non-Serviced Mortgage
Loan Pooling and Servicing Agreement, multiplied by (b) 30 divided by the actual
number of days in the loan accrual period with respect to such loan.
"PARK AVENUE PLAZA A NOTES" means the Park Avenue Plaza 1-A1 Note, the
Park Avenue Plaza 1-A2 Note, the Park Avenue Plaza 1-A3 Note, the Park Avenue
Plaza 1-A4 Note and the Park Avenue Plaza 2 Loan Component A Note.
"PARK AVENUE PLAZA B NOTES" means the Park Avenue Plaza 1-B1 Note, the
Park Avenue Plaza 1-B2 Note and the Park Avenue Plaza 2 Loan Component B Note.
"PARK AVENUE PLAZA COMPANION LOANS" means, with respect to the
Mortgage Loan designated as Mortgage Loan No. 38 on the Mortgage Loan Schedule,
collectively, the notes secured by the Park Avenue Plaza Pari Passu Mortgage on
a pari passu basis with the Park Avenue Plaza Pari Passu Loan, which include the
Park Avenue Plaza 1-A2 Loan, the Park Avenue Plaza 1-A3 Loan, the Park Avenue
Plaza 1-A4 Loan and the Park Avenue Plaza 2 Loan Component A, and which are not
included in the Trust. The Park Avenue Plaza Companion Loans are not "Mortgage
Loans."
"PARK AVENUE PLAZA LOAN GROUP" means, collectively, the Park Avenue
Plaza Pari Passu Loan, the Park Avenue Plaza Companion Loans and the Xxxx Xxxxxx
Xxxxx X Notes.
"PARK AVENUE PLAZA PARI PASSU LOAN" means, the Mortgage Loan
designated as Mortgage Loan No. 38 on the Mortgage Loan Schedule and which is
secured on a pari passu basis with the Park Avenue Plaza Companion Loans secured
by the related Mortgaged Property
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pursuant to the Park Avenue Plaza Pari Passu Mortgage. The Park Avenue Plaza
Pari Passu Loan is a "Mortgage Loan."
"PARK AVENUE PLAZA PARI PASSU MORTGAGE" means, the Mortgage securing
the Park Avenue Plaza Companion Loans, the Park Avenue Plaza Pari Passu Loan and
the Park Avenue Plaza B Notes.
"PARK XXXXXX XXXXX 0-X0 XXXX" means, with respect to the Park Avenue
Plaza Loan Group, the loan in the original principal amount of $19,350,000,
which is secured on a pari passu basis with the Park Avenue Plaza Pari Passu
Loan pursuant to the Park Avenue Plaza Pari Passu Mortgage.
"PARK XXXXXX XXXXX 0-X0 XXXX" means, with respect to the Park Avenue
Plaza Loan Group, the loan in the original principal amount of $55,494,045,
which is secured on a pari passu basis with the Park Avenue Plaza Pari Passu
Loan pursuant to the Park Avenue Plaza Pari Passu Mortgage.
"PARK XXXXXX XXXXX 0-X0 XXXX" means, with respect to the Park Avenue
Plaza Loan Group, the loan in the original principal amount of $55,494,045,
which is secured on a pari passu basis with the Park Avenue Plaza Pari Passu
Loan pursuant to the Park Avenue Plaza Pari Passu Mortgage.
"PARK XXXXXX XXXXX 0-X0 XXXX" means, with respect to the Park Avenue
Plaza Loan Group, the note in the original principal amount of $655,955, which
is a subordinated mortgage note that is not included in the trust and is not
serviced under the Pooling and Servicing Agreement.
"PARK XXXXXX XXXXX 0-X0 XXXX" means, with respect to the Park Avenue
Plaza Loan Group, the note in the original principal amount of $655,955, which
is a subordinated mortgage note that is not included in the trust and is not
serviced under the Pooling and Servicing Agreement.
"PARK AVENUE PLAZA B NOTES" means, collectively, the Park Avenue Plaza
1-B1 Note, the Park Avenue Plaza 1-B2 Note and the Park Avenue Plaza 2 Loan
Component B Note.
"PARK AVENUE PLAZA 2 LOAN COMPONENT A NOTE" means the note in the
original principal amount of $99,131,185, which is secured on a pari passu basis
with the Park Avenue Plaza Pari Passu Loan pursuant to the Park Avenue Plaza
Pari Passu Mortgage.
"PARK XXXXXX XXXXX 0 XXXX XXXXXXXXX X NOTE" means the note in the
original principal amount of $868,815, which is a subordinated mortgage note
that is not included in the Trust and is not serviced under hereunder.
"PARTICIPANT" means a broker, dealer, bank, other financial
institution or other Person for whom the Clearing Agency effects book-entry
transfers and pledges of securities deposited with the Clearing Agency.
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"PASS-THROUGH RATE" or "PASS-THROUGH RATES" means with respect to any
Class of REMIC I Regular Interests, REMIC II Regular Interests or REMIC Regular
Certificates, other than the Class X, Class A-3, Class X-0X, Xxxxx X-0X, Xxxxx
X-X, Class B, Class C, Class D, Class E, Class F, Class G, Class H and Class J
Certificates, for the first Distribution Date, the rate set forth in the
Preliminary Statement hereto. For any Distribution Date occurring thereafter
(and with respect to the Class X, Class A-3, Class X-0X, Xxxxx X-0X, Xxxxx X-X,
Class B, Class C, Class D, Class E, Class F, Class G, Class H and Class J
Certificates, for each Distribution Date), the Pass-Through Rates for (i) the
REMIC I Regular Interests shall equal the REMIC I Net Mortgage Rate on the
related Mortgage Loan (or the Lakeforest Mall Mortgage Loan Pooled Component or
the Lakeforest Mall Mortgage Loan Non-Pooled Component, as the case may be) for
such Distribution Date, (ii) (a) the REMIC II Regular Interests (other than the
REMIC II Regular Interest LF) shall equal the Weighted Average REMIC I Net
Mortgage Rate for such Distribution Date and (b) the REMIC II Regular Interest
LF shall equal the Non-Pooled Component Net Mortgage Rate, (iii) the Class A-1
Certificates, the fixed rate corresponding to such Class set forth in the
Preliminary Statement hereto, (iv) the Class A-2 Certificates shall equal the
lesser of (A) 5.127% per annum and (B) the Weighted Average REMIC I Net Mortgage
Rate for such Distribution Date, (v) the Class A-3 Certificates shall equal the
Weighted Average REMIC I Net Mortgage Rate corresponding to such Class for such
Distribution Date, (vi) the Class A-AB Certificates shall equal the Weighted
Average REMIC I Net Mortgage Rate corresponding to such Class for such
Distribution Date less 0.016%, (vii) the Class X-0X, Xxxxx X-0X, Xxxxx X-X,
Class B, Class C, Class D, Class E, Class F, Class G, Class H and Class J
Certificates shall equal the Weighted Average REMIC I Net Mortgage Rate for such
Distribution Date, (viii) the Class K, Class L, Class M, Class N, Class O, Class
P and Class Q Certificates shall equal the lesser of (A) 4.973% per annum and
(B) the Weighted Average REMIC I Net Mortgage Rate for such Distribution Date,
(ix) the Class X Certificates shall equal the per annum rate equal to the
quotient of the Accrued Certificate Interest thereon for such Distribution Date
and the Class X Notional Amount, times twelve and (x) the Class LF Certificates
shall equal the Non-Pooled Component Net Mortgage Rate. For purposes of
calculating the interest to be paid to Certificateholders on any Distribution
Date in connection with the reimbursement of Realized Losses, the Pass-Through
Rate in respect of the Class A-4 Certificates shall be deemed to be the weighted
average of the Pass-Through Rates of the Class A-4A Certificates and the Class
A-4B Certificates, the relevant weighting to be on the basis of the respective
Certificate Balances of such Classes of Certificates immediately prior to such
Distribution Date.
"PAYING AGENT" means Xxxxx Fargo Bank, National Association and any
successor or assign, as provided herein. The Luxembourg Paying Agent shall not
be the Paying Agent and the duties of the Luxembourg Paying Agent shall be
distinct from the duties of the Paying Agent.
"PAYING AGENT FEE" means the portion of the Trustee Fee payable to the
Paying Agent in an amount agreed to between the Trustee and the Paying Agent.
"PCF A/B MORTGAGE LOANS" means each of the FedEx Miami A/B Mortgage
Loan, the Saddle Brook Shopping Center A/B Mortgage Loan and the Tinton Pines
Apartments A/B Mortgage Loan.
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"PCF B NOTES" means each of the FedEx Miami B Note, the Saddle Brook
Shopping Center B Note and the Tinton Pines Apartments B Note.
"PCF MORTGAGE LOANS" means each of the FedEx Miami Mortgage Loan, the
Saddle Brook Shopping Center Mortgage Loan and the Tinton Pines Apartments
Mortgage Loan.
"PERCENTAGE INTEREST" means with respect to each Class of Certificates
other than the Residual Certificates, the fraction of such Class evidenced by
such Certificate, expressed as a percentage (carried to four decimal places and
rounded, if necessary), the numerator of which is the Certificate Balance or
Notional Amount, as applicable, represented by such Certificate determined as of
the Closing Date (as stated on the face of such Certificate) and the denominator
of which is the Aggregate Certificate Balance or Notional Amount, as applicable,
of all of the Certificates of such Class determined as of the Closing Date. With
respect to each Residual Certificate, the percentage interest in distributions
(if any) to be made with respect to the relevant Class, as stated on the face of
such Certificate.
"PERFORMING PARTY" has the meaning set forth in Section 8.26(b).
"PERMITTED TRANSFEREE" means any Transferee other than a Disqualified
Organization.
"PERSON" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"PHASE I ENVIRONMENTAL REPORT" means a report by an Independent Person
who regularly conducts environmental site assessments in accordance with then
current standards imposed by institutional commercial mortgage lenders and who
has a reasonable amount of experience conducting such assessments.
"PLACEMENT AGENT" means Bear, Xxxxxxx & Co. Inc. and Xxxxxx Xxxxxxx &
Co. Incorporated or its respective successor in interest.
"PLAN" has the meaning set forth in Section 3.3(d).
"PLANNED PRINCIPAL BALANCE" means for any Distribution Date, the
balance shown for such Distribution Date on Schedule XIII.
"PLAN ASSET REGULATIONS" means the Department of Labor regulations set
forth in 29 C.F.R. Section 2510.3-101.
"PRELIMINARY PROSPECTUS SUPPLEMENT" has the meaning set forth in the
Preliminary Statement hereto.
"PREPAYMENT INTEREST EXCESS" means for any Distribution Date and the
related Collection Period, during which a full or partial Principal Prepayment
(including payment of a Balloon Payment other than in connection with the
foreclosure or liquidation of a Mortgage
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Loan) is made after the Due Date for such Mortgage Loan through and including
the last day of the Collection Period, the amount of interest that accrues on
the amount of such Principal Prepayment from such Due Date to the date such
payment was made, plus (if made) any payment by the Mortgagor of interest that
would have accrued to the next succeeding Due Date (net of the Master Servicing
Fee, the Primary Servicing Fee, the Excess Servicing Fees, the Special Servicing
Fee, the Trustee Fee and the servicing fee and trustee fee payable in connection
with any Non-Serviced Mortgage Loan (in the case of any Non-Serviced Mortgage
Loan), to the extent collected.
"PREPAYMENT INTEREST SHORTFALL" means, with respect to any
Distribution Date, a shortfall in the collection of a full month's interest on
any Mortgage Loan, by reason of a full or partial Principal Prepayment
(including payment of a Balloon Payment other than in connection with the
foreclosure or liquidation of a Mortgage Loan) made during any Collection Period
prior to the Due Date for such Mortgage Loan in such Collection Period
(including any shortfall resulting from such a payment during the grace period
relating to such Due Date). The amount of any Prepayment Interest Shortfall
shall equal the excess of (A) the aggregate amount of interest which would have
accrued on the Scheduled Principal Balance of such Mortgage Loan if the Mortgage
Loan had paid on its Due Date and such Principal Prepayment or Balloon Payment
had not been made (net of the Master Servicing Fee, the Primary Servicing Fee,
the Excess Servicing Fees, the Special Servicing Fee, the Trustee Fee and the
servicing fee payable in connection with any Non-Serviced Mortgage Loan (in the
case of any Non-Serviced Mortgage Loan)) over (B) the aggregate interest that
did so accrue through the date such payment was made (net of such fees).
"PREPAYMENT PREMIUM" means, with respect to any Mortgage Loan,
Serviced Companion Mortgage Loan or B Note for any Distribution Date, the
prepayment premiums, yield maintenance charges or percentage premiums, if any,
received during the related Collection Period in connection with Principal
Prepayments on such Mortgage Loan, Serviced Companion Mortgage Loan or B Note.
"PRIMARY COLLATERAL" means the portion of the Mortgaged Property
securing the Repurchased Loan or Crossed Mortgage Loan, as applicable, that is
encumbered by a first mortgage lien.
"PRIMARY SERVICER" means Principal Global Investors, LLC and its
permitted successors and assigns.
"PRIMARY SERVICING AGREEMENT" means the agreement between the Primary
Servicer and the Master Servicer, dated as of October 1, 2005, a form of which
is attached hereto as Exhibit G, under which the Primary Servicer services the
Mortgage Loans set forth on the schedule attached thereto.
"PRIMARY SERVICING FEE" means, for each calendar month, as to each
Mortgage Loan, the applicable Primary Servicing Fee Rate multiplied by the
Scheduled Principal Balance of such Mortgage Loan immediately before the Due
Date occurring in such month, but prorated for the number of days during the
calendar month for such Mortgage Loan for which interest actually accrues on
such Mortgage Loan and payable only from collections on such Mortgage
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Loan. No Primary Servicing Fee will be payable with respect to the Lakeforest
Mall Mortgage Loan Non-Pooled Component.
"PRIMARY SERVICING FEE RATE" means, the monthly fee payable to the
Primary Servicer (or the Master Servicer, as applicable) based on the per annum
rate specified on the Mortgage Loan Schedule, as more specifically described, in
the case of the Primary Servicer, in the Primary Servicing Agreement (determined
in the same manner (other than the rate of accrual) as the applicable Mortgage
Rate is determined for such Mortgage Loan for such month).
"PRINCIPAL" has the meaning set forth in the Preliminary Statement
hereto.
"PRINCIPAL BALANCE" means, with respect to any Mortgage Loan, Serviced
Companion Mortgage Loan, B Note or REO Mortgage Loan, for purposes of performing
calculations with respect to any Distribution Date, the principal balance of
such Mortgage Loan, Serviced Companion Mortgage Loan, B Note or the related REO
Mortgage Loan outstanding as of the Cut-Off Date after taking into account all
principal and interest payments made or due on or prior to the Cut-Off Date
(assuming, for any Mortgage Loan, Serviced Companion Mortgage Loan or B Note
with a Due Date in October 2005 that is not October 1, 2005, that principal and
interest payments for such month were paid on October 1, 2005), reduced (to not
less than zero) by (i) any payments or other collections of amounts allocable to
principal with respect to such Mortgage Loan, Serviced Companion Mortgage Loan,
B Note or any related REO Mortgage Loan that have been collected or received
during any preceding Collection Period, other than any Scheduled Payments due in
any subsequent Collection Period, and (ii) any Realized Principal Loss incurred
in respect of such Mortgage Loan or related REO Mortgage Loan during any related
Collection Period.
"PRINCIPAL BALANCE CERTIFICATES" means, collectively, the Class A-1,
Class X-0, Xxxxx X-0, Class A-AB, Class X-0X, Xxxxx X-0X, Xxxxx X-X, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L,
Class M, Class N, Class O, Class P and Class Q Certificates.
"PRINCIPAL DISTRIBUTION AMOUNT" means, on any Distribution Date, the
amount equal to the excess, if any, of
(I) the sum of:
(A) the following (without duplication):
1. the principal portion of all Scheduled Payments (other than the
principal portion of Balloon Payments) and any Assumed Scheduled Payments, in
each case, to the extent received or advanced, as the case may be, in respect of
the Mortgage Loans and any REO Mortgage Loans (but not in respect of any
Serviced Companion Mortgage Loan or B Note or its successor REO Mortgage Loan)
for their respective Due Dates occurring during the related Collection Period;
plus
(i) all payments (including Principal Prepayments and the principal
portion of Balloon Payments but not in respect of any Serviced Companion
Mortgage Loan or B Note or its respective successor REO Mortgage Loan) and any
other collections (including Liquidation
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Proceeds (other than the portion thereof, if any, constituting Excess
Liquidation Proceeds), Condemnation Proceeds, Insurance Proceeds, Purchase
Proceeds and REO Income) received on or in respect of the Mortgage Loans during
the related Collection Period and that were identified and applied by the Master
Servicer as recoveries of principal thereof in accordance with this Agreement;
minus
(ii) the Lakeforest Mall Mortgage Loan Non-Pooled Principal;
(B) the aggregate amount of any collections received on or in respect
of the Mortgage Loans during the related Collection Period that, in each case,
represents a delinquent amount as to which an Advance had been made, which
Advance (or interest thereon) was previously reimbursed during the Collection
Period for a prior Distribution Date as part of a Workout-Delayed Reimbursement
Amount for which a deduction was made under clause (II)(A) below with respect to
such Distribution Date; and
(C) the aggregate amount of any collections received on or in respect
of the Mortgage Loans during the related Collection Period that, in each case,
represents a recovery of an amount previously determined (in a Collection Period
for a prior Distribution Date) to have been a Nonrecoverable Advance (or
interest thereon) and for which a deduction was made under clause (II)(B) below
with respect to a prior Distribution Date, and which are applied pursuant to
Section 6.6(c)(i); over
(II) the sum of:
(A) the aggregate amount of Workout-Delayed Reimbursement Amounts (and
Advance Interest thereon) that was reimbursed or paid during the related
Collection Period to one or more of the Master Servicer, the Special Servicer,
the Trustee and the Fiscal Agent from amounts in the Collection Account
allocable to principal received or advanced with respect to the Mortgage Loans
pursuant to subsection (iii) of Section 5.2(a)(II); and
(B) the aggregate amount of Nonrecoverable Advances (and Advance
Interest thereon) that was reimbursed or paid during the related Collection
Period to one or more of the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent during the related Collection Period from amounts in the
Collection Account allocable to principal received or advanced with respect to
the Mortgage Loans pursuant to subsection (iv) of Section 5.2(a)(II).
"PRINCIPAL LOANS" means, collectively those Mortgage Loans sold to the
Depositor pursuant to Mortgage Loan Purchase Agreement III and shown on Schedule
III hereto.
"PRINCIPAL PREPAYMENT" means any voluntary or involuntary payment or
collection of principal on a Mortgage Loan, a Serviced Companion Mortgage Loan
or a B Note which is received or recovered in advance of its scheduled Due Date
and applied to reduce the Principal Balance of the Mortgage Loan, Serviced
Companion Mortgage Loan or B Note in advance of its scheduled Due Date,
including, without limitation, all proceeds, to the extent allocable to
principal, received from the payment of cash in connection with a substitution
shortfall pursuant to Section 2.3; provided, that the pledge by a Mortgagor of
Defeasance Collateral with respect to a Defeasance Loan shall not be deemed to
be a Principal Prepayment.
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"PRIVATE PLACEMENT MEMORANDUM" means the Private Placement Memorandum
dated October 20, 2005, pursuant to which the Class X, Class F, Class G, Class
H, Class J, Class K, Class L, Class M, Class N, Class O, Class P, Class Q and
Class LF Certificates will be offered for sale.
"PROSPECTUS" has the meaning set forth in the Preliminary Statement
hereto.
"PURCHASE PRICE" means, with respect to the purchase by the Seller or
liquidation by the Special Servicer of (i) a Mortgage Loan or an REO Mortgage
Loan pursuant to Article II of this Agreement, (ii) an REO Mortgage Loan
pursuant to Section 9.15 or (iii) a Mortgage Loan pursuant to Section 9.36 under
the circumstances described therein, a price equal to the sum (without
duplication) of (A) 100% of the unpaid Principal Balance of such Mortgage Loan
(or deemed Principal Balance, in the case of an REO Mortgage Loan), plus (B)
accrued but unpaid interest thereon calculated at the Mortgage Rate to, but not
including, the Due Date in the Collection Period in which such purchase or
liquidation occurs, plus (C) the amount of any expenses related to such Mortgage
Loan and any related Serviced Companion Mortgage Loan, B Note or REO Property
(including any Servicing Advances and Advance Interest thereon (which have not
been paid by the Mortgagor or out of Late Fees or default interest paid by the
related Mortgagor on the related Mortgage Loan and any related Serviced
Companion Mortgage Loan or B Note) related to such Mortgage Loan and any related
Serviced Companion Mortgage Loan or B Note, the amount of any Servicing Advances
(and Advance Interest thereon) that were reimbursed from principal collections
on the Mortgage Pool pursuant to Section 5.2(a)(II)(iii) and not subsequently
recovered from the related Mortgagor, and all Special Servicing Fees and
Liquidation Fees paid with respect to the Mortgage Loan and any related Serviced
Companion Mortgage Loan or B Note) that are reimbursable or payable to the
Master Servicer, the Special Servicer, the Paying Agent, the Trustee, the Fiscal
Agent, any Non-Serviced Mortgage Loan Master Servicer or any Non-Serviced
Mortgage Loan Special Servicer, plus (D) if such Mortgage Loan or REO Mortgage
Loan is being repurchased or substituted for by a Seller pursuant to the related
Mortgage Loan Purchase Agreement, all expenses reasonably incurred or to be
incurred by the Primary Servicer, the Master Servicer, the Special Servicer, the
Depositor, the Paying Agent or the Trustee in respect of the Material Breach or
Material Document Defect giving rise to the repurchase or substitution
obligation (and that are not otherwise included in (C) above). With respect to
the East Towne Mall Mortgage Loan and the West Towne Mall Mortgage Loan, the
Purchase Price for each of Principal and MSMC will be its respective percentage
interest as of the Closing Date of the total Purchase Price for each such
Mortgage Loan, which percentage interest with respect to each such Mortgage Loan
for each of Principal and MSMC shall be 50%.
"PURCHASE PROCEEDS" means any cash amounts received by the Master
Servicer in connection with: (i) the repurchase of a Mortgage Loan or an REO
Mortgage Loan by a Seller pursuant to Section 2.3 or (ii) the purchase of the
Mortgage Loans and REO Properties by the Depositor, the Master Servicer, the
Special Servicer or the holders of the Class R-I Certificates pursuant to
Section 10.1(b).
"QUALIFIED BIDDER" means (A) as used in section 8.29(c), a Person
qualified to act as successor Master Servicer hereunder pursuant to Section
8.22(b) (including the requirement set forth in Section 8.22(b) that Rating
Agency Confirmation shall have been
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obtained from each Rating Agency with respect to such Person) and (B) as used in
Section 9.31(c), any Person qualified to act as successor Special Servicer
hereunder pursuant to Section 9.21(b) (including the requirement set forth in
Section 9.21(b) that Rating Agency Confirmation shall have been obtained form
each Rating Agency with respect to such Person).
"QUALIFIED INSTITUTIONAL BUYER" means a qualified institutional buyer
qualifying pursuant to Rule 144A.
"QUALIFIED INSURER" means, (i) with respect to any Mortgage Loan,
Serviced Companion Mortgage Loan or B Note, an insurance company duly qualified
as such under the laws of the state in which the related Mortgaged Property is
located, duly authorized and licensed in such state to transact the applicable
insurance business and to write the insurance, but in no event rated lower than
"A" by Fitch or if not so rated, then Fitch has issued a Rating Agency
Confirmation and "A2" by Moody's if rated by Moody's or if not rated by Moody's,
then Moody's has issued a Rating Agency Confirmation, and (ii) with respect to
the Servicer Errors and Omissions Insurance Policy or Servicer Fidelity Bond an
insurance company that has a claim paying ability no lower than "A" by Fitch if
rated by Fitch, or if not rated by Fitch, then rated A:IX by A.M. Best or as to
which Fitch has issued a Rating Agency Confirmation, and "A2" by Moody's if
rated by Moody's or if not rated by Moody's, then Moody's has issued a Rating
Agency Confirmation, or (iii) in either case, a company not satisfying clause
(i) or (ii) but with respect to which a Rating Agency Confirmation is obtained.
"Qualified Insurer" shall also mean any entity that satisfies all of the
criteria, other than the ratings criteria, set forth in one of the foregoing
clauses and whose obligations under the related insurance policy are guaranteed
or backed by an entity that satisfies the ratings criteria set forth in such
clause (construed as if such entity were an insurance company referred to
therein).
"QUALIFYING SUBSTITUTE MORTGAGE LOAN" means, in the case of a Mortgage
Loan substituted for a Deleted Mortgage Loan, a Mortgage Loan which, on the date
of substitution, (i) has an outstanding principal balance, after deduction of
the principal portion of the Scheduled Payment due in the month of substitution,
not in excess of the Principal Balance of the Deleted Mortgage Loan; provided,
however, that, to the extent that the principal balance of such Mortgage Loan is
less than the Principal Balance of the Deleted Mortgage Loan, then such
differential in principal amount, together with interest thereon at the Mortgage
Rate on the related Mortgage Loan from the date as to which interest was last
paid through the last day of the month in which such substitution occurs, shall
be paid by the party effecting such substitution to the Master Servicer for
deposit into the Certificate Account, and shall be treated as a Principal
Prepayment hereunder; (ii) is accruing interest at a rate of interest at least
equal to that of the Deleted Mortgage Loan; (iii) has a remaining term to stated
maturity not greater than, and not more than two years less than, that of the
Deleted Mortgage Loan; (iv) has an original Loan-to-Value Ratio not higher than
that of the Deleted Mortgage Loan and a current Loan-to-Value Ratio (equal to
the outstanding principal balance on the date of substitution divided by its
current Appraised Value) not higher than the current Loan-to-Value Ratio of the
Deleted Mortgage Loan and has a current Debt Service Coverage Ratio equal to or
greater than the current Debt Service Coverage Ratio of the Deleted Mortgage
Loan; (v) will comply with all of the representations and warranties relating to
Mortgage Loans set forth herein, as of the date of substitution; (vi) has a
Phase I Environmental Report relating to the related Mortgaged Property in its
Mortgage Files and such Phase I Environmental Report does not, in the good faith
reasonable judgment of the
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Special Servicer, consistent with the Servicing Standard, raise material issues
that have not been adequately addressed; (vii) has an engineering report
relating to the related Mortgaged Property in its Mortgage Files and such
engineering report does not, in the good faith reasonable judgment of the
Special Servicer, consistent with the Servicing Standard raise material issues
that have not been adequately addressed; and (viii) as to which the Trustee and
the Paying Agent have received an Opinion of Counsel, at the related Seller's
expense, that such Mortgage Loan is a "qualified replacement mortgage" within
the meaning of Section 860G(a)(4) of the Code; provided that no Mortgage Loan
may have a Maturity Date after the date three years prior to the Rated Final
Distribution Date, and provided, further, that no such Mortgage Loan shall be
substituted for a Deleted Mortgage Loan unless Rating Agency Confirmation is
obtained, and provided, further that no such Mortgage Loan shall be substituted
for a Deleted Mortgage Loan unless the Operating Adviser (or the Lakeforest Mall
Mortgage Loan Operating Adviser with respect to the Lakeforest Mall Mortgage
Loan) shall have approved of such substitution (provided, however, that such
approval of the Operating Adviser (or the Lakeforest Mall Mortgage Loan
Operating Adviser with respect to the Lakeforest Mall Mortgage Loan) may not be
unreasonably withheld). In the event that either one mortgage loan is
substituted for more than one Deleted Mortgage Loan or more than one mortgage
loan is substituted for one or more Deleted Mortgage Loans, then (A) the
Principal Balance referred to in clause (i) above shall be determined on the
basis of aggregate Principal Balances and (B) the rates referred to in clause
(ii) above and the remaining term to stated maturity referred to in clause (iii)
above shall be determined on a weighted average basis (provided, that the REMIC
I Net Mortgage Rate for any Qualifying Substitute Mortgage Loan may not be less
than the highest Pass-Through Rate of any outstanding Class of Certificates that
is not based on, or subject to a cap equal to, the Weighted Average REMIC I Net
Mortgage Rate). Whenever a Qualifying Substitute Mortgage Loan is substituted
for a Deleted Mortgage Loan pursuant to this Agreement, the party effecting such
substitution shall certify that such Mortgage Loan meets all of the requirements
of this definition and shall send such certification to the Paying Agent, which
shall deliver a copy of such certification to the Special Servicer, the Trustee
and the Operating Adviser (or the Lakeforest Mall Mortgage Loan Operating
Adviser with respect to the Lakeforest Mall Mortgage Loan) promptly, and in any
event within five Business Days following the Paying Agent's receipt of such
certification.
"RATED FINAL DISTRIBUTION DATE" means with respect to each rated Class
of Certificates, the Distribution Date in October 2042.
"RATING AGENCIES" means Fitch and Xxxxx'x.
"RATING AGENCY CONFIRMATION" means, with respect to any matter,
confirmation in writing by each Rating Agency (or such Rating Agency as is
specified herein) that a proposed action, failure to act, or other event
specified herein will not in and of itself result in the withdrawal, downgrade,
or qualification, as applicable, of the then-current rating assigned by such
Rating Agency to any Class of Certificates then rated by such Rating Agency,
provided that with respect to any matter affecting any Serviced Companion
Mortgage Loan, such confirmation shall also refer to the nationally recognized
statistical rating organizations then rating the securities representing an
interest in such loan and such rating organizations' respective ratings of such
securities.
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"REALIZED INTEREST LOSS" means, with respect to each Mortgage Loan,
(i) in the case of a Liquidation Realized Loss, the portion of any Liquidation
Realized Loss that exceeds the Realized Principal Loss on the related Mortgage
Loan, (ii) in the case of a Bankruptcy Loss, the portion of such Realized Loss
attributable to accrued interest on the related Mortgage Loan, (iii) in the case
of an Expense Loss, an Expense Loss resulting in any period from the payment of
the Special Servicing Fee and any Expense Losses treated as Realized Interest
Losses pursuant to clause (iv) of the definition of "Realized Principal Loss" or
(iv) in the case of a Modification Loss, a Modification Loss described in clause
(iii) of the definition thereof.
"REALIZED LOSS" means a Liquidation Realized Loss, a Modification
Loss, a Bankruptcy Loss or an Expense Loss with respect to a Mortgage Loan.
"REALIZED PRINCIPAL LOSS" means, with respect to each Mortgage Loan,
(i) in the case of a Liquidation Realized Loss, the amount of such Liquidation
Realized Loss, to the extent that it does not exceed the Principal Balance (plus
the amount of any Unliquidated Advance with respect to such Mortgage Loan) of
the Mortgage Loan (or deemed Principal Balance, in the case of REO Property),
(ii) in the case of a Modification Loss, the amount of such Modification Loss
described in clause (i) of the definition thereof, (iii) in the case of a
Bankruptcy Loss, the portion of such Bankruptcy Loss attributable to the
reduction in the Principal Balance of the related Mortgage Loan, (iv) in the
case of an Expense Loss, the amount of such Expense Loss (other than Expense
Losses resulting from the payment of Special Servicing Fees) to the extent that
such Expense Loss does not exceed amounts collected in respect of the Mortgage
Loans that were identified as allocable to principal in the Collection Period in
which such Expense Losses were incurred, and any such excess shall be treated as
a Realized Interest Loss, (v) the amounts in respect thereof that are withdrawn
from the Certificate Account pursuant to Section 6.6(b)(i) and (vi) any
Unliquidated Advance that is determined by the Master Servicer to be a
Nonrecoverable Advance.
"RECORD DATE" means, for each Distribution Date and each Class of
Certificates, the close of business on the last Business Day of the month
immediately preceding the month in which such Distribution Date occurs.
"RECOVERIES" means, as of any Distribution Date, any amounts recovered
with respect to a Mortgage Loan, a Serviced Companion Mortgage Loan, a B Note or
REO Property following the period in which a Final Recovery Determination occurs
plus other amounts defined as "Recoveries" herein.
"REGULATION S" means Regulation S under the 1933 Act.
"REGULATION S CERTIFICATE" means a written certification substantially
in the form set forth in Exhibit F hereto certifying that a beneficial owner of
an interest in a Regulation S Temporary Global Certificate is not a U.S. Person
(as defined in Regulation S).
"REGULATION S GLOBAL CERTIFICATES" means the Regulation S Permanent
Global Certificates together with the Regulation S Temporary Global
Certificates.
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"REGULATION S PERMANENT GLOBAL CERTIFICATE" means any single permanent
global Certificate, in definitive, fully registered form without interest
coupons received in exchange for a Regulation S Temporary Global Certificate.
"REGULATION S TEMPORARY GLOBAL CERTIFICATE" means, with respect to any
Class of Certificates offered and sold outside of the United States in reliance
on Regulation S, a single temporary global Certificate, in definitive, fully
registered form without interest coupons.
"REHABILITATED MORTGAGE LOAN" means any Specially Serviced Mortgage
Loan with respect to which (i) three consecutive Scheduled Payments have been
made (in the case of any such Mortgage Loan, Serviced Companion Mortgage Loan or
B Note that was modified, based on the modified terms), or a complete defeasance
shall have occurred, (ii) no other Servicing Transfer Event has occurred and is
continuing (or with respect to determining whether a Required Appraisal Loan is
a Rehabilitated Mortgage Loan for applying Appraisal Reductions, no other
Appraisal Event has occurred and is continuing) and (iii) the Trust has been
reimbursed for all costs incurred as a result of the occurrence of a Servicing
Transfer Event, such amounts constitute a Workout-Delayed Reimbursement Amount,
or such amounts have been forgiven. An A Note shall not constitute a
Rehabilitated Mortgage Loan unless its related B Note would constitute a
Rehabilitated Mortgage Loan. A B Note shall not constitute a Rehabilitated
Mortgage Loan unless its related A Note also would constitute a Rehabilitated
Mortgage Loan. A Serviced Pari Passu Mortgage Loan shall not constitute a
Rehabilitated Mortgage Loan unless its related Serviced Companion Mortgage Loan
would constitute a Rehabilitated Mortgage Loan. A Serviced Companion Mortgage
Loan shall not constitute a Rehabilitated Mortgage Loan unless its related
Serviced Pari Passu Mortgage Loan also would constitute a Rehabilitated Mortgage
Loan.
"RELEASE DATE" means the date 40 days after the later of (i) the
commencement of the offering of the Certificates and (ii) the Closing Date.
"REMIC" means a real estate mortgage investment conduit within the
meaning of Section 860D of the Code.
"REMIC I" means the segregated pool of assets consisting of the
Mortgage Loans (other than any Excess Interest payable thereon), such amounts
with respect thereto as shall from time to time be held in the Collection
Account, the Certificate Account, the Reserve Account, the Distribution Account
(other than the portion thereof constituting the Excess Interest Sub-account)
and the Interest Reserve Account, the Insurance Policies (other than the
interests of the holder of any Non-Serviced Companion Mortgage Loan or Serviced
Companion Mortgage Loan or B Note therein) and any REO Properties or beneficial
interests therein (other than the interests of the holder of any Non-Serviced
Companion Mortgage Loan or any Serviced Companion Mortgage Loan or B Note
therein), for which a REMIC election has been made pursuant to Section 12.1(a)
hereof. Excess Interest on the Mortgage Loans and the Excess Interest
Sub-account shall constitute assets of the Trust but shall not be a part of any
REMIC Pool formed hereunder. The Non-Serviced Companion Mortgage Loans and any
amounts payable thereon shall not constitute assets of the Trust or any REMIC
Pool formed hereunder. No B Note or any amounts payable thereon shall constitute
an asset of the Trust or any REMIC
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Pool formed hereunder. No Serviced Companion Mortgage Loan or any amounts
payable thereon shall constitute an asset of the Trust or any REMIC Pool formed
hereunder.
"REMIC I INTERESTS" means, collectively, the REMIC I Regular Interests
and the Class R-I Certificates.
"REMIC I NET MORTGAGE RATE" means with respect to any Distribution
Date:
(i) as to any REMIC I Regular Interest, other than the REMIC I Pooled
Regular Interest and the REMIC I Non-Pooled Regular Interest, a rate per annum
equal to (a) with respect to any Mortgage Loan that accrues interest on the
basis of a 360-day year consisting of twelve (12) 30-day months ("30/360
basis"), (i) the Mortgage Rate thereof (without taking into account any increase
therein after the Anticipated Repayment Date in respect of an ARD Loan or any
default interest rate) as of the Cut-Off Date and without regard to any
modification, waiver or amendment of the terms thereof following the Cut-Off
Date, minus (ii) the Administrative Cost Rate, and (b) with respect to any
Mortgage Loan (other than the Lakeforest Mall Mortgage Loan) that accrues
interest on a basis other than a 30/360 basis, the annualized rate that, when
applied to the Principal Balance of the related Mortgage Loan (on the day prior
to the Due Date preceding such Distribution Date) on a 30/360 basis for the
related loan accrual period, yields the amount of net interest that would have
accrued during the related loan accrual period assuming a net interest rate
equal to the rate described in clause (a) above and assuming an interest accrual
basis that is the same as the actual interest accrual basis of such Mortgage
Loan, provided that for purposes of this clause (b) (i) the REMIC I Net Mortgage
Rate for the loan accrual period relating to the Due Dates in both January
(commencing in 2006) and February (commencing in 2006) in any year that is not a
leap year and in February in any year that is a leap year, shall be determined
net of any amounts transferred to the Interest Reserve Account and (ii) the
REMIC I Net Mortgage Rate for the loan accrual period relating to the Due Date
in March (commencing in 2006) shall be determined taking into account the
addition of any amounts withdrawn from the Interest Reserve Account;
(ii) as to the REMIC I Pooled Regular Interest, a rate per annum equal
to the annualized rate that, when applied to the Principal Balance of the
Lakeforest Mall Mortgage Loan Pooled Component (on the day prior to the Due Date
preceding such Distribution Date) on a 30/360 basis for the related loan accrual
period, yields the amount of net interest that would have accrued during the
related loan accrual period assuming a net interest rate equal to (i) the
Mortgage Rate of the Lakeforest Mall Mortgage Loan (without taking into account
any default interest rate) as of the Cut-Off Date and without regard to any
modification, waiver or amendment of the terms thereof following the Cut-Off
Date, minus (ii) the Administrative Cost Rate (as separately computed for the
Lakeforest Mall Mortgage Loan Pooled Component) and assuming an interest accrual
basis that is the same as the actual interest accrual basis of such Mortgage
Loan, provided that for purposes of this clause (ii), the REMIC I Net Mortgage
Rate for the loan accrual period relating to the Due Dates in both January
(commencing in 2006) and February (commencing in 2006) in any year that is not a
leap year and in February in any year that is a leap year, shall be determined
net of any amounts transferred to the Interest Reserve Account and (ii) the
REMIC I Net Mortgage Rate for the loan accrual period relating to the Due Date
in March (commencing in 2006) shall be determined taking into account the
addition of any amounts withdrawn from the Interest Reserve Account; and
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(iii) as to the REMIC I Non-Pooled Regular Interest, a rate per annum
equal to the annualized rate that, when applied to the Principal Balance of the
Lakeforest Mall Mortgage Loan Non-Pooled Component (on the day prior to the Due
Date preceding such Distribution Date) on a 30/360 basis for the related loan
accrual period, yields the amount of net interest that would have accrued during
the related loan accrual period assuming a net interest rate equal to (i) the
Mortgage Rate of the Lakeforest Mall Mortgage Loan (without taking into account
any default interest rate) as of the Cut-Off Date and without regard to any
modification, waiver or amendment of the terms thereof following the Cut-Off
Date, minus (ii) the Administrative Cost Rate (as separately computed for the
Lakeforest Mall Mortgage Loan Non-Pooled Component) and assuming an interest
accrual basis that is the same as the actual interest accrual basis of such
Mortgage Loan.
"REMIC I NON-POOLED REGULAR INTEREST" means the uncertificated
interest designated as a "regular interest" in REMIC I, which shall consist of
an interest having an initial Certificate Balance equal to the Cut-Off Date
Lakeforest Mall Mortgage Loan Non-Pooled Balance, and which has a Pass-Through
Rate equal to the Non-Pooled Component Net Mortgage Rate.
"REMIC I POOLED REGULAR INTEREST" means the uncertificated interest
designated as a "regular interest" in REMIC I which shall consist of an interest
having an initial Certificate Balance equal to the Cut-Off Date Lakeforest Mall
Mortgage Loan Pooled Balance, and which has a Pass-Through Rate equal to the
related REMIC I Net Mortgage Rate.
"REMIC I REGULAR INTERESTS" means, collectively, the uncertificated
interests designated as "regular interests" in REMIC I, which shall consist of
(i) with respect to each Mortgage Loan (other than the Lakeforest Mall Mortgage
Loan), an interest having an initial Certificate Balance equal to the Cut-Off
Date Scheduled Principal Balance of such Mortgage Loan, and which has a
Pass-Through Rate equal to the REMIC I Net Mortgage Rate of such Mortgage Loan,
(ii) the REMIC I Pooled Regular Interest, and (iii) the REMIC I Non-Pooled
Regular Interest.
"REMIC II" means the segregated pool of assets consisting of the REMIC
I Regular Interests and related amounts in the Distribution Account for which a
REMIC election has been made pursuant to Section 12.1(a) hereof.
"REMIC II INTERESTS" means, collectively, the REMIC II Regular
Interests and the Class R-II Certificates.
"REMIC II REGULAR INTEREST A-1" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance equal to the Aggregate
Certificate Balance of the Class A-1 Certificates, and which has a Pass-Through
Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-2" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance equal to Aggregate Certificate
Balance of the Class A-2 Certificates, and which has a Pass-Through Rate equal
to the Weighted Average REMIC I Net Mortgage Rate.
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"REMIC II REGULAR INTEREST A-3" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance equal to the Aggregate
Certificate Balance of the Class A-3 Certificates, and which has a Pass-Through
Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-AB" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class A-AB Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-4A" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class A-4A Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-4B" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class A-4B Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-J" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class A-J Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST B" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class B Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST C" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class C Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST D" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class D Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST E" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class E Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST F" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance
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equal to the Aggregate Certificate Balance of the Class F Certificates, and
which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage
Rate.
"REMIC II REGULAR INTEREST G" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class G Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST H" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class H Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST J" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class J Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST K" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class K Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST L" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class L Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST LF" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance equal to the Aggregate
Certificate Balance of the Class LF Certificates, and which has a Pass-Through
Rate equal to the Non-Pooled Component Net Mortgage Rate.
"REMIC II REGULAR INTEREST M" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class M Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST N" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class N Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST O" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class O Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
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"REMIC II REGULAR INTEREST P" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class P Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST Q" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class Q Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTERESTS" means, collectively, the REMIC II Regular
Interest A-1, REMIC II Regular Interest A-2, REMIC II Regular Interest A-3,
REMIC II Regular Interest A-AB, REMIC II Regular Interest A-4A, REMIC II Regular
Interest A-4B, REMIC II Regular Interest A-J, REMIC II Regular Interest B, REMIC
II Regular Interest C, REMIC II Regular Interest D, REMIC II Regular Interest E,
REMIC II Regular Interest F, REMIC II Regular Interest G, REMIC II Regular
Interest H, REMIC II Regular Interest J, REMIC II Regular Interest K, REMIC II
Regular Interest L, REMIC II Regular Interest M, REMIC II Regular Interest N,
REMIC II Regular Interest O, REMIC II Regular Interest P, REMIC II Regular
Interest Q and the REMIC II Regular Interest LF.
"REMIC III" means the segregated pool of assets consisting of the
REMIC II Regular Interests and related amounts in the Distribution Account for
which a REMIC election has been made pursuant to Section 12.1(a) hereof.
"REMIC III CERTIFICATES" has the meaning set forth in the penultimate
paragraph of the Preliminary Statement hereto.
"REMIC III REGULAR INTERESTS" means, collectively, the Class A-1
Certificates, Class A-2 Certificates, Class A-3 Certificates, Class A-AB
Certificates, Class A-4A Certificates, Class A-4B Certificates, Class A-J
Certificates, Class X Certificates, Class B Certificates, Class C Certificates,
Class D Certificates, Class E Certificates, Class F Certificates, Class G
Certificates, Class H Certificates, Class J Certificates, Class K Certificates,
Class L Certificates, Class M Certificates, Class N Certificates, Class O
Certificates, Class P Certificates, Class LF Certificates and the portion of the
Class Q Certificates representing the Class Q REMIC Interest that is a "regular
interest" in REMIC III.
"REMIC POOL" means each of the three segregated pools of assets
designated as a REMIC pursuant to Section 12.1(a) hereof.
"REMIC PROVISIONS" means the provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at Sections
860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and final, temporary and proposed regulations and rulings
promulgated thereunder, as the foregoing may be in effect from time to time and
taking account, as appropriate, of any proposed legislation or regulations
which, as proposed, would have an effective date prior to enactment or
promulgation thereof.
"REMIC REGULAR CERTIFICATES" means, collectively, the Class A-1, Class
X-0, Xxxxx X-0, Class A-AB, Class X-0X, Xxxxx X-0X, Xxxxx X-X, Class X, Class B,
Class C, Class D,
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Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N,
Class O, Class P, Class Q and Class LF Certificates.
"RENT LOSS POLICY" or "RENT LOSS INSURANCE" means a policy of
insurance generally insuring against loss of income or rent resulting from
hazards or acts of God.
"RENTS FROM REAL PROPERTY" means, with respect to any REO Property,
income of the character described in Section 856(d) of the Code.
"REO ACCOUNT" shall have the meaning set forth in Section 9.14(a)
hereof.
"REO DISPOSITION" means the receipt by the Master Servicer or the
Special Servicer of Liquidation Proceeds and other payments and recoveries
(including proceeds of a final sale) from the sale or other disposition of REO
Property.
"REO INCOME" means, with respect to any REO Property that had not been
security for an A/B Mortgage Loan or Loan Pair for any Collection Period, all
income received in connection with such REO Property during such period less any
operating expenses, utilities, real estate taxes, management fees, insurance
premiums, expenses for maintenance and repairs and any other capital expenses
directly related to such REO Property paid during such period or, with respect
to an REO Property that had been security for an A/B Mortgage Loan or Loan Pair,
the portion of the amounts described above received with respect to such REO
Property and allocable to the related A Note or Serviced Pari Passu Mortgage
Loan, as applicable, pursuant to the related Intercreditor Agreement or Loan
Pair Intercreditor Agreement, as applicable. With respect to any Non-Serviced
Mortgage Loan (if the applicable Non-Serviced Mortgage Loan Special Servicer has
foreclosed upon the Mortgaged Property secured by such Non-Serviced Mortgage
Loan Mortgage), the REO Income shall comprise only such portion of the foregoing
that is allocable to the holder of such Non-Serviced Mortgage Loan, and with
respect to the Mortgaged Property securing any Loan Pair or A/B Mortgage Loan,
only the portion of such amounts allocable to the holder of the related Serviced
Pari Passu Mortgage or the related A Note, as applicable, shall be included in
REO Income.
"REO MORTGAGE LOAN" means a Mortgage Loan, a Serviced Companion
Mortgage Loan or a B Note as to which the related Mortgaged Property is an REO
Property.
"REO PROPERTY" means a Mortgaged Property (or an interest therein, if
the Mortgaged Property securing any Loan Pair or the Mortgaged Property securing
an A/B Mortgage Loan has been acquired by the Trust) acquired by the Trust
through foreclosure, deed-in-lieu of foreclosure, abandonment or reclamation
from bankruptcy in connection with a Defaulted Mortgage Loan or otherwise
treated as foreclosure property under the REMIC Provisions; provided that a
Mortgaged Property that secures a Non-Serviced Mortgage Loan shall constitute an
REO Property if and when it is acquired under the related Non-Serviced Mortgage
Loan Pooling and Servicing Agreement for the benefit of the Trustee as the
holder of such Non-Serviced Mortgage Loan and of the holder of the related
Non-Serviced Companion Loan(s) through foreclosure, acceptance of a deed-in-lieu
of foreclosure, abandonment or reclamation from bankruptcy in connection with a
default or otherwise treated as foreclosure property under the REMIC Provisions.
The Special Servicer shall not have any obligations with respect to an REO
Property that relates to a Mortgaged Property that secures a Non-Serviced
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Mortgage Loan and all references to the Special Servicer's obligations in this
Agreement with respect to "REO Property" shall exclude any such Mortgaged
Property that secures a Non-Serviced Mortgage Loan.
"REPORT DATE" means the third Business Day before the related
Distribution Date.
"REPURCHASED LOAN" has the meaning set forth in Section 2.3(a).
"REQUEST FOR RELEASE" means a request for release of certain documents
relating to the Mortgage Loans, a form of which is attached hereto as Exhibit C.
"REQUIRED APPRAISAL LOAN" means any Mortgage Loan, Loan Pair or B Note
as to which an Appraisal Event has occurred. In the case of an A/B Mortgage
Loan, upon the occurrence of an Appraisal Event in respect of either the related
A Note or B Note, the A/B Mortgage Loan shall be deemed to be a single Required
Appraisal Loan. A Mortgage Loan, Loan Pair or B Note will cease to be a Required
Appraisal Loan at such time as it is a Rehabilitated Mortgage Loan.
"RESERVE ACCOUNT" shall mean the Reserve Account maintained by the
Paying Agent in accordance with the provisions of Section 5.3, which shall be an
Eligible Account.
"RESIDUAL CERTIFICATES" means, with respect to REMIC I, the Class R-I
Certificates, with respect to REMIC II, the Class R-II Certificates and with
respect to REMIC III, the Class R-III Certificates.
"RESPONSIBLE OFFICER" means, when used with respect to the initial
Trustee or the Fiscal Agent, any officer assigned to the Asset-Backed Securities
Trust Services Group, or with respect to the Paying Agent, any officer assigned
to the Corporate Trust Services Group, each with specific responsibilities for
the matters contemplated by this Agreement and when used with respect to any
successor Trustee, Fiscal Agent or Paying Agent, any Vice President, Assistant
Vice President, corporate trust officer or any assistant corporate trust officer
or persons performing similar roles on behalf of the Trustee, Fiscal Agent or
Paying Agent.
"RESTRICTED SERVICER REPORTS" means the following reports in CMSA
format (as in effect on the date hereof or as such formats may be changed from
time to time by the CMSA) in, and containing substantially the information
contemplated by, the forms attached hereto as part of Exhibit W prepared by the
Master Servicer (combining reports in such forms prepared by the Master Servicer
and the Special Servicer (with respect to Specially Serviced Mortgage Loans and
REO Properties)): (i) a Comparative Financial Status Report; (ii) without
duplication with Section 8.14, an NOI Adjustment Worksheet; (iii) without
duplication with Section 8.14, a CMSA Operating Statement Analysis Report, (iv)
subject to Section 8.11(h), a CMSA Watch List, (v) a Property File, (vi) without
duplication with Section 8.14, a Financial File, (vii) a CMSA Special Servicer
Loan File and (vii) a realized loss report substantially in the form included in
Exhibit W.
"REVERSE SEQUENTIAL ORDER" means sequentially to the Class Q, Class P,
Class O, Class N, Class M, Class L, Class K, Class J, Class H, Class G, Class F,
Class E, Class D,
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Class C, Class B, Class A-J and finally to the Class X and Class A Senior
Certificates, on a pro rata basis, as described herein.
"RULE 144A" means Rule 144A under the 1933 Act.
"RULE 144A-IAI GLOBAL CERTIFICATE" means, with respect to any Class of
Certificates offered and sold in reliance on Rule 144A or to certain
Institutional Accredited Investors, a single, permanent global Certificate, in
definitive, fully registered form without interest coupons.
"S&P" means Standard & Poor's Rating Services, a division of The
XxXxxx-Xxxx Companies, Inc., or its successor in interest.
"SADDLE BROOK SHOPPING CENTER A/B MORTGAGE LOAN" means the
Saddle Brook Shopping Center Mortgage Loan and the Saddle Brook Shopping Center
B Note.
"SADDLE BROOK SHOPPING CENTER B NOTE" means, with respect to the
Saddle Brook Shopping Center A/B Mortgage Loan, the related subordinated B Note
not included in the Trust, which is subordinated in right of payment to the
Saddle Brook Shopping Center Mortgage Loan to the extent set forth in the
related Intercreditor Agreement.
"SADDLE BROOK SHOPPING CENTER MORTGAGE" means the Mortgage securing
the Saddle Brook Shopping Center A/B Mortgage Loan and any other note secured by
the related Mortgaged Property.
"SADDLE BROOK SHOPPING CENTER MORTGAGE LOAN" means the Mortgage Loan
designated as Mortgage Loan No. 31 on the Mortgage Loan Schedule and which is
senior to the Saddle Brook Shopping Center B Note and is secured by the related
Mortgaged Property pursuant to the Saddle Brook Shopping Center Mortgage. The
Saddle Brook Shopping Center Mortgage Loan is a "Mortgage Loan."
"XXXXXXXX-XXXXX CERTIFICATION" has the meaning set forth in Section
8.26(b).
"SCHEDULED PAYMENT" means each scheduled payment of principal of,
and/or interest on, a Mortgage Loan, a Serviced Companion Mortgage Loan or a B
Note required to be paid on its Due Date by the Mortgagor in accordance with the
terms of the related Mortgage Note, Serviced Companion Mortgage Loan or B Note
(excluding all amounts of principal and interest which were due on or before the
Cut-Off Date, whenever received, and taking account of any modifications thereof
and the effects of any Debt Service Reduction Amounts and Deficient Valuation
Amounts). Notwithstanding the foregoing, the amount of the Scheduled Payment for
any Serviced Pari Passu Mortgage Loan or Serviced Companion Mortgage Loan or any
A Note or B Note shall be calculated without regard to the related Loan Pair
Intercreditor Agreement or the related Intercreditor Agreement, as applicable.
"SCHEDULED PRINCIPAL BALANCE" means, with respect to any Mortgage
Loan, Serviced Companion Mortgage Loan, Loan Pair, B Note or REO Mortgage Loan,
for purposes of performing calculations with respect to any Distribution Date,
the Principal Balance thereof minus the aggregate amount of any P&I Advances of
principal previously made with respect to
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such Mortgage Loan, Serviced Companion Mortgage Loan, Loan Pair, B Note or REO
Mortgage Loan.
"SELLER" means Principal, Xxxxx Fargo, BSCMI or MSMC as the case may
be.
"SENIOR CERTIFICATES" means the Class A Senior and Class X
Certificates.
"SERVICED COMPANION MORTGAGE LOAN" means The Westin Xxxxxx Place
Companion Loan, which is serviced under this Agreement, is not a "Mortgage Loan"
included in the Trust, but is paid on a pari passu basis with a Mortgage Loan
included in the Trust.
"SERVICED COMPANION MORTGAGE LOAN CUSTODIAL ACCOUNT" means each of the
custodial sub-account(s) of the Certificate Account (but which are not included
in the Trust) created and maintained by the Master Servicer pursuant to Section
5.1(c) on behalf of the holder of the related Serviced Companion Mortgage Loan.
Any such sub-account(s) shall be maintained as a sub-account of an Eligible
Account.
"SERVICED PARI PASSU MORTGAGE" means the Mortgage securing a Serviced
Pari Passu Mortgage Loan and its related Serviced Companion Mortgage Loan
secured by the related Mortgaged Property.
"SERVICED PARI PASSU MORTGAGE LOAN" means The Westin Xxxxxx Place Pari
Passu Loan, which is a "Mortgage Loan" included in the Trust and is paid on a
pari passu basis with a Serviced Companion Mortgage Loan.
"SERVICER ERRORS AND OMISSIONS INSURANCE POLICY" or "ERRORS AND
OMISSIONS INSURANCE POLICY" means an errors and omissions insurance policy
maintained by the Master Servicer, the Special Servicer, the Trustee, the Fiscal
Agent or the Paying Agent, as the case may be, in accordance with Section 8.2,
Section 9.2 and Section 7.17, respectively.
"SERVICER FIDELITY BOND" or "FIDELITY BOND" means a bond or insurance
policy under which the insurer agrees to indemnify the Master Servicer, the
Special Servicer, the Trustee, the Fiscal Agent or the Paying Agent, as the case
may be, (subject to standard exclusions) for all losses (less any deductible)
sustained as a result of any theft, embezzlement, fraud or other dishonest act
on the part of the Master Servicer's, the Special Servicer's, the Trustee's, the
Fiscal Agent's or the Paying Agent's, as the case may be, directors, officers or
employees and is maintained in accordance with Section 8.2, Section 9.2 and
Section 7.17, respectively.
"SERVICER MORTGAGE FILE" means copies of the mortgage documents listed
in the definition of "Mortgage File" relating to a Mortgage Loan and shall also
include, to the extent required to be (and actually) delivered to the applicable
Seller pursuant to the applicable Mortgage Loan documents, copies of the
following items: the Mortgage Note, any Mortgage, the Assignment of Leases and
the Assignment of Mortgage, any guaranty/indemnity agreement, any loan
agreement, any insurance policies or certificates (as applicable), any property
inspection reports, any financial statements on the property, any escrow
analysis, any tax bills, any Appraisal, any environmental report, any
engineering report, any asset summary, financial
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information on the Mortgagor/sponsor and any guarantors, any letters of credit,
any intercreditor agreement and any Environmental Insurance Policies.
"SERVICING ADVANCE" means any cost or expense of the Master Servicer,
the Special Servicer, the Trustee or the Fiscal Agent, as the case may be,
designated as a Servicing Advance pursuant to this Agreement and any other costs
and expenses incurred by the Master Servicer, the Special Servicer, the Trustee
or the Fiscal Agent, as the case may be, to protect and preserve the security
for such Mortgage Loan (including, in the case of the Lakeforest Mall Mortgage
Loan, the Lakeforest Mall Mortgage Loan Non-Pooled Component) and/or (if
applicable) the related Serviced Companion Mortgage Loan or B Note.
"SERVICING OFFICER" means, any officer or employee of the Master
Servicer involved in, or responsible for, the administration and servicing of
the Mortgage Loans, any Serviced Companion Mortgage Loan and any B Note whose
name and specimen signature appear on a list of servicing officers or employees
furnished to the Trustee by the Master Servicer and signed by an officer of the
Master Servicer, as such list may from time to time be amended.
"SERVICING STANDARD" means, with respect to the Master Servicer or the
Special Servicer, as the case may be, to service and administer the Mortgage
Loans (and any Serviced Companion Mortgage Loan and B Note but not any
Non-Serviced Mortgage Loan) that it is obligated to service and administer
pursuant to this Agreement on behalf of the Trustee and in the best interests of
and for the benefit of the Certificateholders (and in the case of any Serviced
Companion Mortgage Loan or B Note, the related holder of the Serviced Companion
Mortgage Loan or B Note, as applicable) as a collective whole (as determined by
the Master Servicer or the Special Servicer, as the case may be, in its good
faith and reasonable judgment), in accordance with applicable law, the terms of
this Agreement and the terms of the respective Mortgage Loans, any Serviced
Companion Mortgage Loan and any B Note (and, in the case of any Loan Pair or any
A Note and B Note, the related Loan Pair Intercreditor Agreement or the related
Intercreditor Agreement, as applicable) and, to the extent consistent with the
foregoing, further as follows:
(a) with the same care, skill and diligence as is normal and usual in
its general mortgage servicing and REO property management activities on behalf
of third parties or on behalf of itself, whichever is higher, with respect to
mortgage loans and REO properties that are comparable to those for which it is
responsible hereunder;
(b) with a view to the timely collection of all Scheduled Payments of
principal and interest under the Mortgage Loans, any Serviced Companion Mortgage
Loan and any B Note or, if a Mortgage Loan, any Serviced Companion Mortgage Loan
or any B Note comes into and continues in default and if, in the good faith and
reasonable judgment of the Special Servicer, no satisfactory arrangements can be
made for the collection of the delinquent payments, the maximization of the
recovery of principal and interest on such Mortgage Loan to the
Certificateholders (as a collective whole) (or in the case of any A/B Mortgage
Loan and its related B Note or any Loan Pair, the maximization of the recovery
of principal and interest on such A/B Mortgage Loan or Loan Pair, as applicable,
to the Certificateholders and the holder of the related B Note or Serviced
Companion Mortgage Loan, as applicable, all taken as a
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collective whole) on a net present value basis (the relevant discounting of
anticipated collections that will be distributable to Certificateholders to be
performed at the rate determined by the Special Servicer but in any event not
less than (i) the related REMIC I Net Mortgage Rate, in the case of the Mortgage
Loans (other than any A Note or Serviced Pari Passu Mortgage Loan) or (ii) the
weighted average of the mortgage rates on the related A Note and B Note, in the
case of any A/B Mortgage Loan, and on the related Serviced Pari Passu Mortgage
Loan and Serviced Companion Mortgage Loan in the case of any Loan Pair); and
without regard to: (I) any other relationship that the Master Servicer or the
Special Servicer, as the case may be, or any Affiliate thereof may have with the
related Mortgagor; (II) the ownership of any Certificate or any interest in any
Non-Serviced Companion Mortgage Loan, Serviced Companion Mortgage Loan, B Note
or any mezzanine loan related to a Mortgage Loan by the Master Servicer or the
Special Servicer, as the case may be, or any Affiliate thereof; (III) the Master
Servicer's obligation to make Advances; (IV) the right of the Master Servicer
(or any Affiliate thereof) or the Special Servicer (or any Affiliate thereof),
as the case may be, to receive reimbursement of costs, or the sufficiency of any
compensation payable to it, hereunder or with respect to any particular
transaction and (V) any obligation of the Master Servicer (or any Affiliate
thereof) to repurchase any Mortgage Loan from the Trust.
"SERVICING TRANSFER EVENT" means the occurrence of any of the
following events: (i) any Mortgage Loan (other than a Non-Serviced Mortgage
Loan), Serviced Companion Mortgage Loan or B Note as to which a Balloon Payment
is past due, and the Master Servicer has determined, in its good faith
reasonable judgment in accordance with the Servicing Standard, that payment is
unlikely to be made on or before the 60th day succeeding the date the Balloon
Payment was due, or any other payment is more than 60 days past due or has not
been made on or before the second Due Date following the Due Date such payment
was due; (ii) any Mortgage Loan (other than a Non-Serviced Mortgage Loan),
Serviced Companion Mortgage Loan or B Note as to which, to the Master Servicer's
knowledge, the Mortgagor has consented to the appointment of a receiver or
conservator in any insolvency or similar proceeding of, or relating to, such
Mortgagor or to all or substantially all of its property, or the Mortgagor has
become the subject of a decree or order issued under a bankruptcy, insolvency or
similar law and such decree or order shall have remained undischarged or
unstayed for a period of 30 days; (iii) any Mortgage Loan (other than a
Non-Serviced Mortgage Loan), Serviced Companion Mortgage Loan or B Note as to
which the Master Servicer shall have received notice of the foreclosure or
proposed foreclosure of any other lien on the Mortgaged Property; (iv) any
Mortgage Loan (other than a Non-Serviced Mortgage Loan), Serviced Companion
Mortgage Loan or B Note as to which the Master Servicer has knowledge of a
default (other than a failure by the related Mortgagor to pay principal or
interest) which in the good faith reasonable judgment of the Master Servicer
materially and adversely affects the interests of the Certificateholders or the
holder of any related Serviced Companion Mortgage Loan or B Note and which has
occurred and remains unremedied for the applicable grace period specified in
such Mortgage Loan (or, if no grace period is specified, 60 days); (v) any
Mortgage Loan (other than a Non-Serviced Mortgage Loan), Serviced Companion
Mortgage Loan or B Note as to which the Mortgagor admits in writing its
inability to pay its debts generally as they become due, files a petition to
take advantage of any applicable insolvency or reorganization statute, makes an
assignment for the benefit of its creditors or voluntarily suspends payment of
its obligations; and (vi) any Mortgage Loan (other than a Non-Serviced Mortgage
Loan), Serviced Companion Mortgage Loan or B Note as to which, in the good faith
reasonable judgment of the Master Servicer, (a)
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(other than with respect to any A/B Mortgage Loan) a payment default is imminent
or is likely to occur within 60 days, or (b) any other default is imminent or is
likely to occur within 60 days and such default, in the judgment of the Master
Servicer, is reasonably likely to materially and adversely affect the interests
of the Certificateholders or the holder of any related Serviced Companion
Mortgage Loan or B Note (as the case may be); provided, however, that (1) if the
holder of the B Note exercised its right to cure a monetary default and a
monetary default occurs in the following month due to the holder of the B Note's
failure to cure, then servicing of such Mortgage Loan shall be transferred to
the Special Servicer on the Business Day following the expiration of the Cure
Period (as defined in the related Intercreditor Agreement) of the holder of the
B Note if the holder of the B Note does not cure the current monetary default or
(2) if the holder of the B Note has exercised its right to cure the number of
consecutive monetary defaults it is permitted to cure under the related
Intercreditor Agreement and a monetary default occurs in the following month,
then servicing of such Mortgage Loan shall be transferred to the Special
Servicer at the expiration of the Mortgagor's grace period for the current
monetary default. If a Servicing Transfer Event occurs with respect to an A
Note, it shall be deemed to have occurred also with respect to its related B
Note; provided, however, that if a Servicing Transfer Event would otherwise have
occurred with respect to an A Note, but has not so occurred solely because the
holder of the related B Note has exercised its cure rights under the related
Intercreditor Agreement, then a Servicing Transfer Event will not occur with
respect to such A/B Mortgage Loan. If a Servicing Transfer Event occurs with
respect to a B Note, it shall be deemed to have occurred also with respect to
its related A Note. If a Servicing Transfer Event occurs with respect to any
Serviced Pari Passu Mortgage Loan, it shall be deemed to have occurred also with
respect to the related Serviced Companion Mortgage Loan. If a Servicing Transfer
Event occurs with respect to any Serviced Companion Mortgage Loan, it shall be
deemed to have occurred also with respect to the related Serviced Pari Passu
Mortgage Loan. Under the applicable Non-Serviced Mortgage Loan Pooling and
Servicing Agreement, if a Servicing Transfer Event occurs with respect to any
Non-Serviced Companion Mortgage Loan, it shall be deemed to have occurred also
with respect to the related Non-Serviced Mortgage Loan.
"SIMILAR LAWS" has the meaning set forth in Section 3.3(d).
"SINGLE-PURPOSE ENTITY" means a Person, other than an individual,
whose organizational documents provide substantially to the effect that it is
formed or organized solely for the purpose of owning and collecting payments
from Defeasance Collateral for the benefit of the Trust and which (i) does not
engage in any business unrelated thereto and the financing thereof; (ii) does
not have any assets other than those related to its interest in Defeasance
Collateral; (iii) maintains its own books, records and accounts, in each case
which are separate and apart from the books, records and accounts of any other
Person; (iv) conducts business in its own name and uses separate stationery,
invoices and checks; (v) does not guarantee or assume the debts or obligations
of any other Person; (vi) does not commingle its assets or funds with those of
any other Person; (vii) transacts business with affiliates on an arm's length
basis pursuant to written agreements; and (viii) holds itself out as being a
legal entity, separate and apart from any other Person, and otherwise complies
with the single-purpose requirements established by the Rating Agencies. The
entity's organizational documents also provide that any dissolution and winding
up or insolvency filing for such entity requires the unanimous consent of all
partners or members, as applicable, and that such documents may not be amended
with respect to the Single-Purpose Entity requirements.
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"SPECIAL SERVICER" means ARCap Servicing, Inc., or any successor
Special Servicer as herein provided, including without limitation, any successor
Special Servicer appointed pursuant to Section 9.39 hereof.
"SPECIAL SERVICER COMPENSATION" means, with respect to any applicable
period, the sum of the Special Servicing Fees, the Liquidation Fees and Work-Out
Fees and any other amounts to be paid to the Special Servicer pursuant to the
terms of this Agreement.
"SPECIAL SERVICER REMITTANCE DATE" means the Business Day preceding
each Determination Date.
"SPECIAL SERVICING FEE" means, for each calendar month, as to each
Mortgage Loan (other than any Non-Serviced Mortgage Loan), Serviced Companion
Mortgage Loan or B Note that is a Specially Serviced Mortgage Loan (including
REO Mortgage Loans), the fraction or portion of the Special Servicing Fee Rate
applicable to such month (determined using the same interest accrual methodology
that is applied with respect to the Mortgage Rate for such Mortgage Loan,
Serviced Companion Mortgage Loan or B Note for such month) multiplied by the
Scheduled Principal Balance of such Specially Serviced Mortgage Loan immediately
before the Due Date occurring in such month.
"SPECIAL SERVICING FEE RATE" means 0.25% per annum.
"SPECIAL SERVICING OFFICER" means any officer or employee of the
Special Servicer involved in, or responsible for, the administration and
servicing of the Specially Serviced Mortgage Loans whose name and specimen
signature appear on a list of servicing officers or employees furnished to the
Trustee, the Paying Agent and the Master Servicer by the Special Servicer signed
by an officer of the Special Servicer, as such list may from time to time be
amended.
"SPECIALLY SERVICED MORTGAGE LOAN" means, as of any date of
determination, any Mortgage Loan (other than any Non-Serviced Mortgage Loan),
Serviced Companion Mortgage Loan or B Note with respect to which the Master
Servicer has notified the Special Servicer, the Operating Adviser (or the
Lakeforest Mall Mortgage Loan Operating Adviser with respect to the Lakeforest
Mall Mortgage Loan) and the Trustee that a Servicing Transfer Event has occurred
(which notice shall be effective upon receipt) and the Special Servicer has
received all information, documents and records relating to such Mortgage Loan,
Serviced Companion Mortgage Loan or B Note as reasonably requested by the
Special Servicer to enable it to assume its duties with respect to such Mortgage
Loan, Serviced Companion Mortgage Loan or B Note. A Specially Serviced Mortgage
Loan shall cease to be a Specially Serviced Mortgage Loan from and after the
date on which the Special Servicer notifies the Master Servicer, the Operating
Adviser (or the Lakeforest Mall Mortgage Loan Operating Adviser with respect to
the Lakeforest Mall Mortgage Loan), the Paying Agent and the Trustee, in
accordance with Section 8.1(b), that such Mortgage Loan (and the related B Note
in the case of an A/B Mortgage Loan, and the related Serviced Companion Mortgage
Loan in the case of a Loan Pair) has become a Rehabilitated Mortgage Loan (and,
in the case of an A Note (or B Note) that is or was a Specially Serviced
Mortgage Loan, its related B Note (or A Note) has also become a Rehabilitated
Mortgage Loan and, in the case of a Serviced Pari Passu Mortgage Loan (or
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Serviced Companion Mortgage Loan) that is or was a Specially Serviced Mortgage
Loan, its related Serviced Companion Mortgage Loan (or Serviced Pari Passu
Mortgage Loan) has also become a Rehabilitated Mortgage Loan), with respect to
such Servicing Transfer Event, unless and until the Master Servicer notifies the
Special Servicer, the Paying Agent and the Trustee, in accordance with Section
8.1(b) that another Servicing Transfer Event with respect to such Mortgage Loan,
Serviced Companion Mortgage Loan or B Note exists or occurs.
"STANDARD HAZARD INSURANCE POLICY" means a fire and casualty extended
coverage insurance policy in such amount and with such coverage as required by
this Agreement.
"STARTUP DAY" means, with respect to each of REMIC I, REMIC II and
REMIC III, the day designated as such in Section 12.1(b).
"SUB-SERVICER" has the meaning set forth in Section 8.4.
"SUBORDINATE CERTIFICATES" means, collectively, the Class A-J, Class
B, Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class
L, Class M, Class N, Class O, Class P and Class Q Certificates.
"SUCCESSFUL BIDDER" has the meaning set forth in Section 8.29(d) or
Section 9.31(d), as applicable.
"TAX MATTERS PERSON" means the person designated as the "tax matters
person" of each REMIC Pool pursuant to Treasury Regulations Section 1.860F-4(d)
and temporary Treasury Regulations Section 301.6231(a)(7)-1T.
"TERMINATION PRICE" has the meaning set forth in Section 10.1(b).
"THE WESTIN XXXXXX PLACE COMPANION LOAN" means, with respect to the
Mortgage Loan designated as Mortgage Loan No. 3 on the Mortgage Loan Schedule,
collectively, the note secured by The Westin Xxxxxx Place Pari Passu Mortgage on
a pari passu basis with The Westin Xxxxxx Place Pari Passu Loan and which is not
included in the Trust. The Westin Xxxxxx Place Companion Loan is not a "Mortgage
Loan."
"THE WESTIN XXXXXX PLACE PARI PASSU LOAN" means, the Mortgage Loan
designated as Mortgage Loan No. 3 on the Mortgage Loan Schedule and which is
secured on a pari passu basis with The Westin Xxxxxx Place Companion Loan
secured by the related Mortgaged Property pursuant to The Westin Xxxxxx Place
Pari Passu Mortgage. The Westin Xxxxxx Place Pari Passu Loan is a "Mortgage
Loan."
"THE WESTIN XXXXXX PLACE PARI PASSU MORTGAGE" means, the Mortgage
securing The Westin Xxxxxx Place Companion Loan and The Westin Xxxxxx Place Pari
Passu Loan.
"1345 AVENUE OF THE AMERICAS COMPANION LOANS" means, with respect to
the Mortgage Loan designated as Mortgage Loan No. 11 on the Mortgage Loan
Schedule, the notes secured by the 1345 Avenue of the Americas Pari Passu
Mortgage on a pari passu basis with the
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1345 Avenue of the Americas Pari Passu Loan, which include the 1345 Avenue of
the Americas 1-A2 Note, the 1345 Avenue of the Americas 1-A3 Note, the 1345
Avenue of the Americas 1-A4 Note and the 1345 Avenue of the Americas Loan 2
Component A Note, and which are not included in the Trust. The 1345 Avenue of
the Americas Companion Loans are not "Mortgage Loans."
"1345 AVENUE OF THE AMERICAS LOAN GROUP" means, collectively, the 1345
Avenue of the Americas Pari Passu Loan, the 1345 Avenue of the Americas
Companion Loans, the 1345 Avenue of the Americas B Notes and the 1345 Avenue of
the Americas C Notes.
"1345 AVENUE OF THE AMERICAS PARI PASSU LOAN" means, the Mortgage Loan
designated as Mortgage Loan No. 11 on the Mortgage Loan Schedule and which is
secured on a pari passu basis with the 1345 Avenue of the Americas Companion
Loans secured by the related Mortgaged Property pursuant to the 1345 Avenue of
the Americas Pari Passu Mortgage. The 1345 Avenue of the Americas Pari Passu
Loan is a "Mortgage Loan."
"1345 AVENUE OF THE AMERICAS PARI PASSU MORTGAGE" means, the Mortgage
securing the 1345 Avenue of the Americas Companion Loan, the 1345 Avenue of the
Americas Pari Passu Loan, the 1345 Avenue of the Americas B Notes and the 1345
Avenue of the Americas C Notes.
"1345 AVENUE OF THE AMERICAS 1-A2 NOTE" means, with respect to the
1345 Avenue of the Americas Loan Group, the mortgage loan in the original
principal amount of $46,800,000, which is secured on a pari passu basis with the
1345 Avenue of the Americas Pari Passu Loan pursuant to the 1345 Avenue of the
Americas Place Pari Passu Mortgage.
"1345 AVENUE OF THE AMERICAS 1-A3 NOTE" means, with respect to the
1345 Avenue of the Americas Loan Group, the mortgage loan in the original
principal amount of $169,193,977, which is secured on a pari passu basis with
the 1345 Avenue of the Americas Pari Passu Loan pursuant to the 1345 Avenue of
the Americas Place Pari Passu Mortgage.
"1345 AVENUE OF THE AMERICAS 1-A4 NOTE" means, with respect to the
1345 Avenue of the Americas Loan Group, the mortgage loan in the original
principal amount of $169,193,977, which is secured on a pari passu basis with
the 1345 Avenue of the Americas Pari Passu Loan pursuant to the 1345 Avenue of
the Americas Place Pari Passu Mortgage.
"1345 AVENUE OF THE AMERICAS B NOTES" means, collectively, the 1345
Avenue of the Americas 1-B1 Note, the 1345 Avenue of the Americas 1-B2 Note and
the 1345 Avenue of the Americas Loan 2 Component B Note.
"1345 AVENUE OF THE AMERICAS 1-B1 NOTE" means, with respect to the
1345 Avenue of the Americas Loan Group, the mortgage loan in the original
principal amount of $49,006,023, which is a subordinated mortgage note that is
not included in the trust and is not serviced hereunder.
"1345 AVENUE OF THE AMERICAS 1-B2 NOTE" means, with respect to the
1345 Avenue of the Americas Loan Group, the mortgage loan in the original
principal amount of
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$49,006,023, which is a subordinated mortgage note that is not included in the
trust and is not serviced hereunder.
"1345 AVENUE OF THE AMERICAS C NOTES" means, collectively, the 1345
Avenue of the Americas 1-C1 Note, the 1345 Avenue of the Americas 1-C2 Note, the
1345 Avenue of the Americas 1-C3 Note and the 1345 Avenue of the Americas 1-C4
Note.
"1345 AVENUE OF THE AMERICAS 1-C1 NOTE" means, with respect to the
1345 Avenue of the Americas Loan Group, the mortgage loan in the original
principal amount of $33,333,333, which is a subordinated mortgage note that is
not included in the trust and is not serviced hereunder.
"1345 AVENUE OF THE AMERICAS 1-C2 NOTE" means, with respect to the
1345 Avenue of the Americas Loan Group, the mortgage loan in the original
principal amount of $33,333,333, which is a subordinated mortgage note that is
not included in the trust and is not serviced hereunder.
"1345 AVENUE OF THE AMERICAS 1-C3 NOTE" means, with respect to the
1345 Avenue of the Americas Loan Group, the mortgage loan in the original
principal amount of $16,666,667, which is a subordinated mortgage note that is
not included in the trust and is not serviced hereunder.
"1345 AVENUE OF THE AMERICAS 1-C4 NOTE" means, with respect to the
1345 Avenue of the Americas Loan Group, the mortgage loan in the original
principal amount of $16,666,667, which is a subordinated mortgage note that is
not included in the trust and is not serviced hereunder.
"1345 AVENUE OF THE AMERICAS LOAN 2 COMPONENT A NOTE" means the
mortgage loan in the original principal amount of $81,507,161, which is secured
on a pari passu basis with the 1345 Avenue of the Americas Pari Passu Loan
pursuant to the 1345 Avenue of the Americas Place Pari Passu Mortgage.
"1345 AVENUE OF THE AMERICAS LOAN 2 COMPONENT B NOTE" means the
mortgage loan in the original principal amount of $18,492,839, which is a
subordinated mortgage note that is not included in the trust and is not serviced
hereunder.
"TINTON PINES APARTMENTS A/B MORTGAGE LOAN" means the Tinton Pines
Apartments Mortgage Loan and the Tinton Pines Apartments B Note.
"TINTON PINES APARTMENTS B NOTE" means, with respect to the Tinton
Pines Apartments A/B Mortgage Loan, the related subordinated B Note not included
in the Trust, which is subordinated in right of payment to the Tinton Pines
Apartments Mortgage Loan to the extent set forth in the related Intercreditor
Agreement.
"TINTON PINES APARTMENTS MORTGAGE" means the Mortgage securing the
Tinton Pines Apartments A/B Mortgage Loan and any other note secured by the
related Mortgaged Property.
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"TINTON PINES APARTMENTS MORTGAGE LOAN" means the Mortgage Loan
designated as Mortgage Loan No. 164 on the Mortgage Loan Schedule and which is
senior to the Tinton Pines Apartments B Note and is secured by the related
Mortgaged Property pursuant to the Tinton Pines Apartments Mortgage. The Tinton
Pines Apartments Mortgage Loan is a "Mortgage Loan."
"TITLE INSURANCE POLICY" means a title insurance policy maintained
with respect to a Mortgage Loan issued on the date of origination of the related
Mortgage Loan.
"TRANSFER" means any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"TRANSFEREE" means any Person who is acquiring by Transfer any
Ownership Interest in a Certificate.
"TRANSFEROR" means any Person who is disposing by Transfer any
Ownership Interest in a Certificate.
"TRUST" means the trust created pursuant to this Agreement, the assets
which consist of all the assets of REMIC I (including the Mortgage Loans (other
than Excess Interest), such amounts related thereto as shall from time to time
be held in the Certificate Account, the Distribution Account, the Reserve
Account, the Interest Reserve Account, the Insurance Policies, any REO
Properties or beneficial interests therein and other items referred to in
Section 2.1(a) hereof); REMIC II; REMIC III and funds or assets from time to
time on deposit in the Excess Interest Sub-account and any Excess Interest on
the Mortgage Loans. The Trust shall not include any Non-Serviced Companion
Mortgage Loan, any B Note, any interest of the holders of a B Note, any A/B Loan
Custodial Account, any Serviced Companion Mortgage Loan, any interest of the
holders of a Serviced Companion Mortgage Loan or any Serviced Companion Mortgage
Loan Custodial Account.
"TRUSTEE" means LaSalle Bank National Association, as trustee, or its
successor-in-interest, or if any successor trustee or any co-trustee shall be
appointed as herein provided, then "Trustee" shall also mean such successor
trustee (subject to Section 7.7 hereof) and such co-trustee (subject to Section
7.9 hereof), as the case may be.
"TRUSTEE FEE" means for each calendar month, as to each Mortgage Loan
(including REO Mortgage Loans and Defeasance Loans), the portion of the Trustee
Fee Rate applicable to such month (determined using the same interest accrual
methodology (other than the rate of accrual) that is applied with respect to the
Mortgage Rate for such Mortgage Loan for such month) multiplied by the Scheduled
Principal Balance of each such Mortgage Loan immediately before the Due Date
occurring in such month; provided that a portion of the Trustee Fee agreed upon
between the Trustee and the Paying Agent shall be applied to pay the Paying
Agent Fee.
"TRUSTEE FEE RATE" means 0.00128% per annum (which includes the Paying
Agent Fee).
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"TRUSTEE MORTGAGE FILE" means the mortgage documents listed in the
definition of "Mortgage File" hereof pertaining to a particular Mortgage Loan
(and, if applicable, the related Serviced Companion Mortgage Loan and the
related B Note) and any additional documents required to be added to the
Mortgage File pursuant to this Agreement; provided that whenever the term
"Trustee Mortgage File" is used to refer to documents actually received by the
Trustee or a Custodian on its behalf, such terms shall not be deemed to include
such documents required to be included therein unless they are actually so
received.
"24 HOUR FITNESS PORTFOLIO LOAN" means the Mortgage Loan designated as
Mortgage Loan Nos. 40 and 41 on the Mortgage Loan Schedule.
"200 MADISON AVENUE COMPANION LOAN" means, with respect to the
Mortgage Loan designated as Mortgage Loan Nos. 12 on the Mortgage Loan Schedule,
collectively, the note secured by the 200 Madison Avenue Pari Passu Mortgage on
a pari passu basis with the 000 Xxxxxxx Xxxxxx Pari Passu Loan and which is not
included in the Trust. The 000 Xxxxxxx Xxxxxx Companion Loan is not a "Mortgage
Loan."
"200 MADISON AVENUE PARI PASSU LOAN" means, the Mortgage Loan
designated as Mortgage Loan No. 12 on the Mortgage Loan Schedule and which is
secured on a pari passu basis with the 000 Xxxxxxx Xxxxxx Companion Loan secured
by the related Mortgaged Property pursuant to the 000 Xxxxxxx Xxxxxx Pari Passu
Mortgage. The 000 Xxxxxxx Xxxxxx Pari Passu Loan is a "Mortgage Loan."
"200 MADISON AVENUE PARI PASSU MORTGAGE" means, the Mortgage securing
the 000 Xxxxxxx Xxxxxx Companion Loan and the 200 Madison Avenue Pari Passu
Loan.
"UNDERWRITER" means each of Bear, Xxxxxxx & Co. Inc. and Xxxxxx
Xxxxxxx & Co. Incorporated or its successors in interest.
"UNITED STATES TAX PERSON" means any of (i) a citizen or resident of
the United States, (ii) corporation or partnership organized in or under the
laws of the United States, any State thereof or the District of Columbia, (iii)
an estate the income of which is includible in gross income for United States
tax purposes, regardless of its source or (iv) a trust if a court within the
United States is able to exercise primary supervision over the administration of
such trust, and one or more United States Tax Persons has the authority to
control all substantial decisions of such trust.
"UNLIQUIDATED ADVANCE" means any Advance previously made by a party
hereto that has been previously reimbursed to that party by the Trust Fund as
part of a Workout-Delayed Reimbursement Amount pursuant to subsection (iii) of
Section 5.2(a)(II), but that has not been recovered from the Mortgagor or
otherwise from collections on or the proceeds of the Mortgage Loan or REO
Property in respect of which the Advance was made.
"UNPAID INTEREST" means, on any Distribution Date with respect to any
Class (or in the case of Classes A-4A and A-4B, such Classes collectively or
individually as the context may require) of Interests or Certificates (other
than the Residual Certificates), the portion of Distributable Certificate
Interest for such Class remaining unpaid as of the close of business on the
preceding Distribution Date.
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"UNRESTRICTED SERVICER REPORTS" means the following reports in CMSA
format (as in effect on the date hereof or as such formats may be changed from
time to time by the CMSA) in, and containing substantially the information
contemplated by, the forms attached hereto as part of Exhibit X prepared by the
Master Servicer (combining reports in such forms prepared by the Master Servicer
and the Special Servicer (with respect to Specially Serviced Mortgage Loans and
REO Properties)): (a) the following electronic files: (i) a Loan Setup File
(with respect to the initial Distribution Date only); and (ii) a Loan Periodic
Update File; and (b) the following supplemental reports: (i) a Delinquent Loan
Status Report, (ii) an Historical Loan Modification Report, (iii) an Historical
Liquidation Report, (iv) an REO Status Report, and (v) a CMSA Loan Level
Reserve/LOC Report.
"USAP" shall have the meaning set forth in Section 8.13.
"WEIGHTED AVERAGE REMIC I NET MORTGAGE RATE" means, with respect to
any Distribution Date, the weighted average of the REMIC I Net Mortgage Rates
for the REMIC I Regular Interests (other than the REMIC I Non-Pooled Regular
Interest), weighted on the basis of their respective Certificate Balances as of
the close of business on the preceding Distribution Date.
"XXXXX FARGO" has the meaning set forth in the Preliminary Statement
hereto.
"XXXXX FARGO LOANS" means, collectively, those Mortgage Loans sold to
the Depositor pursuant to Mortgage Loan Purchase Agreement II and shown on
Schedule II hereto.
"WEST TOWNE MALL MORTGAGE LOAN" means that certain Mortgage Loan
evidenced by two pari passu Mortgage Notes, both of which are assets of the
Trust and secured by the Mortgaged Property identified on Schedule III and
Schedule IV as the West Towne Mall.
"WORKOUT-DELAYED REIMBURSEMENT AMOUNT" has the meaning set forth in
subsection (II)(i) of Section 5.2(a).
"WORK-OUT FEE" means a fee payable with respect to any Rehabilitated
Mortgage Loan (other than any Non-Serviced Mortgage Loan), Serviced Companion
Mortgage Loan or B Note, equal to the product of (x) 1.0% and (y) the amount of
each collection of interest (other than default interest and any Excess
Interest) and principal received (including any Condemnation Proceeds received
and applied as a collection of such interest and principal) on such Mortgage
Loan, Serviced Companion Mortgage Loan or B Note for so long as it remains a
Rehabilitated Mortgage Loan.
SECTION 1.2 CALCULATIONS RESPECTING MORTGAGE LOANS.
(a) Calculations required to be made by the Paying Agent pursuant to
this Agreement with respect to any Mortgage Loan, Serviced Companion Mortgage
Loan or B Note shall be made based upon current information as to the terms of
such Mortgage Loan, Serviced Companion Mortgage Loan and B Note and reports of
payments received from the Master Servicer on such Mortgage Loan, Serviced
Companion Mortgage Loan and B Note and payments to be made to the Paying Agent
as supplied to the Paying Agent by the Master Servicer. The Paying Agent shall
not be required to recompute, verify or recalculate the
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information supplied to it by the Master Servicer and may conclusively rely upon
such information in making such calculations. If, however, a Responsible Officer
of the Paying Agent has actual knowledge of an error in the calculations, the
Paying Agent shall inform the Master Servicer of such error.
(b) Unless otherwise required by law or the applicable Mortgage Loan,
Serviced Companion Mortgage Loan or B Note documents (or the related
Intercreditor Agreement or related Loan Pair Intercreditor Agreement, as
applicable), or as otherwise provided for in the definition of Liquidation
Realized Loss, any amounts (other than escrow and reserve deposits and
reimbursements of lender advances and expenses) received in respect of a
Mortgage Loan, a Serviced Companion Mortgage Loan or a B Note as to which a
default has occurred and is continuing shall be applied first to overdue
interest due with respect to such Mortgage Loan, Serviced Companion Mortgage
Loan or B Note at the Mortgage Rate thereof, next to current interest due with
respect to such Mortgage Loan, Serviced Companion Mortgage Loan or B Note at the
Mortgage Rate thereof, next to the reduction of the Principal Balance of such
Mortgage Loan, Serviced Companion Mortgage Loan or B Note to zero if such
Mortgage Loan, Serviced Companion Mortgage Loan or B Note has been accelerated
and in respect of any scheduled payments of principal then due to the extent
that such Mortgage Loan, Serviced Companion Mortgage Loan or B Note has not yet
been accelerated, next to any default interest and other amounts due on such
Mortgage Loan, Serviced Companion Mortgage Loan or B Note and finally to Late
Fees due with respect to such Mortgage Loan, Serviced Companion Mortgage Loan or
B Note. The foregoing allocations are intended to govern loan level allocations
but shall not govern allocations of such amounts at the trust level for the
purpose of determining Principal Distribution Amounts or Distributable
Certificate Interest.
SECTION 1.3 CALCULATIONS RESPECTING ACCRUED INTEREST. Accrued interest
on any Certificate shall be calculated based upon a 360-day year consisting of
twelve 30-day months and Pass-Through Rates shall be carried out to eight
decimal places, rounded if necessary. All dollar amounts calculated hereunder
shall be rounded to the nearest xxxxx.
SECTION 1.4 INTERPRETATION.
(a) Whenever the Agreement refers to a Distribution Date and a
"related" Collection Period, Interest Accrual Period, Record Date, Due Date,
Report Date, Monthly Certificateholders Report, Special Servicer Remittance
Date, Master Servicer Remittance Date or Determination Date, such reference
shall be to the Collection Period, Interest Accrual Period, Record Date, Due
Date, Report Date, Special Servicer Remittance Date, Master Servicer Remittance
Date or Determination Date, as applicable, immediately preceding such
Distribution Date.
(b) As used herein and in any certificate or other document made or
delivered pursuant hereto or thereto, accounting terms not defined in Section
1.1 shall have the respective meanings given to them under generally accepted
accounting principles or regulatory accounting principles, as applicable.
(c) The words "hereof," "herein" and "hereunder," and words of similar
import, when used in this Agreement, shall refer to this agreement as a whole
and not to any
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particular provision of this Agreement, and references to Sections, Schedules
and Exhibits contained in this Agreement are references to Sections, Schedules
and Exhibits in or to this Agreement unless otherwise specified.
(d) Whenever a term is defined herein, the definition ascribed to such
term shall be equally applicable to both the singular and plural forms of such
term and to masculine, feminine and neuter genders of such term.
(e) This Agreement is the result of arm's-length negotiations between
the parties and has been reviewed by each party hereto and its counsel. Each
party agrees that any ambiguity in this Agreement shall not be interpreted
against the party drafting the particular clause which is in question.
SECTION 1.5 ARD LOANS.
Notwithstanding any provision of this Agreement:
(a) For the ARD Loans, the Excess Interest accruing as a result of the
step-up in the Mortgage Rate upon failure of the related Mortgagor to pay the
principal due on the Anticipated Repayment Date as specifically provided for in
the related Mortgage Note shall not be taken into account for purposes of the
definitions of "Appraisal Reduction," "Assumed Scheduled Payment," "Mortgage
Rate," "Purchase Price" and "Realized Loss."
(b) Excess Interest shall constitute an asset of the Trust but not an
asset of any REMIC Pool.
(c) Neither the Master Servicer nor the Special Servicer shall take
any enforcement action with respect to the payment of Excess Interest on any
Mortgage Loan unless the taking of such action is consistent with the Servicing
Standard and all other amounts due under such Mortgage Loan have been paid, and,
in the good faith and reasonable judgment of the Master Servicer and the Special
Servicer, as the case may be, the Liquidation Proceeds expected to be recovered
in connection with such enforcement action will cover the anticipated costs of
such enforcement action and, if applicable, any associated interest thereon.
(d) Liquidation Fees shall not be deemed to be earned on Excess
Interest.
(e) With respect to an ARD Loan, after its Anticipated Repayment Date,
the Master Servicer or the Special Servicer, as the case may be, shall be
permitted, in its discretion, to waive in accordance with Section 8.18 and
Section 9.5 hereof, all or any accrued Excess Interest if, prior to the related
Maturity Date, the related Mortgagor has requested the right to prepay the
Mortgage Loan in full together with all payments required by the Mortgage Loan
in connection with such prepayment except for all or a portion of accrued Excess
Interest, provided that the Master Servicer's or the Special Servicer's
determination to waive the right to such accrued Excess Interest is in
accordance with the Servicing Standard and with Section 8.18 and Section 9.5
hereof. The Master Servicer or the Special Servicer, as the case may be, will
have no liability to the Trust, the Certificateholders or any other person so
long as such determination is based on such criteria.
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SECTION 1.6 CERTAIN MATTERS WITH RESPECT TO LOAN PAIRS AND A/B
MORTGAGE LOANS.
(a) The parties hereto acknowledge that, pursuant to the related Loan
Pair Intercreditor Agreement or the related Intercreditor Agreement, if a
Serviced Pari Passu Mortgage Loan or B Note, as applicable, is no longer part of
the Trust Fund or is no longer serviced pursuant to the terms of this Agreement,
the holder of such Serviced Pari Passu Mortgage Loan or B Note, as applicable,
shall negotiate one or more new servicing agreements with the Master Servicer
and the Special Servicer, provided that, prior to entering into any such new
servicing agreement, the new holder of such Serviced Pari Passu Mortgage Loan or
B Note, as applicable, shall obtain and provide to the holder of the related
Serviced Companion Mortgage Loan and/or B Note written confirmation from each
rating agency then rating any securitization relating to such Serviced Companion
Mortgage Loan and/or B Note providing that such new servicing agreement will not
result in the downgrade, qualification or withdrawal of its then-current ratings
of any securities issued in such securitization; provided, that prior to such
time the Master Servicer and the Special Servicer shall continue to service the
related Loan Pair and/or A/B Mortgage Loan to the extent provided in the related
Loan Pair Intercreditor Agreement or the related Intercreditor Agreement, as
applicable.
(b) For the avoidance of doubt and subject to subsection (a) above,
the parties acknowledge that the rights and duties of each of the Master
Servicer and the Special Servicer under Article VIII and Article IX and the
obligation of the Master Servicer to make Advances, insofar as such rights,
duties and obligations relate to any A/B Mortgage Loan (including both the
related A Note and the related B Note) or Loan Pair, shall terminate upon the
earliest to occur of the following with respect to such A/B Mortgage Loan or
Loan Pair, as the case may be: (i) any repurchase of or substitution for the
related A Note or Serviced Pari Passu Mortgage Loan by the applicable Seller
pursuant to Section 2.3, (ii) any purchase of the related A Note by the owner of
the related B Note pursuant to the terms of the related Intercreditor Agreement
and (iii) any payment in full of any and all amounts due (or deemed due) under
the related A Note or Serviced Pari Passu Mortgage Loan (or its successor REO
Mortgage Loan) (including amounts to which the holder of such A Note or Serviced
Pari Passu Mortgage Loan is entitled under the related Intercreditor Agreement
or related Loan Pair Intercreditor Agreement), as applicable; provided, however,
that this statement shall not limit (A) the duty of the Master Servicer or the
Special Servicer to deliver or make available the reports otherwise required of
it hereunder with respect to the Collection Period in which such event occurs or
(B) the rights of the Master Servicer or the Special Servicer that may otherwise
accrue or arise in connection with the performance of its duties hereunder with
respect to such A/B Mortgage Loan or Loan Pair prior to the date on which such
event occurs.
(c) In connection with any purchase described in clause (ii) of
subsection (b) or an event described in clause (iii) of subsection (b), the
Trustee, the Master Servicer and the Special Servicer shall each tender to (in
the case of a purchase under such clause (ii)) the related purchaser (provided
that the related purchaser shall have paid the full amount of the applicable
purchase price) or (in the case of such clause (iii)) to the holder of the
related Serviced Companion Mortgage Loan or B Note (if then still outstanding),
upon delivery to them of a receipt executed by such purchaser or holder, all
portions of the Mortgage File and other documents pertaining to such Loan Pair
or A/B Mortgage Loan, as applicable, possessed by it,
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and each document that constitutes a part of the Mortgage File shall be endorsed
or assigned to the extent necessary or appropriate to such purchaser or holder
(or the designee of such purchaser or holder) in the same manner, and pursuant
to appropriate forms of assignment, substantially similar to the manner and
forms pursuant to which documents were previously assigned to the Trustee by the
related Seller, but in any event, without recourse, representation or warranty;
provided that such tender by the Trustee shall be conditioned upon its receipt
from the Master Servicer of a Request for Release. The Master Servicer shall,
and is also hereby authorized and empowered by the Trustee to, convey to such
purchaser or such holder any deposits then held in an Escrow Account relating to
the applicable A/B Mortgage Loan or Loan Pair. If a Serviced Pari Passu Mortgage
Loan and the related Serviced Companion Mortgage Loan or an A Note and the
related B Note under the applicable Mortgage Loan are then REO Mortgage Loans,
then the Special Servicer shall, and is also hereby authorized and empowered by
the Trustee to, convey to such purchaser or such holder, in each case, to the
extent not needed to pay or reimburse the Master Servicer, the Special Servicer,
the Trustee or the Fiscal Agent in accordance with this Agreement, deposits then
held in the REO Account insofar as they relate to the related REO Property.
(d) If an expense under this Agreement relates, in the reasonable
judgment of the Master Servicer, the Special Servicer, the Trustee or the Paying
Agent, as applicable, primarily to the administration of the Trust Fund or any
REMIC formed hereunder or to any determination respecting the amount, payment or
avoidance of any tax under the REMIC Provisions or the actual payment of any
REMIC tax or expense with respect to any REMIC formed hereunder, then such
expense shall not be allocated to, deducted or reimbursed from, or otherwise
charged against the holder of any Serviced Companion Mortgage Loan or B Note and
such holder shall not suffer any adverse consequences as a result of the payment
of such expense.
ARTICLE II
DECLARATION OF TRUST;
ISSUANCES OF CERTIFICATES
SECTION 2.1 CONVEYANCE OF MORTGAGE LOANS.
(a) Effective as of the Closing Date, the Depositor does hereby assign
in trust to the Trustee, without recourse, for the benefit of the
Certificateholders all the right, title and interest of the Depositor, in, to
and under (i) the Mortgage Loans identified on the Mortgage Loan Schedule
including the related Mortgage Notes, Mortgages, security agreements and title,
hazard and other insurance policies, including all Qualifying Substitute
Mortgage Loans, all distributions with respect thereto payable after the Cut-Off
Date, the Mortgage File and all rights, if any, of the Depositor in the
Distribution Account, all REO Accounts, the Certificate Account, the Reserve
Account and the Interest Reserve Account, (ii) the Depositor's rights under each
Mortgage Loan Purchase Agreement that are permitted to be assigned to the
Trustee pursuant to Section 14 thereof, (iii) the Initial Deposit, (iv) the
Depositor's rights under any Intercreditor Agreement, Loan Pair Intercreditor
Agreement, Non-Serviced Mortgage Loan Intercreditor Agreement and the related
Non-Serviced Mortgage Loan Pooling and Servicing Agreement with respect to any
Non-Serviced Mortgage Loan and (v) all other assets included or to be included
in REMIC I for the benefit of REMIC II and REMIC III or the Class Q Grantor
Trust for the
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benefit of the Class Q Certificates. Such assignment includes all interest and
principal received or receivable on or with respect to the Mortgage Loans and
due after the Cut-Off Date. The transfer of the Mortgage Loans and the related
rights and property accomplished hereby is absolute and is intended by the
parties to constitute a sale. In connection with the initial sale of the
Certificates by the Depositor, the purchase price to be paid includes a portion
attributable to interest accruing on the Certificates from and after the Cut-Off
Date. The transfer and assignment of any Non-Serviced Mortgage Loans to the
Trustee and the right to service such Mortgage Loans are subject to the terms
and conditions of the related Non-Serviced Mortgage Loan Pooling and Servicing
Agreement and the related Non-Serviced Mortgage Loan Intercreditor Agreement,
and the Trustee, by the execution and delivery of this Agreement, hereby agrees
that such Mortgage Loans remain subject to the terms of the related Non-Serviced
Mortgage Loan Intercreditor Agreement and, with respect to each Serviced Pari
Passu Mortgage Loan and Serviced Companion Mortgage Loan, the related Loan Pair
Intercreditor Agreement (or with respect to a Joint Mortgage Loan treated as a
Loan Pair in accordance with Section 8.32 hereof, the applicable Mortgage Loan
documents).
(b) In connection with the Depositor's assignment pursuant to Section
2.1(a) above, the Depositor shall direct, and hereby represents and warrants
that it has directed, each Seller pursuant to the applicable Mortgage Loan
Purchase Agreement to deliver to and deposit with, or cause to be delivered to
and deposited with, the Trustee or a Custodian appointed hereunder, on or before
the Closing Date, the Mortgage Note for each Mortgage Loan so assigned, endorsed
to the Trustee as specified in clause (i) of the definition of "Mortgage File."
Each Seller is required, pursuant to the applicable Mortgage Loan Purchase
Agreement, to deliver to the Trustee the remaining documents constituting the
Mortgage File for each Mortgage Loan within the time period set forth therein.
None of the Trustee, the Fiscal Agent, the Paying Agent, any Custodian, the
Master Servicer or the Special Servicer shall be liable for any failure by any
Seller or the Depositor to comply with the document delivery requirements of the
Mortgage Loan Purchase Agreements and this Section 2.1(b). Notwithstanding
anything to the contrary contained herein, with respect to the East Towne Mall
Mortgage Loan and the West Towne Mall Mortgage Loan, the obligations of each of
Principal and MSMC to deliver a Mortgage Note to the Trustee, or a Custodian
appointed thereby, shall be limited to delivery of only the Mortgage Note held
by such party to the Trustee or Custodian appointed thereby. With respect to the
East Towne Mall Mortgage Loan and the West Towne Mall Mortgage Loan, either
Principal or MSMC may deliver one Mortgage File or one of any other document
required to be delivered with respect to such Mortgage Loan hereunder and such
delivery shall satisfy such delivery requirements for both Principal and MSMC.
(c) The applicable Seller shall, at the expense of such Seller as to
each of its respective Mortgage Loans, promptly (and in any event within 45 days
following the receipt thereof) cause to be submitted for recording or filing
(except with respect to any Mortgage that has been recorded in the name of MERS
or its designees), as the case may be, in the appropriate public office for real
property records or UCC financing statements, as appropriate, each assignment to
the Trustee referred to in clauses (iv), (vi)(B) and (ix)(B) of the definition
of "Mortgage File;" provided, if the related Mortgage and UCC financing
statements have been recorded in the name of MERS or its designee, no such
assignments will be required to be submitted for recording or filing and
instead, the applicable Seller has agreed in the applicable Mortgage Loan
Purchase Agreement to take all actions as are necessary to cause the Trustee to
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be shown as, and the Trustee shall take all actions necessary to confirm that it
is shown as, the owner of the related Mortgage on the records of MERS for
purposes of the system of recording transfers of beneficial ownership of
mortgages maintained by MERS. Each such assignment shall reflect that it should
be returned by the public recording office to the Trustee following recording or
filing; provided that in those instances where the public recording office
retains the original Assignment of Mortgage, assignment of Assignment of Leases
or assignment of UCC financing statements, the applicable Seller shall obtain
therefrom a certified copy of the recorded original. The applicable Seller shall
forward copies thereof to the Trustee and the Special Servicer and, if recorded
in the name of MERS, shall deliver to the Master Servicer and the Special
Servicer, within 45 days of the Closing Date, evidence confirming that the
Trustee is shown as the owner on the record of MERS. If any such document or
instrument is lost or returned unrecorded or unfiled, as the case may be,
because of a defect therein, the applicable Seller shall, pursuant to the
applicable Mortgage Loan Purchase Agreement, promptly prepare or cause to be
prepared a substitute therefor or cure such defect, as the case may be, and
thereafter the applicable Seller shall upon receipt thereof cause the same to be
duly recorded or filed, as appropriate. After the applicable Seller has caused
the Trustee to be identified on the records of MERS as the owner of a Mortgage,
it shall be the sole responsibility of the Master Servicer to ensure that
subsequent relevant events relating to the Mortgage (as, for example,
assumptions and partial releases) are promptly and properly registered with MERS
throughout the term of the related Mortgage Loan for so long as the Mortgage
Loan is an asset of the Trust.
The parties acknowledge the obligation of each Seller pursuant to
Section 2 of the related Mortgage Loan Purchase Agreement to deliver to the
Trustee, on or before the fifth Business Day after the Closing Date, five
limited powers of attorney substantially in the form attached as Exhibit C to
the Primary Servicing Agreement in favor of the Trustee and the Special Servicer
to empower the Trustee and, in the event of the failure or incapacity of the
Trustee, the Special Servicer, to submit for recording, at the expense of the
applicable Seller, any mortgage loan documents required to be recorded as
described in the preceding paragraph and any intervening assignments with
evidence of recording thereon that are required to be included in the Mortgage
Files (so long as original counterparts have previously been delivered to the
Trustee). The Sellers agree to reasonably cooperate with the Trustee and the
Special Servicer in connection with any additional powers of attorney or
revisions thereto that are requested by such parties for purposes of such
recordation. The Trustee and each other party hereto agrees that no such power
of attorney shall be used with respect to any Mortgage Loan by or under
authorization by any party hereto except to the extent that the absence of a
document described in the second preceding sentence with respect to such
Mortgage Loan remains unremedied as of the earlier of (i) the date that is 180
days following the delivery of notice of such absence to the related Seller, but
in no event earlier than 18 months from the Closing Date, and (ii) the date (if
any) on which such Mortgage Loan becomes a Specially Serviced Mortgage Loan. The
Trustee shall submit such documents for recording, at the related Seller's
expense, after the periods set forth above; provided, however, the Trustee shall
not submit such assignments for recording if the applicable Seller produces
evidence that it has sent any such assignment for recording and certifies that
it is awaiting its return from the applicable recording office.
(d) All relevant servicing or loan documents and records in the
possession of the Depositor or the Sellers that relate to the Mortgage Loans,
Serviced Companion Mortgage Loans or B Notes and that are not required to be a
part of a Mortgage File in accordance with the
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definition thereof shall be delivered to the Master Servicer or the Primary
Servicer on its behalf, on or before the date that is 45 days following the
Closing Date and shall be held by the Master Servicer or the Primary Servicer on
behalf of the Trustee in trust for the benefit of the Certificateholders. To the
extent delivered to the Master Servicer or the Primary Servicer by the related
Seller, the Servicer Mortgage File, will include, to the extent required to be
(and actually) delivered to the applicable Seller pursuant to the applicable
Mortgage Loan documents, copies of the following items: the Mortgage Note, any
Mortgage, the Assignment of Leases and the Assignment of Mortgage, any
guaranty/indemnity agreement, any loan agreement, the insurance policies or
certificates (as applicable), the property inspection reports, any financial
statements on the property, any escrow analysis, the tax bills, the Appraisal,
the environmental report, the engineering report, the asset summary, financial
information on the Mortgagor/sponsor and any guarantors, any letters of credit,
any intercreditor agreement and any Environmental Insurance Policies. Delivery
of any of the foregoing documents to the Primary Servicer (or sub-servicer)
shall be deemed delivery to the Master Servicer and satisfy the Depositor's
obligations under this Section 2.1(d). None of the Master Servicer, the Special
Servicer or the Primary Servicer shall have any liability for the absence of any
of the foregoing items from the Servicing Mortgage File if such item was not
delivered by the related Seller.
(e) In connection with the Depositor's assignment pursuant to Section
2.1(a) above, the Depositor shall deliver to the Trustee on or before the
Closing Date a copy of a fully executed counterpart of each Mortgage Loan
Purchase Agreement, as in full force and effect on the Closing Date, which
Mortgage Loan Purchase Agreements shall contain the representations and
warranties made by the Sellers with respect to each related Mortgage Loan as of
the Closing Date.
(f) In connection herewith, the Depositor has acquired the Principal
Loans from Principal, the Xxxxx Fargo Loans from Xxxxx Fargo, the BSCMI Loans
from BSCMI and the MSMC Loans from MSMC. The Depositor will deliver or cause to
be delivered the original Mortgage Notes (or lost note affidavits with copies of
the related Mortgage Notes, as described in the definition of "Mortgage File")
relating to the Principal Loans to the Trustee, endorsed as otherwise provided
herein, to effect the transfer to the Trustee of such Mortgage Notes and all
related deeds of trust, mortgages and other loan documents. The Depositor will
deliver or cause to be delivered the original Mortgage Notes (or lost note
affidavits with copies of the related Mortgage Notes, as described in the
definition of "Mortgage File") relating to the Xxxxx Fargo Loans to the Trustee,
endorsed as otherwise provided herein, to effect the transfer to the Trustee of
such Mortgage Notes and all related deeds of trust, mortgages and other loan
documents. The Depositor will deliver or cause to be delivered the original
Mortgage Notes (or lost note affidavits with copies of the related Mortgage
Notes, as described in the definition of "Mortgage File") relating to the BSCMI
Loans to the Trustee, endorsed as otherwise provided herein, to effect the
transfer to the Trustee of such Mortgage Notes and all related deeds of trust,
mortgages and other loan documents. The Depositor will deliver or cause to be
delivered the original Mortgage Notes (or lost note affidavits with copies of
the related Mortgage Notes, as described in the definition of "Mortgage File")
relating to the MSMC Loans to the Trustee, endorsed as otherwise provided
herein, to effect the transfer to the Trustee of such Mortgage Notes and all
related deeds of trust, mortgages and other loan documents. To avoid the
unnecessary expense and administrative inconvenience associated with the
execution and recording of multiple assignment documents, Principal, Xxxxx
Fargo, BSCMI and MSMC, as applicable, are required
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under the Mortgage Loan Purchase Agreements to deliver Assignments of Mortgages
and assignments of Assignments of Leases and assignments of UCC financing
statements naming the Trustee, on behalf of the Certificateholders, as assignee.
Notwithstanding the fact that the assignments shall name the Trustee, on behalf
of the Certificateholders, as the assignee, the parties hereto acknowledge and
agree that for all purposes the Principal Loans shall be deemed to have been
transferred from Principal to the Depositor, the Xxxxx Fargo Loans shall be
deemed to have been transferred from Xxxxx Fargo to the Depositor, the BSCMI
Loans shall be deemed to have been transferred from BSCMI to the Depositor and
the MSMC Loans shall be deemed to have been transferred from MSMC to the
Depositor, and all Mortgage Loans shall be deemed to have been transferred from
the Depositor to the Trustee on behalf of the Certificateholders.
SECTION 2.2 ACCEPTANCE BY TRUSTEE. The Trustee will hold (i) the
documents constituting a part of the Mortgage Files delivered to it, (ii) the
REMIC I Regular Interests, and (iii) the REMIC II Regular Interests, in each
case, in trust for the use and benefit of all present and future
Certificateholders. To the extent that the contents of the Mortgage File for any
A Note relate to the corresponding B Note, the Trustee, or the Custodian on the
Trustee's behalf, will also hold such Mortgage File in trust for the benefit of
the holder of the related B Note; provided, that if a B Note remains outstanding
following payment in full of the amounts due under the related A Notes, the
Mortgage Loan documents relating to such A/B Mortgage Loan (exclusive of any
such documents related solely to the A Notes) shall be assigned to the holder of
the B Note or its designee. To the extent that the contents of the Mortgage File
for any Serviced Pari Passu Mortgage Loan relate to the corresponding Serviced
Companion Mortgage Loan, the Trustee, or the Custodian, on the Trustee's behalf,
will also hold such Mortgage File in trust for the benefit of the holder of the
related Serviced Companion Mortgage Loan.
On the Closing Date in respect of the Initial Certification, and
within 75 days after the Closing Date in respect of the Final Certification, the
Trustee shall examine the Mortgage Files in its possession, and shall deliver to
the Depositor, the Sellers, the Master Servicer, the Special Servicer, the
Operating Adviser, the Lakeforest Mall Mortgage Loan Operating Adviser (with
respect only to the Lakeforest Mall Mortgage Loan) and the holder of any
Serviced Companion Mortgage Loan a certification (the "Initial Certification"
and the "Final Certification", respectively, in the respective forms set forth
as Exhibit B-1 and Exhibit B-2 hereto), which shall be in electronic format (i)
in the case of the Initial Certification, as to each Mortgage Loan listed in the
Mortgage Loan Schedule, except as may be specified in the schedule of exceptions
attached thereto, to the effect that: (A) all documents pursuant to clause (i)
of the definition of "Mortgage File" are in its possession, (B) such documents
have been reviewed by it and have not been materially mutilated, damaged,
defaced, torn or otherwise physically altered, and such documents relate to such
Mortgage Loan, and (C) each Mortgage Note has been endorsed as provided in
clause (i) of the definition of "Mortgage File", and (ii) in the case of the
Final Certification, as to each Mortgage Loan listed in the Mortgage Loan
Schedule, except as may be specified in the schedule of exceptions attached
thereto, to the effect that: (A) (I) all documents pursuant to clauses (i),
(ii), (iv), (v), (vi), (viii), (x) and (xii) of the definition of "Mortgage
File" required to be included in the Mortgage File (to the extent required to be
delivered pursuant to this Agreement and the Primary Servicing Agreement), and
with respect to all documents specified in the other clauses of the definition
of "Mortgage File" to the extent known by a Responsible Officer of the Trustee
to be required pursuant to this Agreement, are in its possession, and (II) for
each Mortgage recorded in the name of MERS or its designee, the
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Trustee is shown as the transferee of the related Mortgage on the records of
MERS for purposes of the system maintained by MERS of recording transfers of
beneficial ownership for mortgages, (B) such documents have been reviewed by it
and have not been materially mutilated, damaged, defaced, torn or otherwise
physically altered, and such documents relate to such Mortgage Loan, (C) based
on its examination and only as to the Mortgage Note and Mortgage, the street
address of the Mortgaged Property set forth in the Mortgage Loan Schedule
respecting such Mortgage Loan accurately reflects the information contained in
the documents in the Mortgage File, and (D) each Mortgage Note has been
endorsed. Notwithstanding the foregoing, the delivery of a commitment to issue a
Title Insurance Policy in lieu of the delivery of the actual Title Insurance
Policy shall not be considered a Material Document Defect with respect to any
Mortgage File if such actual Title Insurance Policy is delivered to the Trustee
or a Custodian on its behalf not later than the 180th day following the Closing
Date.
Within 360 days after the Cut-Off Date, the Trustee shall provide a
confirmation of receipt of recorded assignments of Mortgage (as described in the
definition of "Mortgage File," with evidence of recording thereon) or otherwise
provide evidence of such recordation to the Master Servicer, the Special
Servicer, the Operating Adviser, the Lakeforest Mall Mortgage Loan Operating
Adviser (with respect only to the Lakeforest Mall Mortgage Loan) and each
Seller, and if any recorded assignment of Mortgage has not been received by the
Trustee by such time, the Trustee shall provide information in such confirmation
on the status of missing assignments. The Trustee agrees to use reasonable
efforts to submit for recording any unrecorded assignments of Mortgage that have
been delivered to it (including effecting such recordation process through or
cooperating with the applicable Seller), such recordation to be at the expense
of the applicable Seller; provided, however, that the Trustee shall not submit
for recording any such assignments if the applicable Seller produces evidence
that it has sent any such assignment for recording and is awaiting its return
from the applicable recording office. In giving the certifications required
above, the Trustee shall be under no obligation or duty to inspect, review or
examine any such documents, instruments, securities or other papers to determine
whether they or the signatures thereon are valid, legal, genuine, enforceable,
in recordable form or appropriate for their represented purposes, or that they
are other than what they purport to be on their face, or to determine whether
any Mortgage File should include any assumption agreement, modification
agreement, consolidation agreement, extension agreement, Assignment of Lease,
ground lease, UCC financing statement, guaranty, written assurance, substitution
agreement, lock box agreement, intercreditor agreement, management agreement or
letter of credit.
If any exceptions are noted on a schedule of exceptions attached to
the Final Certification, including exceptions resulting from the fact that the
recordation and/or filing has not been completed (based solely on the absence of
receipt by the Custodian (or the Trustee) of the particular documents showing
evidence of the recordation and/or filing), then the Custodian on behalf of the
Trustee (or the Trustee) shall continuously update such schedule of exceptions
to reflect receipt of any corrected documents, additional documents or
instruments or evidences of recordation and/or filing, as to each Mortgage Loan,
until the earliest of the following dates: (i) the date on which all such
exceptions are eliminated (any such elimination resulting from the fact that
recordation and/or filing has been completed shall be based solely on receipt by
the Custodian or the Trustee of the particular documents showing evidence of the
recordation and/or filing), (ii) the date on which all the affected Mortgage
Loans are removed from the Trust and
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(iii) the second anniversary of the Closing Date, and shall provide such updated
schedule of exceptions (which may be in electronic format) to each of the
Depositor, each Seller (as to its respective Mortgage Loans only), the Master
Servicer, the Special Servicer, the Operating Adviser (or the Lakeforest Mall
Mortgage Loan Operating Adviser with respect to the Lakeforest Mall Mortgage
Loan), the Paying Agent and the holder of any Serviced Companion Mortgage Loan
on or about the date that is 180 days after the Closing Date and then again
every 90 days thereafter (until the earliest date specified above). Upon
request, the Paying Agent shall promptly forward a copy thereof to each
Certificateholder in the Controlling Class and shall deliver or make available a
copy thereof to other Certificateholders. Promptly, and in any event within two
Business Days, following any request therefor by the Depositor, the Master
Servicer, the Special Servicer, the Operating Adviser (or the Lakeforest Mall
Mortgage Loan Operating Adviser with respect to the Lakeforest Mall Mortgage
Loan) or the holder of any Serviced Companion Mortgage Loan that is made later
than two years following the Closing Date, the Custodian (or the Trustee) shall
deliver an updated schedule of exceptions, which may be in electronic format (to
the extent the prior schedule showed exceptions), to the requesting Person and
the Paying Agent, which shall make available a copy thereof. Upon request, the
Master Servicer shall provide to the Trustee the names and addresses of each
holder of a Serviced Companion Mortgage Loan of which the Master Servicer has
received notice in accordance with this Agreement and/or the related Loan Pair
Intercreditor Agreement.
The Trustee or its authorized agents shall retain possession and
custody of each Trustee Mortgage File in accordance with and subject to the
terms and conditions set forth herein.
SECTION 2.3 SELLERS' REPURCHASE OF MORTGAGE LOANS FOR MATERIAL
DOCUMENT DEFECTS AND MATERIAL BREACHES OF REPRESENTATIONS AND WARRANTIES.
(a) If any party hereto discovers that any document or documents
constituting a part of a Mortgage File has not been delivered as and when
required, has not been properly executed, or is defective on its face or
discovers or receives notice of a breach of any of the representations and
warranties relating to the Mortgage Loans required to be made by a Seller
regarding the characteristics of the Mortgage Loans and/or related Mortgaged
Properties as set forth in the related Mortgage Loan Purchase Agreements, and,
in either case, the party discovering such defect or breach determines that
either (i) the defect or breach materially and adversely affects the interests
of the holders of the Certificates in the related Mortgage Loan or (ii) both (A)
the defect or breach materially and adversely affects the value of the Mortgage
Loan and (B) the Mortgage Loan is a Specially Serviced Mortgage Loan or
Rehabilitated Mortgage Loan (any such defect described in the preceding clause
(i) or (ii), a "Material Document Defect", and such a breach described in the
preceding clause (i) or (ii), a "Material Breach") the party determining that
such Material Document Defect or Material Breach exists shall give prompt
written notice to the other parties hereto and to each Rating Agency subject to
the terms of the applicable Mortgage Loan Purchase Agreement. Promptly (but in
any event within three Business Days) upon determining (or becoming aware of
another party's determination) that any such Material Document Defect or
Material Breach exists (which determination shall, absent evidence to the
contrary, be presumed to be no earlier than three Business Days prior to the
delivery of the notice referred to below), the Master Servicer shall, and the
Special Servicer may, request that the related Seller, not later than 90 days
from such Seller's receipt of the notice of
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such Material Document Defect or Material Breach, cure such Material Document
Defect or Material Breach, as the case may be, in all material respects;
provided, however, that if such Material Document Defect or Material Breach, as
the case may be, cannot be corrected or cured in all material respects within
such 90-day period, and such Material Document Defect or Material Breach would
not cause the Mortgage Loan to be other than a "qualified mortgage" (as defined
in the Code) but the related Seller is diligently attempting to effect such
correction or cure, as certified by such Seller in an Officer's Certificate
delivered to the Trustee, then the cure period will be extended for an
additional 90 days unless, solely in the case of a Material Document Defect, (x)
the Mortgage Loan is then a Specially Serviced Mortgage Loan and a Servicing
Transfer Event has occurred as a result of a monetary default or as described in
clause (ii) or clause (v) of the definition of "Servicing Transfer Event" and
(y) the Material Document Defect was identified in a certification delivered to
the Seller by the Trustee pursuant to Section 2.2 not less than 90 days prior to
the delivery of the notice of such Material Document Defect. The parties
acknowledge that neither delivery of a certification or schedule of exceptions
to a Seller pursuant to Section 2.2 or otherwise nor possession of such
certification or schedule by the Seller shall, in and of itself, constitute
delivery of notice of any Material Document Defect or knowledge or awareness by
the Seller or any party hereto of any Material Document Defect listed therein.
If any Material Document Defect or Material Breach that exists cannot
be corrected or cured in all material respects within the above cure periods,
the related Seller will be obligated, not later than the last day of such
permitted cure period, to (i) repurchase the affected Mortgage Loan (or the
related Seller's portion thereof with respect to each of the East Towne Mall
Mortgage Loan and the West Towne Mall Mortgage Loan) or REO Mortgage Loan (or
the related Seller's portion thereof with respect to each of the East Towne Mall
Mortgage Loan and the West Towne Mall Mortgage Loan) from the Trust at the
applicable Purchase Price in accordance with the related Mortgage Loan Purchase
Agreement, or (ii) if within the three-month period commencing on the Closing
Date (or within the two-year period commencing on the Closing Date if the
related Mortgage Loan is a "defective obligation" within the meaning of Section
860G(a)(4)(B)(ii) of the Code and Treasury Regulations Section 1.860G-2(f)), at
the related Seller's option, without recourse (other than the representations
and warranties made with respect thereto), replace such Mortgage Loan or REO
Mortgage Loan with a Qualifying Substitute Mortgage Loan. If such Material
Document Defect or Material Breach would cause the Mortgage Loan to be other
than a "qualified mortgage" (as defined in the Code), then notwithstanding the
previous sentence or the previous paragraph, the repurchase must occur within 85
days from the date the related Seller was notified of the defect and
substitution must occur within the sooner of (i) 85 days from the date the
related Seller was notified of the defect or (ii) two years from the Closing
Date.
With respect to each of the East Towne Mall Mortgage Loan and the West
Towne Mall Mortgage Loan, the obligations of each of Principal and MSMC to cure
or repurchase with respect to a Material Document Defect or Material Breach with
respect to the related Mortgage Loan shall be limited to a cure or repurchase
with respect to the Mortgage Note it sold to the Depositor in accordance with
the related Mortgage Loan Purchase Agreement. With respect to each of the East
Towne Mall Mortgage Loan and the West Towne Mall Mortgage Loan, any cure by
either of Principal or MSMC with respect to the Mortgage Note it sold to the
Depositor in accordance with the related Mortgage Loan Purchase Agreement that
also cures the Material
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Document Defect or Material Breach with respect to the related Mortgage Loan
shall satisfy the cure obligations of both Principal and MSMC with respect to
such Mortgage Loan.
As to any Qualifying Substitute Mortgage Loan or Loans, the Master
Servicer shall not execute any instrument effecting the substitution unless the
related Seller has delivered to the Trustee for such Qualifying Substitute
Mortgage Loan or Loans, the Mortgage Note, the Mortgage, the related Assignment
of Mortgage, and such other documents and agreements as are required by Section
2.1, with the Mortgage Note endorsed as required by Section 2.1, and the Master
Servicer shall be entitled to rely on statements and certifications from the
Trustee for this purpose. No substitution may be made in any calendar month
after the Determination Date for such month. Monthly payments due with respect
to Qualifying Substitute Mortgage Loans in the month of substitution shall not
be part of the Trust and will be retained by Master Servicer and remitted by the
Master Servicer to the related Seller on the next succeeding Distribution Date.
For the month of substitution, distributions to Certificateholders will include
the Scheduled Payment due on the related Deleted Mortgage Loan for such month
and thereafter the related Seller shall be entitled to retain all amounts
received in respect of such Deleted Mortgage Loan.
The Master Servicer shall amend or cause to be amended the Mortgage
Loan Schedule to reflect the removal of such Deleted Mortgage Loan and the
substitution of the Qualifying Substitute Mortgage Loan or Loans and upon such
amendment the Master Servicer shall deliver or cause to be delivered such
amended Mortgage Loan Schedule to the Trustee, the Paying Agent and the Special
Servicer. Upon such substitution, the Qualifying Substitute Mortgage Loan or
Loans shall be subject to the terms of this Agreement in all respects. Upon
receipt of the Trustee Mortgage File pertaining to any Qualifying Substitute
Mortgage Loans, the Trustee shall release the Trustee Mortgage File relating to
such Deleted Mortgage Loan to the related Seller, and the Trustee (and the
Depositor, if necessary) shall execute and deliver such instruments of transfer
or assignment in the form presented to it, in each case without recourse,
representation or warranty, as shall be necessary to vest title (provided,
however, if applicable, the Master Servicer will take all necessary action to
register the transfer of ownership of the Mortgage related to such Deleted
Mortgage Loan on the records of MERS) (to the extent that such title was
transferred to the Trustee or the Depositor) in the related Seller or its
designee to any Deleted Mortgage Loan (including any property acquired in
respect thereof or any insurance policy proceeds relating thereto) substituted
for pursuant to this Section 2.3.
If (x) a Mortgage Loan is to be repurchased or replaced as
contemplated above (a "Defective Mortgage Loan"), (y) such Defective Mortgage
Loan is cross-collateralized and cross-defaulted with one or more other Mortgage
Loans ("Crossed Mortgage Loans") and (z) the applicable document defect or
breach does not constitute a Material Document Defect or Material Breach, as the
case may be, as to such Crossed Mortgage Loans (without regard to this
paragraph), then the applicable document defect or breach (as the case may be)
shall be deemed to constitute a Material Document Defect or Material Breach (as
the case may be) as to each such Crossed Mortgage Loan for purposes of the above
provisions, and the related Seller shall be obligated to repurchase or replace
each such Crossed Mortgage Loan in accordance with the provisions above unless,
in the case of such breach or document defect, the Seller (A) provides a
Nondisqualification Opinion to the Trustee at the expense of the Seller and (B)
both of the following conditions would be satisfied if the related Seller were
to repurchase or replace only those Mortgage Loans as to which a Material Breach
or Material Document Defect had occurred
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without regard to this paragraph (the "Affected Loan(s)"): (i) the Debt Service
Coverage Ratio for all such other Mortgage Loans (excluding the Affected
Loan(s)) for the four calendar quarters immediately preceding the repurchase or
replacement is not less than the lesser of (A) 0.10x below the debt service
coverage ratio for all such other Mortgage Loans (including the Affected
Loan(s)) set forth in Appendix II to the Final Prospectus Supplement and (B) the
debt service coverage ratio for all such Crossed Mortgage Loans (including the
Affected Loan(s)) for the four preceding calendar quarters preceding the
repurchase or replacement, and (ii) the Loan-to-Value Ratio for all such Crossed
Mortgage Loans (excluding the Affected Loan(s)) is not greater than the greater
of (A) the loan-to-value ratio, expressed as a whole number (taken to one
decimal place), for all such Crossed Mortgage Loans (including the Affected
Loan(s)) set forth in Appendix II to the Final Prospectus Supplement plus 10%
and (B) the loan-to-value ratio for all such Crossed Mortgage Loans (including
the Affected Loan(s)), at the time of repurchase or replacement. The
determination of the Master Servicer as to whether the conditions set forth
above have been satisfied shall be conclusive and binding in the absence of
manifest error. The Master Servicer will be entitled to cause to be delivered,
or direct the related Seller to (in which case the related Seller shall) cause
to be delivered to the Master Servicer, an Appraisal of any or all of the
related Mortgaged Properties for purposes of determining whether the condition
set forth in clause (ii) above has been satisfied, in each case at the expense
of the related Seller if the scope and cost of the Appraisal is approved by the
related Seller (such approval not to be unreasonably withheld).
With respect to any Defective Mortgage Loan, to the extent that the
applicable Seller is required to repurchase or substitute for such Defective
Mortgage Loan (each, a "Repurchased Loan") in the manner prescribed above while
the Trustee continues to hold any Crossed Mortgage Loan, the applicable Seller
and the Depositor have agreed in the related Mortgage Loan Purchase Agreement to
forbear from enforcing any remedies against the other's Primary Collateral but
each is 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. If the exercise of remedies by one
party would impair the ability of the other party to exercise its remedies with
respect to the Primary Collateral securing the Mortgage Loan or Mortgage Loans
held by such party, then both parties have agreed to forbear from exercising
such remedies until the loan documents evidencing and securing the relevant
Mortgage Loans can be modified in a manner that complies with the applicable
Mortgage Loan Purchase Agreement to remove the threat of impairment as a result
of the exercise of remedies. Any reserve or other cash collateral or letters of
credit securing the Crossed Mortgage Loans shall be allocated between such
Mortgage Loans in accordance with the Mortgage Loan documents, or otherwise on a
pro rata basis based upon their outstanding Principal Balances. All other terms
of the Mortgage Loans shall remain in full force and effect, without any
modification thereof. The Mortgagors set forth on Schedule VIII hereto are
intended third-party beneficiaries of the provisions set forth in this paragraph
and the preceding paragraph. The provisions of this paragraph and the preceding
paragraph may not be modified with respect to any Mortgage Loan without the
related Mortgagor's consent.
Any of the following document defects shall be conclusively presumed
materially and adversely to affect the interests of Certificateholders in a
Mortgage Loan and be a Material
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Document Defect: (a) the absence from the Mortgage File of the original signed
Mortgage Note, unless the Mortgage File contains a signed lost note affidavit
and indemnity that appears to be regular on its face; (b) the absence from the
Mortgage File of the original signed Mortgage (or with respect to any
Non-Serviced Mortgage Loan, a copy thereof) that appears to be regular on its
face, unless there is included in the Mortgage File a certified copy of the
Mortgage by the local authority with which the Mortgage was recorded; (c) the
absence from the Mortgage File of the item called for by paragraph (viii) of the
definition of "Mortgage File" (or with respect to any Non-Serviced Mortgage
Loan, a copy thereof) or (d) the absence from the Mortgage File of the item
called for by paragraph (xii) of the definition of "Mortgage File" (or with
respect to any Non-Serviced Mortgage Loan, a copy thereof). If any of the
foregoing Material Document Defects is discovered by the Custodian (or the
Trustee if there is no Custodian), the Trustee (or as set forth in Section
2.3(a), the Master Servicer) will take the steps described elsewhere in this
section, including the giving of notices to the Rating Agencies, the parties
hereto and, to the extent any Material Document Defect relates to a Serviced
Pari Passu Mortgage Loan, the holder of the related Serviced Companion Mortgage
Loan, and making demand upon the related Seller for the cure of the document
defect or repurchase or replacement of the related Mortgage Loan.
If the related Seller disputes that a Material Document Defect or
Material Breach exists with respect to a Mortgage Loan or otherwise refuses (i)
to effect a correction or cure of such Material Document Defect or Material
Breach, (ii) to repurchase the affected Mortgage Loan from the Trust or (iii) to
replace such Mortgage Loan with a Qualifying Substitute Mortgage Loan, each in
accordance with the related Mortgage Loan Purchase Agreement, then provided that
(x) the period of time provided for the related Seller to correct, repurchase or
cure has expired and (y) the Mortgage Loan is then in default and is then a
Specially Serviced Mortgage Loan, the Special Servicer may, subject to the
Servicing Standard, modify, workout or foreclose, sell or otherwise liquidate
(or permit the liquidation of) the Mortgage Loan pursuant to Section 9.5,
Section 9.12, Section 9.15 and Section 9.36, as applicable, hereof, while
pursuing the repurchase claim. The related Seller has acknowledged and agreed
under the related Mortgage Loan Purchase Agreement that any modification of the
Mortgage Loan pursuant to a workout shall not constitute a defense to any
repurchase claim nor shall such modification and workout change the Purchase
Price due from the related Seller for any repurchase claim. In the event of any
such modification and workout, the related Seller has agreed under the related
Mortgage Loan Purchase Agreement to repurchase the Mortgage Loan as modified and
that the Purchase Price shall include any Work-Out Fee paid to the Special
Servicer up to the date of repurchase plus the present value (calculated at a
discount rate equal to the applicable Mortgage Rate) of the Work-Out Fee that
would have been payable to the Special Servicer in respect of such Mortgage Loan
if the Mortgage Loan performed in accordance with its terms to its Maturity
Date, provided that no amount shall be paid by the related Seller in respect of
any Work-Out Fee if a Liquidation Fee already comprises (or will comprise) a
portion of the Purchase Price. The related Seller shall be notified promptly and
in writing by (i) the Trustee of any notice that it receives that an Option
Holder intends to exercise its Option to purchase the Mortgage Loan in
accordance with and as described in Section 9.36 hereof and (ii) the Special
Servicer of any offer that it receives to purchase the applicable REO Property,
each in connection with such liquidation. Upon the receipt of such notice by the
related Seller, the related Seller shall then have the right to purchase the
related Mortgage Loan or REO Property, as applicable, from the Trust at a
purchase price equal to, in the case of clause (i) of the immediately preceding
sentence, the Option Purchase Price or, in the case of clause (ii) of the
immediately preceding sentence, the
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amount of such offer. Notwithstanding anything to the contrary contained herein
or in the related Mortgage Loan Purchase Agreement, the right of any Option
Holder to purchase such Mortgage Loan shall be subject and subordinate to the
Seller's right to purchase such Mortgage Loan as described in the immediately
preceding sentence. The related Seller shall have five (5) Business Days to
notify the Trustee or the Special Servicer, as applicable, of its intent to so
purchase the Mortgage Loan or related REO Property from the date that it was
notified of such intention to exercise such Option or of such offer. The Special
Servicer shall be obligated to provide the related Seller with any appraisal or
other third party reports relating to the Mortgaged Property within its
possession to enable the related Seller to evaluate the related Mortgage Loan or
REO Property. Any sale of the related Mortgage Loan, or foreclosure upon such
Mortgage Loan and sale of the related REO Property, to a Person other than the
related Seller shall be without (i) recourse of any kind (either expressed or
implied) by such Person against the related Seller and (ii) representation or
warranty of any kind (either expressed or implied) by the related Seller to or
for the benefit of such Person.
The fact that a Material Document Defect or Material Breach is not
discovered until after foreclosure (but in all instances prior to the sale of
the related REO Property or Mortgage Loan) shall not prejudice any claim against
the Seller for repurchase of the REO Mortgage Loan or REO Property. In such an
event, the Master Servicer shall notify the related Seller of the discovery of
the Material Document Defect or Material Breach and the related Seller shall
have 90 days to correct or cure such Material Document Defect or Material Breach
or purchase the REO Property at the Purchase Price. If the related Seller fails
to correct or cure the Material Document Defect or Material Breach or purchase
the REO Property, then the provisions above regarding notice of offers related
to such REO Property and the related Seller's right to purchase such REO
Property shall apply. After a final liquidation of the Mortgage Loan or REO
Mortgage Loan, if a court of competent jurisdiction issues a final order after
the expiration of any applicable appeal period that the related Seller is or was
obligated to repurchase the related Mortgage Loan or REO Mortgage Loan (a "Final
Judicial Determination") or the related Seller otherwise accepts liability,
then, but in no event later than the termination of the Trust pursuant to
Section 9.30 hereof, the related Seller will be obligated to pay to the Trust
the difference between any Liquidation Proceeds received upon such liquidation
(including those arising from any sale to the related Seller) and the Purchase
Price. If any payment is due with respect to the preceding sentence for either
the East Towne Mall Mortgage Loan or the West Towne Mall Mortgage Loan, then
each of Principal and MSMC shall be required to pay such party's pro rata share
(i.e. 50% each with respect to the East Towne Mall Mortgage Loan or the West
Towne Mall Mortgage Loan, as applicable).
Notwithstanding anything to the contrary contained herein, in
connection with any sale or other liquidation of a Mortgage Loan or REO Property
as described in this Section 2.3, the Special Servicer shall not receive a
Liquidation Fee from the applicable Seller (but may collect such Liquidation Fee
from the related Liquidation Proceeds as otherwise provided herein); provided,
however, that in the event the applicable Seller is obligated to repurchase the
Mortgage Loan or REO Property after a final liquidation of such Mortgage Loan or
REO Property pursuant to the immediately preceding paragraph, an amount equal to
any Liquidation Fee (calculated on the basis of Liquidation Proceeds) payable to
the Special Servicer shall be included in the definition of "Purchase Price" in
respect of such Mortgage Loan or REO
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Property. Except as expressly set forth above, no Liquidation Fee shall be
payable in connection with a repurchase of a Mortgage Loan by a Seller.
In any month in which the related Seller substitutes one or more
Qualifying Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the
Master Servicer will determine the amount (if any) by which the aggregate
Principal Balance of all such Qualifying Substitute Mortgage Loans as of the
date of substitution is less than the aggregate Principal Balance of all such
Deleted Mortgage Loans (in each case after application of scheduled principal
portion of the monthly payments received in the month of substitution). The
Depositor shall cause the related Seller to deposit the amount of such shortage
into the Certificate Account in the month of substitution, without any
reimbursement thereof. In addition, the Depositor shall cause the related Seller
to deposit into the Certificate Account, together with such shortage, if any, an
amount equal to interest on the Deleted Mortgage Loans at a rate equal to the
sum of the applicable Mortgage Rate from the Due Date as to which interest was
last paid up to the Due Date next succeeding such substitution together with the
amount of unreimbursed Servicing Advances, amounts required to be paid to the
Special Servicer but remaining unpaid or unreimbursed, and interest on
unreimbursed Advances with respect to such Deleted Mortgage Loans at the Advance
Rate. The Depositor shall cause the related Seller, in the case of the Mortgage
Loans, to give notice in writing (accompanied by an Officer's Certificate as to
the calculation of such shortage) to the Trustee, the Paying Agent and the
Master Servicer of such event which notice shall be accompanied by an Officer's
Certificate as to the calculation of such shortfall.
If the affected Mortgage Loan is to be repurchased, the Master
Servicer shall designate the Certificate Account as the account to which funds
in the amount of the Purchase Price are to be wired. Any such purchase of a
Mortgage Loan shall be on a whole loan, servicing released basis.
(b) In connection with any repurchase of or substitution for a
Mortgage Loan contemplated by this Section 2.3, the Trustee, the Master Servicer
and the Special Servicer shall each tender to the related Seller, upon delivery
to each of them of a receipt executed by such Seller, all portions of the
Mortgage File and other documents pertaining to such Mortgage Loan possessed by
it, and each document that constitutes a part of the Mortgage File shall be
endorsed or assigned to the extent necessary or appropriate to the related
Seller or its designee in the same manner, and pursuant to appropriate forms of
assignment, substantially similar to the manner and forms pursuant to which
documents were previously assigned to the Trustee, but in any event, without
recourse, representation or warranty; provided that such tender by the Trustee
shall be conditioned upon its receipt from the Master Servicer of a Request for
Release. The Master Servicer shall, and is hereby authorized and empowered by
the Trustee to, prepare, execute and deliver in its own name, on behalf of the
Certificateholders and the Trustee or any of them, the endorsements and
assignments contemplated by this Section 2.3, and the Trustee shall execute and
deliver any powers of attorney necessary to permit the Master Servicer to do so.
The Master Servicer shall, and is also hereby authorized and empowered by the
Trustee to, reconvey to the related Seller any deposits then held in an Escrow
Account relating to the Mortgage Loan being repurchased or substituted for. The
Master Servicer shall indemnify the Trustee for all costs, liabilities and
expenses (including attorneys' fees) incurred by the Trustee in connection with
any negligent or intentional misuse of any such powers of attorney by the Master
Servicer.
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(c) The Mortgage Loan Purchase Agreements provide the sole remedies
available to the Certificateholders, or the Trustee on behalf of the
Certificateholders, respecting any Material Document Defect or Material Breach.
The parties hereunder understand that (i) Principal, as Seller under Mortgage
Loan Purchase Agreement III, will be providing the remedies with respect to the
Principal Loans, (ii) Xxxxx Fargo, as Seller under Mortgage Loan Purchase
Agreement II, will be providing the remedies with respect to the Xxxxx Fargo
Loans, (iii) BSCMI, as Seller under Mortgage Loan Purchase Agreement I, will be
providing the remedies with respect to the BSCMI Loans and (iv) MSMC, as Seller
under Mortgage Loan Purchase Agreement IV, will be providing the remedies with
respect to the MSMC Loans.
(d) The Trustee or its designee (which, with the Master Servicer's
consent, may be the Master Servicer or which, with the Special Servicer's
consent, may be the Special Servicer) shall enforce the provisions of this
Section 2.3.
SECTION 2.4 REPRESENTATIONS AND WARRANTIES. The Depositor hereby
represents and warrants to the Master Servicer, the Special Servicer, the
Trustee (in its capacity as Trustee of the Trust), the Fiscal Agent and the
Paying Agent as of the Closing Date that:
(a) The Depositor is a corporation duly organized, validly existing
and in good standing under the laws governing its creation and existence and has
full corporate power and authority to own its property, to carry on its business
as presently conducted, to enter into and perform its obligations under this
Agreement, and to create the trust pursuant hereto;
(b) The execution and delivery by the Depositor of this Agreement have
been duly authorized by all necessary corporate action on the part of the
Depositor; neither the execution and delivery of this Agreement, nor the
consummation of the transactions herein contemplated, nor compliance with the
provisions hereof, will conflict with or result in a breach of, or constitute a
default under, (i) any of the provisions of any law, governmental rule,
regulation, judgment, decree or order binding on the Depositor or its
properties; (ii) the certificate of incorporation or bylaws of the Depositor; or
(iii) the terms of any indenture or other agreement or instrument to which the
Depositor is a party or by which it is bound; neither the Depositor nor any of
its Affiliates is a party to, bound by, or in breach of or violation of any
indenture or other agreement or instrument, or subject to or in violation of any
statute, order or regulation of any court, regulatory body, administrative
agency or governmental body having jurisdiction over it, which materially and
adversely affects or to the best knowledge of the Depositor may in the future
materially and adversely affect (i) the ability of the Depositor to perform its
obligations under this Agreement or (ii) the business, operations, financial
condition, properties or assets of the Depositor;
(c) The execution, delivery and performance by the Depositor of this
Agreement and the consummation of the transactions contemplated hereby do not
require the consent or approval of, the giving of notice to, the registration
with, or the taking of any other action in respect of, any state, federal or
other governmental authority or agency, except such as has been obtained, given,
effected or taken prior to the date hereof;
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(d) This Agreement has been duly executed and delivered by the
Depositor and, assuming due authorization, execution and delivery by the
Trustee, constitutes a valid and binding obligation of the Depositor enforceable
against it in accordance with its terms;
(e) There are no actions, suits or proceedings pending or, to the best
of the Depositor's knowledge, threatened or likely to be asserted against or
affecting the Depositor, before or by any court, administrative agency,
arbitrator or governmental body (A) with respect to any of the transactions
contemplated by this Agreement or (B) with respect to any other matter which in
the judgment of the Depositor will be determined adversely to the Depositor and
will, if determined adversely to the Depositor, materially and adversely affect
it or its business, assets, operations or condition, financial or otherwise, or
adversely affect its ability to perform its obligations under this Agreement;
and
(f) Immediately prior to the consummation of the transactions
contemplated in this Agreement, the Depositor had good title to and was the sole
owner of each Mortgage Loan free and clear of any and all adverse claims,
charges or security interests (including liens arising under the federal tax
laws or the Employee Retirement Income Security Act of 1974, as amended).
SECTION 2.5 CONVEYANCE OF INTERESTS. Effective as of the Closing Date,
the Depositor does hereby transfer, assign, set over, deposit with and otherwise
convey to the Trustee, without recourse, in trust, all the right, title and
interest of the Depositor in and to (i) the REMIC I Regular Interests in
exchange for the REMIC II Certificates, (ii) the REMIC II Regular Interests in
exchange for the REMIC III Certificates (other than the portion of the Class Q
Certificates representing the right to Excess Interest) and (iii) the right to
receive Excess Interest in exchange for the Class Q Grantor Trust Interest.
SECTION 2.6 CERTAIN MATTERS RELATING TO NON-SERVICED MORTGAGE LOANS.
(a) Notwithstanding anything to the contrary in this Agreement, with
respect to each Mortgage Loan that is a Non-Serviced Mortgage Loan, each of the
document delivery requirements set forth herein will be satisfied by the
delivery by the applicable Seller of copies of each such document specified
herein (other than the Mortgage Note (and all intervening endorsements)
evidencing the Mortgage Loan, with respect to which the originals shall be
required); provided, the document delivery requirements for the Assignment of
Mortgage, any assignment of Assignment of Leases and any UCC-2 or UCC-3
financing statement set forth herein will be satisfied by the delivery by the
applicable Seller of copies of such documents made in favor of the trustee of
the Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
(b) Promptly following the Closing Date, the Trustee shall send
written notice (substantially in the form of Exhibit DD attached hereto) with
respect to each Non-Serviced Mortgage Loan, to each of the respective master
servicer, special servicer and trustee for the related Non-Serviced Mortgage
Loan Pooling and Servicing Agreement and the other holders of the related
Non-Serviced Companion Loans, each stating that, among other things, the Trustee
is the holder of the related Non-Serviced Mortgage Loan as of the Closing Date.
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ARTICLE III
THE CERTIFICATES
SECTION 3.1 THE CERTIFICATES.
(a) The Certificates shall be in substantially the forms set forth in
the Exhibits attached hereto, with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Agreement or as may in the reasonable judgment of the Trustee or the Depositor
be necessary, appropriate or convenient to comply, or facilitate compliance,
with applicable laws, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange on which any of the
Certificates may be listed, or as may, consistently herewith, be determined by
the officers executing such Certificates, as evidenced by their execution
thereof.
The Definitive Certificates shall be printed, typewritten,
lithographed or engraved or produced by any combination of these methods or may
be produced in any other manner permitted by the rules of any securities
exchange on which any of the Certificates may be listed, all as determined by
the officers executing such Certificates, as evidenced by their execution
thereof.
(b) The Class A Senior Certificates and the Class A-J Certificates
will be issuable in denominations of $25,000 initial Certificate Balance and in
any whole dollar denomination in excess thereof. The Class X, Class B, Class C,
Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M,
Class N, Class O, Class P, Class Q and Class LF Certificates will be issuable in
denominations of $100,000 initial Certificate Balance or initial Notional Amount
(as applicable) or in any whole dollar denomination in excess thereof. The Class
R-I, Class R-II and Class R-III Certificates will be issued in minimum
Percentage Interests of 10% and integral multiples of 10% in excess thereof.
(c) Each Certificate shall, on original issue, be executed by the
Certificate Registrar and authenticated by the Authenticating Agent upon the
order of the Depositor. No Certificate shall be entitled to any benefit under
this Agreement, or be valid for any purpose, unless there appears on such
Certificate a certificate of authentication substantially in the form provided
for herein, executed by an authorized officer of the Authenticating Agent by
manual signature, and such certification upon any Certificate shall be
conclusive evidence, and the only evidence, that such Certificate has been duly
authenticated and delivered hereunder. All Certificates shall be dated the date
of their authentication. At any time and from time to time after the execution
and delivery of this Agreement, the Depositor may deliver Certificates to the
Authenticating Agent for authentication and the Authenticating Agent shall
authenticate and deliver such Certificates as in this Agreement provided and not
otherwise. In the event that additional Certificates need to be prepared at any
time subsequent to the Closing Date, the Depositor shall prepare, or cause to be
prepared, deliver, or cause to be delivered, at the Depositor's expense, any
such additional Certificates. With respect to the Class A Senior, Class X, Class
A-J, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J,
Class K, Class L, Class M, Class N, Class O, Class P, Class Q and Class LF
Certificates that are issued in book-entry form, on the Closing Date, the
Authenticating Agent upon the order of the Depositor
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shall authenticate Book-Entry Certificates that are issued to a Clearing Agency
or its nominee as provided in Section 3.7 against payment of the purchase price
thereof. With respect to the Class K, Class L, Class M, Class N, Class O, Class
P, Class Q and Class LF Certificates that are issued in definitive form, on the
Closing Date, the Authenticating Agent upon the order of the Depositor shall
authenticate Definitive Certificates that are issued to the registered holder
thereof against payment of the purchase price thereof.
SECTION 3.2 REGISTRATION. The Paying Agent shall be the initial
Certificate Registrar in respect of the Certificates and the Certificate
Registrar shall maintain books for the registration and for the transfer of
Certificates (the "Certificate Register"). The Certificate Registrar may resign
or be discharged or removed by the Paying Agent or the Certificateholders, and a
new successor may be appointed, in accordance with the procedures and
requirements set forth in Sections 7.6 and 7.7 hereof with respect to the
resignation, discharge or removal of the Paying Agent and the appointment of a
successor Paying Agent. The Certificate Registrar may appoint, by a written
instrument delivered to the Holders and the Trustee, any trust company to act as
co-registrar under such conditions as the Certificate Registrar may prescribe;
provided that the Certificate Registrar shall not be relieved of any of its
duties or responsibilities hereunder by reason of such appointment.
SECTION 3.3 TRANSFER AND EXCHANGE OF CERTIFICATES.
(a) A Certificate may be transferred by the Holder thereof only upon
presentation and surrender of such Certificate at the Corporate Trust Office,
duly endorsed or accompanied by a written instrument of transfer duly executed
by such Holder or such Holder's duly authorized attorney in such form as shall
be satisfactory to the Certificate Registrar. Upon the transfer of any
Certificate in accordance with the preceding sentence, and subject to the
restrictions set forth in the other subsections of this Section 3.3, the
Certificate Registrar shall execute, and the Authenticating Agent shall
authenticate and deliver to the transferee, one or more new Certificates of the
same Class and evidencing, in the aggregate, the same aggregate initial
Certificate Balance, initial Notional Amount or Percentage Interest, as the case
may be, as the Certificate being transferred. No service charge shall be made to
a Certificateholder for any registration of transfer of Certificates, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or governmental charge that may be imposed in connection with any registration
or transfer of Certificates. The Certificate Registrar may decline to accept any
request for a registration of transfer of any Certificate during the period
beginning five calendar days prior to any Distribution Date.
(b) A Certificate may be exchanged by the Holder thereof for any
number of new Certificates of the same Class, in authorized denominations,
representing in the aggregate the same initial Certificate Balance, initial
Notional Amount or Percentage Interest, as the case may be, as the Certificate
surrendered, upon surrender of the Certificate to be exchanged at the offices of
the Certificate Registrar duly endorsed or accompanied by a written instrument
of exchange duly executed by such Holder or such Holder's duly authorized
attorney in such form as is satisfactory to the Certificate Registrar.
Certificates delivered upon any such exchange will evidence the same
obligations, and will be entitled to the same rights and privileges, as the
Certificates surrendered. No service charge shall be made to a Certificateholder
for any exchange of Certificates, but the Certificate Registrar may require
payment of a sum sufficient to
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cover any tax or governmental charge that may be imposed in connection with any
exchange of Certificates. Whenever any Certificates are so surrendered for
exchange, the Certificate Registrar shall execute and the Authenticating Agent
shall authenticate, date and deliver the Certificates which the
Certificateholder making the exchange is entitled to receive.
(c) No transfer, sale, pledge or other disposition of any
Non-Registered Certificate or interest therein shall be made unless such
transfer, sale, pledge or other disposition is exempt from the registration
and/or qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws. If a transfer of any Non-Registered Certificate held
as a Definitive Certificate is to be made without registration under the
Securities Act (other than in connection with the initial issuance of the
Certificates or a transfer of such Non-Registered Certificate by the Depositor
or one of its Affiliates), then the Certificate Registrar shall refuse to
register such transfer unless it receives (and upon receipt, may conclusively
rely upon) either: (i) a certificate from the Certificateholder desiring to
effect such transfer substantially in the form attached as Exhibit D-1 hereto
and a certificate from such Certificateholder's prospective Transferee
substantially in the form attached either as Exhibit D-2A hereto or as Exhibit
D-2B hereto; or (ii) an Opinion of Counsel satisfactory to the Certificate
Registrar to the effect that such transfer shall be made without registration
under the Securities Act, together with the written certification(s) as to the
facts surrounding such transfer from the Certificateholder desiring to effect
such transfer and/or such Certificateholder's prospective Transferee on which
such Opinion of Counsel is based (such Opinion of Counsel shall not be an
expense of the Trust or of the Depositor, the Master Servicer, the Special
Servicer, the Paying Agent, the Trustee or the Certificate Registrar in their
respective capacities as such). If a transfer of any interest in a
Non-Registered Certificate that constitutes a Book-Entry Certificate is to be
made without registration under the Securities Act (other than in connection
with the initial issuance of the Certificates or a transfer of any interest in
such Non-Registered Certificate by the Depositor or any of its Affiliates), then
the Certificate Owner desiring to effect such transfer shall be required to
obtain either (i) a certificate from such Certificate Owner's prospective
Transferee substantially in the form attached as Exhibit D-3A hereto or as
Exhibit D-3B hereto, or (ii) an Opinion of Counsel to the effect that such
transfer may be made without registration under the Securities Act. None of the
Depositor, the Fiscal Agent, the Paying Agent, the Trustee, the Master Servicer,
the Special Servicer or the Certificate Registrar is obligated to register or
qualify any Class of Non-Registered Certificates under the Securities Act or any
other securities law or to take any action not otherwise required under this
Agreement to permit the transfer of any Certificate. Any Certificateholder or
Certificate Owner desiring to effect a transfer of Non-Registered Certificates
or interests therein shall, and does hereby agree to, indemnify the Depositor,
each Underwriter, the Trustee, the Fiscal Agent, the Master Servicer, the
Special Servicer, the Paying Agent and the Certificate Registrar against any
liability that may result if the transfer is not exempt from such registration
or qualification or is not made in accordance with such federal and state laws.
(d) No transfer of a Non-Investment Grade Certificate or Residual
Certificate or any interest therein shall be made (A) to any employee benefit
plan or other retirement arrangement, including individual retirement accounts
and annuities, Xxxxx plans and collective investment funds and separate accounts
in which such plans, accounts or arrangements are invested, including, without
limitation, insurance company general accounts, that is subject to Title I of
ERISA or Section 4975 of the Code or any applicable federal, state or local law
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("Similar Laws") materially similar to the foregoing provisions of ERISA or the
Code (each, a "Plan"), (B) in book-entry form to an Institutional Accredited
Investor who is not also a Qualified Institutional Buyer or (C) to any Person
who is directly or indirectly purchasing such Certificate or interest therein on
behalf of, as named fiduciary of, as trustee of, or with "plan assets" of a
Plan, unless: (i) in the case of a Non-Investment Grade Certificate that
constitutes a Book-Entry Certificate and is being sold to a Qualified
Institutional Buyer, the purchase and holding of such Certificate or interest
therein qualifies for the exemptive relief available under Sections I and III of
U.S. Department of Labor Prohibited Transaction Class Exemption ("PTCE") 95-60;
or (ii) in the case of a Non-Investment Grade Certificate held as a Definitive
Certificate, the prospective Transferee provides the Certificate Registrar with
a certification of facts and an Opinion of Counsel which establish to the
satisfaction of the Certificate Registrar that such transfer will not constitute
or result in a non-exempt prohibited transaction under Section 406 of ERISA or
Section 4975 of the Code or subject the Depositor, the Trustee, the Fiscal
Agent, the Paying Agent, the Master Servicer, the Special Servicer or the
Certificate Registrar to any obligation in addition to those undertaken in this
Agreement. Each Person who acquires any Non-Investment Grade Certificate or
Residual Certificate or interest therein (unless it shall have acquired such
Certificate or interest therein from the Depositor or an Affiliate thereof or
unless, in the case of a Non-Investment Grade Certificate, it shall have
delivered to the Certificate Registrar the certification of facts and Opinion of
Counsel referred to in clause (ii) of the preceding sentence) shall be required
to deliver to the Certificate Registrar (or, in the case of an interest in a
Non-Investment Grade Certificate that constitutes a Book-Entry Certificate, to
the Certificate Owner that is transferring such interest) a certification to the
effect that: (i) it is neither a Plan nor any Person who is directly or
indirectly purchasing such Certificate or interest therein on behalf of, as
named fiduciary of, as trustee of, or with "plan assets" of a Plan; or (ii)
that, in the case of a Non-Investment Grade Certificate, the purchase and
holding of such Certificate or interest therein by such person qualifies for the
exemptive relief available under Sections I and III of PTCE 95-60 or another
exemption from the "prohibited transactions" rules under ERISA by the U.S.
Department of Labor or similar exemption under Similar Laws.
(e) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions and to
have irrevocably authorized the Paying Agent under clause (F) below to deliver
payments to a Person other than such Person and to have irrevocably authorized
the Certificate Registrar under clause (G) below to negotiate the terms of any
mandatory sale and to execute all instruments of Transfer and to do all other
things necessary in connection with any such sale. The rights of such person
acquiring any Ownership Interest in a Residual Certificate are expressly subject
to the following provisions:
(A) (1) Each Person holding or acquiring any Ownership Interest
in a Residual Certificate shall be a Permitted Transferee and a United
States Tax Person and shall promptly notify the Certificate Registrar
of any change or impending change in its status as a Permitted
Transferee and (2) each Person holding or acquiring any Ownership
Interest in a Residual Certificate shall be a Qualified Institutional
Buyer and shall promptly notify the Certificate Registrar of any
change or impending change in its status as a Qualified Institutional
Buyer.
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(B) In connection with any proposed Transfer of any Ownership
Interest in a Residual Certificate, the Certificate Registrar shall
require delivery to it, and no Transfer of any Residual Certificate
shall be registered until the Certificate Registrar receives, an
affidavit and agreement substantially in the form attached hereto as
Exhibit E-1 (a "Transfer Affidavit and Agreement") from the proposed
Transferee, in form and substance satisfactory to the Certificate
Registrar, representing and warranting, among other things, that such
Transferee is a Permitted Transferee, that it is a Qualified
Institutional Buyer, that it is not acquiring its Ownership Interest
in the Residual Certificate that is the subject of the proposed
Transfer as a nominee, trustee or agent for any Person that is not a
Permitted Transferee, that for so long as it retains its Ownership
Interest in a Residual Certificate, it will endeavor to remain a
Permitted Transferee, that it is a United States Tax Person, that if
such Transferee is a partnership, trust or disregarded entity for U.S.
federal income tax purposes, then each Person that may be allocated
income from a Residual Certificate is a United States Tax Person, that
it is not a foreign permanent establishment or fixed base, within the
meaning of any applicable income tax treaty, of any United States Tax
Person, that it has historically paid its debts as they have come due
and will continue to do so in the future, that it understands that its
tax liability with respect to the Residual Certificates may exceed
cash flows thereon and it intends to pay such taxes as they come due,
that it will not cause income with respect to the Residual
Certificates to be attributable to a foreign permanent establishment
or fixed base, within the meaning of any applicable income tax treaty,
of such proposed Transferee or any other United States Tax Person,
that it will provide the Certificate Registrar with all information
necessary to determine that the applicable paragraphs of Section 13 of
such Transfer Affidavit and Agreement are true or that Section 13 is
not applicable, and that it has reviewed the provisions of this
Section 3.3(e) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and
Agreement by a proposed Transferee under clause (B) above, if the
Certificate Registrar has actual knowledge that the proposed
Transferee is not a Permitted Transferee or is not a United States Tax
Person, no Transfer of an Ownership Interest in a Residual Certificate
to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring an Ownership Interest in a
Residual Certificate shall agree (1) to require a Transfer Affidavit
and Agreement from any prospective Transferee to whom such Person
attempts to transfer its Ownership Interest in such Residual
Certificate and (2) not to transfer its Ownership Interest in such
Residual Certificate unless it provides to the Certificate Registrar a
certificate substantially in the form attached hereto as Exhibit E-2
among other things stating that (x) it has conducted a reasonable
investigation of the financial condition of the proposed Transferee
and, as a result of the investigation, the Transferor determines that
the proposed Transferee had historically paid its debts as they came
due and found no significant evidence that the proposed Transferee
will not continue to pay its debts as they come due in the future and,
(y) it has no actual knowledge that such prospective Transferee is not
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a Permitted Transferee, is not a United States Tax Person, is a
foreign permanent establishment or fixed base, within the meaning of
any applicable income tax treaty, of any United States Tax Person or
is a Person with respect to which income on the Residual Certificate
is attributable to a foreign permanent establishment or fixed base,
within the meaning of any applicable income tax treaty.
(E) Each Person holding or acquiring an Ownership Interest in a
Residual Certificate that is a "pass-through interest holder" within
the meaning of temporary Treasury Regulations Section
1.67-3T(a)(2)(i)(A) or is holding an Ownership Interest in a Residual
Certificate on behalf of a "pass-through interest holder", by
purchasing an Ownership Interest in such Certificate, agrees to give
the Certificate Registrar written notice of its status as such
immediately upon holding or acquiring such Ownership Interest in a
Residual Certificate.
(F) If any purported Transferee shall become a Holder of a
Residual Certificate in violation of the provisions of this Section
3.3(e) or if any Holder of a Residual Certificate shall lose its
status as a Permitted Transferee or a United States Tax Person, then
the last preceding Holder of such Residual Certificate that was in
compliance with the provisions of this Section 3.3(e) shall be
restored, to the extent permitted by law, to all rights and
obligations as Holder thereof retroactive to the date of registration
of such Transfer of such Residual Certificate. None of the Trustee,
the Fiscal Agent, the Master Servicer, the Special Servicer, the
Certificate Registrar or the Paying Agent shall be under any liability
to any Person for any registration of Transfer of a Residual
Certificate that is in fact not permitted by this Section 3.3(e) or
for making any payments due on such Certificate to the Holder thereof
or for taking any other action with respect to such Holder under the
provisions of this Agreement.
(G) If any purported Transferee shall become a Holder of a
Residual Certificate in violation of the restrictions in this Section
3.3(e), or if any Holder of a Residual Certificate shall lose its
status as a Permitted Transferee or a United States Tax Person, and to
the extent that the retroactive restoration of the rights and
obligations of the prior Holder of such Residual Certificate as
described in clause (F) above shall be invalid, illegal or
unenforceable, then the Trustee shall have the right, without notice
to the Holder or any prior Holder of such Residual Certificate, but
not the obligation, to sell or cause to be sold such Residual
Certificate to a purchaser selected by the Trustee on such terms as
the Trustee may choose. Such noncomplying Holder shall promptly
endorse and deliver such Residual Certificate in accordance with the
instructions of the Certificate Registrar. Such purchaser may be the
Certificate Registrar itself or any Affiliate of the Certificate
Registrar. The proceeds of such sale, net of the commissions (which
may include commissions payable to the Certificate Registrar or its
Affiliates), expenses and taxes due, if any, will be remitted by the
Certificate Registrar to such noncomplying Holder. The terms and
conditions of any sale under this clause (G) shall be determined in
the sole discretion of the Certificate Registrar, and the Certificate
Registrar shall not be liable to any Person having an
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Ownership Interest in a Residual Certificate as a result of its
exercise of such discretion.
The Master Servicer, on behalf of the Paying Agent, shall make available, upon
written request from the Paying Agent, to the Internal Revenue Service and those
Persons specified by the REMIC Provisions, all information necessary to compute
any tax imposed (A) as a result of the Transfer of an Ownership Interest in a
Residual Certificate to any Person who is not a Permitted Transferee, including
the information described in Treasury Regulations Sections 1.860D-1(b)(5) and
1.860E-2(a)(5) with respect to the "excess inclusions" of such Residual
Certificate and (B) as a result of any regulated investment company, real estate
investment trust, common trust fund, partnership, trust, estate or organization
described in Section 1381 of the Code that holds an Ownership Interest in a
Residual Certificate having as among its record holders at any time any Person
which is not a Permitted Transferee. The Person holding such Ownership Interest
shall be responsible for the reasonable compensation of the Master Servicer and
the Paying Agent for providing such information.
The provisions of this Section 3.3(e) may be modified, added to or
eliminated, provided that there shall have been delivered to the Trustee, the
Paying Agent, the Certificate Registrar, the Master Servicer, the Operating
Adviser (or the Lakeforest Mall Mortgage Loan Operating Adviser with respect to
the Lakeforest Mall Mortgage Loan) and the Depositor the following:
(A) written notification from each Rating Agency to the effect
that the modification of, addition to or elimination of such
provisions will not cause such Rating Agency to qualify, downgrade or
withdraw its then current rating of any Class of Certificates; and
(B) an Opinion of Counsel, in form and substance satisfactory to
the Trustee, the Certificate Registrar and the Depositor, to the
effect that such modification of, addition to or elimination of such
provisions will not cause any of REMIC I, REMIC II or REMIC III to (x)
cease to qualify as a REMIC or (y) be subject to an entity-level tax
caused by the Transfer of any Residual Certificate to a Person which
is not a Permitted Transferee, or cause a Person other than the
prospective Transferee to be subject to a tax caused by the Transfer
of a Residual Certificate to a Person which is not a Permitted
Transferee.
(f) None of the Master Servicer, the Special Servicer, the Trustee,
the Fiscal Agent, the Paying Agent or the Certificate Registrar shall have any
liability to the Trust arising from a transfer of any Certificate in reliance
upon a certification, ruling or Opinion of Counsel described in this Section
3.3; provided, however, that the Certificate Registrar shall not register the
transfer of a Residual Certificate if it has actual knowledge that the proposed
transferee does not meet the qualifications of a permitted Holder of a Residual
Certificate as set forth in Section 3.3(e); provided, further, that the
Certificate Registrar shall not register the transfer of a Noneconomic Residual
Interest if it shall have received notice that the Transferor has determined, as
a result of the investigation under Section 3.3(e)(D), that the proposed
Transferee has not paid its debts as they came due or that it will not pay its
debts as they come due in the future. The Certificate Registrar shall have no
obligation or duty to monitor, determine or
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inquire as to compliance with any restriction on transfer or exchange of
Certificates or any interest therein imposed under this Article III or under
applicable law other than to require delivery of the certifications and/or
opinions described in this Article III; provided, however, that the Certificate
Registrar shall not register the transfer of a Residual Certificate if it has
actual knowledge that the proposed transferee does not meet the qualifications
of a permitted Holder of a Residual Certificate as set forth in Section 3.3(e).
The Certificate Registrar shall have no liability for transfers (including
without limitation transfers made through the book-entry facilities of the
Depository or between or among Participants or Certificate Owners) made in
violation of applicable restrictions, provided that the Certificate Registrar
has satisfied its duties expressly set forth in Sections 3.3(c), 3.3(d) and
3.3(e).
(g) All Certificates surrendered for transfer and exchange shall be
physically cancelled by the Certificate Registrar, and the Certificate Registrar
shall hold such cancelled Certificates in accordance with its standard
procedures.
(h) The Certificate Registrar shall provide the Master Servicer, the
Special Servicer and the Depositor, upon written request, with an updated copy
of the Certificate Register within a reasonable period of time following receipt
of such request.
(i) Unless and until it is exchanged in whole for the individual
Certificates represented thereby, a Global Certificate representing all of the
Certificates of a Class may not be transferred, except as a whole by the
Depository to a nominee of the Depository or by a nominee of the Depository to
the Depository or another nominee of the Depository or by the Depository or any
such nominee to a successor Clearing Agency or a nominee of such successor
Clearing Agency, and no such transfer to any such other Person may be
registered; provided that this subsection (i) shall not prohibit any transfer of
a Certificate of a Class that is issued in exchange for a Global Certificate of
the same Class pursuant to Section 3.9 below. Nothing in this subsection (i)
shall prohibit or render ineffective any transfer of a beneficial interest in a
Global Certificate effected in accordance with the other provisions of this
Section 3.3.
SECTION 3.4 MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES. If (A)
any mutilated Certificate is surrendered to the Certificate Registrar, or the
Certificate Registrar receives evidence to its satisfaction of the destruction,
loss or theft of any Certificate and (B) except in the case of a mutilated
Certificate so surrendered, there is delivered to the Certificate Registrar such
security or indemnity as may be required by it to save it harmless, then, in the
absence of notice to the Certificate Registrar that such Certificate has been
acquired by a bona fide purchaser, the Certificate Registrar shall execute, and
the Authenticating Agent shall authenticate and deliver, in exchange for or in
lieu of any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate of like tenor and interest in the Trust. In connection with the
issuance of any new Certificate under this Section 3.4, the Certificate
Registrar may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Certificate Registrar)
connected therewith. Any replacement Certificate issued pursuant to this Section
3.4 shall constitute complete and indefeasible evidence of ownership in the
Trust, as if originally issued, whether or not the lost, stolen or destroyed
Certificate shall be found at any time.
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SECTION 3.5 PERSONS DEEMED OWNERS. Prior to presentation of a
Certificate for registration of transfer, the Master Servicer, the Special
Servicer, the Fiscal Agent, the Trustee, the Operating Adviser or, in the case
of the Class LF Certificates, the Lakeforest Mall Mortgage Loan Operating
Adviser, the Paying Agent and any agent of the Master Servicer, the Special
Servicer, the Fiscal Agent, the Paying Agent, the Trustee, the Operating Adviser
or, in the case of the Class LF Certificates, the Lakeforest Mall Mortgage Loan
Operating Adviser, may treat the Person in whose name any Certificate is
registered as of the related Record Date as the owner of such Certificate for
the purpose of receiving distributions as provided in this Agreement and for all
other purposes whatsoever, and neither the Master Servicer, the Special
Servicer, the Fiscal Agent, the Trustee, the Paying Agent, the Operating Adviser
nor any agent of the Master Servicer, the Special Servicer, the Fiscal Agent,
the Trustee, the Paying Agent, the Operating Adviser or, in the case of the
Class LF Certificates, the Lakeforest Mall Mortgage Loan Operating Adviser shall
be affected by any notice to the contrary.
SECTION 3.6 ACCESS TO LIST OF CERTIFICATEHOLDERS' NAMES AND ADDRESSES.
If three or more Certificateholders, a Certificateholder holding all
the Certificates of any Class of Certificates, the Master Servicer, the Special
Servicer, the Paying Agent, the Trustee, the Operating Adviser or, in the case
of the Class LF Certificates, the Lakeforest Mall Mortgage Loan Operating
Adviser, or the Depositor (A) request in writing from the Certificate Registrar
a list of the names and addresses of Certificateholders and (B) in the case of a
request by Certificateholders, state that such Certificateholders desire to
communicate with other Certificateholders with respect to their rights under
this Agreement or under the Certificates, then the Certificate Registrar shall,
within ten Business Days after the receipt of such request, afford such
Certificateholders, the Master Servicer, the Special Servicer, the Depositor,
the Paying Agent, the Trustee or the Operating Adviser or, in the case of the
Class LF Certificates, the Lakeforest Mall Mortgage Loan Operating Adviser, as
applicable, access during normal business hours to a current list of the
Certificateholders. The expense of providing any such information requested by
such Person shall be borne by the party requesting such information and shall
not be borne by the Certificate Registrar or the Trustee. Every
Certificateholder, by receiving and holding a Certificate, agrees that the
Certificate Registrar and the Trustee shall not be held accountable by reason of
the disclosure of any such information as to the list of the Certificateholders
hereunder, regardless of the source from which such information was derived.
SECTION 3.7 BOOK-ENTRY CERTIFICATES.
(a) The Class A-1, Class A-2, Class A-3, Class A-AB, Class X-0X, Xxxxx
X-0X, Xxxxx X-X, Class X, Class B, Class C, Class D, Class E, Class F, Class G,
Class H, Class J, Class K, Class L, Class M, Class N, Class O, Class P, Class Q
and Class LF Certificates, upon original issuance, each shall be issued in the
form of one or more Certificates representing the Book-Entry Certificates, to be
delivered to the Certificate Registrar, as custodian for The Depository Trust
Company (the "Depository"), the initial Clearing Agency, by, or on behalf of,
the Depositor, provided, that any Non-Investment Grade Certificates sold to
Institutional Accredited Investors that are not Qualified Institutional Buyers
will be issued as Definitive Certificates. The Certificates shall initially be
registered on the Certificate Register in the name of Cede & Co., the nominee of
the Depository, as the initial Clearing Agency, and no Certificate Owner will
receive a definitive certificate representing such Certificate Owner's interest
in the
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Certificates, except as provided in Section 3.9. Unless and until Definitive
Certificates have been issued to the Certificate Owners pursuant to Section 3.9:
(i) the provisions of this Section 3.7 shall be in full force and
effect with respect to each such Class;
(ii) the Depositor, the Master Servicer, the Paying Agent, the
Certificate Registrar and the Trustee may deal with the Clearing Agency for all
purposes (including the making of distributions on the Certificates) as the
authorized representative of the Certificate Owners;
(iii) to the extent that the provisions of this Section 3.7
conflict with any other provisions of this Agreement, the provisions of this
Section 3.7 shall control with respect to each such Class; and
(iv) the rights of the Certificate Owners of each such Class
shall be exercised only through the Clearing Agency and the applicable
Participants and shall be limited to those established by law and agreements
between such Certificate Owners and the Clearing Agency and/or the Participants.
Pursuant to the Depository Agreement, unless and until Certificates are issued
pursuant to Section 3.9, the initial Clearing Agency will make book-entry
transfers among the Participants and receive and transmit distributions of
principal and interest on the related Certificates to such Participants.
(b) For purposes of any provision of this Agreement requiring or
permitting actions with the consent of, or at the direction of, Holders of the
Certificates evidencing a specified percentage of the aggregate unpaid principal
amount of Certificates, such direction or consent may be given by the Clearing
Agency at the direction of Certificate Owners owning Certificates evidencing the
requisite percentage of principal amount of Certificates. The Clearing Agency
may take conflicting actions with respect to the Certificates to the extent that
such actions are taken on behalf of the Certificate Owners.
(c) The Certificates of each Class (other than the Residual
Certificates) initially sold in reliance on Rule 144A or with respect to the
Class F, Class G, Class H, Class J Certificates sold to Institutional Accredited
Investors shall be represented by the Rule 144A-IAI Global Certificate for such
Class, which shall be deposited with the Certificate Registrar, as custodian for
the Depository and registered in the name of Cede & Co. as nominee of the
Depository. The Class K, Class L, Class M, Class N, Class O, Class P, Class Q
and Class LF Certificates initially sold to Institutional Accredited Investors
that are not Qualified Institutional Buyers shall be represented by IAI
Definitive Certificates for such Class. The Certificates evidenced by any Rule
144A-IAI Global Certificate or IAI Definitive Certificate shall be subject to
certain restrictions on transfer as set forth in Section 3.3 hereof and shall
bear legend(s) regarding such restrictions described herein.
(d) The Certificates of each Class (other than the Residual
Certificates) initially sold in offshore transactions in reliance on Regulation
S shall be represented by the Regulation S Temporary Global Certificate for such
Class, which shall be deposited with the Certificate Registrar, as custodian for
the Depository and registered in the name of Cede & Co. as nominee of the
Depository. Not earlier than the Release Date, beneficial interests in any
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Regulation S Temporary Global Certificate shall be exchangeable for beneficial
interests in the Regulation S Permanent Global Certificate for such Class.
Beneficial interests in any Regulation S Temporary Global Certificate may be
held only through Euroclear Bank or Clearstream Bank; provided, however, that
such interests may be exchanged for interests in the Rule 144A-IAI Global
Certificate for such Class in accordance with the certification requirements
described in Section 3.7(f). The Regulation S Permanent Global Certificates
shall be deposited with the Certificate Registrar, as custodian for the
Depository and registered in the name of Cede & Co. as nominee of the
Depository.
On or prior to the Release Date and on or prior to any Distribution
Date occurring prior to the Release Date, each Certificate Owner of a Regulation
S Temporary Global Certificate that holds a beneficial interest therein on the
Release Date or on any such Distribution Date, as the case may be, must deliver
to Euroclear Bank or Clearstream Bank (as applicable) a Regulation S
Certificate; provided, however, that any Certificate Owner that holds a
beneficial interest in a Regulation S Temporary Global Certificate on the
Release Date or on any such Distribution Date that has previously delivered a
Regulation S Certificate to Euroclear Bank or Clearstream Bank with respect to
its interest therein does not need to deliver any subsequent Regulation S
Certificate (unless the certificate previously delivered is no longer true as of
such subsequent date, and such Certificate Owner must promptly notify Euroclear
Bank or Clearstream Bank, as applicable, thereof). Euroclear Bank or Clearstream
Bank, as applicable, shall be required to promptly deliver to the Certificate
Registrar a certificate substantially in the form of Exhibit I hereto to the
effect that it has received the requisite Regulation S Certificates for each
such Class, and no Certificate Owner (or transferee from any such Certificate
Owner) shall be entitled to receive an interest in the Regulation S Permanent
Global Certificate for such Class or any payment or principal or interest with
respect to its interest in such Regulation S Temporary Global Certificate prior
to the Certificate Registrar receiving such certification from Euroclear Bank or
Clearstream Bank with respect to the portion of the Regulation S Temporary
Global Certificate owned by such Certificate Owner (and, with respect to an
interest in the applicable Regulation S Permanent Global Certificate, prior to
the Release Date). After the Release Date, distributions due with respect to any
beneficial interest in a Regulation S Temporary Global Certificate shall not be
made to the holders of such beneficial interests unless exchange for a
beneficial interest in the related Regulation S Permanent Global Certificate is
improperly withheld or refused. No interest in a Regulation S Global Certificate
may be held by or transferred to a U.S. Person (as defined in Regulation S)
except for exchanges for a beneficial interest in the Rule 144A-IAI Global
Certificate for such Class as described in Section 3.7(f).
(e) Except in the limited circumstances described below in Section
3.9, owners of beneficial interests in Global Certificates shall not be entitled
to receive physical delivery of Definitive Certificates. The Certificates are
not issuable in bearer form. Upon the issuance of each Global Certificate, the
Depository or its custodian shall credit, on its internal system, the respective
principal amount of the individual beneficial interests represented by such
Global Certificate to the accounts of Persons who have accounts with such
Depository. Such accounts initially shall be designated by or on behalf of the
Underwriters and Placement Agents. Ownership of beneficial interests in a Global
Certificate shall be limited to Customers or Persons who hold interests directly
or indirectly through Customers. Ownership of beneficial interests in the Global
Certificates shall be shown on, and the transfer of that ownership shall be
effected only through, records maintained by the Depository or its nominee (with
respect to interests of
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Customers) and the records of Customers (with respect to interests of Persons
other than Customers).
So long as the Depository, or its nominee, is the registered holder of
a Global Certificate, the Depository or such nominee, as the case may be, shall
be considered the sole owner and holder of the Certificates represented by such
Global Certificate for all purposes under this Agreement and the Certificates,
including, without limitation, obtaining consents and waivers thereunder, and
the Trustee, the Paying Agent and the Certificate Registrar shall not be
affected by any notice to the contrary. Except under the circumstance described
in Section 3.9, owners of beneficial interests in a Global Certificate will not
be entitled to have any portions of such Global Certificate registered in their
names, will not receive or be entitled to receive physical delivery of
Definitive Certificates in certificated form and shall not be considered the
owners or holders of the Global Certificate (or any Certificates represented
thereby) under this Agreement or the Certificates. In addition, no Certificate
Owner of an interest in a Global Certificate shall be able to transfer that
interest except in accordance with the Depository's applicable procedures (in
addition to those under this Agreement and, if applicable, those of Euroclear
Bank and Clearstream Bank).
(f) Any holder of an interest in a Regulation S Global Certificate
shall have the right, upon prior written notice to the Certificate Registrar,
Euroclear Bank or Clearstream Bank, as applicable, and the Depository, in the
form of an Exchange Certification (substantially in the form of Exhibit H
attached hereto), to exchange all or a portion of such interest (in authorized
denominations as set forth in Section 3.1(b)) for an equivalent interest in the
Rule 144A-IAI Global Certificate for such Class in connection with a transfer of
its interest therein to a transferee that is eligible to hold an interest in
such Rule 144A-IAI Global Certificate as described herein; provided, however,
that no Exchange Certification shall be required if any such exchange occurs
after the Release Date. Any holder of an interest in the Rule 144A-IAI Global
Certificate shall have the right, upon prior written notice to the Certificate
Registrar, the Depository and Euroclear Bank or Clearstream Bank, as applicable,
in the form of an Exchange Certification, to exchange all or a portion of such
interest (in authorized denominations as set forth in Section 3.1(b)) for an
equivalent interest in the Regulation S Global Certificate for such Class in
connection with a transfer of its interest therein to a transferee that is
eligible to hold an interest in such Regulation S Global Certificate as
described herein; provided, however, that if such exchange occurs prior to the
Release Date, the transferee shall acquire an interest in a Regulation S
Temporary Global Certificate only and shall be subject to all of the
restrictions associated therewith described in Section 3.7(d). Following receipt
of any Exchange Certification or request for transfer, as applicable, by the
Certificate Registrar: (i) the Certificate Registrar shall endorse the schedule
to any Global Certificate representing the Certificate or Certificates being
exchanged to reduce the stated principal amount of such Global Certificate by
the denominations of the Certificate or Certificates for which such exchange is
to be made, and (ii) the Certificate Registrar shall endorse the schedule to any
Global Certificate representing the Certificate or Certificates for which such
exchange is to be made to increase the stated principal amount of such Global
Certificate by the denominations of the Certificate or Certificates being
exchanged therefor. The form of the Exchange Certification shall be available
from the Certificate Registrar.
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SECTION 3.8 NOTICES TO CLEARING AGENCY. Whenever notice or other
communication to the Certificateholders is required under this Agreement, unless
and until Definitive Certificates shall have been issued to the related
Certificateholders pursuant to Section 3.9, the Paying Agent shall give all such
notices and communications specified herein to be given to Holders of the
Book-Entry Certificates to the Clearing Agency which shall give such notices and
communications to the related Participants in accordance with its applicable
rules, regulations and procedures.
SECTION 3.9 DEFINITIVE CERTIFICATES.
(a) Definitive Certificates will be issued to the owners of beneficial
interests in a Global Certificate or their nominees if (i) the Clearing Agency
notifies the Depositor and the Certificate Registrar in writing that the
Clearing Agency is unwilling or unable to continue as depositary for such Global
Certificate and a qualifying successor depositary is not appointed by the
Depositor within 90 days thereof, (ii) the Trustee has instituted or caused to
be instituted or has been directed to institute any judicial proceeding in a
court to enforce the rights of the Certificateholders under this Agreement and
under such Global Certificate and the Trustee has been advised by counsel that
in connection with such proceeding it is necessary or advisable for the Trustee
or its custodian to obtain possession of such Global Certificate, or (iii) after
the occurrence of an Event of Default, Certificate Owners representing a
majority in aggregate outstanding Certificate Balance of such Global Certificate
advise the Clearing Agency through the Participants in writing (and the Clearing
Agency so advises the Depositor, the Certificate Registrar and the Master
Servicer in writing) that the continuation in global form of the Certificates
being evidenced by such Global Certificate is no longer in their best interests;
provided, that under no circumstances will Definitive Certificates be issued to
Certificate Owners of the Regulation S Temporary Global Certificate. Upon notice
of the occurrence of any of the events described in the preceding sentence, the
Certificate Registrar shall notify the Clearing Agency and request the Clearing
Agency to notify all Certificate Owners, through the applicable Participants, of
the occurrence of the event and of the availability of Definitive Certificates
to such Certificate Owners requesting the same. Upon surrender to the
Certificate Registrar of the Global Certificates by the Clearing Agency,
accompanied by registration instructions from the Clearing Agency for
registration, the Certificate Registrar shall execute, and the Authenticating
Agent shall authenticate and deliver, the Definitive Certificates. None of the
Depositor, the Trustee, the Paying Agent, the Certificate Registrar or the
Fiscal Agent shall be liable for any delay in delivery of such instructions and
may conclusively rely on, and shall be protected in relying on, such
instructions. Upon the issuance of Definitive Certificates, all references
herein to obligations imposed upon or to be performed by the Clearing Agency
shall be deemed to be imposed upon and performed by the Certificate Registrar,
to the extent applicable with respect to such Definitive Certificates, and the
Certificate Registrar and the Trustee and the Paying Agent shall recognize the
Holders of Definitive Certificates as Certificateholders hereunder.
(b) Distributions of principal and interest on the Definitive
Certificates shall be made by the Paying Agent directly to holders of Definitive
Certificates in accordance with the procedures set forth in this Agreement.
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ARTICLE IV
ADVANCES
P&I Advances and Servicing Advances shall be made as provided herein
by the Master Servicer and, if the Master Servicer does not make such Advances,
by the Trustee, and if the Trustee does not make such Advances, by the Fiscal
Agent except to the extent that the Master Servicer, the Trustee or the Fiscal
Agent, as applicable, determines in accordance with Section 4.4 below, that any
such Advance would be a Nonrecoverable Advance.
SECTION 4.1 P&I ADVANCES BY MASTER SERVICER.
(a) On or prior to the Advance Report Date, the Master Servicer shall
notify the Trustee and the Paying Agent if the P&I Advance Amount for such
Distribution Date is greater than zero, and the Master Servicer shall make a P&I
Advance in respect of each applicable Mortgage Loan (excluding the Lakeforest
Mall Mortgage Loan Non-Pooled Component) of such amount no later than the Master
Servicer Remittance Date. It is understood that the obligation of the Master
Servicer to make such P&I Advances is mandatory and shall apply through any
court appointed stay period or similar payment delay resulting from any
insolvency of the Mortgagor or related bankruptcy, notwithstanding any other
provision of this Agreement. Notwithstanding the foregoing, the Master Servicer
shall not be required to make such P&I Advance, if the Master Servicer
determines, in accordance with Section 4.4 below, that any such P&I Advance
would be a Nonrecoverable Advance and shall not make such P&I Advance if such
P&I Advance if made would be a Nonrecoverable Advance as determined by the
Special Servicer in accordance with the Servicing Standard, in which event the
Special Servicer shall promptly direct the Master Servicer not to make such P&I
Advance. Such determination shall be conclusive and binding on the Trustee, the
Fiscal Agent and the Certificateholders. The Special Servicer shall not make P&I
Advances under this Agreement. If the Master Servicer fails to make a P&I
Advance that it is required to make under this Section 4.1, it shall promptly
notify the Trustee and the Paying Agent of such failure.
(b) If the Master Servicer determines that there is a P&I Advance
Amount for a Distribution Date, the Master Servicer shall on the related Master
Servicer Remittance Date either (A) deposit in the Certificate Account an amount
equal to the P&I Advance Amount or (B) utilize funds in the Certificate Account
being held for future distributions or withdrawals to make such Advance. Any
funds being held in the Certificate Account for future distribution or
withdrawal and so used shall be replaced by the Master Servicer from its own
funds by deposit in the Certificate Account on or before any future Master
Servicer Remittance Date to the extent that funds in the Certificate Account on
such Master Servicer Remittance Date shall be less than payments to the Paying
Agent or other Persons required to be made on such date.
(c) None of the Master Servicer, the Trustee or the Fiscal Agent will
be required to make any P&I Advances with respect to the Lakeforest Mall
Mortgage Loan Non-Pooled Component.
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SECTION 4.1A P&I ADVANCES WITH RESPECT TO NON-SERVICED MORTGAGE LOANS
AND SERVICED PARI PASSU MORTGAGE LOANS.
With respect to the Non-Serviced Mortgage Loans and Serviced Pari
Passu Mortgage Loans (the "P&I Pari Passu Loans"), the Master Servicer shall
make its determination that a P&I Advance previously made on any P&I Pari Passu
Loan is a Nonrecoverable Advance or that any proposed P&I Advance, if made,
would constitute a Nonrecoverable Advance with respect to such P&I Pari Passu
Loan in accordance with Section 4.1 independently of any determination made by
any Other Master Servicer under the related Other Companion Loan Pooling and
Servicing Agreement in respect of any P&I Pari Passu Loan following deposit of
the Non-Serviced Companion Mortgage Loans or Serviced Companion Mortgage Loans
into a commercial mortgage securitization trust, and the Other Master Servicer
shall make its own determination that it has made a P&I Advance that is a
Nonrecoverable Advance (both as defined in the related Other Companion Loan
Pooling and Servicing Agreement) or that any proposed P&I Advance, if made,
would constitute a Nonrecoverable Advance (both as defined in the related Other
Companion Loan Pooling and Servicing Agreement) with respect to the Non-Serviced
Companion Mortgage Loans or Serviced Companion Mortgage Loans, as applicable, in
accordance with the related Other Companion Loan Pooling and Servicing
Agreement. The determination by either the Master Servicer or the Other Master
Servicer made on the earlier of (i) the Advance Report Date and (ii) the Other
Advance Report Date that any such P&I Advance is nonrecoverable shall be binding
on the Other Master Servicer and the Master Servicer, as applicable, the
Certificateholders and the holders of any securities relating to the
Non-Serviced Companion Mortgage Loans or Serviced Companion Mortgage Loans, as
applicable.
The Master Servicer shall not make a P&I Advance with respect to any
P&I Pari Passu Loan after its receipt of notice from the related Other Master
Servicer that it has determined that it has made a P&I Advance that is a
Nonrecoverable Advance on the Non-Serviced Companion Mortgage Loans or Serviced
Companion Mortgage Loans, as applicable, or that any proposed P&I Advance, if
made, would constitute a Nonrecoverable Advance pursuant to the relevant Other
Companion Loan Pooling and Servicing Agreement. If the Master Servicer
determines that a P&I Advance would be (if made), or any outstanding P&I Advance
previously made is, a Nonrecoverable Advance, the Master Servicer shall provide
the Other Master Servicer written notice of such determination. If the Master
Servicer receives written notice by the Other Master Servicer that it has
determined, with respect to any Mortgage Loan, that any proposed future P&I
Advance would be, or any outstanding P&I Advance is, a Nonrecoverable Advance,
the Master Servicer shall not make any additional P&I Advances with respect to
such Mortgage Loan unless the Master Servicer has consulted with the Other
Master Servicer and they both agree that circumstances with respect to such
Mortgage Loan have changed such that a proposed future P&I Advance would not be
a Nonrecoverable Advance. Notwithstanding the foregoing, the Master Servicer
shall continue to have the discretion provided in this Agreement to determine
that any future P&I Advance or outstanding P&I Advance would be, or is, as
applicable, a Nonrecoverable Advance. Once such a determination is made by the
Master Servicer or the Master Servicer receives written notice of such
determination by the Other Master Servicer, the Master Servicer shall follow the
process set forth in this paragraph before making any additional P&I Advances
with respect to such Mortgage Loan.
Following a securitization of a Serviced Companion Mortgage Loan, the
Master Servicer shall be required to deliver to the related Other Master
Servicer the following
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information: (i) any loan related information (in the form received), including
without limitation CMSA Reports relating to the related Serviced Pari Passu
Mortgage Loan, applicable to a determination that an Advance is or would be a
Nonrecoverable Advance, within one Business Day of the Master Servicer's receipt
thereof, (ii) notice of any Servicing Advance it, the Trustee or the Fiscal
Agent makes with respect to the related Serviced Pari Passu Mortgage Loan within
one Business Day of the making of such Advance and (iii) notice of any
determination that any Servicing Advance is a Nonrecoverable Advance within one
Business Day thereof.
SECTION 4.2 SERVICING ADVANCES. The Master Servicer and, if the Master
Servicer does not, the Trustee to the extent the Trustee receives written notice
from the Paying Agent that such Advance has not been made by the Master
Servicer, and if the Trustee does not, the Fiscal Agent (if the Fiscal Agent has
knowledge that such Advance is required to be made), shall make Servicing
Advances to the extent provided in this Agreement, except to the extent that the
Master Servicer, the Trustee or the Fiscal Agent, as applicable, determines in
accordance with Section 4.4 below, that any such Advance would be a
Nonrecoverable Advance and, subject to the last sentence of this Section 4.2,
except to the extent the Special Servicer determines in accordance with the
Servicing Standard and Section 4.4 that such Advance, if made, would be a
Nonrecoverable Advance, in which event the Special Servicer shall promptly
direct the Master Servicer not to make such Advance. Such determination by the
Master Servicer or the Special Servicer shall be conclusive and binding on the
Trustee, the Fiscal Agent and the Certificateholders and, in the case of any B
Note, the holder of the related B Note and, in the case of any Serviced Pari
Passu Mortgage Loan, the holder of the related Serviced Companion Mortgage Loan.
The Special Servicer shall not be required to make Servicing Advances under this
Agreement but may make such Servicing Advances at its option in which event the
Master Servicer shall reimburse the Special Servicer for such Servicing Advance
within 30 days of receipt of a statement therefor. Promptly after discovering
that the Master Servicer has failed to make a Servicing Advance that the Master
Servicer is required to make hereunder, the Paying Agent shall promptly notify
the Trustee in writing of the failure by the Master Servicer to make such
Servicing Advance. The Master Servicer may make Servicing Advances in its own
discretion if it determines that making such Servicing Advance is in the best
interest of the Certificateholders, even if the Master Servicer or the Special
Servicer has determined, in accordance with Section 4.4 below, that any such
Advance would be a Nonrecoverable Advance.
The applicable Non-Serviced Mortgage Loan Master Servicer is obligated
to make Servicing Advances pursuant to the related Non-Serviced Mortgage Loan
Pooling and Servicing Agreement with respect to any Non-Serviced Mortgage Loan,
and the Master Servicer shall have no obligation or authority to make Servicing
Advances with respect to such Mortgage Loan.
SECTION 4.3 ADVANCES BY THE TRUSTEE AND THE FISCAL AGENT.
(a) To the extent that the Master Servicer fails to make a P&I Advance
with respect to a Mortgage Loan by the Master Servicer Remittance Date (other
than a P&I Advance that the Master Servicer or the Special Servicer determines
is a Nonrecoverable Advance), the Trustee shall make such P&I Advance with
respect to such Mortgage Loan to the extent the Trustee receives written notice
from the Paying Agent not later than 10:00 a.m. (New York City time) on the
Distribution Date that such Advance has not been made by the Master Servicer on
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the Master Servicer Remittance Date unless the Trustee determines that such P&I
Advance, if made, would be a Nonrecoverable Advance. To the extent that the
Trustee fails to make a P&I Advance required to be made by the Trustee hereunder
on the Distribution Date (other than a P&I Advance that the Master Servicer or
the Trustee determines is a Nonrecoverable Advance), the Fiscal Agent will
advance such P&I Advance unless the Fiscal Agent determines that any such P&I
Advance, if made, would be a Nonrecoverable Advance. To the extent that the
Fiscal Agent is required hereunder to make P&I Advances on the Mortgage Loans,
it shall deposit the amount thereof in the Distribution Account by 1:00 p.m.
(New York City time) on each such Distribution Date. The Paying Agent shall
notify the Trustee in writing as soon as practicable, but not later than 10:00
a.m. (New York City time) on the Distribution Date if the Master Servicer has
failed to make a P&I Advance.
(b) To the extent that the Master Servicer fails to make a Servicing
Advance by the date such Servicing Advance is required to be made (other than a
Servicing Advance that the Master Servicer determines is a Nonrecoverable
Advance), and a Responsible Officer of the Trustee receives actual notice
thereof, the Trustee shall make such Servicing Advance promptly, but in any
event, not later than five Business Days after notice thereof in accordance with
Section 4.2, unless the Trustee determines that such Servicing Advance, if made,
would be a Nonrecoverable Advance.
(c) To the extent that the Trustee fails to make a Servicing Advance
required to be made by the Trustee hereunder by the later of (i) the date such
Servicing Advance is required to be made and (ii) five Business Days after the
date the Trustee has received notice pursuant to subsection (b) above, that such
Servicing Advance has not been made by the Master Servicer (other than a
Servicing Advance that the Master Servicer or the Trustee has determined to be a
Nonrecoverable Advance), the Fiscal Agent will advance such Servicing Advance,
unless the Fiscal Agent determines that such Servicing Advance, if made, would
be a Nonrecoverable Advance.
The initial Trustee's failure to make any Advance required to be made
by it hereunder shall not constitute a default by the initial Trustee hereunder
if the initial Fiscal Agent makes such Advance at or before the time when the
Trustee was required to make such Advance.
SECTION 4.4 EVIDENCE OF NONRECOVERABILITY.
(a) If the Master Servicer or the Special Servicer determines at any
time, in its sole discretion, exercised in good faith, that any Advance
previously made (or Unliquidated Advance in respect thereof) or any proposed
Advance, if made, would constitute a Nonrecoverable Advance, such determination
shall be evidenced by an Officer's Certificate delivered to the Trustee, the
Master Servicer, the Paying Agent, the Fiscal Agent, the Special Servicer, the
Operating Adviser, the Lakeforest Mall Mortgage Loan Operating Adviser (with
respect only to the Lakeforest Mall Mortgage Loan) and the Rating Agencies (and
the holder of the Serviced Companion Mortgage Loan if the Advance relates to a
Loan Pair) by the Business Day prior to the Distribution Date. Such Officer's
Certificate shall set forth the reasons for such determination of
nonrecoverability, together with, to the extent such information, report or
document is in the Master Servicer's or Special Servicer's possession, any
related financial information such as related income and expense statements,
rent rolls, occupancy status, property inspections and any Appraisals performed
within the last 12 months on the Mortgaged Property,
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and, if such reports are used by the Master Servicer or the Special Servicer, as
applicable, to determine that any P&I Advance or Servicing Advance, as
applicable, would be a Nonrecoverable Advance, any engineers' reports,
environmental surveys, internal final valuations or other information relevant
thereto which support such determination. If the Trustee or the Fiscal Agent, as
applicable, determines at any time that any portion of an Advance previously
made or a portion of a proposed Advance that the Trustee or the Fiscal Agent, as
applicable, is required to make pursuant to this Agreement, if made, would
constitute a Nonrecoverable Advance, such determination shall be evidenced by an
Officer's Certificate of a Responsible Officer of the Trustee or the Fiscal
Agent, as applicable, delivered to the Depositor, the Master Servicer, the
Special Servicer, the Paying Agent and the Operating Adviser (or the Lakeforest
Mall Mortgage Loan Operating Adviser with respect only to the Lakeforest Mall
Mortgage Loan) similar to the Officer's Certificate of the Master Servicer or
the Special Servicer described in the prior sentence. If the Special Servicer
determines at any time that any portion of an Advance previously made would
constitute a Nonrecoverable Advance, such determination shall be evidenced by an
Officer's Certificate of a Responsible Officer of the Special Servicer,
delivered to the Depositor, the Master Servicer, the Trustee, the Fiscal Agent,
the Paying Agent and the Operating Adviser (or the Lakeforest Mall Mortgage Loan
Operating Adviser with respect only to the Lakeforest Mall Mortgage Loan)
similar to the Officer's Certificate of the Master Servicer described above. The
Trustee and the Fiscal Agent shall not be required to make an Advance that the
Master Servicer or the Special Servicer (or with respect to a Mortgage Loan
included in a Loan Pair or any Non-Serviced Mortgage Loan, the related Other
Master Servicer) has previously determined to be a Nonrecoverable Advance.
Notwithstanding any other provision of this Agreement, none of the Master
Servicer, the Special Servicer, the Trustee or the Fiscal Agent shall be
obligated to, nor shall it, make any Advance or make any payment that is
designated in this Agreement to be an Advance, if it determines in its good
faith judgment that such Advance or such payment (including interest accrued
thereon at the Advance Rate) would be a Nonrecoverable Advance. The Master
Servicer's determination in accordance with the above provisions shall be
conclusive and binding on the Trustee, the Fiscal Agent, the Paying Agent and
the Certificateholders. The Master Servicer shall consider Unliquidated Advances
in respect of prior P&I Advances and Servicing Advances as outstanding Advances
for purposes of nonrecoverablility determinations as if such Unliquidated
Advance were a P&I Advance or Servicing Advance, as applicable.
(b) Any Non-Serviced Mortgage Loan Master Servicer, Non-Serviced
Mortgage Loan Trustee or Non-Serviced Mortgage Loan Fiscal Agent, as applicable,
shall be entitled to reimbursement for Pari Passu Loan Nonrecoverable Advances
pursuant to and to the extent set forth in the related Non-Serviced Mortgage
Loan Intercreditor Agreement (with, in each case, any accrued and unpaid
interest thereon provided for under the related Non-Serviced Mortgage Loan
Pooling and Servicing Agreement) in the manner set forth in Section 5.2.
SECTION 4.5 INTEREST ON ADVANCES; CALCULATION OF OUTSTANDING ADVANCES
WITH RESPECT TO A MORTGAGE LOAN. Any unreimbursed Advance funded from the Master
Servicer's, the Special Servicer's, the Trustee's or the Fiscal Agent's own
funds shall accrue interest on a daily basis, at a per annum rate equal to the
Advance Rate, from and including the date such Advance was made to but not
including the date on which such Advance has been reimbursed; provided, however,
that neither the Master Servicer nor any other party shall be entitled to
interest accrued on the amount of any P&I Advance with respect to any Mortgage
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Loan or any B Note for the period commencing on the date of such P&I Advance and
ending on the day on which the grace period applicable to the related
Mortgagor's obligation to make the related Scheduled Payment expires pursuant to
the related Mortgage Loan or B Note documents. All Late Collections on any
Non-Serviced Mortgage Loan in respect of interest shall, promptly following
receipt thereof, be applied by the Master Servicer to reimburse the interest
component of any P&I Advance outstanding with respect to such Non-Serviced
Mortgage Loan. Any party that makes a P&I Advance with respect to any
Non-Serviced Mortgage Loan shall provide to the applicable Non-Serviced Mortgage
Loan Master Servicer monthly, at least two Business Days prior to the next
succeeding Due Date for such Non-Serviced Mortgage Loan, written notice of
whether (and, if any, how much) Advance Interest will be payable on the interest
component of that P&I Advance through the next succeeding related Master
Servicer Remittance Date. For purposes of determining whether a P&I Advance is
outstanding, amounts collected with respect to a particular Mortgage Loan, B
Note or REO Property and treated as collections of principal or interest shall
be applied first to reimburse the earliest P&I Advance, and then each succeeding
P&I Advance to the extent not inconsistent with Section 4.6. The Master Servicer
shall use efforts consistent with the Servicing Standard to collect (but shall
have no further obligation to collect), with respect to the Mortgage Loans (and
the Serviced Companion Mortgage Loans) that are not Specially Serviced Mortgage
Loans, Late Fees and default interest from the Mortgagor in an amount sufficient
to pay Advance Interest. The Master Servicer shall be entitled to retain Late
Fees and default interest paid by any Mortgagor during a Collection Period with
respect to any Mortgage Loan (other than the portion of such Late Fee and
default interest that relates to the period commencing after the Servicing
Transfer Event in respect of a Specially Serviced Mortgage Loan, as to which the
Special Servicer shall retain Late Fees and default interest with respect to
such Specially Serviced Mortgage Loan, subject to the offsets set forth below)
as additional servicing compensation only to the extent such Late Fees and
default interest exceed Advance Interest on a "pool basis" for all Mortgage
Loans other than Specially Serviced Mortgage Loans. The Special Servicer, with
respect to any Specially Serviced Mortgage Loan, shall (i) pay from any Late
Fees and default interest collected from such Specially Serviced Mortgage Loan
(a) any outstanding and unpaid Advance Interest in respect of such Specially
Serviced Mortgage Loan to the Master Servicer, the Trustee or the Fiscal Agent,
as applicable and (b) to the Trust, any losses previously incurred by the Trust
with respect to such Specially Serviced Mortgage Loan and (ii) retain any
remaining portion of such Late Fees and default interest as additional Special
Servicer Compensation.
SECTION 4.6 REIMBURSEMENT OF ADVANCES AND ADVANCE INTEREST.
(a) Advances made with respect to each Mortgage Loan, Serviced
Companion Mortgage Loan, B Note, Specially Serviced Mortgage Loan or REO
Property (including Advances later determined to be Nonrecoverable Advances) and
Advance Interest thereon shall be reimbursed to the extent of the amounts
identified to be applied therefor in Section 5.2. The aggregate of the amounts
available to repay Advances and Advance Interest thereon pursuant to Section 5.2
collected in any Collection Period with respect to Mortgage Loans, any Serviced
Companion Mortgage Loan or any B Note or Specially Serviced Mortgage Loans or
REO Property shall be an "Available Advance Reimbursement Amount."
(b) To the extent that Advances have been made on the Mortgage Loans,
any Serviced Companion Mortgage Loan, any B Note, any Specially Serviced
Mortgage Loans or
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any REO Mortgage Loans, the Available Advance Reimbursement Amount with respect
to any Determination Date shall be applied to reimburse (i) the Fiscal Agent for
any Advances outstanding to the Fiscal Agent with respect to any of such
Mortgage Loans, Serviced Companion Mortgage Loan, B Note, Specially Serviced
Mortgage Loans or REO Mortgage Loans, plus any Advance Interest owed to the
Fiscal Agent with respect to such Advances and then (ii) the Trustee for any
Advances outstanding to the Trustee with respect to any of such Mortgage Loans,
Serviced Companion Mortgage Loan, B Note, Specially Serviced Mortgage Loans or
REO Mortgage Loans, plus any Advance Interest owed to the Trustee with respect
to such Advances and then (iii) the Master Servicer for any Advances outstanding
to the Master Servicer with respect to any of such Mortgage Loans, Serviced
Companion Mortgage Loan, B Note, Specially Serviced Mortgage Loans or REO
Mortgage Loans, plus any Advance Interest owed to the Master Servicer with
respect to such Advances and then (iv) the Special Servicer for any Advances
outstanding to the Special Servicer with respect to any of such Mortgage Loans,
Serviced Companion Mortgage Loan, B Note, Specially Serviced Mortgage Loans or
REO Mortgage Loans, plus any Advance Interest owed to the Special Servicer with
respect to such Advances. To the extent that any Advance Interest payable to the
Master Servicer, the Special Servicer, the Trustee or the Fiscal Agent with
respect to a Specially Serviced Mortgage Loan or REO Mortgage Loan cannot be
recovered from the related Mortgagor, the amount of such Advance Interest shall
be payable to the Fiscal Agent, the Trustee, the Special Servicer or the Master
Servicer, as the case may be, from amounts on deposit in the Certificate Account
(or sub-account thereof) or the Distribution Account, to the extent of amounts
identified to be applied therefor, pursuant to Section 5.2(a) or Section
5.3(b)(ii). The Master Servicer's, the Special Servicer's, the Fiscal Agent's
and the Trustee's right of reimbursement under this Agreement for Advances shall
be prior to the rights of the Certificateholders (and, in the case of a Serviced
Companion Mortgage Loan, the holder thereof and, in the case of a B Note, the
holder thereof) to receive any amounts recovered with respect to such Mortgage
Loans, Serviced Companion Mortgage Loans, B Notes or REO Mortgage Loans.
(c) Advance Interest will be paid to the Fiscal Agent, the Trustee,
the Master Servicer and/or the Special Servicer (in accordance with the
priorities specified in the preceding paragraph) first, from Late Fees and
default interest collected from the Mortgage Loans during the Collection Period
during which the related Advance is reimbursed, and then from Excess Liquidation
Proceeds then available prior to payment from any other amounts. Late Fees and
default interest will be applied on a "pool basis" for non-Specially Serviced
Mortgage Loans and on a "loan-by-loan basis" (under which Late Fees and default
interest will be offset against the Advance Interest arising only from that
particular Specially Serviced Mortgage Loan) for Specially Serviced Mortgage
Loans, as the case may be, to the payment of Advance Interest on all Advances on
such non-Specially Serviced Mortgage Loans or such Specially Serviced Mortgage
Loans, as the case may be, then being reimbursed. Advance Interest payable to
the Master Servicer, the Special Servicer, the Fiscal Agent or the Trustee in
respect of Servicing Advances on any Loan Pair shall be allocated to the
Serviced Pari Passu Mortgage Loan and the Serviced Companion Mortgage Loan on a
pro rata basis based upon the Principal Balance thereof.
(d) Amounts applied to reimburse Advances shall first be applied to
reduce Advance Interest thereon that was not paid from amounts specified in the
preceding paragraph (c) and then to reduce the outstanding amount of such
Advances.
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(e) To the extent that the Special Servicer incurs out-of-pocket
expenses, in accordance with the Servicing Standard, in connection with
servicing Specially Serviced Mortgage Loans, the Master Servicer shall reimburse
the Special Servicer for such expenditures within 30 days after receiving an
invoice and a report from the Special Servicer, subject to Section 4.4. With
respect to each Collection Period, the Special Servicer shall deliver such
invoice and report to the Master Servicer by the following Determination Date.
All such amounts reimbursed by the Master Servicer shall be a Servicing Advance,
subject to Section 4.4. In the event that the Master Servicer fails to reimburse
the Special Servicer hereunder or the Master Servicer determines that such
Servicing Advance was or, if made, would be a Nonrecoverable Advance and the
Master Servicer does not make such payment, the Special Servicer shall notify
the Master Servicer and the Paying Agent in writing of such nonpayment and the
amount payable to the Special Servicer and shall be entitled to receive
reimbursement from the Trust as an Additional Trust Expense. The Master
Servicer, the Paying Agent and the Trustee shall have no obligation to verify
the amount payable to the Special Servicer pursuant to this Section 4.6(e) and
circumstances surrounding the notice delivered by the Special Servicer pursuant
to this Section 4.6(e).
SECTION 4.7 FISCAL AGENT TERMINATION EVENT. "Fiscal Agent Termination
Event," wherever used herein, means any one of the following events:
(i) Any failure by the Fiscal Agent to remit to the Paying Agent
when due any required Advance for any Mortgage Loan; or
(ii) A decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law for the
appointment of a conservator, receiver, liquidator, trustee or similar official
in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings, or for the winding-up or liquidation of its
affairs, shall have been entered against the Fiscal Agent and such decree or
order shall have remained in force undischarged or unstayed for a period of 60
days; or
(iii) The Fiscal Agent shall consent to the appointment of a
conservator, receiver, liquidator, trustee or similar official in any
bankruptcy, insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings or relating to the Fiscal Agent or relating
to all or substantially all of its property; or
(iv) The Fiscal Agent 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
(v) Fitch has indicated its intent to reduce, qualify or
withdraw, as applicable, the outstanding rating of any Class of Certificates
because the prospective financial condition or capacity to make Advances of the
Fiscal Agent is insufficient to maintain such rating;
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(vi) The long-term unsecured debt of the Fiscal Agent is rated
below "AA-" by Fitch (or "A+" by Fitch if the Fiscal Agent's short-term
unsecured debt is rated at least "F-1" by Fitch) or "Aa3" by Xxxxx'x, unless
such other rating shall be acceptable to the Rating Agencies as evidenced by a
Rating Agency Confirmation; or
(vii) With respect to the initial Fiscal Agent, LaSalle Bank
National Association resigns or is removed pursuant to Section 7.6 hereof.
SECTION 4.8 PROCEDURE UPON TERMINATION EVENT.
(a) On the date specified in a written notice of termination given to
the Fiscal Agent pursuant to Section 7.6(c), all authority, power and rights of
the Fiscal Agent under this Agreement, whether with respect to the Mortgage
Loans or otherwise, shall terminate and a successor Fiscal Agent, if necessary,
shall be appointed by the Trustee, with the consent of the Depositor; provided
that the successor Fiscal Agent meets the eligibility requirements set forth in
Section 7.5. The Fiscal Agent agrees to cooperate with the Trustee in effecting
the termination of the Fiscal Agent's responsibilities and rights hereunder as
Fiscal Agent.
(b) Notwithstanding the termination of its activities as Fiscal Agent,
the terminated Fiscal Agent shall continue to be entitled to reimbursement to
the extent provided in Section 4.6 but only to the extent such reimbursement
relates to the period up to and including the date on which the Fiscal Agent's
termination is effective. The Fiscal Agent shall be reimbursed for all amounts
owed to it hereunder on or prior to the effective date of its termination from
amounts on deposit in the Certificate Account.
SECTION 4.9 MERGER OR CONSOLIDATION OF FISCAL AGENT. Any Person into
which the Fiscal Agent may be merged or consolidated, or any Person resulting
from any merger, conversion, other change in form or consolidation to which the
Fiscal Agent shall be a party, or any Person succeeding to the business of the
Fiscal Agent, shall be the successor of the Fiscal Agent hereunder, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding; provided that
(i) the successor to the Fiscal Agent or resulting Person shall have a net worth
of not less than $100,000,000, (ii) such successor or resulting Person shall be
satisfactory to the Trustee, (iii) such successor or resulting Person shall
execute and deliver to the Trustee an agreement, in form and substance
satisfactory to the Trustee, which contains an assumption by such Person of the
due and punctual performance and observance of each covenant and condition to be
performed or observed by the Fiscal Agent under this Agreement from and after
the date of such agreement, (iv) the successor or surviving entity meets the
eligibility requirements set forth in Section 7.5, and (v) the Fiscal Agent
shall deliver to the Trustee an Officer's Certificate and an Opinion of Counsel
acceptable to the Trustee (which opinion shall be at the expense of the Fiscal
Agent) stating that all conditions precedent to such action under this Section
4.9 have been completed and such action is permitted by and complies with the
terms of this Section 4.9.
SECTION 4.10 LIMITATION ON LIABILITY OF THE FISCAL AGENT AND OTHERS.
Neither the Fiscal Agent nor any of the directors, officers, employees, agents
or Controlling Persons of the Fiscal Agent shall be under any liability to the
Certificateholders, the Depositor or the Trustee for any action taken or for
refraining from the taking of any action in good faith, and
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using reasonable business judgment pursuant to this Agreement, or for errors in
judgment; provided that this provision shall not protect the Fiscal Agent or any
such Person against any liability which would otherwise be imposed by reason of
willful misfeasance, bad faith or negligence in its performance of duties under
this Agreement. The Fiscal Agent and any director, officer, employee or agent of
the Fiscal Agent may rely in good faith on any document of any kind prima facie
properly executed and submitted by any Person respecting any matters arising
hereunder. The Fiscal Agent shall not be under any obligation to appear in,
prosecute or defend any legal action which is not incidental to its obligations
under this Agreement. In such event, all legal expenses and costs of such action
shall be expenses and costs of the Trust, and the Fiscal Agent shall be entitled
to be reimbursed therefor as Servicing Advances as provided by this Agreement.
The provisions of this Section 4.10 shall survive the resignation or removal of
the Fiscal Agent and the termination of this Agreement.
SECTION 4.11 INDEMNIFICATION OF FISCAL AGENT. The Fiscal Agent and
each of its directors, officers, employees, agents and Controlling Persons shall
be indemnified by the Trust and held harmless against any and all claims,
losses, penalties, fines, forfeitures, legal fees and related costs, judgments
and any other costs, liabilities, fees and expenses incurred in connection with
any legal action relating to this Agreement other than any loss, liability or
expense incurred by reason of the Fiscal Agent's willful misfeasance, bad faith
or negligence in the performance of its duties hereunder. The Depositor shall
indemnify and hold harmless the Fiscal Agent, its directors, officers,
employees, agents or Controlling Persons from and against any loss, claim,
damage or liability, joint or several, and any action in respect thereof, to
which the Fiscal Agent, its directors, officers, employees, agents or
Controlling Person may become subject under the 1933 Act, insofar as such loss,
claim, damage, liability or action arises out of, or is based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Private Placement Memorandum, Preliminary Prospectus Supplement, Final
Prospectus Supplement or Prospectus or arises out of, or is based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein in light of the
circumstances under which they were made, not misleading and shall reimburse the
Fiscal Agent, its directors, officers, employees, agents or Controlling Person
for any legal and other expenses reasonably incurred by the Fiscal Agent or any
such director, officer, employee, agent or Controlling Person in investigating
or defending or preparing to defend against any such loss, claim, damage,
liability or action. The Fiscal Agent shall immediately notify the Depositor,
the Sellers, the Paying Agent, the Special Servicer, the Master Servicer and the
Trustee if a claim is made by a third party with respect to this Section 4.11
entitling the Fiscal Agent, its directors, officers, employees, agents or
Controlling Person to indemnification hereunder, whereupon the Depositor shall
assume the defense of any such claim (with counsel reasonably satisfactory to
the Fiscal Agent) and pay all expenses in connection therewith, including
counsel fees, and promptly pay, discharge and satisfy any judgment or decree
which may be entered against it or them in respect of such claim. Any failure to
so notify the Depositor shall not affect any rights the Fiscal Agent, its
directors, officers, employees, agents or Controlling Person may have to
indemnification under this Section 4.11, unless the Depositor's defense of such
claim is materially prejudiced thereby. The indemnification provided herein
shall survive the termination of this Agreement and the resignation or removal
of the Fiscal Agent.
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ARTICLE V
ADMINISTRATION OF THE TRUST
SECTION 5.1 COLLECTIONS.
(a) On or prior to the Closing Date, the Master Servicer shall open,
or cause to be opened, and shall thereafter maintain, or cause to be maintained,
a separate account or accounts, which accounts must be Eligible Accounts, in the
name of "Xxxxx Fargo Bank, National Association, as Master Servicer for LaSalle
Bank National Association, as Trustee for the Holders of Bear Xxxxxxx Commercial
Mortgage Securities Inc., Commercial Mortgage Pass-Through Certificates, Series
2005-TOP20" (the "Certificate Account"). On or prior to the Closing Date, the
Master Servicer shall open, or cause to be opened, and shall maintain, or cause
to be maintained an additional separate account or accounts in the name of
"Xxxxx Fargo Bank, National Association, as Master Servicer for LaSalle Bank
National Association, as Trustee for the Holders of Bear Xxxxxxx Commercial
Mortgage Securities Inc., Commercial Mortgage Pass-Through Certificates, Series
2005-TOP20" (the "Interest Reserve Account").
(b) On or prior to the date the Master Servicer shall first deposit
funds in a Certificate Account or the Interest Reserve Account, as the case may
be, the Master Servicer shall give to the Paying Agent and the Trustee prior
written notice of the name and address of the depository institution(s) at which
such accounts are maintained and the account number of such accounts. The Master
Servicer shall take such actions as are necessary to cause the depository
institution holding the Certificate Account and the Interest Reserve Account to
hold such account in the name of the Master Servicer as provided in Section
5.1(a), subject to the Master Servicer's (or its Primary Servicer's or its
Sub-Servicer's) right to direct payments and investments and its rights of
withdrawal under this Agreement.
(c) On the Closing Date, the Master Servicer shall deposit the Initial
Deposit delivered to it by the Depositor on that date into the Certificate
Account. The Master Servicer shall deposit, or cause to be deposited, into the
Certificate Account on the Business Day following receipt (or, in the case of an
inadvertent failure to make such deposit on the Business Day following receipt,
within 3 Business Days of discovery of such failure and in the case of
unscheduled remittances of principal or interest, on the Business Day following
identification of the proper application of such amounts), the following amounts
received by it (including amounts remitted to the Master Servicer by the Special
Servicer from an REO Account pursuant to Section 9.14), other than in respect of
interest and principal on the Mortgage Loans, any Serviced Companion Mortgage
Loan or any B Note due on or before the Cut-Off Date which shall be remitted to
the Depositor (provided that the Master Servicer (I) may retain amounts
otherwise payable to the Master Servicer as provided in Section 5.2(a) rather
than deposit them into the Certificate Account, (II) shall, rather than deposit
them in the Certificate Account, directly remit to the Primary Servicer the
Primary Servicing Fees payable as provided in Section 5.2(a)(iv)(unless already
retained by the Primary Servicer), and (III) shall, rather than deposit them in
the Certificate Account, directly remit the Excess Servicing Fees to the holders
thereof as provided in Section 5.2(a)(iv))(unless already retained by the
applicable holder of the excess servicing rights)):
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(A) Principal: all payments on account of principal, including
Principal Prepayments, the principal component of Scheduled Payments,
and any Late Collections in respect thereof, on the Mortgage Loans,
any Serviced Companion Mortgage Loan and any B Note;
(B) Interest: subject to subsection (d) hereof, all payments on
account of interest on the Mortgage Loans, any Serviced Companion
Mortgage Loan and any B Note (minus any portion of any such payment
that is allocable to the period prior to the Cut-Off Date which shall
be remitted to the Depositor and excluding Interest Reserve Amounts to
be deposited in the Interest Reserve Account pursuant to Section
5.1(d) below);
(C) Liquidation Proceeds: all Liquidation Proceeds with respect
to the Mortgage Loans, any Serviced Companion Mortgage Loan and any B
Note;
(D) Insurance Proceeds: all Insurance Proceeds other than
proceeds to be applied to the restoration or repair of the property
subject to the related Mortgage or released to the related Mortgagor
in accordance with the Servicing Standard, which proceeds shall be
deposited by the Master Servicer into an Escrow Account and not
deposited in the Certificate Account;
(E) Condemnation Proceeds: all Condemnation Proceeds other than
proceeds to be applied to the restoration or repair of the property
subject to the related Mortgage or released to the related Mortgagor
in accordance with the Servicing Standard, which proceeds shall be
deposited by the Master Servicer into an Escrow Account and not
deposited in the Certificate Account;
(F) REO Income: all REO Income received from the Special
Servicer;
(G) Investment Losses: any amounts required to be deposited by
the Master Servicer pursuant to Section 5.1(e) in connection with
losses realized on Eligible Investments with respect to funds held in
the Certificate Account and amounts required to be deposited by the
Special Servicer pursuant to Section 9.14(b) in connection with losses
realized on Eligible Investments with respect to funds held in the REO
Account;
(H) Advances: all P&I Advances unless made directly to the
Distribution Account;
(I) Other: all other amounts, including Prepayment Premiums,
required to be deposited in the Certificate Account pursuant to this
Agreement, including Purchase Proceeds of any Mortgage Loans
repurchased by a Seller or substitution shortfall amounts (as
described in the fifth paragraph of Section 2.3(a)) paid by a Seller
in connection with the substitution of any Qualifying Substitute
Mortgage Loans, payments or recoveries in respect of Unliquidated
Advances or in respect of Nonrecoverable Advances paid from principal
collections on the Mortgage Loan pursuant Section 5.2(a)(II), any
other amounts received with respect to any Serviced Companion Mortgage
Loan and with
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respect to any B Note, all other amounts received pursuant to the cure
and purchase rights set forth in the applicable Intercreditor
Agreement; and
(J) to the extent not otherwise set forth above, all amounts
received from each Non-Serviced Mortgage Loan Master Servicer,
Non-Serviced Mortgage Loan Special Servicer or Non-Serviced Mortgage
Loan Trustee pursuant to the related Non-Serviced Mortgage Loan
Pooling and Servicing Agreement and Non-Serviced Mortgage Loan
Intercreditor Agreement.
With respect to any A/B Mortgage Loan, the Master Servicer shall
establish and maintain one or more sub-accounts of the Certificate Account (each
an "A/B Loan Custodial Account") into which the Master Servicer shall deposit
any amounts described above that are required to be paid to the holder of the
related B Note pursuant to the terms of the related Intercreditor Agreement, in
each case on the same day as the deposit thereof into the Certificate Account.
Any A/B Loan Custodial Account shall be held in trust for the benefit of the
holder of the related B Note and shall not be part of any REMIC Pool.
With respect to any Loan Pair, the Master Servicer shall establish and
maintain one or more sub-accounts of the Certificate Account (each, a "Serviced
Companion Mortgage Loan Custodial Account") into which the Master Servicer shall
deposit any amounts described above that are required to be paid to the holder
of the related Serviced Companion Mortgage Loan pursuant to the terms of the
related Loan Pair Intercreditor Agreement (or with respect to a Joint Mortgage
Loan treated as a Loan Pair in accordance with Section 8.32 hereof, the
applicable Mortgage Loan documents), in each case on the same day as the deposit
thereof into the Certificate Account. Each Serviced Companion Mortgage Loan
Custodial Account shall be held in trust for the benefit of the holder of the
related Serviced Companion Mortgage Loan and shall not be part of any REMIC
Pool.
Remittances from any REO Account to the Master Servicer for deposit in
the Certificate Account shall be made by the Special Servicer no later than the
Special Servicer Remittance Date.
(d) The Master Servicer, with respect to each Distribution Date
occurring in January (other than in any leap year) and February of each year,
shall deposit in the Interest Reserve Account in respect of each Interest
Reserve Loan (or in the case of the Lakeforest Mall Mortgage Loan, the
Lakeforest Mall Mortgage Loan Pooled Component), an amount equal to one day's
interest at the related REMIC I Net Mortgage Rate (without any conversion to a
30/360 basis as provided in the definition thereof) on the Scheduled Principal
Balance of such Mortgage Loan (or in the case of the Lakeforest Mall Mortgage
Loan, the Lakeforest Mall Mortgage Loan Pooled Balance) as of the Due Date in
the month in which such Distribution Date occurs, to the extent a Scheduled
Payment or P&I Advance is timely made in respect thereof for such Due Date (all
amounts so deposited in any consecutive January and February in respect of each
Interest Reserve Loan, the "Interest Reserve Amount"). For purposes of
determining amounts to be deposited into the Interest Reserve Account, the REMIC
I Net Mortgage Rate used in this calculation for those months will be calculated
without regard to any adjustment for Interest Reserve Amounts or the interest
accrual basis as described in the proviso to the definition of "REMIC I Net
Mortgage Rate."
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(e) Funds in the Certificate Account (including any A/B Loan Custodial
Accounts and Serviced Companion Mortgage Loan Custodial Accounts) and Interest
Reserve Account may be invested and, if invested, shall be invested by, and at
the risk of, the Master Servicer in Eligible Investments selected by the Master
Servicer which shall mature, unless payable on demand, not later than the
Business Day immediately preceding the next Master Servicer Remittance Date, and
any such Eligible Investment shall not be sold or disposed of prior to its
maturity unless payable on demand. All such Eligible Investments shall be made
in the name of "LaSalle Bank National Association, as Trustee for the Holders of
the Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 2005-TOP20 and the holder of any related
Serviced Companion Mortgage Loan or B Note as their interests may appear." None
of the Depositor, the Mortgagors, the Paying Agent or the Trustee shall be
liable for any loss incurred on such Eligible Investments.
An amount equal to all income and gain realized from any such
investment shall be paid to the Master Servicer as additional servicing
compensation and shall be subject to its withdrawal at any time from time to
time. The amount of any losses incurred in respect of any such investments shall
be for the account of the Master Servicer which shall deposit the amount of such
loss (to the extent not offset by income from other investments) in the
Certificate Account (and, solely to the extent that the loss is of an amount
credited to an A/B Loan Custodial Account or Serviced Companion Mortgage Loan
Custodial Account, deposit to the related A/B Loan Custodial Account or Serviced
Companion Mortgage Loan Custodial Account, as the case may be) or Interest
Reserve Account, as the case may be, out of its own funds immediately as
realized. If the Master Servicer deposits in or transfers to the Certificate
Account, any A/B Loan Custodial Account, any Serviced Companion Mortgage Loan
Custodial Account or the Interest Reserve Account, as the case may be, any
amount not required to be deposited therein or transferred thereto, it may at
any time withdraw such amount or retransfer such amount from the Certificate
Account, such A/B Loan Custodial Account, such Serviced Companion Mortgage Loan
Custodial Account or the Interest Reserve Account, as the case may be, any
provision herein to the contrary notwithstanding.
(f) Except as expressly provided otherwise in this Agreement, if any
default occurs in the making of a payment due under any Eligible Investment, or
if a default occurs in any other performance required under any Eligible
Investment, the Paying Agent on behalf of and at the direction of the Trustee
may take such action as may be appropriate to enforce such payment or
performance, including the institution and prosecution of appropriate
proceedings; provided, however, that if the Master Servicer shall have deposited
in the Certificate Account, the related Serviced Companion Mortgage Loan
Custodial Account, the related A/B Loan Custodial Account or the Interest
Reserve Account, as applicable, an amount equal to all amounts due under any
such Eligible Investment (net of anticipated income or earnings thereon that
would have been payable to the Master Servicer as additional servicing
compensation) the Master Servicer shall have the sole right to enforce such
payment or performance.
(g) Certain of the Mortgage Loans may provide for payment by the
Mortgagor to the Master Servicer of amounts to be used for payment of Escrow
Amounts for the account of the Mortgagor. The Master Servicer shall deal with
these amounts in accordance with the Servicing Standard, the terms of the
related Mortgage Loans and Section 8.3(e) hereof, and the Primary Servicer will
be entitled to hold any Escrow Accounts relating to the Mortgage Loans
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that it services in accordance with the requirements set forth in Section
8.3(e). Within 20 days following the first anniversary of the Closing Date, the
Master Servicer shall deliver to the Trustee, the Paying Agent and the Operating
Adviser (or, to the extent applicable, the Lakeforest Mall Mortgage Loan
Operating Adviser with respect only to the Lakeforest Mall Mortgage Loan), for
each Mortgage Loan set forth on Schedule VII hereto, a brief statement as to the
status of the work or project based on the most recent information provided by
the Mortgagor. Schedule VII sets forth those Mortgage Loans as to which an
upfront reserve was collected at closing in an amount in excess of $75,000 with
respect to specific immediate engineering work, completion of additional
construction, environmental remediation or similar one-time projects (but not
with respect to escrow accounts maintained for ongoing obligations, such as real
estate taxes, insurance premiums, ongoing property maintenance, replacements and
capital improvements or debt service). If the work or project is not completed
in accordance with the requirements of the escrow, the Master Servicer and the
Special Servicer (which shall itself consult with the Operating Adviser (or the
Lakeforest Mall Mortgage Loan Operating Adviser with respect only to the
Lakeforest Mall Mortgage Loan)) will consult with each other as to whether there
exists a material default under the underlying Mortgage Loan documents.
(h) In the case of the Mortgage Loans set forth on Schedule XI, as to
which the Scheduled Payment is due in a calendar month on a Due Date (including
any grace period) that may occur after the end of the Collection Period ending
in such calendar month, the Master Servicer shall, unless the Scheduled Payment
is received before the end of such Collection Period, make a P&I Advance by
deposit to the Certificate Account on the Master Servicer Remittance Date in an
amount equal to the Scheduled Payment or the Assumed Scheduled Payment, as
applicable, and for purposes of the definition of "Available Distribution
Amount" and "Principal Distribution Amount," such Scheduled Payment or Assumed
Scheduled Payment, as applicable, shall be deemed to have been received in such
Collection Period.
SECTION 5.2 APPLICATION OF FUNDS IN THE CERTIFICATE ACCOUNT AND
INTEREST RESERVE ACCOUNT.
(a) Subsection (I). The Master Servicer shall, from time to time, make
withdrawals from the Certificate Account and remit them by wire transfer prior
to 12:00 p.m., New York City time, on the related Master Servicer Remittance
Date in immediately available funds to the account specified in this Section or
otherwise (w) to such account as it shall determine from time to time of amounts
payable to the Master Servicer from the Certificate Account (or, insofar as they
relate to a B Note, from the related A/B Loan Custodial Account or, insofar as
they relate to a Serviced Companion Mortgage Loan, from the related Serviced
Companion Mortgage Loan Custodial Account) pursuant to clauses (i), (ii), (iii),
(iv), (vi), (viii) and (ix) below; (x) to the account specified in writing by
the Paying Agent from time to time of amounts payable to the Paying Agent and
the Trustee from the Certificate Account (and, insofar as they relate to a B
Note, from the related A/B Loan Custodial Account and, insofar as they relate to
a Serviced Companion Mortgage Loan, from the Serviced Companion Mortgage Loan
Custodial Account) pursuant to clauses (ii), (iii), (v), (vi), (xi), (xii) and
(xiii) below; and (y) to the Special Servicer from time to time of amounts
payable to the Special Servicer from the Certificate Account (or, insofar as
they relate to a B Note, from the related A/B Loan Custodial Account or, insofar
as they relate to a Serviced Companion Mortgage Loan, from the related
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Serviced Companion Mortgage Loan Custodial Account) pursuant to clauses (i),
(iv), (vi), (vii) and (ix) below of the following amounts, from the amounts
specified for the following purposes:
(i) Fees: the Master Servicer shall pay (A) to itself Late Fees
(in excess of amounts used to pay Advance Interest) relating to Mortgage Loans,
Serviced Companion Mortgage Loans or B Notes which are not Specially Serviced
Mortgage Loans, Modification Fees relating to Mortgage Loans, Serviced Companion
Mortgage Loans or B Notes which are not Specially Serviced Mortgage Loans as
provided in Section 8.18, 50% of any assumption fees payable under Section
8.7(a) or 8.7(b), 100% of any extension fees payable under Section 8.10 or other
fees payable to the Master Servicer hereunder and (B) directly to the Special
Servicer, 50% of any assumption fees as provided in Section 8.7(a), 50% of any
assumption fees as provided in Section 8.7(b), all assumption fees relating to
Specially Serviced Mortgage Loans, Modification Fees and other fees collected on
Specially Serviced Mortgage Loans, in each case to the extent provided for
herein from funds paid by the applicable Mortgagor, and Late Fees and default
interest collected on any Specially Serviced Mortgage Loan in excess of Advance
Interest payable to the Master Servicer, the Trustee or the Fiscal Agent in
respect of such Specially Serviced Mortgage Loan (which Advance Interest the
Master Servicer shall retain or pay to the Trustee or the Fiscal Agent, as the
case may be, to the extent provided for in this Agreement) to the extent the
Special Servicer is entitled to such Late Fees and default interest under
Section 4.5;
(ii) Servicing Advances (including amounts later determined to be
Nonrecoverable Advances): (A) in the case of all Mortgage Loans, Serviced
Companion Mortgage Loans and B Notes, subject to clause (B) below and subsection
(iv) of Section 5.2(a)(II), to reimburse or pay to the Master Servicer, the
Special Servicer, the Trustee and the Fiscal Agent, pursuant to Section 4.6, (x)
prior to a Final Recovery Determination or determination in accordance with
Section 4.4 that any Advance is a Nonrecoverable Advance, Servicing Advances on
the related Mortgage Loan, Serviced Companion Mortgage Loan or B Note, as
applicable, from payments made by the related Mortgagor of the amounts to which
a Servicing Advance relates or from REO Income from the related REO Property or
from Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds or Purchase
Proceeds and, to the extent that a Servicing Advance has been or is being
reimbursed, any related Advance Interest thereon first, from Late Fees and
default interest collected during the Collection Period during which such
Advance is reimbursed, and then from Excess Liquidation Proceeds then available
and then from any other amounts on deposit in the Certificate Account; provided
that, Late Fees and default interest will be applied on a "pool basis" for
non-Specially Serviced Mortgage Loans (and any Serviced Companion Mortgage Loans
and B Notes that are not Specially Serviced Mortgage Loans) and on a
"loan-by-loan basis" (under which Late Fees and default interest will be offset
against the Advance Interest arising only from the particular Specially Serviced
Mortgage Loan) for Specially Serviced Mortgage Loans, as the case may be, to the
payment of Advance Interest on all Advances on such non-Specially Serviced
Mortgage Loans (and any Serviced Companion Mortgage Loan and B Notes that are
not Specially Serviced Mortgage Loans) or such Specially Serviced Mortgage
Loans, as the case may be, then being reimbursed or (y) after a Final Recovery
Determination or determination that any Servicing Advance on the related
Mortgage Loan, Serviced Companion Mortgage Loan or B Note is a Nonrecoverable
Advance, any Servicing Advances made on the related Mortgage Loan, related
Serviced Companion Mortgage Loan, related B Note or REO Property from any funds
on deposit
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in the Certificate Account (regardless of whether such amount was recovered from
the applicable Mortgage Loan, Serviced Companion Mortgage Loan, B Note or REO
Property) and pay Advance Interest thereon first, from Late Fees and default
interest collected during the Collection Period during which such Advance is
reimbursed (applying such Late Fees and default interest on a "pool basis" for
all non-Specially Serviced Mortgage Loans (and any Serviced Companion Mortgage
Loans and B Notes that are not Specially Serviced Mortgage Loans) and on a
"loan-by-loan basis", as described above, for all Specially Serviced Mortgage
Loans, as the case may be, to the payment of Advance Interest on all Advances on
such non-Specially Serviced Mortgage Loans (and any Serviced Companion Mortgage
Loans and B Notes that are not Specially Serviced Mortgage Loans) or such
Specially Serviced Mortgage Loans, as the case may be, then being reimbursed),
then from Excess Liquidation Proceeds then available and then from any other
amounts on deposit in the Certificate Account and (B) in the case of any
Non-Serviced Mortgage Loan and from any funds on deposit in the Certificate
Account, to reimburse the applicable Non-Serviced Mortgage Loan Master Servicer,
the applicable Non-Serviced Mortgage Loan Special Servicer, the applicable
Non-Serviced Mortgage Loan Trustee and the applicable Non-Serviced Mortgage Loan
Fiscal Agent for Pari Passu Loan Nonrecoverable Advances and any accrued and
unpaid interest thereon provided for under the related Non-Serviced Mortgage
Loan Intercreditor Agreement and Non-Serviced Mortgage Loan Pooling and
Servicing Agreement; notwithstanding the foregoing the Master Servicer shall be
entitled to make transfers from time to time of amounts allocated to the
Lakeforest Mall Mortage Loan Non-Pooled Component for the purpose of paying or
reimbursing the amounts in this clause (ii) but only insofar as the payment or
reimbursement described herein arises from or is related solely to the
Lakeforest Mall Loan Mortgage Loan;
(iii) P&I Advances (including amounts later to be determined to
be Nonrecoverable Advances): in the case of all Mortgage Loans, subject to
subsection (iv) of Section 5.2(a)(II), to reimburse or pay to the Master
Servicer, the Trustee and the Fiscal Agent, pursuant to Section 4.6, (x) if
prior to a Final Recovery Determination or determination that any Advance is a
Nonrecoverable Advance, any P&I Advances from Late Collections made by the
Mortgagor of the amounts to which a P&I Advance relates, or REO Income from the
related REO Property or from Liquidation Proceeds, Condemnation Proceeds,
Insurance Proceeds or Purchase Proceeds and, to the extent that a P&I Advance
has been or is being reimbursed, any related Advance Interest thereon, first,
from Late Fees and default interest collected during the Collection Period
during which such Advance is reimbursed, and then from Excess Liquidation
Proceeds then available and then from any other amounts on deposit in the
Certificate Account; provided that, Late Fees and default interest will be
applied on a "pool basis" for non-Specially Serviced Mortgage Loans and on a
"loan-by-loan basis" (under which Late Fees and default interest will be offset
against the Advance Interest arising only from the particular Specially Serviced
Mortgage Loan) for Specially Serviced Mortgage Loans, as the case may be, to the
payment of Advance Interest on all Advances on such non-Specially Serviced
Mortgage Loans or such Specially Serviced Mortgage Loans, as the case may be,
then being reimbursed or (y) if after a Final Recovery Determination or
determination in accordance with Section 4.4 that any P&I Advance on the related
Mortgage Loan is a Nonrecoverable Advance, any P&I Advances made on the related
Mortgage Loan or REO Property from funds on deposit in the Certificate Account
(regardless of whether such amount was recovered from the applicable Mortgage
Loan or REO Property) and any Advance Interest thereon, first, from Late Fees
and default interest collected during the Collection Period during which such
Advance is reimbursed (applying such
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Late Fees and default interest on a "pool basis" for all non-Specially Serviced
Mortgage Loans and on a "loan-by-loan basis", as described above, for all
Specially Serviced Mortgage Loans, as the case may be, to the payment of Advance
Interest on all Advances on such non-Specially Serviced Mortgage Loans or such
Specially Serviced Mortgage Loans, as the case may be, then being reimbursed),
then from Excess Liquidation Proceeds then available and then from any other
amounts on deposit in the Certificate Account; notwithstanding the foregoing the
Master Servicer shall be entitled to make transfers from time to time of amounts
allocated to the Lakeforest Mall Mortage Loan Non-Pooled Component for the
purpose of paying or reimbursing the amounts in this clause (iii) but only
insofar as the payment or reimbursement described herein arises from or is
related solely to the Lakeforest Mall Loan Mortgage Loan;
(iv) Servicing Fees and Special Servicer Compensation: to pay to
itself the Master Servicing Fee, subject to reduction for any Compensating
Interest, to pay to the Special Servicer the Special Servicing Fee and the
Work-Out Fee, to pay to the Primary Servicer (or the Master Servicer) the
Primary Servicing Fees, and to pay to the parties entitled thereto the Excess
Servicing Fees (to the extent not previously retained by any of such parties);
(v) Trustee Fee and Paying Agent Fee: to pay to the Distribution
Account for withdrawal by the Paying Agent, the Paying Agent Fee and the Trustee
Fee;
(vi) Expenses of Trust: to pay to the Person entitled thereto any
amounts specified herein to be Additional Trust Expenses (at the time set forth
herein or in the definition thereof), and any other amounts that in fact
constitute Additional Trust Expenses whose payment is not more specifically
provided for in this Agreement; provided that the Depositor shall not be
entitled to receive reimbursement for performing its duties under this
Agreement;
(vii) Liquidation Fees: upon the occurrence of a Final Recovery
Determination to pay to the Special Servicer from the Certificate Account, the
amount certified by the Special Servicer equal to the Liquidation Fee, to the
extent provided in Section 9.11 hereof;
(viii) Investment Income: to pay to itself income and gain
realized on the investment of funds deposited in the Certificate Account
(including any A/B Loan Custodial Accounts and Serviced Companion Mortgage Loan
Custodial Accounts);
(ix) Prepayment Interest Excesses: to pay to the Master Servicer
the amount of the aggregate Prepayment Interest Excesses relating to Mortgage
Loans which are not Specially Serviced Mortgage Loans (to the extent not offset
by Prepayment Interest Shortfalls relating to such Mortgage Loans); and to pay
to the Special Servicer the amount of the aggregate Prepayment Interest Excesses
relating to Specially Serviced Mortgage Loans which have received voluntary
Principal Prepayments (not from Liquidation Proceeds or from modifications to
Specially Serviced Mortgage Loans), to the extent not offset by Prepayment
Interest Shortfalls relating to such Mortgage Loans.
(x) Correction of Errors: to withdraw funds deposited in the
Certificate Account in error;
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(xi) Distribution Account: to make payment on each Master
Servicer Remittance Date of the remaining amounts in the Certificate Account
(including any Excess Interest) to the Distribution Account (or in the case of
any Excess Interest, deposit to the Excess Interest Sub-account under Section
5.3(b)), other than amounts held for payment in future periods or pursuant to
clause (xii) below;
(xii) Reserve Account: to make payment on each Master Servicer
Remittance Date to the Reserve Account, any Excess Liquidation Proceeds (subject
to Section 4.6(c)); and
(xiii) Clear and Terminate: to clear and terminate the
Certificate Account pursuant to Section 8.29;
provided, however, that in the case of any B Note for which an A/B Loan
Custodial Account is required to be established by the Master Servicer:
(A) the Master Servicer shall be entitled to make transfers from
time to time, from the related A/B Loan Custodial Account to the
portion of the Certificate Account that does not constitute the A/B
Loan Custodial Account, of amounts necessary for the payments or
reimbursement of amounts described in any one or more of clauses (i),
(ii), (iii), (iv), (vi), (vii), (viii), (ix) and (xii) above, but only
insofar as the payment or reimbursement described therein arises from
or is related solely to such A/B Mortgage Loan and is allocable to the
A/B Mortgage Loan pursuant to this Agreement or the related
Intercreditor Agreement, and the Master Servicer shall also be
entitled to make transfers from time to time, from the related A/B
Loan Custodial Account to the portion of the Certificate Account that
does not constitute the A/B Loan Custodial Account, of amounts
transferred to such related A/B Loan Custodial Account in error, and
amounts necessary for the clearing and termination of the Certificate
Account pursuant to Section 8.29;
(B) the Master Servicer shall be entitled to make transfers from
time to time, from the related A/B Loan Custodial Account to the
portion of the Certificate Account that does not constitute the A/B
Loan Custodial Account, of amounts not otherwise described in clause
(A) above to which the holder of an A Note is entitled under the A/B
Mortgage Loan and the related Intercreditor Agreement (including in
respect of interest, principal and Prepayment Premiums in respect of
the A Note (whether or not by operation of any provision of the
related Intercreditor Agreement that entitles the holder of such A
Note to receive remittances in amounts calculated without regard to
any modification, waiver or amendment of the economic terms of such A
Note)); and
(C) the Master Servicer shall on each Master Servicer Remittance
Date remit to the holder of the related B Note all amounts on deposit
in such A/B Loan Custodial Account (net of amounts permitted or
required to be transferred therefrom as described in clauses (A)
and/or (B) above), to the extent that the holder of such B Note is
entitled thereto under the related Intercreditor Agreement (including
by way of the operation of any provision of the related Intercreditor
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Agreement that entitles the holder of such B Note to reimbursement of
cure payments made by it).
and provided further, however, that in the case of any Serviced Companion
Mortgage Loan:
(A) the Master Servicer shall be entitled to make transfers from
time to time, from the related Serviced Companion Mortgage Loan
Custodial Account to the portion of the Certificate Account that does
not constitute any Serviced Companion Mortgage Loan Custodial Account,
of amounts necessary for the payments or reimbursement of amounts
described in any one or more of clauses (i), (ii), (iii), (iv), (v),
(vi), (vii), (viii), (ix) and (xii) above, but only insofar as the
payment or reimbursement described therein arises from or is related
solely to such Loan Pair and is allocable to the Serviced Companion
Mortgage Loan, and the Master Servicer shall also be entitled to make
transfers from time to time, from the related Serviced Companion
Mortgage Loan Custodial Account to the portion of the Certificate
Account that does not constitute any Serviced Companion Mortgage Loan
Custodial Account, of amounts transferred to such related Serviced
Companion Mortgage Loan Custodial Account in error, and amounts
necessary for the clearing and termination of the Certificate Account
pursuant to Section 8.29; provided, however that the Master Servicer
shall not be entitled to make transfers from the portion of the
Certificate Account that does not constitute any Serviced Companion
Mortgage Loan Custodial Account (other than amounts previously
transferred from the related Serviced Companion Mortgage Loan
Custodial Account in accordance with this clause (A)) of amounts
necessary for the payment or reimbursement of amounts described in any
one or more of the foregoing clauses;
(B) the Master Servicer shall be entitled to make transfers from
time to time, from the related Serviced Companion Mortgage Loan
Custodial Account to the portion of the Certificate Account that does
not constitute any Serviced Companion Mortgage Loan Custodial Account,
of amounts not otherwise described in clause (A) above to which the
holder of a Serviced Pari Passu Mortgage Loan is entitled under the
related Loan Pair Intercreditor Agreement (including in respect of
interest, principal and Prepayment Premiums); and
(C) the Master Servicer shall, on either (x) the later of (i) one
(1) Business Day after the related Determination Date or (ii)
alternatively, but only if the related Serviced Companion Mortgage
Loan is primary serviced under the Primary Servicing Agreement, one
(1) Business Day after receipt from the Primary Servicer or (y) such
other date as may be agreed to between the Master Servicer and the
holder of the related Serviced Companion Mortgage Loan (in their
respective sole discretion), remit to the holder of the related
Serviced Companion Mortgage Loan all amounts on deposit in such
related Serviced Companion Mortgage Loan Custodial Account (net of
amounts permitted or required to be transferred therefrom as described
in clauses (A) and/or (B) above), to the extent that the holder of
such Serviced Companion Mortgage Loan is entitled thereto under the
related Loan Pair Intercreditor Agreement.
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No decision by the Master Servicer, the Trustee or the Fiscal Agent
under either this Section 5.2(a) or subsection (iv) of Section 5.2(a)(II), to
defer the reimbursement of Advances and/or Advance Interest shall be construed
as an agreement by the Master Servicer to subordinate (in respect of realizing
losses), to any Class of Certificates, such party's right to such reimbursement
during such period of deferral.
Expenses incurred with respect to any Loan Pair shall be allocated in
accordance with the related Loan Pair Intercreditor Agreement (or with respect
to a Joint Mortgage Loan treated as a Loan Pair in accordance with Section 8.32
hereof, the applicable Mortgage Loan documents). Expenses incurred with respect
to an A/B Mortgage Loan shall be allocated in accordance with the related
Intercreditor Agreement. The Master Servicer shall keep and maintain a separate
accounting for each Mortgage Loan, Serviced Companion Mortgage Loan and B Note
for the purpose of justifying any withdrawal or transfer from the Certificate
Account, each Serviced Companion Mortgage Loan Custodial Account and any A/B
Loan Custodial Account, as applicable. If funds collected in respect of the A
Notes are insufficient to pay the Master Servicing Fee, then the Master Servicer
shall be entitled to withdraw the amount of such shortfall from the collections
on, and other proceeds of, the B Note that are held in the related A/B Loan
Custodial Account. The Master Servicer shall not be permitted to withdraw any
funds from the portion of the Certificate Account that does not constitute the
A/B Loan Custodial Account unless there are no remaining funds in the related
A/B Loan Custodial Account available and required to be paid in accordance with
the related Intercreditor Agreement.
Subsection (II). The provisions of this subsection II of this Section
5.2(a) shall apply notwithstanding any contrary provision of subsection (I) of
this Section 5.2(a):
(i) Identification of Workout-Delayed Reimbursement Amounts. If
any Advance made with respect to any Mortgage Loan on or before the
date on which such Mortgage Loan becomes (or, but for the requirement
that the Mortgagor shall have made three consecutive scheduled
payments under its modified terms, would then constitute) a
Rehabilitated Mortgage Loan, together with Advance Interest accrued
thereon, is not, pursuant to the operation of the provisions of
Section 5.2(a)(I), reimbursed to the Person who made such Advance on
or before the date, if any, on which such Mortgage Loan becomes a
Rehabilitated Mortgage Loan, such Advance, together with such Advance
Interest, shall constitute a "Workout-Delayed Reimbursement Amount" to
the extent that such amount has not been determined to constitute a
Nonrecoverable Advance. All references herein to "Workout-Delayed
Reimbursement Amount" shall be construed always to mean the related
Advance and any Advance Interest thereon, together with any further
Advance Interest that accrues on the unreimbursed portion of such
Advance from time to time in accordance with the other provisions of
this Agreement. That any amount constitutes all or a portion of any
Workout-Delayed Reimbursement Amount shall not in any manner limit the
right of any Person hereunder to determine that such amount instead
constitutes a Nonrecoverable Advance.
(ii) General Relationship of Provisions. Subsection (iii) below
(subject to the terms and conditions thereof) sets forth the terms of
and conditions
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to the right of a Person to be reimbursed for any Workout-Delayed
Reimbursement Amount to the extent that such Person is not otherwise
entitled to reimbursement and payment of such Workout-Delayed
Reimbursement Amount pursuant to the operation of Section 5.2(a)(I)
above. Subsection (iv) below (subject to the terms and conditions
thereof) authorizes the Master Servicer to abstain from reimbursing
itself (or, if applicable, the Trustee or the Fiscal Agent to abstain
from obtaining reimbursement) for Nonrecoverable Advances under
certain circumstances at its sole option. Upon any determination that
all or any portion of a Workout-Delayed Reimbursement Amount
constitutes a Nonrecoverable Advance, then the reimbursement or
payment of such amount (and any further Advance Interest that may
accrue thereon) shall cease to be subject to the operation of
subsection (iii) below, such amount (and further Advance Interest)
shall be as fully payable and reimbursable to the relevant Person as
would any other Nonrecoverable Advance (and Advance Interest thereon)
and, as a Nonrecoverable Advance, such amount may become the subject
of the Master Servicer's (or, if applicable, the Trustee's or the
Fiscal Agent's) exercise of its sole option authorized by subsection
(iv) below.
(iii) Reimbursements of Workout-Delayed Reimbursement Amounts.
The Master Servicer, the Special Servicer, the Trustee and the Fiscal
Agent, as applicable, shall be entitled to reimbursement and payment
for all Workout-Delayed Reimbursement Amounts in each Collection
Period; provided, however, that the aggregate amount (for all such
Persons collectively) of such reimbursements and payments in such
Collection Period shall not exceed (and the reimbursement and payment
shall be made from) the aggregate amount in the Collection Account
allocable to principal received or advanced with respect to the
Mortgage Loans for such Collection Period contemplated by clause
(I)(A) of the definition of Principal Distribution Amount (but not
including any such amounts that constitute Advances) and net of any
Nonrecoverable Advances then outstanding and reimbursable from such
principal in accordance with Section 5.2(a)(II)(iv) below. As and to
the extent provided in clause (II)(A) of the definition thereof, the
Principal Distribution Amount for the Distribution Date related to
such Collection Period shall be reduced to the extent that such
payment or reimbursement of a Workout-Delayed Reimbursement Amount is
made from the aggregate amount in the Collection Account allocable to
principal pursuant to the preceding sentence.
(iv) Reimbursement of Nonrecoverable Advances; Sole Option to
Abstain from Reimbursements of Certain Nonrecoverable Advances. To the
extent that Section 5.2(a)(I) otherwise entitles the Master Servicer
to reimbursement for any Nonrecoverable Advance (or payment of Advance
Interest thereon from a source other than Late Fees and default
interest on the related Mortgage Loan) during any Collection Period,
then, notwithstanding any contrary provision of subsection (I) above,
(a) to the extent that one or more such reimbursements and payments of
Nonrecoverable Advances (and such Advance Interest thereon) are made,
such reimbursements and payments shall be made, first, from the
aggregate amount in the Collection Account allocable to principal
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received or advanced with respect to the Mortgage Loans for such
Collection Period contemplated by clause (I)(A) of the definition of
Principal Distribution Amount (but not including any such amounts that
constitute Advances, and prior to any deduction for Workout-Delayed
Reimbursement Amounts (and Advance Interest thereon) that were
reimbursed or paid during the related Collection Period from amounts
allocable to principal received with respect to the Mortgage Loans, as
described by clause (II)(A) of the definition of Principal
Distribution Amount and pursuant to subsection (iii) of Section
5.2(a)(II)), and then from other collections (including interest) on
the Mortgage Loans for such Collection Period, provided, that if
interest is used to reimburse such Nonrecoverable Advances, the party
entitled to such reimbursement shall notify the Rating Agencies at
least fifteen (15) days prior to such reimbursement, unless
circumstances exist that are extraordinary in the sole discretion of
such party, and (b) if and to the extent that the amount of such a
Nonrecoverable Advance (and Advance Interest thereon), together with
all Nonrecoverable Advances (and Advance Interest thereon) theretofore
reimbursed during such Collection Period, would exceed such principal
on the Mortgage Loans for such Collection Period (and Advance Interest
thereon), the Master Servicer (and the Trustee or the Fiscal Agent, as
applicable, if it made the relevant Advance) is hereby authorized (but
shall not be construed to have any obligation whatsoever), if it
elects at its sole option, to abstain from reimbursing itself
(notwithstanding that it is entitled to such reimbursement) during
that Collection Period for all or a portion of such Nonrecoverable
Advance (and Advance Interest thereon), provided that the aggregate
amount that is deferred with respect to all Nonrecoverable Advances
(and Advance Interest thereon) with respect to all Mortgage Loans for
any particular Collection Period is less than or equal to such excess
described above in this clause (b). If the Master Servicer (or the
Trustee or the Fiscal Agent, as applicable) makes such an election at
its sole option to defer reimbursement with respect to all or a
portion of a Nonrecoverable Advance (and Advance Interest thereon),
then such Nonrecoverable Advance (and Advance Interest thereon) or
portion thereof shall continue to be fully reimbursable in any
subsequent Collection Period to the same extent as set forth above. In
connection with a potential election by the Master Servicer to abstain
from the reimbursement of a particular Nonrecoverable Advance or
portion thereof during the Collection Period for any Distribution
Date, the Master Servicer (or the Trustee or the Fiscal Agent, as
applicable) shall further be authorized to wait for principal
collections to be received before making its determination of whether
to abstain from the reimbursement of a particular Nonrecoverable
Advance or portion thereof until the end of the Collection Period.
The reimbursements of Nonrecoverable Advances and Workout-Delayed
Reimbursement Amounts set forth in clauses (iii) and (iv) above shall take into
account the allocation of amounts described in the last sentence of the
definition of "Liquidation Realized Loss."
None of the Master Servicer, the Trustee or the Fiscal Agent
shall have any liability whatsoever for making an election, or refraining
from making an election,
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that is authorized under this subsection (II)(iv). The foregoing shall not,
however, be construed to limit any liability that may otherwise be imposed
on such Person for any failure by such Person to comply with the conditions
to making such an election under this subsection (II)(iv) or to comply with
the terms of this subsection (II)(iv) and the other provisions of this
Agreement that apply once such an election, if any, has been made.
Any election by the Master Servicer (or the Trustee or the Fiscal
Agent, as applicable) to abstain from reimbursing itself for any
Nonrecoverable Advance (and Advance Interest thereon) or portion thereof
with respect to any Collection Period shall not be construed to impose on
the Master Servicer (or the Trustee or the Fiscal Agent, as applicable) any
obligation to make such an election (or any entitlement in favor of any
Certificateholder or any other Person to such an election) with respect to
any subsequent Collection Period or to constitute a waiver or limitation on
the right of the Master Servicer (or the Trustee or the Fiscal Agent, as
applicable) to otherwise be reimbursed for such Nonrecoverable Advance (and
Advance Interest thereon). Any election by the Master Servicer, the Trustee
or the Fiscal Agent to abstain from reimbursing itself for any
Nonrecoverable Advance or portion thereof with respect to any one or more
Collection Periods shall not limit the accrual of Advance Interest on the
unreimbursed portion of such Nonrecoverable Advance for the period prior to
the actual reimbursement of such Nonrecoverable Advance. None of the Master
Servicer, the Trustee, the Fiscal Agent or the other parties to this
Agreement shall have any liability to one another or to any of the
Certificateholders or any holder of a B Note or Serviced Companion Mortgage
Loan for any such election that such party makes as contemplated by this
subsection or for any losses, damages or other adverse economic or other
effects that may arise from such an election. The foregoing statements in
this paragraph shall not limit the generality of the statements made in the
immediately preceding paragraph. Notwithstanding the foregoing, none of the
Master Servicer, the Trustee or the Fiscal Agent shall have the right to
abstain from reimbursing itself for any Nonrecoverable Advance to the
extent of the amount described in clause (I)(A) of the definition of
Principal Distribution Amount.
(v) Reimbursement Rights of the Master Servicer, Special
Servicer, Trustee and Fiscal Agent Are Senior. Nothing in this
Agreement shall be deemed to create in any Certificateholder a right
to prior payment of distributions over the Master Servicer's, the
Special Servicer's, the Trustee's or the Fiscal Agent's right to
reimbursement for Advances plus Advance Interest (whether those that
constitute Workout-Delayed Reimbursement Amounts, those that have been
the subject of the Master Servicer's election authorized in subsection
(iv) or otherwise).
(b) Scheduled Payments due in a Collection Period succeeding the
Collection Period relating to such Master Servicer Remittance Date, Principal
Prepayments received after the related Collection Period, or other amounts not
distributable on the related Distribution Date, shall be held in the Certificate
Account (or sub-account thereof) and shall be distributed on the Master Servicer
Remittance Date or Dates to which such succeeding Collection Period or Periods
relate, provided, however, that as to the Mortgage Loans set forth on Schedule
XI, for which the Scheduled Payment due each month is due on a Due Date
(including any grace period)
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that may occur after the end of the Collection Period in such month, sums
received by the Master Servicer with respect to such Scheduled Payment but after
the end of such Collection Period shall be applied by the Master Servicer to
reimburse any related P&I Advance made pursuant to Section 5.1(h), and the
Master Servicer shall remit to the Distribution Account on any Master Servicer
Remittance Date for a Collection Period any Principal Prepayments and Balloon
Payments received after the end of such Collection Period but no later than the
second Business Day immediately preceding such Master Servicer Remittance Date
on the Mortgage Loans set forth on Schedule XI. The Master Servicer shall use
its best efforts to remit to the Distribution Account on any Master Servicer
Remittance Date for a Collection Period any Balloon Payments received after the
date that is two Business Days immediately preceding the related Master Servicer
Remittance Date and prior to the Distribution Date. In connection with the
deposit of any Balloon Payments to the Distribution Account in accordance with
the immediately preceding sentence, the Master Servicer shall promptly notify
the Paying Agent and the Paying Agent shall, if it has already reported
anticipated distributions to the Depository, use commercially reasonable efforts
to cause the Depository to make the revised distribution on a timely basis on
such Distribution Date. Neither the Master Servicer nor the Paying Agent shall
be liable or held responsible for any resulting delay or failure in the making
of such distribution to Certificateholders. For purposes of the definition of
"Available Distribution Amount" and "Principal Distribution Amount," (i) the
Scheduled Payments relating to the Mortgage Loans set forth on Schedule XI that
are collected after the end of the related Collection Period and (ii) Principal
Prepayments and Balloon Payments relating to the Mortgage Loans set forth on
Schedule XI received after the end of the related Collection Period but prior to
the Master Servicer Remittance Date shall each be deemed to have been collected
in the prior Collection Period.
(c) On each Master Servicer Remittance Date in March of every year
commencing in March 2006, the Master Servicer shall withdraw all amounts then in
the Interest Reserve Account and deposit such amounts into the Distribution
Account.
SECTION 5.3 DISTRIBUTION ACCOUNT AND RESERVE ACCOUNT.
(a) The Paying Agent, on behalf of the Trustee shall establish (with
respect to clause (i), on or prior to the Closing Date, and with respect to
clause (ii), on or prior to the date the Paying Agent determines is necessary)
and maintain in its name, on behalf of the Trustee, (i) an account (the
"Distribution Account"), to be held in trust for the benefit of the Holders
until disbursed pursuant to the terms of this Agreement, titled: "Xxxxx Fargo
Bank, National Association, as Paying Agent on behalf of LaSalle Bank National
Association, as Trustee, in trust for the benefit of the Holders of Bear Xxxxxxx
Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 2005-TOP20, Distribution Account" and (ii) an account (the
"Reserve Account") to be held in trust for the benefit of the holders of
interests in the Trust until disbursed pursuant to the terms of this Agreement,
titled: "Xxxxx Fargo Bank, National Association, as Paying Agent on behalf of
LaSalle Bank National Association, as Trustee, in trust for the benefit of the
Holders of Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 2005-TOP20, Reserve Account." The Distribution
Account and the Reserve Account shall be Eligible Accounts. Funds in the Reserve
Account shall not be invested. The Distribution Account and Reserve Account
shall be held separate and apart from and shall not be commingled with any
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other monies including, without limitation, other monies of the Paying Agent
held under this Agreement.
Funds in the Distribution Account may be invested and, if invested,
shall be invested by, and at the risk of, the Paying Agent in Eligible
Investments selected by the Paying Agent which shall mature, unless payable on
demand, not later than such time on the Distribution Date which will allow the
Paying Agent to make withdrawals from the Distribution Account under Section
5.3(b), and any such Eligible Investment shall not be sold or disposed of prior
to its maturity unless payable on demand. All such Eligible Investments shall be
made in the name of "LaSalle Bank National Association, as Trustee for the
Holders of the Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2005-TOP20 and the holder of any
related B Note as their interests may appear." None of the Depositor, the
Mortgagors, the Special Servicer, the Master Servicer, the Primary Servicer or
the Trustee shall be liable for any loss incurred on such Eligible Investments.
An amount equal to all income and gain realized from any such
investment shall be paid to the Paying Agent as additional compensation and
shall be subject to its withdrawal at any time from time to time. The amount of
any losses incurred in respect of any such investments shall be for the account
of the Paying Agent which shall deposit the amount of such loss (to the extent
not offset by income from other investments) in the Distribution Account, as the
case may be, out of its own funds immediately as realized. If the Paying Agent
deposits in or transfers to the Distribution Account, as the case may be, any
amount not required to be deposited therein or transferred thereto, it may at
any time withdraw such amount or retransfer such amount from the Distribution
Account, as the case may be, any provision herein to the contrary
notwithstanding.
(b) The Paying Agent shall deposit into the Distribution Account or
the Reserve Account, as applicable, on the Business Day received all moneys
remitted by the Master Servicer pursuant to this Agreement, including P&I
Advances made by the Master Servicer, the Trustee and the Fiscal Agent and all
Excess Liquidation Proceeds. The Paying Agent shall deposit amounts constituting
collections of Excess Interest on the Mortgage Loans into the Excess Interest
Sub-account. On any Master Servicer Remittance Date, the Master Servicer shall
have no duty to remit to the Distribution Account any amounts other than amounts
held in the Certificate Account and collected during the related Collection
Period as provided in clauses (v) and (xi) of Section 5.2(a) and the P&I Advance
Amount and, on the Master Servicer Remittance Date occurring in March of any
year, commencing in March 2006, amounts held in the Interest Reserve Account.
The Paying Agent shall make withdrawals from the Distribution Account (including
the Excess Interest Sub-account) and the Reserve Account only for the following
purposes:
(i) to withdraw amounts deposited in the Distribution Account and
the Reserve Account in error and pay such amounts to the Persons entitled
thereto;
(ii) to pay any amounts payable to the Master Servicer, the
Primary Servicer, the Special Servicer, the Fiscal Agent and the Trustee
(including the Trustee's Fee (other than that portion thereof, that constitutes
the Paying Agent's Fee)) and the Paying Agent
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(including the Paying Agent Fee), or other expenses or other amounts permitted
to be paid hereunder and not previously paid to such Persons pursuant to Section
5.2;
(iii) to make distributions to the Certificateholders pursuant to
Sections 6.5 and 6.11; and
(iv) to clear and terminate the Distribution Account and the
Reserve Account pursuant to Section 10.2.
SECTION 5.4 PAYING AGENT REPORTS.
(a) On or prior to each Distribution Date, based on information
provided in monthly reports prepared by the Master Servicer and the Special
Servicer and delivered to the Paying Agent by the Master Servicer (no later than
1:00 p.m., New York time on the Report Date), the Paying Agent shall make
available to any interested party via its internet website initially located at
"xxx.xxxxxxx.xxx/xxxx" (the "Paying Agent's Website"), (i) the Monthly
Certificateholders Report (substantially in the form of Exhibit M), (ii) a
report containing information regarding the Mortgage Loans as of the end of the
related Collection Period, which report shall contain substantially the
categories of information regarding the Mortgage Loans set forth in Appendix I
to the Final Prospectus Supplement and shall be presented in tabular format
substantially similar to the format utilized in such Appendix I which report may
be included as part of the Monthly Certificateholders Report, (iii) the Loan
Periodic Update File, Loan Setup File, Bond Level File and the Collateral
Summary File, (iv) the CMSA Advance Recovery Report, (v) the supplemental
reports set forth in paragraph (b) of the definition of Unrestricted Servicer
Reports, (vi) as a convenience for interested parties (and not in furtherance of
the distribution thereof under the securities laws), the Final Prospectus
Supplement and this Agreement and (vii) with respect to the Lakeforest Mall
Mortgage Loan Pooled Component and the Lakeforest Mall Mortgage Loan Non-Pooled
Component the information, to the extent provided by the Master Servicer or
Special Servicer to the Paying Agent, provided in accordance with this Section
5.4(a).
In addition, on or prior to each Distribution Date, based on
information provided in monthly reports prepared by the Master Servicer and the
Special Servicer and delivered to the Paying Agent in accordance herewith, the
Paying Agent shall make available via the Paying Agent's Website, on a
restricted basis, the Restricted Servicer Reports (including the Property File
on or prior to each Distribution Date, commencing in November 2005). The Paying
Agent shall provide access to the Restricted Servicer Reports, upon request, to
each Certificateholder, each of the parties to this Agreement, each of the
Rating Agencies, each of the Financial Market Publishers, each of the
Underwriters, the Operating Adviser, the Placement Agents, any prospective
purchaser of the Certificates and any Certificate Owner upon receipt (which may
be in electronic form) from such person of an Investor Certificate in the form
of Exhibit Y, and any other person upon the direction of the Depositor, the
Placement Agents or any Underwriter. For assistance with the above-mentioned
Paying Agent services, Certificateholders or any party hereto may initially call
000-000-0000.
The Paying Agent makes no representations or warranties as to the
accuracy or completeness of any report, document or other information made
available on the Paying
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Agent's Website and assumes no responsibility therefor. The Paying Agent shall
be entitled to conclusively rely on any information provided to it by the Master
Servicer or the Special Servicer and shall have no obligation to verify such
information and the Paying Agent may disclaim responsibility for any information
distributed by the Paying Agent for which it is not the original source. In
connection with providing access to the Paying Agent's Website, the Paying
Agent, may require registration and the acceptance of a disclaimer. None of the
Master Servicer, the Special Servicer, the Primary Servicer or the Paying Agent
shall be liable for the dissemination of information in accordance with this
Agreement; provided that this sentence shall not in any way limit the liability
the Paying Agent may otherwise have in the performance of its duties hereunder.
(b) Subject to Section 8.15, upon advance written request, if required
by federal regulation, of any Certificateholder (or holder of a Serviced
Companion Mortgage Loan or B Note) that is a savings association, bank, or
insurance company, the Paying Agent shall provide (to the extent in its
possession) to each such Certificateholder (or such holder of a Serviced
Companion Mortgage Loan or B Note) such reports and access to non-privileged
information and documentation regarding the Mortgage Loans and the Certificates
as such Certificateholder (or such holder of a Serviced Companion Mortgage Loan
or B Note) may reasonably deem necessary to comply with applicable regulations
of the Office of Thrift Supervision or successor or other regulatory authorities
with respect to investment in the Certificates; provided that the Paying Agent
shall be entitled to be reimbursed by such Certificateholder (or such holder of
a Serviced Companion Mortgage Loan or B Note) for the Paying Agent's actual
expenses incurred in providing such reports and access. The holder of a B Note
shall be entitled to receive information and documentation only with respect to
its related A/B Mortgage Loan and the holder of a Serviced Companion Mortgage
Loan shall be entitled to receive information and documentation only with
respect to its related Loan Pair, pursuant hereto.
(c) Upon written request, the Paying Agent shall send to each Person
who at any time during the calendar year was a Certificateholder of record,
customary information as the Paying Agent deems necessary or desirable for such
Holders to prepare their federal income tax returns.
(d) Reserved
(e) The Paying Agent shall afford the Rating Agencies, the Financial
Market Publishers, the Depositor, the Master Servicer, the Special Servicer, the
Primary Servicer, the Trustee, the Fiscal Agent, the Operating Adviser, any
Certificateholder, the Luxembourg Paying Agent, prospective Certificate Owner or
any Person reasonably designated by any Placement Agent, or any Underwriter upon
reasonable notice and during normal business hours, reasonable access to all
relevant, non-attorney privileged records and documentation regarding the
applicable Mortgage Loans, REO Property and all other relevant matters relating
to this Agreement, and access to Responsible Officers of the Paying Agent.
(f) Copies (or computer diskettes or other digital or electronic
formats of such information if reasonably available in lieu of paper copies) of
any and all of the foregoing items of this Section 5.4 shall be made available
by the Paying Agent upon request; provided, however,
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that the Paying Agent shall be permitted to require payment by the requesting
party (other than the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Fiscal Agent, the Operating Adviser, any Placement Agent or any
Underwriter or any Rating Agency) of a sum sufficient to cover the reasonable
expenses actually incurred by the Paying Agent of providing access or copies
(including electronic or digital copies) of any such information requested in
accordance with the preceding sentence.
(g) The Paying Agent shall make available at its Corporate Trust
Office (either in physical or electronic form), during normal business hours,
upon reasonable advance written notice for review by any Certificateholder, any
Certificate Owner, any prospective Certificate Owner, the Placement Agents, the
Underwriters, each Rating Agency, the Special Servicer, the Depositor, and
solely as with respect to any A/B Mortgage Loan, the holder of the B Note and
solely as with respect to any Loan Pair, the holder of the Serviced Companion
Mortgage Loan, originals or copies of, among other things, any Phase I
Environmental Report or engineering report prepared or appraisals performed in
respect of each Mortgaged Property provided, however, that the Paying Agent
shall be permitted to require payment by the requesting party (other than either
Rating Agency, the Operating Adviser or the Lakeforest Mall Mortgage Loan
Operating Adviser) of a sum sufficient to cover the reasonable expenses actually
incurred by the Paying Agent or the Trustee of providing access or copies
(including electronic or digital copies) of any such information reasonably
requested in accordance with the preceding sentence.
SECTION 5.5 PAYING AGENT TAX REPORTS. The Paying Agent shall perform
all reporting and other tax compliance duties that are the responsibility of
each REMIC Pool and the Class Q Grantor Trust under the Code, REMIC Provisions,
or other compliance guidance issued by the Internal Revenue Service or any state
or local taxing authority. Consistent with this Pooling and Servicing Agreement,
the Paying Agent shall provide or cause to be provided (i) to the United States
Treasury or other Persons (including, but not limited to, the Transferor of a
Class R-I, Class R-II or Class R-III Certificate, to a Disqualified Organization
or to an agent that has acquired a Class R-I, Class R-II or Class R-III
Certificate on behalf of a Disqualified Organization) such information as is
necessary for the application of any tax relating to the transfer of a Class
R-I, Class R-II or Class R-III Certificate to any Disqualified Organization and
(ii) to the Certificateholders such information or reports as are required by
the Code or REMIC Provisions; in the case of (i), subject to reimbursement of
expenses relating thereto in accordance with Section 7.12. The Master Servicer
shall on a timely basis provide the Paying Agent with such information
concerning the Mortgage Loans as is necessary for the preparation of the tax or
information returns or receipts of each REMIC Pool and the Class Q Grantor Trust
as the Paying Agent may reasonably request from time to time. The Special
Servicer is required to provide to the Master Servicer all information in its
possession with respect to the Specially Serviced Mortgage Loans in order for
the Master Servicer to comply with its obligations under this Section 5.5. The
Paying Agent shall be entitled to conclusively rely on any such information
provided to it by the Master Servicer or the Special Servicer and shall have no
obligation to verify any such information.
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ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 DISTRIBUTIONS GENERALLY. Subject to Section 10.2(a),
respecting the final distribution on the Certificates, on each Distribution
Date, the Paying Agent shall (1) first, withdraw from the Distribution Account
and pay to the Fiscal Agent and Trustee any unpaid fees, expenses and other
amounts then required to be paid pursuant to this Agreement, and then, to the
Paying Agent, any unpaid fees, expenses and other amounts then required to be
paid pursuant to this Agreement, and then at the written direction of the Master
Servicer, withdraw from the Distribution Account and pay to the Master Servicer,
the Primary Servicer and Special Servicer any unpaid servicing compensation or
other amounts currently required to be paid pursuant to this Agreement (to the
extent not previously retained or withdrawn by the Master Servicer from the
Certificate Account), and (2) second, make distributions in the manner and
amounts set forth below.
Each distribution to Holders of Certificates shall be made by check
mailed to such Holder's address as it appears on the Certificate Register of the
Certificate Registrar or, upon written request to the Paying Agent on or prior
to the related Record Date (or upon standing instructions given to the Paying
Agent on the Closing Date prior to any Record Date, which instructions may be
revoked at any time thereafter upon written notice to the Paying Agent five days
prior to the related Record Date) made by a Certificateholder by wire transfer
in immediately available funds to an account specified in the request of such
Certificateholder; provided, that (i) remittances to the Paying Agent shall be
made by wire transfer of immediately available funds to the Distribution Account
and the Reserve Account; and (ii) the final distribution in respect of any
Certificate shall be made only upon presentation and surrender of such
Certificate at such location specified by the Paying Agent in a notice delivered
to Certificateholders pursuant to Section 10.2(a). If any payment required to be
made on the Certificates is to be made on a day that is not a Business Day, then
such payment will be made on the next succeeding Business Day without
compensation for such delay. All distributions or allocations made with respect
to Holders of Certificates of a Class on each Distribution Date shall be made or
allocated among the outstanding Interests in such Class in proportion to their
respective initial Certificate Balances or Percentage Interests for the Class X
Certificates.
SECTION 6.2 REMIC I.
(a) Subject to the provisions of Sections 6.2(b) and (c) with respect
to amounts collected or deemed collected on or with respect to the Lakeforest
Mall Mortgage Loan, on each Distribution Date, the Paying Agent shall be deemed
to distribute to itself on behalf of the Trustee, as holder of the REMIC I
Regular Interests, for the following purposes and in the following order of
priority:
(i) from the portion of the Available Distribution Amount
attributable to interest (other than Excess Interest) collected or deemed
collected on or with respect to each Mortgage Loan or related REO Property,
Distributable Certificate Interest to each Corresponding REMIC I Regular
Interest;
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(ii) from the portion of the Available Distribution Amount
attributable to principal collected or deemed collected on or with respect to
each Mortgage Loan or related REO Property, principal to the Corresponding REMIC
I Regular Interest, until the Certificate Balance thereof is reduced to zero;
(iii) any remaining funds with respect to each Mortgage Loan
(other than Excess Interest) or related REO Property, to reimburse any Realized
Losses previously allocated to the REMIC I Regular Interests, plus interest on
such Realized Losses at the related REMIC I Net Mortgage Rate previously
allocated thereto; and
(iv) thereafter, to the Class R-I Certificateholders at such time
as the Certificate Balance of all Classes of REMIC I Regular Interests have been
reduced to zero, and Realized Losses previously allocated thereto have been
reimbursed to the Holders of the REMIC I Regular Interests, any amounts
remaining with respect to each Mortgage Loan (other than Excess Interest) or
related REO Property, to the extent of the Trust's interest therein.
(b) So long as no monetary or material non-monetary event of default
under the Lakeforest Mall Mortgage Loan has occurred and is continuing and there
are no outstanding unreimbursed Advances with respect to the Lakeforest Mall
Mortgage Loan, on each Distribution Date, the Paying Agent shall be deemed to
distribute to itself on behalf of the Trustee, as holder of the REMIC I Pooled
Regular Interest and the REMIC I Non-Pooled Regular Interest, an amount equal to
the Lakeforest Mall Mortgage Loan Available Funds and shall distribute such
amounts in the following amounts and order of priority (the "Lakeforest Mall
Mortgage Loan Non-Default Distribution Priority"):
(i) for the benefit of the REMIC I Pooled Regular Interest to be
included as part of the Available Distribution Amount for such Distribution
Date, up to an amount equal to all accrued and unpaid interest at the related
REMIC I Net Mortgage Rate but not including any amounts accruing at the default
rate in respect of the Lakeforest Mall Mortgage Loan Pooled Component through
the end of the related Interest Accrual Period;
(ii) for the benefit of the REMIC I Pooled Regular Interest to be
included as part of the Available Distribution Amount for such Distribution Date
as principal, up to an amount equal to the product of (x) the Lakeforest Mall
Mortgage Loan Principal Distribution Amount for such Distribution Date and (y)
the Lakeforest Mall Mortgage Loan Pooled Percentage for such Distribution Date;
(iii) for the benefit of the REMIC I Pooled Regular Interest to
be included as part of the Available Distribution Amount for such Distribution
Date, to reimburse the REMIC I Pooled Regular Interest for any Realized Losses
and Expense Losses previously allocated to the Lakeforest Mall Mortgage Loan
Pooled Component and for which reimbursement has not previously been fully paid,
plus interest on such Realized Losses and Expense Losses at the applicable
interest rate;
(iv) to make distributions of interest to the holders of the
REMIC I Non-Pooled Regular Interest, up to an amount equal to all accrued and
unpaid interest at the related REMIC I Net Mortgage Rate but not including any
amounts accruing at the default rate in
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respect of the Lakeforest Mall Non-Pooled Component through the end of the
related Interest Accrual Period;
(v) to the REMIC I Non-Pooled Regular Interest, up to an amount
equal to the product of (x) the Lakeforest Mall Mortgage Loan Principal
Distribution Amount for such Distribution Date and (y) the Lakeforest Mall
Mortgage Loan Non-Pooled Percentage for such Distribution Date; and
(vi) to the REMIC I Non-Pooled Regular Interest, to reimburse for
any Realized Losses and Expense Losses previously allocated to the REMIC I
Non-Pooled Regular Interest and for which reimbursement has not previously been
fully paid.
The amounts to be applied pursuant to clauses (i), (ii) and (iii) of
this Section 6.2(b) will be included as part of the Available Distribution
Amount for the related Distribution Date and will be applied in accordance with
Section 6.5 to make distributions on the Certificates (other than the Class LF
Certificates).
(c) If a monetary or material non-monetary event of default under the
Lakeforest Mall Mortgage Loan has occurred and is continuing (and the Lakeforest
Mall Mortgage Loan Operating Adviser has not cured the default) or if there are
outstanding unreimbursed Advances with respect to the Lakeforest Mall Mortgage
Loan, on each Distribution Date, the Paying Agent shall be deemed to distribute
to itself on behalf of the Trustee, as holder of the REMIC I Regular Interests,
an amount equal to the Lakeforest Mall Mortgage Loan Available Funds and shall
distribute such amounts in the following amounts and order of priority (the
"Lakeforest Mall Mortgage Loan Default Distribution Priority"):
(i) for the benefit of the REMIC I Pooled Regular Interest to be
included as part of the Available Distribution Amount for such Distribution
Date, up to an amount equal to all accrued and unpaid interest at the related
REMIC I Net Mortgage Rate in respect of the Lakeforest Mall Mortgage Loan Pooled
Component through the end of the related Interest Accrual Period;
(ii) for the benefit of the REMIC I Pooled Regular Interest to be
included as part of the Available Distribution Amount for such Distribution Date
as principal, until the principal balance of the Lakeforest Mall Mortgage Loan
Pooled Component is reduced to zero;
(iii) for the benefit of the REMIC I Pooled Regular Interest to
be included as part of the Available Distribution Amount for such Distribution
Date, to reimburse the REMIC I Pooled Regular Interest for any Realized Losses
and Expense Losses previously allocated to the Lakeforest Mall Mortgage Loan
Pooled Component and for which reimbursement has not previously been fully paid,
plus interest on such Realized Losses and Expense Losses at the applicable
interest rate;
(iv) to make distributions of interest to the REMIC I Non-Pooled
Regular Interest, up to an amount equal to all accrued and unpaid interest at
the related REMIC I Net Mortgage Rate in respect of the Lakeforest Mall Mortgage
Loan Non-Pooled Component through the end of the related Interest Accrual
Period;
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(v) after the principal balance of the Lakeforest Mall Mortgage
Loan Pooled Component has been reduced to zero, to make distributions of
principal to the REMIC I Non-Pooled Regular Interest until the principal balance
of the Lakeforest Mall Mortgage Loan Non-Pooled Component is reduced to zero;
and
(vi) to the REMIC I Non-Pooled Regular Interest, to reimburse for
any Realized Losses and Expense Losses previously allocated to the REMIC I
Non-Pooled Regular Interest and for which reimbursement has not previously been
fully paid.
The amounts to be applied pursuant to clauses (i), (ii) and (iii) of
this Section 6.1(c) will be included as part of the Available Distribution
Amount for the related Distribution Date and will be applied in accordance with
Section 6.5 to make distributions on the Certificates (other than the Class LF
Certificates).
(d) Any Lakeforest Mall Mortgage Loan Available Funds remaining after
the application of Sections 6.2(b) or (c) shall be distributed to the Class R-I
Certificates.
SECTION 6.3 REMIC II.
(a) On each Distribution Date, the Paying Agent shall be deemed to
distribute to itself on behalf of the Trustee, as holder of the REMIC II Regular
Interests, amounts distributable to any Class of Principal Balance Certificates
and Class LF Certificates pursuant to Section 6.5 or Section 10.1 to its
Corresponding REMIC II Regular Interest set forth in the Preliminary Statement
hereto.
(b) All distributions made in respect of the Class X Certificates on
each Distribution Date pursuant to Section 6.5 or Section 10.1, and allocable to
any particular REMIC III Regular Interest in accordance with the definition of
"Class X Strip Rate," shall be deemed to have first been distributed from REMIC
II to REMIC III in respect of such Class's Corresponding REMIC II Regular
Interest. All distributions of reimbursements of Realized Losses made in respect
of any Class of Principal Balance Certificates or the Class LF Certificates on
each Distribution Date pursuant to Section 6.5 shall be deemed to have first
been distributed from REMIC II to REMIC III in respect of its Corresponding
REMIC II Regular Interest set forth in the Preliminary Statement hereto. Any
amounts remaining in the Distribution Account with respect to REMIC II on any
Distribution Date after the foregoing distributions shall be distributed to the
holders of the Class R-II Certificates.
SECTION 6.4 RESERVED.
SECTION 6.5 REMIC III.
(a) On each Distribution Date, the Paying Agent shall withdraw from
the Distribution Account an amount equal to the Available Distribution Amount
and shall distribute such amount (other than the amount attributable to any
Excess Interest, which shall be distributed in accordance with Section 6.5(c)
and Excess Liquidation Proceeds) in the following amounts and order of priority:
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(i) to the Holders of the Class A-1 Certificates, Class A-2
Certificates, Class A-3 Certificates, Class A-AB Certificates, Class A-4
Certificates, Class X Certificates, Distributable Certificate Interest for such
Distribution Date, pro rata in proportion to the Distributable Certificate
Interest payable to each such Class, provided that Distributable Certificate
Interest allocated to the Class A-4 Certificates shall be distributed first to
the Class A-4A Certificates up to its interest entitlement and then to the Class
A-4B Certificates up to its interest entitlement;
(ii) to the Holders of the Class A-AB Certificates, in reduction
of the Certificate Balance thereof, the Principal Distribution Amount for such
Distribution Date until the Certificate Balance of the Class A-AB Certificates
has been reduced to the Planned Principal Balance for such Distribution Date;
(iii) to the Holders of the Class A-1, Class A-2, Class A-3,
Class A-AB Certificates and Class A-4 Certificates, in reduction of the
Certificate Balances thereof, in an amount up to the remaining Principal
Distribution Amount for such Distribution Date (after the distributions
described in clause (ii) above): first, to the Holders of the Class A-1
Certificates, the Principal Distribution Amount for such Distribution Date
(reduced by any prior distributions thereof hereunder) until the Certificate
Balance thereof is reduced to zero, second, upon payment in full of the
Aggregate Certificate Balance of the Class A-1 Certificates, to the holders of
the Class A-2 Certificates, the Principal Distribution Amount for such
Distribution Date (reduced by any prior distributions thereof hereunder) until
the Aggregate Certificate Balance of the Class A-2 Certificates has been reduced
to zero, third, upon payment in full of the Aggregate Certificate Balance of the
Class A-2 Certificates, to the holders of the Class A-3 Certificates, the
Principal Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder) until the Aggregate Certificate Balance of the
Class A-3 Certificates has been reduced to zero, fourth, upon payment in full of
the Aggregate Certificate Balance of the Class A-3 Certificates, to the holders
of the Class A-AB Certificates, the Principal Distribution Amount for such
Distribution Date (reduced by any prior distributions thereof hereunder) until
the Aggregate Certificate Balance of the Class A-AB Certificates has been
reduced to zero, fifth, upon payment in full of the Aggregate Certificate
Balance of the Class A-3 and Class A-AB Certificates, to the holders of the
Class A-4A Certificates, the Principal Distribution Amount for such Distribution
Date (reduced by any prior distributions thereof hereunder) until the Aggregate
Certificate Balance of the Class A-4A Certificates has been reduced to zero and
sixth, upon payment in full of the Aggregate Certificate Balance of the Class
A-4A Certificates, to the holders of the Class A-4B Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder) until the Aggregate Certificate Balance of the
Class A-4B Certificates has been reduced to zero;
(iv) to the Holders of the Class A Senior Certificates and Class
X Certificates, pro rata in proportion to their respective entitlements to
reimbursement described in this clause (treating principal and interest losses
separately), to reimburse any Realized Losses previously allocated thereto and
not previously fully reimbursed (in the case of the Class X Certificates,
insofar as Realized Losses have resulted in shortfalls in the amount of interest
distributed other than by reason of a reduction of the Notional Amount), plus
interest at the applicable Pass-Through Rate on such Realized Losses; provided
that such amounts in respect of the Class A-4 Certificates shall be allocated
first to the Class A-4A Certificates until such
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Realized Losses are reimbursed, together with all interest at the applicable
Pass-Through Rate, and then to the Class A-4B Certificates;
(v) to the Holders of the Class A-J Certificates, Distributable
Certificate Interest for such Distribution Date;
(vi) upon payment in full of the Certificate Balance of the Class
A-4B Certificates, to the Holders of the Class A-J Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder), until the Certificate Balance of the Class A-J
Certificates has been reduced to zero;
(vii) to the Holders of the Class A-J Certificates, to reimburse
any Realized Losses previously allocated thereto and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate on
such Realized Losses;
(viii) to the Holders of the Class B Certificates, Distributable
Certificate Interest for such Distribution Date;
(ix) upon payment in full of the Certificate Balance of the Class
A-J Certificates, to the Holders of the Class B Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder), until the Certificate Balance of the Class B
Certificates has been reduced to zero;
(x) to the Holders of the Class B Certificates, to reimburse any
Realized Losses previously allocated thereto and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate on
such Realized Losses;
(xi) to the Holders of the Class C Certificates, Distributable
Certificate Interest for such Distribution Date;
(xii) upon payment in full of the Certificate Balance of the
Class B Certificates, to the Holders of the Class C Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder), until the Certificate Balance of the Class C
Certificates has been reduced to zero;
(xiii) to the Holders of the Class C Certificates, to reimburse
any Realized Losses previously allocated thereto and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate on
such Realized Losses;
(xiv) to the Holders of the Class D Certificates, Distributable
Certificate Interest for such Distribution Date;
(xv) upon payment in full of the Certificate Balance of the Class
C Certificates, to the Holders of the Class D Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder), until the Certificate Balance of the Class D
Certificates has been reduced to zero;
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(xvi) to the Holders of the Class D Certificates, to reimburse
any Realized Losses previously allocated thereto and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate on
such Realized Losses;
(xvii) to the Holders of the Class E Certificates, Distributable
Certificate Interest for such Distribution Date;
(xviii) upon payment in full of the Certificate Balance of the
Class D Certificates, to the Holders of the Class E Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder), until the Certificate Balance of the Class E
Certificates has been reduced to zero;
(xix) to the Holders of the Class E Certificates, to reimburse
any Realized Losses previously allocated thereto and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate on
such Realized Losses;
(xx) to the Holders of the Class F Certificates, Distributable
Certificate Interest for such Distribution Date;
(xxi) upon payment in full of the Certificate Balance of the
Class E Certificates, to the Holders of the Class F Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder), until the Certificate Balance of the Class F
Certificates has been reduced to zero;
(xxii) to the Holders of the Class F Certificates, to reimburse
any Realized Losses previously allocated thereto and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate on
such Realized Losses;
(xxiii) to the Holders of the Class G Certificates, Distributable
Certificate Interest for such Distribution Date;
(xxiv) upon payment in full of the Certificate Balance of the
Class F Certificates, to the Holders of the Class G Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder), until the Certificate Balance of the Class G
Certificates has been reduced to zero;
(xxv) to the Holders of the Class G Certificates, to reimburse
any Realized Losses previously allocated thereto and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate on
such Realized Losses;
(xxvi) to the Holders of the Class H Certificates, Distributable
Certificate Interest for such Distribution Date;
(xxvii) upon payment in full of the Certificate Balance of the
Class G Certificates, to the Holders of the Class H Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder), until the Certificate Balance of the Class H
Certificates has been reduced to zero;
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(xxviii) to the Holders of the Class H Certificates, to reimburse
any Realized Losses previously allocated thereto and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate on
such Realized Losses;
(xxix) to the Holders of the Class J Certificates, Distributable
Certificate Interest for such Distribution Date;
(xxx) upon payment in full of the Certificate Balance of the
Class H Certificates, to the Holders of the Class J Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder), until the Certificate Balance of the Class J
Certificates has been reduced to zero;
(xxxi) to the Holders of the Class J Certificates, to reimburse
any Realized Losses previously allocated thereto and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate on
such Realized Losses;
(xxxii) to the Holders of the Class K Certificates, Distributable
Certificate Interest for such Distribution Date;
(xxxiii) upon payment in full of the Certificate Balance of the
Class J Certificates, to the Holders of the Class K Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder), until the Certificate Balance of the Class K
Certificates has been reduced to zero;
(xxxiv) to the Holders of the Class K Certificates, to reimburse
any Realized Losses previously allocated thereto and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate on
such Realized Losses;
(xxxv) to the Holders of the Class L Certificates, Distributable
Certificate Interest for such Distribution Date;
(xxxvi) upon payment in full of the Certificate Balance of the
Class K Certificates, to the Holders of the Class L Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder), until the Certificate Balance of the Class L
Certificates has been reduced to zero;
(xxxvii) to the Holders of the Class L Certificates, to reimburse
any Realized Losses previously allocated thereto and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate on
such Realized Losses;
(xxxviii) to the Holders of the Class M Certificates,
Distributable Certificate Interest for such Distribution Date;
(xxxix) upon payment in full of the Certificate Balance of the
Class L Certificates, to the Holders of the Class M Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder), until the Certificate Balance of the Class M
Certificates has been reduced to zero;
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(xl) to the Holders of the Class M Certificates, to reimburse any
Realized Losses previously allocated thereto and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate on
such Realized Losses;
(xli) to the Holders of the Class N Certificates, Distributable
Certificate Interest for such Distribution Date;
(xlii) upon payment in full of the Certificate Balance of the
Class M Certificates, to the Holders of the Class N Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder), until the Certificate Balance of the Class N
Certificates has been reduced to zero;
(xliii) to the Holders of the Class N Certificates, to reimburse
any Realized Losses previously allocated thereto and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate on
such Realized Losses;
(xliv) to the Holders of the Class O Certificates, Distributable
Certificate Interest for such Distribution Date;
(xlv) upon payment in full of the Certificate Balance of the
Class N Certificates, to the Holders of the Class O Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder), until the Certificate Balance of the Class O
Certificates has been reduced to zero;
(xlvi) to the Holders of the Class O Certificates, to reimburse
any Realized Losses previously allocated thereto and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate on
such Realized Losses;
(xlvii) to the Holders of the Class P Certificates, Distributable
Certificate Interest for such Distribution Date;
(xlviii) upon payment in full of the Certificate Balance of the
Class O Certificates, to the Holders of the Class P Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder), until the Certificate Balance of the Class P
Certificates has been reduced to zero;
(xlix) to the Holders of the Class P Certificates, to reimburse
any Realized Losses previously allocated thereto and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate on
such Realized Losses;
(l) to the Holders of the Class Q Certificates, Distributable
Certificate Interest for such Distribution Date;
(li) upon payment in full of the Certificate Balance of the Class
P Certificates, to the Holders of the Class Q Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder), until the Certificate Balance of the Class Q
Certificates has been reduced to zero;
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(lii) to the Holders of the Class Q Certificates, to reimburse
any Realized Losses previously allocated thereto and not previously fully
reimbursed, plus one month's interest at the applicable Pass-Through Rate on
such Realized Losses; and
(liii) to the Holders of the Class R-III Certificates at such
time as the Certificate Balances of all Classes of REMIC Regular Certificates
have been reduced to zero, and Realized Losses previously allocated to each
Holder have been reimbursed to the Holders of the REMIC Regular Certificates,
any amounts remaining of Available Distribution Amount on deposit in the
Distribution Account.
Notwithstanding the foregoing, on each Distribution Date occurring on
or after the earliest date, if any, upon which the Certificate Balances of all
the Classes of Subordinate Certificates have been reduced to zero or the
aggregate Appraisal Reduction (with respect to the Lakeforest Mall Mortgage
Loan, solely the Appraisal Reduction allocated to the Lakeforest Mall Mortgage
Loan Pooled Component) in effect is greater than or equal to the Certificate
Balances of all the Classes of Subordinate Certificates, the Principal
Distribution Amount will be distributed, first, to the Holders of the Class A-1,
Class A-2, Class A-3, Class A-AB and Class A-4 Certificates, pro rata, based on
their respective Certificate Balances, in reduction of their respective
Certificate Balances, until the Certificate Balance of each such Class is
reduced to zero; provided that the Principal Distribution Amount allocated to
the Class A-4 Certificates will be distributed first to the Class A-4A
Certificates until the Certificate Balance of such Class of Certificates is
reduced to zero and then to the Class A-4B Certificates until the Certificate
Balance of such Class of Certificates is reduced to zero; and, second, to the
Holders of the Class A-1, Class A-2, Class A-3, Class A-AB and Class A-4
Certificates, pro rata, based on the respective amounts of unreimbursed Realized
Losses previously allocated to each such Class, plus one month's interest on
such Realized Losses at the applicable Pass-Through Rate; provided that such
amounts allocated to the Class A-4 Certificates will be distributed first to the
Class A-4A Certificates until such Realized Losses are reimbursed, together with
all interest at the applicable Pass-Through Rate, and then to the Class A-4B
Certificates. A similar rule shall apply to the distribution of the Principal
Distribution Amount to REMIC II Regular Interests X-0, X-0, X-0, X-XX, X-0X xxx
X-0X.
(x) On each Distribution Date, the Paying Agent shall withdraw from
the Distribution Account an amount equal to the portion of the Lakeforest Mall
Mortgage Loan Available Funds allocable to the Lakeforest Mall Mortgage Loan
Non-Pooled Component, which shall be distributed to the Holders of the Class LF
Certificates in the following amounts and order of priority:
(i) Distributable Certificate Interest for such Distribution
Date;
(ii) Principal until the Certificate Balance of the Class LF
Certificates has been reduced to zero; and
(iii) To reimburse any Realized Losses previously allocated
thereto and not previously fully reimbursed, plus one month's interest at the
applicable Pass-Through Rate on such Realized Losses.
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(c) On each Distribution Date, the Paying Agent shall withdraw amounts
in the Reserve Account and shall pay the Certificateholders on such Distribution
Date such amounts in the following priority:
(i) First, to reimburse the Holders of the Principal Balance
Certificates (in order of alphabetical Class designation) for any, and to the
extent of, Realized Losses previously allocated to them; and
(ii) Second, upon the reduction of the Aggregate Certificate
Balance of the Principal Balance Certificates to zero, to pay any amounts
remaining on deposit in such account to the Special Servicer as additional
Special Servicer Compensation.
This Section 6.5(b) shall apply mutatis mutandis to reimbursement of
Realized Losses previously allocated to the REMIC II Regular Interests.
(d) On each Distribution Date, the Paying Agent shall withdraw from
the Excess Interest Sub-account any Excess Interest on deposit therein, and the
Paying Agent shall pay such Excess Interest on such Distribution Date to the
Class Q Certificates (even if the Certificate Balance of the Class Q
Certificates has been reduced to zero for any reason).
SECTION 6.6 ALLOCATION OF REALIZED LOSSES, EXPENSE LOSSES AND
SHORTFALLS DUE TO NONRECOVERABILITY.
(a) REMIC I. On each Distribution Date, except as provided in
subsection (b) below,
(i) Realized Principal Losses on each Mortgage Loan realized
during the related Collection Period shall reduce the Certificate Balance of the
Corresponding REMIC I Regular Interest (provided that Realized Principal Losses
on the Lakeforest Mall Mortgage Loan shall reduce first, the Certificate Balance
of the REMIC I Non-Pooled Regular Interest, then the Certificate Balance of the
REMIC I Pooled Regular Interest);
(ii) Realized Interest Losses on each Mortgage Loan shall be
allocated to reduce first, Distributable Certificate Interest for such
Distribution Date, and then Unpaid Interest in each case owing on the
Corresponding REMIC I Regular Interest (provided that Realized Interest Losses
on the Lakeforest Mall Mortgage Loan shall reduce first, Distributable
Certificate Interest with respect to the REMIC I Non-Pooled Regular Interest;
second, Unpaid Interest owing on the REMIC I Non-Pooled Regular Interest; third,
Distributable Certificate Interest of the REMIC I Pooled Regular Interest; and
fourth, Unpaid Interest owing on the REMIC I Pooled Regular Interest); and to
the extent that such Realized Interest Loss exceeds such amount, shall be
treated as an Expense Loss; and
(iii) Expense Losses (not otherwise applied above) realized
during the related Collection Period shall be allocated among the REMIC I
Regular Interests in proportion to their Certificate Balances and treated as
Realized Principal Losses to the extent so allocated (and shall proportionately
reduce the Certificate Balance of each REMIC I Regular Interest) after making
all other allocations for such Distribution Date (provided that Expense Losses
on the Lakeforest Mall Mortgage Loan shall reduce first, the Certificate Balance
with respect to the
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REMIC I Non-Pooled Regular Interest and then the Certificate Balance of the
REMIC I Pooled Regular Interest).
(b) If the Master Servicer, the Special Servicer, the Trustee or the
Fiscal Agent, determines that an Advance previously made by it (whether such
Advance (together with Advance Interest thereon) was in respect of principal or
interest on the related Mortgage Loan or a Servicing Advance) is a
Nonrecoverable Advance and the Master Servicer withdraws the amount of such
Advance from the Certificate Account pursuant to Section 5.2(a) hereof (which
amount shall be treated as an Available Advance Reimbursement Amount pursuant to
Section 4.6) or if the Master Servicer determines that any Unliquidated Advance
has become a Nonrecoverable Advance, the Master Servicer (after consultation
with the Special Servicer) shall compute the Realized Loss with respect to such
Mortgage Loan (and the Paying Agent shall allocate the Realized Loss) as
follows:
(i) the amount withdrawn from the Certificate Account shall be
treated as Realized Principal Losses up to the amount of the aggregate amount in
the Collection Account allocable to principal received with respect to the
Mortgage Loans for such Collection Period contemplated by clause (I)(A) of the
definition of Principal Distribution Amount, and shall be allocated to the
Corresponding REMIC I Regular Interest in accordance with Section 6.6(a)(i) (and
to the extent that any Realized Principal Loss exceeds the Certificate Balance
of the Corresponding REMIC I Regular Interest, such Realized Principal Loss
shall be allocated to the other Corresponding REMIC I Regular Interests in
accordance with Section 6.6(a)(iii)), and such withdrawal shall reduce the
principal paid on each such REMIC I Regular Interest on which principal would
otherwise be paid on such Distribution Date, in proportion to such principal
payments; and
(ii) if the amount that the Master Servicer withdraws from the
Certificate Account as referenced in clause (b)(i) above exceeds such amount
allocable to principal received with respect to the Mortgage Loans for such
Collection Period, then such additional amounts shall constitute Unpaid
Interest, and (other than in respect of the Lakeforest Mall Mortgage Loan
Non-Pooled Component) shall be allocated to the REMIC I Regular Interests (other
than the REMIC I Non-Pooled Regular Interest) on a pro rata basis based upon the
amount of accrued and unpaid interest thereon and shall be allocated in respect
of the Lakeforest Mall Mortgage Loan Non-Pooled Component, to the REMIC I
Non-Pooled Regular Interest.
(c) If (x) a Final Recovery Determination is made with respect to any
Mortgage Loan with respect to which the Master Servicer previously had withdrawn
amounts from the Certificate Account following a determination that Advances
previously made were Nonrecoverable Advances and Realized Losses were computed
and allocated pursuant to clauses (a) and (b) above, and (y) amounts are
recovered thereafter:
(i) the portion of the amount of collections recovered on the
Mortgage Loan that is identified and applied by the Master Servicer as
recoveries of principal shall be applied by the Paying Agent first, to make
payments of principal on the Corresponding REMIC I Regular Interest up to an
amount equal to the Realized Principal Losses previously allocated thereto as a
result of the reimbursement of Nonrecoverable Advances or Advance Interest (and
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the Principal Balance of the Mortgage Loan and the related Certificate Balance
of the Corresponding REMIC I Regular Interest shall be correspondingly
increased), and thereafter to make payments of principal to the Corresponding
REMIC I Regular Interests with respect to which principal distributions were
reduced pursuant to Section 6.6(b)(i) above, in proportion to the amount of such
reductions; and
(ii) the portion of the amount recovered on the Mortgage Loan
that is identified and applied by the Master Servicer as recoveries of interest
shall be applied by the Paying Agent to make payments of Unpaid Interest on the
REMIC I Regular Interests with respect to which Unpaid Interest was allocated
pursuant to Section 6.6(b)(ii).
(d) REMIC II. On each Distribution Date, all Realized Losses on the
REMIC I Interests (other than the REMIC I Non-Pooled Regular Interest) for such
Distribution Date (or for prior Distribution Dates, to the extent not previously
allocated) shall be allocated to the Corresponding REMIC II Regular Interests in
the amounts and in the manner as are allocated to the REMIC III Regular
Interests related thereto pursuant to Section 6.6(f). Realized losses on the
REMIC I Non-Pooled Regular Interest shall be allocated to the REMIC II Regular
Interest LF. Realized Losses allocated to the Class X Certificates shall reduce
the amount of interest payable on the REMIC II Regular Interests, which
reduction shall be allocated pro rata based on the product of the Certificate
Balance of such REMIC II Regular Interest and the Class X Strip Rate applicable
to the Class of REMIC III Regular Interest (other than the Class X Certificates)
relating to such REMIC II Regular Interest.
(e) Reserved
(f) REMIC III. On each Distribution Date, all Realized Losses on the
REMIC II Regular Interests (other than the REMIC II Regular Interest LF) for
such Distribution Date (or for prior Distribution Dates, to the extent not
previously allocated) shall be allocated to the REMIC III Regular Interests
(other than the Class LF Certificates) in Reverse Sequential Order, in each case
reducing (A) first, the Certificate Balance of such Class until such Certificate
Balance is reduced to zero (in the case of the REMIC III Regular Interests other
than the Class X Certificates and the Class LF Certificates); (B) second, Unpaid
Interest owing to such Class to the extent thereof and (C) third, Distributable
Certificate Interest owing to such Class, provided, that such reductions shall
be allocated among the Class A-1 Certificates, Class A-2 Certificates, Class A-3
Certificates, Class A-AB Certificates, Class A-4 Certificates and Class X
Certificates, pro rata, based upon their outstanding Certificate Balances or
accrued interest, as the case may be, provided further that Realized Losses
allocable to the Class A-4 Certificates shall be allocated first to the Class
A-4B Certificates and then to the Class A-4A Certificates, and provided further,
that Realized Losses shall not reduce the Aggregate Certificate Balance of the
REMIC Regular Certificates (other than the Class LF Certificates) below the sum
of the Aggregate Certificate Balances of the REMIC II Regular Interests (other
than the REMIC II Regular Interest LF). On each Distribution Date, all Realized
Losses to the REMIC II Regular Interest LF shall be allocated to the Class LF
Certificates.
SECTION 6.7 NET AGGREGATE PREPAYMENT INTEREST SHORTFALLS. On each
Distribution Date, any Net Aggregate Prepayment Interest Shortfalls in REMIC I
shall be allocated among the REMIC I Regular Interests (other than to the extent
allocable to the REMIC
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I Non-Pooled Regular Interest as described below), pro rata in proportion to the
Accrued Certificate Interest for each such REMIC I Regular Interest for such
Distribution Date and shall reduce Distributable Certificate Interest for each
such Interest. On each Distribution Date, any Net Aggregate Prepayment Interest
Shortfalls in REMIC II (other than to the extent allocable to the REMIC II
Regular Interest LF as described below) shall be allocated among the REMIC II
Regular Interests other than REMIC II Regular Interest LF, pro rata in
proportion to the Accrued Certificate Interest for each such REMIC II Regular
Interest for such Distribution Date and shall reduce Distributable Certificate
Interest for each such Interest and any Prepayment Interest Shortfalls with
respect to the Lakeforest Mall Mortgage Loan Non-Pooled Component shall be
allocated to the REMIC II Regular Interest LF. On each Distribution Date, the
amount of any Net Aggregate Prepayment Interest Shortfalls on the REMIC III
Regular Interests shall be allocated to each Class of Certificates (other than
the Class LF Certificates), pro rata, in proportion to the amount of Accrued
Certificate Interest payable to such Class of Certificates on such Distribution
Date, in each case reducing interest otherwise payable thereon. The amount of
Net Aggregate Prepayment Interest Shortfalls allocated to a Class of
Certificates pursuant to the preceding sentence shall reduce the Distributable
Certificate Interest for such Class for such Distribution Date. No Prepayment
Interest Shortfall with respect to a Serviced Companion Mortgage Loan or a B
Note shall be allocated to any Class of Certificates. With respect to the
Lakeforest Mall Mortgage Loan, Prepayment Interest Shortfalls will be allocated
first to the Lakeforest Mall Mortgage Loan Non-Pooled Component and then to the
Lakeforest Mall Mortgage Loan Pooled Component. Any Prepayment Interest
Shortfall, to the extent not allocated to the Lakeforest Mall Mortgage Loan
Non-Pooled Component and resulting in a Net Aggregate Prepayment Interest
Shortfall, will be allocated to the Certificates (other than the Residual
Certificates and the Class LF Certificates) as described above.
SECTION 6.8 ADJUSTMENT OF SERVICING FEES. The Master Servicing Fee
payable to the Master Servicer shall be adjusted as provided in Section 8.10(c)
herein. Any amount retained by REMIC I as a result of a reduction of the Master
Servicing Fee shall be treated as interest collected with respect to the prepaid
Mortgage Loans with respect to which the Master Servicing Fee adjustment occurs.
SECTION 6.9 APPRAISAL REDUCTIONS. Not later than the date on which an
Appraisal Event occurs, the Special Servicer shall have obtained (A) an
Appraisal of the Mortgaged Property securing the related Mortgage Loan
(including the Lakeforest Mall Mortgage Loan Non-Pooled Component, if
applicable), Loan Pair or A/B Mortgage Loan, if the Principal Balance of such
Mortgage Loan (including the Lakeforest Mall Mortgage Loan Non-Pooled Component,
if applicable), Loan Pair or A/B Mortgage Loan exceeds $2,000,000 or (B) at the
option of the Special Servicer, if such Principal Balance is less than or equal
to $2,000,000, either an internal valuation prepared by the Special Servicer in
accordance with MAI standards or an Appraisal which in all cases shall be
completed as of the date that such Mortgage Loan (including the Lakeforest Mall
Mortgage Loan Non-Pooled Component, if applicable), Loan Pair or A/B Mortgage
Loan becomes a Required Appraisal Loan; provided that if the Special Servicer
had completed or obtained an Appraisal or internal valuation within the
immediately prior 12 months, the Special Servicer may rely on such Appraisal or
internal valuation and shall have no duty to prepare a new Appraisal or internal
valuation, unless such reliance would not be in accordance with the Servicing
Standard; provided, further, that if the Special Servicer is required to obtain
an Appraisal of a Mortgaged Property after receipt of the
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notice described in clause (ii) of the definition of Appraisal Event, such
Appraisal will be obtained no later than 60 days after receipt of such notice
and an internal valuation will be obtained no later than 60 days after receipt
of such notice. Notwithstanding the foregoing, an Appraisal shall not be
required so long as a guaranty or surety bond that is rated at least "BBB-" (or
its equivalent) by a nationally recognized statistical rating organization, or
debt service reserve or a letter of credit is available and has the ability to
pay off the then outstanding Principal Balance of the Mortgage Loan in full,
except to the extent that the Special Servicer, in accordance with the Servicing
Standard, determines that obtaining an Appraisal is in the best interests of the
Certificateholders. Such Appraisal or valuation shall be conducted in accordance
with the definition of "market value" as set forth in 12 C.F.R. Section 225.62
and shall be updated at least annually to the extent such Mortgage Loan remains
a Required Appraisal Loan. The cost of any such Appraisal or valuation, if not
performed by the Special Servicer, shall be an expense of the Trust (and any
related B Note) and may be paid from REO Income or, to the extent collections
from such related Mortgage Loan (including the Lakeforest Mall Mortgage Loan
Non-Pooled Component, if applicable), B Note, Loan Pair or Mortgaged Property
does not cover the expense, such unpaid expense shall be, subject to Section 4.4
hereof, advanced by the Master Servicer at the request of the Special Servicer
or by the Special Servicer pursuant to Section 4.2 in which event it shall be
treated as a Servicing Advance. The Master Servicer, based on the Appraisal or
internal valuation provided to it by the Special Servicer, shall calculate any
Appraisal Reduction. The Master Servicer shall calculate or recalculate the
Appraisal Reduction for any Mortgage Loan (including the Lakeforest Mall
Mortgage Loan Non-Pooled Component, if applicable), B Note and Loan Pair based
on updated Appraisals or internal valuations provided from time to time to it by
the Special Servicer and report such amount to the Trustee annually.
Notwithstanding the foregoing, the terms of this Section 6.9 shall not be
applicable to any Non-Serviced Mortgage Loan if the applicable Non-Serviced
Mortgage Loan Special Servicer shall have performed such obligations with
respect to such Mortgage Loan pursuant to the terms of the related Non-Serviced
Mortgage Loan Pooling and Servicing Agreement.
SECTION 6.10 COMPLIANCE WITH WITHHOLDING REQUIREMENTS. Notwithstanding
any other provision of this Agreement to the contrary, the Paying Agent on
behalf of the Trustee shall comply with all federal withholding requirements
with respect to payments to Certificateholders of interest, original issue
discount, or other amounts that the Paying Agent reasonably believes are
applicable under the Code. The consent of Certificateholders shall not be
required for any such withholding and any amount so withheld shall be regarded
as distributed to the related Certificateholders for purposes of this Agreement.
In the event the Paying Agent withholds any amount from payments made to any
Certificateholder pursuant to federal withholding requirements, the Paying Agent
shall indicate to such Certificateholder the amount withheld. The Trustee shall
not be responsible for the Paying Agent's failure to comply with any withholding
requirements.
SECTION 6.11 PREPAYMENT PREMIUMS. Any Prepayment Premium collected
with respect to a Mortgage Loan (but not a B Note or Serviced Companion Mortgage
Loan, which Prepayment Premium is payable to the holder of the related B Note or
the holder of the related Serviced Companion Mortgage Loan, as applicable)
during any particular Collection Period will be deemed distributed to the
Trustee by the Paying Agent on the following Distribution Date as follows: (i)
first, the Paying Agent shall be deemed to distribute to the Trustee, as holder
of the REMIC I Regular Interest to which such Mortgage Loan relates, any
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Prepayment Premiums collected on or with respect to such Mortgage Loan; and (ii)
second, the Paying Agent shall be deemed to distribute to the Trustee, as holder
of the REMIC II Regular Interests, any Prepayment Premiums deemed distributed to
the REMIC I Regular Interests, and shall be deemed to distribute such Prepayment
Premiums to the REMIC II Regular Interest then entitled to distributions of
principal from the Principal Distribution Amount (or, if more than one Class of
REMIC II Regular Interests is then entitled to distributions of principal from
the Principal Distribution Amount, such Prepayment Premiums shall be deemed
distributed among such Classes pro rata in accordance with the relevant amounts
of entitlements to distributions of principal). Following such deemed
distributions, the Holders of the respective Classes of Principal Balance
Certificates (other than the Class K, Class L, Class M, Class N, Class O, Class
P and Class Q Certificates), then entitled to distributions of principal from
the Principal Distribution Amount for such Distribution Date, will be entitled
to, and the Paying Agent on behalf of the Trustee will pay to such Holder(s), an
amount equal to, in the case of each such Class, the product of (a) a fraction,
the numerator of which is the amount distributed as principal to the holders of
that Class on that Distribution Date, and the denominator of which is the total
amount distributed as principal to the holders of all Classes of Certificates
(other than the Class LF Certificates) on that Distribution Date, (b) the Base
Interest Fraction for the related Principal Prepayment and that Class and (c)
the aggregate amount of Prepayment Premiums collected during the related
Collection Period. Any portion of such Prepayment Premium that is not so
distributed to the Holders of such Principal Balance Certificates will be
distributed to the Holders of the Class X Certificates.
ARTICLE VII
CONCERNING THE TRUSTEE, THE FISCAL AGENT, THE PAYING AGENT AND
THE LUXEMBOURG PAYING AGENT
SECTION 7.1 DUTIES OF THE TRUSTEE, THE FISCAL AGENT AND THE PAYING
AGENT.
(a) The Trustee, the Fiscal Agent and the Paying Agent each shall
undertake to perform only those duties as are specifically set forth in this
Agreement and no implied covenants or obligations shall be read into this
Agreement against the Trustee, the Fiscal Agent or the Paying Agent. Any
permissive right of the Trustee, the Fiscal Agent or the Paying Agent provided
for in this Agreement shall not be construed as a duty of the Trustee, the
Fiscal Agent or the Paying Agent. The Trustee, the Fiscal Agent and the Paying
Agent each shall exercise such of the rights and powers vested in it by this
Agreement and following the occurrence and during the continuation of any Event
of Default hereunder, the Trustee and Fiscal Agent and the Paying Agent each
shall use the same degree of care and skill in its exercise as a prudent Person
would exercise or use under the circumstances in the conduct of such Person's
own affairs.
(b) The Trustee, the Fiscal Agent or the Paying Agent, as applicable,
upon receipt of all resolutions, certificates, statements, opinions, reports,
documents, orders or other instruments furnished to the Trustee, the Fiscal
Agent or the Paying Agent, as the case may be, which are specifically required
to be furnished pursuant to any provision of this Agreement, shall examine them
to determine whether they on their face conform to the requirements of this
Agreement; provided that the Trustee, the Fiscal Agent or the Paying Agent, as
the case may be, shall not be responsible for the accuracy or content of any
such resolution, certificate, statement, opinion, report, document, order or
other instrument furnished by the Master Servicer or any
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other Person to it pursuant to this Agreement. If any such instrument is found
on its face not to conform to the requirements of this Agreement, the Trustee or
the Paying Agent shall request the providing party to correct the instrument and
if not so corrected, the Paying Agent shall inform the Certificateholders.
(c) Neither the Trustee, the Fiscal Agent nor the Paying Agent nor any
of their respective directors, officers, employees, agents or Controlling
Persons shall have any liability to the Trust or the Certificateholders arising
out of or in connection with this Agreement, except for their respective
negligence or willful misconduct. No provision of this Agreement shall be
construed to relieve the Trustee, the Fiscal Agent, the Paying Agent or any of
their respective directors, officers, employees, agents or Controlling Persons
from liability for their own negligent action, their own negligent failure to
act or their own willful misconduct or bad faith; provided that:
(i) neither the Trustee, the Fiscal Agent nor the Paying Agent
nor any of their respective directors, officers, employees, agents or
Controlling Persons shall be personally liable with respect to any action taken,
suffered or omitted to be taken by it in its reasonable business judgment in
accordance with this Agreement or at the direction of Holders of Certificates
evidencing not less than a majority of the outstanding Certificate Balance of
the Certificates;
(ii) no provision of this Agreement shall require either the
Trustee, the Fiscal Agent or the Paying Agent to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it;
(iii) neither the Trustee, the Fiscal Agent nor the Paying Agent
nor any of their respective directors, officers, employees, agents or
Controlling Persons shall be responsible for any act or omission of the Master
Servicer, the Special Servicer, the Depositor or either Seller, or for the acts
or omissions of each other, including, without limitation, in connection with
actions taken pursuant to this Agreement;
(iv) the execution by the Trustee or the Paying Agent of any
forms or plans of liquidation in connection with any REMIC Pool shall not
constitute a representation by the Trustee or the Paying Agent as to the
adequacy of such form or plan of liquidation;
(v) none of the Trustee, the Fiscal Agent nor the Paying Agent
shall be under any obligation to appear in, prosecute or defend any legal action
which is not incidental to its duties as Trustee, the Fiscal Agent or the Paying
Agent, as applicable in accordance with this Agreement. In such event, all legal
expense and costs of such action shall be expenses and costs of the Trust, and
the Trustee, the Paying Agent and the Fiscal Agent shall be entitled to be
reimbursed therefor from the Certificate Account pursuant to Section 5.2(a)(vi);
and
(vi) neither the Trustee, the Fiscal Agent nor the Paying Agent
shall be charged with knowledge of any failure by the Master Servicer or the
Special Servicer or by each other to comply with its obligations under this
Agreement or any act, failure, or breach of any Person upon the occurrence of
which the Trustee, the Fiscal Agent or the Paying Agent may be
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required to act, unless a Responsible Officer of the Trustee, the Fiscal Agent
or the Paying Agent, as the case may be, obtains actual knowledge of such
failure.
(d) For so long as the Certificates are listed on the Luxembourg Stock
Exchange, the Depositor shall cause the continuing obligations under the listing
rules for the Luxembourg Stock Exchange to be complied with in respect of the
Certificates. The Trustee, the Fiscal Agent and the Paying Agent shall not be
liable for a failure in compliance with such continuing obligations under the
listing rules of the Luxembourg Stock Exchange if such failure is caused by the
negligence or willful misconduct of the Luxembourg Paying Agent.
SECTION 7.2 CERTAIN MATTERS AFFECTING THE TRUSTEE, THE FISCAL AGENT
AND THE PAYING AGENT.
(a) Except as otherwise provided in Section 7.1:
(i) the Trustee, the Fiscal Agent and the Paying Agent each may
request, and may rely and shall be protected in acting or refraining from acting
upon any resolution, Officer's Certificate, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice, request, consent,
order, appraisal, bond or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(ii) the Trustee, the Fiscal Agent and the Paying Agent each may
consult with counsel and the advice of such counsel and any Opinion of Counsel
shall be full and complete authorization and protection in respect of any action
taken or suffered or omitted by it hereunder in good faith and in accordance
with such advice or Opinion of Counsel;
(iii) neither the Trustee nor the Fiscal Agent nor the Paying
Agent nor any of their respective directors, officers, employees, agents or
Controlling Persons shall be personally liable for any action taken, suffered or
omitted by such Person in its reasonable business judgment and reasonably
believed by it to be authorized or within the discretion or rights or powers
conferred upon it by this Agreement;
(iv) the Trustee and the Paying Agent shall not be under any
obligation to exercise any remedies after default as specified in this Agreement
or to institute, conduct or defend any litigation hereunder or relating hereto
or make any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request, consent,
order, approval, bond or other paper or document (provided the same appears
regular on its face), unless requested in writing to do so by Holders of at
least 25% of the Aggregate Certificate Balance of the Certificates then
outstanding provided that, if the payment within a reasonable time to the
Trustee or the Paying Agent, as applicable, of the costs, expenses or
liabilities likely to be incurred by it in connection with the foregoing is, in
the opinion of such Person not reasonably assured to such Person by the security
afforded to it by the terms of this Agreement, such Person may require
reasonable indemnity against such expense or liability or payment of such
estimated expenses as a condition to proceeding. The reasonable expenses of the
Trustee or the Paying Agent, as applicable, shall be paid by the
Certificateholders requesting such examination;
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(v) the Trustee, the Fiscal Agent and the Paying Agent each may
execute any of the trusts or powers hereunder or perform any duties hereunder
either directly or by or through agents or attorneys, which agents or attorneys
shall have any or all of the rights, powers, duties and obligations of the
Trustee, the Fiscal Agent and the Paying Agent conferred on them by such
appointment; provided that each of the Trustee, the Fiscal Agent and the Paying
Agent, as the case may be, shall continue to be responsible for its duties and
obligations hereunder and shall not be liable for the actions or omissions of
the Master Servicer, the Special Servicer, the Depositor or the actions or
omissions of each other;
(vi) neither the Trustee nor the Fiscal Agent nor the Paying
Agent shall be required to obtain a deficiency judgment against a Mortgagor;
(vii) neither the Trustee nor the Fiscal Agent nor the Paying
Agent shall be required to expend its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such liability is not assured to it;
(viii) neither the Trustee nor the Fiscal Agent nor the Paying
Agent shall be liable for any loss on any investment of funds pursuant to this
Agreement;
(ix) unless otherwise specifically required by law, neither the
Trustee nor the Fiscal Agent nor the Paying Agent shall be required to post any
surety or bond of any kind in connection with the execution or performance of
its duties hereunder; and
(x) except as specifically provided hereunder in connection with
the performance of its specific duties, neither the Trustee nor the Fiscal Agent
nor the Paying Agent shall be responsible for any act or omission of the Master
Servicer, the Special Servicer, the Depositor or of each other.
(b) Following the Closing Date, the Trustee shall not accept any
contribution of assets to the Trust not specifically contemplated by this
Agreement unless the Trustee shall have received a Nondisqualification Opinion
at the expense of the Person desiring to contribute such assets with respect to
such contribution.
(c) All rights of action under this Agreement or under any of the
Certificates, enforceable by the Trustee, may be enforced by it without the
possession of any of the Certificates, or the production thereof at the trial or
any proceeding relating thereto, and any such suit, action or proceeding
instituted by the Trustee shall be brought in its name for the benefit of all
the Holders of such Certificates, subject to the provisions of this Agreement.
(d) The Trustee shall timely pay, from its own funds, the amount of
any and all federal, state and local taxes imposed on the Trust or its assets or
transactions including, without limitation, (A) "prohibited transaction" penalty
taxes as defined in Section 860F of the Code, if, when and as the same shall be
due and payable, (B) any tax on contributions to a REMIC after the Closing Date
imposed by Section 860G(d) of the Code and (C) any tax on "net income from
foreclosure property" as defined in Section 860G(c) of the Code, but only to the
extent such taxes arise out of a breach by the Trustee of its obligations
hereunder, which breach constitutes negligence or willful misconduct of the
Trustee.
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(e) The Paying Agent shall timely pay, from its own funds, the amount
of any and all federal, state and local taxes imposed on the Trust or its assets
or transactions including, without limitation, (A) "prohibited transaction"
penalty taxes as defined in Section 860F of the Code, if, when and as the same
shall be due and payable, (B) any tax on contributions to a REMIC after the
Closing Date imposed by Section 860G(d) of the Code and (C) any tax on "net
income from foreclosure property" as defined in Section 860G(c) of the Code, but
only to the extent such taxes arise out of a breach by the Paying Agent of its
obligations hereunder, which breach constitutes negligence or willful misconduct
of the Paying Agent.
SECTION 7.3 THE TRUSTEE, THE FISCAL AGENT AND THE PAYING AGENT NOT
LIABLE FOR CERTIFICATES OR INTERESTS OR MORTGAGE LOANS. The Trustee, the Fiscal
Agent and the Paying Agent each makes no representations as to the validity or
sufficiency of this Agreement, the information contained in the Private
Placement Memorandum, the Preliminary Prospectus Supplement, the Final
Prospectus Supplement or Prospectus for the REMIC III Certificates or Residual
Certificates (other than the Certificate of Authentication on the Certificates
if the Paying Agent is the Authenticating Agent) or of any Mortgage Loan,
Assignment of Mortgage or related document save that (i) each of the Trustee,
the Fiscal Agent and the Paying Agent represents that, assuming due execution
and delivery by the other parties hereto, this Agreement has been duly
authorized, executed and delivered by it and constitutes its valid and binding
obligation, enforceable against it in accordance with its terms except that such
enforceability may be subject to (A) applicable bankruptcy and insolvency laws
and other similar laws affecting the enforcement of the rights of creditors
generally, and (B) general principles of equity regardless of whether such
enforcement is considered in a proceeding in equity or at law and (ii) the
Trustee represents that, assuming due execution and delivery by the other
parties hereto, this Agreement has been duly authorized, executed and delivered
by it and constitutes its valid and binding obligation, enforceable against it
in accordance with its terms except that such enforceability may be subject to
(A) applicable bankruptcy and insolvency laws and other similar laws affecting
the enforcement of the rights of creditors generally, and (B) general principles
of equity regardless of whether such enforcement is considered in a proceeding
in equity or at law. None of the Trustee, the Fiscal Agent or the Paying Agent
shall be accountable for the use or application by the Depositor or the Master
Servicer or the Special Servicer or by each other of any of the Certificates or
any of the proceeds of such Certificates, or for the use or application by the
Depositor or the Master Servicer or the Special Servicer or by each other of
funds paid in consideration of the assignment of the Mortgage Loans to the Trust
or deposited into the Distribution Account or any other fund or account
maintained with respect to the Certificates or any account maintained pursuant
to this Agreement or for investment of any such amounts. No recourse shall be
had for any claim based on any provisions of this Agreement, the Private
Placement Memorandum, the Preliminary Prospectus Supplement, the Final
Prospectus Supplement, the Prospectus or the Certificates (except with respect
to the Trustee and Fiscal Agent to the extent of information furnished by the
Trustee and the Fiscal Agent under the caption entitled "DESCRIPTION OF THE
OFFERED CERTIFICATES-- The Trustee and the Fiscal Agent" and with respect to the
Paying Agent, to the extent of information furnished by the Paying Agent under
the caption "DESCRIPTION OF THE OFFERED CERTIFICATES-- The Paying Agent,
Certificate Registrar and Authenticating Agent" each in the Preliminary
Prospectus Supplement and the Final Prospectus Supplement), the Mortgage Loans
or the assignment thereof against the Trustee, the Fiscal Agent or the Paying
Agent in such Person's individual capacity and any such claim shall be asserted
solely against the Trust or any
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indemnitor who shall furnish indemnity as provided herein. Neither the Trustee
nor the Fiscal Agent nor the Paying Agent shall be liable for any action or
failure of any action by the Depositor or the Master Servicer or the Special
Servicer or by each other hereunder. Neither the Trustee nor the Fiscal Agent
nor the Paying Agent shall at any time have any responsibility or liability for
or with respect to the legality, validity or enforceability of the Mortgages or
the Mortgage Loans, or the perfection and priority of the Mortgages or the
maintenance of any such perfection and priority, or for or with respect to the
efficacy of the Trust or its ability to generate the payments to be distributed
to Certificateholders under this Agreement, including, without limitation, the
existence, condition and ownership of any Mortgaged Property; the existence and
enforceability of any hazard insurance thereon; the validity of the assignment
of the Mortgage Loans to the Trust or of any intervening assignment; the
completeness of the Mortgage Loans; the performance or enforcement of the
Mortgage Loans (other than if the Trustee shall assume the duties of the Master
Servicer); the compliance by the Depositor, each Seller, the Mortgagor or the
Master Servicer or the Special Servicer or by each other with any warranty or
representation made under this Agreement or in any related document or the
accuracy of any such warranty or representation made under this Agreement or in
any related document prior to the receipt by a Responsible Officer of the
Trustee of notice or other discovery of any non-compliance therewith or any
breach thereof; any investment of monies by or at the direction of the Master
Servicer or the Special Servicer or any loss resulting therefrom; the failure of
the Master Servicer or any Sub-Servicer or the Special Servicer to act or
perform any duties required of it on behalf of the Trustee hereunder; or any
action by the Trustee taken at the instruction of the Master Servicer or the
Special Servicer.
SECTION 7.4 THE TRUSTEE, THE FISCAL AGENT AND THE PAYING AGENT MAY OWN
CERTIFICATES. Each of the Trustee, the Fiscal Agent and the Paying Agent in its
individual or any other capacity may become the owner or pledgee of Certificates
with the same rights it would have if it were not the Trustee, the Fiscal Agent
or the Paying Agent, as the case may be.
SECTION 7.5 ELIGIBILITY REQUIREMENTS FOR THE TRUSTEE, THE FISCAL AGENT
AND THE PAYING AGENT. The Trustee hereunder shall at all times be (i) an
institution insured by the FDIC, (ii) a corporation, national bank or national
banking association authorized to exercise corporate trust powers, having a
combined capital and surplus of not less than $50,000,000 and subject to
supervision or examination by federal or state authority, and (iii) an
institution whose short-term debt obligations are at all times rated not less
than "Prime-1" by Xxxxx'x and whose long-term senior unsecured debt is at all
times rated not less than "AA-" by Fitch (or "A+" by Fitch if the Trustee's
short-term unsecured debt is rated at least "F-1" by Fitch) and "Aa3" by
Xxxxx'x, provided, that if the Fiscal Agent is rated at least "AA-" by Fitch (or
"A+" by Fitch if the Fiscal Agent's short-term unsecured debt is rated at least
"F-1" by Fitch), and "Aa3" by Xxxxx'x, then the Trustee must be rated not less
than "A-" by Fitch and "A3" by Xxxxx'x, or otherwise acceptable to the Rating
Agencies as evidenced by a Rating Agency Confirmation. If such corporation,
national bank or national banking association publishes reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then, for the purposes of this Section, the
combined capital and surplus of such corporation, national bank or national
banking association shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. In case at any
time the Trustee shall cease to be eligible in accordance with provisions of
this Section, the
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Trustee or the Fiscal Agent shall resign immediately in the manner and with the
effect specified in Section 7.6.
(b) The Paying Agent shall be either a bank or trust company or
otherwise authorized under law to exercise corporate trust powers and shall be
rated at least "A" by Fitch and "A2" by Xxxxx'x, unless and to the extent Rating
Agency Confirmation is obtained.
SECTION 7.6 RESIGNATION AND REMOVAL OF THE TRUSTEE, THE FISCAL AGENT
OR THE PAYING AGENT.
(a) The Trustee, the Fiscal Agent or the Paying Agent may at any time
resign and be discharged from the trusts hereby created by giving written notice
thereof to the Depositor, the Master Servicer and the Rating Agencies; provided
that such resignation shall not be effective until its successor shall have
accepted the appointment. Upon receiving such notice of resignation, the
Depositor will promptly appoint a successor trustee, fiscal agent or paying
agent, as the case may be, except in the case of the initial Trustee or Fiscal
Agent, in which case both shall be so replaced but may be replaced under this
paragraph sequentially, by written instrument, one copy of which instrument
shall be delivered to the resigning Trustee or the Fiscal Agent, one copy to the
successor trustee and one copy to each of the Master Servicer, the Paying Agent
and the Rating Agencies. If no successor trustee, fiscal agent or paying agent
shall have been so appointed, as the case may be, and shall have accepted
appointment within 30 days after the giving of such notice of resignation, the
resigning Trustee, the Fiscal Agent or the Paying Agent, as the case may be, may
petition any court of competent jurisdiction for the appointment of a successor
trustee, fiscal agent or paying agent, as the case may be. It shall be a
condition to the appointment of a successor trustee or fiscal agent that such
entity satisfies the eligibility requirements set forth in Section 7.5.
(b) If at any time (i) the Trustee shall cease to be eligible in
accordance with the provisions of Section 7.5 and shall fail to resign after
written request therefor by the Depositor, (ii) the Trustee shall become
incapable of acting, or shall be adjudged a bankrupt or insolvent, or a receiver
of the Trustee or of its property shall be appointed, or any public officer
shall take charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation, (iii) a tax is
imposed or threatened with respect to the Trust or any REMIC Pool by any state
in which the Trustee or the Trust held by the Trustee is located solely because
of the location of the Trustee in such state; provided, however, that, if the
Trustee agrees to indemnify the Trust for such taxes, it shall not be removed
pursuant to this clause (iii), (iv) the continuation of the Trustee as such
would result in a downgrade, qualification or withdrawal of the rating by the
Rating Agencies of any Class of Certificates with a rating as evidenced in
writing by the Rating Agencies or (v) with respect with the initial Trustee, a
Fiscal Agent Termination Event has occurred unless the Trustee has satisfied the
ratings required by clause (iii) of Section 7.5, then the Depositor may remove
such Trustee and appoint a successor trustee by written instrument, one copy of
which instrument shall be delivered to the Trustee so removed, one copy to the
successor trustee and one copy to each of the Master Servicer and the Rating
Agencies. In the case of removal under clauses (i), (ii), (iii) and (iv) above,
the Trustee shall bear all such costs of transfer. Such succession shall take
effect after a successor trustee has been appointed. In the case of the removal
of the initial Trustee, the Depositor shall also remove the Fiscal Agent. In
this case, the procedures and liability for costs
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of such removal shall be the same as they are stated in subsection (c) with
respect to the Fiscal Agent.
(c) If at any time (i) the Fiscal Agent shall cease to be eligible in
accordance with the provisions of Section 7.5 and shall fail to resign after
written request therefor by the Depositor, or (ii) a Fiscal Agent Termination
Event has occurred, then the Depositor shall send a written notice of
termination to the Fiscal Agent (which notice shall specify the reason for such
termination) and remove such Fiscal Agent and appoint a successor Fiscal Agent
by written instrument, one copy of which instrument shall be delivered to the
Fiscal Agent so removed, one copy to the successor Fiscal Agent, and one copy to
each of the Trustee, the Master Servicer and the Rating Agencies. In all such
cases, the Fiscal Agent shall bear all costs of transfer to a successor Fiscal
Agent, such succession only to take effect after a successor Fiscal Agent has
been appointed. In the case of the initial Fiscal Agent, the Depositor may, but
is not required to, also remove the Trustee. In this case, the procedures and
liability for costs of such removal shall be the same as they are stated in
subsection (b) with respect to the Trustee.
(d) If at any time (i) the Paying Agent shall cease to be eligible in
accordance with the provisions of Section 7.5(b) and shall fail to resign after
written request therefor by the Depositor, (ii) the Paying Agent shall become
incapable of acting, or shall be adjudged a bankrupt or insolvent, or a receiver
of the Paying Agent or of its property shall be appointed, or any public officer
shall take charge or control of the Paying Agent or of its property or affairs
for the purpose of rehabilitation, conservation or liquidation, (iii) a tax is
imposed or threatened with respect to the Trust or any REMIC Pool by any state
in which the Paying Agent is located solely because of the location of the
Paying Agent in such state; provided, however, that, if the Paying Agent agrees
to indemnify the Trust for such taxes, it shall not be removed pursuant to this
clause (iii), or (iv) the continuation of the Paying Agent as such would result
in a downgrade, qualification or withdrawal, as applicable, of the rating by any
Rating Agency of any Class of Certificates with a rating as evidenced in writing
by the Rating Agencies, then the Depositor or the Trustee shall send a written
notice of termination to the Paying Agent (which notice shall specify the reason
for such termination) and remove such Paying Agent and the Depositor shall
appoint a successor Paying Agent by written instrument, one copy of which
instrument shall be delivered to the Paying Agent so removed, one copy to the
successor Paying Agent, and one copy to each of the Trustee, the Master Servicer
and the Rating Agencies. In all such cases, the Paying Agent shall bear all
costs of transfer to a successor Paying Agent, such succession only to take
effect after a successor Paying Agent has been appointed.
(e) The Holders of more than 50% of the Aggregate Certificate Balance
of the Principal Balance Certificates then outstanding may for cause upon 30
days' written notice to the Trustee, the Fiscal Agent or the Paying Agent, as
the case may be, and to the Depositor remove the Trustee, the Fiscal Agent or
the Paying Agent, as the case may be, by such written instrument, signed by such
Holders or their attorney-in-fact duly authorized, one copy of which instrument
shall be delivered to the Depositor and one copy to the Trustee, the Fiscal
Agent or the Paying Agent, as the case may be, so removed; the Depositor shall
thereupon use its best efforts to appoint a successor Trustee, Fiscal Agent or
Paying Agent, as the case may be, in accordance with this Section.
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(f) Any resignation or removal of the Trustee, the Fiscal Agent or the
Paying Agent, as the case may be, and appointment of a successor trustee, fiscal
agent or paying agent pursuant to any of the provisions of this Section shall
become effective upon acceptance of appointment by the successor trustee, fiscal
agent or paying agent, as the case may be, as provided in Section 7.7. Upon any
succession of the Trustee, the Fiscal Agent or the Paying Agent under this
Agreement, the predecessor Trustee, Fiscal Agent or Paying Agent, as the case
may be, shall be entitled to the payment of compensation and reimbursement
agreed to under this Agreement for services rendered and expenses incurred. The
Trustee, the Fiscal Agent or the Paying Agent shall not be liable for any action
or omission of any successor Trustee, Fiscal Agent or Paying Agent, as the case
may be.
SECTION 7.7 SUCCESSOR TRUSTEE, FISCAL AGENT OR PAYING AGENT.
(a) Any successor Trustee, Fiscal Agent or Paying Agent appointed as
provided in Section 7.6 shall execute, acknowledge and deliver to the Depositor
and to its predecessor Trustee, Fiscal Agent or Paying Agent, as the case may
be, an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor Trustee, Fiscal Agent or Paying Agent,
as the case may be, shall become effective and such successor Trustee, Fiscal
Agent or Paying Agent, as the case may be, without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with like effect as if originally
named as Trustee, Fiscal Agent or Paying Agent herein. The predecessor Trustee,
Fiscal Agent or Paying Agent shall deliver (at such predecessor's own expense)
to the successor Trustee, Fiscal Agent or Paying Agent all Mortgage Files and
documents and statements related to the Mortgage Files held by it hereunder, and
the predecessor Trustee shall duly assign, transfer, deliver and pay over (at
such predecessor's own expense) to the successor Trustee, the entire Trust,
together with all instruments of transfer and assignment or other documents
properly executed necessary to effect such transfer. The predecessor Trustee,
Fiscal Agent or Paying Agent, as the case may be, shall also deliver all records
or copies thereof maintained by the predecessor Trustee, Fiscal Agent or Paying
Agent in the administration hereof as may be reasonably requested by the
successor Trustee, Fiscal Agent or Paying Agent, as applicable, and shall
thereupon be discharged from all duties and responsibilities under this
Agreement. In addition, the Depositor and the predecessor Trustee, Fiscal Agent
or Paying Agent shall execute and deliver such other instruments and do such
other things as may reasonably be required to more fully and certainly vest and
confirm in the successor Trustee, Fiscal Agent or Paying Agent, as the case may
be, all such rights, powers, duties and obligations. Anything herein to the
contrary notwithstanding, in no event shall the combined fees payable to a
successor Trustee exceed the Trustee Fee.
(b) No successor Trustee, Fiscal Agent or Paying Agent shall accept
appointment as provided in this Section unless at the time of such appointment
such successor Trustee, Fiscal Agent or Paying Agent, as the case may be, shall
be eligible under the provisions of Section 7.5.
(c) Upon acceptance of appointment by a successor Trustee, Fiscal
Agent or Paying Agent as provided in this Section, the successor Trustee, Fiscal
Agent or Paying Agent shall mail notice of the succession of such Trustee,
Fiscal Agent or Paying Agent hereunder to all Holders of Certificates at their
addresses as shown in the Certificate Register and to the
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Rating Agencies. The expenses of such mailing shall be borne by the successor
Trustee, Fiscal Agent or Paying Agent. If the successor Trustee, Fiscal Agent or
Paying Agent fails to mail such notice within 10 days after acceptance of
appointment by the successor Trustee, Fiscal Agent or Paying Agent, the Master
Servicer shall cause such notice to be mailed at the expense of the successor
Trustee, Fiscal Agent or Paying Agent, as applicable.
SECTION 7.8 MERGER OR CONSOLIDATION OF TRUSTEE, FISCAL AGENT OR PAYING
AGENT. Any Person into which the Trustee, Fiscal Agent or Paying Agent may be
merged or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which such Trustee,
Fiscal Agent or Paying Agent shall be a party, or any Persons succeeding to the
business of such Trustee, Fiscal Agent or Paying Agent, shall be the successor
of such Trustee, Fiscal Agent or Paying Agent, as the case may be, hereunder, as
applicable, provided that such Person shall be eligible under the provisions of
Section 7.5, without the execution or filing of any paper or any further act on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
SECTION 7.9 APPOINTMENT OF CO-TRUSTEE, SEPARATE TRUSTEE, AGENTS OR
CUSTODIAN.
(a) Notwithstanding any other provisions hereof, at any time, the
Trustee, the Depositor or, in the case of the Trust, the Certificateholders
evidencing more than 50% of the Aggregate Certificate Balance of the
Certificates then outstanding shall each have the power from time to time to
appoint one or more Persons to act either as co-trustees jointly with the
Trustee or as separate trustees, or as custodians, for the purpose of holding
title to, foreclosing or otherwise taking action with respect to any Mortgage
Loan outside the state where the Trustee has its principal place of business
where such separate trustee or co-trustee is necessary or advisable (or the
Trustee is advised by the Master Servicer or Special Servicer that such separate
trustee or co-trustee is necessary or advisable) under the laws of any state in
which a property securing a Mortgage Loan is located or for the purpose of
otherwise conforming to any legal requirement, restriction or condition in any
state in which a property securing a Mortgage Loan is located or in any state in
which any portion of the Trust is located. The separate trustees, co-trustees,
or custodians so appointed shall be trustees or custodians for the benefit of
all the Certificateholders, shall have such powers, rights and remedies as shall
be specified in the instrument of appointment and shall be deemed to have
accepted the provisions of this Agreement; provided that no such appointment
shall, or shall be deemed to, constitute the appointee an agent of the Trustee;
provided, further that the Trustee shall be liable for the actions of any
co-trustee or separate trustee appointed by it and shall have no liability for
the actions of any co-trustee or separate trustee appointed by the Depositor or
the Certificateholders pursuant to this paragraph.
(b) The Trustee or the Paying Agent, as the case may be, may from time
to time appoint one or more independent third-party agents to perform all or any
portion of its administrative duties hereunder (i.e., collection and
distribution of funds, preparation and dissemination of reports, monitoring
compliance, etc.). The Trustee or the Paying Agent, as the case may be, shall
supervise and oversee such agents appointed by it. The terms of any arrangement
or agreement between the Trustee or the Paying Agent, as the case may be, and
such agent, may be terminated, without cause and without the payment of any
termination fees in
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the event the Trustee or the Paying Agent, as the case may be, is terminated in
accordance with this Agreement. In addition, neither the Trust nor the
Certificateholders shall have any liability or direct obligation to such agent.
Notwithstanding the terms of any such agreement, the Trustee or the Paying
Agent, as the case may be, shall remain at all times obligated and liable to the
Trust and the Certificateholders for performing its duties hereunder.
(c) Every separate trustee, co-trustee, and custodian shall, to the
extent permitted by law, be appointed and act subject to the following
provisions and conditions:
(i) all powers, duties, obligations and rights conferred upon the
Trustee in respect of the receipt, custody and payment of moneys shall be
exercised solely by the Trustee;
(ii) all other rights, powers, duties and obligations conferred
or imposed upon the Trustee shall be conferred or imposed upon and exercised or
performed by the Trustee and such separate trustee, co-trustee, or custodian
jointly, except to the extent that under any law of any jurisdiction in which
any particular act or acts are to be performed (whether as Trustee hereunder or
as successor to the Master Servicer hereunder) the Trustee shall be incompetent
or unqualified to perform such act or acts, in which event such rights, powers,
duties and obligations, including the holding of title to the Trust or any
portion thereof in any such jurisdiction, shall be exercised and performed by
such separate trustee, co-trustee, or custodian;
(iii) no trustee or custodian hereunder shall be personally
liable by reason of any act or omission of any other trustee or custodian
hereunder; and
(iv) the Trustee or, in the case of the Trust, the
Certificateholders evidencing more than 50% of the Aggregate Principal Amount of
the Certificates then outstanding may at any time accept the resignation of or
remove any separate trustee, co-trustee or custodian, so appointed by it or
them, if such resignation or removal does not violate the other terms of this
Agreement.
(d) Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee, co-trustee or custodian shall refer to this Agreement and the
conditions of this Article VII. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Trustee or
separately, as may be provided therein, subject to all the provisions of this
Agreement, specifically including every provision of this Agreement relating to
the conduct of, affecting the liability of, or affording protection to, the
Trustee. Every such instrument shall be filed with the Trustee.
(e) Any separate trustee, co-trustee or custodian may, at any time,
constitute the Trustee its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under or in
respect of this Agreement on its behalf and in its name. If any separate
trustee, co-trustee or custodian shall die, become incapable of acting, resign
or be removed, all of its estates, properties, rights, remedies and trusts shall
vest in and be exercised by the Trustee, to the extent permitted by law, without
the appointment of a new or successor trustee.
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(f) No separate trustee, co-trustee or custodian hereunder shall be
required to meet the terms of eligibility as a successor trustee under Section
7.5 hereof and no notice to Certificateholders of the appointment of any
separate trustee, co-trustee or custodian hereunder shall be required.
(g) The Trustee agrees to instruct the co-trustees, if any, to the
extent necessary to fulfill the Trustee's obligations hereunder.
(h) The Trustee shall pay the reasonable compensation of the
co-trustees, separate trustees or custodians appointed by the Trustee pursuant
to this Section 7.9 to the extent, and in accordance with the standards,
specified in Section 7.12 hereof.
(i) Subject to the consent of the Depositor, which consent shall not
be unreasonably withheld, the Trustee, at its sole cost and expense, may appoint
at any time a successor Custodian. Until such time as the Trustee appoints a
successor Custodian, the Trustee shall be the Custodian hereunder. Upon the
appointment of a successor custodian, the Trustee and the Custodian shall enter
into a custodial agreement.
SECTION 7.10 AUTHENTICATING AGENTS.
(a) The Paying Agent shall serve as the initial Authenticating Agent
hereunder for the purpose of executing and authenticating Certificates. Any
successor Authenticating Agent must be acceptable to the Depositor and must be a
corporation or national bank organized and doing business under the laws of the
United States of America or of any state and having a principal office and place
of business in the Borough of Manhattan in the City and State of New York,
having a combined capital and surplus of at least $50,000,000, authorized under
such laws to do a trust business and subject to supervision or examination by
federal or state authorities.
(b) Any Person into which the Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion or consolidation to which the Authenticating Agent shall be a
party, or any Person succeeding to the corporate agency business of the
Authenticating Agent, shall continue to be the Authenticating Agent without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
(c) The Authenticating Agent may at any time resign by giving at least
30 days' advance written notice of resignation to the Trustee and the Depositor.
The Trustee may at any time terminate the agency of the Authenticating Agent by
giving written notice of termination to the Authenticating Agent and the
Depositor; provided that the Trustee may not terminate the Paying Agent as
Authenticating Agent unless the Paying Agent shall be removed as Paying Agent
hereunder. Upon receiving a notice of resignation or upon such a termination, or
in case at any time the Authenticating Agent shall cease to be eligible in
accordance with the provisions of Section 7.10(a), the Trustee may appoint a
successor Authenticating Agent, shall give written notice of such appointment to
the Depositor and shall mail notice of such appointment to all Holders of
Certificates. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers, duties
and responsibilities of its predecessor hereunder, with like effect as if
originally named as
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Authenticating Agent. No such Authenticating Agent shall be appointed unless
eligible under the provisions of Section 7.10(a). No Authenticating Agent shall
have responsibility or liability for any action taken by it as such at the
direction of the Trustee.
SECTION 7.11 INDEMNIFICATION OF TRUSTEE, THE FISCAL AGENT AND THE
PAYING AGENT.
(a) The Trustee, the Fiscal Agent, the Certificate Registrar and the
Paying Agent and each of its respective directors, officers, employees, agents
and Controlling Persons shall be entitled to indemnification from the Trust for
any and all claims, losses, penalties, fines, forfeitures, legal fees and
related costs, judgments and any other costs, liabilities, fees and expenses
incurred in connection with any legal action incurred without negligence or
willful misconduct on their respective part, arising out of, or in connection
with this Agreement, the Certificates and the acceptance or administration of
the trusts or duties created hereunder (including, without limitation, any
unanticipated loss, liability or expense incurred in connection with any action
or inaction of the Master Servicer, the Special Servicer or the Depositor or of
each other such Person hereunder but only to the extent the Trustee, the Fiscal
Agent, the Certificate Registrar or the Paying Agent, as the case may be, is
unable to recover within a reasonable period of time such amount from such third
party pursuant to this Agreement) including the costs and expenses of defending
themselves against any claim in connection with the exercise or performance of
any of their powers or duties hereunder and the Trustee, the Fiscal Agent, the
Certificate Registrar and the Paying Agent and each of their respective
directors, officers, employees, agents and Controlling Persons shall be entitled
to indemnification from the Trust for any unanticipated loss, liability or
expense incurred in connection with the provision by the Trustee, the Fiscal
Agent, the Certificate Registrar and the Paying Agent of the reports required to
be provided by it pursuant to this Agreement; provided that:
(i) with respect to any such claim, the Trustee, the Fiscal
Agent, the Certificate Registrar or the Paying Agent, as the case may be, shall
have given the Depositor, the Master Servicer, the Sellers, each other and the
Holders of the Certificates written notice thereof promptly after a Responsible
Officer of the Trustee, the Fiscal Agent, the Certificate Registrar or the
Paying Agent, as the case may be, shall have actual knowledge thereof; provided,
however, that failure to give such notice to the Depositor, Master Servicer, the
Sellers, each other and the Holders of Certificates shall not affect the
Trustee's, Fiscal Agent's, Certificate Registrar's or Paying Agent's, as the
case may be, rights to indemnification herein unless the Depositor's defense of
such claim on behalf of the Trust is materially prejudiced thereby;
(ii) while maintaining control over its own defense, the Trustee,
the Fiscal Agent, the Certificate Registrar or the Paying Agent, as the case may
be, shall cooperate and consult fully with the Depositor in preparing such
defense; and
(iii) notwithstanding anything to the contrary in this Section
7.11, the Trust shall not be liable for settlement of any such claim by the
Trustee, the Fiscal Agent, the Certificate Registrar or the Paying Agent, as the
case may be, entered into without the prior consent of the Depositor, which
consent shall not be unreasonably withheld.
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(b) The provisions of this Section 7.11 shall survive any termination
of this Agreement and the resignation or removal of the Trustee, the Fiscal
Agent, the Certificate Registrar or the Paying Agent, as the case may be.
(c) The Depositor shall indemnify and hold harmless the Trustee, the
Fiscal Agent, the Certificate Registrar or the Paying Agent, as the case may be,
their respective directors, officers, employees or agents and Controlling
Persons from and against any loss, claim, damage or liability, joint or several,
and any action in respect thereof, to which the Trustee, the Fiscal Agent, the
Certificate Registrar or the Paying Agent, as the case may be, their respective
directors, officers, employees or agents or Controlling Person may become
subject under the 1933 Act, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon any untrue statement or alleged untrue
statement of a material fact contained in the Private Placement Memorandum, the
Preliminary Prospectus Supplement, the Final Prospectus Supplement or the
Prospectus, or arises out of, or is based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein in light of the circumstances under which they were
made, not misleading and shall reimburse the Trustee, the Fiscal Agent, the
Certificate Registrar or the Paying Agent, as the case may be, their respective
directors, officers, employees, agents or Controlling Person for any legal and
other expenses reasonably incurred by the Trustee, the Fiscal Agent, the
Certificate Registrar or the Paying Agent, as the case may be, or any such
director, officer, employee, agent or Controlling Person in investigating or
defending or preparing to defend against any such loss, claim, damage, liability
or action; provided, that the Depositor shall not be liable in any such case to
the extent that any such loss, claim, damage, liability or action arises out of,
or is based upon, any untrue statement or alleged untrue statement or omission
made in any such Private Placement Memorandum, Preliminary Prospectus
Supplement, Final Prospectus Supplement or Prospectus in reliance upon and in
conformity with written information concerning the Trustee, the Fiscal Agent,
the Certificate Registrar or the Paying Agent, as the case may be, furnished to
the Depositor by or on behalf of such person specifically for inclusion therein.
It is hereby expressly agreed that the only written information provided by the
Trustee, the Fiscal Agent, the Certificate Registrar or the Paying Agent, as the
case may be, for inclusion in the Preliminary Prospectus Supplement and Final
Prospectus Supplement is set forth in the case of the Trustee in the second,
fourth and fifth sentences and in the case of the Fiscal Agent in the
penultimate sentence under the caption entitled "DESCRIPTION OF THE OFFERED
CERTIFICATES--The Trustee and the Fiscal Agent" and in the case of the Paying
Agent, the third and fourth sentences under the "DESCRIPTION OF THE OFFERED
CERTIFICATES--The Paying Agent, Certificate Registrar and the Authenticating
Agent". The Trustee, the Fiscal Agent, the Certificate Registrar or the Paying
Agent, as the case may be, shall immediately notify the Depositor and the
Sellers if a claim is made by a third party with respect to this Section 7.11(c)
entitling such person, its directors, officers, employees, agents or Controlling
Person to indemnification hereunder, whereupon the Depositor shall assume the
defense of any such claim (with counsel reasonably satisfactory to such person)
and pay all expenses in connection therewith, including counsel fees, and
promptly pay, discharge and satisfy any judgment or decree which may be entered
against it or them in respect of such claim. Any failure to so notify the
Depositor shall not affect any rights the Trustee, the Fiscal Agent, the
Certificate Registrar or the Paying Agent, as the case may be, their respective
directors, officers, employees, agents or Controlling Person may have to
indemnification under this Section 7.11(c), unless the Depositor's defense of
such claim is materially prejudiced thereby. The indemnification
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provided herein shall survive the termination of this Agreement and the
resignation or removal of the Trustee, the Fiscal Agent or the Paying Agent. The
Depositor shall not be indemnified by the Trust for any expenses incurred by the
Depositor arising from any violation or alleged violation of the 1933 Act or
1934 Act by the Depositor.
SECTION 7.12 FEES AND EXPENSES OF TRUSTEE, THE FISCAL AGENT AND THE
PAYING AGENT. The Trustee shall be entitled to receive the Trustee Fee (other
than the portion thereof constituting the Paying Agent Fee) and the Paying Agent
shall be entitled to receive the Paying Agent Fee, pursuant to Section
5.3(b)(ii) (which shall not be limited by any provision of law with respect to
the compensation of a trustee of an express trust), for all services rendered by
it in the execution of the trusts hereby created and in the exercise and
performance of any of the powers and duties respectively, hereunder of the
Trustee and the Paying Agent. The Trustee, the Fiscal Agent and the Paying Agent
shall also be entitled to recover from the Trust all reasonable unanticipated
expenses and disbursements incurred or made by the Trustee, the Fiscal Agent and
the Paying Agent in accordance with any of the provisions of this Agreement
(including the reasonable compensation and the reasonable expenses and
disbursements of its counsel and other Persons not regularly in its employ), not
including expenses incurred in the ordinary course of performing its duties as
Trustee, Fiscal Agent or Paying Agent, respectively hereunder, and except any
such expense, disbursement or advance as may arise from the negligence or bad
faith of such Person or which is the responsibility of the Holders of the
Certificates hereunder. The provisions of this Section 7.12 shall survive any
termination of this Agreement and the resignation or removal of the Trustee, the
Fiscal Agent or the Paying Agent.
SECTION 7.13 COLLECTION OF MONEYS. Except as otherwise expressly
provided in this Agreement, the Trustee and the Paying Agent may demand payment
or delivery of, and shall receive and collect, all money and other property
payable to or receivable by the Trustee or the Paying Agent, as the case may be,
pursuant to this Agreement. The Trustee or the Paying Agent, as the case may be,
shall hold all such money and property received by it as part of the Trust and
shall distribute it as provided in this Agreement. If the Trustee or the Paying
Agent, as the case may be, shall not have timely received amounts to be remitted
with respect to the Mortgage Loans from the Master Servicer, the Trustee or the
Paying Agent, as the case may be, shall request the Master Servicer to make such
distribution as promptly as practicable or legally permitted. If the Trustee or
the Paying Agent, as the case may be, shall subsequently receive any such
amount, it may withdraw such request.
SECTION 7.14 TRUSTEE TO ACT; APPOINTMENT OF SUCCESSOR.
(a) On and after the time the Master Servicer is terminated pursuant
to this Agreement, the Trustee shall be the successor in all respects to the
Master Servicer in its capacity under this Agreement and the transactions set
forth or provided for therein and shall have all the rights and powers and be
subject to all the responsibilities, duties and liabilities relating thereto and
arising thereafter placed on the Master Servicer by the terms and provisions of
this Agreement; provided that, any failure to perform such duties or
responsibilities caused by the Master Servicer's failure to provide required
information shall not be considered a default by the Trustee hereunder. In
addition, the Trustee shall have no liability relating to (i) the
representations and warranties of the Master Servicer contained in this
Agreement or (ii) any obligation incurred by the Master Servicer prior to its
termination or resignation (including,
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without limitation, the Master Servicer's obligation to repay losses resulting
from the investment of funds in any account established under this Agreement),
except any ongoing obligations to the Primary Servicer arising after the
termination of the Master Servicer from their servicing rights and obligations
under the Primary Servicing Agreement. In the Trustee's capacity as such
successor, the Trustee shall have the same limitations on liability granted to
the Master Servicer in this Agreement. As compensation therefor, the Trustee
shall be entitled to receive all the compensation payable to the Master Servicer
set forth in this Agreement, including, without limitation, the Master Servicing
Fee.
(b) Notwithstanding the above, the Trustee (A) may, if the Trustee is
unwilling to so act, or (B) shall, if it is unable to so act, appoint, or
petition a court of competent jurisdiction to appoint any established commercial
or multifamily mortgage finance institution, servicer or special servicer or
mortgage servicing institution having a net worth of not less than $15,000,000,
meeting such other standards for a successor servicer as are set forth in this
Agreement and with respect to which Rating Agency Confirmation is obtained, as
the successor to the Master Servicer hereunder in the assumption of all of the
responsibilities, duties or liabilities of a servicer as Master Servicer
hereunder. Pending any such appointment, the Trustee shall act as the Master
Servicer as hereinabove provided. Any entity designated by the Trustee as
successor Master Servicer may be an Affiliate of the Trustee; provided that,
such Affiliate must meet the standards for the Master Servicer as set forth
herein. In connection with such appointment and assumption, the Trustee may make
such arrangements for the compensation of such successor out of payments on
Mortgage Loans as it and such successor shall agree subject to Section 8.10. The
Trustee and such successor shall take such actions, consistent with this
Agreement as shall be necessary to effectuate any such succession. The Master
Servicer shall cooperate with the Trustee and any successor servicer in
effecting the termination of the Master Servicer's responsibilities and rights
under this Agreement, including, without limitation, notifying Mortgagors of the
assignment of the servicing function and providing the Trustee and successor
servicer all documents and records in its possession in electronic or other form
reasonably requested by the successor servicer to enable the successor servicer
to assume the Master Servicer's functions hereunder and the transfer to the
Trustee or such successor servicer of all amounts which shall at the time be or
should have been deposited by the Master Servicer in the Certificate Account and
any other account or fund maintained with respect to the Certificates or
thereafter be received by the Master Servicer with respect to the Mortgage
Loans. Neither the Trustee nor any other successor servicer shall be deemed to
be in default hereunder by reason of any failure to make, or any delay in
making, any distribution hereunder or any portion thereof caused by (i) the
failure of the Master Servicer to deliver, or any delay in delivering, cash,
documents or records to it, or (ii) restrictions imposed by any regulatory
authority having jurisdiction over the Master Servicer. The Trustee shall be
reimbursed for all of its out-of-pocket expenses incurred in connection with
obtaining such successor Master Servicer by the Trust within 30 days of the
Trustee's submission of an invoice with respect thereto, to the extent such
expenses have not been reimbursed by the Master Servicer as provided herein;
such expenses paid by the Trust shall be deemed to be an Additional Trust
Expense.
(c) On and after the time the Special Servicer is terminated pursuant
to this Agreement, in accordance with Section 9.30, the Trustee shall be the
successor in all respects to the Special Servicer in its capacity under this
Agreement and the transactions set forth or provided for therein and shall have
all the rights and powers and be subject to all the
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responsibilities, duties and liabilities relating thereto and arising thereafter
placed on the Special Servicer by the terms and provisions of this Agreement;
provided that, any failure to perform such duties or responsibilities caused by
the Special Servicer's failure to provide required information shall not be
considered a default by the Trustee hereunder. In addition, the Trustee shall
have no liability relating to (i) the representations and warranties of the
Special Servicer contained in this Agreement or (ii) any obligation incurred by
the Special Servicer prior to its termination or resignation. In the Trustee's
capacity as such successor, the Trustee shall have the same limitations on
liability granted to the Special Servicer in this Agreement. As compensation
therefor, the Trustee shall be entitled to receive all the compensation payable
to the Special Servicer set forth in this Agreement, including, without
limitation the Special Servicer Compensation (other than any Work-Out Fee
payable pursuant to Section 9.11).
(d) Notwithstanding the above, the Trustee may, if the Trustee shall
be unwilling to so act, or shall, if it is unable to so act, appoint, or
petition a court of competent jurisdiction to appoint, any established
commercial or multifamily mortgage finance institution, special servicer or
mortgage servicing institution having a net worth of not less than $15,000,000,
and meeting such other standards for a successor Special Servicer as are set
forth in Section 9.21, and with respect to which Rating Agency Confirmation is
obtained, as the successor to the Special Servicer hereunder in the assumption
of all of the responsibilities, duties or liabilities of a special servicer as
Special Servicer hereunder. Pending any such appointment, the Trustee shall act
as the Special Servicer as hereinabove provided. Any entity designated by the
Trustee as successor Special Servicer may be an Affiliate of the Trustee;
provided that, such Affiliate must meet the standards for a successor Special
Servicer set forth herein. In connection with such appointment and assumption,
the Trustee may make such arrangements for the compensation of such successor
out of payments on Mortgage Loans as it and such successor shall agree; provided
that no such compensation shall be in excess of that permitted to the Special
Servicer under this Agreement. The Trustee and such successor shall take such
actions, consistent with this Agreement as shall be necessary to effectuate any
such succession. The Special Servicer shall cooperate with the Trustee and any
successor Special Servicer in effecting the termination of the Special
Servicer's responsibilities and rights under this Agreement, including, without
limitation, notifying Mortgagors of Specially Serviced Mortgage Loans of the
assignment of the special servicing function and providing the Trustee and
successor Special Servicer all documents and records in its possession in
electronic or other form reasonably requested by the successor Special Servicer
to enable the successor Special Servicer to assume the Special Servicer's
functions hereunder and the transfer to the Trustee or such successor Special
Servicer of all amounts which shall at the time be or should have been deposited
by the Special Servicer in the Certificate Account and any other account or fund
maintained with respect to the Certificates or thereafter be received by the
Special Servicer with respect to the Mortgage Loans. Neither the Trustee nor any
other successor Special Servicer shall be deemed to be in default hereunder by
reason of any failure to make, or any delay in making, any distribution
hereunder or any portion thereof caused by (i) the failure of the Special
Servicer to deliver, or any delay in delivering, cash, documents or records to
it, or (ii) restrictions imposed by any regulatory authority having jurisdiction
over the Special Servicer. The Trustee shall be reimbursed for all of its
out-of-pocket expenses incurred in connection with obtaining such successor
Special Servicer by the Trust within 30 days of submission of an invoice with
respect thereto but only to the extent such expenses have not been reimbursed by
the Special Servicer as
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provided herein; and such expenses paid by the Trust shall be deemed to be an
Additional Trust Expense.
SECTION 7.15 NOTIFICATION TO HOLDERS. Upon termination of the Master
Servicer, the Paying Agent or the Special Servicer, or appointment of a
successor to the Master Servicer, the Paying Agent or the Special Servicer, the
Trustee shall promptly mail notice thereof by first class mail to the Rating
Agencies, the Operating Adviser, the Sellers and the Certificateholders at their
respective addresses appearing on the Certificate Register.
SECTION 7.16 REPRESENTATIONS AND WARRANTIES OF THE TRUSTEE, THE FISCAL
AGENT AND THE PAYING AGENT.
(a) The Trustee hereby represents and warrants as of the date hereof
that:
(i) the Trustee is a national banking association, duly
organized, validly existing and in good standing under the laws governing its
creation and existence and has full power and authority to own its property, to
carry on its business as presently conducted, and to enter into and perform its
obligations under this Agreement;
(ii) the execution and delivery by the Trustee of this Agreement
have been duly authorized by all necessary action on the part of the Trustee;
neither the execution and delivery of this Agreement, nor the consummation of
the transactions contemplated in this Agreement, nor compliance with the
provisions of this Agreement, will conflict with or result in a breach of, or
constitute a default under, (i) any of the provisions of any law, governmental
rule, regulation, judgment, decree or order binding on the Trustee or its
properties that would materially and adversely affect the Trustee's ability to
perform its obligations under this Agreement, (ii) the organizational documents
of the Trustee, or (iii) the terms of any material agreement or instrument to
which the Trustee is a party or by which it is bound; the Trustee is not in
default with respect to any order or decree of any court or any order,
regulation or demand of any federal, state, municipal or other governmental
agency, which default would materially and adversely affect its performance
under this Agreement;
(iii) the execution, delivery and performance by the Trustee of
this Agreement and the consummation of the transactions contemplated by this
Agreement do not require the consent, approval, authorization or order of, the
giving of notice to or the registration with any state, federal or other
governmental authority or agency, except such as has been or will be obtained,
given, effected or taken in order for the Trustee to perform its obligations
under this Agreement;
(iv) this Agreement has been duly executed and delivered by the
Trustee and, assuming due authorization, execution and delivery by the other
parties hereto, constitutes a valid and binding obligation of the Trustee,
enforceable against the Trustee in accordance with its terms, subject, as to
enforcement of remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium and other similar laws affecting creditors' rights generally as from
time to time in effect, and to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law);
and
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(v) (v) no litigation is pending or, to the Trustee's knowledge,
threatened, against the Trustee that, either in one instance or in the
aggregate, would draw into question the validity of this Agreement, or which
would be likely to impair materially the ability of the Trustee to perform under
the terms of this Agreement.
(b) The Fiscal Agent hereby represents and warrants as of the date
hereof that:
(i) the Fiscal Agent is a foreign banking corporation duly
organized, validly existing and in good standing under the laws governing its
creation and existence and has full corporate power and authority to own its
property, to carry on its business as presently conducted, and to enter into and
perform its obligations under this Agreement;
(ii) the execution and delivery by the Fiscal Agent of this
Agreement have been duly authorized by all necessary corporate action on the
part of the Fiscal Agent; neither the execution and delivery of this Agreement,
nor the consummation of the transactions contemplated in this Agreement, nor
compliance with the provisions of this Agreement, will conflict with or result
in a breach of, or constitute a default under, (i) any of the provisions of any
law, governmental rule, regulation, judgment, decree or order binding on the
Fiscal Agent or its properties that would materially and adversely affect the
Fiscal Agent's ability to perform its obligations under this Agreement, (ii) the
organizational documents of the Fiscal Agent, or (iii) the terms of any material
agreement or instrument to which the Fiscal Agent is a party or by which it is
bound; the Fiscal Agent is not in default with respect to any order or decree of
any court or any order, regulation or demand of any federal, state, municipal or
other governmental agency, which default would materially and adversely affect
its performance under this Agreement;
(iii) the execution, delivery and performance by the Fiscal Agent
of this Agreement and the consummation of the transactions contemplated by this
Agreement do not require the consent, approval, authorization or order of, the
giving of notice to, or the registration with, any state, federal or other
governmental authority or agency, except such as has been obtained, given,
effected or taken prior to the date hereof;
(iv) this Agreement has been duly executed and delivered by the
Fiscal Agent and, assuming due authorization, execution and delivery by the
other parties hereto, constitutes a valid and binding obligation of the Fiscal
Agent, enforceable against the Fiscal Agent in accordance with its terms,
subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium and other similar laws affecting
creditors' rights generally as from time to time in effect, and to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law); and
(v) no litigation is pending or, to the Fiscal Agent's knowledge,
threatened, against the Fiscal Agent that, either in any one instance or in the
aggregate, would draw into question the validity of this Agreement, or which
would be likely to impair materially the ability of the Fiscal Agent to perform
under the terms of this Agreement.
(c) The Paying Agent hereby represents and warrants as of the date
hereof that:
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(i) the Paying Agent is a national banking association, duly
organized, validly existing and in good standing under the laws governing its
creation and existence and has full power and authority to own its property, to
carry on its business as presently conducted, and to enter into and perform its
obligations under this Agreement;
(ii) the execution and delivery by the Paying Agent of this
Agreement have been duly authorized by all necessary action on the part of the
Paying Agent; neither the execution and delivery of this Agreement, nor the
consummation of the transactions contemplated in this Agreement, nor compliance
with the provisions of this Agreement, will conflict with or result in a breach
of, or constitute a default under, (i) any of the provisions of any law,
governmental rule, regulation, judgment, decree or order binding on the Paying
Agent or its properties that would materially and adversely affect the Paying
Agent's ability to perform its obligations under this Agreement, (ii) the
organizational documents of the Paying Agent, or (iii) the terms of any material
agreement or instrument to which the Paying Agent is a party or by which it is
bound; the Paying Agent is not in default with respect to any order or decree of
any court or any order, regulation or demand of any federal, state, municipal or
other governmental agency, which default would materially and adversely affect
its performance under this Agreement;
(iii) the execution, delivery and performance by the Paying Agent
of this Agreement and the consummation of the transactions contemplated by this
Agreement do not require the consent, approval, authorization or order of, the
giving of notice to or the registration with any state, federal or other
governmental authority or agency, except such as has been or will be obtained,
given, effected or taken in order for the Paying Agent to perform its
obligations under this Agreement;
(iv) this Agreement has been duly executed and delivered by the
Paying Agent and, assuming due authorization, execution and delivery by the
other parties hereto, constitutes a valid and binding obligation of the Paying
Agent, enforceable against the Paying Agent in accordance with its terms,
subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium and other similar laws affecting
creditors' rights generally as from time to time in effect, and to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law); and
(v) there are no actions, suits or proceeding pending or, to the
best of the Paying Agent's knowledge, threatened, against the Paying Agent that,
either in one instance or in the aggregate, would draw into question the
validity of this Agreement, or which would be likely to impair materially the
ability of the Paying Agent to perform under the terms of this Agreement.
SECTION 7.17 FIDELITY BOND AND ERRORS AND OMISSIONS INSURANCE POLICY
MAINTAINED BY THE TRUSTEE, THE FISCAL AGENT AND THE PAYING AGENT. Each of the
Trustee, the Fiscal Agent and the Paying Agent, at its own respective expense,
shall maintain in effect a Fidelity Bond and a Errors and Omissions Insurance
Policy. The Errors and Omissions Insurance Policy and Fidelity Bond shall be
issued by a Qualified Insurer in form and in amount customary for trustees,
fiscal agents or paying agents in similar transactions (unless the Trustee, the
Fiscal Agent or the Paying Agent, as the case may be, self insures as provided
below). In the
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event that any such Errors and Omissions Insurance Policy or Fidelity Bond
ceases to be in effect, the Trustee, the Fiscal Agent or the Paying Agent, as
the case may be, shall obtain a comparable replacement policy or bond from an
insurer or issuer meeting the requirements set forth above as of the date of
such replacement. So long as the long-term debt rating of the Trustee, the
Fiscal Agent or the Paying Agent, as the case may be, is not less than "A" as
rated by Fitch, if rated by Fitch and "Baa1" as rated by Xxxxx'x, if rated by
Xxxxx'x, respectively, the Trustee, the Fiscal Agent or the Paying Agent, as the
case may be, may self-insure for the Fidelity Bond and the Errors and Omissions
Insurance Policy.
SECTION 7.18 APPOINTMENT OF LUXEMBOURG PAYING AGENT; NOTIFICATION TO
CERTIFICATEHOLDERS.
(a) The Depositor shall maintain a paying agent in Luxembourg (the
"Luxembourg Paying Agent") for payments on the Certificates as well as a
transfer agent in Luxembourg (the "Luxembourg Transfer Agent") for so long as
such Certificates are listed on the Luxembourg Stock Exchange and the rules of
such exchange so require and the Depositor shall pay the reasonable fees of such
Luxembourg Paying Agent and Luxembourg Transfer Agent. The Depositor shall
appoint a successor Luxembourg Paying Agent if necessary. Except as set forth in
this Section 7.18(a), neither the Trustee nor the Paying Agent shall have any
responsibility for the actions or inactions of the Luxembourg Paying Agent,
including any failure of the Luxembourg Paying Agent to make timely
distributions to Certificateholders or beneficial owners (other than any such
failure resulting from the failure of the Paying Agent to timely remit funds but
only to the extent such failure is caused by the Paying Agent's negligence or
willful misconduct). The Certificate Registrar shall not be responsible for
transfers or exchanges requested at the office of the Luxembourg Transfer Agent
in Luxembourg until it receives written notice from such transfer agent,
together with the Certificates to be transferred or exchanged. The Luxembourg
Paying Agent shall each month download copies of all information made available
on the Paying Agent's internet website, print such information and make it
available to the Certificateholders upon request. The Luxembourg Paying Agent
shall not be the Paying Agent and the duties of the Luxembourg Paying Agent
hereunder shall be distinct from the duties of the Paying Agent.
(b) For so long as the Certificates are listed on the Luxembourg Stock
Exchange and the rules of the Luxembourg Stock Exchange so require, the
Depositor undertakes to cause the Luxembourg Paying Agent to publish all notices
to Certificateholders in a daily newspaper of general circulation in Luxembourg.
(c) For so long as any of the Certificates are listed on the
Luxembourg Stock Exchange and the rules of the Luxembourg Stock Exchange so
require, the Paying Agent shall make available or provide the following
information on the Paying Agent's internet website:
(i) to Clearstream Bank, Euroclear Bank and the Luxembourg Paying
Agent promptly upon determination, the Pass-Through Rates for the related
Interest Accrual Period, the amount of principal and interest distributable on
the related Distribution Date for each Class of Certificates, per $1,000 initial
Certificate Balance or Notional Amount and the date each distribution will be
made;
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(ii) to the Luxembourg Paying Agent on each Distribution Date,
the Certificate Balance or Notional Amount of the Certificates;
(iii) to the Luxembourg Paying Agent promptly following
availability, each report, certificate or statement required to be delivered to
the Luxembourg Paying Agent pursuant to Section 5.4;
(iv) to the Luxembourg Paying Agent promptly following receipt
thereof, all notices and reports regarding any termination of the Trustee or
Paying Agent or appointment of a successor to the Trustee or Paying Agent; and
(v) to the Luxembourg Paying Agent promptly following receipt
thereof, all notices and reports regarding any occurrence of an Event of
Default.
Information provided, as set forth above, by the Paying Agent to the
Luxembourg Paying Agent shall be supplied by the Luxembourg Paying Agent to the
Luxembourg Stock Exchange. Such information shall be made available to the
Certificateholders at the main office of the Luxembourg Paying Agent.
None of the Certificates will be listed on the Luxembourg Stock
Exchange or any other stock exchange.
ARTICLE VIII
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
SECTION 8.1 SERVICING STANDARD; SERVICING DUTIES.
(a) Subject to the express provisions of this Agreement, for and on
behalf of the Trust and for the benefit of the Certificateholders as a whole,
and, solely as it relates to any A/B Mortgage Loan, for the benefit of the
holder of the related B Note and, solely as it relates to any Loan Pair, for the
benefit of the holder of the related Serviced Companion Mortgage Loan, the
Master Servicer shall service and administer the Mortgage Loans (including the
Lakeforest Mall Mortgage Loan Non-Pooled Component), any B Note and any Serviced
Companion Mortgage Loan in accordance with the Servicing Standard and the terms
of this Agreement (subject to the servicing of any Non-Serviced Mortgage Loan by
the applicable Non-Serviced Mortgage Loan Master Servicer and the applicable
Non-Serviced Mortgage Loan Special Servicer in accordance with the related
Non-Serviced Mortgage Loan Pooling and Servicing Agreement). Certain of the
provisions of this Article VIII make explicit reference to their applicability
to Mortgage Loans, any B Note and any Serviced Companion Mortgage Loan;
notwithstanding such explicit references, references to "Mortgage Loans"
contained in this Article VIII, unless otherwise specified, shall be construed
to refer also to such B Note and Serviced Companion Mortgage Loan (but any other
terms that are defined in Article I and used in this Article VIII shall be
construed according to such definitions without regard to this sentence).
In connection with such servicing and administration, the Master
Servicer shall seek to maximize the timely recovery of principal and interest on
the Mortgage Notes in the best economic interests of the Certificateholders as a
whole (or, in the case of any A/B Mortgage
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Loan or Loan Pair the Certificateholders and the holder of the related B Note
and Serviced Companion Mortgage Loan, all taken as a collective whole);
provided, however, that nothing herein contained shall be construed as an
express or implied guarantee by the Master Servicer of the collectability of
payments on the Mortgage Loans or shall be construed as impairing or adversely
affecting any rights or benefits specifically provided by this Agreement to the
Master Servicer, including with respect to Master Servicing Fees or the right to
be reimbursed for Advances.
(b) The Master Servicer, in the case of an event specified in clause
(x) of this subclause (b), and the Special Servicer, in the case of an event
specified in clause (y) of this subclause (b), shall each send a written notice
to the other and to the Trustee and the Paying Agent, the Operating Adviser (or
the Lakeforest Mall Mortgage Loan Operating Adviser with respect only to the
Lakeforest Mall Mortgage Loan), each Seller and, in the case of an A/B Mortgage
Loan, the holder of the related B Note and, in the case of a Loan Pair, the
holder of the related Serviced Companion Mortgage Loan, within two Business Days
after becoming aware (x) that a Servicing Transfer Event has occurred with
respect to a Mortgage Loan or (y) that a Mortgage Loan has become a
Rehabilitated Mortgage Loan, which notice shall identify the applicable Mortgage
Loan and, in the case of an event specified in clause (x) of this subclause (b)
above, the Servicing Transfer Event that occurred.
(c) With respect to each Mortgage Loan that is subject to an
Environmental Insurance Policy, for as long as it is not a Specially Serviced
Mortgage Loan, if the Master Servicer has actual knowledge of any event giving
rise to a claim under an Environmental Insurance Policy, the Master Servicer or
the Primary Servicer shall notify the Special Servicer to such effect and the
Master Servicer shall take reasonable actions as are in accordance with the
Servicing Standard and the terms and conditions of such Environmental Insurance
Policy to make a claim thereunder and achieve the payment of all amounts to
which the Trust is entitled thereunder. Any legal fees or other out-of-pocket
costs incurred in accordance with the Servicing Standard in connection with any
such claim shall be paid by, and reimbursable to, the Master Servicer or the
Special Servicer as a Servicing Advance.
(d) In connection with any extension of the Maturity Date of a
Mortgage Loan, the Master Servicer shall give prompt written notice of such
extension to the insurer under the Environmental Insurance Policy and shall
execute such documents as are reasonably required by such insurer to procure an
extension of such policy (if available).
(e) The parties hereto acknowledge that each Serviced Pari Passu
Mortgage Loan and Serviced Companion Mortgage Loan is subject to the terms and
conditions of the related Loan Pair Intercreditor Agreement and that the A/B
Mortgage Loans are subject to the terms and conditions of the related
Intercreditor Agreement, and each such party agrees that the provisions of each
Loan Pair Intercreditor Agreement and Intercreditor Agreement that are required
by their terms to be set forth in this Agreement are hereby incorporated herein.
With respect to each Serviced Pari Passu Mortgage Loan and Serviced Companion
Mortgage Loan, the Trustee, the Fiscal Agent, the Master Servicer and the
Special Servicer recognize the respective rights and obligations of the Trust
and the holders of each Serviced Companion Mortgage Loan under the related Loan
Pair Intercreditor Agreement (or with respect to a Joint Mortgage Loan treated
as a Loan Pair in accordance with Section 8.32 hereof, the applicable
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Mortgage Loan documents), including, with respect to the allocation of
collections on or in respect of any Serviced Pari Passu Mortgage Loan and
Serviced Companion Mortgage Loan in accordance with the related Loan Pair
Intercreditor Agreement. The Master Servicer shall comply with the applicable
provisions of each Loan Pair Intercreditor Agreement, and if any Serviced Pari
Passu Mortgage Loan and Serviced Companion Mortgage Loan are then Specially
Serviced Mortgage Loans, the Special Servicer shall comply with the applicable
provisions of the related Loan Pair Intercreditor Agreement. The parties hereto
agree that any conflict between the terms of this Agreement and the terms of any
Loan Pair Intercreditor Agreement or Intercreditor Agreement, as applicable,
shall be resolved in favor of the Loan Pair Intercreditor Agreement or
Intercreditor Agreement.
(f) Promptly following the Closing Date, the Trustee shall send
written notice to each Non-Serviced Mortgage Loan Master Servicer, stating that,
as of the Closing Date, the Trustee is the holder of the applicable Non-Serviced
Mortgage Loan, and directing such Non-Serviced Mortgage Loan Master Servicer to
remit to the Master Servicer all amounts payable to, and directing such
Non-Serviced Mortgage Loan Master Servicer to forward, deliver or otherwise make
available, as the case may be, to, the Master Servicer all reports, statements,
documents, communications and other information that are to be forwarded,
delivered or otherwise made available to, such holder of the applicable
Non-Serviced Mortgage Loan under the related Non-Serviced Mortgage Loan Pooling
and Servicing Agreement and Non-Serviced Mortgage Loan Intercreditor Agreement.
(g) Each Non-Serviced Mortgage Loan shall be serviced and administered
by the applicable Non-Serviced Mortgage Loan Master Servicer and Non-Serviced
Mortgage Loan Special Servicer pursuant to the related Non-Serviced Mortgage
Loan Pooling and Servicing Agreement and Non-Serviced Mortgage Loan
Intercreditor Agreement, except as otherwise specifically provided in this
Agreement. If any Non-Serviced Companion Mortgage Loan that is an asset under
the trust created by the related Non-Serviced Mortgage Loan Pooling and
Servicing Agreement is removed from the pool of mortgage loans created under
such Non-Serviced Mortgage Loan Pooling and Servicing Agreement, or if such
Non-Serviced Mortgage Loan Pooling and Servicing Agreement is otherwise
terminated, the servicing of the Non-Serviced Mortgage Loan shall be
transferred, pursuant to the related Non-Serviced Mortgage Loan Intercreditor
Agreement, and shall be serviced and administered by a successor servicing
agreement, which shall have similar provisions to such Non-Serviced Mortgage
Loan Pooling and Servicing Agreement to the extent set forth in the related
Non-Serviced Mortgage Loan Intercreditor Agreement, and such transfer shall be
subject to the receipt of a Rating Agency Confirmation.
SECTION 8.2 FIDELITY BOND AND ERRORS AND OMISSIONS INSURANCE POLICY
MAINTAINED BY THE MASTER SERVICER. The Master Servicer, at its expense, shall
maintain in effect a Servicer Fidelity Bond and a Servicer Errors and Omissions
Insurance Policy. The Servicer Errors and Omissions Insurance Policy and
Servicer Fidelity Bond shall be issued by a Qualified Insurer (unless the Master
Servicer self insures as provided below) and be in form and amount consistent
with the Servicing Standard. In the event that any such Servicer Errors and
Omissions Insurance Policy or Servicer Fidelity Bond ceases to be in effect, the
Master Servicer shall obtain a comparable replacement policy or bond from an
insurer or issuer meeting the requirements set forth above as of the date of
such replacement. So long as the long-term rating
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of the Master Servicer is not in any event less than "A" as rated by Fitch and
"Baa1" as rated by Xxxxx'x, respectively, the Master Servicer may self-insure
for the Servicer Fidelity Bond and the Servicer Errors and Omissions Insurance
Policy.
SECTION 8.3 MASTER SERVICER'S GENERAL POWER AND DUTIES.
(a) The Master Servicer shall service and administer the Mortgage
Loans and shall, subject to Sections 8.7, 8.18, 8.19, 8.27 and Article XII
hereof and as otherwise provided herein and by the Code, have full power and
authority to do any and all things which it may deem necessary or desirable in
connection with such servicing and administration in accordance with the
Servicing Standard. To the extent consistent with the foregoing and subject to
any express limitations and provisions set forth in this Agreement (and, in the
case of any A/B Mortgage Loan and any Loan Pair, subject to the applicable
Intercreditor Agreement or Loan Pair Intercreditor Agreement and, in the case of
any Non-Serviced Mortgage Loan, subject to the servicing of such Non-Serviced
Mortgage Loan by the applicable Non-Serviced Mortgage Loan Master Servicer and
the applicable Non-Serviced Mortgage Loan Special Servicer, as applicable), such
power and authority shall include, without limitation, the right, subject to the
terms hereof, (A) to execute and deliver, on behalf of the Certificateholders
(and in connection with any B Note, the holder of the B Note and, in connection
with any Loan Pair, the holder of the Serviced Companion Mortgage Loan) and the
Trustee, customary consents or waivers and other instruments and documents
(including, without limitation, estoppel certificates, financing statements,
continuation statements, title endorsements and reports and other documents and
instruments necessary to preserve and maintain the lien on the related Mortgaged
Property and related collateral), (B) to consent to assignments and assumptions
or substitutions, and transfers of interest of any Mortgagor, in each case
subject to and in accordance with the terms of the related Mortgage Loan and
Section 8.7, (C) to collect any Insurance Proceeds, (D) subject to Section 8.7,
to consent to any subordinate financings to be secured by any related Mortgaged
Property to the extent that such consent is required pursuant to the terms of
the related Mortgage or which otherwise is required, and, subject to Section
8.7, to consent to any mezzanine debt to the extent such consent is required
pursuant to the terms of the related Mortgage; (E) to consent to the application
of any proceeds of insurance policies or condemnation awards to the restoration
of the related Mortgaged Property or otherwise and to administer and monitor the
application of such proceeds and awards in accordance with the terms of the
Mortgage Loan as the Master Servicer deems reasonable under the circumstances,
(F) to execute and deliver, on behalf of the Certificateholders (and, if
applicable, the holders of the B Note and Serviced Companion Mortgage Loan) and
the Trustee, documents relating to the management, operation, maintenance,
repair, leasing and marketing of the related Mortgaged Properties, including
agreements and requests by the Mortgagor with respect to modifications of the
standards of operation and management of the Mortgaged Properties or the
replacement of asset managers, (G) to consent to any operation or action under a
Mortgage Loan that is contemplated or permitted under a Mortgage or other
documents evidencing or securing the applicable Mortgage Loan (either as a
matter of right or upon satisfaction of specified conditions), (H) to obtain,
release, waive or modify any term other than a Money Term of a Mortgage Loan and
related documents subject to and to the extent permitted by Section 8.18, (I) to
exercise all rights, powers and privileges granted or provided to the holder of
the Mortgage Notes, any Serviced Companion Mortgage Loan and any B Note under
the terms of the Mortgage, including all rights of consent or approval
thereunder, subject to Sections 8.7 and 8.18 of this Agreement, (J) to enter
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into lease subordination agreements, non-disturbance and attornment agreements
or other leasing or rental arrangements which may be requested by the Mortgagor
or the Mortgagor's tenants, (K) to join the Mortgagor in granting, modifying or
releasing any easements, covenants, conditions, restrictions, equitable
servitudes, or land use or zoning requirements with respect to the Mortgaged
Properties to the extent such does not adversely affect the value of the related
Mortgage Loan or Mortgaged Property, (L) to execute and deliver, on behalf of
itself, the Trustee, the Trust (and, if applicable, the holders of the B Note
and Serviced Companion Mortgage Loan) or any of them, any and all instruments of
satisfaction or cancellation, or of partial or full release or discharge and all
other comparable instruments, with respect to the Mortgage Loans and with
respect to the Mortgaged Properties, and (M) hold in accordance with the terms
of any Mortgage Loan and this Agreement, Defeasance Collateral. The foregoing
clauses (A) through (M) are referred to collectively as "Master Servicer Consent
Matters." Notwithstanding the above, the Master Servicer shall have no power to
(i) waive any Prepayment Premiums or (ii) consent to any modification of a Money
Term of a Mortgage Loan. Nothing contained in this Agreement shall limit the
ability of the Master Servicer to lend money to (to the extent not secured, in
whole or in part, by any Mortgaged Property), accept deposits from and otherwise
generally engage in any kind of business or dealings with any Mortgagor as
though the Master Servicer was not a party to this Agreement or to the
transactions contemplated hereby; provided, however, that this sentence shall
not modify the Servicing Standard.
(b) The Master Servicer shall not be obligated to service and
administer the Mortgage Loans which have become and continue to be Specially
Serviced Mortgage Loans, except as specifically provided herein. The Master
Servicer shall be required to make all calculations and prepare all reports
required hereunder with respect to such Specially Serviced Mortgage Loans (other
than calculations and reports expressly required to be made by the Special
Servicer hereunder) as if no Servicing Transfer Event had occurred and shall
continue to collect all Scheduled Payments, make Servicing Advances as set forth
herein, make P&I Advances as set forth herein and render such incidental
services with respect to such Specially Serviced Mortgage Loans, all as are
specifically provided for herein, but shall have no other servicing or other
duties with respect to such Specially Serviced Mortgage Loans. The Master
Servicer shall give notice within three Business Days to the Special Servicer of
any collections it receives from any Specially Serviced Mortgage Loans, subject
to changes agreed upon from time to time by the Special Servicer and the Master
Servicer. The Special Servicer shall instruct within one Business Day after
receiving such notice the Master Servicer on how to apply such funds. The Master
Servicer within one Business Day after receiving such instructions shall apply
such funds in accordance with the Special Servicer's instructions. Each Mortgage
Loan that becomes a Specially Serviced Mortgage Loan shall continue as such
until such Mortgage Loan becomes a Rehabilitated Mortgage Loan. The Master
Servicer shall not be required to initiate extraordinary collection procedures
or legal proceedings with respect to any Mortgage Loan or to undertake any
pre-foreclosure procedures.
(c) Concurrently with the execution of this Agreement, the Trustee
shall sign the Power of Attorney attached hereto as Exhibit S-1. The Master
Servicer, shall promptly notify the Trustee of the execution and delivery of any
document on behalf of the Trustee under such Power-of-Attorney. From time to
time until the termination of the Trust, upon receipt of additional unexecuted
powers of attorney from the Master Servicer or the Special Servicer, the Trustee
shall execute and return to the Master Servicer, the Special Servicer or the
Primary
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Servicer any additional powers of attorney and other documents necessary or
appropriate to enable the Master Servicer and the Special Servicer to service
and administer the Mortgage Loans including, without limitation, documents
relating to the management, operation, maintenance, repair, leasing or marketing
of the Mortgaged Properties. The Master Servicer shall indemnify the Trustee for
any costs, liabilities and expenses (including attorneys' fees) incurred by the
Trustee in connection with the intentional or negligent misuse of such power of
attorney by the Master Servicer. Notwithstanding anything contained herein to
the contrary, neither the Master Servicer nor the Special Servicer shall without
the Trustee's written consent: (i) initiate any action, suit or proceeding
solely under the Trustee's name without indicating the Master Servicer's or
Special Servicer's, as applicable, representative capacity, or (ii) knowingly
take any action that causes the Trustee to be registered to do business in any
state, provided, however, that the preceding clause (i) shall not apply to the
initiation of actions relating to a Mortgage Loan that the Master Servicer or
the Special Servicer, as the case may be, is servicing pursuant to its
respective duties herein (in which case the Master Servicer or the Special
Servicer, as the case may be, shall give three (3) Business Days prior notice to
the Trustee of the initiation of such action). The limitations of the preceding
clause shall not be construed to limit any duty or obligation imposed on the
Trustee under any other provision of this Agreement.
(d) The Master Servicer shall make efforts consistent with the
Servicing Standard and the terms of this Agreement to collect all payments
called for under the terms and provisions of the applicable Mortgage Loans
(other than Specially Serviced Mortgage Loans or REO Properties).
(e) The Master Servicer (or the Primary Servicer on its behalf) shall
segregate and hold all funds collected and received pursuant to any Mortgage
Loan (other than any Non-Serviced Mortgage Loan) constituting Escrow Amounts
separate and apart from any of its own funds and general assets and shall
establish and maintain one or more segregated custodial accounts (each, an
"Escrow Account") into which all Escrow Amounts shall be deposited within one
(1) Business Day after receipt. Each Escrow Account shall be an Eligible
Account, except with respect to Mortgage Loans identified on Schedule VI for
which Escrow Accounts shall be transferred to Eligible Accounts at the earliest
date permitted under the related Mortgage Loan documents. The Master Servicer
shall also deposit into each Escrow Account any amounts representing losses on
Eligible Investments pursuant to the immediately succeeding paragraph and any
Insurance Proceeds or Liquidation Proceeds which are required to be applied to
the restoration or repair of any Mortgaged Property pursuant to the related
Mortgage Loan. Each Escrow Account shall be maintained in accordance with the
requirements of the related Mortgage Loan and in accordance with the Servicing
Standard. Withdrawals from an Escrow Account may be made only:
(i) to effect timely payments of items constituting Escrow
Amounts for the related Mortgage Loan;
(ii) to transfer funds to the Certificate Account (or any
sub-account thereof) to reimburse the Master Servicer for any Advance (or the
Trust for any Unliquidated Advance) relating to Escrow Amounts, but only from
amounts received with respect to the related Mortgage Loan which represent late
collections of Escrow Amounts thereunder;
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(iii) for application to the restoration or repair of the related
Mortgaged Property in accordance with the related Mortgage Loan and the
Servicing Standard;
(iv) to clear and terminate such Escrow Account upon the
termination of this Agreement or pay-off of the related Mortgage Loan;
(v) to pay from time to time to the related Mortgagor any
interest or investment income earned on funds deposited in the Escrow Account if
such income is required to be paid to the related Mortgagor under applicable law
or by the terms of the Mortgage Loan, or otherwise to the Master Servicer; and
(vi) to remove any funds deposited in a Escrow Account that were
not required to be deposited therein or to refund amounts to the Mortgagors
determined to be overages.
Subject to the immediately succeeding sentence, (i) the Master
Servicer may direct any depository institution or trust company in which the
Escrow Accounts are maintained to invest the funds held therein in one or more
Eligible Investments; provided, however, that such funds shall be either (x)
immediately available or (y) available in accordance with a schedule which will
permit the Master Servicer to meet the payment obligations for which the Escrow
Account was established; (ii) the Master Servicer shall be entitled to all
income and gain realized from any such investment of funds as additional
servicing compensation; and (iii) the Master Servicer shall deposit from its own
funds in the applicable Escrow Account the amount of any loss incurred in
respect of any such investment of funds immediately upon the realization of such
loss. The Master Servicer shall not direct the investment of funds held in any
Escrow Account and retain the income and gain realized therefrom if the terms of
the related Mortgage Loan or applicable law permit the Mortgagor to be entitled
to the income and gain realized from the investment of funds deposited therein,
and the Master Servicer shall not be required to invest amounts on deposit in
Escrow Accounts in Eligible Investments or Eligible Accounts to the extent that
the Master Servicer is required by either law or under the terms of any related
Mortgage Loan to deposit or invest (or the Mortgagor is entitled to direct the
deposit or investment of) such amounts in another type of investments or
accounts. In the event the Master Servicer is not entitled to direct the
investment of such funds, (1) the Master Servicer shall direct the depository
institution or trust company in which such Escrow Accounts are maintained to
invest the funds held therein in accordance with the Mortgagor's written
investment instructions, if the terms of the related Mortgage Loan or applicable
law require the Master Servicer to invest such funds in accordance with the
Mortgagor's directions; and (2) in the absence of appropriate written
instructions from the Mortgagor, the Master Servicer shall have no obligation
to, but may be entitled to, direct the investment of such funds; provided,
however, that in either event (i) such funds shall be either (y) immediately
available or (z) available in accordance with a schedule which will permit the
Master Servicer to meet the payment obligations for which the Escrow Account was
established, and (ii) the Master Servicer shall have no liability for any loss
in investments of such funds that are invested pursuant to written instructions
from the Mortgagor.
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(f) The relationship of each of the Master Servicer and the Special
Servicer to the Trustee and the Paying Agent and to each other under this
Agreement is intended by the parties to be that of an independent contractor and
not of a joint venturer, partner or agent.
(g) With respect to each Mortgage Loan, if required by the terms of
the related Mortgage Loan, any Lock-Box Agreement or similar agreement, the
Master Servicer shall establish and maintain, in accordance with the Servicing
Standard, one or more lock-box, cash management or similar accounts ("Lock-Box
Accounts") to be held outside the Trust and maintained by the Master Servicer in
accordance with the terms of the related Mortgage. No Lock-Box Account is
required to be an Eligible Account, unless otherwise required pursuant to the
related Mortgage Loan documents. The Master Servicer shall apply the funds
deposited in such accounts in accordance with terms of the related Mortgage Loan
documents, any Lock-Box Agreement and in accordance with the Servicing Standard.
(h) The Master Servicer or the Primary Servicer on its behalf shall
process all defeasances of Mortgage Loans in accordance with the terms of the
Mortgage Loan documents, and shall be entitled to any fees paid relating
thereto. The Master Servicer shall not permit defeasance (or partial defeasance
if permitted under the Mortgage Loan) of any Mortgage Loan on or before the
second anniversary of the Closing Date unless such defeasance will not result in
an Adverse REMIC Event and the Master Servicer has received an opinion of
counsel to such effect and all items in the following sentence have been
satisfied. Subsequent to the second anniversary of the Closing Date, the Master
Servicer, in connection with the defeasance of a Mortgage Loan shall require (to
the extent it is not inconsistent with the Servicing Standard) that: (i) the
defeasance collateral consists of Qualifying Government Securities as defined in
Section 2(a)(16) of the Investment Company Act of 1940, as amended, that are
acceptable as defeasance collateral under the current guidelines of the Rating
Agencies, (ii) the Master Servicer has determined that the defeasance will not
result in an Adverse REMIC Event, (iii) either (A) the related Mortgagor
designates a Single-Purpose Entity (if the Mortgagor no longer complies) to own
the Defeasance Collateral (subject to customary qualifications) or (B) the
Master Servicer has established a Single-Purpose Entity to hold all Defeasance
Collateral relating to the Defeasance Loans, (iv) the Master Servicer has
requested and received from the Mortgagor (A) an opinion of counsel that the
Trustee will have a perfected, first priority security interest in such
Defeasance Collateral and (B) written confirmation from a firm of independent
accountants stating that payments made on such Defeasance Collateral in
accordance with the terms thereof will be sufficient to pay the subject Mortgage
Loan (or the defeased portion thereof in connection with a partial defeasance)
in full on or before its Maturity Date (or, in the case of an ARD Loan, on or
before its Anticipated Repayment Date) and to timely pay each subsequent
Scheduled Payment, (v) (A) a Rating Agency Confirmation is received if the
Mortgage Loan (together with any other Mortgage Loan with which it is
cross-collateralized) has a Principal Balance greater than the lesser of
$20,000,000 and 5% of the Aggregate Certificate Balance (excluding the Class LF
Certificates), unless such Rating Agency has waived in writing such Rating
Agency Confirmation requirement (or such higher threshold, if any, as shall be
published by the Rating Agencies) or (B) if the Mortgage Loan is less than or
equal to both of the amounts set forth in clause (A) and the successor Mortgagor
with respect to the subject Mortgage Loan and its affiliates collectively have
assumed Mortgage Loans comprising an aggregate principal amount at least equal
to the lesser of $20,000,000 and 5% of the Aggregate Certificate Balance
(excluding the Class LF Certificates), either a Notice and Certification in the
form attached
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hereto as Exhibit Z (or such less restrictive forms, if any, as shall be adopted
by the Rating Agencies) or a Rating Agency Confirmation is received from S&P and
(vi) a Rating Agency Confirmation is received if the Mortgage Loan is one of the
ten largest Mortgage Loans, by Principal Balance. Any customary and reasonable
out-of-pocket expense incurred by the Master Servicer pursuant to this Section
8.3(h) shall be paid by the Mortgagor of the Defeasance Loan pursuant to the
related Mortgage, Mortgage Note or other pertinent document, if so allowed by
the terms of such documents.
The parties hereto acknowledge that if the payments described in
paragraph 39 of Exhibit 2 to the Mortgage Loan Purchase Agreements regarding the
obligation of a Mortgagor to pay the reasonable costs and expenses associated
with a defeasance of the related Mortgage Loan are insufficient to reimburse the
Trust, including, but not limited to, rating agency fees, then the sole
obligation of the related Seller shall be to pay an amount equal to such
insufficiency or expense to the extent the related Mortgagor is not required to
pay such amount. If any amount is due under the preceding sentence for either
the East Towne Mall Mortgage Loan or the West Towne Mall Mortgage Loan, then
each of Principal and MSMC shall be required to pay only such party's pro rate
share (i.e., 50% each with respect to the East Towne Mall Mortgage Loan and the
West Towne Mall Mortgage Loan of such amount). Promptly upon receipt of notice
of such insufficiency or unpaid expense, the Master Servicer shall request the
related Seller to make such payment by deposit to the Certificate Account.
In the case of a Specially Serviced Mortgage Loan, the Master Servicer
shall process any defeasance of such Specially Serviced Mortgage Loan in
accordance with the original terms of the respective Mortgage Loan documents
following a request by the Special Servicer that the Master Servicer do so,
which request shall be accompanied by a waiver of any condition of defeasance
that an "event of default" under such Specially Serviced Mortgage Loan not have
occurred or be continuing, and the Master Servicer shall be entitled to any fees
paid relating to such defeasance. If such "event of default" is on account of an
uncured payment default, the Special Servicer will process the defeasance of
such Specially Serviced Mortgage Loan, and the Special Servicer shall be
entitled to any fees paid relating to such defeasance.
(i) The Master Servicer shall, as to each Mortgage Loan which is
secured by the interest of the related Mortgagor under a ground lease, confirm
whether or not on or prior to the date that is thirty (30) days after the
Closing Date, the Seller has notified the related ground lessor of the transfer
of such Mortgage Loan to the Trust pursuant to this Agreement and informed such
ground lessor that any notices of default under the related Ground Lease should
thereafter be forwarded to the Master Servicer (as evidenced by delivery of a
copy thereof to the Master Servicer). The Master Servicer shall promptly notify
the ground lessor if the Seller has failed to do so by the thirtieth day after
the Closing Date.
(j) Pursuant to the related Intercreditor Agreement, the owner of any
B Note has agreed that the Master Servicer and the Special Servicer are
authorized and obligated to service and administer the B Note pursuant to this
Agreement. The Master Servicer shall be entitled, during any period when the A
Note and B Note under any A/B Mortgage Loan do not constitute Specially Serviced
Mortgage Loans, to exercise the rights and powers granted under the related
Intercreditor Agreement to the "Note A Holder" and/or the "Servicer" referred to
therein. For the avoidance of doubt, the parties acknowledge that neither the
Master Servicer nor
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the Special Servicer shall be entitled or required to exercise the rights and
powers granted to any "Note B Holder" as defined under the related Intercreditor
Agreement.
(k) Pursuant to the applicable Non-Serviced Mortgage Loan
Intercreditor Agreement, the owner of any Non-Serviced Mortgage Loan has agreed
that such owner's rights in, to and under such Non-Serviced Mortgage Loan are
subject to the servicing and all other rights of the applicable Non-Serviced
Mortgage Loan Master Servicer and the applicable Non-Serviced Mortgage Loan
Special Servicer, and the applicable Non-Serviced Mortgage Loan Master Servicer
and the applicable Non-Serviced Mortgage Loan Special Servicer are authorized
and obligated to service and administer such Non-Serviced Mortgage Loan pursuant
to the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
Notwithstanding anything herein to the contrary, the parties hereto acknowledge
and agree that the Master Servicer's obligations and responsibilities hereunder
and the Master Servicer's authority with respect to any Non-Serviced Mortgage
Loan are limited by and subject to the terms of the related Non-Serviced
Mortgage Loan Intercreditor Agreement and the rights of the applicable
Non-Serviced Mortgage Loan Master Servicer and the applicable Non-Serviced
Mortgage Loan Special Servicer with respect thereto under the related
Non-Serviced Mortgage Loan Pooling and Servicing Agreement. The Master Servicer
shall use reasonable best efforts consistent with the Servicing Standard to
monitor the servicing of any Non-Serviced Mortgage Loan by the applicable
Non-Serviced Mortgage Loan Master Servicer and the applicable Non-Serviced
Mortgage Loan Special Servicer pursuant to the related Non-Serviced Mortgage
Loan Pooling and Servicing Agreement and shall enforce the rights of the Trustee
(as holder of the Non-Serviced Mortgage Loans) under the related Non-Serviced
Mortgage Loan Pooling and Servicing Agreement and the related Non-Serviced
Mortgage Loan Intercreditor Agreement. The Master Servicer shall take such
actions as it shall deem reasonably necessary to facilitate the servicing of any
Non-Serviced Mortgage Loan by the applicable Non-Serviced Mortgage Loan Master
Servicer and the applicable Non-Serviced Mortgage Loan Special Servicer
including, but not limited to, delivering appropriate Requests for Release to
the Trustee and Custodian (if any) in order to deliver any portion of the
related Mortgage File to the applicable Non-Serviced Mortgage Loan Master
Servicer or applicable Non-Serviced Mortgage Loan Special Servicer under the
related Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
(l) Pursuant to each Loan Pair Intercreditor Agreement, the owner of
the related Serviced Companion Mortgage Loan has agreed that the Master Servicer
and the Special Servicer are authorized and obligated to service and administer
the Serviced Companion Mortgage Loan pursuant to this Agreement. The Master
Servicer, the Special Servicer, the Trustee and the Fiscal Agent are, to the
extent applicable, authorized and directed to execute and deliver to the owner
or owners of the Serviced Companion Mortgage Loan a letter agreement dated as of
the Closing Date setting forth provisions as to, among other things, the timing
of remittances, advances and reports relating to the Serviced Companion Mortgage
Loan, and references herein to the related Loan Pair Intercreditor Agreement
shall be construed to refer to such Loan Pair Intercreditor Agreement and such
letter agreement taken together, as applicable. To the extent that the Master
Servicer, the Special Servicer, the Trustee and/or the Fiscal Agent have duties
and obligations under any such letter agreement, each successor master servicer,
successor special servicer, successor trustee and/or successor fiscal agent,
respectively, under this Agreement shall perform such duties and satisfy such
obligations.
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SECTION 8.4 PRIMARY SERVICING AND SUB-SERVICING.
(a) The parties hereto (A) acknowledge that the Master Servicer has
delegated certain of its obligations and assigned certain of its rights under
this Agreement to the Primary Servicer pursuant to the Primary Servicing
Agreement; and (B) agree: (1) in addition to those obligations specifically
delegated by the Master Servicer to the Primary Servicer under the Primary
Servicing Agreement, the Primary Servicer shall also perform the Master
Servicer's obligations set forth in Section 2.1(d) of this Agreement as such
Section relates to the Mortgage Loans serviced by it; (2) in addition to those
rights specifically granted by the Master Servicer to the Primary Servicer under
the Primary Servicing Agreement, those rights set forth in Section 8.24 hereof
accruing to the benefit of the Master Servicer shall also accrue to the benefit
of the Primary Servicer; (3) any indemnification or release from liability set
forth in this Agreement accruing to the benefit of the Master Servicer shall
also, to the extent applicable, benefit the Primary Servicer; and (4) for each
notice, certification, report, schedule, statement or other type of writing that
a party hereto is obligated to deliver to the Master Servicer, such party shall
deliver to the Primary Servicer a copy of such notice, certification, report,
schedule, statement or other type of writing at the time and in the same manner
that any of the foregoing is required to be delivered to the Master Servicer.
Notwithstanding the provisions of the Primary Servicing Agreement or any other
provisions of this Agreement, the Master Servicer shall remain obligated and
liable to the Trustee, the Paying Agent, the Special Servicer, the
Certificateholders, the holder of any Serviced Companion Mortgage Loan and the
holder of any B Note for servicing and administering of the Mortgage Loans and
any Serviced Companion Mortgage Loan in accordance with the provisions of this
Agreement to the same extent as if the Master Servicer was alone servicing and
administering the Mortgage Loans and the Serviced Companion Mortgage Loans. The
Master Servicer or the Primary Servicer shall supervise, administer, monitor,
enforce and oversee the servicing of the applicable Mortgage Loans by any
Sub-Servicer appointed by it. The terms of any arrangement or agreement between
the Master Servicer or the Primary Servicer and a Sub-Servicer shall provide
that such agreement or arrangement may be terminated, without cause and without
the payment of any termination fees, by the Trustee in the event such Master
Servicer or the Primary Servicer is terminated in accordance with this Agreement
or the Primary Servicing Agreement. In addition, none of the Trustee, the Paying
Agent, the Certificateholders, the holder of any Serviced Companion Mortgage
Loan or the holder of any B Note shall have any direct obligation or liability
(including, without limitation, indemnification obligations) with respect to any
Sub-Servicer. The Master Servicer or the Primary Servicer shall pay the costs of
enforcement against any of its Sub-Servicers at its own expense, but shall be
reimbursed therefor only (i) from a general recovery resulting from such
enforcement only to the extent that such recovery exceeds all amounts due in
respect of the related Mortgage Loans or (ii) from a specific recovery of costs,
expenses or attorneys fees against the party against whom such enforcement is
directed. Notwithstanding the provisions of any primary servicing agreement or
sub-servicing agreement, any of the provisions of this Agreement relating to
agreements or arrangements between the Master Servicer or the Primary Servicer
or a Sub-Servicer, or reference to actions taken through a Sub-Servicer or
otherwise, the Master Servicer or the Primary Servicer shall remain obligated
and liable to the Trustee, the Paying Agent, the Special Servicer and the
Certificateholders for the servicing and administering of the applicable
Mortgage Loans and the Serviced Companion Mortgage Loans in accordance with (and
subject to the limitations contained within) the provisions of this Agreement or
the Primary Servicing Agreement without diminution of such
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obligation or liability by virtue of indemnification from a Sub-Servicer and to
the same extent and under the same terms and conditions as if the Master
Servicer or the Primary Servicer alone were servicing and administering the
Mortgage Loans.
(b) Subject to the limitations of subsection (a), the Master Servicer
and the Primary Servicer may appoint one or more sub-servicers (each, a
"Sub-Servicer") to perform all or any portion of its duties hereunder for the
benefit of the Trustee and the Certificateholders, provided, however, that any
decision or recommendation involving the exercise of the Primary Servicer's
discretion as a "lender" under any loan document with respect to a Mortgage Loan
shall be exercised only by the Primary Servicer and may not be delegated to a
Sub-Servicer.
The Master Servicer shall enter into the Primary Servicing Agreement
with the Primary Servicer and shall not terminate such agreements except in
accordance with the terms thereof. To the extent consistent with the rights of
the Primary Servicer under this Agreement and the Primary Servicing Agreement,
but not in limitation of any other rights granted to the Primary Servicer in
this Agreement and/or in the Primary Servicing Agreement, the Primary Servicer
shall have all of the rights and obligations of a Sub-Servicer set forth herein.
Notwithstanding any other provision set forth in this Agreement to the
contrary, (i) the Primary Servicer's rights and obligations under the Primary
Servicing Agreement shall expressly survive a termination of the Master
Servicer's servicing rights under this Agreement; provided that the Primary
Servicing Agreement has not been terminated in accordance with its provisions;
(ii) any successor Master Servicer, including, without limitation, the Trustee
(if it assumes the servicing obligations of the Master Servicer) shall be deemed
to automatically assume and agree to the then current Primary Servicing
Agreement without further action upon becoming the successor Master Servicer and
(iii) this Agreement may not be modified in any manner which would increase the
obligations or limit the rights of the Primary Servicer hereunder and/or under
the Primary Servicing Agreement, without the prior written consent of the
Primary Servicer (which consent shall not be unreasonably withheld).
If a task, right or obligation of Master Servicer is delegated to the
Primary Servicer under the Primary Servicing Agreement, and such task, right or
obligation involves or requires the consent of the Special Servicer, then the
Special Servicer shall accept the performance of such task, right or obligation
by the Primary Servicer in accordance with the terms of this Agreement
(including without limitation any time periods for consent or deemed consent to
be observed by the Special Servicer) as if Master Servicer were performing it.
Notwithstanding any provision of this Agreement, each of the parties
hereto acknowledges and agrees that the Special Servicer is neither a party to
the Primary Servicing Agreement, nor is it bound by any provision of the Primary
Servicing Agreement. The Special Servicer hereby acknowledges the delegation of
rights and duties hereunder by the Master Servicer pursuant to the provisions of
the Primary Servicing Agreement.
SECTION 8.5 SERVICERS MAY OWN CERTIFICATES. The Master Servicer and
the Primary Servicer and any agent of the Master Servicer or Primary Servicer in
its individual or any other capacity may become the owner or pledgee of
Certificates with the same rights it would have if it were not the Master
Servicer or such agent. Any such interest of the Master
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Servicer or the Primary Servicer or such agent in the Certificates shall not be
taken into account when evaluating whether actions of the Master Servicer are
consistent with its obligations in accordance with the Servicing Standard
regardless of whether such actions may have the effect of benefiting the Class
or Classes of Certificates owned by the Master Servicer.
SECTION 8.6 MAINTENANCE OF HAZARD INSURANCE, OTHER INSURANCE, TAXES
AND OTHER. Subject to the limitations set forth below, the Master Servicer shall
use reasonable efforts consistent with the Servicing Standard to cause the
related Mortgagor to maintain for each Mortgage Loan (other than any REO
Mortgage Loan) (A) a Standard Hazard Insurance Policy (that, if the terms of the
related Mortgage Loan documents and the related Mortgage so require or so permit
the holder of the Mortgage Loan to require, contains no exclusion for damages
due to any Act or Acts of Terrorism, as defined in the Terrorism Risk Insurance
Act of 2002) and which does not provide for reduction due to depreciation in an
amount that is at least equal to the lesser of (i) the full replacement cost of
improvements securing such Mortgage Loan or (ii) the outstanding Principal
Balance of such Mortgage Loan and any related B Note or Serviced Companion
Mortgage Loan, but, in any event, in an amount sufficient to avoid the
application of any co-insurance clause and (B) any other insurance coverage for
a Mortgage Loan which the related Mortgagor is required to maintain under the
related Mortgage, provided the Master Servicer shall not be required to maintain
earthquake insurance on any Mortgaged Property unless such insurance was
required at origination and is available at commercially reasonable rates;
provided, however, that the Special Servicer shall have the right, but not the
duty, to obtain, at the Trust's expense, earthquake insurance on any Mortgaged
Property securing a Specially Serviced Mortgage Loan or an REO Property so long
as such insurance is available at commercially reasonable rates. If the related
Mortgagor does not maintain the insurance set forth in clauses (A) and (B)
above, then the Master Servicer shall cause such insurance to be maintained with
a Qualified Insurer. The Master Servicer shall be deemed to have satisfied its
obligations with respect to clause (A) above if the Mortgagor maintains, or the
Master Servicer shall have otherwise caused to be obtained, a Standard Hazard
Insurance Policy that is in compliance with the related Mortgage Loan documents,
and, if required by such Mortgage Loan documents or if such Mortgage Loan
documents permit the holder of the Mortgage Loan to require, the Mortgagor pays,
or the Master Servicer shall have otherwise caused to be paid, the premium
required by the related insurance provider that is necessary to avoid an
exclusion in such policy against "acts of terrorism" as defined by the Terrorism
Risk Insurance Act of 2002.
Each Standard Hazard Insurance Policy maintained with respect to any
Mortgaged Property that is not an REO Property shall contain, or have an
accompanying endorsement that contains, a standard mortgagee clause. If the
improvements on the Mortgaged Property are located in a designated special flood
hazard area by the Federal Emergency Management Agency in the Federal Register,
as amended from time to time (to the extent permitted under the related Mortgage
Loan or as required by law), the Master Servicer (with respect to any Mortgaged
Property that is not an REO Property) shall cause flood insurance to be
maintained. Such flood insurance shall be in an amount equal to the lesser of
(i) the unpaid principal balance of the related Mortgage Loan or (ii) the
maximum amount of such insurance available for the related Mortgaged Property
under the national flood insurance program, if the area in which the
improvements on the Mortgaged Property are located is participating in such
program. Any amounts collected by the Master Servicer under any such policies
(other than amounts to be applied to the restoration or repair of the related
Mortgaged Property or property
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thus acquired or amounts released to the Mortgagor in accordance with the terms
of the applicable Mortgage Loan) shall be deposited in the Certificate Account.
Any cost (such as insurance premiums and insurance broker fees but not
internal costs and expenses of obtaining such insurance) incurred by the Master
Servicer in maintaining any insurance pursuant to this Section 8.6 shall not,
for the purpose of calculating monthly distributions to the Certificateholders
or remittances to the Paying Agent for their benefit, be added to the Principal
Balance of the Mortgage Loan, notwithstanding that the terms of the Mortgage
Loan permit such cost to be added to the outstanding Principal Balance thereof.
Such costs shall be paid as a Servicing Advance by the Master Servicer, subject
to Section 4.4 hereof.
Notwithstanding the above, the Master Servicer shall have no
obligation beyond using its reasonable efforts consistent with the Servicing
Standard to enforce such insurance requirements. Furthermore, the Master
Servicer shall not be required in any event to cause the Mortgagor to maintain
or itself obtain insurance coverage beyond what is available on commercially
reasonable terms at a cost customarily acceptable (in each case, as determined
by the Master Servicer, which shall be entitled to rely, at its sole expense, on
insurance consultants in making such determination, consistent with the
Servicing Standard) and consistent with the Servicing Standard; provided, that
the Master Servicer shall be obligated to cause the Mortgagor to maintain or
itself obtain insurance against property damage resulting from terrorism or
similar acts if the terms of the related Mortgage Loan documents and the related
Mortgage so require unless the Master Servicer determines that (i) such
insurance is not available at any rate or (ii) such insurance is not available
at commercially reasonable rates and such hazards are not at the time commonly
insured against for properties similar to the related Mortgaged Property and
located in or around the region in which such related Mortgaged Property is
located; provided, that such determination must be made by the Master Servicer
not less frequently (but need not be made more frequently) than annually, but in
any event, shall be made on the approximate date on (but not later than sixty
(60) days thereafter) which the Master Servicer receives notice of the renewal,
replacement or cancellation of coverage (as evidenced by the related insurance
policy or insurance certificate). Notwithstanding the limitation set forth in
the preceding sentence, if the related Mortgage Loan documents and the related
Mortgage require the Mortgagor to maintain insurance against property damage
resulting from terrorism or similar acts, the Master Servicer shall prior to
availing itself of any limitation described in that sentence with respect to any
Mortgage Loan (or any component loan of an A/B Mortgage Loan) that has a
principal balance in excess of $2,500,000, obtain the approval or disapproval of
the Special Servicer and the Operating Adviser (or with respect to the
Lakeforest Mall Mortgage Loan, the Lakeforest Mall Mortgage Loan Operating
Adviser) (subject to the penultimate paragraph of Section 9.39). The Master
Servicer shall be entitled to rely on the determination of the Special Servicer
made in connection with such approval or disapproval. The Special Servicer shall
decide whether to withhold or grant such approval in accordance with the
Servicing Standard. If any such approval has not been expressly denied within
seven (7) Business Days of receipt by the Special Servicer and Operating Adviser
(or with respect to the Lakeforest Mall Mortgage Loan, the Lakeforest Mall
Mortgage Loan Operating Adviser) from the Master Servicer of the Master
Servicer's determination and analysis and all information reasonably requested
by the Special Servicer and reasonably available to the Master Servicer in order
to make an informed decision, such approval shall be deemed to have been
granted. The Master Servicer shall notify the holder of the related
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Serviced Companion Mortgage Loan of any determination that it makes pursuant to
clauses (i) and (ii) above with respect to any Serviced Pari Passu Mortgage
Loan.
The Master Servicer shall conclusively be deemed to have satisfied its
obligations as set forth in this Section 8.6 either (i) if the Master Servicer
shall have obtained and maintained a master force placed or blanket insurance
policy insuring against hazard losses on all of the applicable Mortgage Loans,
any Serviced Companion Mortgage Loan and any B Note serviced by it, it being
understood and agreed that such policy may contain a deductible clause on terms
substantially equivalent to those commercially available and maintained by
comparable servicers consistent with the Servicing Standard, and provided that
such policy is issued by a Qualified Insurer or (ii) if the Master Servicer,
provided that its long-term rating is not less than "A" by Fitch and "A2" by
Xxxxx'x, self-insures for its obligations as set forth in the first paragraph of
this Section 8.6. In the event that the Master Servicer shall cause any Mortgage
Loan to be covered by such a master force placed or blanket insurance policy,
the incremental cost of such insurance allocable to such Mortgage Loan (i.e.,
other than any minimum or standby premium payable for such policy whether or not
any Mortgage Loan is then covered thereby), if not borne by the related
Mortgagor, shall be paid by the Master Servicer as a Servicing Advance. If such
policy contains a deductible clause, the Master Servicer shall, if there shall
not have been maintained on the related Mortgaged Property a policy complying
with this Section 8.6 and there shall have been a loss that would have been
covered by such policy, deposit in the Certificate Account the amount not
otherwise payable under such master force placed or blanket insurance policy
because of such deductible clause to the extent that such deductible exceeds (i)
the deductible under the related Mortgage Loan or (ii) if there is no deductible
limitation required under the Mortgage Loan, the deductible amount with respect
to insurance policies generally available on properties similar to the related
Mortgaged Property which is consistent with the Servicing Standard, and deliver
to the Trustee an Officer's Certificate describing the calculation of such
amount. In connection with its activities as administrator and servicer of the
Mortgage Loans, any Serviced Companion Mortgage Loan and any B Note, the Master
Servicer agrees to present, on its behalf and on behalf of the Trustee and the
holders of any Serviced Companion Mortgage Loan or any B Note, claims under any
such master force placed or blanket insurance policy.
With respect to each Mortgage Loan, the Master Servicer shall maintain
accurate records with respect to each related Mortgaged Property reflecting the
status of taxes, assessments and other similar items that are or may become a
lien on the related Mortgaged Property and the status of insurance premiums
payable with respect thereto. From time to time, the Master Servicer (other than
with respect to REO Mortgage Loans) shall (i) obtain all bills for the payment
of such items (including renewal premiums), and (ii) except in the case of
Mortgage Loans under which Escrow Amounts are not held by the Master Servicer,
effect payment of all such bills, taxes and other assessments with respect to
such Mortgaged Properties prior to the applicable penalty or termination date,
in each case employing for such purpose Escrow Amounts as allowed under the
terms of the related Mortgage Loan. If a Mortgagor fails to make any such
payment on a timely basis or collections from the Mortgagor are insufficient to
pay any such item before the applicable penalty or termination date, the Master
Servicer in accordance with the Servicing Standard shall use its reasonable
efforts to pay as a Servicing Advance the amount necessary to effect the payment
of any such item prior to such penalty or termination date, subject to Section
4.4 hereof. No costs incurred by the Master Servicer, the Trustee or the
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Fiscal Agent as the case may be, in effecting the payment of taxes and
assessments on the Mortgaged Properties and related insurance premiums and
ground rents shall, for the purpose of calculating distributions to
Certificateholders, be added to the Principal Balance of the Mortgage Loans,
notwithstanding that the terms of such Mortgage Loans permit such costs to be
added to the outstanding Principal Balances of such Mortgage Loans.
SECTION 8.7 ENFORCEMENT OF DUE-ON-SALE CLAUSES; ASSUMPTION AGREEMENTS;
DUE-ON-ENCUMBRANCE CLAUSE.
(a) In the event the Master Servicer receives a request from a
Mortgagor (or other obligor) pursuant to the provisions of any Mortgage Loan,
Serviced Companion Mortgage Loan or B Note (other than a Specially Serviced
Mortgage Loan or a Non-Serviced Mortgage Loan) that expressly permits, subject
to any conditions set forth in the Mortgage Loan documents, the assignment of
the related Mortgaged Property to, and assumption of such Mortgage Loan,
Serviced Companion Mortgage Loan or B Note by, another Person, the Master
Servicer shall obtain relevant information for purposes of evaluating such
request. For the purpose of the foregoing sentence, the term 'expressly permits'
shall include outright permission to assign, permission to assign upon
satisfaction of certain conditions or prohibition against assignment except upon
the satisfaction of stated conditions. If the Master Servicer recommends to
approve such assignment, the Master Servicer shall provide to the Special
Servicer (and solely with respect to any A/B Mortgage Loan, the holder of the B
Note) a copy of such recommendation and the materials upon which such
recommendation is based (which information shall consist of the information to
be included in the Assignment and Assumption Submission to Special Servicer, in
the form attached hereto as Exhibit U) and (A) the Special Servicer shall have
the right hereunder to grant or withhold consent to any such request for such
assignment and assumption in accordance with the terms of the Mortgage Loan,
Serviced Companion Mortgage Loan or B Note and this Agreement, and the Special
Servicer shall not unreasonably withhold such consent and any such decision of
the Special Servicer shall be in accordance with the Servicing Standard, (B)
failure of the Special Servicer to notify the Master Servicer in writing, within
five (5) Business Days following the Master Servicer's delivery of the
recommendation described above and the complete Assignment and Assumption
Submission to Special Servicer on which the recommendation is based, of its
determination to grant or withhold such consent shall be deemed to constitute a
grant of such consent and (C) the Master Servicer shall not permit any such
assignment or assumption unless (i) it has received the written consent of the
Special Servicer or such consent has been deemed to have been granted as
described in the preceding sentence and (ii) with respect to any A/B Mortgage
Loan, the Master Servicer has obtained the approval of the holder of the related
B Note, to the extent provided for in the related Intercreditor Agreement, and
in accordance with any procedures therefor set forth in Section 9.40. The
Special Servicer hereby acknowledges the delegation of rights and duties
hereunder by the Master Servicer pursuant to the provisions of the Primary
Servicing Agreement. If the Special Servicer withholds consent pursuant to the
provisions of this Agreement, it shall provide the Master Servicer or the
Primary Servicer with a written statement and a verbal explanation as to its
reasoning and analysis. Upon consent or deemed consent by the Special Servicer
to such proposed assignment and assumption, the Master Servicer shall process
such request of the related Mortgagor (or other obligor) and shall be authorized
to enter into an assignment and assumption or substitution agreement with the
Person to whom the related Mortgaged Property has been or is proposed to be
conveyed, and/or release the original Mortgagor from liability
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under the related Mortgage Loan, Serviced Companion Mortgage Loan or B Note and
substitute as obligor thereunder the Person to whom the related Mortgaged
Property has been or is proposed to be conveyed; provided, however, that the
Master Servicer shall not enter into any such agreement to the extent that any
terms thereof would result in an Adverse REMIC Event or create any lien on a
Mortgaged Property that is senior to, or on parity with, the lien of the related
Mortgage. To the extent permitted by applicable law, the Master Servicer shall
not enter into such an assumption or substitution agreement unless the credit
status of the prospective new Mortgagor (or other obligor) is in conformity to
the terms of the related Mortgage Loan and, if applicable, B Note or Serviced
Companion Mortgage Loan documents. In making its recommendation, the Master
Servicer shall evaluate such conformity in accordance with the Servicing
Standard. The Master Servicer shall notify the Trustee, the Paying Agent and the
Special Servicer of any assignment and assumption or substitution agreement
executed pursuant to this Section 8.7(a). The Master Servicer shall be entitled
to (as additional servicing compensation) 50% of any assumption fee collected
from a Mortgagor in connection with an assignment and assumption or substitution
of a non-Specially Serviced Mortgage Loan executed pursuant to this Section
8.7(a) and the Special Servicer shall be entitled to (as additional special
servicing compensation) the other 50% of such fee.
Notwithstanding the foregoing, the Special Servicer acknowledges that
the Master Servicer has delegated certain tasks, rights and obligations to the
Primary Servicer with respect to Post Closing Requests (as defined in the
Primary Servicing Agreement) pursuant to Section 8.4 of this Agreement. The
Primary Servicing Agreement classifies certain Post Closing Requests as Category
1 Requests and grants the Primary Servicer certain authority to evaluate and
process such requests in accordance with this Agreement, the Primary Servicing
Agreement and applicable Mortgage Loan documents.
With respect to a Category 1 Request that involves a condition, term
or provision that requires, or specifies a standard of, consent or approval of
the applicable Mortgagee under the Mortgage Loan documents, the Primary
Servicing Agreement provides for the determination of materiality of such
condition, term or provision requiring approval or consent by the Master
Servicer or the Primary Servicer and the referral of such condition, term or
provision to a Special Servicer for consent in accordance with the terms of the
Primary Servicing Agreement upon a determination of materiality. The Special
Servicer acknowledges such provisions. Nothing in this Agreement, however, shall
grant the Primary Servicer greater authority, discretion or delegated rights
over Post Closing Requests than are set forth in the Primary Servicing
Agreement.
Neither the Master Servicer nor the Special Servicer shall have any
liability, and each of them shall be indemnified by the Trust for any liability
to the Mortgagor or the proposed assignee, for any delay in responding to
requests for assumption, if the same shall occur as a result of the failure of
the Rating Agencies, or any of them, to respond to such request in a reasonable
period of time.
(b) Other than with respect to the assignment and assumptions referred
to in subsection (a) above, if any Mortgage Loan that is not a Specially
Serviced Mortgage Loan or a Non-Serviced Mortgage Loan contains a provision in
the nature of a "due-on-sale" clause, which by its terms (i) provides that such
Mortgage Loan shall (or may at the mortgagee's option)
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become due and payable upon the sale or other transfer of an interest in the
related Mortgaged Property or ownership interest in the related Mortgagor, or
(ii) provides that such Mortgage Loan may not be assumed, or ownership interests
in the related Mortgagor may not be transferred, without the consent of the
related mortgagee in connection with any such sale or other transfer, then, the
Master Servicer shall review and make a determination to either (i) enforce such
due-on-sale clause or (ii) if in the best economic interest of the Trust, waive
the effect of such provision, such waiver to be processed in the same manner as
in Section 8.7(a) (including the Special Servicer consent provisions); provided,
however, that if the Principal Balance of such Mortgage Loan (together with any
other Mortgage Loan with which it is cross-collateralized) at such time equals
or exceeds 5% of the Aggregate Certificate Balance (excluding the Class LF
Certificates) or exceeds $35,000,000 or is one of the then current top 10 loans
(by Principal Balance) in the pool, then prior to waiving the effect of such
provision, the Master Servicer shall obtain Rating Agency Confirmation
(including with respect to any securities which are rated by a Rating Agency
evidencing direct beneficial interests in the A Notes and any B Note) regarding
such waiver. In connection with the request for such Rating Agency Confirmation,
the Master Servicer shall prepare and deliver to Fitch and Xxxxx'x a memorandum
outlining its analysis and recommendation in accordance with the Servicing
Standard, together with copies of all relevant documentation. The Master
Servicer shall promptly forward copies of the assignment and assumption
documents relating to any Mortgage Loan to the Special Servicer, the Paying
Agent and the Trustee, and the Master Servicer shall promptly thereafter forward
such documents to the Rating Agencies. The Special Servicer and the Master
Servicer shall each be entitled to (as additional compensation) 50% of any fee
collected from a Mortgagor in connection with granting or withholding such
consent (other than any such fee payable in connection with any Non-Serviced
Mortgage Loan).
The parties hereto acknowledge that, if the payments described in
paragraph 39 of Exhibit 2 to the Mortgage Loan Purchase Agreements regarding the
obligation of a Mortgagor to pay the reasonable costs and expenses of obtaining
any Rating Agency Confirmation in connection with an assumption of the related
Mortgage Loan are insufficient to reimburse the Trust, then it shall be the sole
obligation of the related Seller to pay an amount equal to such insufficiency to
the extent the related Mortgagor is not required to pay them. Promptly upon
receipt of notice of such insufficiency, the Master Servicer or the Special
Servicer, as applicable, shall request the related Seller to make such payment
by deposit to the Certificate Account. If any amount is due under the preceding
sentence for either of the East Towne Mall Mortgage Loan or the West Towne Mall
Mortgage Loan, then each of Principal and MSMC shall be required to pay only
such party's pro rata share (i.e., 50% each with respect to the East Town Mall
Mortgage Loan and the West Towne Mall Mortgage Loan, as applicable, of such
amount). The Master Servicer may not waive such payment by the Mortgagor and
shall use its reasonable efforts to collect such amounts from the Mortgagor to
the extent the related mortgage loan documents require the related Mortgagor to
pay such amounts.
(c) The Master Servicer shall have the right to consent to any
transfers of an interest of a Mortgagor, to the extent such transfer is to a
party or entity specifically named or described under the terms of the related
Mortgage Loan, including any consent to transfer to any subsidiary or affiliate
of Mortgagor or to a person acquiring less than a majority interest in the
Mortgagor; provided, however, that if (i) the Principal Balance of such Mortgage
Loan (together with any other Mortgage Loan with which it is
cross-collateralized) at such time equals or
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exceeds 5% of the Aggregate Certificate Balance (excluding the Class LF
Certificates) or exceeds $35,000,000 or is one of the then current top 10 loans
(by Principal Balance) in the pool, and (ii) the transfer is of an interest in
the Mortgagor greater than 49%, then prior to consenting, the Master Servicer
shall obtain a Rating Agency Confirmation regarding such consent, the costs of
which to be payable by the related Mortgagor to the extent provided for in the
Mortgage Loan documents. The Master Servicer shall be entitled to collect and
receive from Mortgagors any customary fees in connection with such transfers of
interest as additional servicing compensation.
(d) The Trustee for the benefit of the Certificateholders, the holder
of any Serviced Companion Mortgage Loan and the holder of any B Note shall
execute any necessary instruments in the form presented to it by the Master
Servicer (pursuant to subsection (b)) for such assignments and assumptions
agreements. Upon the closing of the transactions contemplated by such documents,
the Master Servicer or the Special Servicer, as the case may be, shall cause the
originals of the assignment and assumption agreement, the release (if any), or
the modification or supplement to the Mortgage Loan to be delivered to the
Trustee except to the extent such documents have been submitted to the recording
office, in which event the Master Servicer shall promptly deliver copies of such
documents to the Trustee and the Special Servicer.
(e) If any Mortgage Loan (other than a Specially Serviced Mortgage
Loan or a Non-Serviced Mortgage Loan) which contains a provision in the nature
of a "due-on-encumbrance" clause, which by its terms:
(i) provides that such Mortgage Loan shall (or may at the
mortgagee's option) become due and payable upon the creation of any additional
lien or other encumbrance on the related Mortgaged Property or a lien on an
ownership interest in the Mortgagor; or
(ii) requires the consent of the Mortgagee to the creation of any
such additional lien or other encumbrance on the related Mortgaged Property or a
lien on an ownership interest in the Mortgagor,
then, as long as such Mortgage Loan is included in the Trust, the Master
Servicer, on behalf of the Trustee as the Mortgagee of record, shall exercise
(or, subject to Section 8.18, waive its right to exercise) any right it may have
with respect to such Mortgage Loan (x) to accelerate the payments thereon, or
(y) to withhold its consent to the creation of any such additional lien or other
encumbrance, in a manner consistent with the Servicing Standard, the following
paragraph and Section 8.18 hereof. The Master Servicer shall not waive the
effect of such provision without first obtaining Rating Agency Confirmation
(including with respect to any securities which are rated by a Rating Agency
evidencing direct beneficial interests in the A Notes and any B Note) regarding
such waiver and complying with the provisions of the next succeeding paragraph;
provided, however, that such Rating Agency Confirmation shall only be required
if the applicable Mortgage Loan (x) represents 2% or more of the Principal
Balance of all of the Mortgage Loans held by the Trust, has a Principal Balance
of more than $20,000,000 or is one of the 10 largest Mortgage Loans based on
Principal Balance or (y) has a Loan-to-Value Ratio (which includes the
indebtedness to be secured by such additional lien or other encumbrance and any
other loans secured by the related Mortgaged Property or interests in the
related Mortgagor) that is greater than or equal to 85% or a Debt Service
Coverage Ratio (which includes debt
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service on the indebtedness to be secured by such additional lien or other
encumbrance and any other loans secured by the related Mortgaged Property or
interests in the related Mortgagor) that is less than 1.2x.
Without limiting the generality of the preceding paragraph, in the
event that the Master Servicer receives a request for a waiver of any
"due-on-encumbrance" clause, the Master Servicer shall obtain relevant
information for purposes of evaluating such request for a waiver. If the Master
Servicer recommends to waive such clause, the Master Servicer shall provide to
the Special Servicer a copy of such recommendation and the materials upon which
such recommendation is based (which information shall consist of the information
to be included in the Additional Lien, Monetary Encumbrance and Mezzanine
Financing Submission Package to the Special Servicer, in the form attached
hereto as Exhibit V) and (A) the Special Servicer shall have the right hereunder
to grant or withhold consent to any such request in accordance with the terms of
the Mortgage Loan and this Agreement, and the Special Servicer shall not
unreasonably withhold such consent and any such decision of the Special Servicer
shall be in accordance with the Servicing Standard, (B) failure of the Special
Servicer to notify the Master Servicer in writing, within five (5) Business Days
following the Master Servicer's delivery of the recommendation described above
and the complete Additional Lien, Monetary Encumbrance and Mezzanine Financing
Submission Package to the Special Servicer on which the recommendation is based,
of its determination to grant or withhold such consent shall be deemed to
constitute a grant of such consent and (C) the Master Servicer shall not permit
any such waiver unless it has received the written consent of the Special
Servicer or such consent has been deemed to have been granted as described in
the preceding sentence. If the Special Servicer withholds consent pursuant to
the foregoing provisions, it shall provide the Master Servicer with a written
statement and a verbal explanation as to its reasoning and analysis. Upon
consent or deemed consent by the Special Servicer to such proposed waiver, the
Master Servicer shall process such request of the related Mortgagor subject to
the other requirements set forth above.
Notwithstanding anything to the contrary contained in this Section 8.7
that requires the consent of the Master Servicer or the Special Servicer, as
applicable, any such consent with respect to any of the PCF A/B Mortgage Loans
shall be obtained in accordance with the related Intercreditor Agreement and
within the time periods specified therein.
SECTION 8.8 TRUSTEE TO COOPERATE; RELEASE OF TRUSTEE MORTGAGE FILES.
Upon the payment in full of any Mortgage Loan, the complete defeasance of a
Mortgage Loan, satisfaction or discharge in full of any Specially Serviced
Mortgage Loan, the purchase of an A Note by the holder of a B Note pursuant to
the related Intercreditor Agreement, or the receipt by the Master Servicer of a
notification that payment in full (or such payment, if any, in connection with
the satisfaction and discharge in full of any Specially Serviced Mortgage Loan)
will be escrowed in a manner customary for such purposes, and upon notification
by the Master Servicer in the form of a certification (which certification shall
include a statement to the effect that all amounts received or to be received in
connection with such payment which are required to be deposited in the
Certificate Account have been or will be so deposited) of a Servicing Officer
and a request for release of the Trustee Mortgage File in the form of Exhibit C
hereto the Trustee shall promptly release the related Trustee Mortgage File to
the Master Servicer and the Trustee shall execute and deliver to the Master
Servicer the deed of reconveyance or release, satisfaction or assignment of
mortgage or such instrument releasing the lien of the Mortgage, as directed by
the Master Servicer together with the Mortgage Note with written evidence of
cancellation
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thereon and, if the related Mortgage has been recorded in the name of MERS or
its designee, the Master Servicer shall take all necessary action to reflect the
release of such Mortgage on the records of MERS. The provisions of the
immediately preceding sentence shall not, in any manner, limit or impair the
right of the Master Servicer to execute and deliver, on behalf of the Trustee,
the Certificateholders, the holder of any Serviced Companion Mortgage Loan, the
holder of any B Note or any of them, any and all instruments of satisfaction,
cancellation or assignment without recourse, representation or warranty, or of
partial or full release or discharge and all other comparable instruments, with
respect to the Mortgage Loans, any Serviced Companion Mortgage Loan or any B
Note, and with respect to the Mortgaged Properties held for the benefit of the
Certificateholders, the holder of any Serviced Companion Mortgage Loan and the
holder of any B Note. No expenses incurred in connection with any instrument of
satisfaction or deed of reconveyance shall be chargeable to the Distribution
Account but shall be paid by the Master Servicer except to the extent that such
expenses are paid by the related Mortgagor in a manner consistent with the terms
of the related Mortgage and applicable law. From time to time and as shall be
appropriate for the servicing of any Mortgage Loan, including for such purpose,
collection under any policy of flood insurance, any Servicer Fidelity Bond or
Errors and Omissions Policy, or for the purposes of effecting a partial or total
release of any Mortgaged Property from the lien of the Mortgage or the making of
any corrections to the Mortgage Note or the Mortgage or any of the other
documents included in the Trustee Mortgage File, the Trustee shall, upon request
of the Master Servicer and the delivery to the Trustee of a Request for Release
signed by a Servicing Officer, in the form of Exhibit C hereto, release the
Trustee Mortgage File to the Master Servicer or the Special Servicer, as the
case may be.
SECTION 8.9 DOCUMENTS, RECORDS AND FUNDS IN POSSESSION OF MASTER
SERVICER TO BE HELD FOR THE TRUSTEE FOR THE BENEFIT OF THE CERTIFICATEHOLDERS.
Notwithstanding any other provisions of this Agreement, the Master
Servicer shall transmit to the Trustee, to the extent required by this
Agreement, all documents and instruments coming into the possession of the
Master Servicer from time to time and shall account fully to the Trustee and the
Paying Agent for any funds received or otherwise collected thereby, including
Liquidation Proceeds or Insurance Proceeds in respect of any Mortgage Loan. All
Servicer Mortgage Files and funds collected or held by, or under the control of,
the Master Servicer in respect of any Mortgage Loans (or any B Note or Serviced
Companion Mortgage Loan), whether from the collection of principal and interest
payments or from Liquidation Proceeds or Insurance Proceeds, including any funds
on deposit in the Certificate Account (or any A/B Loan Custodial Account or any
Serviced Companion Mortgage Loan Custodial Account), shall be held by the Master
Servicer for and on behalf of the Trustee and the Certificateholders (or the
holder of any B Note or Serviced Companion Mortgage Loan, as applicable) and
shall be and remain the sole and exclusive property of the Trustee, subject to
the applicable provisions of this Agreement. The Master Servicer agrees that it
shall not create, incur or subject any Servicer Mortgage Files or Trustee
Mortgage File or any funds that are deposited in the Certificate Account or any
Escrow Account, or any funds that otherwise are or may become due or payable to
the Trustee or the Paying Agent, to any claim, lien, security interest,
judgment, levy, writ of attachment or other encumbrance, or assert by legal
action or otherwise any claim or right of setoff against any Servicer Mortgage
Files or Trustee Mortgage File or any funds collected on, or in connection with,
a Mortgage Loan, except, however, that the
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Master Servicer shall be entitled to receive from any such funds any amounts
that are properly due and payable to the Master Servicer under this Agreement.
SECTION 8.10 SERVICING COMPENSATION.
(a) As compensation for its activities hereunder, the Master Servicer
shall be entitled to the Master Servicing Fee, which shall be payable by the
Trust from amounts held in the Certificate Account (and from the related A/B
Loan Custodial Account to the extent related solely to a B Note and from the
related Serviced Companion Mortgage Loan Custodial Account to the extent related
solely to a Serviced Companion Mortgage Loan) or otherwise collected from the
Mortgage Loans as provided in Section 5.2. The Master Servicer shall be required
to pay to the Primary Servicer its Primary Servicing Fees, which shall be
payable by the Trust from amounts as provided in Section 5.1(c), unless retained
by the Primary Servicer from amounts transferred to the Master Servicer in
accordance with the terms of the Primary Servicing Agreement. The Master
Servicer shall be required to pay to the holders of the rights to the Excess
Servicing Fees, the Excess Servicing Fees, which shall be payable by the Trust
as provided in Section 5.1(c), unless otherwise retained by the holders of such
rights. Notwithstanding anything herein to the contrary, if any of the holders
of the right to receive Excess Servicing Fees resigns or is no longer Master
Servicer or Primary Servicer, as applicable, for any reason, it will continue to
have the right to receive its portion of the Excess Servicing Fee, and any of
the holders of the right to receive Excess Servicing Fees shall have the right
to assign its portion of the Excess Servicing Fee, whether or not it is then
acting as Master Servicer or Primary Servicer hereunder. The Master Servicer
shall also be entitled to the Primary Servicing Fee, which shall be payable by
the Trust from amounts held in the Certificate Account (or a sub-account
thereof) or otherwise collected from the Mortgage Loans as provided in Section
5.2, provided that the Primary Servicing Fee payable to the Master Servicer
shall only be collected from the Mortgage Loans set forth on Schedule III,
except as provided in Section 8.28(b).
(b) Additional servicing compensation in the form of assumption fees,
extension fees, servicing fees, default interest (excluding default interest
allocable to any B Note if the holder of the B Note has cured the related
default pursuant to the terms of the related Intercreditor Agreement) payable at
a rate above the Mortgage Rate (net of any amount used to pay Advance Interest),
Modification Fees, forbearance fees, Late Fees (net of Advance Interest)
(excluding Late Fees allocable to any B Note if the holder of the B Note has
cured the related default pursuant to the terms of the related Intercreditor
Agreement) or other usual and customary charges and fees actually received from
Mortgagors shall be retained by the Master Servicer, provided that the Master
Servicer shall be entitled to (i) receive 50% of assumption fees collected on
Mortgage Loans as provided in Section 8.7(a), (ii) Modification Fees as provided
in Section 8.18 hereof, and (iii) 100% of any extension fees collected from the
related Mortgagor in connection with the extension of the Maturity Date of any
Mortgage Loan as provided in Section 8.18; provided, however, that the Master
Servicer shall not be entitled to any such fees in connection with any Specially
Serviced Mortgage Loans or any Non-Serviced Mortgage Loan. If the Master
Servicer collects any amount payable to the Special Servicer hereunder in
connection with an REO Mortgage Loan or Specially Serviced Mortgage Loan, the
Master Servicer shall promptly remit such amount to the Special Servicer as
provided in Section 5.2.
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The Master Servicer shall be required to pay all applicable expenses incurred by
it in connection with its servicing activities hereunder.
(c) The Master Servicer shall also be entitled to additional servicing
compensation of (i) an amount equal to the excess, if any, of the aggregate
Prepayment Interest Excess relating to Mortgage Loans which are not Specially
Serviced Mortgage Loans for each Distribution Date over the aggregate Prepayment
Interest Shortfalls for such Mortgage Loans for such Distribution Date, (ii)
interest or other income earned on deposits in the Certificate Account and the
Distribution Account (but only to the extent of the net investment earnings, if
any, with respect to each such account), and, (iii) to the extent not required
to be paid to any Mortgagor under applicable law, any interest or other income
earned on deposits in the Escrow Accounts.
SECTION 8.11 MASTER SERVICER REPORTS; ACCOUNT STATEMENTS.
(a) For each Distribution Date, (i) the Master Servicer shall deliver
to the Paying Agent, (or with respect to a Serviced Companion Mortgage Loan, to
the holder thereof or its servicer), no later than 1:00 p.m., New York City
time, on the related Report Date, the Master Servicer Remittance Report with
respect to such Distribution Date including any information regarding
prepayments made pursuant to Section 5.2(b) and (ii) the Master Servicer shall
report to the Paying Agent on the related Advance Report Date, the amount of the
P&I Advance, if any, to be made by the Master Servicer on the related Master
Servicer Remittance Date. The Special Servicer is required to provide all
applicable information relating to Specially Serviced Mortgage Loans in order
for the Master Servicer to satisfy its duties in this Section 8.11. The Master
Servicer Remittance Report shall be updated no later than 2:00 p.m. on the
second Business Day prior to the Distribution Date to reflect any payment on a
Mortgage Loan, a Serviced Companion Mortgage Loan or a B Note for which the
Scheduled Payment is paid on a Due Date (or within its grace period) that occurs
after the end of the related Collection Period and the Master Servicer shall
notify the Paying Agent on the Report Date that such an updated Master Servicer
Remittance Report is to be provided.
(b) The Master Servicer shall deliver to the Trustee, the Paying Agent
and the Special Servicer within 30 days following each Distribution Date a
statement setting forth the status of the Certificate Account as of the close of
business on such Distribution Date showing, for the period covered by such
statement, the aggregate of deposits in or withdrawals from the Certificate
Account, and shall deliver to each holder of a B Note and Serviced Companion
Mortgage Loan within 30 days following each Distribution Date a statement
setting forth the status of the related A/B Loan Custodial Account and Serviced
Companion Mortgage Loan Custodial Account, as of the close of business on such
Distribution Date showing, for the period covered by such statement, the
aggregate of transfers in and transfers from or deposits in or withdrawals from
such A/B Loan Custodial Account or Serviced Companion Mortgage Loan Custodial
Account, as applicable.
(c) The Master Servicer shall promptly inform the Special Servicer of
the name, account number, location and other necessary information concerning
the Certificate Account in order to permit the Special Servicer to make deposits
therein.
(d) Reserved
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(e) The Master Servicer shall deliver a copy of any reports or
information delivered to the Trustee or the Paying Agent pursuant to subsection
(a) or subsection (b) of this Section 8.11 to the Depositor, the Special
Servicer, the Operating Adviser and each Rating Agency, in each case upon
request by such Person and only to the extent such reports and information are
not otherwise required to be delivered to such Person under any provision of
this Agreement.
(f) Notwithstanding any provision of this Agreement to the contrary,
the Master Servicer shall not have any obligation (other than to the Special
Servicer and, to the extent provided in the last sentence of Section 8.14, the
Operating Adviser) to deliver any statement, notice or report that is then made
available on the Master Servicer's or the Paying Agent's internet website,
provided that it has notified all parties entitled to delivery of such reports,
by electronic mail or other notice provided in this Agreement, to the effect
that such statements, notices or reports shall thereafter be made available on
such website from time to time.
(g) The Master Servicer shall deliver or cause to be delivered to the
Paying Agent, and the holder of any Serviced Companion Mortgage Loan (in respect
of such Serviced Companion Mortgage Loan) the following CMSA Reports with
respect to the Mortgage Loans (and, if applicable, the related REO Properties
and, to the extent received from the applicable Non-Serviced Mortgage Loan
Master Servicer, any Non-Serviced Mortgage Loan) providing the required
information as of the related Determination Date upon the following schedule:
(i) a Comparative Financial Status Report and the CMSA Financial File (it being
understood that the Primary Servicer is required to deliver the CMSA Financial
File only quarterly) not later than each Report Date, commencing in December
2005; (ii) a CMSA Operating Statement Analysis Report and an NOI Adjustment
Worksheet in accordance with Section 8.14 of this Agreement; (iii) a CMSA Watch
List in accordance with and subject to the terms of Section 8.11(h) on each
Report Date, commencing in December 2005; (iv) a Loan Set-Up File (with respect
to the initial Distribution Date only) not later than the Report Date in
December 2005; (v) a Loan Periodic Update File not later than each Report Date
commencing in November 2005 (which Loan Periodic Update File shall be
accompanied by a CMSA Advance Recovery Report); (vi) a Property File not later
than each Report Date, commencing in December 2005; (vii) a Delinquent Loan
Status Report on each Report Date, commencing in December 2005; (viii) an
Historical Loan Modification Report not later than each Report Date, commencing
in December 2005, (ix) an Historical Liquidation Report not later than each
Report Date, commencing in December 2005; and (x) an REO Status Report on each
Report Date, commencing in December 2005. The information that pertains to
Specially Serviced Mortgage Loans and REO Properties reflected in such reports
shall be based solely upon the reports delivered by the Special Servicer to the
Master Servicer in writing and on a computer readable medium reasonably
acceptable to the Master Servicer and the Special Servicer one (1) Business Day
after the Determination Date prior to the related Master Servicer Remittance
Date in the form required under Section 9.32. The Master Servicer's
responsibilities under this Section 8.11(g) with respect to REO Mortgage Loans
and Specially Serviced Mortgage Loans shall be subject to the satisfaction of
the Special Servicer's obligations under Section 9.32. The reporting obligations
of the Master Servicer in connection with any A/B Mortgage Loan shall be
construed to refer only to such information regarding the A/B Mortgage Loan (and
its related Mortgaged Property) and by reference to the related A Note only, but
whenever the Master Servicer remits funds to the holder of the related B
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Note, it shall thereupon deliver to such holder a remittance report identifying
the amounts in such remittance.
(h) For each Distribution Date, the Master Servicer shall deliver to
the Paying Agent (and solely with respect to any A/B Mortgage Loan, the holder
of the related B Note and solely with respect to any Loan Pair, the holder of
the related Serviced Companion Mortgage Loan), not later than the related Report
Date, a CMSA Watch List. The Master Servicer shall list any Mortgage Loan on the
CMSA Watch List as to which any of the events specified in the CMSA Watch List
published by the CMSA for industry use has occurred.
(i) If the Master Servicer delivers a notice of drawing to effect a
drawing on any letter of credit or debt service reserve account under which the
Trust has rights as the holder of any Mortgage Loan for purposes other than
payment or reimbursement of amounts contemplated in and by a reserve or escrow
agreement (other than after a default under an applicable Mortgage Loan or B
Note), the Master Servicer shall, within five (5) Business Days following its
receipt of the proceeds of such drawing, deliver notice thereof to the Special
Servicer, the Operating Adviser (or the Lakeforest Mall Mortgage Loan Operating
Adviser with respect only to the Lakeforest Mall Mortgage Loan) and the Paying
Agent, which notice shall set forth (i) the unpaid Principal Balance of such
Mortgage Loan or B Note immediately before and immediately after the drawing,
and (ii) a brief description of the circumstances that in the Master Servicer's
good faith and reasonable judgment entitled the Master Servicer to make such
drawing.
(j) The Master Servicer, the Special Servicer, the Trustee and the
Paying Agent, as applicable, but not the Primary Servicer, shall prepare and
deliver (or make available on their respective websites) to the Operating
Adviser (or the Lakeforest Mall Mortgage Loan Operating Adviser with respect
only to the Lakeforest Mall Mortgage Loan) the reports and information described
in Exhibit BB (to the extent not otherwise delivered pursuant to this Agreement)
in the form and format and within the time frame set forth therein.
(k) If the Operating Adviser and the Special Servicer are Affiliates
of one another, a report delivered to one of them by the Master Servicer need
not also be delivered to the other of them.
SECTION 8.12 ANNUAL STATEMENT AS TO COMPLIANCE. The Master Servicer
shall deliver to the Depositor, the Paying Agent, the Luxembourg Paying Agent
and the Trustee on or before March 15 of each year (or March 14 if a leap year),
commencing in March 2006, an Officer's Certificate stating, as to the signer
thereof, that (A) a review of the activities of the Master Servicer during the
preceding calendar year or portion thereof and of the performance of the Master
Servicer under this Agreement has been made under such officer's supervision and
(B) to the best of such officer's knowledge, based on such review, the Master
Servicer has fulfilled all its obligations under this Agreement in all material
respects throughout such year, or, if there has been a default in the
fulfillment of any such obligation, specifying each such default known to such
officer and the nature and status thereof. The Master Servicer shall forward a
copy of each such statement to the Rating Agencies and the Operating Adviser.
Promptly after receipt of such Officer's Certificate, the Depositor shall review
the Officer's Certificate and, if
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applicable, consult with the Master Servicer as to the nature of any defaults by
the Master Servicer in the fulfillment of any of the Master Servicer's
obligations hereunder.
SECTION 8.13 ANNUAL INDEPENDENT PUBLIC ACCOUNTANTS' SERVICING REPORT.
On or before noon (Eastern Time) on March 15 of each year (or March 14 if a leap
year), commencing in March 2006, the Master Servicer at its expense shall cause
a firm of nationally recognized independent public accountants (which may also
render other services to the Master Servicer) and that is a member of the
American Institute of Certified Public Accountants to furnish a statement to the
Trustee, the Paying Agent, the Luxembourg Paying Agent and the Depositor, with a
copy to the Rating Agencies, to the effect that (i) it has obtained a letter of
representation regarding certain matters from the management of the Master
Servicer, which includes an assertion that the Master Servicer 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 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 representation is fairly stated in all material respects, subject to such
exceptions and other qualifications that may be appropriate. In rendering its
report such firm may rely, as to matters relating to the direct servicing of
commercial and multifamily mortgage loans by the Primary Servicer or
Sub-Servicers, upon comparable reports of firms of independent certified public
accountants rendered on the basis of examinations conducted in accordance with
the same standards (rendered within one year of such report) with respect to the
Primary Servicer or Sub-Servicers. Promptly after receipt of such report, the
Depositor shall review the report and, if applicable, consult with the Master
Servicer as to the nature of any defaults by the Master Servicer in the
fulfillment of any of the Master Servicer's obligations hereunder.
SECTION 8.14 CMSA OPERATING STATEMENT ANALYSIS REPORTS REGARDING THE
MORTGAGED PROPERTIES. Within 105 calendar days after the end of each of the
first three calendar quarters (in each year), commencing in the quarter ending
on September 30, 2005, in each case for the trailing or quarterly information
received, the Master Servicer (in the case of Mortgage Loans that are not
Specially Serviced Mortgage Loans) or the Special Servicer (in the case of
Specially Serviced Mortgage Loans) shall deliver to the Paying Agent and the
Operating Adviser a CMSA Operating Statement Analysis Report and a CMSA
Financial File for each Mortgaged Property (in electronic format), prepared
using the non-normalized quarterly and normalized year-end operating statements
and rent rolls received from the related Mortgagor. Not later than the Report
Date occurring in June of each year beginning in 2006 for year-end 2005, the
Master Servicer (in the case of Mortgage Loans that are not Specially Serviced
Mortgage Loans) or the Special Servicer (in the case of Specially Serviced
Mortgage Loans) shall deliver to the Paying Agent and the Operating Adviser a
CMSA Operating Statement Analysis Report, a CMSA Financial File and an NOI
Adjustment Worksheet for each Mortgage Loan (in electronic format), based on the
most recently available year-end financial statements and most recently
available rent rolls of each applicable Mortgagor (to the extent provided to the
Master Servicer by or on behalf of each Mortgagor, or, in the case of Specially
Serviced Mortgage Loans, as provided to the Special Servicer, which Special
Servicer shall forward to the Master Servicer on or before May 31 of each such
year), containing such information and
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analyses for each Mortgage Loan provided for in the respective forms of CMSA
Operating Statement Analysis Report, CMSA Financial File and an NOI Adjustment
Worksheet as would customarily be included in accordance with the Servicing
Standard including, without limitation, Debt Service Coverage Ratios and income,
subject, in the case of any Non-Serviced Mortgage Loan, to the receipt of such
report from the applicable Non-Serviced Mortgage Loan Master Servicer or the
applicable Non-Serviced Mortgage Loan Special Servicer. The Master Servicer
shall make reasonable efforts, consistent with the Servicing Standard, to obtain
such reports from the applicable Non-Serviced Mortgage Loan Master Servicer or
the applicable Non-Serviced Mortgage Loan Special Servicer. In addition, the
Master Servicer shall deliver to the Operating Adviser, and upon request the
Master Servicer shall make available to the Rating Agencies, the Special
Servicer, the Paying Agent, the Trustee and the holder of any Serviced Companion
Mortgage Loan, within 30 days following receipt thereof by the Master Servicer,
copies of any annual, monthly or quarterly financial statements and rent rolls
collected with respect to the Mortgaged Properties. As and to the extent
reasonably requested by the Special Servicer, the Master Servicer shall make
inquiry of any Mortgagor with respect to such information or as regards the
performance of the related Mortgaged Property in general. The Paying Agent shall
provide or make available electronically at no cost to the Certificateholders or
Certificate Owners, the Rating Agencies, the Operating Adviser, the Depositor,
the Placement Agents, the Underwriters, and solely as it relates to any A/B
Mortgage Loan, to the holder of the related B Note and solely as it relates to
any Loan Pair, to the holder of the related Serviced Companion Mortgage Loan,
the CMSA Operating Statement Analysis Reports, CMSA Financial Files and NOI
Adjustment Worksheets described above pursuant to Section 5.4(a). The Master
Servicer (but not the Primary Servicer under the Primary Servicing Agreement)
shall electronically deliver the CMSA Operating Statement Analysis Report, the
operating statements, rent rolls, property inspections and NOI Adjustment
Worksheet for each Mortgage Loan to the Operating Adviser using the ARCap Naming
Convention.
SECTION 8.15 OTHER AVAILABLE INFORMATION AND CERTAIN RIGHTS OF THE
MASTER SERVICER.
(a) Subject to paragraphs (b), (c) and (d) below, the Paying Agent
shall make available at its Corporate Trust Office, during normal business
hours, upon reasonable advance written notice for review by any
Certificateholder, any Certificate Owner, any Seller, the Primary Servicer, any
Placement Agent, any Underwriter, each Rating Agency, the Paying Agent or the
Depositor (and the holder of a B Note, if it relates to a B Note and the holder
of a Serviced Companion Mortgage Loan, if it relates to a Serviced Companion
Mortgage Loan), originals or copies of, among other things, the following items:
(i) this Agreement and any amendments thereto, (ii) all final and released CMSA
Operating Statement Analysis Reports and the Master Servicer Remittance Reports,
(iii) all Officer's Certificates (including Officer's Certificates evidencing
any determination of Nonrecoverable Advances) delivered to the Trustee and the
Paying Agent since the Closing Date, (iv) all accountants' reports delivered to
the Trustee and the Paying Agent since the Closing Date, (v) any and all
modifications, waivers and amendments of the terms of a Mortgage Loan entered
into by the Master Servicer and/or the Special Servicer and (vi) any and all
Officers' Certificates (and attachments thereto) delivered to the Trustee and
the Paying Agent to support the Master Servicer's determination that any Advance
was not or, if made, would not be, recoverable. The Trustee and the Paying Agent
will be permitted to require payment of a sum to be paid by the requesting party
(other than the Rating Agencies, the Trustee,
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the Paying Agent, any Placement Agent or any Underwriter) sufficient to cover
the reasonable costs and expenses of making such information available.
(b) Subject to the restrictions described below, the Master Servicer
shall afford the Rating Agencies, the Depositor, the Trustee, the Paying Agent,
the Special Servicer, the Primary Servicer, the Sellers, the Placement Agents,
the Underwriters, the Operating Adviser (or the Lakeforest Mall Mortgage Loan
Operating Adviser with respect only to the Lakeforest Mall Mortgage Loan), any
Certificateholder, any holder of a Serviced Companion Mortgage Loan, any holder
of a B Note or any Certificate Owner, upon reasonable notice and during normal
business hours, reasonable access to all information referred to in Section
8.15(a) and any additional relevant, non-attorney-client-privileged records and
documentation regarding the applicable Mortgage Loans, REO Property and all
accounts, insurance policies and other relevant matters relating to this
Agreement (which access may occur by means of the availability of information on
the Master Servicer's or the Paying Agent's internet website), and access to
Servicing Officers of the Master Servicer responsible for its obligations
hereunder. Copies of information or access will be provided to
Certificateholders and each Certificate Owner providing satisfactory evidence of
ownership of Certificates or beneficial ownership of a Certificate, as the case
may be, which may include a certification. Copies (or computer diskettes or
other digital or electronic copies of such information if reasonably available
in lieu of paper copies) of any and all of the foregoing items shall be made
available by the Master Servicer upon request; provided, however, that the
Master Servicer shall be permitted to require payment by the requesting party
(other than the Depositor, the Trustee, the Paying Agent, the Special Servicer,
the Operating Adviser, the Lakeforest Mall Mortgage Loan Operating Adviser, any
Placement Agent, any Underwriter, or any Rating Agency) of a sum sufficient to
cover the reasonable expenses actually incurred by the Master Servicer of
providing access or copies (including electronic or digital copies) of any such
information requested in accordance with the preceding sentence.
(c) Nothing herein shall be deemed to require the Master Servicer to
confirm, represent or warrant the accuracy of (or to be liable or responsible
for) any other Person's information or report. Notwithstanding the above, the
Master Servicer shall not have any liability to the Depositor, the Trustee, the
Fiscal Agent, the Paying Agent, the Special Servicer, any Non-Serviced Mortgage
Loan Master Servicer, any Non-Serviced Mortgage Loan Special Servicer, any
Certificateholder, any Certificate Owner, any holder of a Serviced Companion
Mortgage Loan, any holder of a B Note, any Placement Agent, any Underwriter, any
Rating Agency or any other Person to whom it delivers information pursuant to
this Section 8.15 or any other provision of this Agreement for federal, state or
other applicable securities law violations relating to the disclosure of such
information. In the event any Person brings any claims relating to or arising
from the foregoing against the Master Servicer (or any employee, attorney,
officer, director or agent thereof), the Trust (from amounts held in any account
(including (x) with respect to any such claims relating to a Serviced Companion
Mortgage Loan, from amounts held in the related Serviced Companion Mortgage Loan
Custodial Account and (y) with respect to any such claims relating to a B Note,
from amounts held in the related A/B Loan Custodial Account) or otherwise) shall
hold harmless and indemnify the Master Servicer from any loss or expense
(including attorney fees) relating to or arising from such claims.
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(d) The Master Servicer shall produce the reports required of it under
this Agreement; provided, however, that the Master Servicer shall not be
required to produce any ad hoc non-standard written reports with respect to such
Mortgage Loans. In the event the Master Servicer elects to provide such
non-standard reports, it may require the Person requesting such report (other
than a Rating Agency) to pay a reasonable fee to cover the costs of the
preparation thereof. Notwithstanding anything to the contrary herein, as a
condition to the Master Servicer making any report or information available upon
request to any Person other than the parties hereto, the Master Servicer may
require that the recipient of such information acknowledge that the Master
Servicer may contemporaneously provide such information to the Depositor, the
Trustee, the Fiscal Agent, the Paying Agent, the Special Servicer, the Primary
Servicer, the Sellers, any Placement Agent, any Underwriter, any Rating Agency
and/or the Certificateholders, the holder of a Serviced Companion Mortgage Loan,
the holder of a B Note or Certificate Owners. Any transmittal of information by
the Master Servicer to any Person other than the Trustee, the Paying Agent, the
Master Servicer, the Special Servicer, the Rating Agencies, the Operating
Adviser, the Lakeforest Mall Mortgage Loan Operating Adviser or the Depositor
may be accompanied by a letter from the Master Servicer containing the following
provision:
"By receiving the information set forth herein, you hereby acknowledge
and agree that the United States securities laws restrict any person who
possesses material, non-public information regarding the Trust which issued
Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 2005-TOP20 from purchasing or selling
such Certificates in circumstances where the other party to the transaction
is not also in possession of such information. You also acknowledge and
agree that such information is being provided to you for the purpose of,
and such information may be used only in connection with, evaluation by you
or another Certificateholder, Certificate Owner or prospective purchaser of
such Certificates or beneficial interest therein."
(e) The Master Servicer may, at its discretion, make available by
electronic media and bulletin board service certain information and may make
available by electronic media or bulletin board service (in addition to making
such information available as provided herein) any reports or information
required by this Agreement that the Master Servicer is required to provide to
any of the Rating Agencies, the Depositor and anyone the Depositor reasonably
designates.
(f) The Master Servicer shall cooperate in providing the Rating
Agencies with such other pertinent information relating to the Mortgage Loans as
is or should be in their respective possession as the Rating Agencies may
reasonably request.
SECTION 8.16 RULE 144A INFORMATION. For as long as any of the
Certificates are "restricted securities" within the meaning of Rule 144A under
the Securities Act, the Master Servicer agrees to provide to the Paying Agent or
the Luxembourg Paying Agent, as applicable, for delivery to any Holder thereof,
any Certificate Owner therein and to any prospective purchaser of the
Certificates or beneficial interest therein reasonably designated by the Paying
Agent or the Luxembourg Paying Agent, as applicable, upon the request of such
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Certificateholder, such Certificate Owner, the Paying Agent or the Luxembourg
Paying Agent, as applicable, subject to this Section 8.16 and the provisions of
Sections 5.4 and 8.15, any information prepared by the Master Servicer that is
required to be provided to such holder or prospective purchaser to satisfy the
condition set forth in Rule 144A(d)(4) under the Securities Act, including,
without limitation, copies of the reports and information described in Sections
8.15(a) and (b).
Any recipient of information provided pursuant to this Section 8.16
shall agree that such information shall not be disclosed or used for any purpose
other than the evaluation of the Certificates by such Person and the Master
Servicer shall be permitted to use the letter referred to in Section 8.15(d).
Unless the Master Servicer chooses to deliver the information directly, the
Depositor, the Placement Agents, the Underwriters, the Paying Agent or the
Luxembourg Paying Agent shall be responsible for the physical delivery of the
information requested pursuant to this Section 8.16. As a condition to the
Master Servicer making any report or information available upon request to any
Person other than the parties hereto, the Master Servicer may require that the
recipient of such information acknowledge that the Master Servicer may
contemporaneously provide such information to the Depositor, the Trustee, the
Paying Agent, the Luxembourg Paying Agent, the Placement Agents, the
Underwriters, any Rating Agency and/or the Certificateholders and Certificate
Owners. The Master Servicer will be permitted to require payment of a sum to be
paid by the requesting party (other than the Rating Agencies, the Trustee, the
Paying Agent, the Placement Agents or the Underwriters) sufficient to cover the
reasonable costs and expenses of making such information available.
SECTION 8.17 INSPECTIONS. The Master Servicer shall, at its own
expense, inspect or cause to be inspected each Mortgaged Property other than
Mortgaged Properties related to Specially Serviced Mortgage Loans and
Non-Serviced Mortgage Loans, every calendar year beginning in 2006, or every
second calendar year beginning in 2006 if the Principal Balance of the related
Mortgage Loan or Loan Pair is less than $2,000,000; provided that the Master
Servicer shall, at the expense of the Trust, inspect or cause to be inspected
each Mortgaged Property related to a Mortgage Loan that has a Debt Service
Coverage Ratio that falls below 1.0x and provided further, that with respect to
any Mortgage Loan or Loan Pair that has a Principal Balance of less than
$2,000,000 and has been placed on the CMSA Watch List, the Master Servicer
shall, at the expense of the Trust and at the request of the Controlling Class,
inspect or cause to be inspected the related Mortgaged Property every calendar
year beginning in 2006 so long as such Mortgage Loan or Loan Pair continues to
be on the CMSA Watch List; provided, if such Mortgage Loan or Loan Pair is no
longer on the CMSA Watch List at the time the inspection was scheduled, no such
inspection shall be required. The Master Servicer shall prepare an Inspection
Report relating to each inspection. The Master Servicer shall promptly forward
the applicable Inspection Report to the Rating Agencies, the Placement Agents,
the Underwriters, the Depositor, the Trustee, the Paying Agent, the Operating
Adviser (or the Lakeforest Mall Mortgage Loan Operating Adviser with respect
only to the Lakeforest Mall Mortgage Loan), the Special Servicer, solely as it
relates to any Loan Pair, to the holder of the related Serviced Companion
Mortgage Loan, and solely as it relates to any A/B Mortgage Loan, to the holder
of the related B Note, and upon request, to any Certificateholder, any
Certificate Owner, any Seller and the Primary Servicer. The Special Servicer
shall have the right to inspect or cause to be inspected (at its own expense)
every calendar year any Mortgaged Property related
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to a Mortgage Loan that is not a Specially Serviced Mortgage Loan, provided that
the Special Servicer notifies the Master Servicer prior to such inspection.
SECTION 8.18 MODIFICATIONS, WAIVERS, AMENDMENTS, EXTENSIONS AND
CONSENTS.
Subject to the limitations of Section 12.3 hereof, the Master Servicer
shall have the following powers:
(a) (i) The Master Servicer in accordance with the Servicing
Standard may agree to any modification, waiver, amendment or consent of or
relating to any term other than a Money Term of a Mortgage Loan, a Serviced
Companion Mortgage Loan or a B Note that is not a Specially Serviced Mortgage
Loan (such terms to include, without limitation, Master Servicer Consent Matters
set forth in Section 8.3(a) hereof), provided that such amendment would not
result in an Adverse REMIC Event; and provided, further that if any consent
relates to a release of a letter of credit relating to any Mortgage Loan (other
than letters of credit or portions thereof released upon satisfaction of
conditions specified in the related agreements), then (i) the Master Servicer
shall notify the Special Servicer of any Mortgagor's request to release such
letter of credit which the Master Servicer recommends to release, and (ii) if
the terms of the related Mortgage Loan do not require the Master Servicer to
approve such release, then the Special Servicer shall within five Business Days
provide notice to the Master Servicer as to whether the Master Servicer should
approve the release (and the failure of the Special Servicer to give the Master
Servicer such notice shall automatically be deemed to be an approval by the
Special Servicer that the Master Servicer should grant such release).
Notwithstanding the preceding sentence, if the Master Servicer recommends to
approve such modification, waiver, amendment or consent which is not a Master
Servicer Consent Matter (including, without limitation, any waiver of any
requirement that the Mortgagor post additional reserves or a letter of credit
upon the failure of the Mortgagor to satisfy conditions specified in the
Mortgage Loan documents), the Master Servicer shall provide to the Special
Servicer a copy of the Master Servicer's recommendation and the relevant
information obtained or prepared by the Master Servicer in connection therewith;
provided, that (A) the Special Servicer shall have the right hereunder to grant
or withhold consent to any such proposed modification, waiver, amendment or
consent, and such consent of the Special Servicer shall not be unreasonably
withheld, consistent with the Servicing Standard, (B) failure of the Special
Servicer to notify the Master Servicer, within five Business Days following the
Master Servicer's delivery of the recommendation described above, of its
determination to grant or withhold such consent shall be deemed to constitute a
grant of such consent and (C) the Master Servicer shall not enter into any such
proposed modification, waiver, amendment or consent unless it has received the
written consent of the Special Servicer or such consent has been deemed to have
been granted as described above. Notwithstanding anything in this Agreement to
the contrary, the Master Servicer shall not be required to obtain or request the
consent of the Special Servicer in connection with any modification, waiver or
amendment, or granting its consent to transactions, under one or more of the
Mortgage Loans that in each case the Master Servicer has determined (in
accordance with the Servicing Standard) is immaterial. In any event, the Master
Servicer shall promptly notify the Special Servicer of any material
modification, waiver, amendment or consent executed by the Master Servicer
pursuant to this Section 8.18(a)(i) and provide to the Special Servicer a copy
thereof. Notwithstanding the foregoing provisions of this Section 8.18,
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if the Mortgage Loan documents require a Mortgagor to pay a fee for an
assumption, modification, waiver, amendment or consent that would be due or
partially due to the Special Servicer, then the Master Servicer shall not waive
the portion of such fee due to the Special Servicer without the Special
Servicer's approval.
Notwithstanding the foregoing, the Special Servicer acknowledges that
the Master Servicer has delegated certain tasks, rights and obligations to the
Primary Servicer with respects to Post Closing Requests (as defined in the
Primary Servicing Agreement) pursuant to Section 8.4 of this Agreement. The
Primary Servicing Agreement classifies certain Post Closing Requests as Category
1 Requests and grants the Primary Servicer certain authority to evaluate and
process such requests in accordance with this Agreement, the Primary Servicing
Agreement and applicable Mortgage Loan documents.
With respect to a Category 1 Request that involves a condition, term
or provision that requires, or specifies a standard of, consent or approval of
the applicable Mortgagee under the Mortgage Loan documents, the Primary
Servicing Agreement provides for determination of materiality of such condition,
term or provision requiring approval or consent by the Master Servicer or the
Primary Servicer and the referral of such condition, term or provision to the
Special Servicer for consent in accordance with the terms of the Primary
Servicing Agreement upon a determination of materiality. The Special Servicer
acknowledges such provisions. Nothing in this Agreement, however, shall grant
the Primary Servicer greater authority, discretion or delegated rights over Post
Closing Requests than are set forth in the Primary Servicing Agreement.
(ii) The Master Servicer may, without the consent of the Special
Servicer, extend the maturity date of any Balloon Mortgage Loan that is not a
Specially Serviced Mortgage Loan to a date that is not more than 60 days
following the original Maturity Date, if in the Master Servicer's sole judgment
exercised in good faith (and evidenced by an Officer's Certificate), a default
in the payment of the Balloon Payment is reasonably foreseeable and such
extension is reasonably likely to produce a greater recovery to the Holders and
the holders of the related B Note and Serviced Companion Mortgage Loan (as a
collective whole) on a net present value basis than liquidation of such Mortgage
Loan and the Mortgagor has obtained an executed written commitment (subject only
to satisfaction of conditions set forth therein) for refinancing of the Mortgage
Loan or purchase of the related Mortgaged Property. The Master Servicer shall
process all such extensions and shall be entitled to (as additional servicing
compensation) 100% of any extension fees collected from a Mortgagor with respect
to any such extension.
(b) The Master Servicer may require, in its discretion (unless
prohibited or otherwise provided in the Mortgage Loan documents), as a condition
to granting any request by a Mortgagor for any consent, modification, waiver,
amendment or collateral release, that such Mortgagor pay to the Master Servicer
a reasonable and customary modification fee to the extent permitted by law;
provided that the collection of such fee shall not be permitted if collection of
such fee would cause a "significant modification" (within the meaning of
Treasury Regulation Section 1.860G-2(b)) of the Mortgage Loan. The Master
Servicer shall be entitled to (as additional servicing compensation) 100% of any
Modification Fees collected from a Mortgagor in connection with a consent,
waiver, modification or amendment of a non-Specially Serviced Mortgage Loan
executed or granted pursuant to Section 8.3 or this Section 8.18. The Master
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Servicer may charge the Mortgagor for any costs and expenses (including
attorneys' fees and rating agency fees) incurred by the Master Servicer or the
Special Servicer (and any amounts incurred by the Special Servicer shall be
reimbursed to the Special Servicer) in connection with any request for a
modification, waiver or amendment. The Master Servicer agrees to use its best
reasonable efforts in accordance with the Servicing Standard to collect such
costs, expenses and fees from the Mortgagor, provided that the failure or
inability of the Mortgagor to pay any such costs and expenses shall not impair
the right of the Master Servicer to cause such costs and expenses (but not
including any modification fee), and interest thereon at the Advance Rate, to be
paid or reimbursed by the Trust as a Servicing Advance (to the extent not paid
by the Mortgagor). If the Master Servicer believes that the costs and expenses
(including attorneys' fees) to be incurred by the Master Servicer in connection
with any request for a modification, waiver or amendment will result in a
payment or reimbursement by the Trust, then the Master Servicer shall notify the
Special Servicer.
(c) The Master Servicer shall notify the Trustee, the Paying Agent,
the Operating Adviser (or the Lakeforest Mall Mortgage Loan Operating Adviser
with respect only to the Lakeforest Mall Mortgage Loan) and the Special Servicer
of any modification, waiver or amendment of any term of any Mortgage Loan
permitted by it under this Section and the date thereof, and shall deliver to
the Trustee for deposit in the related Mortgage File, an original counterpart of
the agreement relating to such modification, waiver or amendment, promptly
following the execution thereof except to the extent such documents have been
submitted to the applicable recording office, in which event the Master Servicer
shall promptly deliver copies of such documents to the Trustee. The Master
Servicer shall not agree to any modification, waiver, or amendment of any Money
Term of a Mortgage Loan or any term of a Specially Serviced Mortgage Loan. The
Master Servicer shall notify the holder of the B Note and the Serviced Companion
Mortgage Loan of any modification of the monthly payments of an A/B Mortgage
Loan or a Loan Pair, as the case may be, and such monthly payments shall be
allocated in accordance with the related Intercreditor Agreement or Loan Pair
Intercreditor Agreement (or with respect to a Joint Mortgage Loan treated as a
Loan Pair in accordance with Section 8.32 hereof, the applicable Mortgage Loan
documents), as applicable.
(d) If the Mortgage Loan documents relating to a Mortgage Loan provide
for certain conditions to be satisfied prior to the Master Servicer releasing
additional collateral for the Mortgage Loan (e.g., the release, reduction or
termination of reserves or letters of credit or the establishment of reserves),
then the Master Servicer shall be permitted to waive any such condition without
obtaining the consent of the Special Servicer, provided that (1) the aggregate
amount of the related releases or establishments is no greater than the smaller
of 10% of the outstanding unpaid Principal Balance or $75,000 or (2) the
condition to be waived is deemed to be non-material in accordance with the
Servicing Standard. Notwithstanding the foregoing, without the Special
Servicer's consent or except as provided in the specific Mortgage Loan
documents, the Master Servicer shall not waive: (1) a requirement for any such
additional collateral to exist, or (2) a lock box requirement.
(e) Neither the Master Servicer nor the Primary Servicer will be
required to obtain a Rating Agency Confirmation in connection with this
Agreement unless the terms of this Agreement specifically requires the Master
Servicer to do so, and if so required by the terms of this Agreement, the Master
Servicer and the Primary Servicer shall not be permitted to waive
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(i) the Rating Agency Confirmation requirement or (ii) the obligation of a
Mortgagor to pay all or any portion of any fee payable in connection with
obtaining the Rating Agency Confirmation.
SECTION 8.19 SPECIALLY SERVICED MORTGAGE LOANS.
(a) The Master Servicer shall send a written notice to the Special
Servicer, the Operating Adviser (or the Lakeforest Mall Mortgage Loan Operating
Adviser with respect only to the Lakeforest Mall Mortgage Loan), the Rating
Agencies, the Paying Agent, the Trustee and solely as it relates to any A/B
Mortgage Loan, to the holder of the related B Note and solely as it relates to
any Loan Pair, to the holder of the related Serviced Companion Mortgage Loan,
within two Business Days after becoming aware of a Servicing Transfer Event with
respect to a Mortgage Loan, which notice shall identify the related Mortgage
Loan and set forth in reasonable detail the nature and relevant facts of such
Servicing Transfer Event and whether such Mortgage Loan is covered by an
Environmental Insurance Policy (and for purposes of stating whether such
Mortgage Loan is covered by an Environmental Insurance Policy the Master
Servicer may rely on Schedule X attached hereto) and, except for the Rating
Agencies, the Paying Agent and the Trustee, shall be accompanied by a copy of
the Servicer Mortgage File. The Special Servicer shall not be liable for its
failure to deliver the notice set forth in Section 9.36(a) if such failure is
caused by its failure to receive the written notice set forth above.
(b) Prior to the transfer of the servicing of any Specially Serviced
Mortgage Loan to the Special Servicer, the Master Servicer shall notify the
related Mortgagor of such transfer in accordance with the Servicing Standard
(the form and substance of such notice shall be reasonably satisfactory to the
Special Servicer).
(c) Any calculations or reports prepared by the Master Servicer to the
extent they relate to Specially Serviced Mortgage Loans shall be based on
information supplied to the Master Servicer in writing by the Special Servicer
as provided hereby. The Master Servicer shall have no duty to investigate or
confirm the accuracy of any information provided to it by the Special Servicer
and shall have no liability for the inaccuracy of any of its reports due to the
inaccuracy of the information provided by the Special Servicer.
(d) On or prior to each Distribution Date, the Master Servicer shall
provide to the Special Servicer, in order for the Special Servicer to comply
with its obligations under this Agreement, such information (and in the form and
medium) as the Special Servicer may reasonably request in writing from time to
time, provided that (i) the Master Servicer shall not be required to produce any
ad hoc reports or incur any unusual expense or effort in connection therewith
and (ii) if the Master Servicer elects to provide such ad hoc reports, it may
require the Special Servicer to pay a reasonable fee to cover the costs of the
preparation thereof.
SECTION 8.20 REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE MASTER
SERVICER.
(a) The Master Servicer hereby represents and warrants to and
covenants with the Trustee and the Paying Agent, as of the date hereof:
(i) the Master Servicer is duly organized, validly existing and
in good standing as a national banking association under the laws of the United
States, and shall be and
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thereafter remain, in compliance with the laws of each State in which any
Mortgaged Property is located to the extent necessary to perform its obligations
under this Agreement, except where the failure to so qualify or comply would not
adversely affect the Master Servicer's ability to perform its obligations
hereunder in accordance with the terms of this Agreement;
(ii) the Master Servicer has the full power and authority to
execute, deliver, perform, and to enter into and consummate all transactions and
obligations contemplated by this Agreement. The Master Servicer has duly and
validly authorized the execution, delivery and performance of this Agreement and
this Agreement has been duly executed and delivered by the Master Servicer; and
this Agreement, assuming the due authorization, execution and delivery thereof
by the Depositor, the Trustee, the Fiscal Agent, the Paying Agent and the
Special Servicer, evidences the valid and binding obligation of the Master
Servicer enforceable against the Master Servicer in accordance with its terms
subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium, receivership and other similar laws
affecting creditors' rights generally as from time to time in effect, and to
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(iii) the execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby, and the fulfillment of or
compliance with the terms and conditions of this Agreement will not (1) result
in a breach of any term or provision of its charter or by-laws or (2) conflict
with, result in a breach, violation or acceleration of, or result in a default
under, the terms of any other material agreement or instrument to which it is a
party or by which it may be bound, or any law, governmental rule, regulation, or
judgment, decree or order applicable to it of any court, regulatory body,
administrative agency or governmental body having jurisdiction over it, which
materially and adversely affects its ability to perform its obligations under
this Agreement;
(iv) no litigation is pending or, to the Master Servicer's
knowledge, threatened, against it, that would materially and adversely affect
the execution, delivery or enforceability of this Agreement or its ability to
service the Mortgage Loans or to perform any of its other obligations hereunder
in accordance with the terms hereof;
(v) no consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by it of, or compliance by it with, this Agreement, or the
consummation of the transactions contemplated hereby, or if any such consent,
approval, authorization or order is required, it has obtained the same or will
obtain the same prior to the time necessary to perform its obligations under
this Agreement, and, except to the extent in the case of performance, that its
failure to be qualified as a foreign corporation or licensed in one or more
states is not necessary for the performance by it of its obligations hereunder;
and
(vi) the performance of the services by the Master Servicer
contemplated by this Agreement are in the ordinary course of business of the
Master Servicer and the Master Servicer possesses all licenses, permits and
other authorizations necessary to perform its duties hereunder.
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(b) It is understood that the representations and warranties set forth
in this Section 8.20 shall survive the execution and delivery of this Agreement.
(c) Any cause of action against the Master Servicer arising out of the
breach of any representations and warranties made in this Section shall accrue
upon the giving of written notice to the Master Servicer by any of the Trustee
or the Master Servicer. The Master Servicer shall give prompt notice to the
Trustee, the Depositor, the Primary Servicer and the Special Servicer of the
occurrence, or the failure to occur, of any event that, with notice or the
passage of time or both, would cause any representation or warranty in this
Section to be untrue or inaccurate in any respect.
SECTION 8.21 MERGER OR CONSOLIDATION. Any Person into which the Master
Servicer may be merged or consolidated, or any Person resulting from any merger,
conversion, other change in form or consolidation to which the Master Servicer
shall be a party, or any Person succeeding to the business of the Master
Servicer, shall be the successor of the Master Servicer hereunder, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto; provided, however, that each of the Rating Agencies provides a
Rating Agency Confirmation (including with respect to any securities rated by a
Rating Agency evidencing direct beneficial ownership interests in any Serviced
Companion Mortgage Loan or B Note). If the conditions to the provisions in the
foregoing sentence are not met, the Trustee may terminate the Master Servicer's
servicing of the Mortgage Loans pursuant hereto, such termination to be effected
in the manner set forth in Sections 8.28 and 8.29.
SECTION 8.22 RESIGNATION OF MASTER SERVICER.
(a) Except as otherwise provided in Section 8.22(b) hereof, the Master
Servicer shall not resign from the obligations and duties hereby imposed on it
unless it determines that the Master Servicer's duties hereunder are no longer
permissible under applicable law or are in material conflict by reason of
applicable law with any other activities carried on by it. Any such
determination permitting the resignation of the Master Servicer shall be
evidenced by an Opinion of Counsel to such effect delivered to the Trustee. No
such resignation shall become effective until a successor servicer designated by
the Trustee, with the consent of the Depositor and the Paying Agent, shall have
assumed the Master Servicer's responsibilities and obligations under this
Agreement and Rating Agency Confirmation (including with respect to any
securities rated by a Rating Agency evidencing interests in the A Notes and any
B Note) shall have been obtained. Notice of such resignation shall be given
promptly by the Master Servicer to the Trustee.
(b) The Master Servicer may resign from the obligations and duties
imposed on it, upon 30 days notice to the Trustee and the Paying Agent, provided
that (i) a successor servicer (w) is available, (x) has assets of at least
$15,000,000, (y) is willing to assume the obligations, responsibilities, and
covenants to be performed hereunder by the Master Servicer on substantially the
same terms and conditions, and for not more than equivalent compensation to that
herein provided and (z) assumes all obligations under the Primary Servicing
Agreement; (ii) the Master Servicer bears all costs associated with its
resignation and the transfer of servicing; and (iii) Rating Agency Confirmation
is obtained with respect to such servicing transfer, as evidenced by a letter
delivered to the Trustee by each Rating Agency.
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SECTION 8.23 ASSIGNMENT OR DELEGATION OF DUTIES BY MASTER SERVICER.
The Master Servicer shall have the right without the prior written consent of
the Trustee to (A) delegate or subcontract with or authorize or appoint anyone,
or delegate certain duties to other professionals such as attorneys and
appraisers, as an agent of the Master Servicer (as provided in Section 8.4) to
perform and carry out any duties, covenants or obligations to be performed and
carried out by the Master Servicer hereunder or (B) assign and delegate all of
its duties hereunder; provided, however, that with respect to clause (B), (i)
the Master Servicer gives the Depositor, the Special Servicer, the Primary
Servicer, the holder of the B Note (only if such assignment/delegation relates
to the related A/B Mortgage Loan), the holder of the Serviced Companion Mortgage
Loan (only if such assignment/delegation relates to the related Loan Pair) and
the Trustee notice of such assignment and delegation; (ii) such purchaser or
transferee accepting such assignment and delegation executes and delivers to the
Depositor and the Trustee an agreement accepting such assignment, which contains
an assumption by such Person of the rights, powers, duties, responsibilities,
obligations and liabilities of the Master Servicer, with like effect as if
originally named as a party to this Agreement and the Primary Servicing
Agreement; (iii) the purchaser or transferee has assets in excess of
$15,000,000; (iv) such assignment and delegation is the subject of a Rating
Agency Confirmation; and (v) the Depositor consents to such assignment and
delegation, such consent not be unreasonably withheld. In the case of any such
assignment and delegation in accordance with the requirements of subclause (B)
of this Section, the Master Servicer shall be released from its obligations
under this Agreement, except that the Master Servicer shall remain liable for
all liabilities and obligations incurred by it as the Master Servicer hereunder
prior to the satisfaction of the conditions to such assignment set forth in the
preceding sentence. Notwithstanding the above, the Master Servicer may appoint
the Primary Servicer and Sub-Servicers in accordance with Section 8.4 hereof.
SECTION 8.24 LIMITATION ON LIABILITY OF THE MASTER SERVICER AND
OTHERS.
(a) Neither the Master Servicer nor any of the directors, officers,
employees or agents of the Master Servicer shall be under any liability to the
holders of the Certificates, the Depositor, the Trustee, the Fiscal Agent, the
Paying Agent, the Placement Agents, the Underwriters, the holder of any Serviced
Companion Mortgage Loan, the holder of any B Note or the Special Servicer for
any action taken or for refraining from the taking of any action in good faith,
or using reasonable business judgment, consistent with the Servicing Standard;
provided that this provision shall not protect the Master Servicer or any such
person against any breach of a representation or warranty contained herein or
any liability which would otherwise be imposed by reason of willful misfeasance,
bad faith or negligence in its performance of duties under the Agreement or by
reason of negligent disregard of obligations and duties hereunder. The Master
Servicer and any director, officer, employee or agent of the Master Servicer may
rely in good faith on any document of any kind prima facie properly executed and
submitted by any Person (including, without limitation, the Special Servicer)
respecting any matters arising hereunder. The Master Servicer shall not be under
any obligation to appear in, prosecute or defend any legal action which is not
incidental to its duties to service the Mortgage Loans in accordance with this
Agreement; provided that the Master Servicer may in its sole discretion
undertake any such action which it may reasonably deem necessary or desirable in
order to protect the interests of the Certificateholders and the Trustee in the
Mortgage Loans, the interests of the holder of any B Note or the interests of
the holder of any Serviced Companion Mortgage Loan (subject to the Special
Servicer's servicing of Specially Serviced Mortgage Loans as
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contemplated herein), or shall undertake any such action if instructed to do so
by the Trustee. In such event, all legal expenses and costs of such action shall
be expenses and costs of the Trust, and the Master Servicer shall be entitled to
be reimbursed therefor as Servicing Advances as provided by Section 5.2, subject
to the provisions of Section 4.4 hereof.
(b) In addition, the Master Servicer shall have no liability with
respect to, and shall be entitled to conclusively rely on as to the truth of the
statements and the correctness of the opinions expressed in any certificates or
opinions furnished to the Master Servicer and conforming to the requirements of
this Agreement. Subject to the Servicing Standard, the Master Servicer shall
have the right to rely on information provided to it by the Special Servicer and
Mortgagors, and will have no duty to investigate or verify the accuracy thereof.
Neither the Master Servicer, nor any director, officer, employee, agent or
Affiliate, shall be personally liable for any error of judgment made in good
faith by any officer, unless it shall be proved that the Master Servicer or such
officer was negligent in ascertaining the pertinent facts. Neither the Master
Servicer nor any director, officer, employee, agent or Affiliate, shall be
personally liable for any action taken, suffered or omitted by it in good faith
and believed by it to be authorized or within the discretion, rights or powers
conferred upon it by this Agreement.
(c) The Master Servicer shall not be obligated to incur any
liabilities, costs, charges, fees or other expenses which relate to or arise
from any breach of any representation, warranty or covenant made by the
Depositor, the Special Servicer, the Paying Agent, Trustee or the Fiscal Agent
in this Agreement. The Trust shall indemnify and hold harmless the Master
Servicer from any and all claims, liabilities, costs, charges, fees or other
expenses which relate to or arise from any such breach of representation,
warranty or covenant to the extent the Master Servicer is unable to recover such
amounts from the Person in breach.
(d) Except as otherwise specifically provided herein:
(i) the Master Servicer may rely, and shall be protected in
acting or refraining from acting upon, any resolution, officer's certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, financial statement,
agreement, appraisal, bond or other document (in electronic or paper format)
reasonably believed or in good faith believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(ii) the Master Servicer may consult with counsel, and any
written advice or Opinion of Counsel shall be full and complete authorization
and protection with respect to any action taken or suffered or omitted by it
hereunder in good faith and in accordance with such advice or Opinion of
Counsel;
(iii) the Master Servicer shall not be personally liable for any
action taken, suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion, rights or powers conferred upon it by this
Agreement; and
(iv) the Master Servicer, in preparing any reports hereunder, may
rely, and shall be protected in acting or refraining from acting upon any
information (financial or other), statement, certificate, document, agreement,
covenant, notice, request or other paper
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reasonably believed by it to be genuine and provided by any Mortgagor or manager
of a Mortgaged Property.
(e) The Master Servicer and any director, officer, employee or agent
of the Master Servicer shall be indemnified by the Trustee, the Fiscal Agent,
the Paying Agent and the Special Servicer, as the case may be, and held harmless
against any loss, liability or expense including reasonable attorneys' fees
incurred in connection with any legal action relating to the Trustee's, Fiscal
Agent's, the Paying Agent's or the Special Servicer's, as the case may be,
respective willful misfeasance, bad faith or negligence in the performance of
its respective duties hereunder or by reason of negligent disregard of its
respective duties hereunder, other than any loss, liability or expense incurred
by reason of willful misfeasance, bad faith or negligence in the performance of
any of the Master Servicer's duties hereunder or by reason of negligent
disregard of the Master Servicer's obligations and duties hereunder. The Master
Servicer shall immediately notify the Trustee, the Paying Agent and the Special
Servicer if a claim is made by a third party with respect to this Agreement or
the Mortgage Loans entitling the Master Servicer to indemnification hereunder,
whereupon the Trustee, the Paying Agent, or the Special Servicer, in each case,
to the extent the claim is related to its respective willful misfeasance, bad
faith or negligence, may assume the defense of any such claim (with counsel
reasonably satisfactory to the Master Servicer) and pay all expenses in
connection therewith, including counsel fees, and promptly pay, discharge and
satisfy any judgment or decree which may be entered against it or them in
respect of such claim. Any failure to so notify the Trustee, the Paying Agent
and the Special Servicer shall not affect any rights that the Master Servicer
may have to indemnification under this Agreement or otherwise, unless the
Trustee's, the Paying Agent's or the Special Servicer's defense of such claim is
materially prejudiced thereby. Such indemnity shall survive the termination of
this Agreement or the resignation or removal of the Master Servicer hereunder.
Any payment hereunder made by the Trustee, the Paying Agent, the Fiscal Agent or
the Special Servicer pursuant to this paragraph to the Master Servicer shall be
paid from the Trustee's, the Paying Agent's, Fiscal Agent's or Special
Servicer's own funds, without reimbursement from the Trust therefor except to
the extent achieved through subrogation as provided in this Agreement. Any
expenses incurred or indemnification payments made by the Trustee, the Paying
Agent, the Fiscal Agent or the Special Servicer shall be reimbursed by the party
so paid, if a court of competent jurisdiction makes a final judgment that the
conduct of the Trustee, the Paying Agent, the Fiscal Agent or the Special
Servicer, as the case may be, was (x) not culpable or (y) found to not have
acted with willful misfeasance, bad faith or negligence.
SECTION 8.25 INDEMNIFICATION; THIRD-PARTY CLAIMS.
(a) The Master Servicer and any director, officer, employee or agent
of the Master Servicer (the "Master Servicer Indemnified Parties") shall be
indemnified and held harmless by the Trust out of collections on, and other
proceeds of, the Mortgage Loans, any Serviced Companion Mortgage Loans and any B
Notes, as provided in the following paragraph, against any and all claims,
losses, penalties, fines, forfeitures, legal fees and related costs, judgments
and any other costs, liabilities, fees and expenses (collectively, "Master
Servicer Losses") incurred in connection with any legal action relating to this
Agreement, any Mortgage Loans, any Serviced Companion Mortgage Loans, any B
Notes, any REO Property or the Certificates or any exercise of any right under
this Agreement reasonably requiring the use of counsel or the incurring of
expenses other than any loss, liability or expense incurred by reason
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of the Master Servicer's willful misfeasance, bad faith or negligence in the
performance of duties hereunder.
Except as provided in the following sentence, indemnification for
Master Servicer Losses described in the preceding paragraph (including in the
case of such Master Servicer Losses that relate primarily to the administration
of the Trust, to any REMIC Pool or to any determination respecting the amount,
payment or avoidance of any tax under the REMIC provisions of the Code or the
actual payment of any REMIC tax or expense) shall be paid out of collections on,
and other proceeds of, the Mortgage Loans as a whole but not out of collections
on, or other proceeds of, any Serviced Companion Mortgage Loan or any B Note. In
the case of any such Master Servicer Losses that do not relate primarily to the
administration of the Trust, to any REMIC Pool or to any determination
respecting the amount, payment or avoidance of any tax under the REMIC
provisions of the Code or the actual payment of any REMIC tax or expense:
(1) if such Master Servicer Losses relate to a Loan Pair, then such
indemnification shall be paid (x) first, out of collections on, and other
proceeds of, such Serviced Pari Passu Mortgage Loan and Serviced Companion
Mortgage Loan, in the relative proportions provided for in the applicable
Intercreditor Agreement and (y) if the collections and proceeds described in
subclause (x) of this clause (1) are not sufficient to so indemnify the Master
Servicer Indemnified Parties on a current basis, then the balance of such
indemnification shall be paid out of collections on, and other proceeds of, the
Mortgage Loans as a whole; and
(2) if such Master Servicer Losses relate to any A/B Mortgage Loan,
then such indemnification shall be paid (x) first, if and to the extent
permitted under the applicable Intercreditor Agreement, out of collections on,
and other proceeds of, the B Note or B Notes related to such A/B Mortgage Loan,
(y) if the collections and proceeds described in subclause (x) of this clause
(2) are not sufficient to so indemnify the Master Servicer Indemnified Parties
on a current basis, then the balance of such indemnification shall be paid out
of collections on, and other proceeds of, the Serviced Pari Passu Mortgage Loan
and the Serviced Companion Mortgage Loan, in the relative proportions provided
for in the related Loan Pair Intercreditor Agreement and (z) if the aggregate
collections and proceeds described in subclauses (x) and (y) of this clause (2)
are not sufficient to so indemnify the Master Servicer Indemnified Parties on a
current basis, then the balance of such indemnification shall be paid out of
collections on, and other proceeds of, the Mortgage Loans as a whole.
The Master Servicer shall assume the defense of any such claim (with
counsel reasonably satisfactory to the Master Servicer) and out of the Trust pay
all expenses in connection therewith, including counsel fees, and out of the
Trust promptly pay, discharge and satisfy any judgment or decree which may be
entered against it or them in respect of such claim. The indemnification
provided herein shall survive the termination of this Agreement. The Trustee,
the Paying Agent or the Master Servicer shall promptly make from the Certificate
Account (and, if and to the extent that the amount due shall be paid from
collections on, and other proceeds of, any Serviced Companion Mortgage Loan or
any B Note, as described above, out of the related Serviced Companion Mortgage
Loan Custodial Account or the related A/B Loan Custodial Account) any payments
certified by the Master Servicer to the Trustee and the Paying Agent as required
to be made to the Master Servicer pursuant to this Section 8.25.
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(b) The Master Servicer agrees to indemnify the Trustee, the Fiscal
Agent, the Special Servicer, the Trust, the Depositor, the Paying Agent, and any
director, officer, employee, agent or Controlling Person thereof, and hold them
harmless against any and all claims, losses, penalties, fines, forfeitures,
legal fees and related costs, judgments, and any other costs, liabilities, fees
and expenses that the Trustee, the Fiscal Agent, the Special Servicer, the
Depositor, the Paying Agent and the Trust may sustain arising from or as a
result of the willful misfeasance, bad faith or negligence in the performance of
any of the Master Servicer's duties hereunder or by reason of negligent
disregard of the Master Servicer's obligations and duties hereunder (including a
breach of such obligations a substantial motive of which is to obtain an
economic advantage from being released from such obligations), and if in any
such situation the Master Servicer is replaced, the parties hereto agree that
the amount of such claims, losses, penalties, fines, legal fees and related
costs, judgments, and other costs, liabilities, fees and expenses shall at least
equal the incremental costs, if any, of retaining a successor servicer. The
Trustee, the Fiscal Agent, the Special Servicer, the Paying Agent or the
Depositor, as applicable, shall immediately notify the Master Servicer if a
claim is made by any Person with respect to this Agreement or the Mortgage Loans
entitling the Trustee, the Fiscal Agent, the Depositor, the Special Servicer,
the Paying Agent or the Trust to indemnification under this Section 8.25(b),
whereupon the Master Servicer shall assume the defense of any such claim (with
counsel reasonably satisfactory to the Trustee, the Fiscal Agent, the Special
Servicer, the Paying Agent or the Depositor, as applicable) and pay all expenses
in connection therewith, including counsel fees, and promptly pay, discharge and
satisfy any judgment or decree which may be entered against it or them in
respect of such claim. Any failure to so notify the Master Servicer shall not
affect any rights the Trustee, the Fiscal Agent, the Special Servicer, the
Depositor, the Paying Agent or the Trust may have to indemnification under this
Agreement or otherwise, unless the Master Servicer's defense of such claim is
materially prejudiced thereby. The indemnification provided herein shall survive
the termination of this Agreement and the resignation or termination of the
Master Servicer, the Fiscal Agent, the Special Servicer, the Paying Agent and
the Trustee. Any expenses incurred or indemnification payments made by the
Master Servicer shall be reimbursed by the party so paid, if a court of
competent jurisdiction makes a final, non-appealable judgment that the conduct
of the Master Servicer was not culpable or that the Master Servicer did not act
with willful misfeasance, bad faith or negligence.
(c) The Primary Servicer and any director, officer, employee or agent
thereof shall be indemnified by the Trust and held harmless against any and all
claims, losses, penalties, fines, forfeitures, legal fees and related costs,
judgments and any other costs, liabilities, fees and expenses incurred in
connection with any legal action relating to this Agreement, the Primary
Servicing Agreement (but only if, and to the extent that, the Master Servicer
would have been entitled to indemnification therefor under this Agreement if it
were directly servicing the Mortgage Loan), any Mortgage Loans, any REO Property
or the Certificates or any exercise of any right under this Agreement or the
Primary Servicing Agreement (limited as set forth above) reasonably requiring
the use of counsel or the incurring of expenses other than any loss, liability
or expense incurred by reason of the Primary Servicer's willful misfeasance, bad
faith or negligence in the performance of duties thereunder. The Primary
Servicer shall assume the defense of any such claim (with counsel reasonably
satisfactory to the Primary Servicer) and out of the Trust pay all expenses in
connection therewith, including counsel fees, and out of the Trust promptly pay,
discharge and satisfy any judgment or decree which may be entered against it or
them in respect of such claim. The indemnification provided herein shall survive
the termination
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of this Agreement and the Primary Servicing Agreement. The Trustee, the Paying
Agent or the Master Servicer shall promptly make from the Certificate Account
any payments certified by the Primary Servicer to the Trustee and the Paying
Agent as required to be made to the Primary Servicer pursuant to this Section
8.25.
(d) Any Non-Serviced Mortgage Loan Master Servicer and any director,
officer, employee or agent of such Non-Serviced Mortgage Loan Master Servicer
shall be indemnified by the Trust and held harmless against the Trust's pro rata
share of any and all claims, losses, penalties, fines, forfeitures, legal fees
and related costs, judgments and any other costs, liabilities, fees and expenses
incurred in connection with any legal action relating to any Non-Serviced
Mortgage Loan Pooling and Servicing Agreement and this Agreement, and relating
to any Non-Serviced Mortgage Loan (but excluding any such losses allocable to
the related Non-Serviced Companion Mortgage Loans), reasonably requiring the use
of counsel or the incurring of expenses other than any losses incurred by reason
of any Non-Serviced Mortgage Loan Master Servicer's willful misfeasance, bad
faith or negligence in the performance of its duties under the related
Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
(e) The Primary Servicer agrees to indemnify the Trustee, the Fiscal
Agent, the Special Servicer, the Trust, the Depositor, the Paying Agent, and any
director, officer, employee, agent or Controlling Person thereof, and hold them
harmless against any and all claims, losses, penalties, fines, forfeitures,
legal fees and related costs, judgments, and any other costs, liabilities, fees
and expenses that the Trustee, the Fiscal Agent, the Special Servicer, the
Depositor, the Paying Agent and the Trust may sustain arising from or as a
result of the willful misfeasance, bad faith or negligence in the performance of
any of the Primary Servicer's duties under this Agreement, the Primary Servicing
Agreement or by reason of negligent disregard of the Primary Servicer's
obligations and duties thereunder (including a breach of such obligations a
substantial motive of which is to obtain an economic advantage from being
released from such obligations), and if in any such situation the Primary
Servicer is replaced, the parties hereto agree that the amount of such claims,
losses, penalties, fines, legal fees and related costs, judgments, and other
costs, liabilities, fees and expenses shall at least equal the incremental
costs, if any, of retaining a successor primary servicer. The Trustee, the
Fiscal Agent, the Special Servicer, the Paying Agent or the Depositor, as
applicable, shall immediately notify the Primary Servicer if a claim is made by
any Person with respect to this Agreement, the Primary Servicing Agreement or
the Mortgage Loans entitling the Trustee, the Fiscal Agent, the Depositor, the
Special Servicer, the Paying Agent or the Trust to indemnification under this
Section 8.25(d), whereupon the Primary Servicer shall assume the defense of any
such claim (with counsel reasonably satisfactory to the Trustee, the Fiscal
Agent, the Special Servicer, the Paying Agent or the Depositor, as applicable)
and pay all expenses in connection therewith, including counsel fees, and
promptly pay, discharge and satisfy any judgment or decree which may be entered
against it or them in respect of such claim. Any failure to so notify the
Primary Servicer shall not affect any rights the Trustee, the Fiscal Agent, the
Special Servicer, the Depositor, the Paying Agent or the Trust may have to
indemnification under this Agreement, the Primary Servicing Agreement or
otherwise, unless the Primary Servicer's defense of such claim is materially
prejudiced thereby. The indemnification provided herein shall survive the
termination of this Agreement and the Primary Servicing Agreement and the
resignation or termination of the Master Servicer, the Fiscal Agent, the Special
Servicer, the Paying Agent and the Trustee. Any expenses incurred
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or indemnification payments made by the Primary Servicer shall be reimbursed by
the party so paid, if a court of competent jurisdiction makes a final,
non-appealable judgment that the conduct of the Primary Servicer was not
culpable or that the Primary Servicer did not act with willful misfeasance, bad
faith or negligence.
SECTION 8.26 EXCHANGE ACT REPORTING
(a) The Master Servicer, the Special Servicer, the Paying Agent, the
Trustee and the Fiscal Agent shall reasonably cooperate with the Depositor in
connection with the Trust's satisfaction of its reporting requirements under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"). Within 15 days
after each Distribution Date, the Paying Agent shall prepare, execute and file
on behalf of the Trust any Forms 8-K customary for similar securities as
required by the Exchange Act and the rules and regulations of the Securities and
Exchange Commission (the "Commission") thereunder; provided that the Depositor
shall file the initial Form 8-K in connection with the issuance of the
Certificates. The Paying Agent shall file each Form 8-K with a copy of the
related Monthly Certificateholders Report attached thereto. If the Depositor
directs that any other attachments are to be filed with any Form 8-K, such
attachments shall be delivered to the Paying Agent in XXXXX-compatible form or
as otherwise agreed upon by the Paying Agent and the Depositor, at the
Depositor's expense, and any necessary conversion to XXXXX-compatible format
will be at the Depositor's expense. Prior to March 30th of each year, commencing
in 2006 (or such earlier date as may be required by the Exchange Act and the
rules and regulations of the Commission), the Paying Agent shall prepare and
file on behalf of the Trust a Form 10-K, in substance as required by applicable
law or applicable interpretations thereof of the staff of the Commission. Such
Form 10-K shall include as exhibits each annual statement of compliance
described under Sections 8.12 and 9.18 and each accountant's report described
under Sections 8.13 and 9.19, 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. Each Form 10-K
shall also include any Xxxxxxxx-Xxxxx Certification required to be included
therewith, as described in paragraph (b) of this Section 8.26. Neither the
Paying Agent nor the Master Servicer shall have any liability with respect to
any failure to properly prepare, execute or file such periodic reports resulting
from the Master Servicer's or the Paying Agent's inability or failure to obtain
any information not resulting from its own negligence, bad faith or willful
misconduct. 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
relating to the automatic suspension of reporting in respect of the Trust under
the Exchange Act.
(b) The Form 10-K shall include any certification (the "Xxxxxxxx-Xxxxx
Certification") required to be included therewith pursuant to the Xxxxxxxx-Xxxxx
Act of 2002 and the rules and regulations of the Commission promulgated
thereunder (including any interpretations thereof by the Commission's staff) and
a copy of such Xxxxxxxx-Xxxxx Certification shall be provided to the Rating
Agencies. The Special Servicer and the Paying Agent (each, a "Performing Party")
shall provide to the Person who signs the Xxxxxxxx-Xxxxx Certification (the
"Certifying Person") a certification (each, a "Performance Certification"), in
the form attached hereto as Exhibit CC, on which the Certifying Person, the
entity for which the Certifying Person acts as an officer (if the Certifying
Person is an individual), and such entity's officers, directors and Affiliates
(collectively with the Certifying Person, "Certification Parties")
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can rely. In addition, in the event that any Serviced Companion Mortgage Loan is
deposited into a commercial mortgage securitization, each Performing Party shall
provide to the Person who signs the Xxxxxxxx-Xxxxx Certification with respect to
such commercial mortgage securitization a Performance Certification (which shall
address the matters contained in the Performance Certification, but solely with
respect to the related Serviced Companion Mortgage Loan) on which such Person,
the entity for which the Person acts as an officer (if the Person is an
individual), and such entity's officers, directors and Affiliates can rely. The
Master Servicer shall serve as the Certifying Person on behalf of the Trust. In
addition, if the Performing Party is the Special Servicer, such Performing Party
shall execute a reasonable reliance certificate to enable the Certification
Parties to rely upon each annual statement of compliance provided pursuant to
Section 9.18, and shall include a certification that each such annual statement
of compliance discloses any deficiencies or defaults described to the certified
public accountants of such Performing Party to enable such accountants to render
the certificate provided for in Section 9.19. In the event any Performing Party
is terminated or resigns pursuant to the terms of this Agreement, such
Performing Party shall provide a Performance Certification to the Certifying
Person pursuant to this Section 8.26(b) with respect to the period of time it
was subject to this Agreement.
(c) Each Performing Party shall indemnify and hold harmless each
Certification Party from and against any losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments
and other costs and expenses incurred by such Certification Party arising out of
(i) an actual breach by the applicable Performing Party of its obligations under
this Section 8.26 or (ii) negligence, bad faith or willful misconduct on the
part of the Performing Party in the performance of such obligations.
(d) Nothing contained in this Section 8.26 shall be construed to
require any party to this Agreement other than the Master Servicer, or any of
such party's officers, to execute any Form 10-K or any Xxxxxxxx-Xxxxx
Certification. The failure of any party to this Agreement other than the Master
Servicer, or any of such party's officers, to execute any Form 10-K or any
Xxxxxxxx-Xxxxx Certification shall not be regarded as a breach by such party of
any of its obligations under this Agreement. This Section 8.26 may be amended by
the parties hereto pursuant to Section 13.3 for purposes of complying with the
Xxxxxxxx-Xxxxx Act of 2002 or for purposes of designating the Certifying Person
without any Opinions of Counsel, Officer's Certificates, Rating Agency
Confirmations or the consent of any Certificateholder, notwithstanding anything
to the contrary contained in this Agreement.
SECTION 8.27 COMPLIANCE WITH REMIC PROVISIONS AND GRANTOR TRUST
PROVISIONS. The Master Servicer shall act in accordance with this Agreement and
the REMIC Provisions and related provisions of the Code in order to create or
maintain the status of any REMIC Pool as a REMIC and the Class Q Grantor Trust
created hereby as a grantor trust under the Code. The Master Servicer shall not
take any action or (A) cause any REMIC Pool to take any action that could (i)
endanger the status of any REMIC Pool as a REMIC under the Code or (ii) result
in the imposition of a tax upon any REMIC Pool (including, but not limited to,
the tax on prohibited transactions as defined in Code Section 860F(a)(2) or on
prohibited contributions pursuant to Section 860G(d)) or (B) cause the Class Q
Grantor Trust to take any action that could (i) endanger its status as a grantor
trust or (ii) result in the imposition of any tax upon the Class Q Grantor Trust
unless the Trustee shall have received a Nondisqualification Opinion (at the
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expense of the party seeking to take such action) to the effect that the
contemplated action will not endanger such status or result in the imposition of
such tax. The Master Servicer shall comply with the provisions of Article XII
hereof.
SECTION 8.28 TERMINATION. The obligations and responsibilities of the
Master Servicer created hereby (other than the obligation of the Master Servicer
to make payments to the Paying Agent as set forth in Section 8.29 and the
obligations of the Master Servicer to the Trustee, the Paying Agent, the Fiscal
Agent, the Special Servicer and the Trust) shall terminate (i) on the date which
is the later of (A) the final payment or other liquidation of the last Mortgage
Loan remaining outstanding (and final distribution to the Certificateholders) or
(B) the disposition of all REO Property (and final distribution to the
Certificateholders), (ii) if an Event of Default described in clauses
8.28(a)(iii), (iv), (v), (vi) or (x) has occurred, 60 days following the date on
which the Trustee or Depositor gives written notice to the Master Servicer that
the Master Servicer is terminated or (iii) if an Event of Default described in
clauses 8.28(a)(i), (ii), (vii), (viii) or (ix) has occurred, immediately upon
the date on which the Trustee or the Depositor gives written notice to the
Master Servicer that the Master Servicer is terminated. After any Event of
Default, the Trustee (i) may elect to terminate the Master Servicer by providing
such notice, and (ii) shall provide such notice if holders of Certificates
representing more than 25% of the Aggregate Certificate Balance of all
Certificates (including the Class LF Certificates) so direct the Trustee.
(a) "Event of Default," wherever used herein, means any one of the
following events:
(i) any failure by the Master Servicer to remit to the Paying
Agent or otherwise make any payment required to be remitted by the Master
Servicer under the terms of this Agreement, including any required Advances; or
(ii) any failure by the Master Servicer to make a required
deposit to the Certificate Account which continues unremedied for one Business
Day following the date on which such deposit was first required to be made; or
(iii) any failure on the part of the Master Servicer duly to
observe or perform in any material respect any other of the duties, covenants or
agreements on the part of the Master Servicer contained in this Agreement which
continues unremedied for a period of 30 days after the date on which written
notice of such failure, requiring the same to be remedied, shall have been given
to the Master Servicer by the Depositor or the Trustee; provided, however, that
if the Master Servicer certifies to the Trustee and the Depositor that the
Master Servicer is in good faith attempting to remedy such failure, such cure
period will be extended to the extent necessary to permit the Master Servicer to
cure such failure; provided, further that such cure period may not exceed 90
days; or
(iv) any breach of the representations and warranties contained
in Section 8.20 hereof that materially and adversely affects the interest of any
holder of any Class of Certificates and that continues unremedied for a period
of 30 days after the date on which notice of such breach, requiring the same to
be remedied, shall have been given to the Master Servicer by the Depositor or
the Trustee, provided, however, that if the Master Servicer certifies
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to the Trustee and the Depositor that the Master Servicer is in good faith
attempting to remedy such breach, such cure period will be extended to the
extent necessary to permit the Master Servicer to cure such breach; provided,
further that such cure period may not exceed 90 days; or
(v) the Trustee shall receive notice from Fitch to the effect
that the continuation of the Master Servicer in such capacity would result in
the downgrade, qualification or withdrawal of any rating then assigned by Fitch
to any Class of Certificates; or
(vi) the Master Servicer has been downgraded to a servicer rating
level below "CMS3" (or its equivalent) by Fitch; or
(vii) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law for the
appointment of a conservator, receiver, liquidator, trustee or similar official
in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings, or for the winding-up or liquidation of its
affairs, shall have been entered against the Master Servicer and such decree or
order shall have remained in force undischarged or unstayed for a period of 60
days; or
(viii) the Master Servicer shall consent to the appointment of a
conservator, receiver, liquidator, trustee or similar official in any
bankruptcy, insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings of or relating to the Master Servicer or of
or relating to all or substantially all of its property; or
(ix) the Master Servicer shall admit in writing its inability to
pay its debts generally as they become due, file a petition to take advantage of
any applicable bankruptcy, insolvency or reorganization statute, make an
assignment for the benefit of its creditors, voluntarily suspend payment of its
obligations, or take any corporate action in furtherance of the foregoing; or
(x) the Master Servicer receives actual knowledge that Xxxxx'x
has (i) qualified, downgraded or withdrawn its rating or ratings of one or more
Classes of Certificates, or (ii) placed one or more Classes of Certificates on
"watch status" in contemplation of a rating downgrade or withdrawal (and such
"watch status" placement shall not have been withdrawn by Xxxxx'x within 60 days
of the date that the Master Servicer obtain such actual knowledge) and, in the
case of either of clauses (i) or (ii), citing servicing concerns with the Master
Servicer as the sole or material factor in such rating action.
(b) Notwithstanding the foregoing, if the Event of Default of the
Master Servicer occurs primarily by reason of the occurrence of a "Primary
Servicing Default" (as hereinafter defined) (that is, it would not have occurred
but for (a) the occurrence of such Primary Servicing Default and (b) the Master
Servicer failure to cause the cure of such event) and the Trustee (or the
Trustee at the direction of the Certificateholders pursuant to Section 8.28
hereof) elects to terminate the Master Servicer, then Xxxxx Fargo Bank, National
Association shall have the right to elect that the successor Master Servicer,
upon its succession, enter into a primary servicing agreement with Xxxxx Fargo
Bank, National Association with respect to all Mortgage Loans as to which that
Primary Servicing Default occurred, so long as the initial Master Servicer is on
the approved list of commercial mortgage loan servicers maintained by
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S&P and the initial Master Servicer has a commercial loan master servicer rating
of at least "CMS3" (or its equivalent) by Fitch or a commercial loan primary
servicer rating of at least "CPS3" (or its equivalent) by Fitch, and such
agreement shall be substantially in the form of Exhibit G-1 hereto (but as if
Xxxxx Fargo Bank, National Association were the Primary Servicer or Sub-Servicer
thereunder and with applicable servicing fees and excess fees as specified on
the Mortgage Loan Schedule); and, in the case of an agreement in the form of
Exhibit G-1, thereupon Xxxxx Fargo Bank, National Association shall be deemed to
have been granted the rights and deemed to have assumed the obligations granted
to or imposed on the "Primary Servicer" hereunder as to such Mortgage Loans (and
under the Primary Servicing Agreement). For purposes of the preceding sentence,
a "Primary Servicing Default" means an "event of default" of the Primary
Servicer under the Primary Servicing Agreement of Principal Global Investors,
LLC. If the Master Servicer is terminated based upon an Event of Default set
forth in clause (i) (as to the obligation to make P&I Advances), (v), (vi) or
(x) of Section 8.28(a), then the Master Servicer shall have the right to enter
into a primary servicing agreement with the successor Master Servicer with
respect to all Mortgage Loans that are not then subject to the Primary Servicing
Agreement, so long as the terminated Master Servicer is on the approved list of
commercial mortgage loan servicers maintained by S&P.
(c) Reserved [Only Applicable When Not Rated By Xxxxx'x].
SECTION 8.29 PROCEDURE UPON TERMINATION.
(a) Notice of any termination pursuant to clause (i) of the first
paragraph of Section 8.28, specifying the Master Servicer Remittance Date upon
which the final transfer by the Master Servicer to the Paying Agent shall be
made, shall be given promptly in writing by the Master Servicer to the Paying
Agent no later than the later of (i) five Business Days after the final payment
or other liquidation of the last Mortgage Loan or (ii) the sixth day of the
month of such final distribution. Upon any such termination, the duties of the
Master Servicer (other than the obligation of the Master Servicer to pay to the
Paying Agent the amounts remaining in the Certificate Account as set forth below
and the obligations of the Master Servicer to the Trustee and the Trust and the
Fiscal Agent as provided herein) shall terminate and the Master Servicer shall
transfer to the Paying Agent the amounts remaining in the Certificate Account
(and any sub-account) after making the withdrawals permitted to be made pursuant
to Section 5.2 and shall thereafter terminate the Certificate Account and any
other account or fund maintained with respect to the Mortgage Loans.
(b) On the date specified in a written notice of termination given to
the Master Servicer pursuant to clause (ii) of the first paragraph of Section
8.28, or on the date on which a written notice of termination is given to the
Master Servicer pursuant to clause (iii) of the first paragraph of Section 8.28
all authority, power and rights of the Master Servicer under this Agreement,
whether with respect to the Mortgage Loans or otherwise, shall terminate (except
for any rights relating to unpaid servicing compensation or unreimbursed
Advances or, if the terminated Master Servicer is Xxxxx Fargo Bank, National
Association, its rights to the Excess Servicing Fee); provided that in no event
shall the termination of the Master Servicer be effective until a successor
servicer shall have succeeded the Master Servicer as successor servicer, subject
to approval by the Rating Agencies, notified the Master Servicer of such
designation and such successor servicer shall have assumed the Master Servicer's
obligations and responsibilities
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hereunder and under the Primary Servicing Agreement, as set forth in an
agreement substantially in the form hereof, with respect to the Mortgage Loans
and, in the circumstances set forth in the last sentence of Section 8.28(b),
entered into a new primary servicing agreement with the predecessor Master
Servicer in substantially the same form as Exhibit AA attached hereto. Except as
provided in the next sentence, the Trustee may not succeed the Master Servicer
as servicer until and unless it has satisfied the provisions that would apply to
a Person succeeding to the business of the Master Servicer pursuant to Section
8.22(b) hereof. Notwithstanding the foregoing sentence, in the event that the
Master Servicer is terminated as a result of an event described in Section
8.28(a)(vii), 8.28(a)(viii) or 8.28(a)(ix), the Trustee shall act as successor
servicer immediately upon delivery of a notice of termination to the Master
Servicer and shall use commercially reasonable efforts within 90 days of
assuming the duties of the Master Servicer, either to satisfy the conditions of
Section 8.22(b) hereof or to transfer the duties of the Master Servicer to a
successor servicer who has satisfied such conditions. The Trustee is hereby
authorized and empowered to execute and deliver, on behalf of the Master
Servicer, as attorney-in-fact or otherwise, any and all documents and other
instruments, and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement or assignment of the Mortgage Loans and
related documents or otherwise. The Master Servicer agrees to cooperate with the
Trustee, the Paying Agent and the Fiscal Agent in effecting the termination of
the Master Servicer's responsibilities and rights hereunder as Master Servicer
including, without limitation, notifying Mortgagors of the assignment of the
servicing function and providing the Trustee all documents and records in
electronic or other form reasonably requested by it to enable the successor
servicer designated by the Trustee to assume the Master Servicer's functions
hereunder and to effect the transfer to such successor for administration by it
of all amounts which shall at the time be or should have been deposited by the
Master Servicer in the Certificate Account and any other account or fund
maintained or thereafter received with respect to the Mortgage Loans.
(c) If the Master Servicer receives a written notice of termination
pursuant to clause (ii) of the first paragraph of Section 8.28 relating solely
to an Event of Default set forth in clause (v), (vi) or (x) of Section 8.28(a),
and if the Master Servicer provides the Trustee with the appropriate "request
for proposal" materials within five Business Days after receipt of such written
notice of termination, then the Trustee shall promptly thereafter (using such
"request for proposal" materials provided by the Master Servicer) solicit good
faith bids for the rights to service the Mortgage Loans under this Agreement
from at least three but no more than five Qualified Bidders or, if three
Qualified Bidders cannot be located, then from as many persons as the Trustee
can determine are Qualified Bidders. At the Trustee's request, the Master
Servicer shall supply the Trustee with the names of Persons from whom to solicit
such bids. In no event shall the Trustee be responsible if less than three
Qualified Bidders submit bids for the right to service the Mortgage Loans under
this Agreement.
(d) Each bid proposal shall require any Successful Bidder, as a
condition of its bid, to enter into this Agreement as successor Master Servicer,
and to agree to be bound by the terms hereof and the terms of the Primary
Servicing Agreement, not later than 30 days after termination of the Master
Servicer hereunder. The Trustee shall select the Qualified Bidder with the
highest cash bid (or such other Qualified Bidder as the Master Servicer may
direct) (the "Successful Bidder") to act as successor Master Servicer hereunder.
The Trustee shall direct the Successful Bidder to enter into this Agreement as
successor Master Servicer pursuant to the
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terms hereof, and in connection therewith to deliver the amount of the
Successful Bidder's cash bid to the Trustee by wire transfer of immediately
available funds to an account specified by the Trustee no later than 10:00 a.m.
New York City time on the date specified for the assignment and assumption of
the servicing rights hereunder.
(e) Upon the assignment and acceptance of the servicing rights
hereunder to and by the Successful Bidder and receipt of such cash bid, the
Trustee shall remit or cause to be remitted to the terminated Master Servicer
the amount of such cash bid received from the Successful Bidder (net of all
out-of-pocket expenses incurred in connection with obtaining such bid and
transferring servicing) by wire transfer of immediately available funds to an
account specified by the terminated Master Servicer no later than 1:00 p.m. New
York City time on the date specified for the assignment and assumption of the
servicing rights hereunder.
(f) If the Successful Bidder has not entered into this Agreement as
successor Master Servicer within 30 days after the termination of the Master
Servicer hereunder or no Successful Bidder was identified within such 30-day
period, the Trustee shall have no further obligations under Section 8.29(c) and
may act or may select another successor to act as Master Servicer hereunder in
accordance with Section 8.29(b).
(g) Notwithstanding anything to the contrary in this Section 8.29, the
successor master servicer must assume all of the obligations of the terminated
Master Servicer under the Primary Servicing Agreement as a condition precedent
to its becoming Master Servicer hereunder.
For purposes of the foregoing provisions of Section 8.29(c), the
phrase "rights to service" shall be construed to exclude those servicing rights
and duties as to which Xxxxx Fargo Bank, National Association has made an
election for the execution of a primary servicing agreement as contemplated by
Section 8.28(b).
SECTION 8.30 OPERATING ADVISER CONTACT WITH MASTER SERVICER AND
SPECIAL SERVICER.
No less often than on a monthly basis or as agreed upon by the Master
Servicer and the Operating Adviser, each of the Master Servicer and the Special
Servicer shall, without charge, make a Servicing Officer available to answer
questions from the Operating Adviser regarding the performance and servicing of
the Mortgage Loans and/or REO Properties for which the Master Servicer or the
Special Servicer, as the case may be, is responsible. The Primary Servicer shall
make a Servicing Officer available on any such call to answer questions from the
Operating Adviser regarding the Mortgage Loans and/or REO Properties that it
services.
SECTION 8.31 CERTAIN MATTERS WITH RESPECT TO CERTAIN MORTGAGE LOANS.
(a) (a) Notwithstanding Section 5 of the Promissory Notes for each of
the Circle K Portfolio Pod Mortgage Loans, which provides that certain
conditions relating to the release and substitution of the Mortgaged Properties
securing the Circle K Portfolio Pod Mortgage Loans may be waived by the lender
in its discretion, neither the Master Servicer nor the Special Servicer shall
waive any such condition unless such waiver would not
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cause the release or substitution to constitute a "significant modification" for
purposes of Treasury Regulation Section 1.860G-2(b).
(b) Each of the Trustee, the Master Servicer and the Special Servicer
agree to service the 24 Hour Fitness Portfolio Loan consistently with the letter
dated October 25, 2005 from Xxxxx Fargo Bank, National Association as lender to
AVG Partners II, LLC, as borrower, and shall deem Subsection 8.1.2(b) of the
loan agreement related to such Mortgage Loan to be satisfied, provided that
Subsection 8.1.2(a) and Subsections 8.1.2(c) through and including (h) are
satisfied by borrower in accordance with Section 8.1.2 of such loan agreement.
(c) Each of the Trustee, the Master Servicer and the Special Servicer
agree to service the Depot Business Park Loan consistently with the letter dated
October 28, 2005 from Xxxxx Fargo Bank, National Association as lender to U.S.
National Leasing, LLC, as borrower, and (i) shall deem Section 7.12 of the loan
agreement related to such Mortgage Loan to be satisfied, provided that Section
7.1 through Section 7.11 and Section 7.13 are satisfied by borrower in
accordance with Section 7 of such loan agreement and (ii) shall deem Section 8.8
of the loan agreement related to such Mortgage Loan to be satisfied, provided
that Section 8.1 through Section 8.7 and Section 8.9 through Section 8.11 are
satisfied by borrower in accordance with Section 8 of such loan agreement.
SECTION 8.32 CERTAIN MATTERS WITH RESPECT TO THE EAST TOWNE MALL
MORTGAGE LOAN AND THE WEST TOWNE MALL MORTGAGE LOAN.
(a) If a Seller of a Joint Mortgage Loan (a "Repurchasing Seller")
repurchases its respective Mortgage Note(s) (as such term is defined herein) (a
"Repurchased Note"), the provisions of this Section 8.32 shall apply prior to
the adoption, pursuant to Section 13.3(k), of any amendment to this Agreement
that provides otherwise. Each of the Sellers of the Joint Mortgage Loans has
agreed to the terms set forth herein in the applicable Mortgage Loan Purchase
Agreement with respect to the servicing and administration of each of the Joint
Mortgage Loans, in the event of a repurchase of one Mortgage Note with respect
to either of the Joint Mortgage Loans unless and until such time as both
Mortgage Notes related to the applicable Joint Mortgage Loan are repurchased or
are otherwise no longer part of the Trust and the related successor holders
thereof have entered into a servicing agreement with respect to such Mortgage
Notes. For purposes of this Section 8.32 and Section 13.9 only, "Mortgage Note"
shall mean with respect to each Joint Mortgage Loan, each original promissory
note that collectively represents the Mortgage Note (as defined in Article I)
with respect to such Joint Mortgage Loan and shall not be a collective reference
to such promissory notes.
(b) Custody of and record title under the Mortgage Loan documents with
respect to the applicable Joint Mortgage Loan shall be held exclusively by the
Trustee as provided under this Agreement, except that the Repurchasing Seller
shall hold and retain title to its original Repurchased Note and any related
endorsements thereof.
(i) Payments from the related Mortgagor or any other amounts
received with respect to each Mortgage Note shall be collected as provided in
this Agreement by the Master Servicer (or the Primary Servicer on behalf of the
Master Servicer) and shall be applied upon receipt by the Master Servicer pro
rata to each related Mortgage Note based on its
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respective Repurchased Percentage Interest (as defined herein), subject to
Section 8.32(b)(ii). Payments or any other amounts received with respect to the
related Repurchased Note shall be held in trust for the benefit of the
applicable Repurchasing Seller and remitted (net of its pro rata share of any
Master Servicing Fees, Special Servicing Fees, Primary Servicing Fees and any
other amounts due to the Master Servicer, Special Servicer or Primary Servicer)
to the applicable Repurchasing Seller or its designee by the Master Servicer (or
the Primary Servicer on behalf of the Master Servicer) on each Distribution Date
pursuant to instructions provided by the applicable Repurchasing Seller and
deposited and applied in accordance with this Agreement, subject to Section
8.32(b)(ii). If any Joint Mortgage Loan becomes an REO Mortgage Loan, payments
or any other amounts received with respect to any such Joint Mortgage Loan shall
be collected and shall be applied upon receipt by the Master Servicer pro rata
to each related Mortgage Note based on its respective Repurchased Percentage
Interest, subject to Section 8.32(b)(ii).
(ii) In the event that the Master Servicer (or the Primary
Servicer on behalf of Master Servicer) or the Special Servicer, as applicable,
receives an aggregate payment of less than the aggregate amount due under either
such Joint Mortgage Loan at any particular time, the applicable Repurchasing
Seller shall receive from the Master Servicer (or from the Primary Servicer on
behalf of the Master Servicer) an amount equal to such Repurchasing Seller's
Repurchased Percentage Interest of such payment. All expenses, losses and
shortfalls relating solely to such Joint Mortgage Loan including, without
limitation, losses of principal or interest, Nonrecoverable Advances, interest
on Servicing Advances, Special Servicing Fees, Work-Out Fees and Liquidation
Fees (including any such fees related to the applicable Mortgage Notes), will be
allocated between the holders of such Mortgage Notes pro rata based on their
respective Repurchased Percentage Interests of such losses and expenses. In no
event shall any costs, expenses, fees or any other amounts related to any
Mortgage Loan or Joint Mortgage Loan other than the applicable Joint Mortgage
Loan be deducted from payments or any other amounts received with respect to
such Joint Mortgage Loan and payable to the applicable Repurchasing Seller. For
purposes of Section 8.32(b)(i) and this Section 8.32(b)(ii), "Repurchased
Percentage Interest" shall mean the 50% interest of the applicable Seller in the
related Joint Mortgage Loan.
(iii) Each Joint Mortgage Loan shall be serviced for the benefit
of the applicable Repurchasing Seller and the Certificateholders pursuant to the
terms and conditions of this Agreement in accordance with the Servicing Standard
and in accordance with the provisions herein as if the related Repurchased Note
were a Serviced Companion Mortgage Loan. For so long as the Joint Mortgage Loan
shall be serviced by the Master Servicer, the Primary Servicer or the Special
Servicer in accordance with the requirements of this Agreement, the Master
Servicer, Primary Servicer or the Special Servicer, as applicable, on behalf of
the holders thereof shall administer such Joint Mortgage Loan consistent with
the terms of this Agreement as if such Joint Mortgage Loan were a Loan Pair. No
Repurchasing Seller shall be permitted to terminate the Master Servicer (or the
Primary Servicer acting on behalf of the Master Servicer) or Special Servicer as
servicer or special servicer of the related Repurchased Note. All rights of the
mortgagee under each such Joint Mortgage Loan will be exercised by the Master
Servicer (or the Primary Servicer on behalf of the Master Servicer) or Special
Servicer, on behalf of the Trust Fund to the extent of its interest therein and
the applicable Repurchasing Seller in accordance with this Agreement.
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(iv) The related Repurchasing Seller shall be treated hereunder
as if it were a Serviced Companion Mortgage Loan noteholder on a pari passu
basis. Funds collected by the Master Servicer (or the Primary Servicer on behalf
of the Master Servicer) or the Special Servicer, as applicable, and applied to
the applicable Mortgage Notes shall be deposited and disbursed in accordance
with the provisions hereof relating to holders of such Loan Pairs that are pari
passu in right of payment. Compensation shall be paid to the Master Servicer,
Primary Servicer and the Special Servicer with respect to each Repurchased Note
as provided in this Agreement as if each such Mortgage Note were a Serviced
Companion Mortgage Loan. None of the Trustee, the Fiscal Agent, the Master
Servicer, the Primary Servicer or the Special Servicer shall have any obligation
to make P&I Advances or, if no related Mortgage Note is part of the Trust, a
Servicing Advance with respect to any Repurchased Note. Except as otherwise
specified herein, the Master Servicer, the Primary Servicer and the Special
Servicer shall have no reporting requirement with respect to any Repurchased
Note other than to deliver to the related Repurchasing Seller any document as is
required to be delivered to a holder of a Serviced Companion Mortgage Loan
hereunder.
(c) If any Mortgage Note is considered a Specially Serviced Mortgage
Loan, then any related Repurchased Note shall also be a Specially Serviced
Mortgage Loan under this Agreement. The Special Servicer shall cause such
related Repurchased Note to be specially serviced for the benefit of the
applicable Repurchasing Seller in accordance with the terms and provisions set
forth in this Agreement and shall be entitled to any Special Servicing Fee,
Work-Out Fee or Liquidation Fee payable to the Special Servicer under this
Agreement as with respect to a Serviced Companion Mortgage Loan.
(d) If (A) the Master Servicer (or Primary Servicer, as applicable)
shall pay any amount to any Repurchasing Seller pursuant to the terms hereof in
the belief or expectation that a related payment has been made or will be
received or collected in connection with either or both of the applicable
Mortgage Notes and (B) such related payment is not received or collected by the
Master Servicer (or the Primary Servicer on behalf of the Master Servicer), then
the applicable Repurchasing Seller will promptly on demand by the Master
Servicer (or the Primary Servicer on behalf of the Master Servicer) return such
amount to the Master Servicer (or Primary Servicer, as applicable). If the
Master Servicer (or Primary Servicer, as applicable), determines at any time
that any amount received or collected by the Master Servicer (or the Primary
Servicer on behalf of the Master Servicer) in respect of any of the Joint
Mortgage Loans must be returned to the related Mortgagor or paid to any other
person or entity pursuant to any insolvency law or otherwise, notwithstanding
any other provision of this Agreement, the Master Servicer (or Primary Servicer,
as applicable), shall not be required to distribute any portion thereof to the
related Repurchasing Seller, and such Repurchasing Seller will promptly on
demand by the Master Servicer (or the Primary Servicer on behalf of the Master
Servicer) repay (which obligation shall survive the termination of this
Agreement) any portion thereof that the Master Servicer (or Primary Servicer, as
applicable), shall have distributed to such Repurchasing Seller, together with
interest thereon at such rate, if any, as the Master Servicer (or Primary
Servicer, as applicable), may pay to the related Mortgagor or such other person
or entity with respect thereto.
(e) Subject to this Agreement, the Master Servicer (or the Primary
Servicer on behalf of the Master Servicer) or the Special Servicer, as
applicable, on behalf of the holders of any of the Repurchased Notes, shall have
the exclusive right and obligation to (i) administer,
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service and make all decisions and determinations regarding the related Joint
Mortgage Loan and (ii) enforce the applicable Mortgage Loan documents as
provided hereunder. Without limiting the generality of the preceding sentence,
the Master Servicer (or the Primary Servicer on behalf of Master Servicer) or
Special Servicer, as applicable, may agree to any modification, waiver or
amendment of any term of, forgive interest on and principal of, capitalize
interest on, permit the release, addition or substitution of collateral
securing, and/or permit the release of the related Mortgagor on or any guarantor
of any Joint Mortgage Loan it is required to service and administer hereunder,
without the consent of the related Repurchasing Seller, subject, however, to the
terms of this Agreement.
(f) In taking or refraining from taking any action permitted
hereunder, the Master Servicer (or the Primary Servicer on behalf of the Master
Servicer) and the Special Servicer shall each be subject to the same degree of
care with respect to the administration and servicing of the Joint Mortgage
Loans as is consistent with this Agreement; and shall be liable to any
Repurchasing Seller only to the same extent as set forth herein with respect to
any holder of a Serviced Companion Mortgage Loan.
(g) In the event that the Trustee, the Fiscal Agent, the Master
Servicer or the Special Servicer has made a Servicing Advance with respect to
any Repurchased Note which would otherwise be reimbursable to such advancing
party under this Agreement, and such Advance is determined to be a
Nonrecoverable Advance, the applicable Repurchasing Seller shall reimburse the
Trust in an amount equal to such Repurchasing Seller's Repurchased Percentage
Interest of such Nonrecoverable Advance. Notwithstanding the foregoing, the
applicable Repurchasing Seller will not be obligated to reimburse the Trustee,
the Fiscal Agent, the Master Servicer or the Special Servicer (and amounts due
to the applicable Repurchasing Seller shall not be offset) for Advances or
interest thereon or any amounts related to any Mortgage Loans or any other Joint
Mortgage Loan other than such amounts relating to the applicable Repurchased
Note or for P&I Advances or interest thereon with respect to such Mortgage Note.
To the extent that the applicable Repurchasing Seller reimburses any such
Nonrecoverable Advances and such amounts are subsequently recovered, the
applicable Repurchasing Seller shall receive a reimbursement from such recovery
based on its Repurchased Percentage Interest of such recovery. This
reimbursement right shall not limit the Trustee's, the Fiscal Agent, the Master
Servicer's or the Special Servicer's rights to reimbursement under this
Agreement. Notwithstanding anything to the contrary contained herein, the total
liability of each Repurchasing Seller shall not exceed an amount equal to its
Repurchased Percentage Interest.
(h) Each Repurchasing Seller shall have the right to assign the
related Repurchased Note; provided that the assignee of the related Repurchased
Note shall agree in writing to be bound by the terms of this Agreement.
(i) The Master Servicer (or Primary Servicer, as applicable) and the
Special Servicer shall, in connection with their servicing and administrative
duties under this Agreement, exercise efforts consistent with the Servicing
Standard to execute and deliver, on behalf of each Repurchasing Seller as a
holder of a pari passu interest in the applicable Joint Mortgage Loan, any and
all financing statements, continuation statements and other documents and
instruments necessary to maintain the lien created by any Mortgage or other
security document related to the applicable Joint Mortgage Loan on the related
Mortgaged Property and related collateral, any
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and all modifications, waivers, amendments or consents to or with respect to the
related Joint Mortgage Loan documents, and any and all instruments of
satisfaction or cancellation, or of full release or discharge, and all other
comparable instruments with respect to the related Repurchased Note or related
Repurchased Notes and the related Mortgaged Property all in accordance with, and
subject to, the terms of this Agreement. Each Repurchasing Seller agrees to
furnish, or cause to be furnished, to the Master Servicer (or the Primary
Servicer, as applicable) and the Special Servicer any powers of attorney or
other documents necessary or appropriate to enable the Master Servicer, the
Primary Servicer or the Special Servicer, as the case may be, to carry out its
servicing and administrative duties under this Agreement related to the
applicable Joint Mortgage Loan; provided, however, that such Repurchasing Seller
shall not be liable, and shall be indemnified by the Master Servicer (or Primary
Servicer, as applicable) or the Special Servicer, as applicable, for any
negligence with respect to, or misuse of, any such power of attorney by the
Master Servicer (or Primary Servicer, as applicable) or the Special Servicer, as
the case may be; and further provided that the Master Servicer or the Special
Servicer, without the written consent of the applicable Repurchasing Seller,
shall not initiate any action in the name of such Repurchasing Seller without
indicating its representative capacity or take any action with the intent to
cause and that actually causes, such Repurchasing Seller to be registered to do
business in any state.
Pursuant to the related Mortgage Loan Purchase Agreement, the
applicable Repurchasing Seller is required to deliver to the Master Servicer (or
Primary Servicer, as applicable) or the Special Servicer, as applicable, the
Mortgage Loan documents related to the applicable Repurchased Note, any requests
for release and any court pleadings, requests for trustee's sale or other
documents necessary to the foreclosure or trustee's sale in respect of the
related Mortgaged Property or to any legal action or to enforce any other
remedies or rights provided by the Mortgage Note(s) or the Mortgage(s) or
otherwise available at law or equity with respect to the related Repurchased
Note.
ARTICLE IX
ADMINISTRATION AND SERVICING OF SPECIALLY SERVICED MORTGAGE LOANS
BY SPECIAL SERVICER
SECTION 9.1 DUTIES OF SPECIAL SERVICER.
(a) Subject to the express provisions of this Agreement, for and on
behalf of the Trust and for the benefit of the Certificateholders as a whole,
and, solely as it relates to any A/B Mortgage Loan, for the benefit of the
holder of the related B Note and, solely as it relates to any Loan Pair, for the
benefit of the holder of the related Serviced Companion Mortgage Loan, the
Special Servicer shall service the Specially Serviced Mortgage Loans and manage
the related REO Properties in accordance with the Servicing Standard and the
terms of this Agreement. Certain of the provisions of this Article IX make
explicit reference to their applicability to Mortgage Loans, any Serviced
Companion Mortgage Loan and any B Note; notwithstanding such explicit
references, references in this Article IX to "Mortgage Loans" shall be
construed, unless otherwise specified, to refer also to such B Note and such
Serviced Companion Mortgage Loan (but any other terms that are defined in
Article I and used in this Article IX shall be construed according to such
definitions without regard to this sentence).
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(b) The Special Servicer shall cooperate with the Master Servicer and
provide the Master Servicer with the information reasonably requested by the
Master Servicer, in writing, to the extent required to allow the Master Servicer
to perform its servicing obligations with respect to the Specially Serviced
Mortgage Loans hereunder; provided, however, that (i) the Special Servicer shall
not be required to produce any ad hoc reports or incur any unusual expense or
effort in connection therewith and (ii) if the Special Servicer elects to
provide such ad hoc reports, the Special Servicer may require the Master
Servicer to pay a reasonable fee to cover the costs of the preparation thereof.
The Special Servicer's obligations with respect to the servicing of any
Specially Serviced Mortgage Loan and any related REO Properties shall terminate
when such Specially Serviced Mortgage Loan has become a Rehabilitated Mortgage
Loan, unless and until another Servicing Transfer Event with respect to such
Rehabilitated Mortgage Loan occurs.
(c) The Special Servicer shall send a written notice to the Master
Servicer, the Operating Adviser (and with respect to the Lakeforest Mall
Mortgage Loan, the Lakeforest Mall Mortgage Loan Operating Adviser) and the
Paying Agent within two Business Days after becoming aware that a Mortgage Loan
has become a Rehabilitated Mortgage Loan, which notice shall identify the
applicable Mortgage Loan. Upon the receipt of such notice by the Master Servicer
and the Paying Agent, such Mortgage Loan shall become a Rehabilitated Mortgage
Loan and will be serviced by the Master Servicer.
(d) Upon the occurrence of a Servicing Transfer Event with respect to
a Mortgage Loan and upon the reasonable request of the Special Servicer, the
Master Servicer shall xxxx its records for such Mortgage Loan to cause any
monthly statements for amounts due on such Mortgage Loan to be sent thereafter
to the Special Servicer rather than the related Mortgagor. Upon receipt of any
such monthly statement, the Special Servicer shall, within two Business Days,
advise the Master Servicer of any changes to be made, and return the monthly
statement to the Master Servicer. The Master Servicer shall thereafter promptly
send the corrected monthly statement to the Mortgagor. If a Mortgage Loan
becomes a Rehabilitated Mortgage Loan, the Master Servicer shall send the
monthly statement to the Mortgagor as it did before such Mortgage Loan became a
Specially Serviced Mortgage Loan.
(e) All amounts collected by the Master Servicer with respect to a
Specially Serviced Mortgage Loan (other than a Mortgage Loan that has become an
REO Mortgage Loan and a Specially Serviced Mortgage Loan that is a B Note or
Serviced Companion Mortgage Loan) shall be deposited in the Certificate Account,
and all amounts collected by the Master Servicer with respect to a Specially
Serviced Mortgage Loan that is a B Note shall be deposited in the related A/B
Loan Custodial Account and all amounts collected by the Master Servicer with
respect to a Specially Serviced Mortgage Loan that is a Serviced Companion
Mortgage Loan shall be deposited in the related Serviced Companion Mortgage Loan
Custodial Account. The Master Servicer shall within three Business Days after
receipt of any such payment, notify the Special Servicer of the receipt of such
payment and the amount thereof. The Special Servicer shall, within one Business
Day thereafter, instruct the Master Servicer in writing how to apply such
payment (with the application of such payments to be made in accordance with the
related Mortgage Loan documents (including the related Intercreditor Agreement,
if any) or in accordance with this Agreement, as applicable).
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(f) After the occurrence of any Servicing Transfer Event with respect
to any one or more Mortgage Loans that are the subject of any Environmental
Insurance Policy, (i) the Special Servicer shall monitor the dates by which any
claim must be made or action must be taken under such Environmental Insurance
Policy to achieve the payment of all amounts thereunder to which the Trust is
entitled in the event the Special Servicer has actual knowledge of any event
giving rise to a claim under such Environmental Insurance Policy (an "Insured
Environmental Event") and (ii) if the Special Servicer has actual knowledge of
an Insured Environmental Event with respect to such Mortgage Loan, the Special
Servicer shall take reasonable actions as are in accordance with the Servicing
Standard and the terms and conditions of the related Environmental Insurance
Policy to make a claim thereunder and achieve the payment of all amounts to
which the Trust is entitled thereunder. Any legal fees or other out-of-pocket
costs incurred in accordance with the Servicing Standard in connection with any
such claim shall be paid by, and reimbursable to, the Master Servicer (of if
applicable, the Special Servicer) as a Servicing Advance. All extraordinary
expenses (but not ordinary and routine or anticipated expenses) incurred by the
Special Servicer in fulfilling its obligations under this Section 9.1 shall be
paid by the Trust.
SECTION 9.2 FIDELITY BOND AND ERRORS AND OMISSIONS INSURANCE POLICY OF
SPECIAL SERVICER. The Special Servicer, at its expense, shall maintain in effect
a Servicer Fidelity Bond and a Servicer Errors and Omissions Insurance Policy.
The Servicer Errors and Omissions Insurance Policy and Servicer Fidelity Bond
shall be issued by a Qualified Insurer (unless the Special Servicer self insures
as provided below) and be in form and amount consistent with the Servicing
Standard. In the event that any such Servicer Errors and Omissions Insurance
Policy or Servicer Fidelity Bond ceases to be in effect, the Special Servicer
shall obtain a comparable replacement policy or bond from an insurer or issuer
meeting the requirements set forth above as of the date of such replacement. So
long as the long-term rating of the Special Servicer is not less than two rating
categories (ignoring pluses or minuses) lower than the highest rating of the
Certificates, but in any event not less than "A" as rated by Fitch and "A2" as
rated by Moody's, the Special Servicer may self-insure for the Servicer Fidelity
Bond and the Servicer Errors and Omissions Insurance Policy.
SECTION 9.3 SUB-SERVICERS. The Special Servicer shall have the right
to use a Sub-Servicer on the same terms and conditions as those set forth in
Section 8.4 for a Sub-Servicer of the Master Servicer. The Special Servicer
shall notify the Master Servicer, Trustee and solely as it relates to any A/B
Mortgage Loan, the holder of the related B Note, and solely as it relates to any
Loan Pair, the holder of the related Serviced Companion Mortgage Loan, of the
appointment of any Sub-Servicer of the Special Servicer. The Special Servicer
shall not enter into future sub-servicing contracts unless (a) the Rating
Agencies have confirmed in writing that entering into any such contract will not
result in a qualification, downgrade, or withdrawal of the then current ratings
on the Certificates or (b) the sub-servicing contract relates to a Mortgage
Loan(s) (along with any Mortgage Loans previously sub-serviced in accordance
with this section) that represent less than 25% of the outstanding principal
balance of all Specially Serviced Mortgage Loans.
SECTION 9.4 SPECIAL SERVICER GENERAL POWERS AND DUTIES.
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(a) Subject to the other terms and provisions of this Agreement (and,
in the case of any Non-Serviced Mortgage Loan, subject to the servicing of such
Non-Serviced Mortgage Loan by the applicable Non-Serviced Mortgage Loan Master
Servicer and the applicable Non-Serviced Mortgage Loan Special Servicer), the
Special Servicer is hereby authorized and empowered when the Special Servicer
believes it appropriate in accordance with the Servicing Standard, to take any
and all the actions with respect to Specially Serviced Mortgage Loans which the
Master Servicer may perform as set forth in Section 8.3(a), including (i) to
execute and deliver, on behalf of itself or the Trust (or holder of a B Note or
Serviced Companion Mortgage Loan, as applicable), any and all instruments of
satisfaction or cancellation, or of partial or full release or discharge and all
other comparable instruments, with respect to the Specially Serviced Mortgage
Loans and with respect to the related REO Properties and (ii) to effectuate
foreclosure or other conversion of the ownership of any REO Property securing a
Mortgage Loan. The Trustee shall execute on the Closing Date a Power of Attorney
in the form of Exhibit S-2 hereto and shall furnish the Special Servicer from
time to time, upon request, with any additional powers of attorney of the Trust,
empowering the Special Servicer to take such actions as it determines to be
reasonably necessary to comply with its servicing, administrative and management
duties hereunder, and the Trustee shall execute and deliver or cause to be
executed and delivered such other documents as a Special Servicing Officer may
request, that are necessary or appropriate to enable the Special Servicer to
service, administer and manage the Specially Serviced Mortgage Loans and carry
out its duties hereunder, in each case as the Special Servicer determines is in
accordance with the Servicing Standard and the terms of this Agreement;
provided, that, prior to initiating any proceedings in any court of law or
equity (but not defending any proceedings in any court of law or equity) or
instituting any proceeding to foreclose on any Mortgaged Property in the name of
the Trust in any state, the Special Servicer shall notify the Trustee in writing
and not institute or initiate any such proceedings for a period of five Business
Days from the date of its delivery of such notice to the Trustee, unless the
Special Servicer reasonably believes that such action should be taken in less
than five Business Days to preserve the property of the Trust for the benefit of
Certificateholders, and the Trustee may within five Business Days of its receipt
of such notice advise the Special Servicer that it has received an Opinion of
Counsel (the cost of which shall be an expense of the Trust) from an attorney
duly licensed to practice law in the state where the related Mortgaged Property
or REO Property is located, that it is likely that the laws of the state in
which said action is to be taken either prohibit such action if taken in the
name of the Trust or that the Trust would be adversely affected under the "doing
business" or tax laws of such state if such action is taken in its name;
provided, further, that the Special Servicer shall not be liable to the extent
that it relies on the advice provided in such Opinion of Counsel. Upon receipt
of any such advice from the Trustee, the Special Servicer shall take such action
in the name of such Person or Persons, in trust for the Trust (or holder of a B
Note or Serviced Companion Mortgage Loan, if applicable), as shall be consistent
with the Opinion of Counsel obtained by the Trustee. Such Person or Persons
shall acknowledge in writing that such action is being taken by the Special
Servicer in the name of the Trust (or holder of a B Note or the Serviced
Companion Mortgage Loan, if applicable). In the performance of its duties
hereunder, the Special Servicer shall be an independent contractor and shall
not, except in those instances where it is, after notice to the Trustee as
provided above, taking action in the name of the Trust (or holder of a B Note or
the Serviced Companion Mortgage Loan, if applicable), be deemed to be the agent
of the Trust (or holder of a B Note or the Serviced Companion Mortgage Loan, as
applicable). The Special Servicer shall indemnify the Trustee for any loss,
liability or reasonable expense (including
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attorneys' fees) incurred by the Trustee or any director, officer, employee,
agent or Controlling Person of it or its affiliates in connection with any
negligent or intentional misuse of the foregoing powers of attorney furnished to
the Special Servicer by the Trustee. Such indemnification shall survive the
resignation or termination of the Special Servicer hereunder, the resignation or
termination of the Trustee and the termination of this Agreement. The Special
Servicer shall not have any responsibility or liability for any act or omission
of the Trustee, the Master Servicer or the Depositor that is not attributable to
the failure of the Special Servicer to perform its obligations hereunder. The
Special Servicer may conclusively rely on any advice of counsel rendered in a
Nondisqualification Opinion.
(b) In servicing and administering the Specially Serviced Mortgage
Loans and managing any related REO Properties, the Special Servicer shall employ
procedures consistent with the Servicing Standard. The Special Servicer shall
conduct, or cause to be conducted, inspections, at its own expense, of the
Mortgaged Properties relating to Specially Serviced Mortgage Loans at such times
and in such manner as shall be consistent with the Servicing Standard; provided,
that the Special Servicer shall conduct, or cause to be conducted, inspections
of the Mortgaged Properties relating to Specially Serviced Mortgage Loans at
least once during each twelve-month period that ends on June 30 of any calendar
year (commencing with the twelve-month period ending June 30, 2006); provided
further that the Special Servicer shall, at the expense of the Trust, inspect or
cause to be inspected each Mortgaged Property related to a Mortgage Loan that is
delinquent for sixty (60) days in the payment of any amounts due under such
Mortgage Loan. The Special Servicer shall provide to the Master Servicer (who
shall provide, solely as it relates to any A/B Mortgage Loan, to the holder of
the related B Note, and solely as it relates to any Loan Pair, to the holder of
the related Serviced Companion Mortgage Loan) and the Operating Adviser (and
with respect to the Lakeforest Mall Mortgage Loan, the Lakeforest Mall Mortgage
Loan Operating Adviser) copies of the Inspection Reports relating to such
inspections as soon as practicable after the completion of any inspection.
(c) Pursuant to the related Loan Pair Intercreditor Agreement, each
owner of a Serviced Companion Mortgage Loan has agreed that the Master Servicer
and the Special Servicer are authorized and obligated to service and administer
such Serviced Companion Mortgage Loan pursuant to this Agreement.
(d) Pursuant to the related Loan Pair Intercreditor Agreement, each
owner of a Serviced Companion Mortgage Loan has agreed that the Master Servicer
and the Special Servicer are authorized and obligated to service and administer
such Serviced Companion Mortgage Loan pursuant to this Agreement.
Notwithstanding anything herein to the contrary, the parties hereto acknowledge
and agree that the Special Servicer's obligations and responsibilities hereunder
and the Special Servicer's authority with respect to a Serviced Pari Passu
Mortgage Loan are limited by and subject to the terms of the related Loan Pair
Intercreditor Agreement. At such time when the related Serviced Companion
Mortgage Loan is deposited into a different commercial mortgage securitization
(the "Other Securitization"), the Special Servicer shall be required to consult
with the special servicer of the Other Securitization (the "Other Special
Servicer") in respect thereof, and shall provide the Other Special Servicer with
an opportunity to review any proposed action to be taken in respect thereof. The
Other Special Servicer and the operating adviser of the Other Securitization
(the "Other Operating Adviser") shall have such opportunity to consult with the
Special Servicer for a period from the
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date of receipt of the Special Servicer's written description of its proposed
action through (but excluding) the fifth Business Day following the date of
receipt (the "Initial Review Period"). The Special Servicer shall implement its
written proposal if the Other Special Servicer (in consultation with the Other
Operating Adviser) does not disapprove the proposed action within the Initial
Review Period, unless the Special Servicer has been directed to do otherwise by
the Operating Adviser (in which event the Special Servicer shall advise the
Other Special Servicer of such alternate course of action). If the Other Special
Servicer (in consultation with the Other Operating Adviser) disagrees with any
aspect of the written proposal and, after consulting with the Special Servicer
during the Initial Review Period, is unable to reach agreement on the proper
course of action and notifies the Special Servicer of its disagreement in
writing, then the Other Special Servicer shall be entitled to an additional
period of five Business Days (the "Additional Review Period") to continue its
discussions with the Special Servicer and the Operating Adviser. If the Other
Special Servicer and the Special Servicer agree on a revised course of action
within the Initial Review Period or the Additional Review Period, then the
Special Servicer shall revise the written proposal to reflect the agreed upon
revised course of action and shall implement that course of action. If the Other
Special Servicer and the Special Servicer are unable to agree on the appropriate
course of action by the end of the Additional Review Period, then the Special
Servicer shall decide, in accordance with the Servicing Standard set forth in
this Agreement, what course of action to follow. If an Event of Default has
occurred and is continuing with respect to the Special Servicer under this
Agreement, which Event of Default does not relate to any Mortgage Loan other
than the related Loan Pair, then the trustee under the pooling and servicing
agreement relating to the Other Securitization (the "Other Pooling and Servicing
Agreement") shall be entitled to direct the Trustee to (a) terminate the
defaulting Special Servicer solely with respect to the related Loan Pair and (b)
appoint a successor Special Servicer that meets the eligibility requirements of
the Other Pooling and Servicing Agreement and this Agreement. In such event, the
trustee under the Other Pooling and Servicing Agreement shall exercise its
rights set forth in the preceding sentence at the direction of the
certificateholders holding at least 25% of the certificate balance of the
certificates issued under the Other Securitization or the Other Operating
Adviser. The replacement of the Special Servicer with respect to a Loan Pair, as
contemplated above, will in any event be subject to obtaining Rating Agency
Confirmation hereunder and any required Rating Agency Confirmation with respect
to the certificates by the trustee under the Other Pooling and Servicing
Agreement.
(e) Pursuant to the applicable Non-Serviced Mortgage Loan
Intercreditor Agreement, the owners of a Non-Serviced Mortgage Loan have agreed
that such owner's rights in, to and under such Non-Serviced Mortgage Loan are
subject to the servicing and all other rights of the applicable Non-Serviced
Mortgage Loan Master Servicer and the applicable Non-Serviced Mortgage Loan
Special Servicer and such Non-Serviced Mortgage Loan Master Servicer and
Non-Serviced Mortgage Loan Special Servicer are authorized and obligated to
service and administer such Non-Serviced Mortgage Loan pursuant to the related
Non-Serviced Mortgage Loan Pooling and Servicing Agreement. Notwithstanding
anything herein to the contrary, the parties hereto acknowledge and agree that
the Special Servicer's obligations and responsibilities hereunder and the
Special Servicer's authority with respect to any Non-Serviced Mortgage Loan are
limited by and subject to the terms of the applicable Non-Serviced Mortgage Loan
Intercreditor Agreement and the rights of the applicable Non-Serviced Mortgage
Loan Master Servicer and the applicable Non-Serviced Mortgage Loan Special
Servicer with respect thereto under the related Non-Serviced Mortgage Loan
Pooling and Servicing Agreement. The
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Special Servicer shall take such actions as it shall deem reasonably necessary
to facilitate the servicing of any Non-Serviced Mortgage Loan by the applicable
Non-Serviced Mortgage Loan Master Servicer and the applicable Non-Serviced
Mortgage Loan Special Servicer including, but not limited to, delivering
appropriate Requests for Release to the Trustee and Custodian (if any) in order
to deliver any portion of the related Mortgage File to the applicable
Non-Serviced Mortgage Loan Master Servicer or applicable Non-Serviced Mortgage
Loan Special Servicer under the related Non-Serviced Mortgage Loan Pooling and
Servicing Agreement.
SECTION 9.5 "DUE-ON-SALE" CLAUSES; ASSIGNMENT AND ASSUMPTION
AGREEMENTS; MODIFICATIONS OF SPECIALLY SERVICED MORTGAGE LOANS;
DUE-ON-ENCUMBRANCE CLAUSES.
Subject to the limitations of Section 12.3, the Special Servicer shall have the
following duties and rights:
(a) If any Specially Serviced Mortgage Loan contains a provision in
the nature of a "due-on-sale" clause, which by its terms:
(i) provides that such Specially Serviced Mortgage Loan shall (or
may at the Mortgagee's option) become due and payable upon the sale or other
transfer of an interest in the related Mortgaged Property or ownership interest
in the related Mortgagor, or
(ii) provides that such Specially Serviced Mortgage Loan may not
be assumed, or ownership interests in the related Mortgagor may not be
transferred, without the consent of the related mortgagee in connection with any
such sale or other transfer,
then, the Special Servicer, on behalf of the Trust, shall, after consultation
with the Operating Adviser (and with respect to the Lakeforest Mall Mortgage
Loan, the Lakeforest Mall Mortgage Loan Operating Adviser) and in accordance
with the REMIC Provisions, take such actions as it deems to be in the best
economic interest of the Trust in accordance with the Servicing Standard, and
may waive or enforce any due-on-sale clause contained in the related Mortgage
Note or Mortgage; provided, however, that if the Principal Balance of such
Mortgage Loan at such time equals or exceeds 5% of the Aggregate Certificate
Balance (including the Class LF Certificates) or exceeds $35,000,000 or is one
of the then current top 10 loans (by Principal Balance) in the pool, then prior
to waiving the effect of such provision, the Special Servicer shall obtain
Rating Agency Confirmation regarding such waiver. In connection with the request
for such consent, the Special Servicer shall prepare and deliver to Fitch and
Moody's a memorandum outlining its analysis and recommendation in accordance
with the Servicing Standard, together with copies of all relevant documentation.
The Special Servicer shall also prepare and provide Fitch and Moody's with such
memorandum and documentation for all transfer and assumption consents granted
for Mortgage Loans below the threshold set forth above (and, in the case of
encumbrances, the threshold set forth in Section 9.5(i)), but for which the
Special Servicer's decision will be sufficient and a Rating Agency Confirmation
is not required. As to any Mortgage Loan that is not a Specially Serviced
Mortgage Loan and contains a provision in the nature of a "due-on-sale" clause,
the Special Servicer shall have the rights and duties set forth in Section
8.7(b). The Special Servicer shall be entitled to 100% of all assumption fees in
connection with Specially Serviced Mortgage Loans.
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After notice to the Operating Adviser (and with respect to the
Lakeforest Mall Mortgage Loan, the Lakeforest Mall Mortgage Loan Operating
Adviser), the Special Servicer is also authorized to take or enter into an
assignment and assumption agreement from or with the Person to whom such
property has been or is about to be conveyed, and/or to release the original
Mortgagor from liability upon the Specially Serviced Mortgage Loan and
substitute the new Mortgagor as obligor thereon; provided, that except as
otherwise permitted by Section 9.5(c), any such assignment and assumption or
substitution agreement shall contain no terms that could result in an Adverse
REMIC Event. To the extent permitted by law, the Special Servicer shall enter
into an assumption or substitution agreement that is required under the related
Mortgage Loan documents (either as a matter of right or upon satisfaction of
specified conditions) and shall otherwise enter into any assumption or
substitution agreement only if the credit status of the prospective new
mortgagor and the underwriting of the new mortgagor is in compliance with the
Special Servicer's regular commercial mortgage origination or servicing
standards and criteria. The Special Servicer shall notify the Master Servicer of
any such assignment and assumption or substitution agreement and the Special
Servicer shall forward to the Trustee the original of such agreement, which
original shall be added by the Trustee to the related Mortgage File and shall,
for all purposes, be considered a part of such Mortgage File to the same extent
as all other documents and instruments constituting a part thereof.
(b) In connection with any assignment and assumption of a Specially
Serviced Mortgage Loan, in no event shall the Special Servicer consent to the
creation of any lien on a Mortgaged Property that is senior to, or on a parity
with, the lien of the related Mortgage. Nothing in this Section 9.5 shall
constitute a waiver of the Trustee's right, as the mortgagee of record, to
receive notice of any assignment and assumption of a Specially Serviced Mortgage
Loan, any sale or other transfer of the related Mortgaged Property or the
creation of any lien or other encumbrance with respect to such Mortgaged
Property.
(c) Subject to the Servicing Standard and Sections 9.39 and 9.40, and
the rights and duties of the Master Servicer under Section 8.18, the Special
Servicer may enter into any modification, waiver or amendment (including,
without limitation, the substitution or release of collateral or the pledge of
additional collateral) of the terms of any Specially Serviced Mortgage Loan,
including any modification, waiver or amendment to (i) reduce the amounts owing
under any Specially Serviced Mortgage Loan by forgiving principal, accrued
interest and/or any Prepayment Premium, (ii) reduce the amount of the Scheduled
Payment on any Specially Serviced Mortgage Loan, including by way of a reduction
in the related Mortgage Rate, (iii) forbear in the enforcement of any right
granted under any Mortgage Note or Mortgage relating to a Specially Serviced
Mortgage Loan, (iv) extend the Maturity Date of any Specially Serviced Mortgage
Loan and/or (v) accept a principal prepayment on any Specially Serviced Mortgage
Loan during any period during which voluntary Principal Prepayments are
prohibited, provided, in the case of any such modification, waiver or amendment,
that (A) the related Mortgagor is in default with respect to the Specially
Serviced Mortgage Loan or, in the reasonable judgment of the Special Servicer,
such default is reasonably foreseeable, (B) in the reasonable judgment of the
Special Servicer, such modification, waiver or amendment would result in a
recovery that would equal or exceed the recovery, from liquidation, on the
Specially Serviced Mortgage Loan to Certificateholders, the holder of the
related Serviced Companion Mortgage Loan and the holder of the related B Note
(as a collective whole) on a net present value basis (the relevant discounting
of amounts that will be distributable to Certificateholders,
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the holder of the related Serviced Companion Mortgage Loan and the holder of the
related B Note (as a collective whole) to be performed at the related Mortgage
Rate or such other discount rate reasonably assigned by the Special Servicer in
accordance with the Servicing Standard that is no less than the Mortgage Rate
(or, in the case of an A/B Mortgage Loan, such discounting to be performed at a
rate no less than the weighted average of the Mortgage Rate and the stated
mortgage rate on the B Note)), (C) such modification, waiver or amendment would
not cause an Adverse REMIC Event (including with respect to any securities
evidencing interests in any A Note or any B Note) to occur or adversely affect
the tax status of the B Note Trust, and (D) if notice to the Operating Adviser
(and with respect to the Lakeforest Mall Mortgage Loan, the Lakeforest Mall
Mortgage Loan Operating Adviser) of such modification, waiver or amendment is
required pursuant to Section 9.39, the Special Servicer has made such notice.
The Special Servicer, with respect to any B Note and any Serviced Companion
Mortgage Loan that is a Specially Serviced Mortgage Loan, shall notify the
holder of the B Note and the Serviced Companion Mortgage Loan, as applicable, of
any modification of the monthly payments of an A/B Mortgage Loan or a Loan Pair,
as the case may be, and such monthly payments shall be allocated in accordance
with the related Intercreditor Agreement or Loan Pair Intercreditor Agreement,
as applicable.
In no event, however, shall the Special Servicer (i) extend the
Maturity Date of a Specially Serviced Mortgage Loan beyond a date that is two
years prior to the Rated Final Distribution Date or (ii) if the Specially
Serviced Mortgage Loan is secured by a ground lease, extend the Maturity Date of
such Specially Serviced Mortgage Loan unless the Special Servicer gives due
consideration to the remaining term of such ground lease. The Special Servicer
shall not extend the Maturity Date of any Mortgage Loan secured by a Mortgaged
Property covered by a group secured creditor impaired property environmental
insurance policy for more than five years beyond such Mortgage Loan's Maturity
Date unless a new Phase I Environmental Report indicates that there is no
environmental condition or the Mortgagor obtains, at its expense, an extension
of such policy on the same terms and conditions to cover the period through five
years past the extended Maturity Date, provided that, (i) if such Mortgage Loan
is secured by a ground lease, the Special Servicer shall give due consideration
to the remaining term of the ground lease and (ii) in no case shall the Maturity
Date of any such Mortgage Loan be extended past a date that is two years prior
to the Rated Final Distribution Date.
The determination of the Special Servicer contemplated by clause (B)
of the proviso to the first paragraph of this Section 9.5(c) shall be evidenced
by an Officer's Certificate certifying the information in the proviso to the
first paragraph under this subsection (c).
(d) In the event the Special Servicer intends to permit a Mortgagor to
substitute collateral for all or any portion of a Mortgaged Property pursuant to
Section 9.5(c) or pledge additional collateral for the Mortgage Loan pursuant to
Section 9.5(c), if the security interest of the Trust, the holder of any
Serviced Companion Mortgage Loan or the holder of any B Note in such collateral
would be perfected by possession, or if such collateral requires special care or
protection, then prior to agreeing to such substitution or addition of
collateral, the Special Servicer shall make arrangements for such possession,
care or protection, and prior to agreeing to such substitution or addition of
collateral (or such arrangement for possession, care or protection) shall obtain
the prior written consent of the Trustee with respect thereto (which consent
shall not be unreasonably withheld, delayed or conditioned); provided, however,
that the Trustee shall not
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be required (but has the option) to consent to any substitution or addition of
collateral or to hold any such collateral which will require the Trustee to
undertake any additional duties or obligations or incur any additional expense.
Notwithstanding the foregoing, the Special Servicer will not permit a Mortgagor
to substitute collateral for any portion of the Mortgaged Property pursuant to
Section 9.5(c) unless it shall have received a Rating Agency Confirmation in
connection therewith, the costs of which to be payable by the related Mortgagor
to the extent provided for in the Mortgage Loan documents. If the Mortgagor is
not required to pay for the Rating Agency Confirmation, then such expense will
be paid by the Trust. The parties hereto acknowledge that if the Trust incurs
any Additional Trust Expense associated solely with the release of collateral
that is not required to be paid by a Mortgagor pursuant to the related Mortgage
Loan documents (and such Additional Trust Expense is not paid by the Mortgagor),
including, but not limited to, rating agency fees, then the sole obligation of
the related Seller shall be to pay an amount equal to such expense to the extent
the related Mortgagor is not required to pay them. Promptly upon receipt of
notice of such unpaid expense, regarding a Specially Serviced Mortgage Loan, the
Special Servicer shall request the related Seller to make such payment by
deposit to the Certificate Account.
(e) The Special Servicer will promptly deliver to the Master Servicer,
the Operating Adviser (and with respect to the Lakeforest Mall Mortgage Loan,
the Lakeforest Mall Mortgage Loan Operating Adviser), the Trustee, the Paying
Agent, the Rating Agencies (and, solely with respect to an A/B Mortgage Loan,
the related B Note Holder) a notice, specifying any assignments and assumptions,
modifications, waivers or amendments executed pursuant to this Section 9.5, such
notice identifying the affected Specially Serviced Mortgage Loan. Such notice
shall set forth the reasons for such waiver, modification, or amendment
(including, but not limited to, information such as related income and expense
statements, rent rolls, occupancy status, property inspections, and an internal
or external appraisal performed in accordance with MAI standards and
methodologies (and, if done externally, the cost of such appraisal shall be
recoverable as a Servicing Advance subject to the provisions of Section 4.4
hereof)). The Special Servicer shall also deliver to the Trustee (or the
Custodian), for deposit in the related Mortgage File, an original counterpart of
the agreement relating to such modification, waiver or amendment promptly
following the execution thereof.
(f) No fee described in this Section shall be collected by the Special
Servicer from the Mortgagor (or on behalf of the Mortgagor) in conjunction with
any consent or any modification, waiver or amendment of the Mortgage Loan if the
collection of such fee would cause such consent, modification, waiver or
amendment to be a "significant modification" of the Mortgage Note within the
meaning of Treasury Regulation Section 1.860G-2(b). Subject to the foregoing,
the Special Servicer shall use its reasonable efforts, in accordance with the
Servicing Standard, to collect any modification fees and other expenses
connected with a permitted modification of a Mortgage Loan from the Mortgagor.
The inability of the Mortgagor to pay any costs and expenses of a proposed
modification shall not impair the right of the Special Servicer, the Master
Servicer or the Trustee to be reimbursed by the Trust for such expenses
(including any cost and expense associated with the Opinion of Counsel referred
to in this Section).
(g) The Special Servicer shall cooperate with the Master Servicer (as
provided in Section 8.7) in connection with assignments and assumptions of
Mortgage Loans that are not Specially Serviced Mortgage Loans, and shall be
entitled to receive 50% of any assumption fee
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paid by the related Mortgagor in connection with an assignment and assumption
executed pursuant to Section 8.7(a) and 50% of any assumption fee paid by the
related Mortgagor in connection with an assignment and assumption executed
pursuant to Section 8.7(b). The Special Servicer shall be entitled to 100% of
any assumption fee received in connection with a Specially Serviced Mortgage
Loan.
(h) Notwithstanding anything herein to the contrary, (i) the Special
Servicer shall not have any right or obligation to consult with or to seek
and/or obtain consent or approval from the Operating Adviser (and with respect
to the Lakeforest Mall Mortgage Loan, the Lakeforest Mall Mortgage Loan
Operating Adviser) prior to acting, and provisions of this Agreement requiring
such shall be of no effect, if the Operating Adviser resigns or is removed,
during the period following such resignation or removal until a replacement is
elected and (ii) no advice, direction or objection from or by the Operating
Adviser (and with respect to the Lakeforest Mall Mortgage Loan, the Lakeforest
Mall Mortgage Loan Operating Adviser), as contemplated by this Agreement, may
(and the Special Servicer shall ignore and act without regard to any such
advice, direction or objection that the Special Servicer has determined, in its
reasonable good faith judgment would) (A) require or cause the Special Servicer
to violate applicable law, the terms of any Mortgage Loan, any provision of this
Agreement or the REMIC Provisions, including the Special Servicer's obligation
to act in accordance with the Servicing Standard, (B) result in an Adverse REMIC
Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with
respect to the Grantor Trust Pool, (C) expose the Trust, the Depositor, the
Master Servicer, the Special Servicer, the Fiscal Agent, the Paying Agent or the
Trustee, or any of their respective Affiliates, officers, directors, employees
or agents, to any material claim, suit or liability, or (D) materially expand
the scope of the Special Servicer's responsibilities under this Agreement. In
addition, the parties hereto acknowledge that with respect to any A/B Mortgage
Loan, the rights and powers granted to the Operating Advisor under this
Agreement in respect of that Mortgage Loan shall be limited to the extent set
forth in Section 9.37(g).
(i) If any Specially Serviced Mortgage Loan which contains a provision
in the nature of a "due-on-encumbrance" clause, which by its terms:
(i) provides that such Mortgage Loan shall (or may at the
mortgagee's option) become due and payable upon the creation of any additional
lien or other encumbrance on the related Mortgaged Property or a lien on an
ownership interest in the Mortgagor; or
(ii) requires the consent of the mortgagee to the creation of any
such additional lien or other encumbrance on the related Mortgaged Property or a
lien on an ownership interest in the Mortgagor,
then, for so long as such Mortgage Loan is included in the Trust, the Special
Servicer, on behalf of the Trustee as the mortgagee of record, shall exercise
(or, subject to Section 9.5, waive its right to exercise) any right it may have
with respect to such Mortgage Loan (x) to accelerate the payments thereon, or
(y) to withhold its consent to the creation of any such additional lien or other
encumbrance, in a manner consistent with the Servicing Standard. Prior to
waiving the effect of such provision with respect to a Mortgage Loan, the
Special Servicer shall obtain Rating Agency Confirmation regarding such waiver;
provided, however, that such Rating Agency Confirmation shall only be required
if the applicable Mortgage Loan (x) represents 2%
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or more of the Principal Balance of all of the Mortgage Loans held by the Trust,
has a Principal Balance of more than $20,000,000 or is one of the 10 largest
Mortgage Loans based on Principal Balance or (y) has a Loan-to-Value Ratio
(which includes the indebtedness to be secured by such additional lien or other
encumbrance and any other loans secured by the related Mortgaged Property or
interests in the related Mortgagor) that is greater than or equal to 85% or a
Debt Service Coverage Ratio (which includes debt service on the indebtedness to
be secured by such additional lien or other encumbrance and any other loans
secured by the related Mortgaged Property or interests in the related Mortgagor)
that is less than 1.2x.
SECTION 9.6 RELEASE OF MORTGAGE FILES.
(a) Upon becoming aware of the payment in full of any Specially
Serviced Mortgage Loan, or the receipt by the Special Servicer of a notification
that payment in full will be escrowed in a manner customary for such purposes,
or the complete defeasance of a Mortgage Loan, the Special Servicer will
immediately notify the Master Servicer. The Special Servicer shall determine, in
accordance with the Servicing Standard, whether an instrument of satisfaction
shall be delivered and, if the Special Servicer determines that such instrument
should be delivered, the Special Servicer shall deliver written approval of such
delivery to the Master Servicer.
(b) From time to time and as appropriate for the servicing or
foreclosure of any Specially Serviced Mortgage Loan or the management of the
related REO Property and in accordance with the Servicing Standard, the Trustee
shall execute or cause to be executed such documents as shall be prepared and
furnished to the Trustee by a Special Servicing Officer (in form reasonably
acceptable to the Trustee) and as are necessary for such purposes. The Trustee
or Custodian shall, upon request of the Special Servicer and delivery to the
Trustee or Custodian of a request for release signed by a Special Servicing
Officer substantially in the form of Exhibit C, release the related Mortgage
File to the Special Servicer. After the transfer of servicing with respect to
any Specially Serviced Mortgage Loan to the Special Servicer, in accordance with
the Servicing Standard, the Master Servicer shall notify, in writing, the
Mortgagor under each Specially Serviced Mortgage Loan transferred to the Special
Servicer, of such transfer.
(c) The Special Servicer shall send notification in writing, to the
Master Servicer to request any documents and instruments in the possession of
the Master Servicer related to any Specially Serviced Mortgage Loan.
(d) The Special Servicer shall, with respect to any Rehabilitated
Mortgage Loan, release to the Master Servicer all documents and instruments in
the possession of the Special Servicer related to such Rehabilitated Mortgage
Loan. Prior to the transfer of servicing with respect to any Rehabilitated
Mortgage Loan to the Master Servicer in accordance with the Servicing Standard,
the Special Servicer shall notify, in writing, each Mortgagor under such
Rehabilitated Mortgage Loan of such transfer.
SECTION 9.7 DOCUMENTS, RECORDS AND FUNDS IN POSSESSION OF SPECIAL
SERVICER TO BE HELD FOR THE TRUSTEE.
(a) The Special Servicer shall transmit to the Trustee or Custodian
such documents and instruments coming into the possession of the Special
Servicer as from time to
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time are required by the terms hereof to be delivered to the Trustee. Any funds
received by the Special Servicer in respect of any Specially Serviced Mortgage
Loan or any REO Property or which otherwise are collected by the Special
Servicer as Liquidation Proceeds, Condemnation Proceeds or Insurance Proceeds in
respect of any Specially Serviced Mortgage Loan or any REO Property shall be
transmitted to the Master Servicer within one Business Day of receipt to the
Certificate Account, except that if such amounts relate to REO Income, they
shall be deposited in the REO Account. The Special Servicer shall provide access
to information and documentation regarding the Specially Serviced Mortgage Loans
to the Trustee, the Master Servicer, the Fiscal Agent, the Paying Agent, the
Operating Adviser (and with respect to the Lakeforest Mall Mortgage Loan, the
Lakeforest Mall Mortgage Loan Operating Adviser) and their respective agents and
accountants at any time upon reasonable written request and during normal
business hours, provided that the Special Servicer shall not be required to take
any action or provide any information that the Special Servicer determines will
result in any material cost or expense to which it is not entitled to
reimbursement hereunder or will result in any material liability for which it is
not indemnified hereunder; provided further that the Trustee and the Paying
Agent shall be entitled to receive from the Special Servicer all such
information as the Trustee and the Paying Agent shall reasonably require to
perform their respective duties hereunder. In fulfilling such a request, the
Special Servicer shall not be responsible for determining whether such
information is sufficient for the Trustee's, the Master Servicer's, the Fiscal
Agent's, the Paying Agent's or the Operating Adviser's (and with respect to the
Lakeforest Mall Mortgage Loan, the Lakeforest Mall Mortgage Loan Operating
Adviser's) purposes.
(b) The Special Servicer hereby acknowledges that the Trust (and/or
the holder of the related B Note, if an A/B Mortgage Loan is involved and/or the
holder of the related Serviced Companion Mortgage Loan, if a Loan Pair is
involved) owns the Specially Serviced Mortgage Loans and all Mortgage Files
representing such Specially Serviced Mortgage Loans and all funds now or
hereafter held by, or under the control of, the Special Servicer that are
collected by the Special Servicer in connection with the Specially Serviced
Mortgage Loans (but excluding any Special Servicer Compensation and all other
amounts to which the Special Servicer is entitled hereunder); and the Special
Servicer agrees that all documents or instruments constituting part of the
Mortgage Files, and such funds relating to the Specially Serviced Mortgage Loans
which come into the possession or custody of, or which are subject to the
control of, the Special Servicer, shall be held by the Special Servicer for and
on behalf of the Trust (or the holder of the related B Note, if an A/B Mortgage
Loan is involved or the holder of the related Serviced Companion Mortgage Loan,
if a Loan Pair is involved).
(c) The Special Servicer also agrees that it shall not create, incur
or subject any Specially Serviced Mortgage Loans, or any funds that are required
to be deposited in any REO Account to any claim, lien, security interest,
judgment, levy, writ of attachment or other encumbrance, nor assert by legal
action or otherwise any claim or right of setoff against any Specially Serviced
Mortgage Loan or any funds, collected on, or in connection with, a Specially
Serviced Mortgage Loan.
SECTION 9.8 REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SPECIAL
SERVICER.
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(a) The Special Servicer hereby represents and warrants to and
covenants with the Trustee, as of the Closing Date:
(i) the Special Servicer is duly organized, validly existing and
in good standing as a corporation under the laws of the State of Delaware, and
shall be in compliance with the laws of each State in which any Mortgaged
Property (including any REO Property) which is, or is related to a Specially
Serviced Mortgage Loan is located to the extent necessary to perform its
obligations under this Agreement, except where the failure to so qualify or
comply would not adversely affect the Special Servicer's ability to perform its
obligations hereunder in accordance with the terms of this Agreement;
(ii) the Special Servicer has the full power and authority to
execute, deliver, perform, and to enter into and consummate all transactions and
obligations contemplated by this Agreement. The Special Servicer has duly and
validly authorized the execution, delivery and performance by it of this
Agreement and this Agreement has been duly executed and delivered by the Special
Servicer; and this Agreement, assuming the due authorization, execution and
delivery thereof by the Depositor, the Trustee, the Fiscal Agent, the Paying
Agent and the Master Servicer, evidences the valid and binding obligation of the
Special Servicer enforceable against the Special Servicer in accordance with its
terms subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium, receivership and other similar laws
affecting creditors' rights generally as from time to time in effect, and to
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(iii) the execution and delivery of this Agreement by the Special
Servicer, the consummation by the Special Servicer of the transactions
contemplated hereby, and the fulfillment of or compliance by the Special
Servicer with the terms and conditions of this Agreement will not (1) result in
a breach of any term or provision of its charter or by-laws or (2) conflict
with, result in a breach, violation or acceleration of, or result in a default
under, the terms of any other material agreement or instrument to which it is a
party or by which it may be bound, or any law, governmental rule, regulation, or
judgment, decree or order applicable to it of any court, regulatory body,
administrative agency or governmental body having jurisdiction over it, which
materially and adversely affects its ability to perform its obligations under
this Agreement;
(iv) no litigation is pending or, to the best of the Special
Servicer's knowledge, threatened, against it, the outcome of which, in the
Special Servicer's reasonable judgment, could reasonably be expected to
materially and adversely affect the execution, delivery or enforceability of
this Agreement or its ability to service the Mortgage Loans or to perform any of
its other obligations hereunder in accordance with the terms hereof; and
(v) no consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by it of, or compliance by it with, this Agreement, or the
consummation of the transactions contemplated hereby, or if any such consent,
approval, authorization or order is required, it has obtained the same or will
obtain the same prior to the time necessary to perform its obligations under
this Agreement, and, except to the extent in the case of performance, that its
failure to be qualified as
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a foreign corporation or licensed in one or more states is not necessary for the
performance by it of its obligations hereunder.
(b) It is understood that the representations and warranties set forth
in this Section 9.8 shall survive the execution and delivery of this Agreement.
(c) Any cause of action against the Special Servicer arising out of
the breach of any representations and warranties made in this Section shall
accrue upon the giving of written notice to the Special Servicer by any of the
Trustee, the Master Servicer, the Paying Agent or the Fiscal Agent. The Special
Servicer shall give prompt notice to the Trustee, the Fiscal Agent, the Paying
Agent, the Depositor, the Operating Adviser (and with respect to the Lakeforest
Mall Mortgage Loan, the Lakeforest Mall Mortgage Loan Operating Adviser) and the
Master Servicer of the occurrence, or the failure to occur, of any event that,
with notice, or the passage of time or both, would cause any representation or
warranty in this Section to be untrue or inaccurate in any respect.
SECTION 9.9 STANDARD HAZARD, FLOOD AND COMPREHENSIVE GENERAL LIABILITY
INSURANCE POLICIES.
(a) For all REO Properties (other than REO Properties relating to
Non-Serviced Mortgage Loans), the Special Servicer shall use reasonable efforts,
consistent with the Servicing Standard, to maintain with a Qualified Insurer (A)
a Standard Hazard Insurance Policy (that, if the terms of the related Mortgage
Loan documents and the related Mortgage so require, contains no exclusion as to
any Act or Acts of Terrorism, as defined in the Terrorism Risk Insurance Act of
2002) which does not provide for reduction due to depreciation in an amount
which is not less than the full replacement cost of the improvements of such REO
Property or in an amount not less than the unpaid Principal Balance plus all
unpaid interest and the cumulative amount of Servicing Advances (plus Advance
Interest) made with respect to such Mortgage Loan, any related B Note and
Serviced Companion Mortgage Loan, whichever is less, but, in any event, in an
amount sufficient to avoid the application of any co-insurance clause and (B)
any other insurance coverage for such REO Property which the related Mortgagor
was required to maintain for the related Mortgaged Property under the related
Mortgage, subject, as to earthquake insurance, to the second sentence following
this sentence. If the improvements to the Mortgaged Property are in an area
identified in the Federal Register by the Federal Emergency Management Agency as
having special flood hazards (and flood insurance has been made available), the
Special Servicer shall maintain a flood insurance policy meeting the
requirements of the current guidelines of the Federal Insurance Administration
in an amount representing coverage equal to the lesser of the then outstanding
Principal Balance of the Specially Serviced Mortgage Loan and unpaid Advances
(plus Advance Interest) and the maximum insurance coverage required under such
current guidelines. It is understood and agreed that the Special Servicer has no
obligation to obtain earthquake or other additional insurance on REO Property,
except as required by law or, with respect to insurance other than earthquake
insurance, as set forth in clause (B) of the first sentence of this Section
9.9(a) and, nevertheless, at its sole option and at the Trust's expense, it (if
required at origination and is available at commercially reasonable rates) may
obtain such earthquake insurance. The Special Servicer shall use its reasonable
efforts, consistent with the Servicing Standard, to obtain a comprehensive
general liability insurance policy for all REO Properties. The Special Servicer
shall, to the extent
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available at commercially reasonable rates (as determined by the Special
Servicer in accordance with the Servicing Standard) and to the extent consistent
with the Servicing Standard, use its reasonable efforts to maintain a Rent Loss
Policy covering revenues for a period of at least twelve months and a
comprehensive general liability policy with coverage comparable to prudent
lending requirements in an amount not less than $1 million per occurrence. All
applicable policies required to be maintained by the Special Servicer pursuant
to this Section 9.9(a) shall name the Trustee as loss payee and be endorsed with
a standard mortgagee clause. The costs of such insurance shall be a Servicing
Advance, subject to the provisions of Section 4.4 hereof.
(b) Any amounts collected by the Special Servicer under any insurance
policies maintained pursuant to this Section 9.9 (other than amounts to be
applied to the restoration or repair of the REO Property) shall be deposited
into the applicable REO Account. Any cost incurred in maintaining the insurance
required hereby for any REO Property shall be a Servicing Advance, subject to
the provisions of Section 4.4 hereof.
(c) Notwithstanding the above, the Special Servicer shall not be
required in any event to maintain or obtain insurance coverage beyond what is
reasonably available at a cost customarily acceptable and consistent with the
Servicing Standard; provided that, the Special Servicer will be required to
maintain insurance against property damages resulting from terrorism or similar
acts if the terms of the related Mortgage Loan documents so require unless the
Special Servicer determines that (i) such insurance is not available at any rate
or (ii) such insurance is not available at commercially reasonable rates and
such hazards are not at the time commonly insured against for properties similar
to the related Mortgaged Property and located in or around the region in which
such related Mortgaged Property is located. The Special Servicer shall notify
the Trustee of any such determination.
(d) The Special Servicer shall conclusively be deemed to have
satisfied its obligations as set forth in this Section 9.9 either (i) if the
Special Servicer shall have obtained and maintained a master force placed or
blanket insurance policy insuring against hazard losses on all of the applicable
Mortgage Loans, any Serviced Companion Mortgage Loan and any B Note serviced by
it, it being understood and agreed that such policy may contain a deductible
clause on terms substantially equivalent to those commercially available and
maintained by comparable servicers consistent with the Servicing Standard, and
provided that such policy is issued by a Qualified Insurer with a minimum claims
paying ability rating of at least "A" by Fitch and "A2" by Xxxxx'x or otherwise
approved by the Rating Agencies or (ii) if the Special Servicer, provided that
the rating of such Person's long-term debt is not less than "A" by Fitch and
"A2" by Xxxxx'x, self-insures for its obligations as set forth in the first
paragraph of this Section 9.9. In the event that the Special Servicer shall
cause any Mortgage Loan, Serviced Companion Mortgage Loan and B Note to be
covered by such a master force placed or blanket insurance policy, the
incremental cost of such insurance allocable to such Mortgage Loan, Serviced
Companion Mortgage Loan and B Note (i.e., other than any minimum or standby
premium payable for such policy whether or not any Mortgage Loan is then covered
thereby), if not borne by the related Mortgagor, shall be paid by the Special
Servicer as a Servicing Advance, subject to the provisions of Section 4.4
hereof. If such policy contains a deductible clause, the Special Servicer shall,
if there shall not have been maintained on the related Mortgaged Property a
policy complying with this Section 9.9 and there shall have been a loss that
would have been covered by such policy, deposit in the Certificate Account the
amount not otherwise payable
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under such master force placed or blanket insurance policy because of such
deductible clause to the extent that such deductible exceeds (i) the deductible
under the related Mortgage Loan, A/B Mortgage Loan or Serviced Companion
Mortgage Loan or (ii) if there is no deductible limitation required under the
Mortgage Loan, A/B Mortgage Loan or Serviced Companion Mortgage Loan, the
deductible amount with respect to insurance policies generally available on
properties similar to the related Mortgaged Property which is consistent with
the Servicing Standard, and deliver to the Trustee an Officer's Certificate
describing the calculation of such amount. In connection with its activities as
administrator and servicer of the Mortgage Loans, any Serviced Companion
Mortgage Loan and any B Note, the Special Servicer agrees to present, on its
behalf and on behalf of the Trustee, claims under any such master force placed
or blanket insurance policy.
SECTION 9.10 PRESENTMENT OF CLAIMS AND COLLECTION OF PROCEEDS. The
Special Servicer will prepare and present or cause to be prepared and presented
on behalf of the Trustee all claims under the Insurance Policies with respect to
REO Property, and take such actions (including the negotiation, settlement,
compromise or enforcement of the insured's claim) as shall be necessary to
recover under such policies. Any proceeds disbursed to the Special Servicer in
respect of such policies shall be promptly remitted to the Certificate Account,
upon receipt, except for any amounts realized that are to be applied to the
repair or restoration of the applicable REO Property in accordance with the
Servicing Standard. Any extraordinary expenses (but not ordinary and routine or
anticipated expenses) incurred by the Special Servicer in fulfilling its
obligations under this Section 9.10 shall be paid by the Trust.
SECTION 9.11 COMPENSATION TO THE SPECIAL SERVICER.
(a) As compensation for its activities hereunder, the Special Servicer
shall be entitled to (i) the Special Servicing Fee, (ii) the Liquidation Fee and
(iii) the Work-Out Fee. Such amounts, if any, collected by the Special Servicer
from the related Mortgagor shall be transferred by the Special Servicer to the
Master Servicer within one Business Day of receipt thereof, and deposited by the
Master Servicer in the Certificate Account. The Special Servicer shall be
entitled to receive a Liquidation Fee from the Liquidation Proceeds received in
connection with a Specially Serviced Mortgage Loan or REO Property. With respect
to each REO Mortgage Loan that is a successor to a Mortgage Loan secured by two
or more Mortgaged Properties, the reference to "REO Property" in the preceding
sentence shall be construed on a property-by-property basis to refer separately
to the acquired real property that is a successor to each of such Mortgaged
Properties, thereby entitling the Special Servicer to a Liquidation Fee from the
Liquidation Proceeds received in connection with a final disposition of, and
Condemnation Proceeds received in connection with, each such acquired property
as the Liquidation Proceeds related to that property are received. The Special
Servicer shall also be entitled to additional special servicing compensation of
an amount equal to the excess, if any, of the aggregate Prepayment Interest
Excess relating to Mortgage Loans which are Specially Serviced Mortgage Loans
which have received voluntary Principal Prepayments not from Liquidation
Proceeds or from modifications of Specially Serviced Mortgage Loans for each
Distribution Date over the aggregate Prepayment Interest Shortfalls for such
Mortgage Loans for such Distribution Date. If the Special Servicer resigns or is
terminated for any reason, it shall retain the right to receive any Work-Out
Fees payable on Mortgage Loans that became Rehabilitated Mortgage Loans while it
acted as Special Servicer and remained Rehabilitated Mortgage Loans at the time
of such resignation or termination for so long as such Mortgage
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Loan remains a Rehabilitated Mortgage Loan. No servicing compensation of any
nature will be allocated to any of the PCF B Notes, or payable by the holder of
the related PCF B Note, except for Work-Out Fees, Liquidation Fees (to the
extent set forth in the related Intercreditor Agreement) and other Special
Servicer Compensation payable during the period in which the related PCF A/B
Mortgage Loan is a Specially Serviced Mortgage Loan or, with respect to Work-Out
Fees, a Rehabilitated Mortgage Loan.
(b) The Special Servicer shall be entitled to cause the Master
Servicer to withdraw (i) from the Certificate Account, the Special Servicer
Compensation in respect of each Mortgage Loan (but not a B Note), (ii) from any
Serviced Companion Mortgage Loan Custodial Account, the Special Servicer
Compensation to the extent related solely to the related Serviced Companion
Mortgage Loan and (iii) from any A/B Loan Custodial Account, the Special
Servicer Compensation to the extent related solely to the related B Note, in the
time and manner set forth in Section 5.2 of this Agreement. The Special Servicer
shall be required to pay all expenses incurred by it in connection with its
servicing activities hereunder and shall not be entitled to reimbursement
therefor except as expressly provided in this Agreement.
(c) Additional Special Servicer Compensation in the form of net
interest or income on any REO Account, assumption fees, extension fees,
servicing fees, Modification Fees, forbearance fees, Late Fees and default
interest (net of amounts used to pay Advance Interest) or other usual and
customary charges and fees actually received from the Mortgagor in connection
with any Specially Serviced Mortgage Loan shall be retained by the Special
Servicer, to the extent not required to be deposited in the Certificate Account
pursuant to the terms of this Agreement (other than any such fees payable in
connection with any Non-Serviced Mortgage Loan). The Special Servicer shall also
be permitted to receive 50% of all assumption fees collected with respect to
Mortgage Loans that are not Specially Serviced Mortgage Loans as provided in
Section 8.7(a) and 8.7(b) and 100% of all assumption fees collected with respect
to Mortgage Loans that are Specially Serviced Mortgage Loans as provided in
Section 9.5(a) (other than any such fees payable in connection with any
Non-Serviced Mortgage Loan). To the extent any component of Special Servicer
Compensation is in respect of amounts usually and customarily paid by
Mortgagors, the Special Servicer shall use reasonable good faith efforts to
collect such amounts from the related Mortgagor, and to the extent so collected,
in full or in part, the Special Servicer shall not be entitled to compensation
for the portion so collected therefor hereunder out of the Trust.
SECTION 9.12 REALIZATION UPON DEFAULTED MORTGAGE LOANS.
(a) The Special Servicer, in accordance with the Servicing Standard
and subject to Section 9.4(a) and Section 9.36, shall use its reasonable efforts
to foreclose upon, repossess or otherwise comparably convert the ownership of
Mortgaged Properties securing such of the Specially Serviced Mortgage Loans as
come into and continue in default and as to which no satisfactory arrangements
can be made for collection of delinquent payments of such Mortgage Loan, the
sale of such Mortgage Loan in accordance with this Agreement or the modification
of such Mortgage Loan in accordance with this Agreement. In connection with such
foreclosure or other conversion of ownership, the Special Servicer shall follow
the Servicing Standard. The foregoing is subject to the proviso that the Special
Servicer shall not request that the Master Servicer make a Servicing Advance for
Liquidation Expenses that would
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be a Nonrecoverable Advance unless the Special Servicer determines that such
Servicing Advance is in the best interest of the Certificateholders (and in the
case of any A/B Mortgage Loan, the holder of the related B Note and the Trust as
a collective whole and in the case of any Loan Pair, the holder of the related
Serviced Companion Mortgage Loan and the Trust as a collective whole).
(b) The Special Servicer shall not acquire any personal property
relating to any Specially Serviced Mortgage Loan pursuant hereto unless either:
(i) such personal property is incidental to real property (within
the meaning of Section 856(e)(1) of the Code) so acquired by the Special
Servicer; or
(ii) the Special Servicer shall have received a
Nondisqualification Opinion (the cost of which shall be reimbursed by the Trust)
to the effect that the holding of such personal property by any REMIC Pool will
not cause the imposition of a tax on any REMIC Pool under the Code or cause any
REMIC Pool to fail to qualify as a REMIC.
(c) Notwithstanding anything to the contrary in this Agreement, the
Special Servicer shall not, on behalf of the Trust, obtain title to a Mortgaged
Property as a result of or in lieu of foreclosure or otherwise, and shall not
otherwise acquire possession of, or take any other action with respect to, any
Mortgaged Property, if, as a result of any such action the Trust, or any trust
that holds a Serviced Companion Mortgage Loan would be considered to hold title
to, to be a "mortgagee-in-possession" of, or to be an "owner" or "operator" of
such Mortgaged Property within the meaning of CERCLA, or any applicable
comparable federal, state or local law, or a "discharger" or "responsible party"
thereunder, unless the Special Servicer has also previously determined in
accordance with the Servicing Standard, based on a Phase I Environmental Report
prepared by a Person (who may be an employee or affiliate of the Master Servicer
or the Special Servicer) who regularly conducts environmental site assessments
in accordance with the standards of FNMA in the case of multi-family mortgage
loans and customary servicing practices in the case of commercial loans for
environmental assessments, which report shall be delivered to the Trustee, that:
(i) such Mortgaged Property is in compliance with applicable
Environmental Laws or, if not, after consultation with an environmental expert
that taking such actions as are necessary to bring the Mortgaged Property in
compliance therewith is reasonably likely to produce a greater recovery on a net
present value basis than not taking such actions;
(ii) taking such actions as are necessary to bring the Mortgaged
Property in compliance with applicable Environmental Laws is reasonably likely
to produce a greater recovery on a net present value basis than pursuing a claim
under the Environmental Insurance Policy; and
(iii) there are no circumstances or conditions present or
threatened at such Mortgaged Property relating to the use, management, disposal
or release of any hazardous substances, hazardous materials, hazardous wastes,
or petroleum-based materials for which investigation, testing, monitoring,
removal, clean-up or remediation could be required under any federal, state or
local law or regulation, or that, if any such materials are present for which
such action could be required, after consultation with an environmental expert
taking such actions
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with respect to the affected Mortgaged Property is reasonably likely to produce
a greater recovery on a net present value basis than not taking such actions
(after taking into account the projected costs of such actions); provided,
however, that such compliance pursuant to clause (i) and (ii) above or the
taking of such action pursuant to this clause (iii) shall only be required to
the extent that the cost thereof is a Servicing Advance of the Master Servicer
or the Special Servicer pursuant to this Agreement, subject to the provisions of
Section 4.4 hereof.
(d) The cost of the Phase I Environmental Report contemplated by
Section 9.12(c) may be treated as a Liquidation Expense, or in the event the
related Specially Serviced Mortgage Loan is not liquidated and a Final Recovery
Determination has been made with respect to such Specially Serviced Mortgage
Loan, the Master Servicer shall treat such cost as a Servicing Advance subject
to the provisions of Section 4.4 hereof; provided that, in the latter event, the
Special Servicer shall use its good faith reasonable business efforts to recover
such cost from the Mortgagor in connection with the curing of the default under
the Specially Serviced Mortgage Loan.
(e) If the Special Servicer determines, pursuant to Section 9.12(c),
that taking such actions as are necessary to bring any Mortgaged Property into
compliance with applicable Environmental Laws, or taking such actions with
respect to the containment, removal, clean-up or remediation of hazardous
substances, hazardous materials, hazardous wastes, or petroleum-based materials
affecting any such Mortgaged Property, is not reasonably likely to produce a
greater recovery on a net present value basis than not taking such actions
(after taking into account the projected costs of such actions) or than not
pursuing a claim under the Environmental Insurance Policy, then the Special
Servicer shall take such action as it deems to be in the best economic interest
of the Trust (and the holder of the related B Note if in connection with an A/B
Mortgage Loan and the holder of the related Serviced Companion Mortgage Loan if
in connection with a Loan Pair, taken as a collective whole), including, without
limitation, releasing the lien of the related Mortgage. If the Special Servicer
determines that a material possibility exists that Liquidation Expenses with
respect to Mortgaged Property (taking into account the cost of bringing it into
compliance with applicable Environmental Laws) would exceed the Principal
Balance of the related Mortgage Loan, the Special Servicer shall not attempt to
bring such Mortgaged Property into compliance and shall not acquire title to
such Mortgaged Property unless it has received the written consent of the
Trustee to such action.
(f) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standard, the advisability of maintaining any
action with respect to any Specially Serviced Mortgage Loan, including, without
limitation, any action to obtain a deficiency judgment with respect to any
Specially Serviced Mortgage Loan.
SECTION 9.13 FORECLOSURE. In the event that the Trust obtains, through
foreclosure on a Mortgage or otherwise, the right to receive title to a
Mortgaged Property, the Special Servicer, as its agent, shall direct the
appropriate party to deliver title to the REO Property to the Trustee or its
nominee.
The Special Servicer may consult with counsel to determine when an
Acquisition Date shall be deemed to occur under the REMIC Provisions with
respect to the Mortgaged Property, the expense of such consultation being
treated as a Servicing Advance related to the
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foreclosure, subject to the provisions of Section 4.4 hereof. The Special
Servicer, on behalf of the Trust (and the holder of the related B Note if in
connection with an A/B Mortgage Loan and the holder of the related Serviced
Companion Mortgage Loan if in connection with a Loan Pair), shall sell the REO
Property expeditiously, but in any event within the time period, and subject to
the conditions, set forth in Section 9.15. Subject to Section 9.15, the Special
Servicer shall manage, conserve, protect and operate the REO Property for the
holders of beneficial interests in the Trust (and the holder of the related B
Note if in connection with an A/B Mortgage Loan and the holder of the related
Serviced Companion Mortgage Loan if in connection with a Loan Pair) solely for
the purpose of its prompt disposition and sale.
SECTION 9.14 OPERATION OF REO PROPERTY
(a) The Special Servicer shall segregate and hold all funds collected
and received in connection with the operation of each REO Property separate and
apart from its own funds and general assets and shall establish and maintain
with respect to each REO Property one or more accounts held in trust for the
benefit of the Certificateholders (and the holder of the related B Note if in
connection with an A/B Mortgage Loan and the holder of the related Serviced
Companion Mortgage Loan if in connection with a Loan Pair) in the name of
"LaSalle Bank National Association, as Trustee for the Holders of Bear Xxxxxxx
Commercial Mortgage Securities Inc. Commercial Mortgage Pass-Through
Certificates Series 2005-TOP20, the holder of any Serviced Companion Mortgage
Loan and the holder of any B Note as their interests may appear [name of
Property Account]" (each, an "REO Account"), which shall be an Eligible Account.
Amounts in any REO Account shall be invested in Eligible Investments. The
Special Servicer shall deposit all funds received with respect to an REO
Property in the applicable REO Account within two days of receipt. The Special
Servicer shall account separately for funds received or expended with respect to
each REO Property. All funds in each REO Account may be invested only in
Eligible Investments. The Special Servicer shall notify the Trustee and the
Master Servicer in writing of the location and account number of each REO
Account and shall notify the Trustee prior to any subsequent change thereof.
(b) On or before each Special Servicer Remittance Date, the Special
Servicer shall withdraw from each REO Account and deposit in the Certificate
Account, the REO Income received or collected during the Collection Period
immediately preceding such Special Servicer Remittance Date on or with respect
to the related REO Properties and reinvestment income thereon; provided,
however, that (i) the Special Servicer may retain in such REO Account such
portion of such proceeds and collections as may be necessary to maintain in the
REO Account sufficient funds for the proper operation, management and
maintenance of the related REO Property, including, without limitation, the
creation of reasonable reserves for repairs, replacements, and necessary capital
improvements and other related expenses. The Special Servicer shall notify the
Master Servicer of all such deposits (and the REO Properties to which the
deposits relate) made into the Certificate Account and (ii) the Special Servicer
shall be entitled to withdraw from the REO Account and pay itself as additional
Special Servicing Compensation any interest or net reinvestment income earned on
funds deposited in the REO Account. The amount of any losses incurred in respect
of any such investments shall be for the account of the Special Servicer which
shall deposit the amount of such loss (to the extent not offset by income from
other investments) in the REO Account, out of its own funds immediately as
realized. If the Special Servicer deposits in any REO Account any amount not
required to be
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deposited therein, it may at any time withdraw such amount from the REO Account,
any provision herein to the contrary notwithstanding.
(c) If the Trust acquires the Mortgaged Property, the Special Servicer
shall have full power and authority, in consultation with the Operating Adviser
(and with respect to the Lakeforest Mall Mortgage Loan, the Lakeforest Mall
Mortgage Loan Operating Adviser), and subject to the specific requirements and
prohibitions of this Agreement and any applicable consultation rights of the
holder of the related B Note relating to an A/B Mortgage Loan, to do any and all
things in connection therewith as are consistent with the Servicing Standard,
subject to the REMIC Provisions, and in such manner as the Special Servicer
deems to be in the best interest of the Trust (and in the case of any A/B
Mortgage Loan, the holder of the related B Note and the Trust as a collective
whole and in the case of any Loan Pair, the holder of the related Serviced
Companion Mortgage Loan and the Trust as a collective whole), and, consistent
therewith, may advance from its own funds to pay for the following items (which
amounts shall be reimbursed by the Master Servicer or the Trust subject to
Sections 4.4 in accordance with Section 4.6(e)), to the extent such amounts
cannot be paid from REO Income:
(i) all insurance premiums due and payable in respect of such REO
Property;
(ii) all real estate taxes and assessments in respect of such REO
Property that could result or have resulted in the imposition of a lien thereon;
and
(iii) all costs and expenses necessary to maintain, operate,
lease and sell such REO Property (other than capital expenditures).
(d) The Special Servicer may, and to the extent necessary to (i)
preserve the status of the REO Property as "foreclosure property" under the
REMIC Provisions or (ii) avoid the imposition of a tax on "income from
nonpermitted assets" within the meaning of the REMIC Provisions, shall contract
with any Independent Contractor for the operation and management of the REO
Property, provided that:
(i) the terms and conditions of any such contract shall not be
inconsistent herewith;
(ii) the terms of such contract shall be consistent with the
provisions of Section 856 of the Code and Treasury Regulation Section
1.856-4(b)(5);
(iii) only to the extent consistent with (ii) above, any such
contract shall require, or shall be administered to require, that the
Independent Contractor (A) pay all costs and expenses incurred in connection
with the operation and management of such Mortgaged Property underlying the REO
Property and (B) deposit on a daily basis all amounts payable to the Trust in
accordance with the contract between the Trust and the Independent Contractor in
an Eligible Account;
(iv) none of the provisions of this Section 9.14 relating to any
such contract or to actions taken through any such Independent Contractor shall
be deemed to relieve
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the Special Servicer of any of its duties and obligations to the Trustee with
respect to the operation and management of any such REO Property;
(v) if the Independent Contractor is an Affiliate of the Special
Servicer, the consent of the Operating Adviser and a Nondisqualification Opinion
must be obtained; and
(vi) the Special Servicer shall be obligated with respect thereto
to the same extent as if it alone were performing all duties and obligations in
connection with the operation and management of such REO Property.
The Special Servicer shall be entitled to enter into any agreement
with any Independent Contractor performing services for the Trust (and, if
applicable, the holder of a B Note or a Serviced Companion Mortgage Loan)
pursuant to this subsection (d) for indemnification of the Special Servicer by
such Independent Contractor, and nothing in this Agreement shall be deemed to
limit or modify such indemnification. All fees of the Independent Contractor
(other than fees paid for performing services within the ordinary duties of a
Special Servicer which shall be paid by the Special Servicer) shall be paid from
the income derived from the REO Property. To the extent that the income from the
REO Property is insufficient, such fees shall be advanced by the Master Servicer
or the Special Servicer as a Servicing Advance, subject to the provisions of
Section 4.4 and Section 4.6(e) hereof.
(e) Notwithstanding any other provision of this Agreement, the Special
Servicer shall not rent, lease, or otherwise earn income on behalf of the Trust
or the beneficial owners thereof with respect to REO Property which might cause
the REO Property to fail to qualify as "foreclosure property" within the meaning
of Section 860G(a)(8) of the Code (without giving effect to the final sentence
thereof) or result in the receipt by any REMIC of any "income from nonpermitted
assets" within the meaning of Section 860F(a)(2) of the Code or any "net income
from foreclosure property" which is subject to tax under the REMIC Provisions
unless (i) the Trustee and the Special Servicer have received an Opinion of
Counsel (at the Trust's sole expense) to the effect that, under the REMIC
Provisions and any relevant proposed legislation, any income generated for REMIC
I by the REO Property would not result in the imposition of a tax upon REMIC I
or (ii) in accordance with the Servicing Standard, the Special Servicer
determines the income or earnings with respect to such REO Property will offset
any tax under the REMIC Provisions relating to such income or earnings and will
maximize the net recovery from the REO Property to the Certificateholders. The
Special Servicer shall notify the Trustee, the Paying Agent and the Master
Servicer of any election by it to incur such tax, and the Special Servicer (i)
shall hold in escrow in an Eligible Account an amount equal to the tax payable
thereby from revenues collected from the related REO Property, (ii) provide the
Paying Agent with all information for the Paying Agent to file the necessary tax
returns in connection therewith and (iii) upon request from the Paying Agent,
pay from such account to the Paying Agent the amount of the applicable tax. The
Paying Agent shall file the applicable tax returns based on the information
supplied by the Special Servicer and pay the applicable tax from the amounts
collected by the Special Servicer.
Subject to, and without limiting the generality of the foregoing, the
Special Servicer, on behalf of the Trust, shall not:
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(i) permit the Trust to enter into, renew or extend any New Lease
with respect to the REO Property, if the New Lease by its terms will give rise
to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New
Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on the REO Property,
other than the completion of a building or other improvement thereon, and then
only if more than ten percent of the construction of such building or other
improvement was completed before default on the Mortgage Loan became imminent,
all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, other than through an Independent
Contractor, or allow any other Person to Directly Operate, other than through an
Independent Contractor, the REO Property on any date more than 90 days after the
Acquisition Date; unless, in any such case, the Special Servicer has requested
and received an Opinion of Counsel at the Trust's sole expense to the effect
that such action will not cause such REO Property to fail to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) of the Code
(without giving effect to the final sentence thereof) at any time that it is
held by the applicable REMIC Pool, in which case the Special Servicer may take
such actions as are specified in such Opinion of Counsel.
(f) Notwithstanding any other provision of this Agreement, the Special
Servicer shall not have any obligations with respect to an REO Property that
relates to a Mortgaged Property that secures a Non-Serviced Mortgage Loan and
all references to the Special Servicer's obligations in this Agreement with
respect to "REO Property" shall exclude any such Mortgaged Property that secures
a Non-Serviced Mortgage Loan.
SECTION 9.15 SALE OF REO PROPERTY.
(a) In the event that title to any REO Property is acquired by the
Trust in respect of any Specially Serviced Mortgage Loan, the deed or
certificate of sale shall be issued to the Trust, the Trustee or to its
nominees. The Special Servicer, after notice to the Operating Adviser (and with
respect to the Lakeforest Mall Mortgage Loan, the Lakeforest Mall Mortgage Loan
Operating Adviser), shall use its reasonable best efforts to sell any REO
Property as soon as practicable consistent with the objective of maximizing
proceeds for all Certificateholders (and with respect to a Serviced Companion
Mortgage Loan or a B Note, for the holders of such loans, as a collective
whole), but in no event later than the end of the third calendar year following
the end of the year of its acquisition, and in any event prior to the Rated
Final Distribution Date or earlier to the extent necessary to comply with REMIC
provisions, unless (i) the Trustee, on behalf of the applicable REMIC Pool, has
been granted an extension of time (an "Extension") (which extension shall be
applied for at least 60 days prior to the expiration of the period specified
above) by the Internal Revenue Service to sell such REO Property (a copy of
which shall be delivered to the Paying Agent upon request), in which case the
Special Servicer shall continue to attempt to sell the REO Property for its fair
market value for such period longer than the period specified above as such
Extension permits or (ii) the Special Servicer seeks and
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subsequently receives, at the expense of the Trust, a Nondisqualification
Opinion, addressed to the Trustee and the Special Servicer, to the effect that
the holding by the Trust of such REO Property subsequent to the period specified
above after its acquisition will not result in the imposition of taxes on
"prohibited transactions" of a REMIC, as defined in Section 860F(a)(2) of the
Code, or cause any REMIC Pool to fail to qualify as a REMIC at any time that any
Certificates are outstanding. If the Trustee has not received an Extension or
such Opinion of Counsel and the Special Servicer is not able to sell such REO
Property within the period specified above, or if an Extension has been granted
and the Special Servicer is unable to sell such REO Property within the extended
time period, the Special Servicer shall, after consultation with the Operating
Adviser (and with respect to the Lakeforest Mall Mortgage Loan, the Lakeforest
Mall Mortgage Loan Operating Adviser), before the end of such period or extended
period, as the case may be, auction the REO Property to the highest bidder
(which may be the Special Servicer) in accordance with the Servicing Standard;
provided, however, that no Interested Person shall be permitted to purchase the
REO Property at a price less than the Purchase Price (other than the Special
Servicer or an affiliated entity in accordance with the next succeeding
proviso); and provided, further that if the Special Servicer or an affiliated
entity intends to bid on or otherwise purchase any REO Property, (i) the Special
Servicer shall notify the Trustee of such intent, (ii) the Trustee shall
promptly obtain, at the expense of the Trust an Appraisal of such REO Property
(or internal valuation in accordance with the procedures specified in Section
6.9) and (iii) the Special Servicer shall not bid less than the fair market
value set forth in such Appraisal. Neither any Seller nor the Depositor may
purchase REO Property at a price in excess of the fair market value thereof.
(b) Within 30 days of the sale of the REO Property, the Special
Servicer shall provide to the Trustee, the Paying Agent and the Master Servicer
(and the holder of the related B Note, if any, if in connection with an A/B
Mortgage Loan and the holder of the related Serviced Companion Mortgage Loan, if
in connection with a Loan Pair) a statement of accounting for such REO Property,
including without limitation, (i) the Acquisition Date for the REO Property,
(ii) the date of disposition of the REO Property, (iii) the sale price and
related selling and other expenses, (iv) accrued interest (including interest
deemed to have accrued) on the Specially Serviced Mortgage Loan to which the REO
Property related, calculated from the Acquisition Date to the disposition date,
(v) final property operating statements, and (vi) such other information as the
Trustee or the Paying Agent (and the holder of the related B Note, if any, if in
connection with an A/B Mortgage Loan and the holder of the related Serviced
Companion Mortgage Loan, if in connection with a Loan Pair) may reasonably
request in writing.
(c) The Liquidation Proceeds from the final disposition of the REO
Property shall be deposited in the Certificate Account within one Business Day
of receipt.
(d) Notwithstanding any other provision of this Agreement, the Special
Servicer shall not have any obligations with respect to an REO Property that
relates to a Mortgaged Property that secures a Non-Serviced Mortgage Loan and
all references to the Special Servicer's obligations in this Agreement with
respect to "REO Property" shall exclude any such Mortgaged Property that secures
a Non-Serviced Mortgage Loan.
SECTION 9.16 REALIZATION ON COLLATERAL SECURITY. In connection with
the enforcement of the rights of the Trust to any property securing any
Specially Serviced Mortgage
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Loan other than the related Mortgaged Property, the Special Servicer shall
consult with counsel to determine how best to enforce such rights in a manner
consistent with the REMIC Provisions and shall not, based on a
Nondisqualification Opinion addressed to the Special Servicer and the Trustee
(the cost of which shall be an expense of the Trust) take any action that could
result in the failure of any REMIC Pool to qualify as a REMIC while any
Certificates are outstanding, unless such action has been approved by a vote of
100% of each Class of Certificateholders (including the Class R-I, Class R-II
and Class R-III Certificateholders).
SECTION 9.17 RESERVED
SECTION 9.18 ANNUAL OFFICER'S CERTIFICATE AS TO COMPLIANCE. The
Special Servicer shall deliver to the Paying Agent and the Master Servicer on or
before noon (Eastern Time) on March 15 of each calendar year (or March 14 if a
leap year), commencing in March 2006, an Officer's Certificate stating, as to
the signer thereof, that (A) a review of the activities of the Special Servicer
during the preceding calendar year or portion thereof and of the performance of
the Special Servicer under this Agreement has been made under such officer's
supervision and (B) to the best of such officer's knowledge, based on such
review, the Special Servicer has fulfilled all its obligations under this
Agreement in all material respects throughout such year, or, if there has been a
default in the fulfillment of any such obligation, specifying each such default
known to such officer and the nature and status thereof. The Special Servicer
shall deliver such Officer's Certificate to the Depositor and the Trustee by
April 7 of each calendar year. The Special Servicer shall forward a copy of each
such statement to the Rating Agencies. The Paying Agent shall forward a copy of
each such statement to the Luxembourg Paying Agent. Promptly after receipt of
such Officer's Certificate, the Depositor shall review the Officer's Certificate
and, if applicable, consult with the Special Servicer as to the nature of any
defaults by the Special Servicer in the fulfillment of any of the Special
Servicer's obligations hereunder.
SECTION 9.19 ANNUAL INDEPENDENT ACCOUNTANTS' SERVICING REPORT. On or
before noon (Eastern Time) on March 15 of each calendar year (or March 14 if a
leap year), beginning with March 2006, the Special Servicer at its expense shall
cause a nationally recognized firm of Independent public accountants (who may
also render other services to the Special Servicer, as applicable) to furnish to
the Paying Agent and the Master Servicer (in electronic format) a statement to
the effect that (a) such firm has examined certain documents and records
relating to the servicing of the Mortgage Loans under this Agreement or the
servicing of mortgage loans similar to the Mortgage Loans under substantially
similar agreements for the preceding calendar year and (b) the assertion by
management of the Special Servicer, that it maintained an effective internal
control system over the servicing of such mortgage loans is fairly stated in all
material respects, based upon established criteria, which statement meets the
standards applicable to accountant's reports intended for general distribution;
provided that each of the Master Servicer and the Special Servicer shall not be
required to cause the delivery of such statement until April 15 in any given
year so long as it has received written confirmation from the Depositor that a
Report on Form 10-K is not required to be filed in respect of the Trust Fund for
the preceding calendar year. The Special Servicer shall deliver such statement
to the Depositor, each Rating Agency, the Trustee, and, upon request, the
Operating Adviser by April 7 of each calendar year (or by April 30 of each
calendar year if the statement is not required to be delivered until April 15).
The Paying Agent shall promptly deliver such statement to the Luxembourg Paying
Agent. Promptly after receipt of such report,
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the Depositor shall review the report and, if applicable, consult with the
Special Servicer as to the nature of any defaults by the Special Servicer in the
fulfillment of any of the Special Servicer's obligations hereunder.
SECTION 9.20 MERGER OR CONSOLIDATION. Any Person into which the
Special Servicer may be merged or consolidated, or any Person resulting from any
merger, conversion, other change in form or consolidation to which the Special
Servicer shall be a party, or any Person succeeding to the business of the
Special Servicer, shall be the successor of the Special Servicer hereunder,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto; provided, however, that each of the Rating Agencies
provides a Rating Agency Confirmation (including with respect to any securities
rated by a Rating Agency evidencing interests in any Serviced Companion Mortgage
Loan or B Note). If the conditions to the proviso in the foregoing sentence are
not met, the Trustee may terminate the Special Servicer's servicing of the
Specially Serviced Mortgage Loans pursuant hereto, such termination to be
effected in the manner set forth in Section 9.31.
SECTION 9.21 RESIGNATION OF SPECIAL SERVICER.
(a) Except as otherwise provided in this Section 9.21, the Special
Servicer shall not resign from the obligations and duties hereby imposed on it
unless it determines that the Special Servicer's duties hereunder are no longer
permissible under applicable law or are in material conflict by reason of
applicable law with any other activities carried on by it. Any such
determination permitting the resignation of the Special Servicer shall be
evidenced by an Opinion of Counsel to such effect delivered to the Master
Servicer, the Operating Adviser and the Trustee. No such resignation shall
become effective until a successor servicer designated by the Operating Adviser
and the Trustee shall have (i) satisfied the requirements that would apply
pursuant to Section 9.20 hereof if a merger of the Special Servicer had
occurred, (ii) assumed the Special Servicer's responsibilities and obligations
under this Agreement and (iii) Rating Agency Confirmation (including with
respect to any securities rated by a Rating Agency evidencing interests in any
Serviced Companion Mortgage Loan or B Note) shall have been obtained. Notice of
such resignation shall be given promptly by the Special Servicer to the Master
Servicer and the Trustee.
(b) The Special Servicer may resign from the obligations and duties
hereby imposed on it, upon reasonable notice to the Trustee, provided that (i) a
successor Special Servicer is (x) available, (y) reasonably acceptable to the
Operating Adviser, the Depositor, and the Trustee, and (z) willing to assume the
obligations, responsibilities and covenants to be performed hereunder by the
Special Servicer on substantially the same terms and conditions, and for not
more than equivalent compensation as that herein provided, (ii) the successor
Special Servicer has assets of at least $15,000,000 and (iii) Rating Agency
Confirmation is obtained with respect to such resignation, as evidenced by a
letter from each Rating Agency delivered to the Trustee. Any costs of such
resignation and of obtaining a replacement Special Servicer shall be borne by
the Special Servicer and shall not be an expense of the Trust.
(c) No such resignation under paragraph (b) above shall become
effective unless and until such successor Special Servicer enters into a
servicing agreement with the
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Trustee assuming the obligations and responsibilities of the Special Servicer
hereunder in form and substance reasonably satisfactory to the Trustee.
(d) Upon any resignation of the Special Servicer, it shall retain the
right to receive any and all Work-Out Fees payable in respect of Mortgage Loans,
any Serviced Companion Mortgage Loan and any B Note that became Rehabilitated
Mortgage Loans during the period in which it acted as Special Servicer and that
were still Rehabilitated Mortgage Loans at the time of such resignation (and the
successor Special Servicer shall not be entitled to any portion of such Work-Out
Fees), in each case until such time (if any) as such Mortgage Loan, Serviced
Companion Mortgage Loan or B Note again becomes a Specially Serviced Mortgage
Loan or are no longer included in the Trust.
SECTION 9.22 ASSIGNMENT OR DELEGATION OF DUTIES BY SPECIAL SERVICER.
The Special Servicer shall have the right without the prior written consent of
the Trustee to (A) delegate or subcontract with or authorize or appoint anyone,
or delegate certain duties to other professionals such as attorneys and
appraisers, as an agent of the Special Servicer or Sub-Servicers (as provided in
Section 9.3) to perform and carry out any duties, covenants or obligations to be
performed and carried out by the Special Servicer hereunder or (B) assign and
delegate all of its duties hereunder. In the case of any such assignment and
delegation in accordance with the requirements of clause (A) of this Section,
the Special Servicer shall not be released from its obligations under this
Agreement. In the case of any such assignment and delegation in accordance with
the requirements of clause (B) of this Section, the Special Servicer shall be
released from its obligations under this Agreement, except that the Special
Servicer shall remain liable for all liabilities and obligations incurred by it
as the Special Servicer hereunder prior to the satisfaction of the following
conditions: (i) the Special Servicer gives the Depositor, the Master Servicer,
the Primary Servicer and the Trustee notice of such assignment and delegation;
(ii) such purchaser or transferee accepting such assignment and delegation
executes and delivers to the Depositor and the Trustee an agreement accepting
such assignment, which contains an assumption by such Person of the rights,
powers, duties, responsibilities, obligations and liabilities of the Special
Servicer, with like effect as if originally named as a party to this Agreement;
(iii) the purchaser or transferee has assets in excess of $15,000,000; (iv) such
assignment and delegation is the subject of a Rating Agency Confirmation; and
(v) the Depositor consents to such assignment and delegation, such consent not
be unreasonably withheld. Notwithstanding the above, the Special Servicer may
appoint Sub-Servicers in accordance with Section 9.3 hereof.
SECTION 9.23 LIMITATION ON LIABILITY OF THE SPECIAL SERVICER AND
OTHERS.
(a) Neither the Special Servicer nor any of the directors, officers,
employees or agents of the Special Servicer shall be under any liability to the
Certificateholders, the holder of any B Note, the holder of any Serviced
Companion Mortgage Loan or the Trustee for any action taken or for refraining
from the taking of any action in good faith and using reasonable business
judgment; provided that this provision shall not protect the Special Servicer or
any such person against any breach of a representation or warranty contained
herein or any liability which would otherwise be imposed by reason of willful
misfeasance, bad faith or negligence in its performance of duties hereunder or
by reason of negligent disregard of obligations and duties hereunder. The
Special Servicer and any director, officer, employee or agent of the Special
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Servicer may rely in good faith on any document of any kind prima facie properly
executed and submitted by any Person (including, without limitation, the
information and reports delivered by or at the direction of the Master Servicer
or any director, officer, employee or agent of the Master Servicer) respecting
any matters arising hereunder. The Special Servicer shall not be under any
obligation to appear in, prosecute or defend any legal action which is not
incidental to its duties to service the Specially Serviced Mortgage Loans in
accordance with this Agreement; provided that the Special Servicer may in its
sole discretion undertake any such action which it may reasonably deem necessary
or desirable in order to protect the interests of the Certificateholders, the
holder of any B Note, the holder of any Serviced Companion Mortgage Loan and the
Trustee in the Specially Serviced Mortgage Loans, or shall undertake any such
action if instructed to do so by the Trustee. In such event, all legal expenses
and costs of such action (other than those that are connected with the routine
performance by the Special Servicer of its duties hereunder) shall be expenses
and costs of the Trust, and the Special Servicer shall be entitled to be
reimbursed therefor as a Servicing Advance, together with interest thereon, as
provided by Section 5.2 hereof. Notwithstanding any term in this Agreement, the
Special Servicer shall not be relieved from liability to, or entitled to
indemnification from, the Trust for any action taken by it at the direction of
the Operating Adviser (and with respect to the Lakeforest Mall Mortgage Loan,
the Lakeforest Mall Mortgage Loan Operating Adviser) which is in conflict with
the Servicing Standard.
(b) In addition, the Special Servicer shall have no liability with
respect to, and shall be entitled to conclusively rely on as to the truth of the
statements and the correctness of the opinions expressed in any certificates or
opinions furnished to the Special Servicer and conforming to the requirements of
this Agreement. Neither the Special Servicer, nor any director, officer,
employee, agent or Affiliate, shall be personally liable for any error of
judgment made in good faith by any officer, unless it shall be proved that the
Special Servicer or such officer was negligent in ascertaining the pertinent
facts. Neither the Special Servicer, nor any director, officer, employee, agent
or Affiliate, shall be personally liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Agreement. The Special
Servicer shall be entitled to rely on reports and information supplied to it by
the Master Servicer and the related Mortgagors and shall have no duty to
investigate or confirm the accuracy of any such report or information.
(c) The Special Servicer shall not be obligated to incur any
liabilities, costs, charges, fees or other expenses which relate to or arise
from any breach of any representation, warranty or covenant made by the
Depositor, the Master Servicer, the Fiscal Agent or the Trustee in this
Agreement. The Trust shall indemnify and hold harmless the Special Servicer from
any and all claims, liabilities, costs, charges, fees or other expenses which
relate to or arise from any such breach of representation, warranty or covenant
to the extent such amounts are not recoverable from the party committing such
breach.
(d) Except as otherwise specifically provided herein:
(i) the Special Servicer may rely, and shall be protected in
acting or refraining from acting upon, any resolution, officer's certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal,
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bond or other paper or document believed or in good faith believed by it to be
genuine and to have been signed or presented by the proper party or parties;
(ii) the Special Servicer may consult with counsel, and any
written advice or Opinion of Counsel shall be full and complete authorization
and protection with respect to any action taken or suffered or omitted by it
hereunder in good faith and in accordance with such advice or Opinion of
Counsel;
(iii) the Special Servicer shall not be personally liable for any
action taken, suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion, rights or powers conferred upon it by this
Agreement; and
(iv) the Special Servicer, in preparing any reports hereunder,
may rely, and shall be protected in acting or refraining from acting upon any
information (financial or other), statement, certificate, document, agreement,
covenant, notice, request or other paper reasonably believed or in good faith
believed by it to be genuine.
(e) The Special Servicer and any director, officer, employee or agent
of the Special Servicer shall be indemnified by the Master Servicer, the
Trustee, the Paying Agent and the Fiscal Agent, as the case may be, and held
harmless against any loss, liability or expense including reasonable attorneys'
fees incurred in connection with any legal action relating to the Master
Servicer's, the Trustee's, the Paying Agent's or the Fiscal Agent's, as the case
may be, respective willful misfeasance, bad faith or negligence in the
performance of its respective duties hereunder or by reason of negligent
disregard by such Person of its respective duties hereunder, other than any
loss, liability or expense incurred by reason of willful misfeasance, bad faith
or negligence in the performance of any of the Special Servicer's duties
hereunder or by reason of negligent disregard of the Special Servicer's
obligations and duties hereunder. The Special Servicer shall promptly notify the
Master Servicer, the Trustee, the Paying Agent and the Fiscal Agent if a claim
is made by a third party entitling the Special Servicer to indemnification
hereunder, whereupon the Master Servicer, the Trustee or the Paying Agent, in
each case, to the extent the claim was made in connection with its willful
misfeasance, bad faith or negligence, shall assume the defense of any such claim
(with counsel reasonably satisfactory to the Special Servicer). Any failure to
so notify the Master Servicer, the Trustee or the Paying Agent shall not affect
any rights the Special Servicer may have to indemnification hereunder or
otherwise, unless the interest of the Master Servicer, the Trustee or the Paying
Agent is materially prejudiced thereby. The indemnification provided herein
shall survive the termination of this Agreement and the termination or
resignation of the Special Servicer. Such indemnity shall survive the
termination of this Agreement or the resignation or removal of the Special
Servicer hereunder. Any payment hereunder made by the Master Servicer, the
Trustee, the Fiscal Agent or the Paying Agent, as the case may be, pursuant to
this paragraph to the Special Servicer shall be paid from the Master Servicer's,
the Trustee's, Fiscal Agent's or the Paying Agent's, as the case may be, own
funds, without reimbursement from the Trust therefor, except achieved through
subrogation as provided in this Agreement. Any expenses incurred or
indemnification payments made by the Trustee, the Paying Agent, the Fiscal Agent
or the Master Servicer shall be reimbursed by the party so paid, if a court of
competent jurisdiction makes a final judgment that the conduct of the Trustee,
the Paying Agent, the Fiscal Agent or the Master Servicer, as the case
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may be, was (x) not culpable or (y) found to not have acted with willful
misfeasance, bad faith or negligence.
SECTION 9.24 INDEMNIFICATION; THIRD-PARTY CLAIMS.
(a) The Special Servicer and any director, officer, employee or agent
of the Special Servicer shall be indemnified and held harmless by the Trust, out
of the proceeds of the Mortgage Loans and the A/B Mortgage Loan (if and to the
extent that the matter relates to such A/B Mortgage Loan) against any and all
claims, losses, penalties, fines, forfeitures, legal fees and related costs,
judgments and any other costs, liabilities, fees and expenses incurred in
connection with any legal action relating to (i) this Agreement, and (ii) any
action taken by the Special Servicer in accordance with the instruction
delivered in writing to the Special Servicer by the Trustee or the Master
Servicer pursuant to any provision of this Agreement in each case and the
Special Servicer and each of its directors, officers, employees and agents shall
be entitled to indemnification from the Trust for any loss, liability or expense
(including attorneys' fees) incurred in connection with the provision by the
Special Servicer of any information included by the Special Servicer in the
report required to be provided by the Special Servicer pursuant to this
Agreement, other than any loss, liability or expense incurred by reason of
willful misfeasance, bad faith or negligence in the performance of duties
hereunder or by reason of negligent disregard of obligations and duties
hereunder. The Special Servicer shall assume the defense of any such claim (with
counsel reasonably satisfactory to the Special Servicer) and the Trust shall
pay, from amounts on deposit in the Certificate Account pursuant to Section 5.2,
all expenses in connection therewith, including counsel fees, and promptly pay,
discharge and satisfy any judgment or decree which may be entered against it or
them in respect of such claim. The indemnification provided herein shall survive
the termination of this Agreement and the termination or resignation of the
Special Servicer. Any expenses incurred or indemnification payments made by the
Trust shall be reimbursed by the Special Servicer, if a court of competent
jurisdiction makes a final, non-appealable judgment that the Special Servicer
was found to have acted with willful misfeasance, bad faith or negligence.
Notwithstanding the foregoing, if such loss, liability or expense relates
specifically to a particular Serviced Pari Passu Mortgage Loan (or another
Mortgage Loan included in the Trust) or a particular Serviced Companion Mortgage
Loan, then such indemnification shall be paid out of collections on, and other
proceeds of, such Serviced Pari Passu Mortgage Loan, other Mortgage Loan or
Serviced Companion Mortgage Loan, as applicable and not out of proceeds of any
related B Note. If such loss, liability or expense relates to an A/B Mortgage
Loan but does not relate to the related A Note and does not relate primarily to
the administration of the Trust or any REMIC formed hereunder or to any
determination respecting the amount, payment or avoidance of any tax under the
REMIC provisions of the Code or the actual payment of any REMIC tax or expense,
then such indemnification shall be paid first out of collections on, and other
proceeds of, the related B Note until such point as such indemnification is paid
in full or a Final Recovery Determination has been made with respect to such B
Note and only then out of collections on, and other proceeds of, the related A
Note.
(b) The Special Servicer agrees to indemnify the Trust, and the
Trustee, the Fiscal Agent, the Depositor, the Master Servicer, the Paying Agent
and any director, officer, employee or agent or Controlling Person of the
Trustee, the Fiscal Agent, the Depositor and the Master Servicer, and hold them
harmless against any and all claims, losses, penalties, fines,
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forfeitures, legal fees and related costs, judgments, and any other costs,
liabilities, fees and expenses that the Trust or the Trustee, the Fiscal Agent,
the Depositor, the Paying Agent or the Master Servicer may sustain arising from
or as a result of the willful misfeasance, bad faith or negligence in the
performance of duties hereunder or by reason of negligent disregard of
obligations and duties hereunder by the Special Servicer. The Trustee, the
Fiscal Agent, the Depositor, the Paying Agent or the Master Servicer shall
immediately notify the Special Servicer if a claim is made by a third party with
respect to this Agreement or the Specially Serviced Mortgage Loans entitling the
Trust or the Trustee, the Fiscal Agent, the Depositor, the Paying Agent or the
Master Servicer, as the case may be, to indemnification hereunder, whereupon the
Special Servicer shall assume the defense of any such claim (with counsel
reasonably satisfactory to the Trustee, the Fiscal Agent, the Depositor, the
Paying Agent or the Master Servicer, as the case may be) and pay all expenses in
connection therewith, including counsel fees, and promptly pay, discharge and
satisfy any judgment or decree which may be entered against it or them in
respect of such claim. Any failure to so notify the Special Servicer shall not
affect any rights the Trust or the Trustee, the Fiscal Agent, the Depositor, the
Paying Agent or the Master Servicer may have to indemnification under this
Agreement or otherwise, unless the Special Servicer's defense of such claim is
materially prejudiced thereby. The indemnification provided herein shall survive
the termination of this Agreement and the termination or resignation of the
Special Servicer, the Paying Agent or the Trustee or Fiscal Agent. Any expenses
incurred or indemnification payments made by the Special Servicer shall be
reimbursed by the party so paid, if a court of competent jurisdiction makes a
final, non-appealable judgment that the conduct of the Special Servicer was not
culpable or found to have acted with willful misfeasance, bad faith or
negligence.
(c) The initial Special Servicer and the Depositor expressly agree
that the only information furnished by or on behalf of the Special Servicer for
inclusion in the Preliminary Prospectus Supplement and the Final Prospectus
Supplement is the information set forth in the paragraph under the caption
"Servicing of The Mortgage Loans - The Master Servicer and Special
Servicer--Special Servicer" of the Preliminary Prospectus Supplement and Final
Prospectus Supplement.
(d) Any Non-Serviced Mortgage Loan Special Servicer and any director,
officer, employee or agent of such Non-Serviced Mortgage Loan Special Servicer
shall be indemnified by the Trust and held harmless against the Trust's pro rata
share of any and all claims, losses, penalties, fines, forfeitures, legal fees
and related costs, judgments and any other costs, liabilities, fees and expenses
incurred in connection with any legal action relating to any Non-Serviced
Mortgage Loan Pooling and Servicing Agreement and this Agreement, and relating
to any Non-Serviced Mortgage Loan (but excluding any such losses allocable to
the related Non-Serviced Companion Mortgage Loans), reasonably requiring the use
of counsel or the incurring of expenses other than any losses incurred by reason
of any Non-Serviced Mortgage Loan Special Servicer's willful misfeasance, bad
faith or negligence in the performance of its duties under the related
Non-Serviced Mortgage Loan Pooling and Servicing Agreement.
SECTION 9.25 RESERVED
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SECTION 9.26 SPECIAL SERVICER MAY OWN CERTIFICATES. The Special
Servicer or any agent of the Special Servicer in its individual capacity or in
any other capacity may become the owner or pledgee of Certificates with the same
rights as it would have if they were not the Special Servicer or such agent. Any
such interest of the Special Servicer or such agent in the Certificates shall
not be taken into account when evaluating whether actions of the Special
Servicer are consistent with its obligations in accordance with the Servicing
Standard regardless of whether such actions may have the effect of benefiting
the Class or Classes of Certificates owned by the Special Servicer.
SECTION 9.27 TAX REPORTING. The Special Servicer shall provide the
necessary information to the Master Servicer to allow the Master Servicer to
comply with the Mortgagor tax reporting requirements imposed by Sections 6050H,
6050J and 6050P of the Code with respect to any Specially Serviced Mortgage Loan
and any REO Property and shall deliver such information with respect thereto as
the Master Servicer or the Paying Agent may request in writing. The Special
Servicer shall provide to the Master Servicer copies of any such reports. The
Master Servicer shall forward such reports to the Trustee and the Paying Agent.
SECTION 9.28 APPLICATION OF FUNDS RECEIVED. It is anticipated that the
Master Servicer will be collecting all payments with respect to the Mortgage
Loans, any Serviced Companion Mortgage Loan and any B Note (other than payments
with respect to REO Income). If, however, the Special Servicer should receive
any payments with respect to any Mortgage Loan (other than REO Income) it shall,
within one Business Day of receipt from the Mortgagor or otherwise of any
amounts attributable to payments with respect to or the sale of any Mortgage
Loan or any Specially Serviced Mortgage Loan, if any, (but not including REO
Income, which shall be deposited in the applicable REO Account as provided in
Section 9.14 hereof), either, (i) forward such payment (endorsed, if applicable,
to the order of the Master Servicer), to the Master Servicer, or (ii) deposit
such amounts, or cause such amounts to be deposited, in the Certificate Account.
The Special Servicer shall notify the Master Servicer of each such amount
received on or before the date required for the making of such deposit or
transfer, as the case may be, indicating the Mortgage Loan or Specially Serviced
Mortgage Loan to which the amount is to be applied and the type of payment made
by or on behalf of the related Mortgagor.
SECTION 9.29 COMPLIANCE WITH REMIC PROVISIONS AND GRANTOR TRUST
PROVISIONS. The Special Servicer shall act in accordance with this Agreement and
the REMIC Provisions and related provisions of the Code in order to create or
maintain the status of any REMIC Pool as a REMIC or, as appropriate, adopt a
plan of complete liquidation. The Special Servicer shall not take any action or
(A) cause any REMIC Pool to take any action that could (i) endanger the status
of any REMIC Pool as a REMIC under the Code or (ii) subject to Section 9.14(e),
result in the imposition of a tax upon any REMIC Pool (including, but not
limited to, the tax on prohibited transactions as defined in Code Section
860F(a)(2) or on prohibited contributions pursuant to Section 860G(d)) or (B)
cause the Class Q Grantor Trust to take any action that could (i) endanger its
status as a grantor trust or (ii) result in the imposition of any tax upon the
Class Q Grantor Trust unless the Master Servicer and the Trustee have received a
Nondisqualification Opinion (at the expense of the party seeking to take such
action) to the effect that the contemplated action will not endanger such status
or result in the imposition of such tax. The Special Servicer shall comply with
the provisions of Article XII hereof.
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SECTION 9.30 TERMINATION.
(a) The obligations and responsibilities of the Special Servicer
created hereby (other than the obligation of the Special Servicer to make
payments to the Master Servicer as set forth in Section 9.28 and the obligations
of the Special Servicer pursuant to Sections 9.8 and 9.24 hereof) shall
terminate on the date which is the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining outstanding
(and final distribution to the Certificateholders) or, (B) the disposition of
all REO Property in respect of any Specially Serviced Mortgage Loan (and final
distribution to the Certificateholders), (ii) 60 days following the date on
which the Trustee or the Operating Adviser has given written notice to the
Special Servicer that the Special Servicer is terminated pursuant to Section
9.30(b) or 9.30(c), respectively and (iii) the effective date of any resignation
of the Special Servicer effected pursuant to and in accordance with Section
9.21.
(b) The Trustee may terminate the Special Servicer in the event that
(i) the Special Servicer has failed to remit any amount required to be remitted
to the Trustee, the Master Servicer, the Fiscal Agent, the Paying Agent or the
Depositor within one (1) Business Day following the date such amount was
required to have been remitted under the terms of this Agreement, (ii) the
Special Servicer has failed to deposit into any account any amount required to
be so deposited or remitted under the terms of this Agreement which failure
continues unremedied for one Business Day following the date on which such
deposit or remittance was first required to be made; (iii) the Special Servicer
has failed to duly observe or perform in any material respect any of the other
covenants or agreements of the Special Servicer set forth in this Agreement, and
the Special Servicer has failed to remedy such failure within thirty (30) days
after written notice of such failure, requiring the same to be remedied, shall
have been given to the Special Servicer by the Depositor or the Trustee;
provided, however, that if the Special Servicer certifies to the Trustee and the
Depositor that the Special Servicer is in good faith attempting to remedy such
failure, and the Certificateholders would not be affected thereby, such cure
period will be extended to the extent necessary to permit the Special Servicer
to cure such failure; provided, however, that such cure period may not exceed 90
days; (iv) the Special Servicer has made one or more false or misleading
representations or warranties herein that materially and adversely affects the
interest of any Class of Certificates, and has failed to cure such breach within
thirty (30) days after notice of such breach, requiring the same to be remedied,
shall have been given to the Special Servicer by the Depositor or the Trustee,
provided, however, that if the Special Servicer certifies to the Trustee and the
Depositor that the Special Servicer is in good faith attempting to remedy such
failure, such cure period may be extended to the extent necessary to permit the
Special Servicer to cure such failure; provided, however, that such cure period
may not exceed 90 days; (v) a Special Servicing Officer of the Special Servicer
receives actual knowledge that Xxxxx'x has (A) qualified, downgraded or
withdrawn its rating or ratings of one or more Classes of Certificates, or (B)
placed one or more Classes of Certificates on "watch status" in contemplation of
a rating downgrade or withdrawal (and such "watch status" placement shall not
have been withdrawn by Xxxxx'x within 60 days of the date that a Special
Servicing Officer of the Special Servicer obtained such actual knowledge) and,
in the case of either of clauses (A) or (B), citing servicing concerns with the
Special Servicer as the sole or material factor in such rating action; (vi) 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
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appointment of a conservator, receiver, liquidator, trustee or similar official
in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings, or for the winding-up or liquidation of its
affairs, shall have been entered against the Special Servicer and such decree or
order shall have remained in force undischarged or unstayed for a period of 60
days; (vii) the Special Servicer shall consent to the appointment of a
conservator, receiver, liquidator, trustee or similar official in any
bankruptcy, insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings relating to the Special Servicer or of or
relating to all or substantially all of its property; or (viii) the Special
Servicer thereof shall admit in writing its inability to pay its debts generally
as they become due, file a petition to take advantage of any applicable
bankruptcy, insolvency or reorganization statute, make an assignment for the
benefit of its creditors, voluntarily suspend payment of its obligations, or
take any corporate action in furtherance of the foregoing; (ix) the Special
Servicer has been downgraded to a servicer rating level below "CSS3" (or its
equivalent) by Fitch or (x) the Trustee shall receive notice from Fitch to the
effect that the continuation of the Special Servicer in such capacity would
result in the downgrade, qualification or withdrawal of any rating then assigned
by Fitch to any Class of Certificates. Such termination shall be effective on
the date that the Trustee specifies in a written notice to the Special Servicer
that the Special Servicer is terminated due to the occurrence of one of the
foregoing events and the expiration of any applicable cure period or grace
period specified above for such event. The Operating Adviser shall have the
right to appoint a successor if the Trustee terminates the Special Servicer.
(c) The Operating Adviser shall have the right to direct the Trustee
to terminate the Special Servicer, provided that the Operating Adviser shall
appoint a successor Special Servicer who will (i) be reasonably satisfactory to
the Trustee and to the Depositor, and (ii) execute and deliver to the Trustee an
agreement, in form and substance reasonably satisfactory to the Trustee, whereby
the successor Special Servicer agrees to assume and perform punctually the
duties of the Special Servicer specified in this Agreement; and provided,
further, that the Trustee shall have received Rating Agency Confirmation
(including with respect to any securities rated by a Rating Agency evidencing
interests in any Serviced Companion Mortgage Loan or B Note) from each Rating
Agency prior to the termination of the Special Servicer. The Special Servicer
shall not be terminated pursuant to this Section 9.30(c) until a successor
Special Servicer shall have been appointed. The Operating Adviser shall pay any
costs and expenses incurred by the Trust in connection with the removal and
appointment of a Special Servicer (unless such removal is based on any of the
events or circumstances set forth in Section 9.30(b)).
(d) The holder of a PCF B Note, for so long as it is the Directing
Lender (as defined in the related Intercreditor Agreement), shall have the right
to terminate the Special Servicer with respect to the related PCF A/B Mortgage
Loan; provided, however, that the holder of the related PCF B Note shall have
the right to terminate the initial Special Servicer only if such initial Special
Servicer no longer meets the eligibility criteria for a Special Servicer as set
forth in this Agreement or in the event that neither the initial Special
Servicer nor an affiliate thereof holds more than 50% of the Certificate Balance
of the Controlling Class, provided that if the holder of the related PCF B Note
so terminates the Special Servicer, the holder of the related PCF B Note shall
appoint a successor Special Servicer who will (i) be reasonably satisfactory to
the Trustee and to the Depositor and (ii) execute and deliver to the Trustee an
agreement, in form and substance reasonably satisfactory to the Trustee, whereby
the successor Special Servicer agrees to assume and perform punctually the
duties of the Special Servicer specified in this
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Agreement; and provided, further, that the Trustee shall have received Rating
Agency Confirmation from each Rating Agency prior to the termination of the
Special Servicer. The Special Servicer shall not be terminated pursuant to this
Section 9.30(d) until a successor Special Servicer shall have been appointed.
The holder of related PCF B Note shall pay any costs and expenses incurred by
the Trust in connection with the removal and appointment of a Special Servicer
pursuant to this paragraph (unless such removal is based on any of the events or
circumstances set forth in Section 9.30(b)).
(e) The Lakeforest Mall Mortgage Loan Operating Adviser shall have the
right to direct the Trustee to terminate the Special Servicer with respect to
the Lakeforest Mall Mortgage Loan, provided that the Lakeforest Mall Mortgage
Loan Operating Adviser shall appoint a successor Special Servicer with respect
to the Lakeforest Mall Mortgage Loan who will (i) be reasonably satisfactory to
the Trustee and to the Depositor, and (ii) execute and deliver to the Trustee an
agreement, in form and substance reasonably satisfactory to the Trustee, whereby
the successor Special Servicer agrees to assume and perform punctually the
duties of the Special Servicer specified in this Agreement; and provided,
further, that the Trustee shall have received Rating Agency Confirmation from
each Rating Agency prior to the termination of the Special Servicer. The Special
Servicer shall not be terminated pursuant to this Section 9.30(e) until a
successor Special Servicer shall have been appointed. The Lakeforest Mall
Mortgage Loan Operating Adviser shall pay any costs and expenses incurred by the
Trust in connection with the removal and appointment of a Special Servicer
pursuant to this paragraph (unless such removal is based on any of the events or
circumstances set forth in Section 9.30(b)). Any Special Servicer appointed by
the Lakeforest Mall Mortgage Loan Operating Adviser many not be removed by the
Operating Adviser (unless the Operating Adviser is then also acting as the
Lakeforest Mall Mortgage Loan Operating Adviser) without cause.
(f) Reserved [Only Applicable When Not Rated By Xxxxx'x].
SECTION 9.31 PROCEDURE UPON TERMINATION.
(a) Notice of any termination pursuant to clause (i) of Section
9.30(a), specifying the Distribution Date upon which the final distribution
shall be made, shall be given promptly by the Special Servicer to the Trustee
and the Paying Agent no later than the later of (i) five Business Days after the
final payment or other liquidation of the last Mortgage Loan or (ii) the sixth
day of the month in which the final Distribution Date will occur. Upon any such
termination, the rights and duties of the Special Servicer (other than the
rights and duties of the Special Servicer pursuant to Sections 9.8, 9.21, 9.23
and 9.24 hereof) shall terminate and the Special Servicer shall transfer to the
Master Servicer the amounts remaining in each REO Account and shall thereafter
terminate each REO Account and any other account or fund maintained with respect
to the Specially Serviced Mortgage Loans.
(b) On the date specified in a written notice of termination given to
the Special Servicer pursuant to clause (ii) of Section 9.30(a), all authority,
power and rights of the Special Servicer under this Agreement, whether with
respect to the Specially Serviced Mortgage Loans or otherwise, shall terminate;
provided, that in no event shall the termination of the Special Servicer be
effective until the Trustee or other successor Special Servicer shall have
succeeded the Special Servicer as successor Special Servicer, notified the
Special Servicer of
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such designation, and such successor Special Servicer shall have assumed the
Special Servicer's obligations and responsibilities, as set forth in an
agreement substantially in the form hereof, with respect to the Specially
Serviced Mortgage Loans. The Trustee or other successor Special Servicer may not
succeed the Special Servicer as Special Servicer until and unless it has
satisfied the provisions that would apply to a Person succeeding to the business
of the Special Servicer pursuant to Section 9.20 hereof. The Trustee is hereby
authorized and empowered to execute and deliver, on behalf of the Special
Servicer, as attorney-in-fact or otherwise, any and all documents and other
instruments, and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination. The Special
Servicer agrees to cooperate with the Trustee and the Fiscal Agent in effecting
the termination of the Special Servicer's responsibilities and rights hereunder
as Special Servicer including, without limitation, providing the Trustee all
documents and records in electronic or other form reasonably requested by it to
enable the successor Special Servicer designated by the Trustee to assume the
Special Servicer's functions hereunder and to effect the transfer to such
successor for administration by it of all amounts which shall at the time be or
should have been deposited by the Special Servicer in any REO Account and any
other account or fund maintained or thereafter received with respect to the
Specially Serviced Mortgage Loans. On the date specified in a written notice of
termination given to the Special Servicer pursuant to the second sentence of
Section 9.30(a), all authority, power and rights of the Special Servicer under
this Agreement with respect to the applicable Serviced Pari Passu Mortgage Loan,
whether such Mortgage Loan is a Specially Serviced Mortgage Loan or otherwise,
shall terminate. The Trustee is hereby authorized and empowered to execute and
deliver, on behalf of the Special Servicer, as attorney-in-fact or otherwise,
any and all documents and other instruments, and to do or accomplish all other
acts or things necessary or appropriate to effect the purposes of such notice of
termination.
(c) If the Special Servicer receives a written notice of termination
pursuant to clause (ii) of Section 9.30(a) relating solely to an event set forth
in Section 9.30(b)(v), (ix) or (x), and if the Special Servicer provides the
Trustee with the appropriate "request for proposal" materials within five
Business Days after receipt of such written notice of termination, then the
Trustee shall promptly thereafter (using such "request for proposal" materials
provided by the Special Servicer) solicit good faith bids for the rights to be
appointed as Special Servicer under this Agreement from at least three but no
more than five Qualified Bidders or, if three Qualified Bidders cannot be
located, then from as many persons as the Trustee can determine are Qualified
Bidders. At the Trustee's request, the Special Servicer shall supply the Trustee
with the names of Persons from whom to solicit such bids. In no event shall the
Trustee be responsible if less than three Qualified Bidders submit bids for the
right to service the Mortgage Loans, any Serviced Companion Mortgage Loan and
any B Note under this Agreement.
(d) Each bid proposal shall require any Successful Bidder, as a
condition of its bid, to enter into this Agreement as successor Special
Servicer, and to agree to be bound by the terms hereof, not later than 30 days
after termination of the Special Servicer hereunder. The Trustee shall select
the Qualified Bidder with the highest cash bid (or such other Qualified Bidder
as the Master Servicer may direct) that is also acceptable to the Operating
Adviser (the "Successful Bidder") to act as successor Special Servicer
hereunder. If no bidder is acceptable to the Operating Adviser, the Operating
Adviser shall appoint the successor Special Servicer after consultation with the
Controlling Class, provided that the successor Special Servicer so appointed
must be bound by the terms of this Agreement and there must be delivered a
Rating
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Agency Confirmation (including with respect to any securities evidencing
interests in the Serviced Companion Mortgage Loans) in connection with such
appointment. The Trustee shall direct the Successful Bidder to enter into this
Agreement as successor Special Servicer pursuant to the terms hereof not later
than 30 days after the termination of the Special Servicer hereunder, and in
connection therewith to deliver the amount of the Successful Bidder's cash bid
to the Trustee by wire transfer of immediately available funds to an account
specified by the Trustee no later than 10:00 a.m. New York City time on the date
specified for the assignment and assumption of the servicing rights hereunder.
(e) Upon the assignment and acceptance of the servicing right
hereunder to and by the Successful Bidder and receipt of such cash bid, the
Trustee shall remit or cause to be remitted to the terminated Special Servicer
the amount of such cash bid received from the Successful Bidder (net of
out-of-pocket expenses incurred in connection with obtaining such bid and
transferring servicing) by wire transfer of immediately available funds to an
account specified by the terminated Special Servicer no later than 1:00 p.m. New
York City time on the date specified for the assignment and assumption of the
servicing rights hereunder.
(f) If the Successful Bidder has not entered into this Agreement as
successor Special within 30 days after the termination of the Special Servicer
hereunder or no Successful Bidder was identified within such 30-day period, the
Trustee shall have no further obligations under Section 9.31(c) and may act or
may select another successor to act as Special Servicer hereunder in accordance
with Section 9.31(b).
SECTION 9.32 CERTAIN SPECIAL SERVICER REPORTS.
(a) The Special Servicer, for each Specially Serviced Mortgage Loan,
shall provide to the Master Servicer and the Paying Agent one (1) Business Day
after the Determination Date for each month, the CMSA Special Servicer Loan File
in such electronic format as is mutually acceptable to the Master Servicer and
the Special Servicer and in CMSA format. The Master Servicer and the Paying
Agent may use such reports or information contained therein to prepare its
reports and the Master Servicer may, at its option, forward such reports
directly to the Depositor and the Rating Agencies.
(b) The Special Servicer shall maintain accurate records, prepared by
a Servicing Officer, of each Final Recovery Determination with respect to any
Mortgage Loan or REO Property and the basis thereof. Each Final Recovery
Determination shall be evidenced by an Officer's Certificate delivered to the
Trustee, the Operating Adviser, the Paying Agent and the Master Servicer no
later than the tenth Business Day following such Final Recovery Determination.
(c) The Special Servicer shall provide to the Master Servicer or the
Paying Agent at the reasonable request in writing of the Master Servicer or the
Paying Agent, any information in its possession with respect to the Specially
Serviced Mortgage Loans which the Master Servicer or Paying Agent, as the case
may be, shall require in order for the Master Servicer or the Paying Agent to
comply with its obligations under this Agreement; provided that the Special
Servicer shall not be required to take any action or provide any information
that the Special Servicer determines will result in any material cost or expense
to which it is not entitled
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to reimbursement hereunder or will result in any material liability for which it
is not indemnified hereunder. The Master Servicer shall provide the Special
Servicer at the request of the Special Servicer any information in its
possession with respect to the Mortgage Loans which the Master Servicer shall
require in order for the Special Servicer to comply with its obligations under
this Agreement.
(d) Not later than 20 days after each Special Servicer Remittance
Date, the Special Servicer shall forward to the Master Servicer a statement
setting forth the status of each REO Account as of the close of business on such
Special Servicer Remittance Date, stating that all remittances required to be
made by it as required by this Agreement to be made by the Special Servicer have
been made (or, if any required distribution has not been made by the Special
Servicer, specifying the nature and status thereof) and showing, for the period
from the day following the preceding Special Servicer Remittance Date to such
Special Servicer Remittance Date, the aggregate of deposits into and withdrawals
from each REO Account for each category of deposit specified in Section 5.1 of
this Agreement and each category of withdrawal specified in Section 5.2 of this
Agreement.
(e) The Special Servicer shall use reasonable efforts to obtain and,
to the extent obtained, to deliver electronically using the ARCap Naming
Convention to the Master Servicer, the Paying Agent, the Rating Agencies and the
Operating Adviser, on or before April 15 of each year, commencing with April 15,
2006, (i) copies of the prior year operating statements and quarterly
statements, if available, for each Mortgaged Property underlying a Specially
Serviced Mortgage Loan or REO Property as of its fiscal year end, provided that
either the related Mortgage Note or Mortgage requires the Mortgagor to provide
such information, or if the related Mortgage Loan has become an REO Property,
(ii) a copy of the most recent rent roll available for each Mortgaged Property,
and (iii) a table, setting forth the Debt Service Coverage Ratio and occupancy
with respect to each Mortgaged Property covered by the operating statements
delivered above; provided, that, with respect to any Mortgage Loan that becomes
a Specially Serviced Mortgage Loan prior to April 15, 2006 and for which the
items in clause (i) and (ii) above have not been delivered, the Special Servicer
shall use reasonable efforts to obtain and, to the extent obtained, deliver such
items to the Master Servicer, the Paying Agent, the Rating Agencies and the
Operating Adviser as soon as possible after receipt of such items.
(f) The Special Servicer shall deliver to the Master Servicer, the
Depositor, the Paying Agent and the Trustee all such other information with
respect to the Specially Serviced Mortgage Loans at such times and to such
extent as the Master Servicer, the Trustee, the Paying Agent or the Depositor
may from time to time reasonably request; provided, however, that the Special
Servicer shall not be required to produce any ad hoc non-standard written
reports with respect to such Mortgage Loans except if any Person (other than the
Paying Agent or the Trustee) requesting such report pays a reasonable fee to be
determined by the Special Servicer.
(g) The Special Servicer shall deliver electronically using the ARCap
Naming Convention a written Inspection Report of each Specially Serviced
Mortgage Loan in accordance with Section 9.4(b) to the Operating Adviser.
(h) The Special Servicer shall prepare a report (the "Asset Status
Report") recommending the taking of certain actions for each Mortgage Loan that
becomes a Specially
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Serviced Mortgage Loan and deliver such Asset Status Report to the Operating
Adviser and the Master Servicer not later than 45 days after the servicing of
such Mortgage Loan is transferred to the Special Servicer. Such Asset Status
Report shall set forth the following information to the extent reasonably
determinable:
(i) a 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 (including without limitation by reason
of any Phase I Environmental Assessment and any additional environmental testing
contemplated by Section 9.12(c)), consistent with the Servicing Standard, that
are applicable to the exercise of remedies set forth herein and to the
enforcement of any related guaranties or other collateral for the related
Specially Serviced 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 or Mortgaged Properties;
(iv) a summary of the applicable Special Servicer's recommended
action with respect to such Specially Serviced Mortgage Loan;
(v) the Appraised Value of the related Mortgaged Property or
Mortgaged Properties, together with the assumptions used in the calculation
thereof (which the Special Servicer may satisfy by providing a copy of the most
recently obtained Appraisal); and
(vi) such other information as the applicable Special Servicer
deems relevant in light of the Servicing Standard.
If (i) the Operating Adviser affirmatively approves in writing an
Asset Status Report, (ii) after ten Business Days from receipt of an Asset
Status Report the Operating Adviser does not object to such Asset Status Report
or (iii) within ten (10) Business Days after receipt of an Asset Status Report
the Operating Adviser objects to such Asset Status Report and the Special
Servicer makes a determination in accordance with the Servicing Standard that
such objection is not in the best interest of all the Certificateholders, as a
collective whole, the Special Servicer shall take the recommended actions
described in the Asset Status Report. If within ten (10) Business Days after
receipt of an Asset Status Report the Operating Adviser objects to such Asset
Status Report and the Special Servicer does not make a determination in
accordance with the Servicing Standard that such objection is not in the best
interest of all the Certificateholders, as a collective whole, then the Special
Servicer shall revise such Asset Status Report as soon as practicable
thereafter, but in no event later than 30 days after the objection to the Asset
Status Report by the Operating Adviser. The Special Servicer shall revise such
Asset Status Report as provided in the prior sentence until the earliest of (a)
the delivery by the Operating Adviser of an affirmative approval in writing of
such revised Asset Status Report, (b) the failure of the Operating Adviser to
disapprove such revised Asset Status Report in writing within ten (10) Business
Days of its receipt thereof; or (c) the passage of ninety (90) days from the
date of preparation of the initial version of the Asset Status Report. Following
the earliest of such events, the Special Servicer shall implement the
recommended action as outlined in the most recent version of such Asset Status
Report (provided that the Special Servicer shall not take any
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action that is contrary to applicable law or the terms of the applicable
Mortgage Loan documents). The Special Servicer may, from time to time, modify
any Asset Status Report it has previously delivered and implement the new action
in such revised report so long as such revised report has been prepared,
reviewed and either approved or not rejected as provided above.
Notwithstanding the prior paragraph, the Special Servicer may take any
action set forth in an Asset Status Report before the expiration of the ten (10)
Business Day period during which the Operating Adviser may reject such report if
(A) the Special Servicer has reasonably determined that failure to take such
action would materially and adversely affect the interests of the
Certificateholders, as a collective whole, and (B) it has made a reasonable
effort to contact the Operating Adviser. The Special Servicer may not take any
action inconsistent with an Asset Status Report that has been adopted as
provided above, unless such action would be required in order to act in
accordance with the Servicing Standard. If the Special Servicer takes any action
inconsistent with an Asset Status Report that has been adopted as provided
above, the Special Servicer shall promptly notify the Operating Adviser of such
inconsistent action and provide a reasonably detailed explanation of the reasons
therefor.
The Special Servicer shall deliver to the Master Servicer, the
Operating Adviser and each Rating Agency a copy of each Asset Status Report that
has been adopted as provided above, in each case with reasonable promptness
following such adoption.
Notwithstanding anything herein to the contrary: (i) the Special Servicer shall
have no right or obligation to consult with or to seek and/or obtain consent or
approval from any Operating Adviser prior to acting (and provisions of this
Agreement requiring such consultation, consent or approval shall be of no
effect) during the period following any resignation or removal of an Operating
Adviser and before a replacement is selected; and (ii) no advice, direction or
objection from or by the Controlling Class Representative, as contemplated by
Section 9.39 or any other provision of this Agreement, may (and the applicable
Special Servicer shall ignore and act without regard to any such advice,
direction or objection that such Special Servicer has determined, in its
reasonable, good faith judgment, would): (A) require or cause such Special
Servicer to violate applicable law, the terms of any Mortgage Loan or any other
Section of this Agreement, including the applicable Special Servicer's
obligation to act in accordance with the Servicing Standard, (B) result in an
Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust
Event with respect to the Grantor Trust Pool, (C) expose the Trust, the
Depositor, the Master Servicer, the Special Servicer, the Fiscal Agent, the
Certificate Administrator, the Trustee or any of their respective Affiliates,
members, managers, officers, directors, employees or agents, to any material
claim, suit or liability or (D) materially expand the scope of the Master
Servicer's or Special Servicer's responsibilities under this Agreement.
SECTION 9.33 SPECIAL SERVICER TO COOPERATE WITH THE MASTER SERVICER
AND PAYING AGENT.
(a) The Special Servicer shall furnish on a timely basis such reports,
certifications, and information as are reasonably requested by the Master
Servicer, the Trustee, the Paying Agent or the Primary Servicer to enable it to
perform its duties under this Agreement or the Primary Servicing Agreement, as
applicable; provided that no such request shall (i) require or cause the Special
Servicer to violate the Code, any provision of this Agreement, including the
Special Servicer's obligation to act in accordance with the servicing standards
set forth in this
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Agreement and to maintain the REMIC status of any REMIC Pool or (ii) expose the
Special Servicer, the Trust, the Fiscal Agent, the Paying Agent or the Trustee
to liability or materially expand the scope of the Special Servicer's
responsibilities under this Agreement. In addition, the Special Servicer shall
notify the Master Servicer of all expenditures incurred by it with respect to
the Specially Serviced Mortgage Loans which are required to be made by the
Master Servicer as Servicing Advances as provided herein, subject to the
provisions of Section 4.4 hereof. The Special Servicer shall also remit all
invoices relating to Servicing Advances promptly upon receipt of such invoices.
(b) The Special Servicer shall from time to time make reports,
recommendations and analyses to the Operating Adviser with respect to the
following matters, the expense of which shall not be an expense of the Trust:
(i) whether the foreclosure of a Mortgaged Property relating to a
Specially Serviced Mortgage Loan would be in the best economic interest of the
Trust;
(ii) if the Special Servicer elects to proceed with a
foreclosure, whether a deficiency judgment should or should not be sought
because the likely recovery will or will not be sufficient to warrant the cost,
time and exposure of pursuing such judgment;
(iii) whether the waiver or enforcement of any "due-on-sale"
clause or "due-on-encumbrance" clause contained in a Mortgage Loan or a
Specially Serviced Mortgage Loan is in the best economic interest of the Trust;
(iv) in connection with entering into an assumption agreement
from or with a person to whom a Mortgaged Property securing a Specially Serviced
Mortgage Loan has been or is about to be conveyed, or to release the original
Mortgagor from liability upon a Specially Serviced Mortgage Loan and substitute
a new Mortgagor, and whether the credit status of the prospective new Mortgagor
is in compliance with the Special Servicer's regular commercial mortgage
origination or servicing standard;
(v) in connection with the foreclosure on a Specially Serviced
Mortgage Loan secured by a Mortgaged Property which is not in compliance with
CERCLA, or any comparable environmental law, whether it is in the best economic
interest of the Trust to bring the Mortgaged Property into compliance therewith
and an estimate of the cost to do so; and
(vi) with respect to any proposed modification (which shall
include any proposed release, substitution or addition of collateral),
extension, waiver, amendment, discounted payoff or sale of a Mortgage Loan,
prepare a summary of such proposed action and an analysis of whether or not such
action is reasonably likely to produce a greater recovery on a net present value
basis than liquidation of such Mortgage Loan; such analysis shall specify the
basis on which the Special Servicer made such determination, including the
status of any existing material default or the grounds for concluding that a
payment default is imminent.
SECTION 9.34 RESERVED
SECTION 9.35 RESERVED
SECTION 9.36 SALE OF DEFAULTED MORTGAGE LOANS.
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(a) The holder of the PCF B Notes (solely with respect to the related
PCF A/B Mortgage Loan), the holder of Certificates evidencing the greatest
percentage interest in the Controlling Class, the Special Servicer and each
Seller (other than Xxxxx Fargo Bank, National Association) as to those Mortgage
Loans sold to the Depositor by such Seller only (in such capacity, together with
any assignee, the "Option Holder") shall, in that order, have the right, at its
option (the "Option"), to purchase a Mortgage Loan (other than a Non-Serviced
Mortgage Loan that is subject to a comparable option under the related Other
Companion Loan Pooling and Servicing Agreement) from the Trust at a price equal
to the Option Purchase Price upon receipt of notice from the Special Servicer
that such Mortgage Loan has become at least 60 days delinquent as to any monthly
debt service payment (or is delinquent as to its Balloon Payment); provided,
however, that with respect to an A Note, the Option Holder's rights under this
Section 9.36 are subject to the rights of the holder of the related B Note to
purchase the A Note pursuant to the terms of the related Intercreditor
Agreement; provided, further, that with respect to the Lakeforest Mall Mortgage
Loan Pooled Component, the Option Holder's rights under this Section 9.36 are
subject to the rights of the Lakeforest Mall Mortgage Loan Operating Adviser to
purchase the Lakeforest Mall Mortgage Loan Components pursuant to Section
9.36(g). The Option is exercisable, subject to Section 2.3, from that date until
terminated pursuant to clause (e) below, and during that period the Option shall
be exercisable in any month only during the period from the 10th calendar day of
such month through the 25th calendar day, inclusive, of such month. The Trustee
on behalf of the Trust shall be obligated to sell such Mortgage Loan upon the
exercise of the Option (whether exercised by the original holder thereof or by a
holder that acquired such Option by assignment), but shall have no authority to
sell such Mortgage Loan other than in connection with the exercise of an Option
(or in connection with a repurchase of a Mortgage Loan under Article II, an
optional termination pursuant to Section 10.1 or a qualified liquidation of a
REMIC Pool) or if such Mortgage Loan is an A Note, to the holder of the related
B Note pursuant to the terms of the related Intercreditor Agreement. Any Option
Holder that exercises the Option shall be required to purchase the applicable
Mortgage Loan on the 4th Business Day after such exercise. If any Option Holder
desires to waive its right to exercise the Option, then it shall so notify the
Trustee in writing, and the Trustee shall promptly notify the next party
eligible to hold the Option set forth above of its rights hereunder. Any of the
parties eligible to hold the Option set forth above may at any time notify the
Trustee in writing of its desire to exercise the Option, and the Trustee shall
promptly notify (i) the current Option Holder (and the other parties eligible to
hold the Option) and (ii) solely with respect to an Option to purchase an A
Note, the holder of the related B Note, of such party's desire to exercise the
Option; provided that none of the Trustee, the Master Servicer or the Special
Servicer shall disclose the Option Purchase Price to the holder of such related
B Note. If the Option Holder neither (i) exercises the Option nor (ii)
surrenders its right to exercise the Option within 3 Business Days of its
receipt of that notice, then the Option Holder's right to exercise the Option
shall lapse, and the Trustee shall promptly notify the next party eligible to
hold the Option (and the other parties eligible to hold the Option) of its
rights thereunder. The Certificate Registrar shall notify the Trustee as to the
identity of the holder of Certificates evidencing the greatest percentage
interest in the Controlling Class for purposes of determining an Option Holder.
(b) The purchase price in connection with the exercise of the Option
or the Lakeforest Mall Mortgage Loan Option (the "Option Purchase Price") shall
be an amount equal to the fair value of the related Mortgage Loan, as determined
by the Special Servicer. Prior to the Special Servicer's determination of fair
value referred to in the preceding sentence, the fair
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value of a Mortgage Loan shall be deemed to be an amount equal to the Purchase
Price plus (i) any prepayment penalty or yield maintenance charge then payable
upon the prepayment of such Mortgage Loan and (ii) the reasonable fees and
expenses of the Special Servicer, the Master Servicer and the Trustee incurred
in connection with the sale of the Mortgage Loan. The Special Servicer shall
determine the fair value of a Mortgage Loan on the later of (A) as soon as
reasonably practical upon the Mortgage Loan becoming 60 days delinquent or upon
the Balloon Payment becoming delinquent and (B) the date that is 75 days after
the Special Servicer's receipt of the Servicer Mortgage File relating to such
Mortgage Loan, and the Special Servicer shall promptly notify the Option Holder
(and the Trustee and each of the other parties set forth above that could become
the Option Holder) of (i) the Option Purchase Price, (ii) if such Mortgage Loan
is an A Note, that the A Note is subject to the terms of the related
Intercreditor Agreement and that any purchaser of the A Note will be subject to
such Intercreditor Agreement and (iii) in the case of the Lakeforest Mall
Mortgage Loan, that the Lakeforest Mall Mortgage Loan is subject to the
Lakeforest Mall Mortgage Loan Option pursuant to Section 9.36(g) and that any
purchaser of the Lakeforest Mall Mortgage Loan will be subject to Section
9.36(g). The Special Servicer is required to recalculate the fair value of the
Mortgage Loan if there has been a material change in circumstances or the
Special Servicer has received new information (including, without limitation,
any cash bids received from (a) the holder of the related B Note in connection
with an A Note or (b) the Lakeforest Mall Mortgage Loan Operating Adviser in
connection with the Lakeforest Mall Mortgage Loan), either of which has a
material effect on the fair value, provided that the Special Servicer shall be
required to recalculate the fair value of the Mortgage Loan if the time between
the date of last determination of the fair value of the Mortgage Loan and the
date of the exercise of the Option or the Lakeforest Mall Mortgage Loan Option,
as applicable, has exceeded 60 days. Upon any recalculation, the Special
Servicer shall be required to promptly notify in writing each Option Holder or
the Lakeforest Mall Mortgage Loan Option Holder, as applicable, (and the Trustee
and each of the other parties set forth above that could become the Option
Holder or a Lakeforest Mall Mortgage Loan Option Holder) of the revised Option
Purchase Price. Any such recalculation of the fair value of the Mortgage Loan
shall be deemed to renew the Option or the Lakeforest Mall Mortgage Loan Option,
as applicable, in its original priority at the recalculated price with respect
to any party as to which the Option or the Lakeforest Mall Mortgage Loan Option,
as applicable, had previously expired or been waived, unless the Option or the
Lakeforest Mall Mortgage Loan Option, as applicable, has previously been
exercised by an Option Holder or the Lakeforest Mall Mortgage Loan Option
Holder, as applicable, at a higher Option Purchase Price. In determining fair
value, the Special Servicer shall take into account, among other factors, the
results of any Appraisal or updated Appraisal that it or the Master Servicer may
have obtained in accordance with this Agreement within the prior twelve months;
any views on fair value expressed by Independent investors in mortgage loans
comparable to the Mortgage Loan (provided that the Special Servicer shall not be
obligated to solicit such views); the period and amount of any delinquency on
the affected Mortgage Loan; whether to the Special Servicer's actual knowledge,
the Mortgage Loan is in default to avoid a prepayment restriction; the physical
condition of the related Mortgaged Property; the state of the local economy; the
expected recoveries from the Mortgage Loan if the Special Servicer were to
pursue a workout or foreclosure strategy instead of the Option or the Lakeforest
Mall Mortgage Loan Option, as applicable, being exercised; and the Trust's
obligation to dispose of any REO Property as soon as practicable consistent with
the objective of maximizing proceeds for all Certificateholders but in no event
later than the three-year period (or such extended period) specified in Section
9.15. If the Mortgage Loan as to
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which the Option relates is a Serviced Pari Passu Mortgage Loan, then the Option
Holder, in connection with its exercise of such option, shall also be required
to purchase the related Serviced Companion Mortgage Loan under the Other Pooling
and Servicing Agreement or the related Intercreditor Agreement. Pursuant to the
related Non-Serviced Mortgage Loan Pooling and Servicing Agreement, if the
holder of the option thereunder repurchases a Non-Serviced Companion Mortgage
Loan in connection with its exercise of such option, then the holder of the
option shall also be required to purchase the related Non-Serviced Mortgage
Loan, but only if set forth in such Non-Serviced Mortgage Loan Pooling and
Servicing Agreement. If the Mortgage Loan as to which the Option relates is a
Non-Serviced Mortgage Loan, and the party exercising the purchase option under
the Other Companion Loan Pooling and Servicing Agreement in respect of the
related Non-Serviced Companion Mortgage Loan is not required thereunder to
simultaneously purchase the related Non-Serviced Mortgage Loan held by the Trust
upon a purchase of the Non-Serviced Companion Mortgage Loan, then the Special
Servicer shall calculate the Option Purchase Price of the Non-Serviced Mortgage
Loan based upon the fair market value calculation performed by the special
servicer or other party under the Other Companion Loan Pooling and Servicing
Agreement (upon which the Special Servicer may rely), to the extent provided to
the Special Servicer.
(c) Any Option relating to a Mortgage Loan or the Lakeforest Mall
Mortgage Loan Option shall be assignable to a third party (including, without
limitation, in connection with an A Note, the holder of the related B Note and
in connection with a Serviced Pari Passu Mortgage Loan, the holder of the
related Serviced Companion Mortgage Loan) by the Option Holder or the Lakeforest
Mall Mortgage Loan Option Holder, as applicable, at its discretion at any time
after its receipt of notice from the Special Servicer that an Option or the
Lakeforest Mall Mortgage Loan Option is exercisable with respect to a specified
Mortgage Loan, and upon such assignment such third party shall have all of the
rights granted to the Option Holder or the Lakeforest Mall Mortgage Loan Option
Holder, as applicable, hereunder in respect of the Option or the Lakeforest Mall
Mortgage Loan Option. Such assignment shall only be effective upon written
notice (together with a copy of the executed assignment and assumption
agreement) being delivered to the Trustee, the Master Servicer and the Special
Servicer, and none of such parties shall be obligated to recognize any entity as
an Option Holder or the Lakeforest Mall Mortgage Loan Option Holder, as
applicable, absent such notice.
(d) If the Special Servicer, the holder of Certificates representing
the greatest percentage interest in the Controlling Class or an Affiliate of
either thereof elects to exercise the Option or if the Lakeforest Mall Mortgage
Loan Option Holders elects to exercise the Lakeforest Mall Mortgage Loan Option,
the Trustee shall be required to determine whether the Option Purchase Price
constitutes a fair price for the Mortgage Loan. Upon request of the Special
Servicer to make such a determination, the Trustee will do so within a
reasonable period of time (but in no event more than 15 Business Days). In doing
so, the Trustee may rely on the opinion of an Appraisal or other expert in real
estate matters selected by the Trustee with reasonable care and retained by the
Trustee at the expense of the party exercising the Option or the Lakeforest Mall
Mortgage Loan Option, as applicable, provided that such expense is reasonable.
The Trustee may also rely on the most recent Appraisal of the related Mortgaged
Property that was prepared in accordance with this Agreement. If the Trustee
were to determine that the Option Purchase Price does not constitute a fair
price, then the Special Servicer shall redetermine the fair value taking into
account the objections of the Trustee.
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(e) The Option and the Lakeforest Mall Mortgage Loan Option shall
terminate, and shall not be exercisable as set forth in clause (a) above or
clause (g) below, as applicable, (or if exercised, but the purchase of the
related Mortgage Loan has not yet occurred, shall terminate and be of no further
force or effect) if the Mortgage Loan to which it relates is no longer
delinquent as set forth above because the Mortgage Loan has (i) become a
Rehabilitated Mortgage Loan, (ii) been subject to a workout arrangement, (iii)
been foreclosed upon or otherwise resolved (including by a full or discounted
pay-off) or (iv) been purchased by the related Seller pursuant to Section 2.3.
In addition, the Option with respect to an A Note shall terminate upon the
purchase of the A Note by the holder of the related B Note pursuant to the
related Intercreditor Agreement. In addition, the Lakeforest Mall Mortgage Loan
Option shall terminate upon the purchase of the Lakeforest Mall Mortgage Loan by
the Lakeforest Mall Mortgage Loan Option Holder.
(f) Unless and until an Option Holder or the Lakeforest Mall Mortgage
Loan Option Holder exercises an Option or the Lakeforest Mall Mortgage Loan
Option, as applicable, the Special Servicer shall continue to service and
administer the related Mortgage Loan in accordance with the Servicing Standard
and this Agreement, and shall pursue such other resolution or recovery
strategies, including workout or foreclosure, as are consistent with this
Agreement and the Servicing Standard.
(g) The Lakeforest Mall Mortgage Loan Operating Adviser (in such
capacity, together with any assignee, the "Lakeforest Mall Mortgage Loan Option
Holder") shall have the right, at its option (the "Lakeforest Mall Mortgage Loan
Option"), to purchase the Lakeforest Mall Mortgage Loan Components from the
Trust at a price equal to the Option Purchase Price upon receipt of notice from
the Special Servicer that the Lakeforest Mall Mortgage Loan has become at least
60 days delinquent as to any monthly debt service payment (or is delinquent as
to its Balloon Payment). The Lakeforest Mall Mortgage Loan Option is
exercisable, subject to Section 2.3, from that date until terminated pursuant to
clause (e) above, and during that period the Lakeforest Mall Mortgage Loan
Option shall be exercisable in any month only during the period from the 10th
calendar day of such month through the 25th calendar day, inclusive, of such
month. The Trustee on behalf of the Trust shall be obligated to sell the
Lakeforest Mall Mortgage Loan upon the exercise of the Lakeforest Mall Mortgage
Loan Option (whether exercised by the original holder thereof or by a holder
that acquired such Lakeforest Mall Mortgage Loan Option by assignment), but
shall have no authority to sell the Lakeforest Mall Mortgage Loan other than in
connection with the exercise of the Lakeforest Mall Mortgage Loan Option (or in
connection with a repurchase of the Lakeforest Mall Mortgage Loan under Article
II, an optional termination pursuant to Section 10.1 or a qualified liquidation
of a REMIC Pool). Any Lakeforest Mall Mortgage Loan Option Holder that exercises
the Lakeforest Mall Mortgage Loan Option shall be required to purchase the
Lakeforest Mall Mortgage Loan on the 4th Business Day after such exercise. If
any Lakeforest Mall Mortgage Loan Option Holder desires to waive its right to
exercise the Lakeforest Mall Mortgage Loan Option, then it shall so notify the
Trustee in writing, and the Trustee shall promptly notify the next party
eligible to hold the Lakeforest Mall Mortgage Loan Option set forth in Section
9.36(a). Any of the parties eligible to hold the Lakeforest Mall Mortgage Loan
Option set forth above may at any time notify the Trustee in writing of its
desire to exercise the Lakeforest Mall Mortgage Loan Option, and the Trustee
shall promptly notify the current Lakeforest Mall Mortgage Loan Option Holder
(and the other parties eligible to hold the Lakeforest Mall Mortgage Loan
Option); provided that none of
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the Trustee, the Master Servicer or the Special Servicer shall disclose the
Option Purchase Price to the Lakeforest Mall Mortgage Loan Operating Adviser. If
the Lakeforest Mall Mortgage Loan Option Holder neither (i) exercises the
Lakeforest Mall Mortgage Loan Option nor (ii) surrenders its right to exercise
the Lakeforest Mall Mortgage Loan Option within 3 Business Days of its receipt
of that notice, then the Lakeforest Mall Mortgage Loan Option Holder's right to
exercise the Lakeforest Mall Mortgage Loan Option shall lapse, and the Trustee
shall promptly notify the next party eligible to hold the Lakeforest Mall
Mortgage Loan Option (and the other parties eligible to hold the Lakeforest Mall
Mortgage Loan Option) of its rights thereunder. The Certificate Registrar shall
notify the Trustee as to the identity of the holders of a majority of the Class
LF Certificates for purposes of determining the Lakeforest Mall Mortgage Loan
Option Holder.
SECTION 9.37 OPERATING ADVISER; ELECTIONS.
(a) In accordance with Section 9.37(c), the Certificateholders
representing more than 50% of the Certificate Balance of the Certificates of the
then Controlling Class or the Class LF Certificates (for so long as the
Aggregate Certificate Balance of the Class LF Certificates, net of the amount of
any Appraisal Reduction with respect to the Lakeforest Mall Mortgage Loan, is
equal to or greater than 25% of the initial Aggregate Certificate Balance of the
Class LF Certificates) may elect the Operating Adviser or the Lakeforest Mall
Mortgage Loan Operating Adviser, as applicable. The Operating Adviser and the
Lakeforest Mall Mortgage Loan Operating Adviser shall be elected for the purpose
of receiving reports and information from the Special Servicer in respect of the
Specially Serviced Mortgage Loans.
(b) The initial Operating Adviser is ARCap REIT, Inc. The Controlling
Class shall give written notice to the Trustee, the Paying Agent and the Master
Servicer of the appointment of any subsequent Operating Adviser (in order to
receive notices hereunder). If a subsequent Operating Adviser is not so
appointed, an election of an Operating Adviser also shall be held. Notice of the
meeting of the Holders of the Controlling Class shall be mailed or delivered to
each Holder by the Paying Agent, not less than 10 nor more than 60 days prior to
the meeting. The notice shall state the place and the time of the meeting, which
may be held by telephone. A majority of Certificate Balance of the Certificates
of the then Controlling Class, present in person or represented by proxy, shall
constitute a quorum for the nomination of an Operating Adviser. At the meeting,
each Holder shall be entitled to nominate one Person to act as Operating
Adviser. The Paying Agent shall cause the election of the Operating Adviser to
be held as soon thereafter as is reasonably practicable.
(c) Each Holder of the Certificates of the Controlling Class shall be
entitled to vote in each election of the Operating Adviser. The voting in each
election of the Operating Adviser shall be in writing mailed, telecopied,
delivered or sent by courier and actually received by the Paying Agent on or
prior to the date of such election. Immediately upon receipt by the Paying Agent
of votes (which have not been rescinded) from the Holders of Certificates
representing more than 50% of the Certificate Balance of the Certificates of the
then Controlling Class which are cast for a single Person, such Person shall be,
upon such Person's acceptance, the Operating Adviser. The Paying Agent shall
promptly notify the Trustee of the identity of the Operating Adviser. Until an
Operating Adviser is elected by Holders of Certificates representing more than
50% of the Certificate Balance of the Certificates of the then Controlling Class
or in
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the event that an Operating Adviser shall have resigned or been removed and a
successor Operating Adviser shall not have been elected, there shall be no
Operating Adviser.
(d) The Operating Adviser may be removed at any time by the written
vote, copies of which must be delivered to the Paying Agent, of more than 50% of
the Certificate Balance of the Holders of the Certificates of the then
Controlling Class.
(e) The Paying Agent shall act as judge of each election and, absent
manifest error, the determination of the results of any election by the Paying
Agent shall be conclusive. Notwithstanding any other provisions of this Section
9.37, the Paying Agent may make such reasonable regulations as it may deem
advisable for any election.
(f) Notwithstanding any provision of this Section 9.37 or any other
provision of this Agreement to the contrary, at any time that the Special
Servicer has been elected as Operating Adviser or no Operating Adviser has been
elected, (i) the Special Servicer shall not be required to deliver notices or
information to, or obtain the consent or approval of, the Operating Adviser and
(ii) to the extent any Person other than the Special Servicer is otherwise
required hereunder to provide notices or information to, or obtain the consent
or approval of, the Operating Adviser, such Person shall be required to provide
such notices or information to, or obtain the consent or approval of, the
Special Servicer.
(g) Notwithstanding anything to the contrary set forth in this
Agreement, the Master Servicer, the Special Servicer and the Operating Adviser
acknowledge that, (i) with respect to each of the PCF A/B Mortgage Loans,
pursuant to the related Intercreditor Agreement, the "Directing Lender," as
defined therein, shall be entitled to exercise the rights and powers granted to
the Operating Adviser herein with respect to the related PCF A/B Mortgage Loan,
as applicable, and that all references in this Agreement to the term "Operating
Adviser" and to the Operating Adviser appointed pursuant to Section 9.37(a)
shall be deemed (solely with respect to the related PCF A/B Mortgage Loan) to
refer to the holder of the related PCF B Note; provided, however, that if the
holder of the related PCF B Note is no longer the "Directing Lender" (as such
term is defined in the related Intercreditor Agreement), then the "Directing
Lender" (as such term is defined in the related Intercreditor Agreement) will be
the holder of the related PCF Mortgage Loan (such rights and powers to be
exercisable by the Operating Adviser). Notwithstanding the foregoing, the
Operating Adviser designated by the Certificateholders shall also receive all
notices and reports delivered to the Operating Adviser appointed pursuant to the
related Intercreditor Agreement.
(h) Notwithstanding anything to the contrary set forth in this
Agreement, the Master Servicer, the Special Servicer and the Operating Adviser
acknowledge that, (i) with respect to the Lakeforest Mall Mortgage Loan, the
Lakeforest Mall Mortgage Loan Operating Adviser shall be entitled to exercise
the rights and powers granted to the Operating Adviser herein with respect to
the Lakeforest Mall Mortgage Loan, and that all references in this Agreement to
the term "Operating Adviser" and to the Operating Adviser appointed pursuant to
Section 9.37(a) shall be deemed (solely with respect to the Lakeforest Mall
Mortgage Loan) to refer to the Lakeforest Mall Mortgage Loan Operating Adviser.
Notwithstanding the foregoing, the Operating Adviser designated by the
Certificateholders shall also receive all notices and reports delivered to the
Lakeforest Mall Mortgage Loan Operating Adviser.
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SECTION 9.38 LIMITATION ON LIABILITY OF OPERATING ADVISER. The
Operating Adviser shall have no liability to the Trust, the holder of any
Serviced Companion Mortgage Loan, the holder of any B Note or the
Certificateholders for any action taken, or for refraining from the taking of
any action, in good faith and using reasonable business judgment pursuant to
this Agreement, or using reasonable business judgment. By its acceptance of a
Certificate, each Certificateholder (and Certificate Owner) confirms its
understanding that the Operating Adviser may take actions that favor the
interests of one or more Classes of the Certificates over other Classes of the
Certificates and that the Operating Adviser may have special relationships and
interests that conflict with those of Holders of some Classes of the
Certificates and each holder of a Serviced Companion Mortgage Loan and B Note
(if any) and each Certificateholder (and Certificate Owner) agrees to take no
action against the Operating Adviser based upon such special relationship or
conflict.
SECTION 9.39 DUTIES OF OPERATING ADVISER. The Operating Adviser (or
the Lakeforest Mall Mortgage Loan Operating Adviser appointed by the holders of
a majority of the Class LF Certificates, for so long as the aggregate
Certificate Balance of the Class LF Certificates, net of the amount of any
Appraisal Reduction with respect to the Lakeforest Mall Mortgage Loan, is equal
to or greater than 25% of the initial aggregate Certificate Balance of the Class
LF Certificates, and if such Certificate Balance in not greater than or equal to
25% of the initial Aggregate Certificate Balance of the Class LF Certificates,
then the Operating Adviser) may advise the Special Servicer with respect to the
following actions of the Special Servicer and the Special Servicer will not be
permitted to take any of the following actions unless and until it has notified
the Operating Adviser (or with respect to the Lakeforest Mall Mortgage Loan, the
Lakeforest Mall Mortgage Loan Operating Adviser) in writing and such Operating
Adviser (or with respect to the Lakeforest Mall Mortgage Loan, the Lakeforest
Mall Mortgage Loan Operating Adviser) has not objected in writing (i) within 5
Business Days of having been notified thereof in respect of actions relating to
non-Specially Serviced Mortgage Loans (which 5 Business Day period shall run
concurrently with the time periods set forth in the Primary Servicing Agreement
with respect to such actions) and (ii) within 10 Business Days of having been
notified thereof in respect of actions relating to Specially Serviced Mortgage
Loans and having been provided with all reasonably requested information with
respect thereto (it being understood and agreed that if such written objection
has not been received by the Special Servicer within such 5 Business Day or 10
Business Day period, as applicable, then the Operating Adviser's (and with
respect to the Lakeforest Mall Mortgage Loan, the Lakeforest Mall Mortgage Loan
Operating Adviser's) approval will be deemed to have been given):
(i) any foreclosure upon or comparable conversion (which may
include acquisition of an REO Property) of the ownership of properties securing
such of the Specially Serviced Mortgage Loans as come into and continue in
default;
(ii) any modification, amendment or waiver, or consent to
modification, amendment or waiver, of a Money Term of a Mortgage Loan or A/B
Mortgage Loan or a modification consisting of the extension of the original
Maturity Date of a Mortgage Loan;
(iii) any proposed sale of a Defaulted Mortgage Loan or A/B
Mortgage Loan (other than upon termination of the Trust pursuant to Article X);
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(iv) any determination to bring an REO Property into compliance
with Environmental Laws;
(v) any release of or acceptance of substitute or additional
collateral for a Mortgage Loan or A/B Mortgage Loan that is not otherwise
expressly provided for under the Mortgage Loan documents;
(vi) any acceptance of a discounted payoff;
(vii) any waiver or consent to waiver of a "due-on-sale" or
"due-on-encumbrance" clause;
(viii) any acceptance or consent to acceptance of an assumption
agreement releasing a Mortgagor from liability under a Mortgage Loan or A/B
Mortgage Loan;
(ix) any release of collateral for a Specially Serviced Mortgage
Loan or A/B Mortgage Loan (other than in accordance with the terms of or upon
satisfaction of, such Mortgage Loan);
(x) any franchise changes or certain management company changes
for which the Special Servicer is required to consent;
(xi) releases of any Escrow Accounts, reserve accounts or Letters
of Credit that are not in compliance with the related Mortgage Loan documents;
(xii) any determination as to whether any type of property-level
insurance is required under the terms of any Mortgage Loan or A/B Mortgage Loan,
is available at commercially reasonable rates, is available for similar
properties in the area in which the related Mortgaged Property is located or any
other determination or exercise of discretion with respect to property-level
insurance;
(xiii) with respect to the Lakeforest Mall Mortgage Loan, any
renewal or replacement of the then existing insurance policies to the extent
that such renewal or replacement policy does not comply with the terms of the
Mortgage Loan documents or any waiver, modification or amendment of any
insurance requirements under the related Mortgage Loan documents;
(xiv) with respect to the Lakeforest Mall Mortgage Loan, any
approval of a material capital expenditure;
(xv) with respect to the Lakeforest Mall Mortgage Loan, any
replacement of the property manager; and
(xvi) with respect to the Lakeforest Mall Mortgage Loan, any
adoption or approval of a plan in bankruptcy of the related borrower.
Notwithstanding the foregoing, the Operating Adviser shall not be
entitled to the consultation rights described above (i) in respect of any
non-Specially Serviced Mortgage Loan
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that has an unpaid Principal Balance of less than $2,500,000 and (ii) if such
action has already been approved or deemed approved in accordance with Section
9.32 of this Agreement.
With respect to items (vii), (viii) and (ix), the Operating Adviser
shall be subject to the same time periods for advising the Special Servicer with
respect to any such matters as are afforded to the Special Servicer pursuant to
Section 8.7, which periods shall be co-terminous with those of Special Servicer.
In addition, the Operating Adviser may direct the Trustee to remove the Special
Servicer at any time upon the appointment and acceptance of such appointment by
a successor to the Special Servicer; provided that, prior to the effectiveness
of any such appointment, the Trustee and the Paying Agent shall have received
Rating Agency Confirmation from each Rating Agency. The Operating Adviser shall
pay any costs and expenses incurred by the Trust in connection with the removal
and appointment of a Special Servicer (unless such removal is based on any of
the events or circumstances set forth in Section 9.30(b)). The Trustee shall
notify the Paying Agent promptly upon its receipt of the direction set forth
above. The Operating Adviser and the Lakeforest Mall Mortgage Loan Operating
Adviser shall be responsible for their own expenses.
Notwithstanding anything herein to the contrary, no advice, direction
or objection from the Operating Adviser, as contemplated by this Section 9.39 or
elsewhere, may (and the Master Servicer and Special Servicer, as applicable,
shall ignore and act without regard to any such advice, direction or objection
that the Master Servicer or Special Servicer, as applicable, has determined, in
its reasonable, good faith judgment, will) require or cause the Master Servicer
or Special Servicer to violate any provision of this Agreement, the REMIC
Provisions or the Mortgage Loans, including the Master Servicer's and Special
Servicer's obligation to act in accordance with the Servicing Standard.
The Master Servicer (with respect to any Non-Serviced Mortgage Loan
that is not a "Specially Serviced Mortgage Loan" under the related Non-Serviced
Mortgage Loan Pooling and Servicing Agreement) or Special Servicer (with respect
to any Non-Serviced Mortgage Loan that is a "Specially Serviced Mortgage Loan"
under the related Non-Serviced Mortgage Loan Pooling and Servicing Agreement),
as applicable, is authorized to exercise the rights and powers of the Trustee,
as holder of the Mortgage Note for each of the Non-Serviced Mortgage Loans,
under each of the related Non-Serviced Mortgage Loan Intercreditor Agreements
and Non-Serviced Mortgage Loan Pooling and Servicing Agreements to the extent
set forth in this Agreement. The Master Servicer or Special Servicer, as
applicable, shall be subject to the same limitations, constraints and
restrictions in exercising such rights and powers as would be applicable to the
Trustee, in its capacity as holder of the Mortgage Note for the applicable
Non-Serviced Mortgage Loan and shall be further subject to such consultation or
approval rights of the Operating Adviser under this Section 9.39 as would be
applicable if such Non-Serviced Mortgage Loan were serviced under this
Agreement. Subject to any section of the applicable Non-Serviced Mortgage Loan
Intercreditor Agreement that specifically addresses a particular matter with
respect to a Non-Serviced Mortgage Loan, if the Trustee is requested to take any
action in its capacity as holder of the Mortgage Note for such Non-Serviced
Mortgage Loan, the Trustee will notify in writing the Master Servicer or Special
Servicer, as applicable, and, subject to Section 7.1, act in accordance with the
instructions of, such party to the extent set forth in this Agreement; provided,
that the Trustee shall not be required to take any action at the direction of
the Master Servicer or Special Servicer, as applicable, that is not permitted
under applicable law
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or the terms of the related Non-Serviced Mortgage Loan Intercreditor Agreement
and Non-Serviced Mortgage Loan Pooling and Servicing Agreement. Notwithstanding
the foregoing, any such party may only exercise any purchase option or cure
rights with respect to a Non-Serviced Companion Mortgage Loan in its individual
capacity and not on behalf of the Trust.
SECTION 9.40 RIGHTS OF THE HOLDER OF A B NOTE.
With respect to each A/B Mortgage Loan (if any), the holder of the B
Note shall have such consent rights or consultation rights, if any, during the
specified time periods, as are set forth in the related Intercreditor Agreement.
Notwithstanding the foregoing, if the Master Servicer or Special
Servicer, as applicable, determines, in accordance with the Servicing Standard,
that immediate action is necessary to protect the interest of the
Certificateholders and the holder of any related Serviced Companion Mortgage
Loan (as a collective whole), then the Master Servicer or Special Servicer, as
applicable may take any such action without waiting for the response of the
holder of the B Note provided for in the related Intercreditor Agreement.
In addition, with respect to any A/B Mortgage Loan, to the extent
provided for in the related Intercreditor Agreement, the holder of the B Note
may direct the Master Servicer or Special Servicer, as applicable, to take, or
to refrain from taking, such actions as the holder of the B Note may deem
advisable or as to which provision is otherwise made herein. Upon reasonable
request, the Master Servicer or Special Servicer, as applicable, shall, with
respect to any A/B Mortgage Loan, provide the holder of the B Note with any
information in the Master Servicer's or Special Servicer's, as applicable,
possession with respect to such matters, including its reasons for determining
to take a proposed action.
In the event that the holder of the B Note shall direct the Master
Servicer or the Special Servicer to take any action (other than those provided
for in the related Intercreditor Agreement), the Master Servicer or the Special
Servicer shall be entitled to receive reimbursement from collections on and
other proceeds of the B Note for (i) its reasonable out-of-pocket expenses
incurred in taking such action and (ii) to the extent that such action
constitutes an extraordinary action not in the ordinary course of administering
and servicing such mortgage loan, other reasonable costs incurred by the Master
Servicer or the Special Servicer in taking such action. The Master Servicer or
the Special Servicer shall notify the holder of the B Note, prior to taking the
related action, if the Master Servicer or the Special Servicer anticipates that
it will seek reimbursement therefor under the preceding sentence, and of the
estimated amount of such reimbursement, and shall further notify the holder of
the B Note if it intends to obtain actual reimbursement in excess of the
estimated amount.
Notwithstanding anything herein to the contrary, no advice, direction
or objection from the holder of the B Note, as contemplated by this Section
9.40, may (and the Master Servicer and Special Servicer, as applicable, shall
ignore and act without regard to any such advice, direction or objection that
the Master Servicer or Special Servicer, as applicable, has determined, in
accordance with the Servicing Standard, will) require or cause the Master
Servicer or Special Servicer to violate any provision of this Agreement or the
Mortgage Loans,
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including the Master Servicer's and Special Servicer's obligation to act in
accordance with the Servicing Standard.
A holder of any PCF B Note shall be entitled to terminate the Special
Servicer with respect to the related PCF A/B Mortgage Loan as set forth in
Section 9.30(d) of this Agreement.
SECTION 9.41 LAKEFOREST MALL MORTGAGE LOAN OPERATING ADVISER CURE
RIGHTS
For so long as the holders of the Class LF Certificates are entitled
to appoint the Lakeforest Mall Mortgage Loan Operating Adviser, the Lakeforest
Mall Mortgage Loan Operating Adviser will also have the option to cure (a) a
default in the payment of a Scheduled Payment with respect to the Lakeforest
Mall Mortgage Loan within four (4) days of the receipt of notice of that
default, (b) any other default susceptible to cure by the payment of money
within 10 business days from the receipt of notice of that default and (c) a
non-monetary default within 30 days from the receipt of notice of that default;
provided that (x) no more than 3 consecutive cures of defaulted Scheduled
Payments in any 12-month period are permitted, and (y) no more than 6 cures of
defaulted Scheduled Payments in the aggregate over the term of the Lakeforest
Mall Mortgage Loan are permitted.
ARTICLE X
PURCHASE AND TERMINATION OF THE TRUST
SECTION 00.0 XXXXXXXXXXX XX XXXXX XXXX XXXXXXXXXX OR LIQUIDATION OF
ALL MORTGAGE LOANS.
(a) The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent, to make
payments to the Class R-I Certificateholders, the Class R-II Certificateholders
and the Class R-III Certificateholders as set forth in Section 10.2 and other
than the obligations in the nature of information or tax reporting) shall
terminate on the earliest of (i) the later of (A) the final payment or other
liquidation of the last Mortgage Loan remaining in the Trust (and final
distribution to the Certificateholders) and (B) the disposition of all REO
Property (and final distribution to the Certificateholders) or (ii) the sale of
the property held by the Trust in accordance with Section 10.1(b) or (iii) the
termination of the Trust pursuant to Section 10.1(c) below; provided that in no
event shall the Trust created hereby continue beyond the expiration of 21 years
from the death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the
late Ambassador of the United States to the Court of St. Xxxxx, living on the
date hereof.
(b) The Master Servicer shall give the Trustee, the Luxembourg Paying
Agent and the Paying Agent notice of the date when the Aggregate Principal
Balance of the Mortgage Loans is less than or equal to one percent (1%) of the
initial Aggregate Principal Balance of the Mortgage Loans (including the
Lakeforest Mall Mortgage Loan Non-Pooled Component) as of the Cut-Off Date. The
Paying Agent shall promptly forward such notice to the Trustee, the Depositor,
the Holder of a majority of the Controlling Class, the Master Servicer, the
Special Servicer and the Holders of the Class R-I Certificates; and the Holder
of a majority of the Controlling Class, the Master Servicer, the Special
Servicer and the Holders of the Class R-I
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Certificates, in such priority (and in the case of the Class R-I
Certificateholders, a majority of the Class R-I Certificateholders), may
purchase, in whole only, the Mortgage Loans (including the Lakeforest Mall
Mortgage Loan Non-Pooled Component) and any other property, if any, remaining in
the Trust. If any party desires to exercise such option, it will notify the
Trustee who will notify any party with a prior right to exercise such option. If
any party that has been provided notice by the Trustee (excluding the Depositor)
notifies the Trustee within ten Business Days after receiving notice of the
proposed purchase that it wishes to purchase the assets of the Trust, then such
party (or, in the event that more than one of such parties notifies the Trustee
that it wishes to purchase the assets of the Trust, the party with the first
right to purchase the assets of the Trust) may purchase the assets of the Trust
in accordance with this Agreement. Upon the Paying Agent's receipt of the
Termination Price set forth below, the Trustee shall promptly release or cause
to be released to the Master Servicer for the benefit of the Holder of a
majority of the Controlling Class, the Holder of a majority of the Class R-I
Certificates, the Special Servicer or the Master Servicer, as the case may be,
the Mortgage Files pertaining to the Mortgage Loans. The "Termination Price"
shall equal 100% of the aggregate Principal Balances of the Mortgage Loans
(including the Lakeforest Mall Mortgage Loan Non-Pooled Component) (other than
Mortgage Loans as to which a Final Recovery Determination has been made) on the
day of such purchase plus accrued and unpaid interest thereon at the applicable
Mortgage Rates (or Mortgage Rates less the Master Servicing Fee Rate if the
Master Servicer is the purchaser), with respect to the Mortgage Loans to the Due
Date for each Mortgage Loan ending in the Collection Period with respect to
which such purchase occurs, plus unreimbursed Advances and interest on such
unreimbursed Advances at the Advance Rate, and the fair market value of any
other property remaining in REMIC I. The Trustee shall consult with the
Placement Agents and the Underwriters or their respective successors, as
advisers, in order for the Trustee to determine whether the fair market value of
the property constituting the Trust has been offered; provided that, if an
Affiliate of the Placement Agent or the Underwriters is exercising its right to
purchase the Trust assets, the Trustee shall consult with the Operating Adviser
in order for the Trustee to determine the fair market value, provided that the
Operating Adviser is not an Affiliate of the Class R-I Holder, the Special
Servicer or the Master Servicer, or the Trustee (the fees and expenses of such
determination which shall be paid for by the buyer of the property). As a
condition to the purchase of the Trust pursuant to this Section 10.1(b), the
Holder of a majority of the Controlling Class, the Holder of a majority of the
Class R-I Certificates, the Special Servicer or the Master Servicer, as the case
may be, must deliver to the Trustee an Opinion of Counsel, which shall be at the
expense of such Holders, the Special Servicer or the Master Servicer, as the
case may be, stating that such termination will be a "qualified liquidation"
under section 860F(a)(4) of the Code. Such purchase shall be made in accordance
with Section 10.3.
(c) If at any time the Holders of the Class R-I Certificates own 100%
of the REMIC III Certificates such Holders may terminate REMIC I (which will in
turn result in the termination of REMIC II and REMIC III) upon (i) the delivery
to the Trustee and the Depositor of an Opinion of Counsel (which opinion shall
be at the expense of such Holders) stating that such termination will be a
"qualified liquidation" of each REMIC Pool under Section 860F of the Code, and
(ii) the payment of any and all costs associated with such termination. Such
termination shall be made in accordance with Section 10.3.
(d) Upon the termination of the Trust, any funds or other property
held by the Class Q Grantor Trust shall be distributed to the Class Q
Certificateholders on a pro rata basis,
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whether or not the respective Certificate Balances of the Class Q Certificates
have been reduced to zero.
(e) Upon the sale of the A Note relating to an A/B Mortgage Loan by
the Trust or the payment in full of such A Note, the related B Note shall no
longer be subject to this Agreement and shall no longer be serviced by the
Master Servicer or the Special Servicer.
SECTION 10.2 PROCEDURE UPON TERMINATION OF TRUST.
(a) Notice of any termination pursuant to the provisions of Section
10.1, specifying the Distribution Date upon which the final distribution shall
be made, shall be given promptly by the Trustee by first class mail to the
Paying Agent, the Rating Agencies, the Holders of the Residual Certificates and
the REMIC Regular Certificates mailed no later than ten days prior to the date
of such termination. Such notice shall specify (A) the Distribution Date upon
which final distribution on the Residual Certificates and the REMIC Regular
Certificates will be made, and upon presentation and surrender of the Residual
Certificates and the REMIC Regular Certificates at the office or agency of the
Certificate Registrar therein specified, and (B) that the Record Date otherwise
applicable to such Distribution Date is not applicable, distribution being made
only upon presentation and surrender of the Residual Certificates and the REMIC
Regular Certificates at the office or agency of the Certificate Registrar
therein specified. The Trustee shall give such notice to the Depositor and the
Certificate Registrar at the time such notice is given to Holders of the
Residual Certificates and the REMIC Regular Certificates. Upon any such
termination, the duties of the Certificate Registrar with respect to the
Residual Certificates and the REMIC Regular Certificates shall terminate and the
Trustee shall terminate, or request the Master Servicer and the Paying Agent to
terminate, the Certificate Account and the Distribution Account and any other
account or fund maintained with respect to the Certificates, subject to the
Paying Agent's obligation hereunder to hold all amounts payable to the Holders
of the Residual Certificates and the REMIC Regular Certificates in trust without
interest pending such payment.
(b) In the event that all of the Holders do not surrender their
certificates evidencing the Residual Certificates and the REMIC Regular
Certificates for cancellation within three months after the time specified in
the above-mentioned written notice, the Certificate Registrar shall give a
second written notice to the remaining Holders of the Residual Certificates and
the REMIC Regular Certificates to surrender their certificates evidencing the
Residual Certificates and the REMIC Regular Certificates for cancellation and
receive the final distribution with respect thereto. If within one year after
the second notice any Residual Certificates and the REMIC Regular Certificates
shall not have been surrendered for cancellation, the Certificate Registrar may
take appropriate steps to contact the remaining Holders of the Residual
Certificates and the REMIC Regular Certificates concerning surrender of such
certificates, and the cost thereof shall be paid out of the amounts
distributable to such Holders. If within two years after the second notice any
such Residual Certificates and the REMIC Regular Certificates shall not have
been surrendered for cancellation, the Paying Agent shall, subject to applicable
state law relating to escheatment, hold all amounts distributable to such
Holders for the benefit of such Holders. No interest shall accrue on any amount
held by the Trustee and not distributed to a Holder of a Residual Certificates
and the REMIC Regular Certificates due to such Certificateholder's failure to
surrender its Certificate(s) for payment of
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the final distribution thereon in accordance with this Section. Any money held
by the Paying Agent pending distribution under this Section 10.2 after 90 days
after the adoption of a plan of complete liquidation shall be deemed for tax
purposes to have been distributed from the REMIC Pools and shall be beneficially
owned by the related Holder.
SECTION 10.3 ADDITIONAL TRUST TERMINATION REQUIREMENTS.
(a) The Trust and each REMIC Pool shall be terminated in accordance
with the following additional requirements, unless at the request of the Master
Servicer or the Class R-I Certificateholders, as the case may be, the Trustee
seeks, and the Paying Agent subsequently receives an Opinion of Counsel (at the
expense of the Master Servicer or the Class R-I Certificateholders, as the case
may be), addressed to the Depositor, the Trustee and the Paying Agent to the
effect that the failure of the Trust to comply with the requirements of this
Section 10.3 will not (i) result in the imposition of taxes on "prohibited
transactions" on any REMIC Pool under the REMIC Provisions or (ii) cause any
REMIC Pool to fail to qualify as a REMIC at any time that any Certificates are
outstanding:
(i) Within 89 days prior to the time of the making of the final
payment on the REMIC III Certificates, the Master Servicer shall prepare and the
Trustee (on behalf of REMIC I, REMIC II or REMIC III) shall adopt a plan of
complete liquidation of the REMIC I Pool, meeting the requirements of a
qualified liquidation under the REMIC Provisions, which plan need not be in any
special form and the date of which, in general, shall be the date of the notice
specified in Section 10.2(a) and shall be specified in a statement attached to
the federal income tax return of each REMIC Pool;
(ii) At or after the date of adoption of such a plan of complete
liquidation and at or prior to the time of making of the final payment on the
REMIC III Certificates, the Trustee shall sell all of the assets of the Trust
for cash at the Termination Price; provided that if the Holders of the Class R-I
Certificates are purchasing the assets of the Trust, the amount to be paid by
such Holders may be paid net of the amount to be paid to such Holders as final
distributions on any Certificates held by such Holders;
(iii) At the time of the making of the final payment on the
Certificates, the Paying Agent shall distribute or credit, or cause to be
distributed or credited, (A) to the Holders of the Class R-I Certificates all
assets of REMIC I remaining after such final payment of the REMIC I Regular
Interests, (B) to the Holders of the Class R-II Certificates all assets of REMIC
II remaining after such final payment of the REMIC II Regular Interests and (C)
to the Holders of the Class R-III Certificates all remaining assets of REMIC III
(in each case other than cash retained to meet claims), and the Trust shall
terminate at that time; and
(iv) In no event may the final payment on the REMIC I Regular
Interests, REMIC II Regular Interests or REMIC Regular Certificates or the final
distribution or credit to the Holders of the Residual Certificates,
respectively, be made after the 89th day from the date on which the plan of
complete liquidation is adopted.
(b) By their acceptance of the Class R-I, Class R-II or Class R-III
Certificates, respectively, the Holders thereof hereby (i) authorize the Trustee
to take such action as may be necessary to adopt a plan of complete liquidation
of the REMIC Pool, and (ii) agree to take such
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other action as may be necessary to adopt a plan of complete liquidation of the
Trust upon the written request of the Depositor, which authorization shall be
binding upon all successor Class R-I, Class R-II and Class R-III
Certificateholders, respectively.
ARTICLE XI
RIGHTS OF CERTIFICATEHOLDERS
SECTION 11.1 LIMITATION ON RIGHTS OF HOLDERS.
(a) The death or incapacity of any Certificateholder shall not operate
to terminate this Agreement or the Trust, nor entitle such Certificateholder's
legal representatives or heirs to claim an accounting or take any action or
proceeding in any court for a partition or winding up of the Trust, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
(b) Except as otherwise expressly provided herein, no
Certificateholder, solely by virtue of its status as a Certificateholder, shall
have any right to vote or in any manner otherwise control the Master Servicer or
operation and management of the Trust, or the obligations of the parties hereto,
nor shall anything herein set forth, or contained in the terms of the
Certificates, be construed so as to constitute the Certificateholders from time
to time as partners or members of an association, nor shall any
Certificateholder be under any liability to any third person by reason of any
action taken by the parties to this Agreement pursuant to any provision hereof.
(c) No Certificateholder, solely by virtue of its status as
Certificateholder, shall have any right by virtue or by availing of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement unless the
Holders of Certificates evidencing not less than 50% of the Aggregate Principal
Amount of the Certificates then outstanding shall have made written request upon
the Trustee to institute such action, suit or proceeding in its own name as
Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the cost, expenses and liabilities to be
incurred therein or thereby, and the Trustee, for sixty days after its receipt
of such notice, request and offer of indemnity, shall have neglected or refused
to institute any such action, suit or proceeding and no direction inconsistent
with such written request has been given the Trustee during such sixty-day
period by such Certificateholders; it being understood and intended, and being
expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Holders of Certificates
shall have any right in any manner whatever by virtue or by availing of any
provision of this Agreement to affect, disturb or prejudice the rights of the
Holders of any other of such Certificates, or to obtain or seek to obtain
priority over or preference to any other such Holder, or to enforce any right
under this Agreement, except in the manner herein provided and for the benefit
of all Certificateholders. For the protection and enforcement of the provisions
of this Section, each and every Certificateholder and the Trustee shall be
entitled to such relief as can be given either at law or in equity.
SECTION 11.2 ACCESS TO LIST OF HOLDERS.
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(a) If the Paying Agent is not acting as Certificate Registrar, the
Certificate Registrar will furnish or cause to be furnished to the Trustee and
the Paying Agent, within fifteen days after receipt by the Certificate Registrar
of a request by the Trustee or the Paying Agent, as the case may be, in writing,
a list, in such form as the Trustee or the Paying Agent, as the case may be, may
reasonably require, of the names and addresses of the Certificateholders of each
Class as of the most recent Record Date.
(b) If the Depositor, the Operating Adviser, the Special Servicer, the
Master Servicer, the Trustee or three or more Holders (hereinafter referred to
as "applicants," with a single Person which (together with its Affiliates) is
the Holder of more than one Class of Certificates being viewed as a single
"applicant" for these purposes) apply in writing to the Paying Agent and such
application states that the applicants desire to communicate with other Holders
with respect to their rights under this Agreement or under the Certificates and
is accompanied by a copy of the communication which such applicants propose to
transmit, then the Paying Agent shall, within five Business Days after the
receipt of such application, send, at such Person's expense, the written
communication proffered by the applicants to all Certificateholders at their
addresses as they appear in the Certificate Register.
(c) Every Holder, by receiving and holding a Certificate, agrees with
the Depositor, the Certificate Registrar, the Paying Agent, the Master Servicer
and the Trustee that neither the Depositor, the Certificate Registrar, the
Paying Agent, the Master Servicer nor the Trustee shall be held accountable by
reason of the disclosure of any such information as to the names and addresses
of the Certificateholders hereunder, regardless of the source from which such
information was derived.
SECTION 11.3 ACTS OF HOLDERS OF CERTIFICATES.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Agreement to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Depositor and
the Paying Agent. Such instrument or instruments (as the action embodies therein
and evidenced thereby) are herein sometimes referred to as an "Act" of the
Holders signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agents shall be sufficient for
any purpose of this Agreement and conclusive in favor of the Trustee, the
Depositor and the Paying Agent, if made in the manner provided in this Section.
The Trustee agrees to promptly notify the Depositor of any such instrument or
instruments received by it, and to promptly forward copies of the same.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer authorized
by law to take acknowledgments or deeds, certifying that the individual signing
such instrument or writing acknowledged to such notary public or other officer
the execution thereof. Whenever such execution is by an officer of a corporation
or a member of a partnership on behalf of such corporation or partnership, such
certificate or
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affidavit shall also constitute sufficient proof of such officer's or member's
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the individual executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
(c) The ownership of Certificates (notwithstanding any notation of
ownership or other writing thereon made by anyone other than the Trustee) shall
be proved by the Certificate Register, and neither the Trustee nor the Depositor
nor the Paying Agent shall be affected by any notice to the contrary.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Certificate shall bind every future
Holder of the same Certificate and the Holder of every Certificate issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof,
in respect of anything done, omitted or suffered to be done by the Trustee, the
Paying Agent or the Depositor in reliance thereon, whether or not notation of
such action is made upon such Certificate.
ARTICLE XII
REMIC AND GRANTOR TRUST ADMINISTRATION
The provisions of this Article XII shall apply to each REMIC Pool and
the Class Q Grantor Trust, as applicable.
SECTION 12.1 REMIC ADMINISTRATION.
(a) An election will be made by the Paying Agent on behalf of the
Trustee to treat the segregated pool of assets consisting of the Mortgage Loans
(other than Excess Interest payable thereon), such amounts with respect thereto
as shall from time to time be held in the Certificate Account, the Interest
Reserve Account, the Reserve Account and the Distribution Account (exclusive of
the Excess Interest Sub-account), the Insurance Policies and any related amounts
in the REO Account and any related REO Properties as a REMIC ("REMIC I") under
the Code, other than any portion of the foregoing amounts allocable to a B Note
or Serviced Companion Mortgage Loan. Such elections will be made on Form 1066 or
other appropriate federal tax or information return or any appropriate state
return for the taxable year ending on the last day of the calendar year in which
the REMIC I Interests are issued. For purposes of such election, the REMIC I
Regular Interests shall each be designated as a separate Class of "regular
interests" in REMIC I and the Class R-I Certificates shall be designated as the
sole Class of "residual interests" in REMIC I.
An election will be made by the Paying Agent to treat the segregated
pool of assets consisting of the REMIC I Regular Interests as a REMIC ("REMIC
II") under the Code. Such election will be made on Form 1066 or other
appropriate federal tax or information return or any appropriate state return
for the taxable year ending on the last day of the calendar year in which the
REMIC II Interests are issued. For the purposes of such election, the REMIC II
Regular Interests shall be designated as the "regular interests" in REMIC II and
the Class R-II Certificates shall be designated as the sole Class of the
"residual interests" in REMIC II.
An election will be made by the Paying Agent to treat the segregated
pool of assets consisting of the REMIC II Regular Interests as a REMIC ("REMIC
III") under the Code.
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Such election will be made on Form 1066 or other appropriate federal tax or
information return or any appropriate state return for the taxable year ending
on the last day of the calendar year in which the REMIC III Certificates are
issued. For purposes of such election, the Class A-1, Class X-0, Xxxxx X-0,
Class A-AB, Class X-0X, Xxxxx X-0X, Xxxxx X-X, Class X, Class B, Class C, Class
D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class
N, Class O, Class P, Class LF and Class Q Certificates (but other than the Class
Q Grantor Trust Interest) shall be designated as the "regular interests" in
REMIC III and the Class R-III Certificates shall be designated as the sole Class
of "residual interests" in REMIC III.
The Trustee and the Paying Agent shall not permit the creation of any
"interests" (within the meaning of Section 860G of the Code) in any of the REMIC
Pools other than the REMIC I Regular Interests, the REMIC II Regular Interests,
the REMIC III Regular Interests and the Residual Certificates.
(b) The Closing Date is hereby designated as the "Startup Day" of each
REMIC Pool within the meaning of Section 860G(a)(9) of the Code.
(c) The Paying Agent shall pay all routine tax related expenses (not
including any taxes, however denominated, including any additions to tax,
penalties and interest) of each REMIC Pool, excluding any professional fees or
extraordinary expenses related to audits or any administrative or judicial
proceedings with respect to each REMIC Pool that involve the Internal Revenue
Service or state tax authorities.
(d) The Paying Agent shall cause to be prepared, signed, and timely
filed with the Internal Revenue Service, on behalf of each REMIC Pool, an
application for a taxpayer identification number for such REMIC Pool on Internal
Revenue Service Form SS-4. The Paying Agent, upon receipt from the Internal
Revenue Service of the Notice of Taxpayer Identification Number Assigned, shall
promptly forward a copy of such notice to the Depositor and the Master Servicer.
The Paying Agent shall prepare and file Form 8811 on behalf of each REMIC Pool
and shall designate an appropriate Person to respond to inquiries by or on
behalf of Certificateholders for original issue discount and related information
in accordance with applicable provisions of the Code.
(e) The Paying Agent shall prepare and file, or cause to be prepared
and filed, all of each REMIC Pool's federal and state income or franchise tax
and information returns as such REMIC Pool's direct representative, and the
Trustee shall sign such returns; the expenses of preparing and filing such
returns shall be borne by the Paying Agent, except that if additional state tax
returns are required to be filed in more than three states, the Paying Agent
shall be entitled, with respect to any such additional filings, to (i) be paid a
reasonable fee and (ii) receive its reasonable costs and expenses, both as
amounts reimbursable pursuant to Section 5.2(a)(vi) hereof. The Depositor, the
Master Servicer and the Special Servicer shall provide on a timely basis to the
Paying Agent or its designee such information with respect to the Trust or any
REMIC Pool as is in its possession, which the Depositor or the Master Servicer
and the Special Servicer has received or prepared by virtue of its role as
Depositor or Master Servicer and the Special Servicer hereunder and reasonably
requested by the Paying Agent to enable it to perform its obligations under this
subsection, and the Paying Agent shall be entitled to conclusively rely on such
information in the performance of its obligations hereunder. The Depositor shall
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indemnify the Trust, the Trustee, the Paying Agent and the Fiscal Agent for any
liability or assessment against any of them or cost or expense (including
attorneys' fees) incurred by them resulting from any error resulting from bad
faith, negligence, or willful malfeasance of the Depositor in providing any
information for which the Depositor is responsible for preparing. The Master
Servicer and the Special Servicer shall indemnify the Trustee, the Fiscal Agent,
the Paying Agent and the Depositor for any liability or assessment against the
Trustee, the Fiscal Agent, the Depositor, the Paying Agent or any REMIC Pool and
any expenses incurred in connection with such liability or assessment (including
attorneys' fees) resulting from any error in any of such tax or information
returns resulting from errors in the information provided by the Master Servicer
or the Special Servicer, as the case may be, or caused by the negligence,
willful misconduct or bad faith of the Master Servicer or the Special Servicer,
as the case may be. The Paying Agent shall indemnify the Master Servicer, the
Depositor or any REMIC Pool for any expense incurred by the Master Servicer, the
Depositor and any REMIC Pool resulting from any error in any of such tax or
information returns resulting from errors in the preparation of such returns
caused by the negligence, willful misconduct or bad faith of the Paying Agent.
Each indemnified party shall immediately notify the indemnifying party or
parties of the existence of a claim for indemnification under this Section
12.1(e), and provide the indemnifying party or parties, at the expense of such
indemnifying party or parties, an opportunity to contest the tax or assessment
or expense giving rise to such claim, provided that the failure to give such
notification rights shall not affect the indemnification rights in favor of any
REMIC Pool under this Section 12.1(e). Any such indemnification shall survive
the resignation or termination of the Master Servicer, the Paying Agent or the
Special Servicer, or the termination of this Agreement.
(f) The Paying Agent shall perform on behalf of each REMIC Pool all
reporting and other tax compliance duties that are the responsibility of such
REMIC Pool under the Code, REMIC Provisions, or other compliance guidance issued
by the Internal Revenue Service or any state or local taxing authority. Among
its other duties, the Paying Agent shall provide (i) to the Internal Revenue
Service or other Persons (including, but not limited to, the Transferor of a
Residual Certificate, to a Disqualified Organization or to an agent that has
acquired a Residual Certificate on behalf of a Disqualified Organization) such
information as is necessary for the application of any tax relating to the
transfer of a Residual Certificate to any Disqualified Organization and (ii) to
the Certificateholders such information or reports as are required by the Code
or REMIC Provisions.
(g) The Paying Agent shall forward to the Depositor copies of
quarterly and annual REMIC tax returns and Internal Revenue Service Form 1099
information returns and such other information within the control of the Paying
Agent as the Depositor may reasonably request in writing. Moreover, the Paying
Agent shall forward to each Certificateholder such forms and furnish such
information within its control as are required by the Code to be furnished to
them, shall prepare and file with the appropriate state authorities as may to
the actual knowledge of a Responsible Officer of the Paying Agent be required by
applicable law and shall prepare and disseminate to Certificateholders Internal
Revenue Service Forms 1099 (or otherwise furnish information within the control
of the Paying Agent) to the extent required by applicable law. The Paying Agent
will make available to any Certificateholder any tax related information
required to be made available to Certificateholders pursuant to the Code and any
regulations thereunder.
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(h) The Holder of more than 50% of the Percentage Interests in Class
R-I, Class R-II and Class R-III Certificates, respectively (or of the greatest
percentage of such Class R-I, Class R-II and Class R-III Certificates if no
Holder holds more than 50% thereof), shall be the applicable REMIC Pool's Tax
Matters Person. The duties of the Tax Matters Person for each of the REMIC Pools
are hereby delegated to the Paying Agent and each Residual Certificateholder, by
acceptance of its Residual Certificate, agrees, on behalf of itself and all
successor holders of such Residual Certificate, to such delegation to the Paying
Agent as their agent and attorney in fact. If the Code or applicable regulations
prohibits the Paying Agent from signing any applicable Internal Revenue Service,
court or other administrative documents or from acting as Tax Matters Person (as
an agent or otherwise), the Paying Agent shall take whatever action is necessary
for the signing of such documents and designation of a Tax Matters Person,
including the designation of such Residual Certificateholder. The Paying Agent
shall not be required to expend or risk its own funds or otherwise incur any
other financial liability in the performance of its duties hereunder or in the
exercise of any of its rights or powers (except to the extent of the ordinary
expenses of performing its duties under this Agreement), if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
(i) The Trustee, the Paying Agent, the Holders of the Residual
Certificates, the Master Servicer and the Special Servicer shall each exercise
reasonable care, to the extent within its control, and with respect to each of
the Trustee, Paying Agent, the Master Servicer and the Special Servicer, within
the scope of its express duties, and shall each act in accordance with this
Agreement and the REMIC Provisions in order to create and maintain the status of
each REMIC Pool as a REMIC and the Class Q Grantor Trust as a grantor trust or,
as appropriate, adopt a plan of complete liquidation with respect to each REMIC
Pool.
(j) The Trustee, the Paying Agent, the Master Servicer, the Special
Servicer, the Fiscal Agent and the Holders of Residual Certificates shall not
take any action or fail to take any action or cause any REMIC Pool to take any
action or fail to take any action if any of such persons knows or could, upon
the exercise of reasonable diligence, know, that, under the REMIC Provisions
such action or failure, as the case may be, could (i) endanger the status of any
REMIC Pool as a REMIC (ii) result in the imposition of a tax upon any REMIC Pool
(including but not limited to the tax on prohibited transactions as defined in
Code Section 860F(a)(2)) or (iii) endanger the status of the Class Q Grantor
Trust as a grantor trust unless the Trustee and the Paying Agent have received
an Opinion of Counsel (at the expense of the party seeking to take such action)
to the effect that the contemplated action will not endanger such status or
result in the imposition of such a tax. Any action required under this section
which would result in an unusual or unexpected expense shall be undertaken at
the expense of the party seeking the Trustee, the Paying Agent or the Holders of
the Residual Certificates to undertake such action.
(k) In the event that any tax is imposed on any REMIC created
hereunder, including, without limitation, "prohibited transactions" taxes as
defined in Section 860F(a)(2) of the Code, any tax on "net income from
foreclosure property" as defined in Section 860G(c) of the Code, any taxes on
contributions to any REMIC created hereunder after the Startup Day pursuant to
Section 860G(d) of the Code, and any other tax imposed by the Code or any
applicable provisions of state or local tax laws (other than any tax permitted
to be incurred by the Special Servicer pursuant to Section 9.14(e)), such tax,
together with all incidental costs and
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expenses (including, without limitation, penalties and reasonable attorneys'
fees), shall be charged to and paid by: (i) the Paying Agent, if such tax arises
out of or results from a breach of any of its obligations under this Agreement;
(ii) the Special Servicer, if such tax arises out of or results from a breach by
the Special Servicer of any of its obligations under this Agreement; (iii) the
Master Servicer, if such tax arises out of or results from a breach by the
Master Servicer of any of its obligations under this Agreement; (iv) the Fiscal
Agent, if such tax arises out of or results from a breach by the Fiscal Agent of
any of its obligations under this Agreement; and (v) the Trust in all other
instances. Any tax permitted to be incurred by the Special Servicer pursuant to
Section 9.14(e) shall be charged to and paid by the Trust from the net income
generated on the related REO Property. Any such amounts payable by the Trust in
respect of taxes shall be paid by the Paying Agent out of amounts on deposit in
the Distribution Account.
(l) The Paying Agent and, to the extent that books and records are
maintained by the Master Servicer or the Special Servicer in the normal course
of its business, the Master Servicer and the Special Servicer shall, for federal
income tax purposes, maintain books and records with respect to each REMIC Pool
on a calendar year and on an accrual basis. Notwithstanding anything to the
contrary contained herein, except to the extent provided otherwise in the
Mortgage Loans or in the Mortgages, all amounts collected on the Mortgage Loans
shall, for federal income tax purposes, be allocated first to interest due and
payable on the Mortgage Loans (including interest on overdue interest, other
than additional interest at a penalty rate payable following a default). The
books and records must be sufficient concerning the nature and amount of each
REMIC Pool's investments to show that such REMIC Pool has complied with the
REMIC Provisions.
(m) Neither the Trustee, the Paying Agent, the Master Servicer nor the
Special Servicer shall enter into any arrangement by which any REMIC Pool will
receive a fee or other compensation for services.
(n) In order to enable the Paying Agent to perform its duties as set
forth herein, the Depositor shall provide, or cause to be provided, to the
Paying Agent within ten (10) days after the Closing Date all information or data
that the Paying Agent reasonably determines to be relevant for tax purposes on
the valuations and offering prices of the Certificates, including, without
limitation, the yield, prepayment assumption, issue prices and projected cash
flows of the Certificates, as applicable, and the projected cash flows of the
Mortgage Loans. Thereafter, the Depositor shall provide to the Paying Agent or
its designee, promptly upon request therefor, any such additional information or
data within the Depositor's possession or knowledge that the Paying Agent may,
from time to time, reasonably request in order to enable the Paying Agent to
perform its duties as set forth herein. The Paying Agent is hereby directed to
use any and all such information or data provided by the Depositor in the
preparation of all federal and state income or franchise tax and information
returns and reports for each REMIC Pool to Certificateholders as required
herein. The Depositor hereby indemnifies the Trustee, the Paying Agent, the
Fiscal Agent, and each REMIC Pool for any losses, liabilities, damages, claims,
expenses (including attorneys' fees) or assessments against the Trustee, the
Paying Agent, the Fiscal Agent and each REMIC Pool arising from any errors or
miscalculations of the Paying Agent pursuant to this Section that result from
any failure of the Depositor to provide, or to cause to be provided, accurate
information or data to the Paying Agent (but not resulting from the methodology
employed by the Paying Agent) on a timely basis and such indemnification shall
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survive the termination of this Agreement and the termination or resignation of
the Paying Agent and the Fiscal Agent.
The Paying Agent agrees that all such information or data so obtained
by it are to be regarded as confidential information and agrees that it shall
use its reasonable best efforts to retain in confidence, and shall ensure that
its officers, employees and representatives retain in confidence, and shall not
disclose, without the prior written consent of the Depositor, any or all of such
information or data, or make any use whatsoever (other than for the purposes
contemplated by this Agreement) of any such information or data without the
prior written consent of the Depositor, unless such information is generally
available to the public (other than as a result of a breach of this Section
12.1(n)) or is required by law or applicable regulations to be disclosed or is
disclosed (i) to independent auditors and accountants, counsel and other
professional advisers of the Paying Agent and its parent, or (ii) in connection
with its rights and obligations under this Agreement.
(o) At all times as may be required by the Code, the Master Servicer
will to the extent within its control and the scope of its duties more
specifically set forth herein, maintain substantially all of the assets of REMIC
I as "qualified mortgages" as defined in Section 860G(a)(3) of the Code and
"permitted investments" as defined in Section 860G(a)(5) of the Code.
(p) For the purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
Regulations, the "latest possible maturity date" for each Class of Certificates
representing a regular interest in REMIC III, for each Class of REMIC I Regular
Interests and for each Class of REMIC II Regular Interests is the Rated Final
Distribution Date.
SECTION 12.2 PROHIBITED TRANSACTIONS AND ACTIVITIES. Neither the
Trustee, the Paying Agent, the Master Servicer nor the Special Servicer shall
permit the sale, disposition or substitution of any of the Mortgage Loans
(except in a disposition pursuant to (i) the foreclosure or default of a
Mortgage Loan, (ii) the bankruptcy or insolvency of any REMIC Pool, (iii) the
termination of any REMIC Pool in a "qualified liquidation" as defined in Section
860F(a)(4) of the Code, or (iv) a substitution pursuant to Article II hereof),
nor acquire any assets for the Trust, except as provided in Article II hereof,
nor sell or dispose of any investments in the Certificate Account or
Distribution Account for gain, nor accept any contributions to any REMIC Pool
(other than a cash contribution during the 3-month period beginning on the
Startup Day), unless it has received an Opinion of Counsel (at the expense of
the Person requesting such action) to the effect that such disposition,
acquisition, substitution, or acceptance will not (A) affect adversely the
status of any REMIC Pool as a REMIC or of the REMIC Certificates, other than the
Residual Certificates, as the regular interests therein, (B) affect the
distribution of interest or principal on the Certificates, (C) result in the
encumbrance of the assets transferred or assigned to any REMIC Pool (except
pursuant to the provisions of this Agreement) or (D) cause any REMIC Pool to be
subject to a tax on "prohibited transactions" or "prohibited contributions" or
other tax pursuant to the REMIC Provisions.
SECTION 12.3 MODIFICATIONS OF MORTGAGE LOANS. Notwithstanding anything
to the contrary in this Agreement, neither the Trustee, the Paying Agent, the
Master Servicer nor the Special Servicer shall permit any modification of a
Money Term of a Mortgage Loan or a
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Specially Serviced Mortgage Loan unless (i) the Trustee, the Special Servicer,
Paying Agent and the Master Servicer have received a Nondisqualification Opinion
or a ruling from the Internal Revenue Service (at the expense of the party
making the request that the Master Servicer or the Special Servicer modify the
Mortgage Loan or a Specially Serviced Mortgage Loan) to the effect that such
modification would not be treated as an exchange pursuant to Section 1001 of the
Code (or, if it would be so treated, would not be treated as a "significant
modification" for purposes of Section 1.860G-2(b) of the Treasury Regulations)
or (ii) such modification meets the requirements set forth in Sections 8.18 or
9.5.
SECTION 12.4 LIABILITY WITH RESPECT TO CERTAIN TAXES AND LOSS OF REMIC
STATUS. In the event that any REMIC Pool fails to qualify as a REMIC, loses its
status as a REMIC, or incurs state or local taxes, or tax as a result of a
prohibited transaction or prohibited contribution subject to taxation under the
REMIC Provisions due to the negligent performance by either the Trustee or the
Paying Agent of its respective duties and obligations set forth herein, the
Trustee or the Paying Agent, as the case may be, shall be liable to the REMIC
Pools and the Holders of the Residual Certificates for any and all losses,
claims, damages, liabilities or expenses ("Losses") resulting from such
negligence and relating to the Residual Certificates; provided, however, that
the Trustee, or the Paying Agent, as applicable, shall not be liable for any
such Losses attributable to the action or inaction of the Master Servicer, the
Special Servicer, the Trustee (with respect to the Paying Agent), the Paying
Agent (with respect to the Trustee), the Depositor or the Holders of such
Residual Certificates nor for any such Losses resulting from any actions or
failure to act based upon reliance on an Opinion of Counsel or from
misinformation provided by the Master Servicer, the Special Servicer, the
Trustee (with respect to the Paying Agent), the Paying Agent (with respect to
the Trustee), the Depositor or such Holders of the Residual Certificates on
which the Trustee or the Paying Agent, as the case may be, has relied. The
foregoing shall not be deemed to limit or restrict the rights and remedies of
the Holders of the Residual Certificates now or hereafter existing at law or in
equity. The Trustee or the Paying Agent shall be entitled to intervene in any
litigation in connection with the foregoing and to maintain control over its
defense.
SECTION 12.5 CLASS Q GRANTOR TRUST.
(a) The assets of the Class Q Grantor Trust, consisting of the right
to any Excess Interest in respect of the ARD Loans and the Excess Interest
Sub-account, shall be held by the Paying Agent for the benefit of the Holders of
the Class Q Grantor Trust Interest, represented by the Class Q Certificates,
which Class Q Certificates, in the aggregate, will evidence 100% beneficial
ownership of such assets from and after the Closing Date. It is intended that
the portion of the Trust consisting of the Class Q Grantor Trust will be treated
as a separate grantor trust for federal income tax purposes, and each of the
parties to this Agreement agrees that it will not take any action that is
inconsistent with establishing or maintaining such treatment. Under no
circumstances may the Paying Agent vary the assets of the Class Q Grantor Trust
so as to take advantage of variations in the market so as to improve the rate of
return of Holders of the Class Q Certificates. The Paying Agent shall be deemed
to hold and shall account for each of the Class Q Grantor Trust separate and
apart from the assets of REMIC I, REMIC II and REMIC III created hereunder.
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(b) The parties intend that the portions of the Trust consisting of
the Class Q Grantor Trust shall constitute, and that the affairs of the Trust
(exclusive of the REMIC Pools) 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 furnish or cause to be furnished to the Class Q
Certificateholders and shall file, or cause to be filed with the Internal
Revenue Service, together with Form 1041 or such other form as may be
applicable, information returns with respect to income and expenses relating to
their shares of the income and expenses of the Class Q Grantor Trust and with
respect to the Class Q Grantor Trust, on the cash or accrual method of
accounting and so as to enable reporting to Holders of Class Q Certificates
based on their annual accounting period, at the time or times and in the manner
required by the Code.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.1 BINDING NATURE OF AGREEMENT. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
SECTION 13.2 ENTIRE AGREEMENT. This Agreement contains the entire
agreement and understanding between the parties hereto with respect to the
subject matter hereof, and supersedes all prior and contemporaneous agreements,
understandings, inducements and conditions, express or implied, oral or written,
of any nature whatsoever with respect to the subject matter hereof. The express
terms hereof control and supersede any course of performance or usage of the
trade inconsistent with any of the terms hereof.
SECTION 13.3 AMENDMENT.
(a) This Agreement may be amended from time to time by the parties
hereto, without notice to or the consent of any of the Holders, (i) to cure any
ambiguity, (ii) to cause the provisions herein to conform to or be consistent
with or in furtherance of the statements made with respect to the Certificates,
the Trust or this Agreement in the Private Placement Memorandum, the Preliminary
Prospectus Supplement, the Final Prospectus Supplement or the Prospectus, or to
correct or supplement any provision herein which may be inconsistent with any
other provisions herein, (iii) to amend any provision hereof to the extent
necessary or desirable to maintain the status of each REMIC Pool as a REMIC (or
the grantor trust created from the related portion of the Trust) for the
purposes of federal income tax law (or comparable provisions of state income tax
law), (iv) to make any other provisions with respect to matters or questions
arising under or with respect to this Agreement not inconsistent with the
provisions hereof, (v) to modify, add to or eliminate the provisions of Article
III relating to transfers of Residual Certificates, (vi) to amend any provision
herein to the extent necessary or desirable to list the Certificates on a stock
exchange, including, without limitation, the appointment of one or more
sub-paying agents and the requirement that certain information be delivered to
such sub-paying agents, (vii) to modify the provisions relating to the timing of
Advance reimbursements in order to conform them to the commercial
mortgage-backed securities industry standard for such provisions if (w) the
Depositor and the Master Servicer determine that that industry standard has
changed, (x) such modification will not result in an Adverse REMIC Event, as
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evidenced by an Opinion of Counsel, (y) each Rating Agency has delivered a
Rating Agency Confirmation with respect to such modification, and (z) the
Operating Adviser consents to such modification or (viii) to make any other
amendment which does not adversely affect in any material respect the interests
of any Certificateholder (unless such Certificateholder consents). No such
amendment effected pursuant to clause (i), (ii) or (iv) of the preceding
sentence shall (A) adversely affect in any material respect the interests of any
Certificateholder not consenting thereto without the consent of 100% of the
Certificateholders (if adversely affected) or (B) adversely affect the status of
any REMIC Pool as a REMIC or the Class Q Grantor Trust. Prior to entering into
any amendment without the consent of Holders pursuant to this paragraph, the
Trustee may require an Opinion of Counsel and a Nondisqualification Opinion (in
the case of clauses (i), (ii) and (iii), at the expense of the Depositor, and
otherwise at the expense of the party requesting such amendment, except that if
the Trustee requests such amendment, such amendment shall be at the expense of
the Depositor, if the Depositor consents), to the effect that such amendment is
permitted under this paragraph. Any such amendment shall be deemed not to
adversely affect in any material economic respect any Holder if the Trustee
receives a Rating Agency Confirmation from each Rating Agency (and any Opinion
of Counsel requested by the Trustee in connection with any such amendment may
rely expressly on such confirmation as the basis therefor).
(b) This Agreement may also be amended from time to time by the
agreement of the parties hereto (without the consent of the Certificateholders)
and with the written confirmation of the Rating Agencies that such amendment
would not cause the ratings on any Class of Certificates to be qualified,
withdrawn or downgraded; provided, however, that such amendment may not effect
any of the items set forth in clauses (i) through (iv) of the proviso in
paragraph (c) of this Section 13.3. The Trustee may request, at its option, to
receive a Nondisqualification Opinion and/or an Opinion of Counsel that such
amendment will not result in an Adverse Grantor Trust Event, as applicable, and
an Opinion of Counsel that any amendment pursuant to this Section 13.3(b) is
permitted by this Agreement at the expense of the party requesting the
amendment.
(c) This Agreement may also be amended from time to time by the
parties with the consent of the Holders of not less than 51% of the Aggregate
Certificate Balance (including the Class LF Certificates) of the Certificates
then outstanding, for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Agreement or of modifying in
any manner the rights of the Holders; provided that no such amendment may (i)
directly or indirectly reduce in any manner the amount of, or delay the timing
of the distributions required to be made on any Certificate without the consent
of the Holder of such Certificate, (ii) reduce the aforesaid percentages of
Aggregate Certificate Percentage or Certificate Balance, the Holders of which
are required to consent to any such amendment without the consent of all the
Holders of each Class of Certificates affected thereby, (iii) eliminate or
reduce the Master Servicer's, the Trustee's or the Fiscal Agent's obligation to
make an Advance, including without limitation, in the case of the Master
Servicer, the obligation to advance on a B Note or Serviced Companion Mortgage
Loan, or alter the Servicing Standard except as may be necessary or desirable to
comply with the REMIC Provisions or (iv) adversely affect the status of any
REMIC Pool as a REMIC for federal income tax purposes (as evidenced by a
Nondisqualification Opinion) without the consent of 100% of the
Certificateholders (including the Class R-I, Class R-II and Class R-III
Certificateholders) or the Class Q Grantor
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Trust as a grantor trust without the consent of 100% of the holders of the Class
Q Certificates; provided that no such amendment may modify Section 8.18 of this
Agreement without Rating Agency Confirmation. The Trustee may request, at its
option, to receive a Nondisqualification Opinion and an Opinion of Counsel that
any amendment pursuant to this Section 13.3(c) is permitted by this Agreement at
the expense of the party requesting the amendment.
(d) The costs and expenses associated with any such amendment shall be
borne by the Depositor in the case the Trustee is the party requesting such
amendment or if pursuant to clauses (i), (ii) and (iii) of Section 13.3(a). In
all other cases, the costs and expenses shall be borne by the party requesting
the amendment.
(e) Promptly after the execution of any such amendment, the Trustee
shall furnish written notification of the substance of such amendment to each
Holder, the Depositor and to the Rating Agencies.
(f) It shall not be necessary for the consent of Holders under this
Section 13.3 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Holders shall be in the affirmative and in writing and
shall be subject to such reasonable regulations as the Trustee may prescribe.
(g) Notwithstanding anything to the contrary contained in this Section
13.3, the parties hereto agree that this Agreement may not be amended in any
manner that is reasonably likely to have an adverse effect on the Primary
Servicer without first obtaining the written consent of the Primary Servicer.
(h) Notwithstanding the fact that the provisions in Section 13.3(c)
would otherwise apply, with respect to any amendment that significantly modifies
the permitted activities of the Trust, the Trustee, the Primary Servicer, the
Master Servicer or the Special Servicer, any Certificate beneficially owned by a
Seller or any of its Affiliates shall be deemed not to be outstanding (and shall
not be considered when determining the percentage of Certificateholders
consenting or when calculating the total number of Certificates entitled to
consent) for purposes of determining if the requisite consents of
Certificateholders under this Section 13.3 have been obtained.
(i) Notwithstanding anything to the contrary contained in this Section
13.3, the parties hereto agree that this Agreement may be amended pursuant to
Section 8.26(d) herein without any notice to or consent of any of the
Certificateholders, Opinions of Counsel, Officer's Certificates or Rating Agency
Confirmation.
(j) Notwithstanding anything to the contrary contained in this Section
13.3, the parties hereto agree that this Agreement may not be amended in any
manner materially adverse to the holder of a PCF B Note without the prior
written consent of the holder of the related PCF B Note.
(k) In addition, in the event that one but not both of the two
Mortgage Notes evidencing either of the East Towne Mall Mortgage Loan or the
West Towne Mall Mortgage Loan is repurchased by either Principal or MSMC, this
Agreement may be amended by the
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parties hereto (at the expense of the party requesting such amendment), without
the consent of any Certificateholder, to add or modify provisions relating to
the applicable Repurchased Note for purposes of the servicing and administration
of such Repurchased Note, provided that the amendment will not adversely affect
in any material respect the interests of the Certificateholders, as evidenced by
each Rating Agency by a written confirmation (obtained at the expense of the
Repurchasing Seller) that such amendment would not, in and of itself, cause the
withdrawal, downgrade, or qualification, as applicable, of the then-current
rating assigned by the Rating Agencies to any Class of Certificates then rated
by any such Rating Agencies. Prior to the effectiveness of such amendment, in
the event that one but not both of the Mortgage Notes with respect to either of
the East Towne Mall Mortgage Loan or West Towne Mall Mortgage Loan is
repurchased, the terms of Section 8.32 shall govern the servicing and
administration of such Mortgage Loan.
SECTION 13.4 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED
IN NEW YORK.
SECTION 13.5 NOTICES. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given when
received by (A) in the case of the Depositor, Bear Xxxxxxx Commercial Mortgage
Securities Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: J.
Xxxxxxxxxxx Xxxxxxx, Senior Managing Director, Commercial Mortgage Department,
with copies to the attention of Xxxxxx X. Xxxxxxxxx, Xx., Managing Director,
Legal Department; (B) in the case of the Trustee and the Fiscal Agent at the
Corporate Trust Office; (C) in the case of the Master Servicer, Xxxxx Fargo
Bank, National Association, 00 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxxxxxxx,
Xxxxxxxxxx 00000, Attention: Commercial Mortgage Servicing, with a copy to
Xxxxxx X. Xxxxxxx, Esq., Xxxxx Fargo Bank, National Association, 000 Xxxxxx
Xxxxxx, 0xx Xxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000; (D) in the case of
Principal, Principal Global Investors, LLC, 000 Xxxxx Xxxxxx, Xxx Xxxxxx, Xxxx
00000, Attention: Xxxxxx X. Xxxxxx, Senior Vice President/Managing Director,
with a copy to Xxxxxx X. Xxxxxxxxx, Esq.; (E) in the case of BSCMI, Bear Xxxxxxx
Commercial Mortgage, Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: J. Xxxxxxxxxxx Xxxxxxx, Senior Managing Director, Commercial Mortgage
Department, with copies to the attention of Xxxxxx X. Xxxxxxxxx, Xx., Managing
Director, Legal Department; (F) in the case of MSMC, Xxxxxx Xxxxxxx Mortgage
Capital Inc., 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Friend,
with a copy to: General Counsel; (G) in the case of the Special Servicer, ARCap
Servicing, Inc., 0000 X. XxxXxxxxx Xxxx., Xxxxx 000, Xxxxxx, Xxxxx 00000,
Attention: Xxxxx X. Xxxxxxx, (H) in the case of the initial Operating Adviser,
ARCap CMBS Fund II REIT, Inc., 0000 X. XxxXxxxxx Xxxx., Xxxxx 000, Xxxxxx, Xxxxx
00000, Attention: Xxxxx X. Xxxxxxx; and (I) in the case of the Paying Agent,
Xxxxx Fargo Bank, National Association, 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx,
Xxxxxxxx 00000, Attention: Corporate Trust Services (CMBS) Bear Xxxxxxx
Commercial Mortgage Securities Inc., Series 2005-TOP20; or as to each party such
other address as may hereafter be furnished by such party to the other parties
in writing. Any notice required or permitted to be mailed to a Holder shall be
given by first class mail, postage prepaid, at the address of such Holder as
shown in the Certificate Register. Any notice so mailed within the
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time prescribed in this Agreement shall be conclusively presumed to have been
duly given, whether or not the Holder receives such notice.
SECTION 13.6 SEVERABILITY OF PROVISIONS. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the Holders thereof.
SECTION 13.7 INDULGENCES; NO WAIVERS. Neither the failure nor any
delay on the part of a party to exercise any right, remedy, power or privilege
under this Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, remedy, power or privilege preclude any other or
further exercise of the same or of any other right, remedy, power or privilege,
nor shall any waiver of any right, remedy, power or privilege with respect to
any occurrence be construed as a waiver of such right, remedy, power or
privilege with respect to any other occurrence. No waiver shall be effective
unless it is in writing and is signed by the party asserted to have granted such
waiver.
SECTION 13.8 HEADINGS NOT TO AFFECT INTERPRETATION. The headings
contained in this Agreement are for convenience of reference only, and shall not
be used in the interpretation hereof.
SECTION 13.9 BENEFITS OF AGREEMENT. Nothing in this Agreement or in
the Certificates, express or implied, shall give to any Person, other than the
parties to this Agreement (including the Primary Servicer to the extent
applicable to the Primary Servicer) and their successors hereunder and the
Holders of the Certificates, any benefit or any legal or equitable right, power,
remedy or claim under this Agreement; provided, however, that (i) the Mortgagors
set forth on Schedule VIII hereto are intended third-party beneficiaries of the
fifth and sixth paragraph of Section 2.3(a), (ii) the holder of any Serviced
Companion Mortgage Loan and any B Note, if any, is an intended third-party
beneficiary in respect of the rights afforded it hereunder, (iii) the applicable
Non-Serviced Mortgage Loan Master Servicer and the applicable Non-Serviced
Mortgage Loan Special Servicer are intended third-party beneficiaries of
Sections 5.2(a)(ii)(B), 8.25(d) and 9.24(d), respectively, and (iv) in the event
that one, but not both, of the Mortgage Notes with respect to either the East
Towne Mall Mortgage Loan or the West Towne Mall Mortgage Loan is repurchased,
the applicable Repurchasing Seller shall be a third party beneficiary of this
Agreement to the same extent as if it was a holder of a Serviced Companion
Mortgage Loan, as contemplated by Section 8.32 hereof.
SECTION 13.10 SPECIAL NOTICES TO THE RATING AGENCIES. The Trustee
shall give prompt notice to the Rating Agencies, Special Servicer and the
Operating Adviser of the occurrence of any of the following events of which it
has notice:
(i) any amendment to this Agreement pursuant to Section 13.3
hereof;
(ii) the Interim Certification and the Final Certification
required pursuant to Section 2.2 hereof;
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(iii) notice of the repurchase of any Mortgage Loan or REO
Mortgage Loan pursuant to Section 2.3(a) hereof;
(iv) any resignation of the Master Servicer, Special Servicer,
the Paying Agent, the Operating Adviser or the Trustee pursuant to this
Agreement;
(v) the appointment of any successor to the Master Servicer, the
Fiscal Agent, the Trustee, the Paying Agent, the Operating Adviser or the
Special Servicer pursuant to Section 7.7, 7.14 or 9.37 hereof;
(vi) waiver of a due-on-sale clause as provided in Section 8.7;
(vii) waiver of a prohibition on subordinate liens on the
Mortgaged Properties;
(viii) the making of a final payment pursuant to Section 10.3
hereof;
(ix) a Servicing Transfer Event; and
(x) an Event of Default.
(b) All notices to the Rating Agencies shall be in writing and sent by
first class mail, telecopy or overnight courier, as follows:
If to Moody's, to:
Xxxxx'x Investors Services, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Structured Finance Commercial Real Estate Monitoring
If to Fitch, to:
Fitch Ratings
Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Commercial Mortgage Surveillance
or at such address as shall be provided in writing to the Depositor by such
Rating Agency.
(c) The Trustee, or in the case of clauses (i) and (ii), the successor
trustee shall give prompt notice to the Rating Agencies of the occurrence of any
of the following events:
(i) the resignation or removal of the Trustee pursuant to Section
7.6; or
(ii) the appointment of a successor trustee pursuant to Section
7.7; or
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(iii) the appointment of a successor Operating Adviser pursuant
to Section 9.37.
(d) The Master Servicer shall deliver to the Rating Agencies and the
Depositor any other information as reasonably requested by the Rating Agencies
and the Depositor, and shall deliver to the Primary Servicer and the Special
Servicer each of the reports required to be delivered by the Master Servicer to
the Primary Servicer and the Special Servicer pursuant to the terms of this
Agreement. The Trustee, the Paying Agent and the Special Servicer shall deliver
to the Rating Agencies and the Depositor any information as reasonably requested
by the Rating Agencies and Depositor, as the case may be.
(e) Any notice or other document required to be delivered or mailed by
the Depositor, Master Servicer, Paying Agent or Trustee shall be given by such
parties, respectively, on a best efforts basis and only as a matter of courtesy
and accommodation to the Rating Agencies, unless otherwise specifically required
herein, and such parties, respectively, shall have no liability for failure to
deliver any such notice or document to the Rating Agencies.
SECTION 13.11 COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original, and all of
which together shall constitute one and the same instrument.
SECTION 13.12 INTENTION OF PARTIES. It is the express intent of the
parties hereto that the conveyance of the Mortgage Loans and related rights and
property to the Trustee, for the benefit of the Certificateholders, by the
Depositor as provided in Section 2.1 be, and be construed as, an absolute sale
of the Mortgage Loans and related property. It is, further, not the intention of
the parties that such conveyance be deemed a pledge of the Mortgage Loans and
related property by the Depositor to the Trustee to secure a debt or other
obligation of the Depositor. However, in the event that, notwithstanding the
intent of the parties, the Mortgage Loans or any related property is held to be
the property of the Depositor, or if for any other reason this Agreement is held
or deemed to create a security interest in the Mortgage Loans or any related
property, then this Agreement shall be deemed to be a security agreement; and
the conveyance provided for in Section 2.1 shall be deemed to be a grant by the
Depositor to the Trustee, for the benefit of the Certificateholders, of a
security interest in all of the Depositor's right, title, and interest, whether
now owned or hereafter acquired, in and to:
(i) the property described in clauses (1)-(4) below (regardless
of whether subject to the UCC or how classified thereunder) and all accounts,
general intangibles, chattel paper, instruments, documents, money, deposit
accounts, certificates of deposit, goods, letters of credit, advices of credit
and investment property consisting of, arising from or relating to any of the
property described in clauses (1)-(4) below: (1) the Mortgage Loans identified
on the Mortgage Loan Schedule, including the related Mortgage Notes, Mortgages,
security agreements, and title, hazard and other insurance policies, including
all Qualifying Substitute Mortgage Loans, all distributions with respect thereto
payable on and after the Cut-Off Date, and the Mortgage Files; (2) the
Distribution Account, all REO Accounts, the Certificate Account, the Reserve
Account and the Interest Reserve Account, including all property therein and all
income from the investment of funds therein (including any accrued discount
realized on liquidation of any investment purchased at a discount); (3) the
REMIC I Regular Interests and the REMIC II
-301-
Regular Interests; and (4) the Mortgage Loan Purchase Agreements that are
permitted to be assigned to the Trustee pursuant to Section 14 thereof;
(ii) all accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates of deposit, goods,
letters of credit, advices of credit, investment property, and other rights
arising from or by virtue of the disposition of, or collections with respect to,
or insurance proceeds payable with respect to, or claims against other Persons
with respect to, all or any part of the collateral described in clause (i) above
(including any accrued discount realized on liquidation of any investment
purchased at a discount); and
All cash and non-cash Proceeds (as defined in the Uniform Commercial
Code) of the collateral described in clauses (i) and (ii) above.
The possession by the Trustee of the Mortgage Notes, the Mortgages and
such other goods, letters of credit, advices of credit, instruments, money,
documents, chattel paper or certificated securities shall be deemed to be
possession by the secured party or possession by a purchaser for purposes of
perfecting the security interest pursuant to the Uniform Commercial Code
(including, without limitation, Sections 8-301 and 9-315 thereof) as in force in
the relevant jurisdiction.
Notifications to Persons holding such property, and acknowledgments,
receipts or confirmations from Persons holding such property, shall be deemed to
be notifications to, or acknowledgments, receipts or confirmations from,
securities intermediaries, bailees or agents of, or persons holding for, the
Trustee, as applicable, for the purpose of perfecting such security interest
under applicable law.
The Depositor and, at the Depositor's direction, the Master Servicer
and the Trustee, shall, to the extent consistent with this Agreement, take such
reasonable actions as may be necessary to ensure that, if this Agreement were
deemed to create a security interest in the property described above, such
security interest would be deemed to be a perfected security interest of first
priority under applicable law and will be maintained as such throughout the term
of the Agreement. The Master Servicer shall file, at the expense of the Trust as
an Additional Trust Expense all filings necessary to maintain the effectiveness
of any original filings necessary under the Uniform Commercial Code as in effect
in any jurisdiction to perfect the Trustee's security interest in such property,
including without limitation (i) continuation statements, and (ii) such other
statements as may be occasioned by any transfer of any interest of the Master
Servicer or the Depositor in such property. In connection herewith, the Trustee
shall have all of the rights and remedies of a secured party and creditor under
the Uniform Commercial Code as in force in the relevant jurisdiction.
SECTION 13.13 RECORDATION OF AGREEMENT. This Agreement is subject to
recordation in all appropriate public offices for real property records in all
the counties or other comparable jurisdictions in which any or all of the
properties subject to the Mortgages are situated, and in any other appropriate
public recording office or elsewhere. Such recordation, if any, shall be
effected by the Master Servicer at the expense of the Trust as an Additional
Trust Expense, but only upon direction of the Depositor accompanied by an
Opinion of Counsel to the
-302-
effect that such recordation materially and beneficially affects the interests
of the Certificateholders of the Trust.
SECTION 13.14 RATING AGENCY MONITORING FEES. The parties hereto
acknowledge that on the Closing Date the Sellers will pay the ongoing monitoring
fees of the Rating Agencies relating to the rating of the Certificates and that
no monitoring fees are payable subsequent to the Closing Date in respect of the
rating of the Certificates. The Master Servicer shall not be required to pay any
such fees or any fees charged for any Rating Agency Confirmation (except any
confirmation required under Section 8.22, Section 8.23 or in connection with a
termination and replacement of the Master Servicer following an Event of Default
of the Master Servicer).
SECTION 13.15 ACKNOWLEDGEMENT BY PRIMARY SERVICER. The Primary
Servicer agrees, to the extent applicable to the Primary Servicer and the
Mortgage Loans serviced by the Primary Servicer, to be bound by the terms of
Sections 5.1(g), 8.3, 8.4, 8.7, 8.10, 8.18, 8.25(e) and 8.26 of this Agreement.
-303-
IN WITNESS WHEREOF, the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the Paying Agent, the Certificate Registrar, the
Authenticating Agent and the Fiscal Agent have caused their names to be signed
hereto by their respective officers thereunto duly authorized as of the day and
year first above written.
BEAR XXXXXXX COMMERCIAL MORTGAGE
SECURITIES INC.
as Depositor
By: /s/ Xxxxxxx X. Xxxxxx Xx.
--------------------------------------
Name: Xxxxxxx X. Xxxxxx Xx.
Title: Vice President
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Master Servicer
By: /s/ Xxxxxxx X. XxXxxxx
--------------------------------------
Name: Xxxxxxx X. XxXxxxx
Title: Vice President
ARCAP SERVICING, INC., as Special Servicer
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: President
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By: /s/ Xxx X. Xxxxx
--------------------------------------
Name: Xxx X. Xxxxx
Title: Assistant Vice President
ABN AMRO BANK N.V., as Fiscal Agent
By: /s/ Xxxxx X. Xxxx
--------------------------------------
Name: Xxxxx X. Xxxx
Title: First Vice President
-304-
By: /s/ Xxxxxxx Xxxx
--------------------------------------
Name: Xxxxxxx Xxxx
Title: Sr. Vice President
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Paying Agent, Authenticating
Agent and Certificate Registrar
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
PRINCIPAL GLOBAL INVESTORS, LLC,
acting solely in its capacity as
Primary Servicer with respect to the
sections referred to in Section
13.15 of the Agreement
By: /s/ Xxxxxx X. Xxxxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Second Vice President and
Counsel
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Second Vice President and
Counsel
-305-
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this 28 day of October 2005, before me, a notary public in and for said
State, personally appeared _____________, personally known to me (or proved to
me on the basis of satisfactory evidence) to be the person who executed the
within instrument as Vice President on behalf of Bear Xxxxxxx Commercial
Mortgage Securities Inc., and acknowledged to me that such corporation executed
the within instrument pursuant to its by-laws or a resolution of its Board of
Directors.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed my official seal
the day and year in this certificate first above written.
________________________________________
Notary Public
STATE OF CALIFORNIA )
) ss.:
COUNTY OF SAN FRANCISCO )
On this 28 day of October 2005, before me, a notary public in and for said
State, personally appeared ____________, personally known to me (or proved to me
on the basis of satisfactory evidence) to be the person who executed the within
instrument as Vice President of ___________________, and acknowledged to me that
such corporation executed the within instrument pursuant to its by-laws or a
resolution of its Board of Directors.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed my official seal
the day and year in this certificate first above written.
________________________________________
Notary Public
-2-
STATE OF )
) ss.:
COUNTY OF )
On the 28 day of October 2005, before me, a notary public in and for said State,
personally appeared ___________________ known to me to be a of _______________,
one of the entities that executed the within instrument, and acknowledged to me
that such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
________________________________________
Notary Public
-0-
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On this 28 day of October 2005, before me, a notary public in and for said
State, personally appeared __________________, personally known to me (or proved
to me on the basis of satisfactory evidence) to be the person who executed the
within instrument as Vice President on behalf of ____________, and acknowledged
to me that such nationally chartered bank executed the within instrument
pursuant to its by-laws or a resolution of its Board of Directors.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed my official seal
the day and year in this certificate first above written.
________________________________________
Notary Public
-4-
STATE OF ILLINOIS )
) ss.:
COUNTY OF XXXX )
On this day of October 2005, before me, Xxxxxxxx Xxxx, a notary public in and
for said State, personally appeared Xxxxxxx Xxxx, personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person who
executed the within instrument as Senior Vice President and Xxxxx X. Xxxx, First
Vice President on behalf of ABN AMRO BANK N.V., one of the entities that
executed the within instrument, and also known to me to be the persons who
executed it on behalf of said entity, and acknowledged to me that such entity
executed the within instrument.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed my official seal
the day and year in this certificate first above written.
/s/ Xxxxxxxx Xxxx
________________________________________
Notary Public
[Notary Stamp]
-0-
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On this 28 day of October 2005, before me, a notary public in and for said
State, personally appeared Xxxxxxx Xxxxxxx, personally known to me (or proved
to me on the basis of satisfactory evidence) to be the person who executed the
within instrument as Vice President on behalf of Xxxxx Fargo Bank, National
Association. One of the entities that executed the within instrument, and
acknowledged to me that such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed my official seal
the day and year in this certificate first above written.
/s/ Xxxxx X. Xxxxxx
________________________________________
Notary Public
[Notary Stamp]
-0-
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On this 24th day of October 2005, before me, a notary public in and for said
State, personally appeared Xxxxxx X. Xxxxxxxxx and Xxxxx X. Xxxxxxxx, personally
known to me (or proved to me on the basis of satisfactory evidence) to be the
person who executed the within instrument as Second Vice President and Second
Vice President and Counsel on behalf of Principal Global Investors, LLC, one of
the entities that executed the within instrument, and acknowledged to me that
such entity executed the within instrument. IN WITNESS WHEREOF, I have hereunder
set my hand and affixed my official seal the day and year in this certificate
first above written.
/s/ Xxxxx X. Xxxxx
________________________________________
Notary Public
[Notary Stamp]
================================================================================
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.,
AS DEPOSITOR,
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
AS MASTER SERVICER,
ARCAP SERVICING, INC.,
AS SPECIAL SERVICER,
LASALLE BANK NATIONAL ASSOCIATION,
AS TRUSTEE,
XXXXX FARGO BANK, NATIONAL ASSOCIATION
AS PAYING AGENT AND CERTIFICATE REGISTRAR
AND
ABN AMRO BANK N.V.,
AS FISCAL AGENT
----------
EXHIBITS AND SCHEDULES TO
POOLING AND SERVICING AGREEMENT
DATED AS OF OCTOBER 1, 2005
----------
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2005-TOP20
================================================================================
EXHIBIT A-1
[FORM OF CLASS A-1 CERTIFICATE]
THIS CLASS A-1 CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE FISCAL AGENT,
THE CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE SPECIAL
SERVICER, THE PRIMARY SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL
NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS A-1 CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-TOP20
INITIAL PASS-THROUGH RATE: 4.940%
DATE OF POOLING AND SERVICING AGREEMENT: AS OF OCTOBER 1, 2005
CUT-OFF DATE: OCTOBER 1, 2005
CLOSING DATE: OCTOBER 28, 2005
FIRST DISTRIBUTION DATE: NOVEMBER 14, 2005
AGGREGATE CERTIFICATE BALANCE OF THE CLASS A-1 CERTIFICATES AS OF THE CLOSING
DATE: $126,750,000
CERTIFICATE BALANCE OF THIS CLASS A-1 CERTIFICATE AS OF THE CLOSING DATE:
$126,750,000
No. A-1-1
MASTER SERVICER: XXXXX FARGO BANK, NATIONAL ASSOCIATION
SPECIAL SERVICER: ARCAP SERVICING, INC.
PAYING AGENT: XXXXX FARGO BANK, NATIONAL ASSOCIATION
PRIMARY SERVICER: PRINCIPAL GLOBAL INVESTORS, LLC
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
FISCAL AGENT: ABN AMRO BANK N.V.
CUSIP NO. 07387B CG 6
CLASS A-1 CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class A-1 Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Bear Xxxxxxx Commercial Mortgage
Securities Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Fiscal Agent, the Paying Agent, the Certificate Registrar, the Master Servicer
and the Special Servicer, a summary of certain of the pertinent provisions of
which is set forth hereafter. The Trust consists primarily of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class A-1 Certificates. The Certificates are designated as the
Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 2005-TOP20 and are issued in the Classes
specified in the Pooling and Servicing Agreement. The Certificates will evidence
in the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 12th day of
each month or, if such 12th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and
Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of the
Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Paying Agent, the
Master Servicer, the Special Servicer 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 Fiscal Agent, the Paying Agent, the Master Servicer, the Special Servicer,
the Certificate Registrar nor any such agents shall be affected by notice to the
contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Certificateholders as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) or
10.1(c) of the Pooling and Servicing Agreement or (iii) the termination of the
Trust pursuant to Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Certificate Registrar
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: OCTOBER 28, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-1 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO 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
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights of survivorship and not as tenants in
common
UNIF GIFT MIN ACT ______________ Custodian
(Cust)
Under Uniform Gifts to Minors
Act _______________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
______________________________ IDENTIFYING NUMBER OF ASSIGNEE
______________________________
______________________________ _______________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
-------------------------- ----------------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
---------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
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
[FORM OF CLASS A-2 CERTIFICATE]
THIS CLASS A-2 CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE FISCAL AGENT,
THE CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE SPECIAL
SERVICER, THE PRIMARY SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL
NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS A-3 CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-TOP20
INITIAL PASS-THROUGH RATE: 5.127%
DATE OF POOLING AND SERVICING AGREEMENT: AS OF OCTOBER 1, 2005
CUT-OFF DATE: OCTOBER 1, 2005
CLOSING DATE: OCTOBER 28, 2005
FIRST DISTRIBUTION DATE: NOVEMBER 14, 2005
AGGREGATE CERTIFICATE BALANCE OF THE CLASS A-2 CERTIFICATES AS OF THE CLOSING
DATE: $189,450,000
CERTIFICATE BALANCE OF THIS CLASS A-2 CERTIFICATE AS OF THE CLOSING DATE:
$189,450,000
No. A-2-1
MASTER SERVICER: XXXXX FARGO BANK, NATIONAL ASSOCIATION
SPECIAL SERVICER: ARCAP SERVICING, INC.
PAYING AGENT: XXXXX FARGO BANK, NATIONAL ASSOCIATION
PRIMARY SERVICER: PRINCIPAL GLOBAL INVESTORS, LLC
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
FISCAL AGENT: ABN AMRO BANK N.V.
CUSIP NO. 07387B CH 4
CLASS A-2 CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class A-2 Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Bear Xxxxxxx Commercial Mortgage
Securities Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Fiscal Agent, the Paying Agent, the Certificate Registrar, the Master Servicer
and the Special Servicer, a summary of certain of the pertinent provisions of
which is set forth hereafter. The Trust consists primarily of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class A-2 Certificates. The Certificates are designated as the
Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 2005-TOP20 and are issued in the Classes
specified in the Pooling and Servicing Agreement. The Certificates will evidence
in the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 12th day of
each month or, if such 12th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and
Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of the
Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Paying Agent, the
Master Servicer, the Special Servicer 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 Fiscal Agent, the Paying Agent, the Master Servicer, the Special Servicer,
the Certificate Registrar nor any such agents shall be affected by notice to the
contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Certificateholders as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) or
10.1(c) of the Pooling and Servicing Agreement or (iii) the termination of the
Trust pursuant to Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Certificate Registrar
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: OCTOBER 28, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-2 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO 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
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights of survivorship and not as tenants in
common
UNIF GIFT MIN ACT ______________ Custodian
(Cust)
Under Uniform Gifts to Minors
Act _______________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
______________________________ IDENTIFYING NUMBER OF ASSIGNEE
______________________________
______________________________ _______________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
-------------------------- ----------------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
---------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
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
[FORM OF CLASS A-3 CERTIFICATE]
THIS CLASS A-3 CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE FISCAL AGENT,
THE CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE SPECIAL
SERVICER, THE PRIMARY SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL
NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS A-3 CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-TOP20
INITIAL PASS-THROUGH RATE: 5.303%
DATE OF POOLING AND SERVICING AGREEMENT: AS OF OCTOBER 1, 2005
CUT-OFF DATE: OCTOBER 1, 2005
CLOSING DATE: OCTOBER 28, 2005
FIRST DISTRIBUTION DATE: NOVEMBER 14, 2005
AGGREGATE CERTIFICATE BALANCE OF THE CLASS A-3 CERTIFICATES AS OF THE CLOSING
DATE: $176,000,000
CERTIFICATE BALANCE OF THIS CLASS A-3 CERTIFICATE AS OF THE CLOSING DATE:
$176,000,000
No. A-3-1
MASTER SERVICER: XXXXX FARGO BANK, NATIONAL ASSOCIATION
SPECIAL SERVICER: ARCAP SERVICING, INC.
PAYING AGENT: XXXXX FARGO BANK, NATIONAL ASSOCIATION
PRIMARY SERVICER: PRINCIPAL GLOBAL INVESTORS, LLC
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
FISCAL AGENT: ABN AMRO BANK N.V.
CUSIP NO. 07387B CJ 0
CLASS A-3 CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class A-3 Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Bear Xxxxxxx Commercial Mortgage
Securities Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Fiscal Agent, the Paying Agent, the Certificate Registrar, the Master Servicer
and the Special Servicer, a summary of certain of the pertinent provisions of
which is set forth hereafter. The Trust consists primarily of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class A-3 Certificates. The Certificates are designated as the
Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 2005-TOP20 and are issued in the Classes
specified in the Pooling and Servicing Agreement. The Certificates will evidence
in the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 12th day of
each month or, if such 12th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and
Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of the
Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Paying Agent, the
Master Servicer, the Special Servicer 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 Fiscal Agent, the Paying Agent, the Master Servicer, the Special Servicer,
the Certificate Registrar nor any such agents shall be affected by notice to the
contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Certificateholders as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) or
10.1(c) of the Pooling and Servicing Agreement or (iii) the termination of the
Trust pursuant to Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Certificate Registrar
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: OCTOBER 28, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-3 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO 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
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights of survivorship and not as tenants in
common
UNIF GIFT MIN ACT ____________ Custodian
(Cust)
Under Uniform Gifts to Minors
Act ______________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
______________________________ IDENTIFYING NUMBER OF ASSIGNEE
______________________________
______________________________ _______________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
-------------------------- ----------------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
---------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
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
[FORM OF CLASS A-AB CERTIFICATE]
THIS CLASS A-AB CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE FISCAL AGENT,
THE CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE SPECIAL
SERVICER, THE PRIMARY SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL
NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS A-AB CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-TOP20
INITIAL PASS-THROUGH RATE: 5.287%
DATE OF POOLING AND SERVICING AGREEMENT: AS OF OCTOBER 1, 2005
CUT-OFF DATE: OCTOBER 1, 2005
CLOSING DATE: OCTOBER 28, 2005
FIRST DISTRIBUTION DATE: NOVEMBER 14, 2005
AGGREGATE CERTIFICATE BALANCE OF THE CLASS A-AB CERTIFICATES AS OF THE CLOSING
DATE: $142,600,000
CERTIFICATE BALANCE OF THIS CLASS A-AB CERTIFICATE AS OF THE CLOSING DATE:
$142,600,000
No. A-AB-1
MASTER SERVICER: XXXXX FARGO BANK, NATIONAL ASSOCIATION
SPECIAL SERVICER: ARCAP SERVICING, INC.
PAYING AGENT: XXXXX FARGO BANK, NATIONAL ASSOCIATION
PRIMARY SERVICER: PRINCIPAL GLOBAL INVESTORS, LLC
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
FISCAL AGENT: ABN AMRO BANK N.V.
CUSIP NO. 07387B CK 7
CLASS A-AB CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class A-AB Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Bear Xxxxxxx Commercial Mortgage
Securities Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Fiscal Agent, the Paying Agent, the Certificate Registrar, the Master Servicer
and the Special Servicer, a summary of certain of the pertinent provisions of
which is set forth hereafter. The Trust consists primarily of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and
representing an interest in the Class of Certificates specified on the face
hereof equal to the quotient expressed as a percentage obtained by dividing the
Certificate Balance of this Certificate specified on the face hereof by the
aggregate initial Certificate Balance of the Class A-AB Certificates. The
Certificates are designated as the Bear Xxxxxxx Commercial Mortgage Securities
Inc., Commercial Mortgage Pass-Through Certificates, Series 2005-TOP20 and are
issued in the Classes specified in the Pooling and Servicing Agreement. The
Certificates will evidence in the aggregate 100% of the beneficial ownership of
the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 12th day of
each month or, if such 12th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Paying Agent, the
Master Servicer, the Special Servicer 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 Fiscal Agent, the Paying Agent, the Master Servicer, the Special Servicer,
the Certificate Registrar nor any such agents shall be affected by notice to the
contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Certificateholders as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) or
10.1(c) of the Pooling and Servicing Agreement or (iii) the termination of the
Trust pursuant to Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Certificate Registrar
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: OCTOBER 28, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-AB CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO 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
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights of survivorship and not as tenants in
common
UNIF GIFT MIN ACT ____________________ Custodian
(Cust)
Under Uniform Gifts to Minors
Act _________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
______________________________ IDENTIFYING NUMBER OF ASSIGNEE
______________________________
______________________________ _______________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
-------------------------- ----------------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
---------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
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
[FORM OF CLASS A-4A CERTIFICATE]
THIS CLASS A-4A CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE FISCAL AGENT,
THE CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE SPECIAL
SERVICER, THE PRIMARY SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL
NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS A-4A CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-TOP20
INITIAL PASS-THROUGH RATE: 5.303%
DATE OF POOLING AND SERVICING AGREEMENT: AS OF OCTOBER 1, 2005
CUT-OFF DATE: OCTOBER 1, 2005
CLOSING DATE: OCTOBER 28, 2005
FIRST DISTRIBUTION DATE: NOVEMBER 14, 2005
AGGREGATE CERTIFICATE BALANCE OF THE CLASS A-4A CERTIFICATES AS OF THE CLOSING
DATE: $954,956,000
CERTIFICATE BALANCE OF THIS CLASS A-4A CERTIFICATE AS OF THE CLOSING DATE:
$954,956,000
No. A-4A-1
MASTER SERVICER: XXXXX FARGO BANK, NATIONAL ASSOCIATION
SPECIAL SERVICER: ARCAP SERVICING, INC.
PAYING AGENT: XXXXX FARGO BANK, NATIONAL ASSOCIATION
PRIMARY SERVICER: PRINCIPAL GLOBAL INVESTORS, LLC
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
FISCAL AGENT: ABN AMRO BANK N.V.
CUSIP NO. 07387B CL 5
CLASS A-4A CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class A-4A Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Bear Xxxxxxx Commercial Mortgage
Securities Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Fiscal Agent, the Paying Agent, the Certificate Registrar, the Master Servicer
and the Special Servicer, a summary of certain of the pertinent provisions of
which is set forth hereafter. The Trust consists primarily of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the
quotient expressed as a percentage obtained by dividing the Certificate Balance
of this Certificate specified on the face hereof by the aggregate initial
Certificate Balance of the Class A-4A Certificates. The Certificates are
designated as the Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2005-TOP20 and are issued in the
Classes specified in the Pooling and Servicing Agreement. The Certificates will
evidence in the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 12th day of
each month or, if such 12th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Paying Agent, the
Master Servicer, the Special Servicer 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 Fiscal Agent, the Paying Agent, the Master Servicer, the Special Servicer,
the Certificate Registrar nor any such agents shall be affected by notice to the
contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Certificateholders as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) or
10.1(c) of the Pooling and Servicing Agreement or (iii) the termination of the
Trust pursuant to Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Certificate Registrar
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: OCTOBER 28, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-4A CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO 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
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights of survivorship and not as tenants in
common
UNIF GIFT MIN ACT ____________ Custodian
(Cust)
Under Uniform Gifts to Minors
Act ______________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
______________________________ IDENTIFYING NUMBER OF ASSIGNEE
______________________________
______________________________ _______________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
-------------------------- ----------------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
---------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
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
[FORM OF CLASS A-4B CERTIFICATE]
THIS CLASS A-4B CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE FISCAL AGENT,
THE CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE SPECIAL
SERVICER, THE PRIMARY SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL
NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THIS CLASS A-4B CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN
OTHER CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS A-4B CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO. HAS
AN INTEREST HEREIN.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-TOP20
INITIAL PASS-THROUGH RATE: 5.303%
DATE OF POOLING AND SERVICING AGREEMENT: AS OF OCTOBER 1, 2005
CUT-OFF DATE: OCTOBER 1, 2005
CLOSING DATE: OCTOBER 28, 2005
FIRST DISTRIBUTION DATE: NOVEMBER 14, 2005
AGGREGATE CERTIFICATE BALANCE OF THE CLASS A-4B CERTIFICATES AS OF THE CLOSING
DATE: $130,816,000
CERTIFICATE BALANCE OF THIS CLASS A-4B CERTIFICATE AS OF THE CLOSING DATE:
$130,816,000
No. A-4B-1
MASTER SERVICER: XXXXX FARGO BANK, NATIONAL ASSOCIATION
SPECIAL SERVICER: GMAC COMMERCIAL MORTGAGE CORPORATION
PAYING AGENT: XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION
PRIMARY SERVICER: PRINCIPAL GLOBAL INVESTORS, LLC
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
FISCAL AGENT: ABN AMRO BANK N.V.
CUSIP NO. 07387B CM 3
CLASS A-4B CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class A-4B Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Bear Xxxxxxx Commercial Mortgage
Securities Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Fiscal Agent, the Paying Agent, the Certificate Registrar, the Master Servicer
and the Special Servicer, a summary of certain of the pertinent provisions of
which is set forth hereafter. The Trust consists primarily of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class A-4B Certificates. The Certificates are designated as the
Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 2005-TOP20 and are issued in the Classes
specified in the Pooling and Servicing Agreement. The Certificates will evidence
in the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Class A-4B Available Funds, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 12th day of
each month or, if such 12th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed on the basis of the
actual number of days elapsed during the related Interest Accrual Period and a
360-day year) during the Interest Accrual Period relating to such Distribution
Date at the Pass-Through Rate on the Certificate Balance of this Certificate
immediately prior to each Distribution Date. Principal and interest allocated to
this Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the amount to be distributed on the Certificates
of this Class as of such Distribution Date, with a final distribution to be made
upon retirement of this Certificate as set forth in the Pooling and Servicing
Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and
Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of the
Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Paying Agent, the
Master Servicer, the Special Servicer 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 Fiscal Agent, the Paying Agent, the Master Servicer, the Special Servicer,
the Certificate Registrar nor any such agents shall be affected by notice to the
contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Certificateholders as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) of the
Pooling and Servicing Agreement or (iii) the termination of the Trust pursuant
to Section 10.1(c) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: OCTOBER 28, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-4B CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK MINNESOTA, 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
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights of survivorship and not as tenants in
common
UNIF GIFT MIN ACT ______________ Custodian
(Cust)
Under Uniform Gifts to Minors
Act ________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
______________________________ IDENTIFYING NUMBER OF ASSIGNEE
______________________________
______________________________ _______________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
-------------------------- ----------------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
---------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
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
[FORM OF CLASS A-J CERTIFICATE]
THIS CLASS A-J CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE FISCAL AGENT,
THE CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE SPECIAL
SERVICER, THE PRIMARY SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL
NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THIS CLASS A-J CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS A-J CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-TOP20
INITIAL PASS-THROUGH RATE 5.303%
DATE OF POOLING AND SERVICING AGREEMENT: AS OF OCTOBER 1, 2005
CUT-OFF DATE: OCTOBER 1, 2005
CLOSING DATE: OCTOBER 28, 2005
FIRST DISTRIBUTION DATE: NOVEMBER 14, 2005
AGGREGATE CERTIFICATE BALANCE OF THE CLASS A-J CERTIFICATES AS OF THE CLOSING
DATE: $147,699,000
CERTIFICATE BALANCE OF THIS CLASS A-J CERTIFICATE AS OF THE CLOSING DATE:
$147,699,000
No. A-J-1
MASTER SERVICER: XXXXX FARGO BANK, NATIONAL ASSOCIATION
SPECIAL SERVICER: ARCAP SERVICING, INC.
PAYING AGENT: XXXXX FARGO BANK, NATIONAL ASSOCIATION
PRIMARY SERVICER: PRINCIPAL GLOBAL INVESTORS, LLC
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
FISCAL AGENT: ABN AMRO BANK N.V.
CUSIP NO. 07387B CN 1
CLASS A-J CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class A-J Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Bear Xxxxxxx Commercial Mortgage
Securities Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Fiscal Agent, the Paying Agent, the Certificate Registrar, the Master Servicer
and the Special Servicer, a summary of certain of the pertinent provisions of
which is set forth hereafter. The Trust consists primarily of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class A-J Certificates. The Certificates are designated as the
Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 2005-TOP20 and are issued in the Classes
specified in the Pooling and Servicing Agreement. The Certificates will evidence
in the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 12th day of
each month or, if such 12th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and
Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of the
Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Paying Agent, the
Master Servicer, the Special Servicer 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 Fiscal Agent, the Paying Agent, the Master Servicer, the Special Servicer,
the Certificate Registrar nor any such agents shall be affected by notice to the
contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Certificateholders as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) or
10.1(c) of the Pooling and Servicing Agreement or (iii) the termination of the
Trust pursuant to Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Certificate Registrar
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: OCTOBER 28, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-J CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO 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
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights of survivorship and not as tenants in
common
UNIF GIFT MIN ACT ______________ Custodian
(Cust)
Under Uniform Gifts to Minors
Act ________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
______________________________ IDENTIFYING NUMBER OF ASSIGNEE
______________________________
______________________________ _______________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
-------------------------- ----------------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
---------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
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
[FORM OF CLASS B CERTIFICATE]
THIS CLASS B CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE FISCAL AGENT, THE
CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE SPECIAL
SERVICER, THE PRIMARY SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL
NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THIS CLASS B CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS B CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-TOP20
INITIAL PASS-THROUGH RATE 5.303%
DATE OF POOLING AND SERVICING AGREEMENT: AS OF OCTOBER 1, 2005
CUT-OFF DATE: OCTOBER 1, 2005
CLOSING DATE: OCTOBER 28, 2005
FIRST DISTRIBUTION DATE: NOVEMBER 14, 2005
AGGREGATE CERTIFICATE BALANCE OF THE CLASS B CERTIFICATES AS OF THE CLOSING
DATE: $15,548,000
CERTIFICATE BALANCE OF THIS CLASS B CERTIFICATE AS OF THE CLOSING DATE:
$15,548,000
No. B-1
MASTER SERVICER: XXXXX FARGO BANK, NATIONAL ASSOCIATION
SPECIAL SERVICER: ARCAP SERVICING, INC.
PAYING AGENT: XXXXX FARGO BANK, NATIONAL ASSOCIATION
PRIMARY SERVICER: PRINCIPAL GLOBAL INVESTORS, LLC
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
FISCAL AGENT: ABN AMRO BANK N.V.
CUSIP NO. 07387B CP 6
CLASS B CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class B Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Bear Xxxxxxx Commercial Mortgage
Securities Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Fiscal Agent, the Paying Agent, the Certificate Registrar, the Master Servicer
and the Special Servicer, a summary of certain of the pertinent provisions of
which is set forth hereafter. The Trust consists primarily of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class B Certificates. The Certificates are designated as the Bear
Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 2005-TOP20 and are issued in the Classes specified in the
Pooling and Servicing Agreement. The Certificates will evidence in the aggregate
100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 12th day of
each month or, if such 12th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and
Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of the
Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Paying Agent, the
Master Servicer, the Special Servicer 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 Fiscal Agent, the Paying Agent, the Master Servicer, the Special Servicer,
the Certificate Registrar nor any such agents shall be affected by notice to the
contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Certificateholders as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) or
10.1(c) of the Pooling and Servicing Agreement or (iii) the termination of the
Trust pursuant to Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Certificate Registrar
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: OCTOBER 28, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS B CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO 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
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights of survivorship and not as tenants in
common
UNIF GIFT MIN ACT ______________ Custodian
(Cust)
Under Uniform Gifts to Minors
Act _______________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
______________________________ IDENTIFYING NUMBER OF ASSIGNEE
______________________________
______________________________ _______________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
-------------------------- ----------------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
---------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
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
[FORM OF CLASS C CERTIFICATE]
THIS CLASS C CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE FISCAL AGENT, THE
CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE SPECIAL
SERVICER, THE PRIMARY SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL
NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THIS CLASS C CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS C CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-TOP20
INITIAL PASS-THROUGH RATE: 5.303%
DATE OF POOLING AND SERVICING AGREEMENT: AS OF OCTOBER 1, 2005
CUT-OFF DATE: OCTOBER 1, 2005
CLOSING DATE: OCTOBER 28, 2005
FIRST DISTRIBUTION DATE: NOVEMBER 14, 2005
AGGREGATE CERTIFICATE BALANCE OF THE CLASS C CERTIFICATES AS OF THE CLOSING
DATE: $20,730,000
CERTIFICATE BALANCE OF THIS CLASS C CERTIFICATE AS OF THE CLOSING DATE:
$20,730,000
No. C-1
MASTER SERVICER: XXXXX FARGO BANK, NATIONAL ASSOCIATION
SPECIAL SERVICER: ARCAP SERVICING, INC.
PAYING AGENT: XXXXX FARGO BANK, NATIONAL ASSOCIATION
PRIMARY SERVICER: PRINCIPAL GLOBAL INVESTORS, LLC
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
FISCAL AGENT: ABN AMRO BANK N.V.
CUSIP NO. 07387B CQ 4
CLASS C CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class C Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Bear Xxxxxxx Commercial Mortgage
Securities Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Fiscal Agent, the Paying Agent, the Certificate Registrar, the Master Servicer
and the Special Servicer, a summary of certain of the pertinent provisions of
which is set forth hereafter. The Trust consists primarily of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class C Certificates. The Certificates are designated as the Bear
Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 2005-TOP20 and are issued in the Classes specified in the
Pooling and Servicing Agreement. The Certificates will evidence in the aggregate
100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 12th day of
each month or, if such 12th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and
Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of the
Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Paying Agent, the
Master Servicer, the Special Servicer 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 Fiscal Agent, the Paying Agent, the Master Servicer, the Special Servicer,
the Certificate Registrar nor any such agents shall be affected by notice to the
contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Certificateholders as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) or
10.1(c) of the Pooling and Servicing Agreement or (iii) the termination of the
Trust pursuant to Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Certificate Registrar
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: OCTOBER 28, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS C CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO 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
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights of survivorship and not as tenants in
common
UNIF GIFT MIN ACT ____________ Custodian
(Cust)
Under Uniform Gifts to Minors
Act ______________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
______________________________ IDENTIFYING NUMBER OF ASSIGNEE
______________________________
______________________________ _______________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
-------------------------- ----------------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
---------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
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
[FORM OF CLASS D CERTIFICATE]
THIS CLASS D CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE FISCAL AGENT, THE
CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE SPECIAL
SERVICER, THE PRIMARY SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL
NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THIS CLASS D CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS D CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-TOP20
INITIAL PASS-THROUGH RATE: 5.303%
DATE OF POOLING AND SERVICING AGREEMENT: AS OF OCTOBER 1, 2005
CUT-OFF DATE: OCTOBER 1, 2005
CLOSING DATE: OCTOBER 28, 2005
FIRST DISTRIBUTION DATE: NOVEMBER 14, 2005
AGGREGATE CERTIFICATE BALANCE OF THE CLASS D CERTIFICATES AS OF THE CLOSING
DATE: $15,547,000
CERTIFICATE BALANCE OF THIS CLASS D CERTIFICATE AS OF THE CLOSING DATE:
$15,547,000
No. D-1
MASTER SERVICER: XXXXX FARGO BANK, NATIONAL ASSOCIATION
SPECIAL SERVICER: ARCAP SERVICING, INC.
PAYING AGENT: XXXXX FARGO BANK, NATIONAL ASSOCIATION
PRIMARY SERVICER: PRINCIPAL GLOBAL INVESTORS, LLC
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
FISCAL AGENT: ABN AMRO BANK N.V.
CUSIP NO. 07387B CR 2
CLASS D CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class D Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Bear Xxxxxxx Commercial Mortgage
Securities Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Fiscal Agent, the Paying Agent, the Certificate Registrar, the Master Servicer
and the Special Servicer, a summary of certain of the pertinent provisions of
which is set forth hereafter. The Trust consists primarily of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class D Certificates. The Certificates are designated as the Bear
Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 2005-TOP20 and are issued in the Classes specified in the
Pooling and Servicing Agreement. The Certificates will evidence in the aggregate
100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 12th day of
each month or, if such 12th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and
Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of the
Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Paying Agent, the
Master Servicer, the Special Servicer 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 Fiscal Agent, the Paying Agent, the Master Servicer, the Special Servicer,
the Certificate Registrar nor any such agents shall be affected by notice to the
contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Certificateholders as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) or
10.1(c) of the Pooling and Servicing Agreement or (iii) the termination of the
Trust pursuant to Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Certificate Registrar
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: OCTOBER 28, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS D CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO 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
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights of survivorship and not as tenants in
common
UNIF GIFT MIN ACT ______________ Custodian
(Cust)
Under Uniform Gifts to Minors
Act ________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
______________________________ IDENTIFYING NUMBER OF ASSIGNEE
______________________________
______________________________ _______________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
-------------------------- ----------------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
---------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
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
[FORM OF CLASS E CERTIFICATE]
THIS CLASS E CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE FISCAL AGENT, THE
CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE SPECIAL
SERVICER, THE PRIMARY SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL
NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THIS CLASS E CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS E CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-TOP20
INITIAL PASS-THROUGH RATE: 5.303%
DATE OF POOLING AND SERVICING AGREEMENT: AS OF OCTOBER 1, 2005
CUT-OFF DATE: OCTOBER 1, 2005
CLOSING DATE: OCTOBER 28, 2005
FIRST DISTRIBUTION DATE: NOVEMBER 14, 2005
AGGREGATE CERTIFICATE BALANCE OF THE CLASS E CERTIFICATES AS OF THE CLOSING
DATE: $28,503,000
CERTIFICATE BALANCE OF THIS CLASS E CERTIFICATE AS OF THE CLOSING DATE:
$28,503,000
No. E-1
MASTER SERVICER: XXXXX FARGO BANK, NATIONAL ASSOCIATION
SPECIAL SERVICER: ARCAP SERVICING, INC.
PAYING AGENT: XXXXX FARGO BANK, NATIONAL ASSOCIATION
PRIMARY SERVICER: PRINCIPAL GLOBAL INVESTORS, LLC
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
FISCAL AGENT: ABN AMRO BANK N.V.
CUSIP NO. 07387B CS 0
CLASS E CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class E Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Bear Xxxxxxx Commercial Mortgage
Securities Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Fiscal Agent, the Paying Agent, the Certificate Registrar, the Master Servicer
and the Special Servicer, a summary of certain of the pertinent provisions of
which is set forth hereafter. The Trust consists primarily of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class E Certificates. The Certificates are designated as the Bear
Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 2005-TOP20 and are issued in the Classes specified in the
Pooling and Servicing Agreement. The Certificates will evidence in the aggregate
100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 12th day of
each month or, if such 12th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and
Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of the
Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Paying Agent, the
Master Servicer, the Special Servicer 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 Fiscal Agent, the Paying Agent, the Master Servicer, the Special Servicer,
the Certificate Registrar nor any such agents shall be affected by notice to the
contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Certificateholders as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) or
10.1(c) of the Pooling and Servicing Agreement or (iii) the termination of the
Trust pursuant to Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Certificate Registrar
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: OCTOBER 28, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS E CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO 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
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights of survivorship and not as tenants in
common
UNIF GIFT MIN ACT _____________ Custodian
(Cust)
Under Uniform Gifts to Minors
Act ________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
______________________________ IDENTIFYING NUMBER OF ASSIGNEE
______________________________
______________________________ _______________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
-------------------------- ----------------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
---------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
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
[FORM OF CLASS F CERTIFICATE]
[THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE, ARE AS SPECIFIED IN THE
POOLING AND SERVICING AGREEMENT (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE SHALL BE
ENTITLED TO RECEIVE PAYMENT HEREON.]
THIS CLASS F CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE FISCAL
AGENT, THE CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE
SPECIAL SERVICER, THE PRIMARY SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES,
AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS F CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION
OF PRINCIPAL DISTRIBUTIONS, REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE
CERTIFICATES ALLOCABLE TO THIS CLASS F CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-TOP20
INITIAL PASS-THROUGH RATE: 5.303%
DATE OF POOLING AND SERVICING AGREEMENT: AS OF OCTOBER 1, 2005
CUT-OFF DATE: OCTOBER 1, 2005
CLOSING DATE: OCTOBER 28, 2005
FIRST DISTRIBUTION DATE: NOVEMBER 14, 2005
AGGREGATE CERTIFICATE BALANCE OF THE CLASS F CERTIFICATES AS OF THE CLOSING
DATE: $18,139,000
CERTIFICATE BALANCE OF THIS CLASS F CERTIFICATE AS OF THE CLOSING DATE:
$18,139,000 (SUBJECT TO SCHEDULE OF EXCHANGES ATTACHED)
No. F-1
MASTER SERVICER: XXXXX FARGO BANK, NATIONAL ASSOCIATION
SPECIAL SERVICER: ARCAP SERVICING, INC.
PAYING AGENT: XXXXX FARGO BANK, NATIONAL ASSOCIATION
PRIMARY SERVICER: PRINCIPAL GLOBAL INVESTORS, LLC
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
FISCAL AGENT: ABN AMRO BANK N.V.
CUSIP NO. 07387B BF 9
CLASS F CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class F Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Bear Xxxxxxx Commercial Mortgage
Securities Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Fiscal Agent, the Paying Agent, the Certificate Registrar, the Master Servicer
and the Special Servicer, a summary of certain of the pertinent provisions of
which is set forth hereafter. The Trust consists primarily of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the
quotient expressed as a percentage obtained by dividing the Certificate Balance
of this Certificate specified on the face hereof by the aggregate initial
Certificate Balance of the Class F Certificates. The Certificates are designated
as the Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 2005-TOP20 and are issued in the Classes
specified in the Pooling and Servicing Agreement. The Certificates will evidence
in the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 12th day of
each month or, if such 12th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
[Until this Regulation S Temporary Global Certificate is exchanged for
one or more Regulation S Permanent Global Certificates, the Holder hereof shall
not be entitled to receive payments hereon; until so exchanged in full, this
Regulation S Temporary Global Certificate shall in all other respects be
entitled to the same benefits as other Certificates under the Pooling and
Servicing Agreement.]
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
[This Regulation S Temporary Global Certificate is exchangeable in
whole or in part for one or more Global Certificates only (i) on or after the
termination of the 40-day distribution compliance period (as defined in
Regulation S) and (ii) upon presentation of a Regulation S Certificate (as
defined in the Pooling Agreement) required by Article III of the Pooling and
Servicing Agreement. Upon exchange of this Regulation S Temporary Global
Certificate for one or more Global Certificates, the Trustee shall cancel this
Regulation S Temporary Global Certificate.]
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust
Office of the Certificate Registrar, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized denominations will be issued to the
designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Paying Agent, the
Master Servicer, the Special Servicer 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 Fiscal Agent, the Paying Agent, the Master Servicer, the Special Servicer,
the Certificate Registrar nor any such agents shall be affected by notice to the
contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Certificateholders as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) or
10.1(c) of the Pooling and Servicing Agreement or (iii) the termination of the
Trust pursuant to Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Certificate Registrar
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: OCTOBER 28, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS F CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO 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
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights of survivorship and not as tenants in
common
UNIF GIFT MIN ACT ______________ Custodian
(Cust)
Under Uniform Gifts to Minors
Act _______________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
______________________________ IDENTIFYING NUMBER OF ASSIGNEE
______________________________
______________________________ _______________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
-------------------------- ----------------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
---------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
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.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-13
[FORM OF CLASS G CERTIFICATE]
[THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE, ARE AS SPECIFIED IN THE
POOLING AND SERVICING AGREEMENT (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE SHALL BE
ENTITLED TO RECEIVE PAYMENT HEREON.]
THIS CLASS G CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE FISCAL
AGENT, THE CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE
SPECIAL SERVICER, THE PRIMARY SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES,
AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS G CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS G CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-TOP20
INITIAL PASS-THROUGH RATE: 5.303 %
DATE OF POOLING AND SERVICING AGREEMENT: AS OF OCTOBER 1, 2005
CUT-OFF DATE: OCTOBER 1, 2005
CLOSING DATE: OCTOBER 28, 2005
FIRST DISTRIBUTION DATE: NOVEMBER 14, 2005
AGGREGATE CERTIFICATE BALANCE OF THE CLASS G CERTIFICATES AS OF THE CLOSING
DATE: $18,139,000
CERTIFICATE BALANCE OF THIS CLASS G CERTIFICATE AS OF THE CLOSING DATE:
$18,139,000 (SUBJECT TO SCHEDULE OF EXCHANGES ATTACHED)
No. G-1
MASTER SERVICER: XXXXX FARGO BANK, NATIONAL ASSOCIATION
SPECIAL SERVICER: ARCAP SERVICING, INC.
PAYING AGENT: XXXXX FARGO BANK, NATIONAL ASSOCIATION
PRIMARY SERVICER: PRINCIPAL GLOBAL INVESTORS, LLC
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
FISCAL AGENT: ABN AMRO BANK N.V.
CUSIP NO. 07387B BG 7
CLASS G CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class G Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Bear Xxxxxxx Commercial Mortgage
Securities Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Fiscal Agent, the Paying Agent, the Certificate Registrar, the Master Servicer
and the Special Servicer, a summary of certain of the pertinent provisions of
which is set forth hereafter. The Trust consists primarily of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the
quotient expressed as a percentage obtained by dividing the Certificate Balance
of this Certificate specified on the face hereof by the aggregate initial
Certificate Balance of the Class G Certificates. The Certificates are designated
as the Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 2005-TOP20 and are issued in the Classes
specified in the Pooling and Servicing Agreement. The Certificates will evidence
in the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 12th day of
each month or, if such 12th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
[Until this Regulation S Temporary Global Certificate is exchanged for
one or more Regulation S Permanent Global Certificates, the Holder hereof shall
not be entitled to receive payments hereon; until so exchanged in full, this
Regulation S Temporary Global Certificate shall in all other respects be
entitled to the same benefits as other Certificates under the Pooling and
Servicing Agreement.]
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
[This Regulation S Temporary Global Certificate is exchangeable in
whole or in part for one or more Global Certificates only (i) on or after the
termination of the 40-day distribution compliance period (as defined in
Regulation S) and (ii) upon presentation of a Regulation S Certificate (as
defined in the Pooling Agreement) required by Article III of the Pooling and
Servicing Agreement. Upon exchange of this Regulation S Temporary Global
Certificate for one or more Global Certificates, the Trustee shall cancel this
Regulation S Temporary Global Certificate.]
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust
Office of the Certificate Registrar, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized denominations will be issued to the
designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Paying Agent, the
Master Servicer, the Special Servicer 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 Fiscal Agent, the Paying Agent, the Master Servicer, the Special Servicer,
the Certificate Registrar nor any such agents shall be affected by notice to the
contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Certificateholders as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) or
10.1(c) of the Pooling and Servicing Agreement or (iii) the termination of the
Trust pursuant to Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Certificate Registrar
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: OCTOBER 28, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS G CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO 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
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights of survivorship and not as tenants in
common
UNIF GIFT MIN ACT ____________ Custodian
(Cust)
Under Uniform Gifts to Minors
Act ______________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
______________________________ IDENTIFYING NUMBER OF ASSIGNEE
______________________________
______________________________ _______________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
-------------------------- ----------------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
---------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
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.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-14
[FORM OF CLASS H CERTIFICATE]
[THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE, ARE AS SPECIFIED IN THE
POOLING AND SERVICING AGREEMENT (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE SHALL BE
ENTITLED TO RECEIVE PAYMENT HEREON.]
THIS CLASS H CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE FISCAL
AGENT, THE CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE
SPECIAL SERVICER, THE PRIMARY SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES,
AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS H CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS H CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-TOP20
INITIAL PASS-THROUGH RATE: 5.303%
DATE OF POOLING AND SERVICING AGREEMENT: AS OF OCTOBER 1, 2005
CUT-OFF DATE: OCTOBER 1, 2005
CLOSING DATE: OCTOBER 28, 2005
FIRST DISTRIBUTION DATE: NOVEMBER 14, 2005
AGGREGATE CERTIFICATE BALANCE OF THE CLASS H CERTIFICATES AS OF THE CLOSING
DATE: $23,321,000
CERTIFICATE BALANCE OF THIS CLASS H CERTIFICATE AS OF THE CLOSING DATE:
$23,321,000 (SUBJECT TO SCHEDULE OF EXCHANGES ATTACHED)
No. H-1
MASTER SERVICER: XXXXX FARGO BANK, NATIONAL ASSOCIATION
SPECIAL SERVICER: ARCAP SERVICING, INC.
PAYING AGENT: XXXXX FARGO BANK, NATIONAL ASSOCIATION
PRIMARY SERVICER: PRINCIPAL GLOBAL INVESTORS, LLC
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
FISCAL AGENT: ABN AMRO BANK N.V.
CUSIP NO. 07387B BH 5
CLASS H CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class H Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Bear Xxxxxxx Commercial Mortgage
Securities Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Fiscal Agent, the Paying Agent, the Certificate Registrar, the Master Servicer
and the Special Servicer, a summary of certain of the pertinent provisions of
which is set forth hereafter. The Trust consists primarily of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the
quotient expressed as a percentage obtained by dividing the Certificate Balance
of this Certificate specified on the face hereof by the aggregate initial
Certificate Balance of the Class H Certificates. The Certificates are designated
as the Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 2005-TOP20 and are issued in the Classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 12th day of
each month or, if such 12th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
[Until this Regulation S Temporary Global Certificate is exchanged for
one or more Regulation S Permanent Global Certificates, the Holder hereof shall
not be entitled to receive payments hereon; until so exchanged in full, this
Regulation S Temporary Global Certificate shall in all other respects be
entitled to the same benefits as other Certificates under the Pooling and
Servicing Agreement.]
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
[This Regulation S Temporary Global Certificate is exchangeable in
whole or in part for one or more Global Certificates only (i) on or after the
termination of the 40-day distribution compliance period (as defined in
Regulation S) and (ii) upon presentation of a Regulation S Certificate (as
defined in the Pooling Agreement) required by Article III of the Pooling and
Servicing Agreement. Upon exchange of this Regulation S Temporary Global
Certificate for one or more Global Certificates, the Trustee shall cancel this
Regulation S Temporary Global Certificate.]
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust
Office of the Certificate Registrar, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized denominations will be issued to the
designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Paying Agent, the
Master Servicer, the Special Servicer 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 Fiscal Agent, the Paying Agent, the Master Servicer, the Special Servicer,
the Certificate Registrar nor any such agents shall be affected by notice to the
contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Certificateholders as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) or
10.1(c) of the Pooling and Servicing Agreement or (iii) the termination of the
Trust pursuant to Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Certificate Registrar
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: OCTOBER 28, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS H CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO 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
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights of survivorship and not as tenants in
common
UNIF GIFT MIN ACT ____________ Custodian
(Cust)
Under Uniform Gifts to Minors
Act ______________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
______________________________ IDENTIFYING NUMBER OF ASSIGNEE
______________________________
______________________________ _______________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
-------------------------- ----------------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
---------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
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.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-15
[FORM OF CLASS J CERTIFICATE]
[THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE, ARE AS SPECIFIED IN THE
POOLING AND SERVICING AGREEMENT (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE SHALL BE
ENTITLED TO RECEIVE PAYMENT HEREON.]
THIS CLASS J CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE FISCAL
AGENT, THE CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE
SPECIAL SERVICER, THE PRIMARY SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES,
AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS J CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS J CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"), OR APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE
CODE OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE
ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, WILL BE
REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-TOP20
INITIAL PASS-THROUGH RATE: 5.303%
DATE OF POOLING AND SERVICING AGREEMENT: AS OF OCTOBER 1, 2005
CUT-OFF DATE: OCTOBER 1, 2005
CLOSING DATE: OCTOBER 28, 2005
FIRST DISTRIBUTION DATE: NOVEMBER 14, 2005
AGGREGATE CERTIFICATE BALANCE OF THE CLASS J CERTIFICATES AS OF THE CLOSING
DATE: $18,138,000
CERTIFICATE BALANCE OF THIS CLASS J CERTIFICATE AS OF THE CLOSING DATE:
$18,138,000 (SUBJECT TO SCHEDULE OF EXCHANGES ATTACHED)
No. J-1
MASTER SERVICER: XXXXX FARGO BANK, NATIONAL ASSOCIATION
SPECIAL SERVICER: ARCAP SERVICING, INC.
PAYING AGENT: XXXXX FARGO BANK, NATIONAL ASSOCIATION
PRIMARY SERVICER: PRINCIPAL GLOBAL INVESTORS, LLC
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
FISCAL AGENT: ABN AMRO BANK N.V.
CUSIP NO. 07387B BJ 1
CLASS J CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class J Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Bear Xxxxxxx Commercial Mortgage
Securities Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Fiscal Agent, the Paying Agent, the Certificate Registrar, the Master Servicer
and the Special Servicer, a summary of certain of the pertinent provisions of
which is set forth hereafter. The Trust consists primarily of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class J Certificates. The Certificates are designated as the Bear
Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 2005-TOP20 and are issued in the Classes as specifically
set forth in the Pooling and Servicing Agreement. The Certificates will evidence
in the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 12th day of
each month or, if such 12th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and
Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of the
Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
[Until this Regulation S Temporary Global Certificate is exchanged for
one or more Regulation S Permanent Global Certificates, the Holder hereof shall
not be entitled to receive payments hereon; until so exchanged in full, this
Regulation S Temporary Global Certificate shall in all other respects be
entitled to the same benefits as other Certificates under the Pooling and
Servicing Agreement.]
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
[This Regulation S Temporary Global Certificate is exchangeable in
whole or in part for one or more Global Certificates only (i) on or after the
termination of the 40-day distribution compliance period (as defined in
Regulation S) and (ii) upon presentation of a Regulation S Certificate (as
defined in the Pooling Agreement) required by Article III of the Pooling and
Servicing Agreement. Upon exchange of this Regulation S Temporary Global
Certificate for one or more Global Certificates, the Trustee shall cancel this
Regulation S Temporary Global Certificate.]
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar
duly executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Paying Agent, the
Master Servicer, the Special Servicer 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 Fiscal Agent, the Paying Agent, the Master Servicer, the Special Servicer,
the Certificate Registrar nor any such agents shall be affected by notice to the
contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Certificateholders as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) or
10.1(c) of the Pooling and Servicing Agreement or (iii) the termination of the
Trust pursuant to Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Certificate Registrar
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: OCTOBER 28, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS J CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO 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
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights of survivorship and not as tenants in
common
UNIF GIFT MIN ACT ______________ Custodian
(Cust)
Under Uniform Gifts to Minors
Act _______________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
______________________________ IDENTIFYING NUMBER OF ASSIGNEE
______________________________
______________________________ _______________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
-------------------------- ----------------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
---------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
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.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-16
[FORM OF CLASS K CERTIFICATE]
[THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE, ARE AS SPECIFIED IN THE
POOLING AND SERVICING AGREEMENT (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE SHALL BE
ENTITLED TO RECEIVE PAYMENT HEREON.]
THIS CLASS K CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE FISCAL
AGENT, THE CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE
SPECIAL SERVICER, THE PRIMARY SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES,
AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS K CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS K CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"), OR APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE
CODE OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE
ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, WILL BE
REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-TOP20
INITIAL PASS-THROUGH RATE: 4.973%
DATE OF POOLING AND SERVICING AGREEMENT: AS OF OCTOBER 1, 2005
CUT-OFF DATE: OCTOBER 1, 2005
CLOSING DATE: OCTOBER 28, 2005
FIRST DISTRIBUTION DATE: NOVEMBER 14, 2005
AGGREGATE CERTIFICATE BALANCE OF THE CLASS K CERTIFICATES AS OF THE CLOSING
DATE: $5,183,000
CERTIFICATE BALANCE OF THIS CLASS K CERTIFICATE AS OF THE CLOSING DATE: $
5,183,000 (SUBJECT TO SCHEDULE OF EXCHANGES ATTACHED)
No. K-1
MASTER SERVICER: XXXXX FARGO BANK, NATIONAL ASSOCIATION
SPECIAL SERVICER: ARCAP SERVICING, INC.
PAYING AGENT: XXXXX FARGO BANK, NATIONAL ASSOCIATION
PRIMARY SERVICER: PRINCIPAL GLOBAL INVESTORS, LLC
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
FISCAL AGENT: ABN AMRO BANK N.V.
CUSIP NO. 07387B BK 8
CLASS K CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class K Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Bear Xxxxxxx Commercial Mortgage
Securities Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Fiscal Agent, the Paying Agent, the Certificate Registrar, the Master Servicer
and the Special Servicer, a summary of certain of the pertinent provisions of
which is set forth hereafter. The Trust consists primarily of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class K
Certificates. The Certificates are designated as the Bear Xxxxxxx Commercial
Mortgage Securities Inc., Commercial Mortgage Pass-Through Certificates, Series
2005-TOP20 and are issued in the Classes as specifically set forth in the
Pooling and Servicing Agreement. The Certificates will evidence in the aggregate
100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 12th day of
each month or, if such 12th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from
the Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
[Until this Regulation S Temporary Global Certificate is exchanged for
one or more Regulation S Permanent Global Certificates, the Holder hereof shall
not be entitled to receive payments hereon; until so exchanged in full, this
Regulation S Temporary Global Certificate shall in all other respects be
entitled to the same benefits as other Certificates under the Pooling and
Servicing Agreement.]
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
[This Regulation S Temporary Global Certificate is exchangeable in
whole or in part for one or more Global Certificates only (i) on or after the
termination of the 40-day distribution compliance period (as defined in
Regulation S) and (ii) upon presentation of a Regulation S Certificate (as
defined in the Pooling Agreement) required by Article III of the Pooling and
Servicing Agreement. Upon exchange of this Regulation S Temporary Global
Certificate for one or more Global Certificates, the Trustee shall cancel this
Regulation S Temporary Global Certificate.]
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations will be issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Paying Agent, the
Master Servicer, the Special Servicer 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 Fiscal Agent, the Paying Agent, the Master Servicer, the Special Servicer,
the Certificate Registrar nor any such agents shall be affected by notice to the
contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Certificateholders as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) or
10.1(c) of the Pooling and Servicing Agreement or (iii) the termination of the
Trust pursuant to Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Certificate Registrar
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: OCTOBER 28, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS K CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO 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
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights of survivorship and not as tenants in
common
UNIF GIFT MIN ACT ______________ Custodian
(Cust)
Under Uniform Gifts to Minors
Act _______________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
______________________________ IDENTIFYING NUMBER OF ASSIGNEE
______________________________
______________________________ _______________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
-------------------------- ----------------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
---------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
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.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-17
[FORM OF CLASS L CERTIFICATE]
[THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE, ARE AS SPECIFIED IN THE
POOLING AND SERVICING AGREEMENT (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE SHALL BE
ENTITLED TO RECEIVE PAYMENT HEREON.]
THIS CLASS L CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE FISCAL
AGENT, THE CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE
SPECIAL SERVICER, THE PRIMARY SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES,
AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS L CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS L CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"), OR APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE
CODE OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE
ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, WILL BE
REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-TOP20
INITIAL PASS-THROUGH RATE: 4.973%
DATE OF POOLING AND SERVICING AGREEMENT: AS OF OCTOBER 1, 2005
CUT-OFF DATE: OCTOBER 1, 2005
CLOSING DATE: OCTOBER 28, 2005
FIRST DISTRIBUTION DATE: NOVEMBER 14, 2005
AGGREGATE CERTIFICATE BALANCE OF THE CLASS L CERTIFICATES AS OF THE CLOSING
DATE: $7,773,000
CERTIFICATE BALANCE OF THIS CLASS L CERTIFICATE AS OF THE CLOSING DATE:
$7,773,000 (SUBJECT TO SCHEDULE OF EXCHANGES ATTACHED)
No. L-1
MASTER SERVICER: XXXXX FARGO BANK, NATIONAL ASSOCIATION
SPECIAL SERVICER: ARCAP SERVICING, INC.
PAYING AGENT: XXXXX FARGO BANK, NATIONAL ASSOCIATION
PRIMARY SERVICER: PRINCIPAL GLOBAL INVESTORS, LLC
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
FISCAL AGENT: ABN AMRO BANK N.V.
CUSIP NO. 07387B BL 6
CLASS L CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class L Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Bear Xxxxxxx Commercial Mortgage
Securities Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Fiscal Agent, the Paying Agent, the Certificate Registrar, the Master Servicer
and the Special Servicer, a summary of certain of the pertinent provisions of
which is set forth hereafter. The Trust consists primarily of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class L
Certificates. The Certificates are designated as the Bear Xxxxxxx Commercial
Mortgage Securities Inc., Commercial Mortgage Pass-Through Certificates, Series
2005-TOP20 and are issued in the Classes as specifically set forth in the
Pooling and Servicing Agreement. The Certificates will evidence in the aggregate
100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 12th day of
each month or, if such 12th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from
the Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
[Until this Regulation S Temporary Global Certificate is exchanged for
one or more Regulation S Permanent Global Certificates, the Holder hereof shall
not be entitled to receive payments hereon; until so exchanged in full, this
Regulation S Temporary Global Certificate shall in all other respects be
entitled to the same benefits as other Certificates under the Pooling and
Servicing Agreement.]
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
[This Regulation S Temporary Global Certificate is exchangeable in
whole or in part for one or more Global Certificates only (i) on or after the
termination of the 40-day distribution compliance period (as defined in
Regulation S) and (ii) upon presentation of a Regulation S Certificate (as
defined in the Pooling Agreement) required by Article III of the Pooling and
Servicing Agreement. Upon exchange of this Regulation S Temporary Global
Certificate for one or more Global Certificates, the Trustee shall cancel this
Regulation S Temporary Global Certificate.]
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations will be issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Paying Agent, the
Master Servicer, the Special Servicer 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 Fiscal Agent, the Paying Agent, the Master Servicer, the Special Servicer,
the Certificate Registrar nor any such agents shall be affected by notice to the
contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Certificateholders as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) or
10.1(c) of the Pooling and Servicing Agreement or (iii) the termination of the
Trust pursuant to Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Certificate Registrar
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: OCTOBER 28, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS L CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO 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
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights of survivorship and not as tenants in
common
UNIF GIFT MIN ACT ______________ Custodian
(Cust)
Under Uniform Gifts to Minors
Act _______________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
______________________________ IDENTIFYING NUMBER OF ASSIGNEE
______________________________
______________________________ _______________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
-------------------------- ----------------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
---------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
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.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-18
[FORM OF CLASS M CERTIFICATE]
[THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE, ARE AS SPECIFIED IN THE
POOLING AND SERVICING AGREEMENT (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE SHALL BE
ENTITLED TO RECEIVE PAYMENT HEREON.]
THIS CLASS M CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE FISCAL
AGENT, THE CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE
SPECIAL SERVICER, THE PRIMARY SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES,
AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS M CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS M CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"), OR APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE
CODE OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE
ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, WILL BE
REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-TOP20
INITIAL PASS-THROUGH RATE: 4.973%
DATE OF POOLING AND SERVICING AGREEMENT: AS OF OCTOBER 1, 2005
CUT-OFF DATE: OCTOBER 1, 2005
CLOSING DATE: OCTOBER 28, 2005
FIRST DISTRIBUTION DATE: NOVEMBER 14, 2005
AGGREGATE CERTIFICATE BALANCE OF THE CLASS M CERTIFICATES AS OF THE CLOSING
DATE: $7,774,000
CERTIFICATE BALANCE OF THIS CLASS M CERTIFICATE AS OF THE CLOSING DATE:
$7,774,000 (SUBJECT TO SCHEDULE OF EXCHANGES ATTACHED)
No. M-1
MASTER SERVICER: XXXXX FARGO BANK, NATIONAL ASSOCIATION
SPECIAL SERVICER: ARCAP SERVICING, INC.
PAYING AGENT: XXXXX FARGO BANK, NATIONAL ASSOCIATION
PRIMARY SERVICER: PRINCIPAL GLOBAL INVESTORS, LLC
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
FISCAL AGENT: ABN AMRO BANK N.V.
CUSIP NO. 07387B BM 4
CLASS M CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class M Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), Bear Xxxxxxx Commercial Mortgage Securities
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Fiscal
Agent, the Paying Agent, the Certificate Registrar, the Master Servicer and the
Special Servicer, a summary of certain of the pertinent provisions of which is
set forth hereafter. The Trust consists primarily of the Mortgage Loans, such
amounts as shall from time to time be held in the Certificate Account and
Distribution Account, the Insurance Policies and any REO Properties. To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class M Certificates. The Certificates are designated as the Bear
Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 2005-TOP20 and are issued in the Classes as specifically
set forth in the Pooling and Servicing Agreement. The Certificates will evidence
in the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 12th day of
each month or, if such 12th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and
Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of the
Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
[Until this Regulation S Temporary Global Certificate is exchanged for
one or more Regulation S Permanent Global Certificates, the Holder hereof shall
not be entitled to receive payments hereon; until so exchanged in full, this
Regulation S Temporary Global Certificate shall in all other respects be
entitled to the same benefits as other Certificates under the Pooling and
Servicing Agreement.]
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
[This Regulation S Temporary Global Certificate is exchangeable in
whole or in part for one or more Global Certificates only (i) on or after the
termination of the 40-day distribution compliance period (as defined in
Regulation S) and (ii) upon presentation of a Regulation S Certificate (as
defined in the Pooling Agreement) required by Article III of the Pooling and
Servicing Agreement. Upon exchange of this Regulation S Temporary Global
Certificate for one or more Global Certificates, the Trustee shall cancel this
Regulation S Temporary Global Certificate.]
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar
duly executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Paying Agent, the
Master Servicer, the Special Servicer 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 Fiscal Agent, the Paying Agent, the Master Servicer, the Special Servicer,
the Certificate Registrar nor any such agents shall be affected by notice to the
contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Certificateholders as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) or
10.1(c) of the Pooling and Servicing Agreement or (iii) the termination of the
Trust pursuant to Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Certificate Registrar
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: OCTOBER 28, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS M CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO 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
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights of survivorship and not as tenants in
common
UNIF GIFT MIN ACT ______________ Custodian
(Cust)
Under Uniform Gifts to Minors
Act _______________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
______________________________ IDENTIFYING NUMBER OF ASSIGNEE
______________________________
______________________________ _______________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
-------------------------- ----------------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
---------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
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.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-19
[FORM OF CLASS N CERTIFICATE]
[THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE, ARE AS SPECIFIED IN THE
POOLING AND SERVICING AGREEMENT (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE SHALL BE
ENTITLED TO RECEIVE PAYMENT HEREON.]
THIS CLASS N CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE FISCAL
AGENT, THE CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE
SPECIAL SERVICER, THE PRIMARY SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES,
AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS N CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS N CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"), OR APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE
CODE OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE
ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, WILL BE
REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-TOP20
INITIAL PASS-THROUGH RATE: 4.973%
DATE OF POOLING AND SERVICING AGREEMENT: AS OF OCTOBER 1, 2005
CUT-OFF DATE: OCTOBER 1, 2005
CLOSING DATE: OCTOBER 28, 2005
FIRST DISTRIBUTION DATE: NOVEMBER 14, 2005
AGGREGATE CERTIFICATE BALANCE OF THE CLASS N CERTIFICATES AS OF THE CLOSING
DATE: $2,591,000
CERTIFICATE BALANCE OF THIS CLASS N CERTIFICATE AS OF THE CLOSING DATE:
$2,591,000 (SUBJECT TO SCHEDULE OF EXCHANGES ATTACHED)
No. N-1
MASTER SERVICER: XXXXX FARGO BANK, NATIONAL ASSOCIATION
SPECIAL SERVICER: ARCAP SERVICING, INC.
PAYING AGENT: XXXXX FARGO BANK, NATIONAL ASSOCIATION
PRIMARY SERVICER: PRINCIPAL GLOBAL INVESTORS, LLC
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
FISCAL AGENT: ABN AMRO BANK N.V.
CUSIP NO. 07387B BN 2
CLASS N CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class N Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Bear Xxxxxxx Commercial Mortgage
Securities Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Fiscal Agent, the Paying Agent, the Certificate Registrar, the Master Servicer
and the Special Servicer, a summary of certain of the pertinent provisions of
which is set forth hereafter. The Trust consists primarily of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class N Certificates. The Certificates are designated as the Bear
Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 2005-TOP20 and are issued in the Classes as specifically
set forth in the Pooling and Servicing Agreement. The Certificates will evidence
in the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 12th day of
each month or, if such 12th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and
Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of the
Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
[Until this Regulation S Temporary Global Certificate is exchanged for
one or more Regulation S Permanent Global Certificates, the Holder hereof shall
not be entitled to receive payments hereon; until so exchanged in full, this
Regulation S Temporary Global Certificate shall in all other respects be
entitled to the same benefits as other Certificates under the Pooling and
Servicing Agreement.]
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
[This Regulation S Temporary Global Certificate is exchangeable in
whole or in part for one or more Global Certificates only (i) on or after the
termination of the 40-day distribution compliance period (as defined in
Regulation S) and (ii) upon presentation of a Regulation S Certificate (as
defined in the Pooling Agreement) required by Article III of the Pooling and
Servicing Agreement. Upon exchange of this Regulation S Temporary Global
Certificate for one or more Global Certificates, the Trustee shall cancel this
Regulation S Temporary Global Certificate.]
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar
duly executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Paying Agent, the
Master Servicer, the Special Servicer 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 Fiscal Agent, the Paying Agent, the Master Servicer, the Special Servicer,
the Certificate Registrar nor any such agents shall be affected by notice to the
contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Certificateholders as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) or
10.1(c) of the Pooling and Servicing Agreement or (iii) the termination of the
Trust pursuant to Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Certificate Registrar
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: OCTOBER 28, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS N CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO 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
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights of survivorship and not as tenants in
common
UNIF GIFT MIN ACT ______________ Custodian
(Cust)
Under Uniform Gifts to Minors
Act _______________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
______________________________ IDENTIFYING NUMBER OF ASSIGNEE
______________________________
______________________________ _______________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
-------------------------- ----------------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
---------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
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.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-20
[FORM OF CLASS O CERTIFICATE]
[THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE, ARE AS SPECIFIED IN THE
POOLING AND SERVICING AGREEMENT (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE SHALL BE
ENTITLED TO RECEIVE PAYMENT HEREON.]
THIS CLASS O CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE FISCAL
AGENT, THE CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE
SPECIAL SERVICER, THE PRIMARY SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES,
AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS O CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS O CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"), OR APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE
CODE OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE
ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, WILL BE
REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-TOP20
INITIAL PASS-THROUGH RATE: 4.973%
DATE OF POOLING AND SERVICING AGREEMENT: AS OF OCTOBER 1, 2005
CUT-OFF DATE: OCTOBER 1, 2005
CLOSING DATE: OCTOBER 28, 2005
FIRST DISTRIBUTION DATE: NOVEMBER 14, 2005
AGGREGATE CERTIFICATE BALANCE OF THE CLASS O CERTIFICATES AS OF THE CLOSING
DATE: $2,591,000
CERTIFICATE BALANCE OF THIS CLASS O CERTIFICATE AS OF THE CLOSING DATE:
$2,591,000 (SUBJECT TO SCHEDULE OF EXCHANGES ATTACHED)
No. O-1
MASTER SERVICER: XXXXX FARGO BANK, NATIONAL ASSOCIATION
SPECIAL SERVICER: ARCAP SERVICING, INC.
PAYING AGENT: XXXXX FARGO BANK, NATIONAL ASSOCIATION
PRIMARY SERVICER: PRINCIPAL GLOBAL INVESTORS, LLC
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
FISCAL AGENT: ABN AMRO BANK N.V.
CUSIP XX. 00000X XX 0
CLASS O CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class O Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Bear Xxxxxxx Commercial Mortgage
Securities Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Fiscal Agent, the Paying Agent, the Certificate Registrar, the Master Servicer
and the Special Servicer, a summary of certain of the pertinent provisions of
which is set forth hereafter. The Trust consists primarily of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class O Certificates. The Certificates are designated as the Bear
Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 2005-TOP20 and are issued in the Classes as specifically
set forth in the Pooling and Servicing Agreement. The Certificates will evidence
in the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 12th day of
each month or, if such 12th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and
Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of the
Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
[Until this Regulation S Temporary Global Certificate is exchanged for
one or more Regulation S Permanent Global Certificates, the Holder hereof shall
not be entitled to receive payments hereon; until so exchanged in full, this
Regulation S Temporary Global Certificate shall in all other respects be
entitled to the same benefits as other Certificates under the Pooling and
Servicing Agreement.]
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
[This Regulation S Temporary Global Certificate is exchangeable in
whole or in part for one or more Global Certificates only (i) on or after the
termination of the 40-day distribution compliance period (as defined in
Regulation S) and (ii) upon presentation of a Regulation S Certificate (as
defined in the Pooling Agreement) required by Article III of the Pooling and
Servicing Agreement. Upon exchange of this Regulation S Temporary Global
Certificate for one or more Global Certificates, the Trustee shall cancel this
Regulation S Temporary Global Certificate.]
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar
duly executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Paying Agent, the
Master Servicer, the Special Servicer 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 Fiscal Agent, the Paying Agent, the Master Servicer, the Special Servicer,
the Certificate Registrar nor any such agents shall be affected by notice to the
contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Certificateholders as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) or
10.1(c) of the Pooling and Servicing Agreement or (iii) the termination of the
Trust pursuant to Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Certificate Registrar
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: OCTOBER 28, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS O CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO 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
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights of survivorship and not as tenants in
common
UNIF GIFT MIN ACT ____________ Custodian
(Cust)
Under Uniform Gifts to Minors
Act ______________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
______________________________ IDENTIFYING NUMBER OF ASSIGNEE
______________________________
______________________________ _______________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
-------------------------- ----------------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
---------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
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.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-21
[FORM OF CLASS P CERTIFICATE]
[THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE, ARE AS SPECIFIED IN THE
POOLING AND SERVICING AGREEMENT (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE SHALL BE
ENTITLED TO RECEIVE PAYMENT HEREON.]
THIS CLASS P CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE FISCAL
AGENT, THE CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE
SPECIAL SERVICER, THE PRIMARY SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES,
AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS P CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS P CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"), OR APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE
CODE OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE
ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, WILL BE
REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-TOP20
INITIAL PASS-THROUGH RATE: 4.973%
DATE OF POOLING AND SERVICING AGREEMENT: AS OF OCTOBER 1, 2005
CUT-OFF DATE: OCTOBER 1, 2005
CLOSING DATE: OCTOBER 28, 2005
FIRST DISTRIBUTION DATE: NOVEMBER 14, 2005
AGGREGATE CERTIFICATE BALANCE OF THE CLASS P CERTIFICATES AS OF THE CLOSING
DATE: $5,183,000
CERTIFICATE BALANCE OF THIS CLASS P CERTIFICATE AS OF THE CLOSING DATE:
$5,183,000 (SUBJECT TO SCHEDULE OF EXCHANGES ATTACHED)
No. P-1
MASTER SERVICER: XXXXX FARGO BANK, NATIONAL ASSOCIATION
SPECIAL SERVICER: ARCAP SERVICING, INC.
PAYING AGENT: XXXXX FARGO BANK, NATIONAL ASSOCIATION
PRIMARY SERVICER: PRINCIPAL GLOBAL INVESTORS, LLC
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
FISCAL AGENT: ABN AMRO BANK N.V.
CUSIP NO. 07387B BQ 5
CLASS P CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class P Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Bear Xxxxxxx Commercial Mortgage
Securities Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Fiscal Agent, the Paying Agent, the Certificate Registrar, the Master Servicer
and the Special Servicer, a summary of certain of the pertinent provisions of
which is set forth hereafter. The Trust consists primarily of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class P
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class P Certificates. The Certificates are designated as the Bear
Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 2005-TOP20 and are issued in the Classes as specifically
set forth in the Pooling and Servicing Agreement. The Certificates will evidence
in the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 12th day of
each month or, if such 12th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class P Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and
Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of the
Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
[Until this Regulation S Temporary Global Certificate is exchanged for
one or more Regulation S Permanent Global Certificates, the Holder hereof shall
not be entitled to receive payments hereon; until so exchanged in full, this
Regulation S Temporary Global Certificate shall in all other respects be
entitled to the same benefits as other Certificates under the Pooling and
Servicing Agreement.]
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
[This Regulation S Temporary Global Certificate is exchangeable in
whole or in part for one or more Global Certificates only (i) on or after the
termination of the 40-day distribution compliance period (as defined in
Regulation S) and (ii) upon presentation of a Regulation S Certificate (as
defined in the Pooling Agreement) required by Article III of the Pooling and
Servicing Agreement. Upon exchange of this Regulation S Temporary Global
Certificate for one or more Global Certificates, the Trustee shall cancel this
Regulation S Temporary Global Certificate.]
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar
duly executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Paying Agent, the
Master Servicer, the Special Servicer 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 Fiscal Agent, the Paying Agent, the Master Servicer, the Special Servicer,
the Certificate Registrar nor any such agents shall be affected by notice to the
contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Certificateholders as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) or
10.1(c) of the Pooling and Servicing Agreement or (iii) the termination of the
Trust pursuant to Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Certificate Registrar
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: OCTOBER 28, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS P CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO 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
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights of survivorship and not as tenants in
common
UNIF GIFT MIN ACT ____________ Custodian
(Cust)
Under Uniform Gifts to Minors
Act ______________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
______________________________ IDENTIFYING NUMBER OF ASSIGNEE
______________________________
______________________________ _______________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
-------------------------- ----------------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
---------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
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.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-22
[FORM OF CLASS Q CERTIFICATE]
[THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE, ARE AS SPECIFIED IN THE
POOLING AND SERVICING AGREEMENT (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE SHALL BE
ENTITLED TO RECEIVE PAYMENT HEREON.]
THIS CLASS Q CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE FISCAL
AGENT, THE CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE
SPECIAL SERVICER, THE PRIMARY SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES,
AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS Q CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS Q CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"), OR APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE
CODE OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE
ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, WILL BE
REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-TOP20
INITIAL PASS-THROUGH RATE: 4.973%
DATE OF POOLING AND SERVICING AGREEMENT: AS OF OCTOBER 1, 2005
CUT-OFF DATE: OCTOBER 1, 2005
CLOSING DATE: OCTOBER 28, 2005
FIRST DISTRIBUTION DATE: NOVEMBER 14, 2005
AGGREGATE CERTIFICATE BALANCE OF THE CLASS Q CERTIFICATES AS OF THE CLOSING
DATE: $15,547,628
CERTIFICATE BALANCE OF THIS CLASS Q CERTIFICATE AS OF THE CLOSING DATE:
$15,547,628 (SUBJECT TO SCHEDULE OF EXCHANGES ATTACHED)
No. Q
MASTER SERVICER: XXXXX FARGO BANK, NATIONAL ASSOCIATION
SPECIAL SERVICER: ARCAP SERVICING, INC.
PAYING AGENT: XXXXX FARGO BANK, NATIONAL ASSOCIATION
PRIMARY SERVICER: PRINCIPAL GLOBAL INVESTORS, LLC
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
FISCAL AGENT: ABN AMRO BANK N.V.
CUSIP NO. 07387B BR 3
CLASS Q CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class Q Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Bear Xxxxxxx Commercial Mortgage
Securities Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Fiscal Agent, the Paying Agent, the Certificate Registrar, the Master Servicer
and the Special Servicer, a summary of certain of the pertinent provisions of
which is set forth hereafter. The Trust consists primarily of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class Q
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class Q Certificates. The Certificates are designated as the Bear
Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 2005-TOP20 and are issued in the Classes as specifically
set forth in the Pooling and Servicing Agreement. The Certificates will evidence
in the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 12th day of
each month or, if such 12th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class Q Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and
Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of the
Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
[Until this Regulation S Temporary Global Certificate is exchanged for
one or more Regulation S Permanent Global Certificates, the Holder hereof shall
not be entitled to receive payments hereon; until so exchanged in full, this
Regulation S Temporary Global Certificate shall in all other respects be
entitled to the same benefits as other Certificates under the Pooling and
Servicing Agreement.]
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
[This Regulation S Temporary Global Certificate is exchangeable in
whole or in part for one or more Global Certificates only (i) on or after the
termination of the 40-day distribution compliance period (as defined in
Regulation S) and (ii) upon presentation of a Regulation S Certificate (as
defined in the Pooling Agreement) required by Article III of the Pooling and
Servicing Agreement. Upon exchange of this Regulation S Temporary Global
Certificate for one or more Global Certificates, the Trustee shall cancel this
Regulation S Temporary Global Certificate.]
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar
duly executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Paying Agent, the
Master Servicer, the Special Servicer 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 Fiscal Agent, the Paying Agent, the Master Servicer, the Special Servicer,
the Certificate Registrar nor any such agents shall be affected by notice to the
contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Certificateholders as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) or
10.1(c) of the Pooling and Servicing Agreement or (iii) the termination of the
Trust pursuant to Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Certificate Registrar
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: OCTOBER 28, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS Q CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO 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
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights of survivorship and not as tenants in
common
UNIF GIFT MIN ACT ____________ Custodian
(Cust)
Under Uniform Gifts to Minors
Act ______________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
______________________________ IDENTIFYING NUMBER OF ASSIGNEE
______________________________
______________________________ _______________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
-------------------------- ----------------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
---------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
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.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-23
[FORM OF CLASS LF CERTIFICATE]
[THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE, ARE AS SPECIFIED IN THE
POOLING AND SERVICING AGREEMENT (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE SHALL BE
ENTITLED TO RECEIVE PAYMENT HEREON.]
THIS CLASS LF CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE FISCAL
AGENT, THE CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE
SPECIAL SERVICER, THE PRIMARY SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES,
AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS LF CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"), OR APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE
CODE OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE
ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, WILL BE
REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-TOP20
INITIAL PASS-THROUGH RATE: 5.057%
DATE OF POOLING AND SERVICING AGREEMENT: AS OF OCTOBER 1, 2005
CUT-OFF DATE: OCTOBER 1, 2005
CLOSING DATE: OCTOBER 28, 2005
FIRST DISTRIBUTION DATE: NOVEMBER 14, 2005
AGGREGATE CERTIFICATE BALANCE OF THE CLASS LF CERTIFICATES AS OF THE CLOSING
DATE: $20,000,000
CERTIFICATE BALANCE OF THIS CLASS LF CERTIFICATE AS OF THE CLOSING DATE:
$20,000,000 (SUBJECT TO SCHEDULE OF EXCHANGES ATTACHED)
No. LF-1
MASTER SERVICER: XXXXX FARGO BANK, NATIONAL ASSOCIATION
SPECIAL SERVICER: ARCAP SERVICING, INC.
PAYING AGENT: XXXXX FARGO BANK, NATIONAL ASSOCIATION
PRIMARY SERVICER: PRINCIPAL GLOBAL INVESTORS, LLC
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
FISCAL AGENT: ABN AMRO BANK N.V.
CUSIP NO. 07387B BS 1
CLASS LF CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class LF Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Bear Xxxxxxx Commercial Mortgage
Securities Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Fiscal Agent, the Paying Agent, the Certificate Registrar, the Master Servicer
and the Special Servicer, a summary of certain of the pertinent provisions of
which is set forth hereafter. The Trust consists primarily of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class LF
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class LF Certificates. The Certificates are designated as the
Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 2005-TOP20 and are issued in the Classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 12th day of
each month or, if such 12th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class LF Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and
Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of the
Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefore, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
[Until this Regulation S Temporary Global Certificate is exchanged for
one or more Regulation S Permanent Global Certificates, the Holder hereof shall
not be entitled to receive payments hereon; until so exchanged in full, this
Regulation S Temporary Global Certificate shall in all other respects be
entitled to the same benefits as other Certificates under the Pooling and
Servicing Agreement.]
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
[This Regulation S Temporary Global Certificate is exchangeable in
whole or in part for one or more Global Certificates only (i) on or after the
termination of the 40-day distribution compliance period (as defined in
Regulation S) and (ii) upon presentation of a Regulation S Certificate (as
defined in the Pooling Agreement) required by Article III of the Pooling and
Servicing Agreement. Upon exchange of this Regulation S Temporary Global
Certificate for one or more Global Certificates, the Trustee shall cancel this
Regulation S Temporary Global Certificate.]
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar
duly executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Paying Agent, the
Master Servicer, the Special Servicer 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 Fiscal Agent, the Paying Agent, the Master Servicer, the Special Servicer,
the Certificate Registrar nor any such agents shall be affected by notice to the
contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Certificateholders as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) or
10.1(c) of the Pooling and Servicing Agreement or (iii) the termination of the
Trust pursuant to Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Certificate Registrar
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: OCTOBER 28, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS LF CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO 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
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights of survivorship and not as tenants in
common
UNIF GIFT MIN ACT ____________ Custodian
(Cust)
Under Uniform Gifts to Minors
Act ______________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
______________________________ IDENTIFYING NUMBER OF ASSIGNEE
______________________________
______________________________ _______________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
-------------------------- ----------------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
---------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
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.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-24
[FORM OF CLASS R-I CERTIFICATE]
THIS CLASS R-I CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE PLACEMENT AGENT, THE TRUSTEE, THE FISCAL
AGENT, THE CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE
SPECIAL SERVICER, THE PRIMARY SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES,
AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS THE
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"). THIS CERTIFICATE MAY NOT BE TRANSFERRED TO A
NON-UNITED STATES PERSON.
THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED TO
"DISQUALIFIED ORGANIZATIONS" WITHIN THE MEANING OF THE CODE.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"), OR APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE
CODE OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE
ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, WILL BE
REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
A SALE, TRANSFER OR OTHER DISPOSITION OF THIS CLASS R-I CERTIFICATE MAY BE MADE
ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER
AFFIDAVIT TO THE CERTIFICATE REGISTRAR TO THE EFFECT THAT (1) SUCH TRANSFEREE
AGREES TO BE BOUND BY THE TERMS OF THE POOLING AND SERVICING AGREEMENT AND ALL
RESTRICTIONS SET FORTH ON THE FACE HEREOF, (2) SUCH TRANSFEREE IS NOT (A) THE
UNITED STATES, ANY STATE OR POLITICAL SUBDIVISION THEREOF, OR ANY AGENCY OR
INSTRUMENTALITY OF ANY OF THE FOREGOING (OTHER THAN AN INSTRUMENTALITY WHICH IS
A CORPORATION IF ALL OF ITS ACTIVITIES ARE SUBJECT TO TAX AND, EXCEPT FOR FHLMC,
A MAJORITY OF ITS BOARD OF DIRECTORS IS NOT SELECTED BY ANY SUCH GOVERNMENTAL
UNIT), (B) AN ORGANIZATION (OTHER THAN CERTAIN FARMERS' COOPERATIVES DESCRIBED
IN SECTION 521 OF THE CODE) WHICH IS EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF
THE CODE (UNLESS SUCH ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511
OF THE CODE ON UNRELATED BUSINESS TAXABLE INCOME), (C) A RURAL ELECTRIC OR
TELEPHONE COOPERATIVE DESCRIBED IN SECTION 1381 OF THE CODE (ANY SUCH PERSON
DESCRIBED IN THE FOREGOING CLAUSES (A), (B) OR (C) BEING HEREINAFTER REFERRED TO
AS A "DISQUALIFIED ORGANIZATION"), (D) A PERSON THAT IS NOT A CITIZEN OF OR
RESIDENT OF THE UNITED STATES, A CORPORATION, PARTNERSHIP OR OTHER ENTITY
CREATED OR ORGANIZED IN, OR UNDER THE LAWS OF, THE UNITED STATES OR ANY
POLITICAL SUBDIVISION THEREOF, OR AN ESTATE OR TRUST WHOSE INCOME FROM SOURCES
WITHOUT THE UNITED STATES IS INCLUDABLE IN GROSS INCOME FOR UNITED STATES
FEDERAL INCOME TAX PURPOSES REGARDLESS OF ITS CONNECTION WITH THE CONDUCT OF
TRADE OR BUSINESS IN THE UNITED STATES (ANY SUCH PERSON BEING HEREINAFTER
REFERRED TO AS A "UNITED STATES PERSON") OR (E) AN AGENT OF A DISQUALIFIED
ORGANIZATION OR A NON-UNITED STATES PERSON, AND (3) NO PURPOSE OF SUCH TRANSFER
IS TO ENABLE THE TRANSFEROR TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX.
NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE REGISTER OF ANY TRANSFER,
SALE OR OTHER DISPOSITION OF THIS CLASS R-I CERTIFICATE TO A DISQUALIFIED
ORGANIZATION OR A NON-UNITED STATES PERSON OR AN AGENT OF A DISQUALIFIED
ORGANIZATION OR A NON-UNITED STATES PERSON, OR TO ANY OTHER PROHIBITED
TRANSFEREE AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT, SUCH REGISTRATION
SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND SUCH PERSON
SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER,
INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE.
EACH HOLDER OF A CLASS R-I CERTIFICATE BY ACCEPTANCE OF THIS CERTIFICATE SHALL
BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF THIS PARAGRAPH.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-TOP20
PERCENTAGE INTEREST OF THIS CLASS R-I CERTIFICATE: 100%
DATE OF POOLING AND SERVICING AGREEMENT: AS OF OCTOBER 1, 2005
CUT-OFF DATE: OCTOBER 1, 2005
CLOSING DATE: OCTOBER 28, 2005
FIRST DISTRIBUTION DATE: NOVEMBER 14, 2005
MASTER SERVICER: XXXXX FARGO BANK, NATIONAL ASSOCIATION
SPECIAL SERVICER: ARCAP SERVICING, INC.
PAYING AGENT: XXXXX FARGO BANK, NATIONAL ASSOCIATION
PRIMARY SERVICER: PRINCIPAL GLOBAL INVESTORS, LLC
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
FISCAL AGENT: ABN AMRO BANK N.V.
NO. R-I-1
CLASS R-I CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFIES THAT Bear Xxxxxxx Securities Corp. is the registered owner of the
interest evidenced by this Certificate in the Class R-I Certificates issued by
the Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Bear Xxxxxxx
Commercial Mortgage Securities Inc. (hereinafter called the "Depositor", which
term includes any successor entity under the Pooling and Servicing Agreement),
the Trustee, the Fiscal Agent, the Paying Agent, the Master Servicer and the
Special Servicer, a summary of certain of the pertinent provisions of which is
set forth hereafter. The Trust consists primarily of the Mortgage Loans, such
amounts as shall from time to time be held in the Certificate Account and
Distribution Account, the Insurance Policies and any REO Properties. To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the Percentage Interest in the Class
R-I Certificates specified on the face hereof. The Certificates are designated
as Bear Xxxxxxx Commercial Mortgage Securities Inc. Commercial Mortgage
Pass-Through Certificates, Series 2005-TOP20 and are issued in the Classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
The Holder of this Certificate shall be entitled to receive only
certain amounts set forth in the Pooling and Servicing Agreement, including a
distribution upon termination of the Pooling and Servicing Agreement and the
related REMIC created thereby of the amounts which remain on deposit in the
Distribution Account after payment to the holders of all other Certificates of
all amounts set forth in the Pooling and Servicing Agreement. Distributions on
this Certificate will be made out of the Available Distribution Amount, to the
extent and subject to the limitations set forth in the Pooling and Servicing
Agreement, on the 12th day of each month or, if such 12th day is not a Business
Day, the next succeeding Business Day (a "Distribution Date") commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"). All sums distributable on this Certificate are payable in the coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor,
if such Certificateholder will have provided the Paying Agent with wiring
instructions on or prior to the related Record Date or otherwise by check mailed
to such Certificateholder. Notwithstanding the above, the final distribution on
any Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
The Residual Certificates will be issued in fully registered,
certificated form in minimum percentage interests of 10% and in multiples of 10%
in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Fiscal Agent, the Paying Agent, the
Master Servicer, the Special Servicer 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 Fiscal Agent, the Paying Agent, the Master Servicer, the Special Servicer,
the Certificate Registrar nor any such agents shall be affected by notice to the
contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Certificateholders as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the
later of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) or
10.1(c) of the Pooling and Servicing Agreement or (iii) the termination of the
Trust pursuant to Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Certificate Registrar
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: OCTOBER 28, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS R-I CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO 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
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights of survivorship and not as tenants in
common
UNIF GIFT MIN ACT ______________ Custodian
(Cust)
Under Uniform Gifts to Minors
Act _______________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
______________________________ IDENTIFYING NUMBER OF ASSIGNEE
______________________________
______________________________ _______________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
-------------------------- ----------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ______________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
EXHIBIT A-25
[FORM OF CLASS R-II CERTIFICATE]
THIS CLASS R-II CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE PLACEMENT AGENT, THE TRUSTEE, THE FISCAL
AGENT, THE CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE
SPECIAL SERVICER, THE PRIMARY SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES,
AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS THE
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"). THIS CERTIFICATE MAY NOT BE TRANSFERRED TO A
NON-UNITED STATES PERSON.
THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED TO
"DISQUALIFIED ORGANIZATIONS" WITHIN THE MEANING OF THE CODE.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"), OR APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE
CODE OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE
ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, WILL BE
REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
A SALE, TRANSFER OR OTHER DISPOSITION OF THIS CLASS R-II CERTIFICATE MAY BE MADE
ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE CERTIFICATE
REGISTRAR TO THE EFFECT THAT (1) SUCH TRANSFEREE AGREES TO BE BOUND BY THE TERMS
OF THE POOLING AND SERVICING AGREEMENT AND ALL RESTRICTIONS SET FORTH ON THE
FACE HEREOF, (2) SUCH TRANSFEREE IS NOT (A) THE UNITED STATES, ANY STATE OR
POLITICAL SUBDIVISION THEREOF, OR ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE
FOREGOING (OTHER THAN AN INSTRUMENTALITY WHICH IS A CORPORATION IF ALL OF ITS
ACTIVITIES ARE SUBJECT TO TAX AND, EXCEPT FOR FHLMC, A MAJORITY OF ITS BOARD OF
DIRECTORS IS NOT SELECTED BY ANY SUCH GOVERNMENTAL UNIT), (B) AN ORGANIZATION
(OTHER THAN CERTAIN FARMERS' COOPERATIVES DESCRIBED IN SECTION 521 OF THE CODE)
WHICH IS EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE (UNLESS SUCH
ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE CODE ON
UNRELATED BUSINESS TAXABLE INCOME), (C) A RURAL ELECTRIC OR TELEPHONE
COOPERATIVE DESCRIBED IN SECTION 1381 OF THE CODE (ANY SUCH PERSON DESCRIBED IN
THE FOREGOING CLAUSES (A), (B) OR (C) BEING HEREINAFTER REFERRED TO AS A
"DISQUALIFIED ORGANIZATION"), (D) A PERSON THAT IS NOT A CITIZEN OF OR RESIDENT
OF THE UNITED STATES, A CORPORATION, PARTNERSHIP OR OTHER ENTITY CREATED OR
ORGANIZED IN, OR UNDER THE LAWS OF, THE UNITED STATES OR ANY POLITICAL
SUBDIVISION THEREOF, OR AN ESTATE OR TRUST WHOSE INCOME FROM SOURCES WITHOUT THE
UNITED STATES IS INCLUDABLE IN GROSS INCOME FOR UNITED STATES FEDERAL INCOME TAX
PURPOSES REGARDLESS OF ITS CONNECTION WITH THE CONDUCT OF TRADE OR BUSINESS IN
THE UNITED STATES (ANY SUCH PERSON BEING HEREINAFTER REFERRED TO AS A "UNITED
STATES PERSON") OR (E) AN AGENT OF A DISQUALIFIED ORGANIZATION OR A NON-UNITED
STATES PERSON, AND (3) NO PURPOSE OF SUCH TRANSFER IS TO ENABLE THE TRANSFEROR
TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX. NOTWITHSTANDING THE REGISTRATION
IN THE CERTIFICATE REGISTER OF ANY TRANSFER, SALE OR OTHER DISPOSITION OF THIS
CLASS R-I CERTIFICATE TO A DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES
PERSON OR AN AGENT OF A DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES PERSON,
OR TO ANY OTHER PROHIBITED TRANSFEREE AS PROVIDED IN THE POOLING AND SERVICING
AGREEMENT, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT
WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY
PURPOSE HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS
ON THIS CERTIFICATE. EACH HOLDER OF A CLASS R-I CERTIFICATE BY ACCEPTANCE OF
THIS CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF THIS
PARAGRAPH.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-TOP20
PERCENTAGE INTEREST OF THIS CLASS R-II CERTIFICATE: 100%
DATE OF POOLING AND SERVICING AGREEMENT: AS OF OCTOBER 1, 2005
CUT-OFF DATE: OCTOBER 1, 2005
CLOSING DATE: OCTOBER 28, 2005
FIRST DISTRIBUTION DATE: NOVEMBER 14, 2005
MASTER SERVICER: XXXXX FARGO BANK, NATIONAL ASSOCIATION
SPECIAL SERVICER: ARCAP SERVICING, INC.
PAYING AGENT: XXXXX FARGO BANK, NATIONAL ASSOCIATION
PRIMARY SERVICER: PRINCIPAL GLOBAL INVESTORS, LLC
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
FISCAL AGENT: ABN AMRO BANK N.V.
NO. R-II-1
CLASS R-II CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFIES THAT Bear Xxxxxxx Securities Corp. is the registered owner of the
interest evidenced by this Certificate in the Class R-II Certificates issued by
the Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Bear Xxxxxxx
Commercial Mortgage Securities Inc. (hereinafter called the "Depositor", which
term includes any successor entity under the Pooling and Servicing Agreement),
the Trustee, the Fiscal Agent, the Paying Agent, the Master Servicer and the
Special Servicer, a summary of certain of the pertinent provisions of which is
set forth hereafter. The Trust consists primarily of the Mortgage Loans, such
amounts as shall from time to time be held in the Certificate Account and
Distribution Account, the Insurance Policies and any REO Properties. To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the Percentage Interest in the Class
R-II Certificates specified on the face hereof. The Certificates are designated
as the Bear Xxxxxxx Commercial Mortgage Securities Inc. Commercial Mortgage
Pass-Through Certificates, Series 2005-TOP20 and are issued in the
Classes as specifically set forth in the Pooling and Servicing Agreement. The
Certificates will evidence in the aggregate 100% of the beneficial ownership of
the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
The Holder of this Certificate shall be entitled to receive only
certain amounts set forth in the Pooling and Servicing Agreement, including a
distribution upon termination of the Pooling and Servicing Agreement and the
related REMIC created thereby of the amounts which remain on deposit in the
Distribution Account after payment to the holders of all other Certificates of
all amounts set forth in the Pooling and Servicing Agreement. Distributions on
this Certificate will be made out of the Available Distribution Amount, to the
extent and subject to the limitations set forth in the Pooling and Servicing
Agreement, on the 12th day of each month or, if such 12th day is not a Business
Day, the next succeeding Business Day (a "Distribution Date") commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"). All sums distributable on this Certificate are payable in the coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such
Certificateholder. All distributions under the Pooling and Servicing Agreement
to Certificateholders will be made by wire transfer in immediately available
funds to the account specified by the Certificateholder, at a bank or other
entity having appropriate facilities therefor, if such Certificateholder will
have provided the Paying Agent with wiring instructions on or prior to the
related Record Date or otherwise by check mailed to such Certificateholder.
Notwithstanding the above, the final distribution on any Certificate will be
made only upon presentation and surrender of such Certificate at the location
that will be specified in a notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
The Residual Certificates will be issued in fully registered,
certificated form in minimum percentage interests of 10% and in multiples of 10%
in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Fiscal Agent, the Paying Agent, the
Master Servicer, the Special Servicer 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 Fiscal Agent, the Paying Agent, the Master Servicer, the Special Servicer,
the Certificate Registrar nor any such agents shall be affected by notice to the
contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Certificateholders as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) or
10.1(c) of the Pooling and Servicing Agreement or (iii) the termination of the
Trust pursuant to Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Certificate Registrar
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: OCTOBER 28, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS R-II CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO 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
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights of survivorship and not as tenants in
common
UNIF GIFT MIN ACT ______________ Custodian
(Cust)
Under Uniform Gifts to Minors
Act _______________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
______________________________ IDENTIFYING NUMBER OF ASSIGNEE
______________________________
______________________________ _______________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
-------------------------- ----------------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
---------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _____________ for the account of ________________
_________________________________________________ account number ______________
or, if mailed by check, to ______________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
EXHIBIT A-26
[FORM OF CLASS R-III CERTIFICATE]
THIS CLASS R-III CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE PLACEMENT AGENT, THE TRUSTEE, THE FISCAL
AGENT, THE CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE
SPECIAL SERVICER, THE PRIMARY SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES,
AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS THE
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"). THIS CERTIFICATE MAY NOT BE TRANSFERRED TO A
NON-UNITED STATES PERSON.
THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED TO
"DISQUALIFIED ORGANIZATIONS" WITHIN THE MEANING OF THE CODE.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"), OR APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE
CODE OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE
ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, WILL BE
REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
A SALE, TRANSFER OR OTHER DISPOSITION OF THIS CLASS R-III CERTIFICATE MAY BE
MADE ONLY IF THE PROPOSED TRANSFEREE
PROVIDES A TRANSFER AFFIDAVIT TO THE CERTIFICATE REGISTRAR TO THE EFFECT THAT
(1) SUCH TRANSFEREE AGREES TO BE BOUND BY THE TERMS OF THE POOLING AND SERVICING
AGREEMENT AND ALL RESTRICTIONS SET FORTH ON THE FACE HEREOF, (2) SUCH TRANSFEREE
IS NOT (A) THE UNITED STATES, ANY STATE OR POLITICAL SUBDIVISION THEREOF, OR ANY
AGENCY OR INSTRUMENTALITY OF ANY OF THE FOREGOING (OTHER THAN AN INSTRUMENTALITY
WHICH IS A CORPORATION IF ALL OF ITS ACTIVITIES ARE SUBJECT TO TAX AND, EXCEPT
FOR FHLMC, A MAJORITY OF ITS BOARD OF DIRECTORS IS NOT SELECTED BY ANY SUCH
GOVERNMENTAL UNIT), (B) AN ORGANIZATION (OTHER THAN CERTAIN FARMERS'
COOPERATIVES DESCRIBED IN SECTION 521 OF THE CODE) WHICH IS EXEMPT FROM THE TAX
IMPOSED BY CHAPTER 1 OF THE CODE (UNLESS SUCH ORGANIZATION IS SUBJECT TO THE TAX
IMPOSED BY SECTION 511 OF THE CODE ON UNRELATED BUSINESS TAXABLE INCOME), (C) A
RURAL ELECTRIC OR TELEPHONE COOPERATIVE DESCRIBED IN SECTION 1381 OF THE CODE
(ANY SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES (A), (B) OR (C) BEING
HEREINAFTER REFERRED TO AS A "DISQUALIFIED ORGANIZATION"), (D) A PERSON THAT IS
NOT A CITIZEN OF OR RESIDENT OF THE UNITED STATES, A CORPORATION, PARTNERSHIP OR
OTHER ENTITY CREATED OR ORGANIZED IN, OR UNDER THE LAWS OF, THE UNITED STATES OR
ANY POLITICAL SUBDIVISION THEREOF, OR AN ESTATE OR TRUST WHOSE INCOME FROM
SOURCES WITHOUT THE UNITED STATES IS INCLUDABLE IN GROSS INCOME FOR UNITED
STATES FEDERAL INCOME TAX PURPOSES REGARDLESS OF ITS CONNECTION WITH THE CONDUCT
OF TRADE OR BUSINESS IN THE UNITED STATES (ANY SUCH PERSON BEING HEREINAFTER
REFERRED TO AS A "UNITED STATES PERSON") OR (E) AN AGENT OF A DISQUALIFIED
ORGANIZATION OR A NON-UNITED STATES PERSON, AND (3) NO PURPOSE OF SUCH TRANSFER
IS TO ENABLE THE TRANSFEROR TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX.
NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE REGISTER OF ANY TRANSFER,
SALE OR OTHER DISPOSITION OF THIS CLASS R-III CERTIFICATE TO A DISQUALIFIED
ORGANIZATION OR A NON-UNITED STATES PERSON OR AN AGENT OF A DISQUALIFIED
ORGANIZATION OR A NON-UNITED STATES PERSON, OR TO ANY OTHER PROHIBITED
TRANSFEREE AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT, SUCH REGISTRATION
SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND SUCH PERSON
SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER,
INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE.
EACH HOLDER OF A CLASS R-III CERTIFICATE BY ACCEPTANCE OF THIS CERTIFICATE SHALL
BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF THIS PARAGRAPH.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-TOP20
PERCENTAGE INTEREST OF THIS CLASS R-III CERTIFICATE: 100%
DATE OF POOLING AND SERVICING AGREEMENT: AS OF OCTOBER 1, 2005
CUT-OFF DATE: OCTOBER 1, 2005
CLOSING DATE: OCTOBER 28, 2005
FIRST DISTRIBUTION DATE: NOVEMBER 14, 2005
MASTER SERVICER: XXXXX FARGO BANK, NATIONAL ASSOCIATION
SPECIAL SERVICER: ARCAP SERVICING, INC.
PAYING AGENT: XXXXX FARGO BANK, NATIONAL ASSOCIATION
PRIMARY SERVICER: PRINCIPAL GLOBAL INVESTORS, LLC
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
FISCAL AGENT: ABN AMRO BANK N.V.
NO. R-III-1
CLASS R-III CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFIES THAT Bear Xxxxxxx Securities Corp. is the registered owner of the
interest evidenced by this Certificate in the Class R-III Certificates issued by
the Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Bear Xxxxxxx
Commercial Mortgage Securities Inc. (hereinafter called the "Depositor", which
term includes any successor entity under the Pooling and Servicing Agreement),
the Trustee, the Fiscal Agent, the Paying Agent, the Master Servicer and the
Special Servicer, a summary of certain of the pertinent provisions of which is
set forth hereafter. The Trust consists primarily of the Mortgage Loans, such
amounts as shall from time to time be held in the Certificate Account and
Distribution Account, the Insurance Policies and any REO Properties. To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the Percentage Interest in the Class
R-III Certificates specified on the face hereof. The Certificates are designated
as the Bear Xxxxxxx Commercial Mortgage Securities Inc. Commercial Mortgage
Pass-Through Certificates, Series 2005-TOP20 and are issued in the
Classes as specifically set forth in the Pooling and Servicing Agreement. The
Certificates will evidence in the aggregate 100% of the beneficial ownership of
the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
The Holder of this Certificate shall be entitled to receive only
certain amounts set forth in the Pooling and Servicing Agreement, including a
distribution upon termination of the Pooling and Servicing Agreement and the
related REMIC created thereby of the amounts which remain on deposit in the
Distribution Account after payment to the holders of all other Certificates of
all amounts set forth in the Pooling and Servicing Agreement. Distributions on
this Certificate will be made out of the Available Distribution Amount, to the
extent and subject to the limitations set forth in the Pooling and Servicing
Agreement, on the 12th day of each month or, if such 12th day is not a Business
Day, the next succeeding Business Day (a "Distribution Date") commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"). All sums distributable on this Certificate are payable in the coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such
Certificateholder. All distributions under the Pooling and Servicing Agreement
to Certificateholders will be made by wire transfer in immediately available
funds to the account specified by the Certificateholder, at a bank or other
entity having appropriate facilities therefor, if such Certificateholder will
have provided the Paying Agent with wiring instructions on or prior to the
related Record Date or otherwise by check mailed to such Certificateholder.
Notwithstanding the above, the final distribution on any Certificate will be
made only upon presentation and surrender of such Certificate at the location
that will be specified in a notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
The Residual Certificates will be issued in fully registered,
certificated form in minimum percentage interests of 10% and in multiples of 10%
in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Fiscal Agent, the Paying Agent, the
Master Servicer, the Special Servicer 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 Fiscal Agent, the Paying Agent, the Master Servicer, the Special Servicer,
the Certificate Registrar nor any such agents shall be affected by notice to the
contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Certificateholders as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) or
10.1(c) of the Pooling and Servicing Agreement or (iii) the termination of the
Trust pursuant to Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Certificate Registrar
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: OCTOBER 28, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS R-III CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO 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
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights of survivorship and not as tenants in
common
UNIF GIFT MIN ACT______________Custodian
(Cust)
Under Uniform Gifts to Minors
Act_______________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
______________________________ IDENTIFYING NUMBER OF ASSIGNEE
______________________________
______________________________ _______________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
________________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
--------------------------- ----------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
---------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ______________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
EXHIBIT A-27
[FORM OF CLASS X CERTIFICATE]
[THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE, ARE AS SPECIFIED IN THE
POOLING AND SERVICING AGREEMENT (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE SHALL BE
ENTITLED TO RECEIVE PAYMENT HEREON.]
THIS CLASS X CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE PLACEMENT AGENT, THE TRUSTEE, THE FISCAL AGENT,
THE CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE SPECIAL
SERVICER, THE PRIMARY SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL
NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THE INITIAL NOTIONAL AMOUNT HEREOF IS AS SET FORTH HEREIN, REDUCED OR INCREASED
AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THE PORTION OF THE NOTIONAL AMOUNT OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL PAYMENTS, REALIZED
LOSSES AND CERTAIN EXPENSE LOSSES ON THE MORTGAGE LOANS ALLOCABLE TO THE
NOTIONAL AMOUNT OF THIS CLASS X CERTIFICATE. ACCORDINGLY, THE NOTIONAL AMOUNT OF
THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT NOTIONAL AMOUNT BY INQUIRY
OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-TOP20
INITIAL PASS-THROUGH RATE: 0.047%
INITIAL NOTIONAL AMOUNT OF THIS CLASS X CERTIFICATE: $2,072,978,628
DATE OF POOLING AND SERVICING AGREEMENT: AS OF OCTOBER 1, 2005
CUT-OFF DATE: OCTOBER 1, 2005
CLOSING DATE: OCTOBER 28, 2005
FIRST DISTRIBUTION DATE: NOVEMBER 14, 2005
AGGREGATE NOTIONAL AMOUNT OF THE CLASS X CERTIFICATES AS OF THE CLOSING DATE:
$2,072,978,628 (SUBJECT TO SCHEDULE OF EXCHANGES ATTACHED)
No. X-1
MASTER SERVICER: XXXXX FARGO BANK, NATIONAL ASSOCIATION
SPECIAL SERVICER: ARCAP SERVICING, INC.
PAYING AGENT: XXXXX FARGO BANK, NATIONAL ASSOCIATION
PRIMARY SERVICER: PRINCIPAL GLOBAL INVESTORS, LLC
TRUSTEE: LASALLE BANK NATIONAL ASSOCIATION
FISCAL AGENT: ABN AMRO BANK N.V.
CUSIP NO. 07387B BE 2
CLASS X CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class X Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Bear Xxxxxxx Commercial Mortgage
Securities Inc. (hereinafter called the "Depositor," which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Fiscal Agent, the Paying Agent, the Certificate Registrar, the Master Servicer
and the Special Servicer, a summary of certain of the pertinent provisions of
which is set forth hereafter. The Trust consists primarily of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the
quotient expressed as a percentage obtained by dividing the Notional Amount of
this Certificate specified on the face hereof by the initial aggregate Notional
Amount of the Class X Certificates. The Certificates are designated as the Bear
Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 2005-TOP20 and are issued in the Classes specified in the
Pooling and Servicing Agreement. The Certificates will evidence in the aggregate
100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of interest on this Certificate will be made out of the
Available Distribution Amount, to the extent and subject to the limitations set
forth in the Pooling and Servicing Agreement, on the 12th day of each month or,
if such 12th day is not a Business Day, the next succeeding Business Day (a
"Distribution Date") commencing on the first Distribution Date specified above,
to the Person in whose name this Certificate is registered at the close of
business on the last Business Day of the month immediately preceding the month
of such distribution (the "Record Date"). All sums distributable on this
Certificate are payable in the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate
specified above on the Notional Amount of this Certificate immediately prior to
each Distribution Date. Interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
[Until this Regulation S Temporary Global Certificate is exchanged for
one or more Regulation S Permanent Global Certificates, the Holder hereof shall
not be entitled to receive payments hereon; until so exchanged in full, this
Regulation S Temporary Global Certificate shall in all other respects be
entitled to the same benefits as other Certificates under the Pooling and
Servicing Agreement.]
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
[This Regulation S Temporary Global Certificate is exchangeable in whole or in
part for one or more Global Certificates only (i) on or after the termination of
the 40-day distribution compliance period (as defined in Regulation S) and (ii)
upon presentation of a Regulation S Certificate (as defined in the Pooling
Agreement) required by Article III of the Pooling and Servicing Agreement. Upon
exchange of this Regulation S Temporary Global Certificate for one or more
Global Certificates, the Trustee shall cancel this Regulation S Temporary Global
Certificate.]
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar
duly executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class in
authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the Class
X Certificates will be issued in denominations of $100,000 initial Notional
Amount and in any whole dollar denomination in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Paying Agent, the
Master Servicer, the Special Servicer 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 Fiscal Agent, the Paying Agent, the Master Servicer, the Special Servicer,
the Certificate Registrar nor any such agents shall be affected by notice to the
contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Certificateholders as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) or
10.1(c) of the Pooling and Servicing Agreement or (iii) the termination of the
Trust pursuant to Section 10.1(d) of the Pooling and Servicing Agreement;
provided that in no event shall the Trust continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St. Xxxxx,
living on the date hereof. The parties designated in the Pooling and Servicing
Agreement may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and of
all administrative expenses associated with the Trust, any remaining assets of
the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Certificate Registrar
By:
------------------------------------
AUTHORIZED SIGNATORY
Dated: OCTOBER 28, 2005
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS X CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO 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
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with rights of
survivorship and not as tenants in
common
UNIF GIFT MIN ACT ______________ Custodian
(Cust)
Under Uniform Gifts to Minors
Act ________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
______________________________ IDENTIFYING NUMBER OF ASSIGNEE
______________________________
______________________________ _______________________________________________
________________________________________________________________________________
Please print or typewrite name and address of assignee
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint
_______________________________________________________________________________
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
-------------------------- ----------------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in
every particular without alteration or
enlargement or any change whatever.
---------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
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.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT B-1
FORM OF INITIAL CERTIFICATION OF TRUSTEE
October 28, 2005
Bear Xxxxxxx Commercial Mortgage Securities Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Principal Global Investors, LLC
000 Xxxxx Xxxxxx
Xxx Xxxxxx, Xxxx 00000
Xxxxx Fargo Bank, National Association
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Bear Xxxxxxx Commercial Mortgage, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx Mortgage Capital Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Pooling and Servicing Agreement ("Pooling and Servicing Agreement")
relating to Bear Xxxxxxx Commercial Mortgage Securities Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2005-TOP20
Ladies and Gentlemen:
In accordance with the provisions of Section 2.2 of the Pooling and
Servicing Agreement, the undersigned hereby certifies that, with respect to each
Mortgage Loan listed in the Mortgage Loan Schedule and subject to the exceptions
noted in the schedule of exceptions attached hereto, that: (a) all documents
specified in clause (i) of the definition of "Mortgage File" are in its
possession, (b) such documents have been reviewed by it and have not been
materially mutilated, damaged, defaced, torn or otherwise physically altered,
and such documents relate to such Mortgage Loan and (c) each Mortgage Note has
been endorsed as provided in clause (i) of the definition of "Mortgage File" of
the Pooling and Servicing Agreement. The Trustee makes no representations as to:
(i) the validity, legality, sufficiency, enforceability or genuineness of any
such documents contained in each Mortgage File or any of
the Mortgage Loans identified in the Mortgage Loan Schedule, or (ii) the
collectibility, insurability, effectiveness or suitability of any such Mortgage
Loan.
The Trustee acknowledges receipt of notice that the Depositor has
granted to the Trustee for the benefit of the Certificateholders a security
interest in all of the Depositor's right, title and interest in and to the
Mortgage Loans, the REMIC I Regular Interests, and the REMIC II Regular
Interests.
Capitalized words and phrases used herein and not otherwise defined
herein shall have the respective meanings assigned to them in the Pooling and
Servicing Agreement. This Certificate is subject in all respects to the terms of
said Pooling and Servicing Agreement.
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By: /s/
------------------------------------
Name: Xxx X. Xxxxxx
Title: Assistant V.P.
SCHEDULE OF EXCEPTIONS
EXHIBIT B-2
FORM OF FINAL CERTIFICATION OF TRUSTEE
OCTOBER 28, 2005
Bear Xxxxxxx Commercial Mortgage Securities Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Principal Global Investors, LLC
000 Xxxxx Xxxxxx
Xxx Xxxxxx, Xxxx 00000
Xxxxx Fargo Bank, National Association
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Bear Xxxxxxx Commercial Mortgage, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx Mortgage Capital Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Pooling and Servicing Agreement ("Pooling and Servicing Agreement")
relating to Bear Xxxxxxx Commercial Mortgage Securities Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2005-TOP20
Ladies and Gentlemen:
In accordance with the provisions of Section 2.2 of the Pooling and
Servicing Agreement, the undersigned hereby certifies that, with respect to each
Mortgage Loan listed in the Mortgage Loan Schedule and subject to the exceptions
noted in the schedule of exceptions attached hereto, that: (a) all documents
required to be included in the Mortgage File pursuant to clauses (i), (ii),
(iv), (v), (vi), (viii), (x) and (xii) of the definition of "Mortgage File," and
any documents required to be included in the Mortgage File pursuant to all other
clauses of the definition of "Mortgage File," to the extent known by a
Responsible Officer of the Trustee to be required pursuant to the Pooling and
Servicing Agreement, are in its possession, (b) such documents have been
reviewed by it and have not been materially mutilated, damaged, defaced,
torn or otherwise physically altered, and such documents relate to such Mortgage
Loan, (c) based on its examination and only as to the Mortgage Note and the
Mortgage, the street address of the Mortgaged Property and the name of the
Mortgagor set forth in the Mortgage Loan Schedule accurately reflects the
information contained in the documents in the Mortgage File, and (d) each
Mortgage Note has been endorsed. The Trustee makes no representations as to: (i)
the validity, legality, sufficiency, enforceability or genuineness of any of the
documents contained in each Mortgage File or any of the Trustee Mortgage Loans
identified in the Mortgage Loan Schedule, or (ii) the collectibility,
insurability, effectiveness or suitability of any such Mortgage Loan.
The Trustee acknowledges receipt of notice that the Depositor has
granted to the Trustee for the benefit of the Certificateholders a security
interest in all of the Depositor's right, title and interest in and to the
Mortgage Loans, the REMIC I Regular Interests, and the REMIC II Regular
Interests.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement. This
Certificate is qualified in all respects by the terms of said Pooling and
Servicing Agreement including but not limited to Section 2.2.
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------------
Name:
Title:
SCHEDULE OF EXCEPTIONS
EXHIBIT C
FORM OF REQUEST FOR RELEASE
To: LaSalle Bank National Association, as Trustee
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Asset-Backed Securities Trust Services Group
Bear Xxxxxxx Commercial Mortgage Securities Inc.
Commercial Mortgage Pass-Through Certificates,
Series 2005-TOP20
Re: Bear Xxxxxxx Commercial Mortgage Securities Inc. Commercial
Mortgage Pass-Through Certificates, Series 2005-TOP20
DATE: ____________
In connection with the administration of the Mortgage Loans held by
you as Trustee under the Pooling and Servicing Agreement dated as of October 1,
2005 by and among Bear Xxxxxxx Commercial Mortgage Securities Inc., as
Depositor, Xxxxx Fargo Bank, National Association, as Master Servicer, ARCap
Servicing, Inc., as Special Servicer, Lasalle Bank National Association, as
Trustee, Xxxxx Fargo Bank, National Association, as Paying Agent and Certificate
Registrar and ABN AMRO Bank N.V., as Fiscal Agent (the "Pooling and Servicing
Agreement"), the undersigned hereby requests a release of the Trustee Mortgage
File held by you as Trustee with respect to the following described Mortgage
Loan for the reason indicated below.
Mortgagor's Name:
Address:
Loan No.:
Reason for requesting file:
_____ 1. Mortgage Loan paid in full.
(The [Master] [Special] Servicer hereby certifies that all
amounts received in connection with the Mortgage Loan have been
or will be, following the [Master] [Special] Servicer's release
of the Trustee Mortgage File,
credited to the Certificate Account or the Distribution Account
pursuant to the Pooling and Servicing Agreement.)
_____ 2. Mortgage Loan repurchased.
(The [Master] [Special] Servicer hereby certifies that the
Purchase Price has been credited to the Distribution Account
pursuant to the Pooling and Servicing Agreement.)
_____ 3. Mortgage Loan Defeased.
4. Mortgage Loan substituted.
(The [Master] [Special] Servicer hereby certifies that a
Qualifying Substitute Mortgage Loan has been assigned and
delivered to you along with the related Trustee Mortgage File
pursuant to the Pooling and Servicing Agreement.)
_____ 5. The Mortgage Loan is being foreclosed.
_____ 6. Other. (Describe)
The undersigned acknowledges that the above Trustee Mortgage File will
be held by the undersigned in accordance with the provisions of the Pooling and
Servicing Agreement and will be returned to you, except if the Mortgage Loan has
been paid in full, repurchased or substituted for by a Qualifying Substitute
Mortgage Loan (in which case the Trustee Mortgage File will be retained by us
permanently), when no longer required by us for such purpose).
Capitalized terms used herein shall have the meanings ascribed to them
in the Pooling and Servicing Agreement.
[Name of [Master] [Special] Servicer]
By:
------------------------------------
Name:
Title:
EXHIBIT D-1
FORM OF TRANSFEROR CERTIFICATE FOR
TRANSFERS OF DEFINITIVE PRIVATELY OFFERED CERTIFICATES
[Date]
Xxxxx Fargo Bank, National Association,
as Certificate Registrar
Xxxxx Fargo Center
Sixth Street and Marquette Avenue
MAC #N9303-121
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Corporate Trust Services (CMBS)
Re: Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 2005-TOP20 (the "Certificates")
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
a Certificate (the "Transferred Certificate") having an initial Certificate
Balance or Notional Amount as of October 28, 2005 (the "Settlement Date") of
$__________. The Certificates were issued pursuant to the Pooling and Servicing
Agreement (the "Pooling and Servicing Agreement"), dated as of October 1, 2005,
among Bear Xxxxxxx Commercial Mortgage Securities Inc., as depositor (the
"Depositor"), Xxxxx Fargo Bank, National Association, as master servicer, ARCap
Servicing, Inc., as special servicer, LaSalle Bank National Association, as
trustee, ABN AMRO Bank N.V., as fiscal agent and Xxxxx Fargo Bank, National
Association, as paying agent (in such capacity, the "Paying Agent"). All terms
used herein and not otherwise defined shall have the meanings set forth in the
Pooling and Servicing Agreement. The Transferor hereby certifies, represents and
warrants to you, as Certificate Registrar, that:
1. The Transferor is the lawful owner of the Transferred Certificate
with the full right to transfer such Certificate free from any and all
claims and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has (a)
offered, transferred, pledged, sold or otherwise disposed of any
Certificate, any interest in any Certificate or any other similar security
to any person in any manner, (b) solicited any offer to buy or accept a
transfer, pledge or other disposition of any Certificate, any interest in
any Certificate or any other similar security from any person in any
manner, (c) otherwise approached or negotiated with respect to any
Certificate, any interest in any Certificate or any other similar security
with any person in any manner, (d) made any general solicitation by means
of general advertising or in any other manner, or (e) taken
any other action, which (in the case of any of the acts described in
clauses (a) through (e) hereof) would constitute a distribution of any
Certificate under the Securities Act of 1933, as amended (the "Securities
Act"), or would render the disposition of any Certificate a violation of
Section 5 of the Securities Act or any state securities laws, or would
require registration or qualification of any Certificate pursuant to the
Securities Act or any state securities laws.
Very truly yours,
----------------------------------------
(Transferor)
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
EXHIBIT D-2A
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF DEFINITIVE
PRIVATELY OFFERED CERTIFICATES
[DATE]
Xxxxx Fargo Bank, National Association,
as Certificate Registrar
Xxxxx Fargo Center
Sixth Street and Marquette Avenue
MAC #N9303-121
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Corporate Trust Services (CMBS)
Re: Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 2005-TOP20 (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
Class ______ Certificates having an initial Certificate Balance or Notional
Amount as of October 28, 2005 (the "Settlement Date") of $__________ (the
"Transferred Certificates"). The Certificates, including the Transferred
Certificates, were issued pursuant to the Pooling and Servicing Agreement, dated
as of October 1, 2005 (the "Pooling and Servicing Agreement"), among Bear
Xxxxxxx Commercial Mortgage Securities Inc., as depositor (the "Depositor"),
Xxxxx Fargo Bank, National Association, as master servicer, ARCap Servicing,
Inc., as special servicer, LaSalle Bank National Association, as trustee, ABN
AMRO Bank N.V., as fiscal agent and Xxxxx Fargo Bank, National Association, as
paying agent (in such capacity, the "Paying Agent"). All capitalized terms used
but not otherwise defined herein shall have the respective meanings set forth in
the Pooling and Servicing Agreement. The Transferee hereby certifies, represents
and warrants to you, as Certificate Registrar, that:
1. The Transferee is a "qualified institutional buyer" (a "Qualified
Institutional Buyer") as that term is defined in Rule 144A ("Rule 144A")
under the Securities Act of 1933, as amended (the "Securities Act") and has
completed one of the forms of certification to that effect attached hereto
as Annex 1 and Annex 2. The Transferee is aware that the sale to it of the
Transferred Certificates is being made in reliance on Rule 144A. The
Transferee is acquiring the Transferred Certificates for its own account or
for the account of a Qualified Institutional Buyer, and understands that
such Transferred Certificates may be resold, pledged or transferred only
(i) to a person reasonably believed to be a Qualified Institutional Buyer
that purchases for its own account or for the account of a Qualified
Institutional Buyer to whom notice is given that the resale, pledge or
transfer is being made in reliance on Rule 144A, or (ii) pursuant to
another exemption from registration under the Securities Act.
2. The Transferee has been furnished with all information regarding
(a) the Depositor, (b) the Transferred Certificates and distributions
thereon, (c) the nature, performance and servicing of the Mortgage Loans,
(d) the Pooling and Servicing Agreement, (e) any credit enhancement
mechanism associated with the Transferred Certificates and (f) all related
matters that it has requested.
3. Check one of the following:
___ The Transferee is a "U.S. Person" and has attached hereto an
Internal Revenue Service ("IRS") Form W-9 (or successor form).
___ The Transferee is not a "U.S. Person" and under applicable law in
effect on the date hereof, no taxes will be required to be withheld by the
Certificate Registrar (or its agent) with respect to distributions to be
made on the Transferred Certificates. The Transferee has attached hereto
either (i) a duly executed IRS Form W-8BEN (or successor form), which
identifies the Transferee as the beneficial owner of the Transferred
Certificates and states that the Transferee is not a U.S. Person, (ii) Form
W-8IMY (with appropriate attachments) or (iii) two duly executed copies of
IRS Form W-8ECI (or successor form), which identify the Transferee as the
beneficial owner of the Transferred Certificates and states that interest
and original issue discount on the Transferred Certificates is, or is
expected to be, effectively connected with a U.S. trade or business. The
Transferee agrees to provide to the Certificate Registrar (or its agent)
updated IRS Form W-8BEN, IRS Form W-8IMY or IRS Form W-8ECI, as the case
may be, any applicable successor IRS forms, or such other certifications as
the Certificate Registrar (or its agent) 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 (or its agent).
For this purpose, "U.S. Person" means a citizen or resident of the
United States for U.S. federal income tax purposes, a corporation or
partnership (except to the extent provided in applicable Treasury
Regulations) created or organized in or under the laws of the United
States, any State thereof or the District of Columbia, including any entity
treated as a corporation or partnership for federal income tax purposes, an
estate the income of which is subject to U.S. federal income taxation
regardless of its source, or a trust if a court within the United States is
able to exercise primary supervision over the administration of such trust,
and one or more United States fiduciaries 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).
The Depositor, the Trustee and the Paying Agent are entitled to rely
upon this letter and are irrevocably authorized to produce this letter or a
copy hereof to any
interested party in any administrative or legal proceedings or official
inquiry with respect to the matters covered hereby.
Very truly yours,
----------------------------------------
(Transferee)
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
ANNEX 1 TO EXHIBIT D-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[for Transferees other than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor") and [name of Certificate Registrar], as Certificate
Registrar, with respect to the commercial mortgage pass-through certificate
being transferred (the "Transferred Certificates") as described in the
Transferee Certificate to which this certification relates and to which this
certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer,
a person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificate (the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A under the Securities Act of 1933, as amended ("Rule 144A")
because (i) the Transferee owned and/or invested on a discretionary basis
$______________________(1) in securities (other than the excluded securities
referred to below) as of the end of the Transferee's most recent fiscal year
(such amount being calculated in accordance with Rule 144A) and (ii) the
Transferee satisfies the criteria in the category marked below.
___ Corporation, etc. The Transferee is a corporation (other than a
bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or any
organization described in Section 501(c)(3) of the Internal
Revenue Code of 1986, as amended.
___ Bank. The Transferee (a) is a national bank or a banking
institution organized under the laws of any State, U.S. territory
or the District of Columbia, the business of which is
substantially confined to banking and is supervised by the State
or territorial banking commission or similar official or is a
foreign bank or equivalent institution, and (b) has an audited
net worth of at least $25,000,000 as demonstrated in its latest
annual financial statements, a copy of which is attached hereto,
as of a date not more than 16 months preceding the date of sale
of the Certificate in the case of a U.S. bank, and not more than
18 months preceding such date of sale for a foreign bank or
equivalent institution.
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(1) Transferee must own and/or invest on a discretionary basis at least
$100,000,000 in securities unless Transferee is a dealer, and, in that case,
Transferee must own and/or invest on a discretionary basis at least $10,000,000
in securities.
___ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is supervised
and examined by a State or Federal authority having supervision
over any such institutions or is a foreign savings and loan
association or equivalent institution and (b) has an audited net
worth of at least $25,000,000 as demonstrated in its latest
annual financial statements, a copy of which is attached hereto,
as of a date not more than 16 months preceding the date of sale
of the Certificate in the case of a U.S. savings and loan
association, and not more than 18 months preceding such date of
sale for a foreign savings and loan association or equivalent
institution.
___ Broker-dealer. The Transferee is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934, as amended.
___ Insurance Company. The Transferee is an insurance company whose
primary and predominant business activity is the writing of
insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance
commissioner or a similar official or agency of a State, U.S.
territory or the District of Columbia.
___ State or Local Plan. The Transferee is a plan established and
maintained by a State, its political subdivisions, or any agency
or instrumentality of the State or its political subdivisions,
for the benefit of its employees.
___ ERISA Plan. The Transferee is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act
of 1974, as amended.
___ Investment Advisor. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940, as amended.
___ Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under
subsection (a)(1) of Rule 144A pursuant to which it qualifies.
Note that registered investment companies should complete Annex 2
rather than this Annex 1.)
_______________________________________________________
_______________________________________________________
_______________________________________________________
3. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee, (ii) securities
that are part of an unsold allotment to or subscription by the Transferee, if
the Transferee is a dealer, (iii) bank deposit notes and certificates of
deposit, (iv) loan participations, (v) repurchase agreements, (vi) securities
owned but subject to a repurchase agreement and (vii) currency, interest rate
and commodity swaps.
For purposes of determining the aggregate amount of securities owned and/or
invested on a discretionary basis by the Transferee, the Transferee did not
include any of the securities referred to in this paragraph.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Transferee, the Transferee
used the cost of such securities to the Transferee, unless the Transferee
reports its securities holdings in its financial statements on the basis of
their market value, and no current information with respect to the cost of those
securities has been published, in which case the securities were valued at
market. Further, in determining such aggregate amount, the Transferee may have
included securities owned by subsidiaries of the Transferee, but only if such
subsidiaries are consolidated with the Transferee in its financial statements
prepared in accordance with generally accepted accounting principles and if the
investments of such subsidiaries are managed under the Transferee's direction.
However, such securities were not included if the Transferee is a
majority-owned, consolidated subsidiary of another enterprise and the Transferee
is not itself a reporting company under the Securities Exchange Act of 1934, as
amended.
5. The Transferee acknowledges that it is familiar with Rule 144A and
understands that the Transferor and other parties related to the Transferred
Certificates are relying and will continue to rely on the statements made herein
because one or more sales to the Transferee may be in reliance on Rule 144A.
___ ___ Will the Transferee be purchasing the Transferred Certificate
Yes No only for the Transferee's own account
6. If the answer to the foregoing question is "no", then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice is given, the Transferee's purchase of the Transferred
Certificates will constitute a reaffirmation of this certification as of the
date of such purchase. In addition, if the Transferee is a bank or savings and
loan as provided above, the Transferee agrees that it will furnish to such
parties any updated annual financial statements that become available on or
before the date of such purchase, promptly after they become available.
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Print Name of Transferee
By:
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Name:
----------------------------------
Title:
---------------------------------
Date:
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ANNEX 2 TO EXHIBIT D-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[FOR TRANSFEREES THAT ARE REGISTERED INVESTMENT COMPANIES]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor") and [name of Certificate Registrar], as Certificate
Registrar, with respect to the mortgage pass-through certificate being
transferred (the "Transferred Certificates") as described in the Transferee
Certificate to which this certification relates and to which this certification
is an Annex:
1. As indicated below, the undersigned is the chief financial officer,
a person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificates (the "Transferee") or, if the
Transferee is a "qualified institutional buyer" as that term is defined in Rule
144A under the Securities Act of 1933, as amended ("Rule 144A") because the
Transferee is part of a Family of Investment Companies (as defined below), is an
executive officer of the investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in
Rule 144A because (i) the Transferee is an investment company registered under
the Investment Company Act of 1940, as amended, and (ii) as marked below, the
Transferee alone owned and/or invested on a discretionary basis, or the
Transferee's Family of Investment Companies owned, at least $100,000,000 in
securities (other than the excluded securities referred to below) as of the end
of the Transferee's most recent fiscal year. For purposes of determining the
amount of securities owned by the Transferee or the Transferee's Family of
Investment Companies, the cost of such securities was used, unless the
Transferee or any member of the Transferee's Family of Investment Companies, as
the case may be, reports its securities holdings in its financial statements on
the basis of their market value, and no current information with respect to the
cost of those securities has been published, in which case the securities of
such entity were valued at market.
____ The Transferee owned and/or invested on a discretionary basis
$___________________ in securities (other than the excluded securities
referred to below) as of the end of the Transferee's most recent fiscal
year (such amount being calculated in accordance with Rule 144A).
____ The Transferee is part of a Family of Investment Companies which owned in
the aggregate $______________ in securities (other than the excluded
securities referred to below) as of the end of the Transferee's most recent
fiscal year (such amount being calculated in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means two
or more registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee or are part of the
Transferee's Family of Investment Companies, (ii) bank deposit notes and
certificates of deposit, (iii) loan participations, (iv) repurchase agreements,
(v) securities owned but subject to a repurchase agreement and (vi) currency,
interest rate and commodity swaps. For purposes of determining the aggregate
amount of securities owned and/or invested on a discretionary basis by the
Transferee, or owned by the Transferee's Family of Investment Companies, the
securities referred to in this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands that the
parties to which this certification is being made are relying and will continue
to rely on the statements made herein because one or more sales to the
Transferee will be in reliance on Rule 144A.
___ ___ Will the Transferee be purchasing the Transferred
Yes No Certificates only for the Transferee's own account
6. If the answer to the foregoing question is "no", then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this certification
is made of any changes in the information and conclusions herein. Until such
notice, the Transferee's purchase of the Transferred Certificates will
constitute a reaffirmation of this certification by the undersigned as of the
date of such purchase.
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Print Name of Transferee or Adviser
By:
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Name:
Title:
IF AN ADVISER:
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Print Name of Transferee
Date:
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EXHIBIT D-2B
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF DEFINITIVE
PRIVATELY OFFERED CERTIFICATES
[Date]
Xxxxx Fargo Bank, National Association,
as Certificate Registrar
Xxxxx Fargo Center
Sixth Street and Marquette Avenue
MAC #N9303-121
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Corporate Trust Services (CMBS)
Re: Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 2005-TOP20 (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_______________________ (the "Transferor") to _______________________________
(the "Transferee") of Class ___ Certificates having an initial Certificate
Balance or Notional Amount as of October 28, 2005 (the "Settlement Date") of
$__________ (the "Transferred Certificates"). The Certificates, including the
Transferred Certificates, were issued pursuant to the Pooling and Servicing
Agreement, (the "Pooling and Servicing Agreement") dated as of October 1, 2005,
Bear Xxxxxxx Commercial Mortgage Securities Inc., as depositor (the
"Depositor"), Xxxxx Fargo Bank, National Association, as master servicer, ARCap
Servicing, Inc., as special servicer, LaSalle Bank National Association, as
trustee (the "Trustee"), ABN AMRO Bank N.V., as fiscal agent and Xxxxx Fargo
Bank, National Association, as paying agent (the "Paying Agent"). All
capitalized terms used but not otherwise defined herein shall have the
respective meanings set forth in the Pooling and Servicing Agreement. The
Transferee hereby certifies, represents and warrants to you, as Certificate
Registrar, that:
1. The Transferee is acquiring the Transferred Certificates for its
own account for investment and not with a view to or for sale or transfer in
connection with any distribution thereof, in whole or in part, in any manner
which would violate the Securities Act of 1933, as amended (the "Securities
Act"), or any applicable state securities laws.
2. The Transferee understands that (a) the Class of Certificates to
which the Transferred Certificates belong has not been and will not be
registered under the Securities Act or registered or qualified under any
applicable state securities laws, (b) none of the Depositor, the Trustee or the
Certificate Registrar is obligated so to register or qualify the Class of
Certificates to which the Transferred Certificates belong, and (c) no
Transferred Certificate may be resold or transferred unless it is (i) registered
pursuant to the Securities Act and registered or qualified pursuant any
applicable state securities laws or (ii) sold or transferred in transactions
which are exempt from such registration and qualification and the Certificate
Registrar has received either: (A) a certificate from the Certificateholder
desiring to effect such transfer substantially in the form attached as Exhibit
D-1 to the Pooling and Servicing Agreement and a certificate from such
Certificateholder's prospective transferee substantially in the form attached
either as Exhibit D-2A or as Exhibit D-2B to the Pooling and Servicing
Agreement; or (C) an opinion of counsel satisfactory to the Certificate
Registrar with respect to the availability of such exemption from registration
under the Securities Act, together with copies of the written certification(s)
from the transferor and/or transferee setting forth the facts surrounding the
transfer upon which such opinion is based.
3. The Transferee understands that it may not sell or otherwise
transfer any Transferred Certificate except in compliance with the provisions of
Section 3.3 of the Pooling and Servicing Agreement, which provisions it has
carefully reviewed.
4. Transferee understands that each Transferred Certificate will bear
the following legends:
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR
THE SECURITIES LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER
DISPOSITION OF THIS CERTIFICATE OR ANY INTEREST HEREIN WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH
DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
5. With respect to any Transferred Certificate that is a Privately
Offered Certificate (other than Class X-1, Class X-2, Class E, Class F or Class
G Certificates), the Transferee understands that each Transferred Certificate
will bear the following legend:
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE
BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE"), OR APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW")
MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE OR
TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS
CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR
WITH ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER
EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, WILL BE REGISTERED EXCEPT IN
COMPLIANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
6. Neither the Transferee nor anyone acting on its behalf has (a)
offered, pledged, sold, disposed of or otherwise transferred any Certificate,
any interest in any Certificate or any other similar security to any person in
any manner, (b) solicited any offer to buy or accept a pledge, disposition or
other transfer of any Certificate, any interest in any Certificate or any other
similar security from any person in any manner, (c) otherwise approached or
negotiated with respect to any Certificate, any interest in any Certificate or
any other similar security with any person in any manner, (d) made any general
solicitation by means of general advertising or in any other manner, or (e)
taken any other action with respect to any Certificate, any interest in any
Certificate or any other similar security, which (in the case of any of the acts
described in clauses (a) through (e) above) would constitute a distribution of
the Transferred Certificates under the Securities Act, would render the
disposition of the Transferred Certificates a violation of Section 5 of the
Securities Act or any state securities law or would require registration or
qualification of the Transferred Certificates pursuant thereto. The Transferee
will not act, nor has it authorized or will it authorize any person to act, in
any manner set forth in the foregoing sentence with respect to any Certificate,
any interest in any Certificate or any other similar security.
7. The Transferee has been furnished with all information regarding
(a) the Depositor, (b) the Transferred Certificates and distributions thereon,
(c) the Pooling and Servicing Agreement and the Trust Fund created pursuant
thereto, (d) the nature, performance and servicing of the Mortgage Loans, (e)
any credit enhancement mechanism associated with the Transferred Certificates,
and (f) all related matters, that it has requested.
8. The Transferee is an "accredited investor" as defined in any of
paragraphs (1), (2), (3) and (7) of Rule 501(a) under the Securities Act or an
entity in which all of the equity owners come within such paragraphs. The
Transferee has such knowledge and experience in financial and business matters
as to be capable of evaluating the merits and risks of an investment in the
Transferred Certificate; the Transferee has sought such accounting, legal and
tax advice as it has considered necessary to make an informed investment
decision; and the Transferee is able to bear the economic risks of such
investment and can afford a complete loss of such investment.
9. Check one of the following:
___ The Transferee is a "U.S. Person" and has attached hereto an
Internal Revenue Service ("IRS") Form W-9 (or successor form).
___ The Transferee is not a "U.S. Person" and under applicable law in
effect on the date hereof, no taxes will be required to be withheld by the
Certificate Registrar (or its agent) with respect to distributions to be made on
the Transferred Certificates. The Transferee has attached hereto either (i) a
duly executed IRS Form W-8BEN (or successor form), which identifies the
Transferee as the beneficial owner of the Transferred Certificates and states
that the
Transferee is not a U.S. Person, (ii) Form W-8IMY (with appropriate attachments)
or (iii) two duly executed copies of IRS Form W-8ECI (or successor form), which
identify the Transferee as the beneficial owner of the Transferred Certificates
and states that interest and original issue discount on the Transferred
Certificates is, or is expected to be, effectively connected with a U.S. trade
or business. The Transferee agrees to provide to the Certificate Registrar (or
its agent) updated IRS Form W-8BEN, IRS Form W-8IMY or IRS Form W-8ECI, as the
case may be, any applicable successor IRS forms, or such other certifications as
the Certificate Registrar (or its agent) 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 (or its
agent).
For this purpose, "U.S. Person" means a citizen or resident of the
United States for U.S. federal income tax purposes, a corporation or partnership
(except to the extent provided in applicable Treasury Regulations) created or
organized in or under the laws of the United States, any State thereof or the
District of Columbia, including any entity treated as a corporation or
partnership for federal income tax purposes, an estate the income of which is
subject to U.S. federal income taxation regardless of its source, or a trust if
a court within the United States is able to exercise primary supervision over
the administration of such trust, and one or more United States fiduciaries 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).
The Depositor, the Trustee and the Paying Agent are entitled to rely
upon this letter and are irrevocably authorized to produce this letter or a copy
hereof to any interested party in any administrative or legal proceedings or
official inquiry with respect to the matters covered hereby.
Very truly yours,
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(Transferee)
By:
------------------------------------
Name:
----------------------------------
Title:
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EXHIBIT D-3A
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN
BOOK-ENTRY PRIVATELY OFFERED CERTIFICATES
[Date]
[TRANSFEROR]
Re: Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 2005-TOP20 (the "Certificates")
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_____________________ (the "Transferor") to ______________________ (the
"Transferee") of a Certificate (the "Transferred Certificate") having an initial
Certificate Balance or Notional Amount as of October 28, 2005 (the "Settlement
Date") of $__________. The Certificates were issued pursuant to the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of October
1, 2005, among Bear Xxxxxxx Commercial Mortgage Securities Inc., as depositor
(the "Depositor"), Xxxxx Fargo Bank, National Association, as master servicer,
ARCap Servicing, Inc., as special servicer, LaSalle Bank National Association,
as trustee (the "Trustee"), ABN AMRO Bank N.V., as fiscal agent and Xxxxx Fargo
Bank, National Association, as paying agent (in such capacity, the "Paying
Agent"). All terms used herein and not otherwise defined shall have the meanings
set forth in the Pooling and Servicing Agreement. The Transferee hereby
certifies, represents and warrants to you, and for the benefit of the Depositor
and the Trustee, that:
1. The Transferee is acquiring the Transferred Certificate for its own
account for investment and not with a view to or for sale or transfer in
connection with any distribution thereof, in whole or in part, in any manner
which would violate the Securities Act of 1933, as amended (the "Securities
Act"), or any applicable state securities laws.
2. The Transferee understands that (a) the Certificates have not been
and will not be registered under the Securities Act or registered or qualified
under any applicable state securities laws, (b) none of the Depositor, the
Trustee or the Certificate Registrar is obligated so to register or qualify the
Certificates and (c) no interest in the Certificates may be sold or transferred
unless it is (i) registered pursuant to the Securities Act and registered or
qualified pursuant to any applicable state securities laws or (ii) sold or
transferred in transactions which are exempt from such registration and
qualification and the Certificate Owner desiring to effect such transfer has
received either (A) a certification from such Certificate Owner's prospective
transferee (substantially in the form attached to the Pooling and Servicing
Agreement) setting forth the facts surrounding the transfer or (B) an opinion of
counsel satisfactory to the Certificate Registrar with respect to the
availability of such exemption, together with copies of the certification(s)
from the transferor and/or transferee setting forth the facts surrounding the
transfer upon which such opinion is based.
3. The Transferee understands that it may not sell or otherwise
transfer any portion of its interest in the Transferred Certificate except in
compliance with the provisions of Section 3.3 of the Pooling and Servicing
Agreement, which provisions it has carefully reviewed.
4. Transferee understands that each Transferred Certificate will bear
the following legend:
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE
SECURITIES LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS
CERTIFICATE OR ANY INTEREST THEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION
MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR
QUALIFICATION AND WHICH IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF
THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
5. With respect to any Transferred Certificate that is a Privately
Offered Certificate (other than Class X-1, Class X-2, Class E, Class F and Class
G Certificates), the Transferee understands that each Transferred Certificate
will bear the following legend:
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE
BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR APPLICABLE
FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY
PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF,
OR WITH ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF
SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
6. Neither the Transferee nor anyone acting on its behalf has (a)
offered, pledged, sold, disposed of or otherwise transferred any Certificate,
any interest in any Certificate or any other similar security to any person in
any manner, (b) solicited any offer to buy or accept a pledge, disposition or
other transfer of any Certificate, any interest in any Certificate or any other
similar security from any person in any manner, (c) otherwise approached or
negotiated with respect to any Certificate, any interest in any Certificate or
any other similar security with any person in any manner, (d) made any general
solicitation by means of general advertising or in any other manner, or (e)
taken any other action, that (in the case of any of the acts described in
clauses (a) through (e) above) would constitute a distribution of any
Certificate under the Securities Act, would render the disposition of any
Certificate a violation of Section 5 of the Securities Act or any state
securities law or would require registration or qualification of any Certificate
pursuant thereto. The Transferee will not act, nor has it authorized or will it
authorize
any person to act, in any manner set forth in the foregoing sentence with
respect to any Certificate, any interest in any Certificate or any other similar
security.
7. The Transferee has been furnished with all information regarding
(a) the Depositor, (b) the Transferred Certificates and distributions thereon,
(c) the Pooling and Servicing Agreement and the Trust Fund created pursuant
thereto, (d) the nature, performance and servicing of the Mortgage Loans, (e)
any credit enhancement mechanism associated with the Transferred Certificates,
and (f) all related matters, that it has requested.
8. The Transferee is an institutional "accredited investor" as defined
in Rule 501(a) (1), (2), (3) or (7) under the Securities Act and has such
knowledge and experience in financial and business matters as to be capable of
evaluating the merits and risks of an investment in the Certificates; the
Transferee has sought such accounting, legal and tax advice as it has considered
necessary to make an informed investment decision; and the Transferee is able to
bear the economic risks of such an investment and can afford a complete loss of
such investment.
9. Check one of the following:
___ The Transferee is a "U.S. Person" and has attached hereto an
Internal Revenue Service ("IRS") Form W-9 (or successor form).
___ The Transferee is not a "U.S. Person" and under applicable law in
effect on the date hereof, no taxes will be required to be withheld by the
Certificate Registrar (or its agent) with respect to distributions to be made on
the Transferred Certificates. The Transferee has attached hereto either (i) a
duly executed IRS Form W-8BEN (or successor form), which identifies the
Transferee as the beneficial owner of the Transferred Certificates and states
that the Transferee is not a U.S. Person, (ii) Form W-8IMY (with appropriate
attachments) or (iii) two duly executed copies of IRS Form W-8ECI (or successor
form), which identify the Transferee as the beneficial owner of the Transferred
Certificates and states that interest and original issue discount on the
Transferred Certificates is, or is expected to be, effectively connected with a
U.S. trade or business. The Transferee agrees to provide to the Certificate
Registrar (or its agent) updated IRS Form W-8BEN, IRS Form W-8IMY or IRS Form
W-8ECI, as the case may be, any applicable successor IRS forms, or such other
certifications as the Certificate Registrar (or its agent) 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 (or its agent).
For this purpose, "U.S. Person" means a citizen or resident of the
United States for U.S. federal income tax purposes, a corporation or partnership
(except to the extent provided in applicable Treasury Regulations) created or
organized in or under the laws of the United States, any State thereof or the
District of Columbia, including any entity treated as a corporation or
partnership for federal income tax purposes, an estate the income of which is
subject to U.S. federal income taxation regardless of its source, or a trust if
a court within the United States is able to exercise primary supervision over
the administration of such trust, and one or more United States fiduciaries 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).
The Depositor, the Trustee and the Paying Agent are entitled to rely
upon this letter and are irrevocably authorized to produce this letter or a copy
hereof to any interested party in any administrative or legal proceedings or
official inquiry with respect to the matters covered hereby.
Very truly yours,
----------------------------------------
(Transferee)
By:
------------------------------------
Name:
-----------------------------------
Title:
---------------------------------
EXHIBIT D-3B
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN
BOOK-ENTRY PRIVATELY OFFERED CERTIFICATES
[Date]
[TRANSFEROR]
Re: Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 2005-TOP20 (the "Certificates")
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_____________________ (the "Transferor") to ______________________ (the
"Transferee") of a Certificate (the "Transferred Certificate") having an initial
Certificate Balance or Notional Amount as of October 28, 2005 (the "Settlement
Date") of $__________. The Certificates were issued pursuant to the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of October
1, 2005, among Bear Xxxxxxx Commercial Mortgage Securities Inc., as depositor
(the "Depositor"), Xxxxx Fargo Bank, National Association, as master servicer,
ARCap Servicing, Inc., as special servicer, LaSalle Bank National Association,
as trustee (the "Trustee"), ABN AMRO Bank N.V., as fiscal agent and Xxxxx Fargo
Bank, National Association, as paying agent (in such capacity, the "Paying
Agent"). All terms used herein and not otherwise defined shall have the meanings
set forth in the Pooling and Servicing Agreement. The Transferee hereby
certifies, represents and warrants to you, and for the benefit of the Depositor
and the Trustee, that:
1. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A ("Rule 144A") under the Securities Act of 1933, as amended
(the "Securities Act"), and has completed one of the forms of certification to
that effect attached hereto as Annex 1 and Annex 2. The Transferee is aware that
the sale to it is being made in reliance on Rule 144A. The Transferee is
acquiring the Transferred Certificate for its own account or for the account of
a qualified institutional buyer, and understands that such Certificate or any
interest therein may be resold, pledged or transferred only (i) to a person
reasonably believed to be a qualified institutional buyer that purchases for its
own account or for the account of a qualified institutional buyer to whom notice
is given that the resale, pledge or transfer is being made in reliance on Rule
144A, or (ii) pursuant to another exemption from registration under the
Securities Act.
2. The Transferee understands that (a) the Class of Certificates to
which the Transferred Certificate belongs have not been and will not be
registered under the Securities Act or registered or qualified under any
applicable state securities laws, (b) none of the Depositor, the Trustee or the
Certificate Registrar is obligated so to register or qualify the Certificates
and (c) no interest in the Certificates may be sold or transferred unless it is
(i) registered pursuant to the Securities Act and registered or qualified
pursuant to any applicable state securities laws or
(ii) sold or transferred in transactions which are exempt from such registration
and qualification and the Certificate Owner desiring to effect such transfer has
received either (A) a certification from such Certificate Owner's prospective
transferee (substantially in the form attached to the Pooling and Servicing
Agreement) setting forth the facts surrounding the transfer or (B) an opinion of
counsel with respect to the availability of such exemption, together with copies
of the certification(s) from the transferor and/or transferee setting forth the
facts surrounding the transfer upon which such opinion is based.
3. The Transferee understands that it may not sell or otherwise
transfer any portion of its interest in the Transferred Certificate except in
compliance with the provisions of Section 3.3 of the Pooling and Servicing
Agreement, which provisions it has carefully reviewed.
4. Transferee understands that each Transferred Certificate will bear
the following legend:
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE
SECURITIES LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS
CERTIFICATE OR ANY INTEREST THEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION
MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR
QUALIFICATION AND WHICH IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF
THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
5. With respect to any Transferred Certificate that is a Privately
Offered Certificate (other than Class X-1, Class X-2, Class E, Class F and Class
G Certificates), the Transferee understands that each Transferred Certificate
will bear the following legend:
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE
BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I 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 APPLICABLE FEDERAL,
STATE OR LOCAL LAW ("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY
PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF,
OR WITH ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF
SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
6. The Transferee has been furnished with all information regarding
(a) the Depositor, (b) the Transferred Certificates and distributions thereon,
(c) the Pooling and Servicing Agreement and the Trust Fund created pursuant
thereto, (d) the nature, performance and servicing of the Mortgage Loans, (e)
any credit enhancement mechanism associated with the Transferred Certificates,
and (f) all related matters, that it has requested.
7. Check one of the following:
___ The Transferee is a "U.S. Person" and has attached hereto an
Internal Revenue Service ("IRS") Form W-9 (or successor form).
___ The Transferee is not a "U.S. Person" and under applicable law in
effect on the date hereof, no taxes will be required to be withheld by the
Certificate Registrar (or its agent) with respect to distributions to be made on
the Transferred Certificates. The Transferee has attached hereto either (i) a
duly executed IRS Form W-8BEN (or successor form), which identifies the
Transferee as the beneficial owner of the Transferred Certificates and states
that the Transferee is not a U.S. Person, (ii) Form W-8IMY (with appropriate
attachments) or (iii) two duly executed copies of IRS Form W-8ECI (or successor
form), which identify the Transferee as the beneficial owner of the Transferred
Certificates and states that interest and original issue discount on the
Transferred Certificates is, or is expected to be, effectively connected with a
U.S. trade or business. The Transferee agrees to provide to the Certificate
Registrar (or its agent) updated IRS Form W-8BEN, IRS Form W-8IMY or IRS Form
W-8ECI, as the case may be, any applicable successor IRS forms, or such other
certifications as the Certificate Registrar (or its agent) 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 (or its agent).
For this purpose, "U.S. Person" means a citizen or resident of the
United States for U.S. federal income tax purposes, a corporation or partnership
(except to the extent provided in applicable Treasury Regulations) created or
organized in or under the laws of the United States, any State thereof or the
District of Columbia, including any entity treated as a corporation or
partnership for federal income tax purposes, an estate the income of which is
subject to U.S. federal income taxation regardless of its source, or a trust if
a court within the United States is able to exercise primary supervision over
the administration of such trust, and one or more United States fiduciaries 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).
The Depositor, the Trustee and the Paying Agent are entitled to rely
upon this letter and are irrevocably authorized to produce this letter or a copy
hereof to any interested party in any administrative or legal proceedings or
official inquiry with respect to the matters covered hereby.
Very truly yours,
----------------------------------------
(Transferee)
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
ANNEX 1 TO EXHIBIT D-3B
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor"), and for the benefit of the Depositor, the Trustee and the
Certificate Registrar, with respect to the commercial mortgage pass-through
certificate being transferred (the "Transferred Certificate") as described in
the Transferee Certificate to which this certification relates and to which this
certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer,
a person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificate (the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A under the Securities Act of 1933, as amended ("Rule 144A"),
because (i) the Transferee owned and/or invested on a discretionary basis
$______________________(2) in securities (other than the excluded securities
referred to below) as of the end of the Transferee's most recent fiscal year
(such amount being calculated in accordance with Rule 144A) and (ii) the
Transferee satisfies the criteria in the category marked below.
___ Corporation, etc. The Transferee is a corporation (other than a
bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or any
organization described in Section 501(c)(3) of the Internal
Revenue Code of 1986, as amended.
___ Bank. The Transferee (a) is a national bank or a banking
institution organized under the laws of any State, U.S. territory
or the District of Columbia, the business of which is
substantially confined to banking and is supervised by the State
or territorial banking commission or similar official or is a
foreign bank or equivalent institution, and (b) has an audited
net worth of at least $25,000,000 as demonstrated in its latest
annual financial statements, a copy of which is attached hereto,
as of a date not more than 16 months preceding the date of sale
of the Certificate in the case of a U.S. bank, and not more than
18 months preceding such date of sale for a foreign bank or
equivalent institution.
----------
(2) Transferee must own and/or invest on a discretionary basis at least
$100,000,000 in securities unless Transferee is a dealer, and, in that case,
Transferee must own and/or invest on a discretionary basis at least $10,000,000
in securities.
___ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is supervised
and examined by a State or Federal authority having supervision
over any such institutions or is a foreign savings and loan
association or equivalent institution and (b) has an audited net
worth of at least $25,000,000 as demonstrated in its latest
annual financial statements, a copy of which is attached hereto,
as of a date not more than 16 months preceding the date of sale
of the Certificate in the case of a U.S. savings and loan
association, and not more than 18 months preceding such date of
sale for a foreign savings and loan association or equivalent
institution.
___ Broker-dealer. The Transferee is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934, as amended.
___ Insurance Company. The Transferee is an insurance company whose
primary and predominant business activity is the writing of
insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance
commissioner or a similar official or agency of a State, U.S.
territory or the District of Columbia.
___ State or Local Plan. The Transferee is a plan established and
maintained by a State, its political subdivisions, or any agency
or instrumentality of the State or its political subdivisions,
for the benefit of its employees.
___ ERISA Plan. The Transferee is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act
of 1974, as amended.
___ Investment Advisor. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940, as amended.
___ Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under
subsection (a)(1) of Rule 144A pursuant to which it qualifies.
Note that registered investment companies should complete Annex 2
rather than this Annex 1.)
____________________________________________________
____________________________________________________
____________________________________________________
3. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee, (ii) securities
that are part of an unsold allotment to or subscription by the Transferee, if
the Transferee is a dealer, (iii) bank deposit notes and certificates of
deposit, (iv) loan participations, (v) repurchase agreements, (vi) securities
owned but subject to a repurchase agreement and (vii) currency, interest rate
and commodity swaps.
For purposes of determining the aggregate amount of securities owned and/or
invested on a discretionary basis by the Transferee, the Transferee did not
include any of the securities referred to in this paragraph.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Transferee, the Transferee
used the cost of such securities to the Transferee, unless the Transferee
reports its securities holdings in its financial statements on the basis of
their market value, and no current information with respect to the cost of those
securities has been published, in which case the securities were valued at
market. Further, in determining such aggregate amount, the Transferee may have
included securities owned by subsidiaries of the Transferee, but only if such
subsidiaries are consolidated with the Transferee in its financial statements
prepared in accordance with generally accepted accounting principles and if the
investments of such subsidiaries are managed under the Transferee's direction.
However, such securities were not included if the Transferee is a
majority-owned, consolidated subsidiary of another enterprise and the Transferee
is not itself a reporting company under the Securities Exchange Act of 1934, as
amended.
5. The Transferee acknowledges that it is familiar with Rule 144A and
understands that the Transferor and other parties related to the Transferred
Certificate are relying and will continue to rely on the statements made herein
because one or more sales to the Transferee may be in reliance on Rule 144A.
___ ___ Will the Transferee be purchasing the Transferred Certificate
Yes No only for the Transferee's own account
6. If the answer to the foregoing question is "no", then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice is given, the Transferee's purchase of the Transferred
Certificate will constitute a reaffirmation of this certification as of the date
of such purchase. In addition, if the Transferee is a bank or savings and loan
as provided above, the Transferee agrees that it will furnish to such parties
any updated annual financial statements that become available on or before the
date of such purchase, promptly after they become available.
----------------------------------------
Print Name of Transferee
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Date:
----------------------------------
ANNEX 2 TO EXHIBIT D-3B
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That Are Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor"), and for the benefit of the Depositor, the Trustee and the
Certificate Registrar, with respect to the commercial mortgage pass-through
certificate being transferred (the "Transferred Certificate") as described in
the Transferee Certificate to which this certification relates and to which this
certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer,
a person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificate (the "Transferee") or, if the
Transferee is a "qualified institutional buyer" as that term is defined in Rule
144A under the Securities Act of 1933, as amended ("Rule 144A"), because the
Transferee is part of a Family of Investment Companies (as defined below), is an
executive officer of the investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in
Rule 144A because (i) the Transferee is an investment company registered under
the Investment Company Act of 1940, as amended, and (ii) as marked below, the
Transferee alone owned and/or invested on a discretionary basis, or the
Transferee's Family of Investment Companies owned, at least $100,000,000 in
securities (other than the excluded securities referred to below) as of the end
of the Transferee's most recent fiscal year. For purposes of determining the
amount of securities owned by the Transferee or the Transferee's Family of
Investment Companies, the cost of such securities was used, unless the
Transferee or any member of the Transferee's Family of Investment Companies, as
the case may be, reports its securities holdings in its financial statements on
the basis of their market value, and no current information with respect to the
cost of those securities has been published, in which case the securities of
such entity were valued at market.
____ The Transferee owned and/or invested on a discretionary
basis $___________________ in securities (other than the excluded
securities referred to below) as of the end of the Transferee's most recent
fiscal year (such amount being calculated in accordance with Rule 144A).
____ The Transferee is part of a Family of Investment
Companies which owned in the aggregate $______________ in securities (other
than the excluded securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being calculated in
accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means two
or more registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee or are part of the
Transferee's Family of Investment Companies, (ii) bank deposit notes and
certificates of deposit, (iii) loan participations, (iv) repurchase agreements,
(v) securities owned but subject to a repurchase agreement and (vi) currency,
interest rate and commodity swaps. For purposes of determining the aggregate
amount of securities owned and/or invested on a discretionary basis by the
Transferee, or owned by the Transferee's Family of Investment Companies, the
securities referred to in this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands that the
parties to which this certification is being made are relying and will continue
to rely on the statements made herein because one or more sales to the
Transferee will be in reliance on Rule 144A.
___ ___ Will the Transferee be purchasing the Transferred
Yes No Certificate only for the Transferee's own account
6. If the answer to the foregoing question is "no", then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this certification
is made of any changes in the information and conclusions herein. Until such
notice, the Transferee's purchase of the Transferred Certificate will constitute
a reaffirmation of this certification by the undersigned as of the date of such
purchase.
----------------------------------------
Print Name of Transferee or Adviser
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
IF AN ADVISER:
----------------------------------------
Print Name of Transferee
Date:
----------------------------------
EXHIBIT E-1
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
(TRANSFEREE)
STATE OF )
) ss:
COUNTY OF )
____________________, being first duly sworn, deposes and says that:
1. He/She is the ____________________ of ____________________ (the
prospective transferee (the "Transferee") of Bear Xxxxxxx Commercial Mortgage
Securities Inc., Commercial Mortgage Pass-Through Certificates, Series
2005-TOP20, Class [R-I] [R-II] [R-III], evidencing a ____% Percentage Interest
in such Class (the "Residual Certificates")), a ________________ duly organized
and validly existing under the laws of ____________________, on behalf of which
he/she makes this affidavit. All capitalized terms used but not otherwise
defined herein shall have the respective meanings set forth in the Pooling and
Servicing Agreement as amended and restated pursuant to which the Residual
Certificates were issued (the "Pooling and Servicing Agreement").
2. The Transferee (i) is, and as of the date of transfer will be, a
"Permitted Transferee" and will endeavor to remain a "Permitted Transferee" for
so long as it holds the Residual Certificates, and (ii) is acquiring the
Residual Certificates for its own account or for the account of another
prospective transferee from which it has received an affidavit in substantially
the same form as this affidavit. A "Permitted Transferee" is any Person other
than a "disqualified organization" or a possession of the United States. (For
this purpose, a "disqualified organization" means the United States, any state
or political subdivision thereof, any agency or instrumentality of any of the
foregoing (other than an instrumentality, all of the activities of which are
subject to tax and, except for the Federal Home Loan Mortgage Corporation, a
majority of whose board of directors is not selected by any such governmental
entity) or any foreign government, international organization or any agency or
instrumentality of such foreign government or organization, any rural electric
or telephone cooperative, or any organization (other than certain farmers'
cooperatives) that is generally exempt from federal income tax unless such
organization is subject to the tax on unrelated business taxable income.
3. The Transferee (i) is, and as of the date of transfer will be, a
"Qualified Institutional Buyer" and will endeavor to remain a "Qualified
Institutional Buyer" for so long as it holds the Residual Certificates, and (ii)
is acquiring the Residual Certificates for its own account or for the account of
another prospective transferee from which it has received an affidavit in
substantially the same form as this affidavit. A "Qualified Institutional Buyer"
is a qualified institutional buyer qualifying pursuant to Rule 144A under the
Securities Act of 1933, as amended.
4. The Transferee is aware (i) of the tax that would be imposed on
transfers of the Residual Certificates to "disqualified organizations" under the
Code that applies to all transfers of the Residual Certificates; (ii) that such
tax would be on the transferor or, if such
transfer is through an agent (which Person includes a broker, nominee or
middleman) for a non-Permitted Transferee, on the agent; (iii) that the Person
otherwise liable for the tax shall be relieved of liability for the tax if the
transferee furnishes to such Person an affidavit that the transferee is a
Permitted Transferee and, at the time of transfer, such Person does not have
actual knowledge that the affidavit is false; and (iv) that the Residual
Certificates may be a "noneconomic residual interest" within the meaning of
Treasury regulation Section 1.860E-1(c) and that the transferor of a
"noneconomic residual interest" will remain liable for any taxes due with
respect to the income on such residual interest, unless no significant purpose
of the transfer is to enable the transferor to impede the assessment or
collection of tax.
5. The Transferee is aware of the tax imposed on a "pass-through
entity" holding the Residual Certificates if at any time during the taxable year
of the pass-through entity a non-Permitted Transferee is the record holder of an
interest in such entity. (For this purpose, a "pass-through entity" includes a
regulated investment company, a real estate investment trust or common trust
fund, a partnership, trust or estate, and certain cooperatives.)
6. The Transferee is aware that the Certificate Registrar will not
register any transfer of the Residual Certificates by the Transferee unless the
Transferee's transferee, or such transferee's agent, delivers to the Certificate
Registrar, among other things, an affidavit and agreement in substantially the
same form as this affidavit and agreement. The Transferee expressly agrees that
it will not consummate any such transfer if it knows or believes that any
representation contained in such affidavit and agreement is false.
7. The Transferee consents to any additional restrictions or
arrangements that shall be deemed necessary upon advice of counsel to constitute
a reasonable arrangement to ensure that the Residual Certificate will only be
owned, directly or indirectly, by a Permitted Transferee.
8. The Transferee's taxpayer identification number is _______________.
9. The Transferee has reviewed the provisions of Section 3.3(e) of the
Pooling and Servicing Agreement, a description of which provisions is set forth
in the Residual Certificates (in particular, clause (ii)(F) of Section 3.3(e)
which authorizes the Paying Agent or the Trustee to deliver payments on the
Residual Certificate to a Person other than the Transferee and clause (ii)(G) of
Section 3.3(e) which authorizes the Trustee to negotiate a mandatory sale of the
Residual Certificates, in either case, in the event that the Transferee holds
such Residual Certificates in violation of Section 3.3(e)); and the Transferee
expressly agrees to be bound by and to comply with such provisions.
10. No purpose of the Transferee relating to its purchase or any sale
of the Residual Certificates is or will be to impede the assessment or
collection of any tax.
11. The Transferee hereby represents to and for the benefit of the
transferor that the Transferee intends to pay any taxes associated with holding
the Residual Certificates as they become due, fully understanding that it may
incur tax liabilities in excess of any cash flows generated by the Residual
Certificates.
12. The Transferee will not cause income with respect to the Residual
Certificates to be attributable to a foreign permanent establishment or fixed
base, within the meaning of any applicable income tax treaty, of such proposed
Transferee or any other United States Tax Person.
13. The Transferee will, in connection with any transfer that it makes
of the Residual Certificates, deliver to the Certificate Registrar a
representation letter substantially in the form of Exhibit E-2 to the Pooling
and Servicing Agreement in which it will represent and warrant, among other
things, that it is not transferring the Residual Certificates to impede the
assessment or collection of any tax and that it has at the time of such transfer
conducted a reasonable investigation of the financial condition of the proposed
transferee as contemplated by Treasury regulation Section 1.860E-1(c)(4)(i) and
has satisfied the requirements of such provision.
14. The Transferee is a citizen or resident of the United States, a
corporation, a partnership or other entity created or organized in, or under the
laws of, the United States or any political subdivision thereof, or an estate or
trust whose income from sources without the United States is includible in gross
income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States.
15. [Select a or b, as applicable] [a] The Transferee has computed any
consideration paid to it to acquire the Class R Certificate in accordance with
U.S. Treasury Regulations Sections 1.860E-1(c)(7) and 1.860E-1(c)(8) by
computing present values using a discount rate equal to the Federal short-term
rate prescribed by Section 1274(d) of the Code for the month of the transfer and
the compounding period used by the Transferee.
[b] The transfer of the Class R Certificate complies with Treasury
Regulation Sections 1.860E-1(c)(5) and 1.860E-1(c)(6) and, accordingly,
(i) the Transferee is an "eligible corporation," as defined in
Treasury Regulation Section 1.860E-1(c)(6), as to which income from the Class R
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 Transferee's fiscal 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 Treasury
Regulation Section 1.860E-1(c)(6)(ii) and excluding any other asset if a
principal purpose for holding or acquiring that asset is to permit the
Transferee to satisfy this Section 15(ii)) in excess of $100 million and net
assets in excess of $10 million;
(iii) the Transferee will transfer the Class R Certificate only to
another "eligible corporation," as defined in Treasury Regulation Section
1.860E-1(c)(6), in a transaction that satisfies the requirements of Treasury
Regulation Section 1.860E-1(c)(i), (ii), and (iii) and this Section 15 and the
transfer is not to a foreign permanent establishment (within the meaning of an
applicable income tax treaty) of such eligible corporation or any other
arrangement by which the Class R Certificate will be at any time subject to net
tax by a foreign country or possession of the United States; and
(iv) the Transferee determined the consideration paid to it to acquire
the Class R Certificate, based on reasonable market assumptions (including, but
not limited to, borrowing and investment rates, prepayment and loss assumptions,
expense and reinvestment assumptions, tax rates and other factors specific to
the Transferee) that it has determined in good faith, is a reasonable amount.
16. The Transferee (i) is, and at the time of transfer will be, a
United States Tax Person and (ii) is not, and at the time of the transfer will
not be, a foreign permanent establishment or fixed base, within the meaning of
any applicable income tax treaty, of any United States Tax Person. If the
Transferee is a partnership trust or disregarded entity for U.S. federal income
tax purposes, then each person that may be allocated income from the Class R
Certificate is, and at the time of transfer will be, a United States Tax Person.
17. The Transferee has historically paid its debts as they have come
due and will continue to do so in the future.
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to the authority of its Board of Directors, by
its ____________________ and its corporate seal to be hereunto attached this ___
day of ___________, ____.
[NAME OF TRANSFEREE]
By:
------------------------------------
[Name of Officer]
[Title of Officer]
EXHIBIT E-2
FORM OF TRANSFEROR AFFIDAVIT AND AGREEMENT
(TRANSFEROR)
_______________, 20__
Xxxxx Fargo Bank, National Association,
as Certificate Registrar
Xxxxx Fargo Center
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attention: Corporate Trust Services
(CMBS) MAC #N9309-121
Re: Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 2005-TOP20 (the "Certificates")
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
[Class R-I] [Class R-II] [Class R-III] Certificates evidencing a ____%
Percentage Interest in such Class (the "Residual Certificates"). The
Certificates, including the Residual Certificates, were issued pursuant to the
Pooling and Servicing Agreement, dated as of October 1, 2005 (the "Pooling and
Servicing Agreement"), among Bear Xxxxxxx Commercial Mortgage Securities Inc.,
as depositor, Xxxxx Fargo Bank, National Association, as master servicer, ARCap
Servicing, Inc., as special servicer, Lasalle Bank National Association, as
trustee, Xxxxx Fargo Bank, National Association, as paying agent and certificate
registrar and ABN AMRO Bank N.V., as fiscal agent. All capitalized terms used
but not otherwise defined herein shall have the respective meanings set forth in
the Pooling and Servicing Agreement. The Transferor hereby certifies, represents
and warrants to you, as Certificate Registrar, that:
1. No purpose of the Transferor relating to the transfer of the
Residual Certificates by the Transferor to the Transferee is or will be to
impede the assessment or collection of any tax.
2. The Transferor understands that the Transferee has delivered to you
a Transfer Affidavit and Agreement in the form attached to the Pooling and
Servicing Agreement. The Transferor does not know or believe that any
representation contained therein is false.
3. The Transferor has at the time of this transfer conducted a
reasonable investigation of the financial condition of the Transferee as
contemplated by Treasury regulation Section 1.860E-1(c)(4)(i) and, as a result
of that investigation, the Transferor has determined that the Transferee has
historically paid its debts as they became due and has found no significant
evidence to indicate that the Transferee will not continue to pay its debts as
they become due in
the future. The Transferor understands that the transfer of the Residual
Certificates may not be respected for United States income tax purposes (and the
Transferor may continue to be liable for United States income taxes associated
therewith) unless the Transferor has conducted such an investigation.
4. The Transferor does not know and has no reason to know that the
Transferee is not a Permitted Transferee, is not a United States Tax Person, is
a foreign permanent establishment or fixed base, within the meaning of any
applicable income tax treaty, of any United States Tax Person, or is a Person
with respect to which income on the Residual Certificate is attributable to a
foreign permanent establishment or fixed base, within the meaning of any
applicable income tax treaty.
5. The Transferor does not know and has no reason to know that the
Transferee will not honor the restrictions on subsequent transfers by the
Transferee under the Transfer Affidavit and Agreement, delivered in connection
with this transfer.
Very truly yours,
----------------------------------------
(Transferor)
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
EXHIBIT F
FORM OF REGULATION S CERTIFICATE
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-TOP20, CLASS _ (THE "CERTIFICATES")
TO: Euroclear System
or
CLEARSTREAM
This is to certify that as of the date hereof, and except as set forth
below, the above-captioned Certificates held by you or on your behalf for our
account are beneficially owned by (a) non -U.S person(s) or (b) U.S. person(s)
who purchased the Certificates in transactions which did not require
registration under the United States Securities Act of 1933, as amended (the
"Securities Act"). As used in this paragraph, the term "U.S. person" has the
meaning given to it by Regulation S under the Securities Act. To the extent that
we hold an interest in any of the Certificates on behalf of person(s) other than
ourselves, we have received certifications from such person(s) substantially
identical to the certifications set forth herein.
We undertake to advise you promptly by tested telex on or prior to the
date on which you intend to submit your certification relating to the
Certificates held by you or on your behalf for our account in accordance with
your operating procedures if any applicable statement herein is not correct on
such date, and in the absence of any such notification it may be assumed that
this certification applies as of such date.
This certification excepts and does not relate to $__________ of such
beneficial interest in the above Certificates in respect of which we are not
able to certify and as to which we understand the exercise of any rights to
payments thereon and the exchange for definitive Certificates or for an interest
in definitive Certificates in global form cannot be made until we do so certify.
We understand that this certification is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certification is or would be relevant, we irrevocably authorize
you to produce this certification to any interested party in such proceedings.
Dated: _________, 2005
By:
------------------------------------
As, or as agent for, the beneficial
owner(s) of the Certificates to which
this certificate relates.
Exhibit G-1
Form of Principal Primary
Sevicing Agreement
----------
PRIMARY SERVICING AGREEMENT
Dated as of October 1, 2005
----------
XXXXX FARGO BANK, NATIONAL ASSOCIATION
as Master Servicer,
PRINCIPAL GLOBAL INVESTORS, LLC,
as Primary Servicer,
TO BE ENTERED INTO IN CONNECTION WITH
THAT CERTAIN POOLING AND SERVICING AGREEMENT
Dated as of October 1, 2005
between
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
as Depositor,
XXXXX FARGO BANK, NATIONAL ASSOCIATION
as Master Servicer,
ARCAP SERVICING, INC.
as Special Servicer,
LASALLE BANK NATIONAL ASSOCIATION
as Trustee,
XXXXX FARGO BANK, NATIONAL ASSOCIATION
as Paying Agent and Certificate Registrar
and
ABN AMRO BANK N.V.
as Fiscal Agent
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2005-TOP20
TABLE OF CONTENTS
PAGE
----
ARTICLE I. DEFINITIONS................................................... 1
ARTICLE II. PRIMARY SERVICING............................................ 8
SECTION 2.1 PRIMARY SERVICING...................................... 8
SECTION 2.2 STANDARD OF CARE....................................... 17
SECTION 2.3 COMPENSATION AND OTHER PAYMENTS TO THE PRIMARY
SERVICER............................................ 17
SECTION 2.4 PRIMARY SERVICER REPRESENTATIONS AND WARRANTIES........ 18
ARTICLE III. DOCUMENTS AND OTHER MATTERS................................. 18
SECTION 3.1 SEGREGATION OF MORTGAGE LOAN DOCUMENTS................. 18
SECTION 3.2 ACCESS TO DOCUMENTS; PROVISION OF CERTAIN INFORMATION.. 18
ARTICLE IV. MASTER SERVICER ASSISTANCE................................... 19
SECTION 4.1 MASTER SERVICER ASSISTANCE............................. 19
SECTION 4.2 SPECIALLY SERVICED MORTGAGE LOANS...................... 19
ARTICLE V. ADDITIONAL PRIMARY SERVICER COVENANTS......................... 20
SECTION 5.1 NOTICE OF LITIGATION................................... 20
SECTION 5.2 NO PERSONAL SOLICITATION............................... 20
SECTION 5.3 ANNUAL OFFICER'S CERTIFICATE AS TO COMPLIANCE.......... 20
SECTION 5.4 ANNUAL INDEPENDENT ACCOUNTANTS' SERVICING REPORT....... 20
SECTION 5.5 FIDELITY BOND AND ERRORS AND OMISSIONS INSURANCE
POLICY.............................................. 21
SECTION 5.6 PRIMARY SERVICER'S FINANCIAL STATEMENTS AND
RELATED INFORMATION................................. 21
SECTION 5.7 NO ADVANCING........................................... 21
SECTION 5.8 REMIC COMPLIANCE....................................... 22
SECTION 5.9 INSPECTION RIGHTS...................................... 22
SECTION 5.10 AUTHORIZED OFFICER..................................... 22
SECTION 5.11 XXXXXXXX-XXXXX BACKUP CERTIFICATION.................... 22
SECTION 5.12 ADDITIONAL REPORTS..................................... 23
SECTION 5.13 PREPAYMENT INTEREST SHORTFALLS AND EXCESSES............ 23
SECTION 5.14 CONSENTS............................................... 24
SECTION 5.15 QUARTERLY SERVICING ACCOUNTS RECONCILIATION
CERTIFICATION....................................... 24
ARTICLE VI. PRIMARY SERVICER DEFAULT; TERMINATION; POST-TERMINATION
OBLIGATIONS............................................ 24
SECTION 6.1 PRIMARY SERVICER DEFAULT............................... 24
SECTION 6.2 TERMINATION............................................ 26
SECTION 6.3 POST-TERMINATION OBLIGATIONS........................... 27
SECTION 6.4 ADDITIONAL TERMINATION................................. 28
ARTICLE VII. SUBCONTRACTORS.............................................. 28
ARTICLE VIII. PRIMARY SERVICER TO HOLD PROPERTY FOR THE MASTER
SERVICER............................................... 28
ARTICLE IX. INDEMNIFICATION.............................................. 29
SECTION 9.1 PRIMARY SERVICER'S INDEMNITY........................... 29
ARTICLE X. MISCELLANEOUS................................................. 30
SECTION 10.1 SEVERABILITY........................................... 30
SECTION 10.2 RIGHTS CUMULATIVE; WAIVERS............................. 30
SECTION 10.3 HEADINGS............................................... 30
SECTION 10.4 CONSTRUCTION........................................... 30
-i-
TABLE OF CONTENTS
(continued)
PAGE
----
SECTION 10.5 ASSIGNMENT............................................ 30
SECTION 10.6 PRIOR UNDERSTANDINGS.................................. 32
SECTION 10.7 INTEGRATED AGREEMENT.................................. 32
SECTION 10.8 COUNTERPARTS.......................................... 32
SECTION 10.9 GOVERNING LAWS........................................ 32
SECTION 10.10 NOTICES............................................... 32
SECTION 10.11 AMENDMENT............................................. 33
SECTION 10.12 OTHER................................................. 33
SECTION 10.13 BENEFITS OF AGREEMENT................................. 33
-ii-
This PRIMARY SERVICING AGREEMENT, dated and effective as of October 1,
2005, by and between PRINCIPAL GLOBAL INVESTORS, LLC (in the capacity of primary
servicer, the "Primary Servicer") and XXXXX FARGO BANK, NATIONAL ASSOCIATION, a
national banking association, acting solely in its capacity as Master Servicer
under the Pooling and Servicing Agreement (as defined below) (the "Master
Servicer").
WHEREAS, Bear Xxxxxxx Commercial Mortgage Securities Inc., as
depositor, Xxxxx Fargo Bank, National Association, as master servicer, ARCap
Servicing, Inc., as special servicer, ABN AMRO Bank N.V., as fiscal agent, Xxxxx
Fargo Bank, National Association, as paying agent and as certificate registrar
and LaSalle Bank National Association, as trustee, have entered into a Pooling
and Servicing Agreement, dated as of October 1, 2005, relating to the Commercial
Mortgage Pass-Through Certificates, Series 2005-TOP20 (as amended, from time to
time, the "Pooling and Servicing Agreement"), a copy of which is attached hereto
as Exhibit A; and
WHEREAS, the Master Servicer desires that the Primary Servicer act as
Primary Servicer with respect to the mortgage loans listed on Schedule I hereto
and provide, on behalf of the Master Servicer, the necessary servicing of such
mortgage loans performed in a manner consistent with the Servicing Standard and
in a manner consistent with this Agreement and the Pooling and Servicing
Agreement from the Closing Date until this Agreement is terminated in accordance
herewith;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the Primary Servicer and the Master Servicer hereby
agree as follows:
ARTICLE I.
DEFINITIONS
As used in this Agreement, the following terms shall have the meanings
set forth below. Capitalized terms used and not defined herein shall have the
meanings ascribed to them in the Pooling and Servicing Agreement, provided,
however, that terms whose meanings are ascribed in the Pooling and Servicing
Agreement and by the provisions thereof pertain to one or more mortgage loans
that are the subject of the Pooling and Servicing Agreement shall be construed
for purposes of this Agreement to pertain to the related Mortgage Loan(s) that
are the subject of this Agreement.
"A/B Intercreditor Agreement": With respect to an A/B Mortgage Loan,
the related co-lender agreement, by and between the holder of the related
Mortgage Loan and the holder of the related B Note, setting forth the relative
rights of such holders, as the same may be further amended from time to time in
accordance with the terms thereof.
"A/B Mortgage Loan": The PCF A/B Mortgage Loans or any Mortgage Loan
serviced under this Agreement that is divided into a senior mortgage note and a
subordinated mortgage note, which senior mortgage note is included in the Trust.
"Aggregate Servicing Fee": The Primary Servicing Fee and the Excess
Servicing Fee.
"Agreement": This Primary Servicing Agreement, as modified, amended
and supplemented from time to time, including all exhibits, schedules and
addenda hereto.
"Annual Statement and Rent Roll Reporting": Copies of quarterly and
annual financial statements and rent rolls collected with respect to the
Mortgaged Properties securing the Mortgage Loans and A/B Mortgage Loans, to be
made available, within 30 days following receipt thereof by the Primary
Servicer, to the Master Servicer (and, with respect to an A/B Mortgage Loan, the
holder of the B Note, if required by the applicable A/B Intercreditor
Agreement), the Operating Adviser, and, to any of the following Persons upon
written notification from Master Servicer of a request for such information and
the identity and address of the requesting Person requesting: the Rating
Agencies, the Special Servicer, or the Trustee.
"B Note": With respect to any A/B Mortgage Loan, the related
subordinated Mortgage Note not included in the Trust, which is subordinated in
right of payment to the related A Note to the extent set forth in the related
A/B Intercreditor Agreement.
"Category 1 Consent Aspect": A condition, term or provision of a
Category 1 Request that requires, or specifies a standard of, consent, or
approval of the applicable mortgagee under the Loan Documents, but shall
explicitly exclude any such conditions, terms or provisions enumerated in (a) an
escrow or reserve agreement for disbursements made from an escrow or reserve
account or an extension of time to complete repairs, replacements or
improvements in accordance with the terms and conditions set forth in Exhibit
B-2(c); (b) an assignment and assumption request covered under Section
A.1.(c)(ii) of Exhibit B-2(c) of this Agreement; (c) an additional lien,
monetary encumbrance or mezzanine financing request covered under Section
A.1.(c)(iii) of Exhibit B-2(c) of this Agreement; or (d) a defeasance request
covered under Section A.1.(c)(i) of Exhibit B-2(c) of this Agreement.
"Category 1 Request": As defined in the Post Closing Matters
Description in Exhibit B-2.
"Category 2 Request": As defined in the Post Closing Matters
Description in Exhibit B-2.
"Category 3 Request": As defined in the Post Closing Matters
Description in Exhibit B-2.
"CMSA Comparative Financial Status Report": A report which is one
element of the supplemental reports of the CMSA Investor Reporting Package and
the form of which is attached to the Pooling and Servicing Agreement as Exhibit
W.
"CMSA Delinquent Loan Status Report": A report which is one element of
the supplemental reports of the CMSA Investor Reporting Package and the form of
which is attached to the Pooling and Servicing Agreement as Exhibit X.
"CMSA Financial File": A report which is one element of the CMSA
Investor Reporting Package and the form of which is attached to the Pooling and
Servicing Agreement as Exhibit W.
"CMSA Historical Liquidation Report": A report which is one element of
the supplemental reports of the CMSA Investor Reporting Package and the form of
which is attached to the Pooling and Servicing Agreement as Exhibit X.
"CMSA Historical Loan Modification Report": A report which is one
element of the supplemental reports of the CMSA Investor Reporting Package and
the form of which is attached to the Pooling and Servicing Agreement as Exhibit
X.
2
"CMSA Investor Reporting Package": The Commercial Mortgage Securities
Association Investor Reporting Package, certain forms of which are attached to
the Pooling and Servicing Agreement as Exhibits W and X and elements of which
shall be produced as provided in Section 2.1(c) and the Task Description.
"CMSA Loan Level Reserve/LOC Report": A report which is one element of
the supplemental reports of the CMSA Investor Reporting Package and the form of
which is attached to the Pooling and Servicing Agreement as Exhibit X.
"CMSA Loan Periodic Update File": A report which is one element of the
CMSA Investor Reporting Package and the form of which is attached to the Pooling
and Servicing Agreement as Exhibit X.
"CMSA Loan Setup File": A report which is one element of the CMSA
Investor Reporting Package and the form of which is attached to the Pooling and
Servicing Agreement as Exhibit X.
"CMSA Property File": A report which is one element of the CMSA
Investor Reporting Package and the form of which is attached to the Pooling and
Servicing Agreement as Exhibit W.
"CMSA Quarterly Financial File": A report which is one element of the
CMSA Investor Reporting Package and the form of which is substantially similar
to the form attached to the Pooling and Servicing Agreement as Exhibit W.
"CMSA REO Status Report": A report which is one element of the
supplemental reports of the CMSA Investor Reporting Package and the form of
which is attached to the Pooling and Servicing Agreement as Exhibit X.
"CMSA Servicer Watch List": A report which is one element of the
supplemental reports of the CMSA Investor Reporting Package and the form of
which is attached to the Pooling and Servicing Agreement as Exhibit W the
contents of which are set forth in Section 8.11(h) of the Pooling and Servicing
Agreement.
"Day One Report": With respect to each Mortgage Loan and A/B Mortgage
Loan, a statement in the form of Exhibit B-1(f) setting forth the scheduled
payments of interest and principal and the amount of any unanticipated
prepayments of which the Primary Servicer has received notice, indicating the
Mortgage Loan or A/B Mortgage Loan and on account of what type of payment such
amount is to be applied on behalf of the related Mortgagor.
"Deemed Category 1 Request": With respect to an A/B Mortgage Loan, a
Category 2 Request shall, for purposes of this Agreement, be deemed to be a
Category 1 Request and shall be processed, as such, by the Primary Servicer.
"Escrow Status Report": A brief statement to be delivered to the
Persons designated in Section 5.1(g) of the Pooling and Servicing Agreement and
with respect to an A/B Mortgage Loan, the holder of the B Note, if required by
the applicable A/B Intercreditor Agreement, within twenty (20) days following
the first anniversary of the Closing Date, for each of the Mortgage Loans
included on Schedule
3
VII of the Pooling and Servicing Agreement (and related B Notes), about the
status of the work or project based upon the most recent information provided by
the applicable Mortgagor.
"Excess Servicing Fee": For each calendar month, as to each Mortgage
Loan, the portion of the related Excess Servicing Fee Rate applicable to such
month (determined in the same manner as the applicable Mortgage Rate determined
for such Mortgage Loan for such month) multiplied by the Scheduled Principal
Balance of such Mortgage Loan immediately before the Due Date occurring in such
month, but prorated for the number of days during the calendar month for such
Mortgage Loan for which interest actually accrues on such Mortgage Loan and only
from collections on such Mortgage Loan.
"Excess Servicing Fee Rate": The rate of 0.0% per annum with respect
to each Mortgage Loan.
"FedEx Miami A/B Mortgage Loan": The FedEx Miami Mortgage Loan and the
FedEx Miami B Note.
"FedEx Miami B Note": The mortgage loan, which is not included in the
Trust and is subordinated in right of payment to the FedEx Miami Mortgage Loan
to the extent set forth in the related A/B Intercreditor Agreement.
"FedEx Miami Mortgage Loan": The mortgage loan designated as Mortgage
Loan No. 62 on the Mortgage Loan Schedule.
"Lease": A lease, proposed lease, or amendment, modification,
restatement, extension or termination of a lease, in each case of space and any
other ancillary and associated rights in a building or on the real estate
constituting all or a portion of a Mortgaged Property.
"Loan Documents": As defined in the Post Closing Matters Description
in Exhibit B-2.
"Mandatory Prepayment Date Assumption": The assumption set forth in
Exhibit B (Servicing Proposal) to the Servicing Rights Purchase Agreement dated
October 20, 2005 between Principal Commercial Funding, LLC, as Seller, and the
Master Servicer, as Purchaser, to the effect that, except as disclosed to the
Master Servicer, no Mortgage Loan has terms under which it may be paid off, in
whole or in part, on a date other than a due date or maturity date (including
during open periods) without payment of a full month of interest.
"Master Servicer": As defined in the preamble to this Agreement.
"Master Servicer Servicing Documents": A copy of the documents
contained in the Mortgage File for the Mortgage Loans and any A/B Mortgage
Loans.
"Materiality Determination": With respect to a Category 1 Request, the
determination by Primary Servicer, exercised in good faith using the "Servicing
Standard" set forth in the Pooling and Servicing Agreement, whether a Category 1
Consent Aspect is material and should be referred to the Special Servicer for
consent in accordance with this Agreement and the Pooling and Servicing
Agreement.
4
"Mortgage Loan": A Mortgage Note (including any Repurchase Note)
secured by a Mortgage, and all amendments and modifications thereof, identified
on the schedule attached to this Agreement as Schedule I, as amended from time
to time, and conveyed, transferred, sold, assigned to or deposited with the
Trustee pursuant to Section 2.1 or Section 2.3 of the Pooling and Servicing
Agreement, and Mortgage Loan shall also include any Defeasance Loan.
"Non-Mandatory Prepayment Date Mortgage Loan": As defined in Section
5.13(a) hereof.
"Officer's Certificate": In the case of the Primary Servicer, a
certificate signed by one or more of the Chairman of the Board, any Vice
Chairman, the President, or any Executive Vice President, Senior Vice President,
Vice President or Assistant Vice President or an employee designated as a
Servicing Officer pursuant to this Agreement.
"Operating Statement Analysis": A report which is one element of the
MBA/CMSA Methodology for Analyzing and Reporting Property Income Statements,
which is part of the CMSA Investor Reporting Package and the form of which is
attached to the Pooling and Servicing Agreement as Exhibit W.
"Payment and Collection Description": The description of the
obligations of the Primary Servicer with respect to collection and remittance of
payments on the Mortgage Loans and the A/B Mortgage Loans, as more particularly
described in Section 2.1(c) hereof.
"Payment and Mortgage Loan Status Reports": The reports to be
submitted by Primary Servicer to the Master Servicer with respect to reporting
about collection and remittance of payments, delinquencies, status of real
estate taxes, status of insurance and status of UCC financing statements for the
Mortgage Loans and with respect to an A/B Mortgage Loan, the holder of the B
Note, if required by the applicable A/B Intercreditor Agreement, as more
particularly described and in the forms attached hereto as Exhibit B-1.
"PCF A/B Mortgage Loans": The FedEx Miami A/B Mortgage Loan, the
Saddle Brook Shopping Center A/B Mortgage Loan and the Tinton Pines Apartments
A/B Mortgage Loan.
"PCF B Notes": The FedEx Miami B Note, the Saddle Brook Shopping
Center B Note and the Tinton Pines Apartments B Note.
"POA Notice": As defined in the Post Closing Matters Description in
Exhibit B-2.
"Pooling and Servicing Agreement": As defined in the preamble to this
Agreement.
"Post Closing Matters Description": The description of the relative
obligations of the Primary Servicer and Master Servicer with respect to requests
from Mortgagors on Mortgage Loans and A/B Mortgage Loans that have not become
Defaulted Mortgage Loans, a Specially Serviced Mortgage Loan or one on which a
Servicing Transfer Event has occurred, which obligations are more particularly
described and set forth on Exhibit B-2.
"Post Closing Request": As defined in the Post Closing Matters
Description in Exhibit B-2.
5
"Primary Servicer Collection Account": An account, which shall be an
Eligible Account, established by Primary Servicer for the purposes set forth in
this Agreement, the income and earnings on which shall inure entirely to the
benefit of Primary Servicer. The Primary Servicer Collection Account shall be
established in the name of "Principal Global Investors, LLC, as Primary Servicer
for Xxxxx Fargo Bank, National Association, as Master Servicer for LaSalle Bank
National Association, as Trustee for the Holders of Bear Xxxxxxx Commercial
Mortgage Securities Inc., Commercial Mortgage Pass-Through Certificates, Series
2005-TOP20."
"Primary Servicer Default": As defined in Section 6.1 hereof.
"Primary Servicer Errors and Omissions Insurance Policy": As defined
in Section 5.5(a) hereof.
"Primary Servicer Fidelity Bond": As defined in Section 5.5(a) hereof.
"Primary Servicer Servicing Documents": (a) a copy of the documents
contained in the Mortgage File for the Mortgage Loans and A/B Mortgage Loans and
(b) all other servicing documents and records in possession of Primary Servicer
that relate to or are used for the servicing of the Mortgage Loans and A/B
Mortgage Loans and that are not required to be part of the applicable Mortgage
File.
"Primary Servicing Fee": For each calendar month, as to each Mortgage
Loan and each B Note, the portion of the Primary Servicing Fee Rate applicable
to such month (determined in the same manner as the applicable Mortgage Rate is
determined for such Mortgage Loan for such month) multiplied by the Scheduled
Principal Balance of such Mortgage Loan (or the Principal Balance in the case of
each B Note) immediately before the Due Date occurring in such month, but
prorated for the number of days during the calendar month for such Mortgage Loan
for which interest actually accrues on such Mortgage Loan and only from
collections on such Mortgage Loan.
"Primary Servicing Fee Rate": A rate of 0.01% per annum with respect
to each Mortgage Loan.
"Primary Servicing Officer": Any officer or employee of the Primary
Servicer involved in, or responsible for, the administration and servicing of
the Mortgage Loans and A/B Mortgage Loans whose name and specimen signature
appear on a list of servicing officers or employees furnished to the Master
Servicer by the Primary Servicer and signed by an officer of the Primary
Servicer, as such list may from time to time be amended.
"Primary Servicing Termination Date": As defined in Section 6.2
hereof.
"Property Inspection Description": The description of the obligations
of the Primary Servicer with respect to inspection of the Mortgaged Properties
for each of the Mortgage Loans and the A/B Mortgage Loans as more particularly
described in Section 2.1(d) hereof and Exhibit B-3.
"Reconciliation Certification Date": As defined in Section 5.15
hereof.
"Requirements List": As defined in the Post Closing Matters
Description in Exhibit B-2.
6
"Saddle Brook Shopping Center A/B Mortgage Loan": The Saddle Brook
Shopping Center Mortgage Loan and the Saddle Brook Shopping Center B Note.
"Saddle Brook Shopping Center B Note": The mortgage loan, which is not
included in the Trust and is subordinated in right of payment to the Saddle
Brook Shopping Center Mortgage Loan to the extent set forth in the related A/B
Intercreditor Agreement.
"Saddle Brook Shopping Center Mortgage Loan": The mortgage loan
designated as Mortgage Loan No. 31 on the Mortgage Loan Schedule.
"Services": Those activities to be provided by the Primary Servicer
for the Servicing of the Mortgage Loans and the A/B Mortgage Loans pursuant to
the provisions of this Agreement.
"Servicing": With respect to any Mortgage Loan and any A/B Mortgage
Loan, the right and obligation of the Primary Servicer to administer such
Mortgage Loan and any A/B Mortgage Loan in accordance with the provisions
hereof.
"Servicing Documents": The Master Servicer Servicing Documents and
Primary Servicer Servicing Documents.
"Servicing Standard": With respect to the Primary Servicer, the
Primary Servicer shall service and administer the Mortgage Loans and the A/B
Mortgage Loans that it is obligated to service and administer pursuant to this
Agreement on behalf of the Master Servicer and in the best interests of and for
the benefit of the Certificateholders and with respect to each B Note, the
holder(s) of each such B Note (as determined by the Primary Servicer in its good
faith and reasonable judgment), in accordance with applicable law, the terms of
this Agreement and the terms of the respective Mortgage Loans and A/B Mortgage
Loans and, to the extent consistent with the foregoing, further as follows:
(a) with the same care, skill and diligence as is normal and usual in
its general mortgage servicing and REO property management activities on behalf
of third parties or on behalf of itself, whichever is higher, with respect to
mortgage loans and REO properties that are comparable to those for which it is
responsible hereunder; and
(b) with a view to the timely collection of all scheduled payments of
principal and interest under the Mortgage Loans and A/B Mortgage Loans;
and without regard to: (I) any other relationship that the Primary
Servicer, or any Affiliate thereof, may have with the related Mortgagor; (II)
the ownership of any Certificate or B Note by the Primary Servicer, or any
Affiliate thereof; (III) the Master Servicer's obligation to make Advances; and
(IV) the right of the Primary Servicer (or any Affiliate thereof) to receive
reimbursement of costs, or the sufficiency of any compensation payable to it,
hereunder or with respect to any particular transaction; provided, however, that
in no event shall the foregoing standards be less than the applicable provisions
of the Servicing Standard set forth in the Pooling and Servicing Agreement and
with respect to an A/B Mortgage Loan, the servicing standards set forth in the
related A/B Intercreditor Agreement.
"Significant Leases": A Lease at a Mortgaged Property covering or
proposed to cover more than the greater of either (a) 20,000 net rentable square
feet or (b) twenty percent (20%) of the net rentable square footage of the
Mortgaged Property.
7
"SNDA": A Subordination, Non-Disturbance and Attornment Agreement with
respect to a Lease on a form customarily used by Primary Servicer with respect
to Mortgaged Properties of similar type and consistent with the Servicing
Standard.
"Special Servicer": ARCap Servicing, Inc. or any successor thereto as
special servicer under the Pooling and Servicing Agreement.
"Successor Primary Servicer": The Person selected by the Master
Servicer upon the termination of the Primary Servicer resulting from any Primary
Servicer Default, if any, who shall thereafter perform the Services with respect
to the Mortgage Loans and the A/B Mortgage Loans; provided, that the Master
Servicer shall perform all Services with respect to the Mortgage Loans and the
A/B Mortgage Loans until such Person, if any, is selected.
"Task Description": The outline description of the obligations of the
Primary Servicer and Master Servicer with respect to the Mortgage Loans and the
A/B Mortgage Loans as set forth in Exhibit B-4 attached to this Agreement.
"Tinton Pines Apartments A/B Mortgage Loan": The Tinton Pines
Apartments Mortgage Loan and the Tinton Pines Apartments B Note.
"Tinton Pines Apartments B Note": The mortgage loan, which is not
included in the Trust and is subordinated in right of payment to the Tinton
Pines Apartments Mortgage Loan to the extent set forth in the related A/B
Intercreditor Agreement.
"Tinton Pines Apartments Mortgage Loan": The mortgage loan designated
as Mortgage Loan No. 164 on the Mortgage Loan Schedule.
"Trustee": LaSalle Bank National Association or any successor thereto
as trustee under the Pooling and Servicing Agreement.
ARTICLE II.
PRIMARY SERVICING
SECTION 2.1 PRIMARY SERVICING From the Closing Date until the Primary
Servicing Termination Date, Master Servicer hereby authorizes and directs
Primary Servicer to service each Mortgage Loan and each A/B Mortgage Loan as
primary servicer on behalf of and at the direction of the Master Servicer as
provided in this Agreement. The Services shall consist of the following:
(a) Primary Servicer shall perform all tasks and responsibilities
necessary to meet the requirements under the Task Description, the Post
Closing Matters Description, the Payment and Collection Description and the
Payment and Mortgage Loan Status Reports, in each case in accordance with
the terms of this Agreement and, with respect to each B Note, the terms of
the related A/B Intercreditor Agreement, and in a manner not inconsistent
with the Pooling and Servicing Agreement. Primary Servicer shall also
perform the obligations to which it has expressly agreed under the Pooling
and Servicing Agreement and the Master Servicer's obligations set forth in
Sections 2.1(c), 2.1(d), that portion of 5.1(g) relating to the Escrow
Status Report, 8.11(i), if applicable, 8.14 relating to Annual Statement
and Rent Roll Reporting with respect to the Mortgage Loans and the A/B
Mortgage Loans and if either Principal or MSMC
8
repurchases its respective Mortgage Note with respect to either of the
Joint Mortgage Loans, Primary Servicer shall service such Repurchased Note
in accordance with Section 8.32 of the Pooling and Servicing Agreement.
(b) Master Servicer and Primary Servicer agree and acknowledge
that the Task Description is a chart that enumerates a list of tasks and
the general allocation of responsibility of servicing obligations between
the Master Servicer and the Primary Servicer for such tasks, and the Post
Closing Matters Description sets forth a specific method for classifying
post closing requests of a Mortgagor and allocating responsibility for
handling such requests based upon such classification. Master Servicer and
Primary Servicer have made efforts to reconcile the Task Description and
Post Closing Matters Description.
(c) Without limiting the foregoing, Primary Servicer shall
collect and remit payments on the Mortgage Loans and the A/B Mortgage Loans
in accordance with the Payment and Collection Description. For the purposes
of this Agreement, the "Payment and Collection Description" shall encompass
all of the following responsibilities and obligations set forth in the
following subsections (i) through (viii) and subsection (xii) and (xiii):
(i) On or prior to the Closing Date, the Primary Servicer shall
establish a Primary Servicer Collection Account, and give the Master
Servicer prior written notice of the name and address of the
depository institution at which such Primary Servicer Collection
Account is maintained and the account number of the Primary Servicer
Collection Account. Primary Servicer may direct the investment of
funds on deposit in the Primary Servicer Collection Account subject to
and in accordance with the criteria and requirements set forth in the
applicable A/B Intercreditor Agreement, as they relate to a particular
B Note and those set forth in the Pooling and Servicing Agreement
relating to the Collection Account established thereunder (construed
as if the Primary Servicer Collection Account were such Collection
Account), including without limitation the obligation, if any, to
deposit into such account the amount of any investment losses to the
extent required in the Pooling and Servicing Agreement and, with
respect to each B Note, the terms of the related A/B Intercreditor
Agreement.
(ii) The Primary Servicer shall make efforts consistent with the
Servicing Standard to collect all monthly payments of principal
(including without limitation Balloon Payments) and interest with
respect to the Mortgage Loans and the A/B Mortgage Loans (except for
payments due on or prior to the Cut-Off Date), as well as any required
Principal Prepayments, Prepayment Premiums, late charges, Insurance
Proceeds, Condemnation Proceeds and any and all other amounts due from
the Mortgagor or a third party with respect to the Mortgage Loans
pursuant to the Loan Documents; provided, however, that with respect
to any payments that are required under the terms of the applicable
loan documents to be made directly to a Person other than the holder
of the related Mortgage Loan, the Primary Servicer shall use efforts
consistent with the Servicing Standard to cause such payments to be
made.
(iii) The Primary Servicer shall deposit all such payments
received with respect to each A/B Mortgage Loan and each Mortgage Loan
(less any related Aggregate Servicing Fee and any other payments due
to Primary Servicer under this Agreement with respect to such Mortgage
Loan) into the Primary Servicer Collection Account on or
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before the next Business Day after receiving each such payment. With
respect to funds deposited into the Primary Servicer Collection
Account for each A/B Mortgage Loan, on or before the end of the third
Business Day after the Primary Servicer receives such funds the
Primary Servicer shall determine, in accordance with the provisions of
the applicable A/B Intercreditor Agreement, the amount (if any) of
such funds required to be paid to the holder of the related B Note
(less any primary servicing fee or other fee, if any, agreed to be
paid by the holder of such B Note to the Primary Servicer pursuant to
the applicable A/B Intercreditor Agreement or other agreement between
the Primary Servicer and such B Note holder, together with any other
payments related to such B Note, which are payable to the Primary
Servicer). Such amounts shall be paid to each holder of a B Note, at
the times and in the manner required pursuant to the provisions of the
applicable A/B Intercreditor Agreement. Notwithstanding anything to
the contrary contained herein, if either Principal or MSMC repurchases
its Mortgage Note with respect to either Joint Mortgage Loan and such
Repurchased Note is treated as a Serviced Companion Mortgage Loan
pursuant to Section 8.32 of the Pooling and Servicing Agreement, in no
event shall Primary Servicer be obligated to establish a Serviced
Companion Mortgage Loan Custodial Account with respect to such
Repurchased Note.
(iv) Subject to the previous subsection, and after making the
determination of the amount required to be paid to the holder of the B
Note, the Primary Servicer shall remit to the Master Servicer from the
Primary Servicer Collection Account, by wire transfer of immediately
available funds, all funds in such account (other than income and
earnings on such account), and shall not withdraw funds therefrom for
any other purpose, except to withdraw amounts required to be paid to
the holder of the B Note and any other amounts deposited therein by
error, as follows: (1) in the case of any payments received and
collected during a Collection Period on or before the Determination
Date for such Collection Period, Primary Servicer shall remit such
payments on such Determination Date; and (2) in the case of any
payments received and collected by Primary Servicer after the
Determination Date for such Collection Period, Primary Servicer shall
remit all such payments on the first Business Day following receipt of
the amount of any such payments; provided, however, that
notwithstanding any contrary provision of clause (1) or clause (2) all
of the following provisions shall apply:
(1) in the case of any payment received on a Determination
Date for a Collection Period, Primary Servicer shall (i) provide
Master Servicer with immediate notice of Primary Servicer's
receipt of such payment and (ii) shall use its reasonable best
efforts to remit such payment to Master Servicer on the date of
receipt and in any event shall remit such payment to Master
Servicer within one Business Day following receipt (and Primary
Servicer shall in any event provide Master Servicer with
immediate notice of Primary Servicer becoming aware that any
Principal Prepayment is to be made on a Determination Date);
(2) any Scheduled Payment due during a Collection Period but
received after the end of such Collection Period shall be
remitted by Primary Servicer within one Business Day following
Primary Servicer's receipt of such Scheduled Payment;
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(3) Primary Servicer shall use its reasonable best efforts
to remit to Master Servicer on the date of receipt of, and in any
event shall remit to Master Servicer within one Business Day
following receipt of, any unscheduled payments or Balloon
Payments that would result in a Prepayment Interest Shortfall;
and
(4) any Scheduled Payment received and collected during a
Collection Period, but due on a Due Date occurring after the end
of such Collection Period, shall be remitted on the Determination
Date for the Collection Period in which such Due Date occurs.
(v) In the event any payments received by Primary Servicer
becomes NSF after the monies associated with that payment have been
remitted to the Master Servicer, the Master Servicer will return such
moneys to Primary Servicer by wire transfer in immediately available
funds within one Business Day of notice from the Primary Servicer.
(vi) With respect to escrow or reserve payments as listed on the
Task Description, the Primary Servicer shall collect escrow or reserve
amounts with respect to the Mortgage Loans and A/B Mortgage Loans, and
shall deposit such funds in an escrow account, which shall be an
Eligible Account, and shall maintain, disburse and account for such
funds as provided in the Task Description, for real estate taxes,
insurance and reserves, and escrows for repairs, replacements,
principal and interest payments and lease payments and any other
matters specified in any agreement in which funds are held at the
time, and in the manner and for the purposes as otherwise required or
delineated in the Loan Documents and with respect to the Master
Servicer under the Pooling and Servicing Agreement. The Primary
Servicer may direct the investment of such funds subject to and in
accordance with the criteria and requirements set forth in the Pooling
and Servicing Agreement relating to Escrow Accounts, including without
limitation the obligation to deposit into the Escrow Account the
amount of any investment losses to the extent required in the Pooling
and Servicing Agreement. Primary Servicer shall have the benefit and
shall retain all interest and income earned on the Escrow Accounts for
the Mortgage Loans and A/B Mortgage Loans that is not paid to
Mortgagors.
(vii) Primary Servicer shall submit the following Payment and
Mortgage Loan Status Reports, in each case, in the form attached as
Exhibit B-1 and at the time specified in the succeeding sentences of
this sub-section (vii): (1) a remittance report for payments received
on Mortgage Loans and A/B Mortgage Loans; (2) a delinquency report;
(3) a real estate tax delinquency report which may be based upon
information provided by Primary Servicer's real estate tax service (if
any) if engaged in accordance with Article VII of this Agreement; (4)
an insurance monitoring report; (5) a UCC form monitoring report; and
(6) the Day One Report. Primary Servicer shall submit the Payment and
Mortgage Loan Status Report described by clause (1) above by
electronic mail on each day that payments or funds are remitted to the
Master Servicer pursuant to Section 2.1(c) of this Agreement. Primary
Servicer shall submit the Payment and Mortgage Loan Status Report
described by clause (2) above by electronic mail, monthly no later
than the tenth (10th) day of each month for the previous month.
Primary Servicer shall submit the Payment and Mortgage Loan Status
Reports described by clauses (3), (4) and (5) above
11
by electronic mail, quarterly no later than January 15, April 15, July
15 and October 15 for the previous above quarter. Primary Servicer
shall submit the Payment and Mortgage Loan Status Report described by
clause (6) above by electronic mail, monthly no later than the first
(1st) day of each month in which the applicable Distribution Date
occurs for the then current Collection Period. If the day on which any
Payment and Mortgage Loan Status Report is otherwise due as described
above does not constitute a Business Day, then such report shall be
due on the immediately succeeding Business Day.
(viii) Master Servicer and Primary Servicer hereby allocate
responsibility for completing the CMSA Investor Reporting Package for
the Mortgage Loans and the A/B Mortgage Loans as follows:
(1) Master Servicer shall complete all fields and aspects of
the CMSA Loan Setup File that are available from the Final
Prospectus Supplement. Upon completing all of such fields, Master
Servicer shall forward the CMSA Loan Setup File for the Mortgage
Loans and the A/B Mortgage Loans to Primary Servicer who shall
complete the fields and aspects of the CMSA Loan Setup File for
the Mortgage Loans and the A/B Mortgage Loans that are not
available from the Final Prospectus Supplement and return to
Master Servicer the completed CMSA Loan Setup File for the
Mortgage Loans and the A/B Mortgage Loans within five (5)
Business Days of receiving such file from Master Servicer. Master
Servicer shall deliver a CMSA Loan Setup File to Primary Servicer
(a) for the Mortgage Loans and the A/B Mortgage Loans only; (b)
in electronic form; (c) using an Excel file; and (d) with all
fields in the same order as the CMSA Loan Setup File. Primary
Servicer and Master Servicer acknowledge that delivery of the
CMSA Loan Setup File is to commence with the Report Date in
November 2005.
(2) Commencing in the applicable "Month of Initial Report"
set forth opposite each report described below, the Primary
Servicer shall complete such report at the frequency set forth
opposite such report below and deliver such report to the Master
Servicer at or before the time described opposite such report
below (and with respect to an A/B Mortgage Loan, deliver any
additional reports to the holder of the related B Note which may
be required to be delivered to the holder of such B Note, at such
times as may be required pursuant to the applicable A/B
Intercreditor Agreement):
12
-------------------------------------------------------------------------------------------------------
Description of Month of Frequency Time of Required
Report Initial of Delivery to the
Report Report Master Servicer
-------------------------------------------------------------------------------------------------------
CMSA Property December 2005 Monthly 10th Business Day for prior month but in no
File event later than the Business Day prior to the
Report Date in such month.
-------------------------------------------------------------------------------------------------------
Operating June 2006 for year- Annually With respect to each calendar year, beginning
Statement end 2005 in 2006 for year-end 2005, the earlier of (i) 30
Analysis Report, days after receipt of the underlying operating
CMSA Financial statements from the borrower or (ii) June 1.
File and NOI
Adjustment
Worksheet
-------------------------------------------------------------------------------------------------------
CMSA Loan December 2005 Monthly 10th Business Day for prior month but in no
Level event later than the Business Day prior to the
Reserve/LOC Report Date in such month.
Report
-------------------------------------------------------------------------------------------------------
CMSA Servicer December 2005 Monthly 10th Business Day for prior month but in no
Watch List event later than the Business Day prior to the
Report Date in such month.
-------------------------------------------------------------------------------------------------------
CMSA December 2005 Monthly 10th Business Day for prior month but in no
Comparative event later than the Business Day prior to the
Financial Status Report Date in such month
Report
-------------------------------------------------------------------------------------------------------
Quarterly December 2005 Quarterly, With respect to a calendar quarter, within 95
Operating but with days following the end of such calendar
Statement respect to quarter.
Analysis Report only the
and CMSA first three
Quarterly calendar
Financial File quarters in
each year
-------------------------------------------------------------------------------------------------------
(3) The Master Servicer shall have the responsibility to
complete and deliver the following reports in accordance with the
Pooling and Servicing Agreement: CMSA Loan Setup File, CMSA Loan
Periodic Update File; CMSA Delinquent Loan Status Report; CMSA
REO Status Report; CMSA Historical Loan Modification Report and
CMSA Historical Liquidation Report.
(4) Notwithstanding the foregoing: (a) Primary Servicer
shall reasonably cooperate to provide to Master Servicer specific
information or data in Primary Servicer's possession and
necessary to complete a report for which Master Servicer is
responsible, upon the written request of Master Servicer; and (b)
the Master Servicer shall reasonably cooperate to provide to the
Primary Servicer specific information or data in the Master
Servicer's possession, as may be requested in writing by the
Primary Servicer, to enable the Primary Servicer to prepare and
deliver to each holder of a B Note any reports or notices
required to
13
be delivered to each such holder of a B Note, pursuant to the
provisions of the applicable A/B Intercreditor Agreement.
(5) Notwithstanding the definitions of various CMSA reports
in this Agreement that directly link such reports to a form
attached as part of Exhibit W and Exhibit X to the Pooling and
Servicing Agreement, Master Servicer shall be entitled to amend
the forms of such reports that Primary Servicer must deliver
under this Agreement, provided that (a) the Commercial Mortgage
Securities Association has amended the applicable reports and
published such amendments as its revised form on its website; (b)
Master Servicer gives Primary Servicer no less than one hundred
twenty (120) days notice of any required amendments or revisions
to a report prior to their becoming effective as the form of
report to deliver under this Agreement; and (c) any such
amendments or revisions (either singly or in the aggregate) shall
not impose undue additional burden or costs upon Primary Servicer
to collect, format, calculate or report information to Master
Servicer.
(6) All Operating Statement Analysis Reports, NOI Adjustment
Worksheets, financial statements, rent rolls, and budgets
delivered by the Primary Servicer to the Master Servicer pursuant
hereto on or after January 1, 2006 shall be labeled according to
the ARCap Naming Convention for Electronic File Delivery.
(ix) Master Servicer and Primary Servicer have made efforts to
reconcile the Task Description, the Payment and Collection Description
and Payment and Mortgage Loan Status Reports. In the event of any
conflict between (1) the Task Description and (2) the Payment and
Collection Description and Payment and Mortgage Loan Status Reports,
then the Payment and Collection Description and Payment and Mortgage
Loan Status Reports shall govern.
(x) The Primary Servicer shall be responsible for the calculation
of any and all Prepayment Premiums payable under each Mortgage Loan
and each A/B Mortgage Loan.
(xi) Within thirty (30) days following the Closing Date, Primary
Servicer shall deliver to Master Servicer a report listing the tax
parcels coinciding with the Mortgaged Properties.
(xii) All amounts collected by the Primary Servicer during a
Collection Period with respect to the A/B Mortgage Loan (it being
acknowledged that the only A/B Mortgage Loans are the PCF Mortgage
Loans and the PCF B Notes), which are payable to the holder of the
applicable B Note pursuant to the provisions of the applicable
Intercreditor Agreement, shall be paid by the Primary Servicer to such
B Note holder no later than three Business Days after collection of
such funds. In the event that the Primary Servicer determines (in its
sole discretion) that in order to confirm the amount to be disbursed
to a B Note holder pursuant to the provisions of the A/B Intercreditor
Agreement, the Primary Servicer requires information from the Master
Servicer, the Primary Servicer shall have the right, within three
Business Days after collection of the funds at issue, to deliver to
the Master Servicer a written request for such information.
14
The Master Servicer shall provide the information requested, to the
extent that such information is in the possession of the Master
Servicer or involves a calculation to be made by the Master Servicer
on the basis of information in the possession of the Master Servicer,
no later than three Business Days after the Master Servicer receives
the Primary Servicer's written request, and the Primary Servicer shall
make the disbursement at issue to the B Note holder no later than
three Business Days after it receives the information from the Master
Servicer needed to confirm the disbursement at issue. In the event
that the Master Servicer determines (in its sole discretion) that it
is necessary or desirable to direct the Primary Servicer as to how to
allocate amounts collected for an A/B Mortgage Loan between the
holders of the related Mortgage Loan and its related B Note, the
Master Servicer shall have the right, no later than the end of the
second Business Day after each of the A/B Mortgage Loan's scheduled
monthly payment dates, to deliver a written direction notice to the
Primary Servicer. The Primary Servicer shall comply with the Master
Servicer's directions, absent a disagreement (which shall be promptly
communicated in writing to the Master Servicer) and addressed by the
Master Servicer and the Primary Servicer within the time frames set
forth in this Section 2.1(c)(xii). If there is any disagreement
between the Master Servicer and the Primary Servicer with respect to
the allocation of funds on the A/B Mortgage Loan, then the Master
Servicer and the Primary Servicer shall consult with each other in
good faith but the determination of the Master Servicer shall control
and no consultation shall extend in duration beyond the date
reasonably necessary for allocations, remittances and reporting to be
timely made to the holders of the A Note and B Note. In the event that
collection responsibilities for an A/B Mortgage Loan are transferred
from the Primary Servicer to the Master Servicer or Special Servicer
pursuant to the applicable provisions of this Agreement or the Pooling
and Servicing Agreement, all amounts that are collected by the Master
Servicer or the Special Servicer, as applicable, during a Collection
Period with respect to such A/B Mortgage Loan and are payable to the
holder of the applicable B Note pursuant to the provisions of the
related A/B Intercreditor Agreement shall be remitted by the Master
Servicer to such B Note holder no later than three Business Days after
the collection of such funds, notwithstanding any provision of the
applicable A/B Intercreditor Agreement that may provide the Servicer
with a longer period of time to remit such collected funds to the B
Note holder (except that if the related Mortgaged Property has become
an REO Property, then the funds on deposit in the related REO Account
related to such REO Property shall be remitted to the Master Servicer
by the Special Servicer as and to the extent otherwise provided in
Section 9.14(b) of the Pooling and Servicing Agreement and then, to
the extent remittable to the holder of the applicable B Note, shall be
so remitted on the next succeeding Master Servicer Remittance Date).
(xiii) Notwithstanding anything to the contrary contained herein,
if Principal repurchases its Mortgage Note with respect to either of
the Joint Mortgage Loans, Primary Servicer shall promptly remit all
such payments received with respect to such Repurchased Note (less any
amounts due to Primary Servicer under this Agreement with respect to
such Repurchase Note) to Principal as Repurchasing Seller.
(d) Commencing in the year 2006, Primary Servicer shall inspect,
or cause to be inspected, each of the Mortgaged Properties for the Mortgage
Loans and the A/B Mortgage Loans in accordance with Section 8.17 of the
Pooling and Servicing Agreement and, promptly upon completion of such
inspection, shall deliver to Master Servicer and with respect to an A/B
15
Mortgage Loan, to the holder of the related B Note, if required by the
applicable A/B Intercreditor Agreement, a property inspection report in the
form attached as Exhibit B-3 ("Property Inspection Description"). Each
property inspection report delivered by the Primary Servicer shall be
imaged with the ARCap Naming Convention for Electronic File Delivery.
Master Servicer and Primary Servicer have made efforts to
reconcile the Task Description and the Property Inspection Description. In
the event of any conflict between (1) the Task Description and (2) the
Property Inspection Description, then the Property Inspection Description
shall govern.
(e) Primary Servicer shall promptly notify the Master Servicer of
any significant events affecting any one or more of the Mortgage Loans and
A/B Mortgage Loans, the related Mortgagors or the related Mortgaged
Properties which become known to Primary Servicer or of which the Primary
Servicer receives notice, such as a payment default, a bankruptcy, a
judicial lien or casualty or condemnation event, and the Primary Servicer
shall also promptly advise the Master Servicer of all material collection
and customer service issues and, promptly following any request therefor by
the Master Servicer, shall furnish to the Master Servicer with copies of
any correspondence or other documents in the possession of the Primary
Servicer related to any such matter. The Primary Servicer shall use
reasonable efforts to promptly notify the Master Servicer as soon as the
Primary Servicer (exercising good faith and reasonable judgment in
accordance with the Servicing Standard) becomes aware that any Servicing
Advance will be required (or may reasonably be expected to be required) to
be made with respect to any Mortgage Loan or any A/B Mortgage Loan under
the standards imposed on the Master Servicer by the Pooling and Servicing
Agreement.
(f) Within 30 days following the Closing Date, Primary Servicer
shall deliver to Master Servicer for each of its Mortgage Loans and A/B
Mortgage Loans to be included in the Escrow Status Report, the deadline or
expiration date contained in the applicable escrow or reserve agreement for
completing the specific immediate engineering work, completion of
additional construction, environmental remediation or similar one-time
projects for which such Mortgage Loan or A/B Mortgage Loan is to appear in
the Escrow Status Report.
(g) In addition, the Primary Servicer shall deliver or cause to
be delivered to Master Servicer any and all information as may reasonably
be necessary for the Master Servicer to perform its obligations under
Section 8.3(i) of the Pooling and Servicing Agreement (to the extent
related to the Mortgage Loans and/or A/B Mortgage Loans); provided,
however, that in the event that the Primary Servicer has sent a notice to a
ground lessor as contemplated by such Section 8.3(i) of the Pooling and
Servicing Agreement, the delivery to the Master Servicer of a copy of such
notice shall satisfy the Primary Servicer's obligation under this section
with respect to such ground lease.
(h) Primary Servicer shall perform all other obligations of the
Primary Servicer as set forth herein.
Primary Servicer and the Master Servicer agree that, in connection
with the performance of its obligations hereunder, the Primary Servicer shall be
entitled to request from the Master Servicer, and the Master Servicer agrees
that it shall provide, express instructions for the completion of any of the
Services to be performed or completed by the Primary Servicer, to the extent
necessary to clarify any
16
ambiguities in the terms of this Agreement. The Master Servicer further agrees
that the Primary Servicer shall be entitled to rely upon any such written
instructions. The Primary Servicer and the Master Servicer, respectively, shall
perform all of their respective obligations as allocated and set forth in this
Agreement, and it is understood that the Primary Servicer shall have no
obligations with respect to the primary servicing of the Mortgage Loans and the
A/B Mortgage Loans, except as specifically set forth in this Agreement.
SECTION 2.2 STANDARD OF CARE The Primary Servicer shall perform all
Services on behalf of the Master Servicer in accordance with the terms of this
Agreement and the Servicing Standard and in a manner consistent with the
applicable provisions of the Pooling and Servicing Agreement and with respect to
an A/B Mortgage Loan, the applicable provisions of the related A/B Intercreditor
Agreement.
SECTION 2.3 COMPENSATION AND OTHER PAYMENTS TO THE PRIMARY SERVICER As
consideration for the Primary Servicer's performance of the Services hereunder:
(a), the Primary Servicer shall be entitled to deduct the Aggregate Servicing
Fee in accordance with Section 2.1(c)(iii) of this Agreement, with respect to
the related Collection Period for each Mortgage Loan for which a payment was
received by the Master Servicer or forwarded to the Master Servicer by the
Primary Servicer; and (b) with respect to each A/B Mortgage Loan, the Primary
Servicer shall be entitled to deduct any Primary Servicing Fee or other fee
payable to the Primary Servicer as may be agreed to by the holder of the related
B Note, from each payment received by the Primary Servicer and which is
allocable to such holder of the related B Note, all in accordance with the
provisions of Section 2.1 of this Agreement. Notwithstanding the foregoing,
Primary Servicer shall not be entitled to a Primary Servicing Fee with respect
to any Mortgage Loan (other than an A/B Mortgage Loan) for which a Servicing
Transfer Event has occurred (unless such Mortgage Loan becomes a Rehabilitated
Mortgage Loan) or with respect to which the Primary Servicer has been terminated
as Primary Servicer under this Agreement and the Pooling and Servicing
Agreement.
Primary Servicer shall retain all rights to the Excess Servicing Fee
for all Mortgage Loans, even if (a) any Mortgage Loan or Mortgage Loans become
Specially Serviced Mortgage Loans; (b) Primary Servicer's servicing is
terminated with respect to particular Mortgage Loans or (c) Primary Servicer is
in default, is terminated or resigns under this Agreement. If Primary Servicer
is unable to deduct the Excess Servicing Fee in accordance with Section
2.1(c)(iii) because it no longer services a Mortgage Loan or Mortgage Loans or
for any other reason (other than transfer or assignment of the rights to the
Excess Servicing Fee), then Master Servicer (and any successor) shall cause the
Excess Servicing Fee to be paid on the Mortgage Loans to Primary Servicer
monthly in accordance with the terms of the Pooling and Servicing Agreement.
Primary Servicer shall have the benefit and shall retain all interest
and income earned on the Primary Servicer Collection Account for the Mortgage
Loans and the A/B Mortgage Loans. If Primary Servicer is terminated under this
Agreement, it shall be entitled to collect all such interest and income that
accrues through the date of termination. If a Mortgage Loan or an A/B Mortgage
Loan becomes a Specially Serviced Mortgage Loan, Primary Servicer shall be
entitled to collect all such interest and income that accrues through the date
of the applicable Servicing Transfer Event. The right to retain such interest
and income shall resume if such Mortgage Loan or an A/B Mortgage Loan becomes a
Rehabilitated Mortgage Loan.
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The Primary Servicer shall also be entitled to retain the fees or
portions of fees set forth in the Post Closing Matters Description. Except as
specifically provided in this Agreement, the Primary Servicer shall not be
entitled to receive any default interest or late fees collected from the
Borrower, and the Primary Servicer shall promptly, upon collection of such
amounts, forward such interest and fees to the Master Servicer in accordance
with the Payment and Collection Description. Primary Servicer may waive the
right to collect a fee or portion of a fee to which it is entitled under this
Agreement but may not waive or otherwise affect the rights of other parties to
any other fees or portions of fees to which Primary Servicer is not entitled.
The Primary Servicer shall be required to pay out of its own funds,
without reimbursement, all overhead and general and administrative expenses
incurred by it in connection with its servicing activities hereunder, including
costs for office space, office equipment, supplies and related expenses,
employee salaries and related expenses and similar internal costs and expenses,
and Primary Servicer shall be required to pay all expenses that it incurs in the
administration of this Agreement (but not those incurred at the direction or
request of Master Servicer or a third party which direction or request requires
the performance of a task or obligation not contemplated of Primary Servicer
under this Agreement) and shall not be entitled to reimbursement of such costs
and expenses, except (1) as may be specifically provided in this Agreement or
(2) to the extent expenses are reimbursable by a Mortgagor under the applicable
Loan Documents and the Mortgagor makes such reimbursement.
SECTION 2.4 PRIMARY SERVICER REPRESENTATIONS AND WARRANTIES The
Primary Servicer hereby makes for the benefit of the Master Servicer the same
representations and warranties as are made by the Master Servicer under Section
8.20 of the Pooling and Servicing Agreement; provided, however, that (a)
references therein to the Master Servicer shall be deemed references to the
Primary Servicer and references to the Trustee shall be deemed references to the
Master Servicer and (b) in lieu of the representation described in the first
clause of Section 8.20(a)(i) of the Pooling and Servicing Agreement, the Primary
Servicer represents that the Primary Servicer is duly organized, validly
existing and in good standing as a corporation under the laws of the
jurisdiction of its organization. Primary Servicer further represents that since
origination of each Mortgage Loan and A/B Mortgage Loan, Primary Servicer has
serviced each of the Mortgage Loans and A/B Mortgage Loans in accordance with
its terms.
ARTICLE III.
DOCUMENTS AND OTHER MATTERS
SECTION 3.1 SEGREGATION OF MORTGAGE LOAN DOCUMENTS The Primary
Servicer shall segregate the Primary Servicer Servicing Documents related to the
Mortgage Loans and the A/B Mortgage Loans from all other assets of the Primary
Servicer and, upon request, forward to the Master Servicer copies of such
documents or originals of such documents if in the possession of Primary
Servicer and not part of the Mortgage File forwarded to the Trustee. The Primary
Servicer acknowledges that any letter of credit held by it shall be held in its
capacity as agent of the Trust, and if the Primary Servicer sells its rights to
service the applicable Mortgage Loan or A/B Mortgage Loan, the Primary Servicer
shall assign the applicable letter of credit to the Trust or at the direction of
the Special Servicer to such party as the Special Servicer may instruct, and the
Primary Servicer shall indemnify the Trust for any loss caused by the
ineffectiveness of such assignment
SECTION 3.2 ACCESS TO DOCUMENTS; PROVISION OF CERTAIN INFORMATION The
Primary Servicer shall make available to the Master Servicer or any Successor
Primary Servicer, at a reasonable
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time, such information as the Master Servicer or such Successor Primary Servicer
shall reasonably request in writing and shall make available to the Master
Servicer or any Successor Primary Servicer or Persons designated by the Master
Servicer or such Successor Primary Servicer such documents as the Master
Servicer shall reasonably request in writing. The Master Servicer shall make
available to the Primary Servicer, at a reasonable time, such information as the
Primary Servicer shall reasonably request in writing in connection with the
performance of the Services and, subject to the terms and conditions of Section
8.15 of the Pooling and Servicing Agreement, shall make available to the Primary
Servicer or Persons designated by the Primary Servicer such documents related to
the Mortgage Loan and the A/B Mortgage Loans and the Servicing of the Mortgage
Loans and the A/B Mortgage Loans as the Primary Servicer shall reasonably
request in writing.
ARTICLE IV.
MASTER SERVICER ASSISTANCE
SECTION 4.1 MASTER SERVICER ASSISTANCE
(a) The Master Servicer shall make reasonable efforts to do any and
all things reasonably requested by the Primary Servicer to enable the Primary
Servicer to render the Services, including, without limitation, delivering to
the Trustee any receipts or other documentation that the Trustee may require to
allow it to release any Mortgage Files or documents contained therein or
acquired in respect thereof requested by the Primary Servicer. Notwithstanding
any other provision of this Agreement to the contrary and any other
notwithstanding provisions in this Agreement (including any contrary provision
of Exhibit B-2), the Primary Servicer shall do any and all things reasonably
requested by the Master Servicer to enable the Master Servicer to comply with
its obligations under the Pooling and Servicing Agreement. Before the Master
Servicer releases all or any portion of any Mortgage File or document contained
therein or acquired in respect thereof to the Primary Servicer, the Master
Servicer may require the Primary Servicer to execute a receipt therefor or, in
the event of a Mortgage Loan or an A/B Mortgage Loan that has been repaid in
full, a certificate with respect to the payment in full of the related Mortgage
Loan or A/B Mortgage Loan.
(b) If required in connection with the provision of the Services, the
Master Servicer shall furnish, or cause to be furnished, to the Primary
Servicer, upon request, any powers of attorney of the Master Servicer or the
Trustee, empowering the Primary Servicer to take such actions as it determines
to be reasonably necessary to comply with its Servicing duties hereunder or to
enable the Primary Servicer to service and administer such Mortgage Loans and
A/B Mortgage Loans and carry out its duties hereunder, in each case in
accordance with the Servicing Standard and the terms of this Agreement. The
Primary Servicer hereby agrees to indemnify the Master Servicer and the Trustee
from any loss, damage, expense or claim relating to misuse or wrongful use of
any such power of attorney.
SECTION 4.2 SPECIALLY SERVICED MORTGAGE LOANS The Primary Servicer
shall promptly notify the Master Servicer and Special Servicer with respect to
Specially Serviced Mortgage Loans of any questions, complaints, legal notices,
or other communications relating to the foreclosure or default of such loans or
bankruptcy proceedings of a Mortgagor that are received by the Primary Servicer
and with respect to such Mortgage Loan or A/B Mortgage Loan such other matters
as would, consistent with the Servicing Standard, require notification to the
owner or the servicer of the Mortgage Loan or A/B Mortgage Loan. The Master
Servicer shall notify the Primary Servicer of any Specially Serviced Mortgage
Loan becoming a Rehabilitated Mortgage Loan promptly following the Master
Servicer's receipt of notice to such effect from the Special Servicer and shall
provide Primary Servicer with all
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relevant documents received during the time that the relevant Mortgage Loan or
A/B Mortgage Loan was a Specially Serviced Mortgage Loan following the Master
Servicer's receipt of such documents from the Special Servicer. Upon the request
of Primary Servicer, Master Servicer shall request from the Special Servicer all
such relevant documents with respect to a Rehabilitated Mortgage Loan.
Notwithstanding anything contained herein to the contrary, the Primary Servicer
shall not without the Trustee's written consent: (i) initiate any action, suit
or proceeding solely under the Trustee's name without indicating the Primary
Servicer's representative capacity, or (ii) knowingly take any action that
causes the Trustee to be registered to do business in any state, provided,
however, that the preceding clause (i) shall not apply to the initiation of
actions relating to a Mortgage Loan that the Primary Servicer is servicing
pursuant to its duties herein (in which case the Primary Servicer shall give
three (3) Business Days prior notice to the Trustee of the initiation of such
action).
ARTICLE V.
ADDITIONAL PRIMARY SERVICER COVENANTS
SECTION 5.1 NOTICE OF LITIGATION With respect to any Mortgage Loan or
A/B Mortgage Loan as to which litigation is instituted, the Primary Servicer, if
aware of such litigation, shall notify the Master Servicer immediately as to the
status of the litigation related to such Mortgage Loan or A/B Mortgage Loan and
shall, when reasonably required or requested by the Master Servicer, provide to
the Master Servicer copies of all pertinent information in the Primary
Servicer's possession related to such litigation, including, without limitation,
copies of related Servicing Documents.
SECTION 5.2 NO PERSONAL SOLICITATION The Primary Servicer hereby
agrees that it will not knowingly take any action or cause any action to be
taken by any of its agents or Affiliates, or independent contractors or working
on its behalf, to personally, by telephone or mail, solicit the prepayment of
any Mortgage Loan or A/B Mortgage Loan by any Mortgagor. Primary Servicer agrees
not to forward to any Mortgagor or other obligors under a Mortgage Loan or A/B
Mortgage Loan, any correspondence or documents between Master Servicer and
Primary Servicer regarding a Post Closing Request (except the Requirements List
(as defined in Exhibit B-2(c)) without the consent of the Master Servicer or
Special Servicer (acting in its sole discretion), unless required by law.
SECTION 5.3 ANNUAL OFFICER'S CERTIFICATE AS TO COMPLIANCE The Primary
Servicer shall deliver to the Master Servicer on or before noon (Eastern Time)
on March 15 of each year (or March 14 if a leap year), commencing with March 15,
2006, an Officer's Certificate of a Primary Servicing Officer certifying that,
with respect to the period ending on the preceding December 31, (i) such Primary
Servicing Officer has reviewed the activities of the Primary Servicer during the
preceding calendar year or portion thereof and its performance under this
Agreement has been made under such officer's supervision and (ii) to the best of
such Primary Servicing Officer's knowledge, based on such review, the Primary
Servicer has performed and fulfilled its duties, responsibilities and
obligations under this Agreement in all material respects throughout such year,
or, if there has been a default in the fulfillment of any such duties,
responsibilities or obligations, specifying each such default known to such
Primary Servicing Officer and the nature and status thereof.
SECTION 5.4 ANNUAL INDEPENDENT ACCOUNTANTS' SERVICING REPORT On or
before noon (Eastern Time) on March 15 of each year (or March 14 if a leap
year), commencing with March 15, 2006, the Primary Servicer at its own expense
shall cause a firm of independent public accountants (who may also render other
services to the Primary Servicer) which is a member of the American Institute of
Certified Public Accountants to furnish a statement to the Master Servicer to
the effect that such firm has
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examined certain records and documents relating to the Primary Servicer's
performance of its servicing obligations under this Agreement in accordance with
the requirements of the Uniform Single Attestation Program for Mortgage Bankers,
and in each case stating such firm's conclusions relating thereto.
SECTION 5.5 FIDELITY BOND AND ERRORS AND OMISSIONS INSURANCE POLICY
The Primary Servicer, at its own expense, shall maintain in effect a fidelity
bond (the "Primary Servicer Fidelity Bond") and an errors and omissions policy
(the "Primary Servicer Errors and Omissions Insurance Policy") with a Qualified
Insurer, naming the Master Servicer as loss payee, affording coverage for all
directors, officers and employees. The Primary Servicer Errors and Omissions
Insurance Policy and Primary Servicer Fidelity Bond shall be in such form and
amount that would satisfy the same requirements for such policies as the Master
Servicer must satisfy as set forth in Section 8.2 of the Pooling and Servicing
Agreement. Notwithstanding any other provisions of this Agreement, the Primary
Servicer shall be permitted to self-insure with respect to its obligations to
maintain the Primary Servicer Fidelity Bond and a Primary Servicer Errors and
Omissions Policy to the extent the Master Servicer is permitted under Section
8.2 of the Pooling and Servicing Agreement (construed as if the references
therein to the Master Servicer were instead references to the Primary Servicer).
The Primary Servicer shall furnish to the Master Servicer, not later than thirty
(30) days after the Closing Date, evidence of the Primary Servicer's compliance
with this Section 5.5(a).
(b) The Primary Servicer shall promptly report in writing to the
Master Servicer any material adverse changes that may occur in the Primary
Servicer Fidelity Bond or the Primary Servicer Errors and Omissions Insurance
Policy and shall furnish to the Master Servicer upon written request copies of
all binders and policies or certificates evidencing that such bond and insurance
policy are in full force and effect. The Primary Servicer shall promptly report
in writing to the Master Servicer all cases of embezzlement or fraud or
irregularities of operation relating to the servicing of the Mortgage Loans and
of the A/B Mortgage Loan by the Primary Servicer and its employees, officers,
directors, agents and representatives if such events involve funds relating to
the Mortgage Loans and the A/B Mortgage Loan. The total of such losses,
regardless of whether claims are filed with the applicable insurer or surety,
shall be disclosed in such reports together with the amount of such losses
covered by insurance. If a bond or insurance claim report is filed with any of
the Primary Servicer's bonding companies or insurers relating to the Mortgage
Loans or the A/B Mortgage Loans or the servicing thereof, a copy of such report
(which report may omit any references to individuals suspected of such
embezzlement, fraud or irregularities of operation) shall be promptly furnished
to the Master Servicer.
SECTION 5.6 PRIMARY SERVICER'S FINANCIAL STATEMENTS AND RELATED
INFORMATION The Primary Servicer shall deliver to the Master Servicer, within
120 days after the end of its fiscal year, a copy of its annual financial
statements, such financial statements to be audited if then customarily audited,
and with respect to any unaudited financial statements provided by the Primary
Servicer, which financial statements shall be certified by the Primary
Servicer's chief financial officer to be true, correct and complete. The Primary
Servicer shall notify the Master Servicer, as of the Closing Date, of the
Primary Servicer's fiscal year and shall notify the Master Servicer promptly
after any change thereof.
SECTION 5.7 NO ADVANCING Under no circumstance shall the Primary
Servicer make or have an obligation to make any Advances.
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SECTION 5.8 REMIC COMPLIANCE The Primary Servicer shall comply with
all of the obligations otherwise imposed on the Master Servicer under Article
XII of the Pooling and Servicing Agreement insofar as such obligations relate to
the Mortgage Loans and/or the A/B Mortgage Loans.
SECTION 5.9 INSPECTION RIGHTS The Primary Servicer shall afford the
Master Servicer and the Trustee, upon reasonable notice and during normal
business hours, reasonable access to all records, information, books and
documentation regarding the applicable Mortgage Loans and the A/B Mortgage
Loans, and all accounts, insurance policies and other relevant matters relating
to this Agreement, and access to Primary Servicing Officers of the Primary
Servicer responsible for its obligations hereunder. Without limiting the
preceding sentence, Master Servicer may visit the offices of Primary Servicer no
more than once annually for the purpose of reviewing Primary Servicer's
compliance with this Agreement upon reasonable notice and during normal business
hours, and Primary Servicer shall reasonably cooperate with Master Servicer to
provide Master Servicer with the information that Master Servicer reasonably
requests to permit such review. Primary Servicer shall reimburse Master Servicer
for its reasonable and actual travel expenses incurred in connection with such
review in an amount not to exceed $5,000 annually in total for this Agreement
and all similar commercial mortgage loan servicing agreements in place between
Primary Servicer and Master Servicer. Primary Servicer shall have no obligation
to provide access to non-public information not pertaining to the Mortgage Loans
or the A/B Mortgage Loans or to proprietary information relating to Primary
Servicer.
SECTION 5.10 AUTHORIZED OFFICER Primary Servicer shall provide Master
Servicer promptly with a written list of authorized Servicing Officers of
Primary Servicer, which may be amended from time to time by written notice from
Primary Servicer to Master Servicer; provided, however, that such list shall
denote one principal Servicing Officer responsible for the Primary Servicer's
obligations under this Agreement.
SECTION 5.11 XXXXXXXX-XXXXX BACKUP CERTIFICATION The Primary Servicer
agrees to execute and provide to the Master Servicer a backup certification in
the form attached hereto as Exhibit D ("Backup Certification"), on which the
Master Servicer and its related Certification Parties may rely, in support of
any certification obligation to which the Master Servicer is subject under the
Pooling and Servicing Agreement in connection with the certification
requirements of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations
promulgated by the Commission thereunder (including any interpretations thereof
by the staff of the Commission). If the Primary Servicer is terminated or
resigns pursuant to the terms of this Agreement, it shall provide a Backup
Certification to the Master Servicer pursuant to this Section 5.11 with respect
to the period of time the Primary Servicer was subject to this Agreement. The
Backup Certification shall not increase the liability of Primary Servicer beyond
its obligations under this Agreement except to the limited extent necessary to
permit the Master Servicer to meet its certification obligations under Section
8.26 of the Pooling and Servicing Agreement with respect to the Xxxxxxxx-Xxxxx
Act of 2002, it being understood that the Primary Servicer shall indemnify and
hold harmless the Master Servicer in its capacity as Certifying Person and each
related Certification Party from and against any losses, damages, penalties,
fines, forfeitures, reasonable and necessary legal fees and related costs,
judgments and other costs and expenses incurred by the Master Servicer in its
capacity as Certifying Person and/or such Certification Party arising out of (i)
an actual breach by the Primary Servicer of its obligations under this Section
5.11 or (ii) negligence, bad faith or willful misconduct on the part of the
Primary Servicer in the performance of such obligations.
Nothing contained in this Section shall be construed to require any
party to this Agreement (other than the Master Servicer), or any of such party's
officers, to execute any Form 8-K,
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Form 10-K or any Xxxxxxxx-Xxxxx Certification. The failure of any party to this
Agreement (other than the Master Servicer), or any of such party's officers, to
execute any Form 8-K, Form 10-K or any Xxxxxxxx-Xxxxx Certification shall not be
regarded as a breach by such party of any of its obligations under this
Agreement. The Master Servicer and Primary Servicer hereby agree to negotiate in
good faith with respect to compliance with any further guidance from the
Commission or its staff relating to the execution of any Form 8-K, Form 10-K and
any Xxxxxxxx-Xxxxx Certification. This Agreement may be amended by the parties
hereto pursuant to Section 10.12 for purposes of complying with the
Xxxxxxxx-Xxxxx Act of 2002 or for purposes of designating the Certifying Person,
which amendment shall not require any Opinions of Counsel, Officer's
Certificates, Rating Agency Confirmations or the consent of any
Certificateholder, notwithstanding anything to the contrary contained in this
Agreement or the Pooling and Servicing Agreement.
SECTION 5.12 ADDITIONAL REPORTS Primary Servicer shall produce such
additional written reports with respect to the Mortgage Loans and the A/B
Mortgage Loans as the Master Servicer may from time to time reasonably request
in accordance with the Servicing Standard and shall reasonably cooperate with
Master Servicer to aid Master Servicer in its obligations to produce additional
reports and respond to inquiries under the Pooling and Servicing Agreement.
SECTION 5.13 PREPAYMENT INTEREST SHORTFALLS AND EXCESSES
(a) For any Mortgage Loan, Primary Servicer shall require Principal
Prepayments to be made so as not to cause a Prepayment Interest Shortfall. If
the Loan Documents of a related Mortgage Loan do not allow Primary Servicer to
require Principal Prepayments (or condition acceptance of Principal Prepayments)
on a date that will avoid a Prepayment Interest Shortfall ("Non-Mandatory
Prepayment Date Mortgage Loan"), then the Primary Servicer shall pay to Master
Servicer on the date specified in Section 2.1(c)(iv) of this Agreement, in
addition to all other amounts due for such Principal Prepayment, an amount
payable by the Primary Servicer from its own funds without reimbursement
therefor equal to any Prepayment Interest Shortfall that results from such
Principal Prepayment (for the avoidance of doubt, no such reimbursement shall be
required with respect to any B Notes or any Repurchased Note); provided,
however, that for all Principal Prepayments received during any Collection
Period with respect to Non-Mandatory Prepayment Date Mortgage Loans, the Primary
Servicer shall in no event be required to remit an amount greater than the
amount of the Primary Servicing Fees for such Collection Period, plus any
investment income earned on the amount prepaid prior to the related Distribution
Date.
(b) If the Mandatory Prepayment Date Assumption proves to be
inaccurate as to any Mortgage Loan and, as a direct consequence of that
inaccuracy, the Master Servicer is required to make a payment of Compensating
Interest on any Master Servicer Remittance Date pursuant to Section 8.10(c) of
the Pooling and Servicing Agreement in respect of Prepayment Interest Shortfalls
arising on that Mortgage Loan during the then most recently ended Collection
Period, the Primary Servicer shall reimburse the Master Servicer the amount of
such Compensating Interest payment attributable to that Mortgage Loan promptly
following request therefor by the Master Servicer (for the avoidance of doubt,
no such reimbursement shall be required with respect to any B Note or any
Repurchased Note). The amount of damages, if any, due and owing from the Primary
Servicer under the Servicing Rights Purchase Agreement, dated as of October 20,
2005 between the Master Servicer and the Primary Servicer, with respect to an
inaccuracy of the Mandatory Prepayment Date Assumption shall be reduced by the
amount of any Compensating Interest paid by the Primary Servicer hereunder with
respect to the applicable Mortgage Loan. For the avoidance of doubt, no such
reimbursement shall be required to be made in
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connection with Prepayment Interest Shortfalls resulting from involuntary
Principal Prepayments except to the extent the Primary Servicer did not apply
the proceeds of such involuntary Principal Prepayments in accordance with the
terms of the related Mortgage Loan documents.
(c) If any Principal Prepayment on any Mortgage Loan results in a
Prepayment Interest Excess, then Primary Servicer shall remit such Principal
Prepayment and accompanying collections as required under Section 2.1 and Master
Servicer shall, on the Master Servicer Remittance Date immediately following the
remittance of the Principal Prepayment by the Primary Servicer to the Master
Servicer, remit to Primary Servicer a pro rata portion (based upon all
Prepayment Interest Excesses remitted to Master Servicer by all Primary
Servicers (as defined in the Pooling and Servicing Agreement) with respect to
such Collection Period) of the amount by which the amount of the Prepayment
Interest Excesses for such Collection Period exceed all Prepayment Interest
Shortfalls (excluding, with respect to all of the Primary Servicers, any
Prepayment Interest Shortfalls of the type described in clause (b) above) for
such Collection Period with respect to any of the mortgage loans (whether or not
the subject of this Agreement) that are serviced under the Pooling and Servicing
Agreement (except that if the aggregate pro rata portion owed to Primary
Servicer during any Collection Period as a result of such calculation exceeds
$20,000, Master Servicer shall remit to Primary Servicer such pro rata portion
no later than three (3) Business Days prior to the Distribution Date for the
applicable Collection Period).
SECTION 5.14 CONSENTS Primary Servicer shall (a) obtain the consent of
the Special Servicer with respect to assignments and assumptions of Mortgage
Loans or A/B Mortgage Loans in accordance and subject to the terms of Section
A.1(c)(ii) of Exhibit B-2(c) of this Agreement and Section 8.7 of the Pooling
and Servicing Agreement; (b) obtain the consent of the Master Servicer with
respect to the defeasance of Mortgage Loans in accordance with and subject to
the terms of Section A.1(c)(i) of Exhibit B-2(c) of this Agreement; (c) obtain
the consent of the Special Servicer with respect to additional liens, monetary
encumbrances and mezzanine financings in accordance with and subject to the
terms of Section A.1(c)(iii) of Exhibit B-2(c) of this Agreement and Section 8.7
of the Pooling and Servicing Agreement; (d) notify Master Servicer of any
Materiality Determination, which shall thereafter be handled in accordance with
Sections A.1(a) and (c)(iv) of Exhibit B-2(c) of this Agreement; and (e) with
respect to an A/B Mortgage Loan, if required by the related A/B Intercreditor
Agreement, obtain the consent of the holder of the related B Note for those
actions which require the consent of such B Note holder.
SECTION 5.15 QUARTERLY SERVICING ACCOUNTS RECONCILIATION CERTIFICATION
Primary Servicer shall execute and deliver to Master Servicer a
certification substantially in the form set forth in Exhibit E hereto no later
than the 25th calendar day of each January, April, July and October, commencing
in January 2006 (the date of such delivery, in each case, a "Reconciliation
Certification Date"), with respect to the three consecutive calendar months
immediately preceding the calendar month in which such Reconciliation
Certification Date falls.
ARTICLE VI.
PRIMARY SERVICER DEFAULT; TERMINATION;
POST-TERMINATION OBLIGATIONS
SECTION 6.1 PRIMARY SERVICER DEFAULT Each of the following events
shall constitute a "Primary Servicer Default" hereunder:
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(a) any failure by the Primary Servicer to remit to the Master
Servicer when due any amount required to be remitted under this Agreement;
or
(b) any failure by the Primary Servicer duly to observe or
perform in any material respect any of the covenants or agreements on the
part of the Primary Servicer contained in this Agreement, which failure
continues unremedied for a period of twenty-five (25) days after the date
on which written notice of such failure, requiring the same to be remedied,
shall have been given to the Primary Servicer by the Master Servicer;
provided, however, that to the extent the Master Servicer determines, in
its reasonable discretion, that the Primary Servicer is in good faith
attempting to remedy such failure and the Certificateholders and holders of
any B Note shall not be materially and adversely affected thereby, such
cure period may be extended to the extent necessary to permit the Primary
Servicer to cure such failure; provided, further, that such cure period may
not exceed sixty (60) days; and provided, further that if such failure to
perform on the part of the Primary Servicer results in an Event of Default
by the Master Servicer under the Pooling and Servicing Agreement or
applicable A/B Intercreditor Agreement, then the cure periods described in
this Section 6.1(b) shall not apply; or
(c) any breach of the representations and warranties made
pursuant to Section 2.4 hereof that materially and adversely affects the
interest of the Master Servicer and that continues unremedied for a period
of twenty-five (25) days after the date on which written notice of such
breach, requiring the same to be remedied, shall have been given by the
Master Servicer to Primary Servicer; provided, however, that to the extent
the Master Servicer determines in its reasonable discretion that the
Primary Servicer is in good faith attempting to remedy such breach and the
Certificateholders and holders of any B Note shall not be materially and
adversely affected thereby, such cure period may be extended to the extent
necessary to permit the Primary Servicer to cure such breach; provided,
however, that such cure period may not exceed sixty (60) days; and
provided, further, that if such failure to perform on the part of the
Primary Servicer results in an Event of Default (or an event that with
notice or the passage of time would constitute such an Event of Default) by
the Master Servicer under the Pooling and Servicing Agreement or applicable
A/B Intercreditor Agreement, then the cure periods described in this
Section 6.1(c) shall not apply; or
(d) any Rating Agency shall qualify, lower or withdraw the
outstanding rating of any Class of Certificates because the prospective
financial condition or mortgage loan servicing capacity of the Primary
Servicer is insufficient to maintain such rating; or
(e) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case under
any present or future federal or state bankruptcy, insolvency or similar
law for the appointment of a conservator, receiver, liquidator, trustee or
similar official in any bankruptcy, insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against
the Primary Servicer and such decree or order shall have remained in force
undischarged or unstayed for a period of 60 days; or
(f) the Primary Servicer shall consent to the appointment of a
conservator, receiver, liquidator, trustee or similar official in any
bankruptcy, insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings or of or relating to all or
substantially all of its property; or
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(g) the Primary 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
(h) any other event caused by the Primary Servicer which creates
an Event of Default (or an event that with notice or the passage time would
constitute or result in such an Event of Default) of the Master Servicer
under the Pooling and Servicing Agreement or under an A/B Intercreditor
Agreement; or
(i) if Primary Servicer becomes or serves as Master Servicer at
any time, any failure by the Primary Servicer duly to observe or perform in
any material respect any of the covenants or agreements of Master Servicer
under the Pooling and Servicing Agreement or under an A/B Intercreditor
Agreement, which failure continues unremedied beyond the expiration of
applicable cure periods.
Primary Servicer agrees to give prompt written notice to Master
Servicer upon the occurrence of any Primary Servicer Default.
SECTION 6.2 TERMINATION The obligations and responsibilities of the
Primary Servicer as created hereby (other than as expressly provided herein)
shall terminate upon the earliest to occur of (i) the receipt by the Primary
Servicer of the Master Servicer's written notice of such termination delivered
at the Master Servicer's option following the occurrence of a Primary Servicer
Default, and (ii) the later of the final payment or other liquidation of (x) the
last Mortgage Loan or (y) the A/B Mortgage Loan (the "Primary Servicing
Termination Date"). From and after the Primary Servicing Termination Date, the
Primary Servicer shall, if applicable, continue to cooperate in the transfer of
primary servicing, including the delivery of files and transfer of accounts as
contemplated hereby but shall have no further obligations under this Agreement.
Without limiting the foregoing, the Primary Servicer agrees that the
rights and duties of the Master Servicer under this Agreement, the Pooling and
Servicing Agreement and each A/B Intercreditor Agreement may be assumed by a
successor Master Servicer or the Trustee upon a termination of the Master
Servicer's servicing rights pursuant to the Pooling and Servicing Agreement.
Primary Servicer's rights and obligations shall expressly survive a
termination of Master Servicer's servicing rights pursuant to the Pooling and
Servicing Agreement (except a termination of Master Servicer caused by a Primary
Servicer Default). In the event of such a termination, any successor Master
Servicer or the Trustee (if it assumes the servicing obligations of the Master
Servicer) shall be deemed to automatically have assumed and agreed to this
Agreement without further action upon becoming the successor Master Servicer.
Upon the request of Primary Servicer, Master Servicer shall confirm to
Primary Servicer in writing that this Agreement remains in full force and
effect. Upon the request of Primary Servicer, the successor Master Servicer or
Trustee, as applicable, shall confirm to Primary Servicer in writing that this
Agreement remains in full force and effect. Upon the request of the successor
Master Servicer or Trustee, Primary Servicer shall confirm to the successor
Master Servicer or Trustee, as applicable, in writing that this Agreement
remains in full force and effect.
26
(b) The Master Servicer's reimbursement obligations to the Primary
Servicer hereunder shall survive the Primary Servicing Termination Date, but
only to the extent such reimbursement relates to a period prior to the
termination of all of the Primary Servicer's obligations hereunder.
(c) The rights of Master Servicer to terminate Primary Servicer upon
the occurrence of a Primary Servicer Default shall be in addition to any other
rights Master Servicer may have at law or in equity, including injunctive relief
or specific performance.
SECTION 6.3 POST-TERMINATION OBLIGATIONS In the event of a termination
of primary servicing due to a Primary Servicer Default, the Primary Servicer
shall promptly deliver the Primary Servicer Servicing Documents as directed by
the Master Servicer and remit to the Master Servicer, by wire transfer of
immediately available funds, all cash held by the Primary Servicer with respect
to the related Mortgage Loans and A/B Mortgage Loans, and shall, if so requested
by the Master Servicer, assign to the Master Servicer or a Successor Primary
Servicer, as directed by the Master Servicer, and in such event the Master
Servicer shall assume, or cause the Successor Primary Servicer to assume, all
service contracts related to the Mortgage Loans and the A/B Mortgage Loans
transferred thereon but only to the extent such contracts are assignable and the
required consents (if any) to such assignments have been obtained. The Primary
Servicer shall use all reasonable efforts to obtain the consents required to
effect such assignments.
(b) On and after the Primary Servicing Termination Date, the Primary
Servicer shall promptly endorse and send to the Master Servicer via overnight
mail or delivery service any checks or other funds in respect of any Mortgage
Loan and any A/B Mortgage Loan which are received by the Primary Servicer.
(c) The Primary Servicer shall provide to the Master Servicer promptly
(but in no event later than ten (10) Business Days) after the Primary Servicing
Termination Date the following information, in each case as of such date: (a) a
ledger accounting itemizing the dates and amounts of all payments made, received
or applied by the Primary Servicer with regard to each Mortgage Loan and each
A/B Mortgage Loan, further itemizing principal and interest payments, tax
payments, special assessments, hazard insurance, mortgage insurance premiums,
ground rents, if any, and all other payments and (b) a current trial balance for
each such Mortgage Loan and A/B Mortgage Loan.
(d) On a date to be agreed upon by the Primary Servicer and the Master
Servicer, but not later than the Business Day following the Primary Servicing
Termination Date, the Primary Servicer shall commence and continue diligently to
completion at its own expense, to notify Mortgagors under the related Mortgage
Loans and A/B Mortgage Loans of the address to which payments on such Mortgage
Loans and A/B Mortgage Loans should be sent after the Primary Servicing
Termination Date; provided, however, that in any event, Primary Servicer shall
be obligated to notify Mortgagors within seven (7) Business Days of the Primary
Servicing Termination Date.
(e) The Primary Servicer shall promptly forward to the Master
Servicer, at the Primary Servicer's expense all Mortgagor correspondence,
insurance notices, tax bills or any other correspondence or documentation
related to any Mortgage Loan and any A/B Mortgage Loan which is received by the
Primary Servicer after the Primary Servicing Termination Date.
(f) The Primary Servicer shall otherwise cooperate in the orderly
transfer of the servicing of the Mortgage Loans and A/B Mortgage Loans and shall
forward to the Master Servicer and
27
any Successor Primary Servicer such documents as it may receive from time to
time regarding any Mortgage Loan or A/B Mortgage Loan transferred and provide
such other assistance as may reasonably be required by the Master Servicer or
any Successor Primary Servicer regarding such transfer.
(g) The Primary Servicer shall be entitled to all fees, compensation,
interest and earnings on the Mortgage Loans and A/B Mortgage Loans accrued
through the date of termination of its obligations and rights under this
Agreement; provided, however, Primary Servicer shall continue to collect the
Excess Servicing Fee after termination in accordance with the terms of this
Agreement and the Pooling and Servicing Agreement.
SECTION 6.4 ADDITIONAL TERMINATION Notwithstanding any provision
herein to the contrary, this Agreement shall terminate with respect to any
individual Mortgage Loan or A/B Mortgage Loan (i) if and when such Mortgage Loan
or A/B Mortgage Loan becomes a Specially Serviced Mortgage Loan or an REO
Mortgage Loan or (ii) if and when such Mortgage Loan or A/B Mortgage Loan is
sold or otherwise disposed of by or on behalf of the Trust (which sale or
disposition shall not include the transformation of a Mortgage Loan or A/B
Mortgage Loan into a Defeasance Loan or a Repurchased Note). In the event of
such termination, the Primary Servicer shall comply with Section 6.3 as if a
Primary Servicer Default had occurred, except that such Section shall be
construed to relate only to such Mortgage Loan or A/B Mortgage Loan and
references therein to Primary Servicing Termination Date shall be construed to
mean the date of such termination, and (ii) the Primary Servicer shall cooperate
in the orderly transfer of the servicing of such Mortgage Loan or A/B Mortgage
Loan and shall forward to the Master Servicer such documents as it may receive
from time to time with respect thereto and provide such other assistance as may
reasonably be required by the Master Servicer with respect thereto. Primary
Servicer shall be entitled to all fees, compensation, interest and earnings on
such Mortgage Loan or A/B Mortgage Loan accrued through the date of termination
of its obligations and rights with respect to such Mortgage Loan or A/B Mortgage
Loan under this Agreement; provided, however, Primary Servicer shall continue to
collect the Excess Servicing Fee after termination in accordance with the terms
of this Agreement and the Pooling and Servicing Agreement. If such Mortgage Loan
or A/B Mortgage Loan subsequently becomes a Rehabilitated Mortgage Loan, then
the Primary Servicer shall promptly resume the servicing of such Mortgage Loan
or A/B Mortgage Loan in accordance with the terms hereof.
ARTICLE VII.
SUBCONTRACTORS
Upon prior notice to but without the consent of Master Servicer in the
case of material subcontracts and without prior notice to or the prior written
consent of the Master Servicer in the case of non-material subcontracts, the
Primary Servicer shall be permitted to employ, at its own expense,
subcontractors to perform the Services for the Mortgage Loans and A/B Mortgage
Loans; provided, however, that (a) the Primary Servicer shall remain fully
liable at all times for the performance of all Services and for all other
obligations hereunder; and (b) in no event shall any such subcontractors make
any of the decisions, be given discretion to make any decisions, or have any
authority to make any decisions, required as part of a Category 1 Request or
Category 2 Request or any decision or recommendation involving the exercise of
the Primary Servicer's discretion as a "lender" under any of the Loan Documents
for the Mortgage Loans and the A/B Mortgage Loans.
ARTICLE VIII.
PRIMARY SERVICER TO HOLD PROPERTY FOR THE MASTER SERVICER
28
All records relating to the Mortgage Loans and the A/B Mortgage Loans
held by the Primary Servicer, including but not limited to the Primary Servicer
Servicing Documents, mortgage servicing documents, books, computer tapes and
other documents and records (except for microfilm records) as well as any
reproductions or copies of such records furnished for the purposes of performing
Services from the Cut-off Date are, and shall continue at all times to be, held
by the Primary Servicer for the benefit of the Master Servicer and shall not be
released, disseminated or otherwise made available to third parties without the
prior written consent of the Master Servicer.
ARTICLE IX.
INDEMNIFICATION
SECTION 9.1 PRIMARY SERVICER'S INDEMNITY The Primary Servicer shall
indemnify the Master Servicer, its officers, employees and agents against, and
hold the Master Servicer harmless from, any and all losses, liabilities,
expenses, claims, demands, costs, or judgment of any type against the Master
Servicer arising out of or related to (i) a negligent or willful failure of the
Primary Servicer or any Person hired by the Primary Servicer to perform properly
any of the Services to be performed by the Primary Servicer pursuant to the
Payment and Collection Description, the Payment and Mortgage Loan Status
Reports, Post Closing Matters Description and Task Description, (ii) any failure
by the Primary Servicer to perform its obligations under this Agreement, or
(iii) breach of any of the Primary Servicer's representations and warranties
hereunder; provided, however, that the Primary Servicer shall not be required to
indemnify the Master Servicer, its officers, employees or agents against or hold
the Master Servicer, its officers, employees or agents harmless from any losses
to the extent that such loss is caused by the actions of the Master Servicer,
its officers, employees or agents in violation of the Master Servicer's duties
under this Agreement, under the Pooling and Servicing Agreement or under an A/B
Intercreditor Agreement (except to the extent that such failure was caused by
the Primary Servicer's failure to perform its obligations hereunder). The
indemnification provided under this Section 9.1 shall survive the Primary
Servicing Termination Date. The Master Servicer shall promptly notify the
Primary Servicer if a claim is made by a third party with respect to this
Agreement or the Mortgage Loans or the A/B Mortgage Loans entitling the Master
Servicer to indemnification hereunder. The Primary Servicer shall assume the
defense of any such claim (with counsel reasonably satisfactory to the Master
Servicer) and pay all expenses in connection therewith, including counsel fees,
and promptly pay, discharge and satisfy any judgment or decree which may be
entered against it or them in respect of such claim. Any failure to so notify
the Primary Servicer shall not affect any of the Master Servicer's rights to
indemnification.
(b) Neither the Primary Servicer nor any of the directors, officers,
employees or agents of the Primary Servicer shall be under any liability to the
Master Servicer, the holders of the Certificates, any holder of a B Note, the
Depositor, the Trustee or any other Person for any action taken or for
refraining from the taking of any action in good faith and using its reasonable
business judgment pursuant to this Agreement, or for errors in judgment;
provided that this provision shall not protect the Primary Servicer or any such
person against any breach of a covenant, representation or warranty contained
herein or any liability which would otherwise be imposed by reason of willful
misfeasance, bad faith or negligence in its performance of duties or by reason
of reckless disregard for its obligations and duties under this Agreement. The
Primary Servicer and any director, officer, employee or agent of the Primary
Servicer may rely in good faith on any document of any kind prima facie properly
executed and submitted by any Person respecting any matters arising hereunder.
29
ARTICLE X.
MISCELLANEOUS
SECTION 10.1 SEVERABILITY If any term, covenant, condition or
provision hereof is unlawful, invalid, or unenforceable for any reasons
whatsoever, and such illegality, invalidity, or unenforceability does not affect
remaining part of this Agreement, then all such remaining parts hereof shall be
valid and enforceable and have full force and effect as if the invalid or
unenforceable part had not been included.
SECTION 10.2 RIGHTS CUMULATIVE; WAIVERS The rights of each of the
parties under this Agreement are cumulative and may be exercised as often as any
party considers appropriate. The rights of each of the parties hereunder shall
not be capable of being waived or amended other than by an express waiver or
amendment in writing. Any failure to exercise (or any delay in exercising) any
of such rights shall not operate as a waiver or amendment of that or any other
such right. Any defective or partial exercise of any of such right shall not
preclude any other or further exercise of that or any other such right. No act
or course of conduct or negotiation on the part of any party shall in any way
stop or preclude such party from exercising any such right or constitute a
suspension or any waiver of any such right.
SECTION 10.3 HEADINGS The headings of the Sections and Articles
contained in this Agreement are inserted for convenience only and shall not
affect the meaning or interpretation of this Agreement or any provision hereof.
SECTION 10.4 CONSTRUCTION Unless the context otherwise requires,
singular nouns and pronouns, when used herein, shall be deemed to include the
plural of such noun or pronoun and pronouns of one gender shall be deemed to
include the equivalent pronoun of the other gender. This Agreement is the result
of arm's-length negotiations between the parties and has been reviewed by each
party hereto and its counsel. Each party agrees that any ambiguity in this
Agreement shall not be interpreted against the party drafting the particular
clause which is in question.
SECTION 10.5 ASSIGNMENT This Agreement and the terms, covenants,
conditions, provisions, obligations, undertakings, rights and benefits hereof,
shall be binding upon, and shall inure to the benefit of, the undersigned
parties and their respective permitted successors and assigns. This Agreement
and the rights and benefits hereunder of the Primary Servicer shall not be
assignable, and the duties and obligations hereunder of such party shall not be
delegable, except that in the following instances, Primary Servicer may assign,
sell or transfer its rights under this Agreement without the consent of (but
upon written notice to) the Master Servicer:
(a) Primary Servicer may assign, sell or transfer its rights and
obligations under this Agreement (in whole and not in part) to a parent
company of Primary Servicer or a wholly-owned subsidiary or Affiliate of
such party, or a successor by merger or as the result of a demutualization
of a parent company of Primary Servicer, as long as such successor has net
assets and net worth equal to or greater than the net assets and net worth
of the Primary Servicer.
(b) Primary Servicer may assign, sell or transfer its rights and
obligations under this Agreement (in whole and not in part) to an entity
that then serves as a primary servicer for other mortgage loans held by the
Trust at the time of such assignment, sale or transfer.
30
(c) With the prior written consent of Master Servicer which
consent shall not be unreasonably withheld or delayed, Primary Servicer may
assign, sell or transfer its rights and obligations under this Agreement
(in whole and not in part) to any master or primary servicer, if (1) such
entity is either (a) rated by the Rating Agencies as satisfactory or its
equivalent in such capacity or (b) approved by the Special Servicer and
Operating Advisor (in addition to Master Servicer as provided above), which
approval shall not be unreasonably withheld or delayed, and (2) Primary
Servicer at its sole cost receives Rating Agency Confirmation from the
Rating Agencies prior to such assignment, sale or transfer.
(d) Primary Servicer may subcontract certain of its rights and
obligations under this Agreement as expressly provided in and subject to
the terms of Article VII of this Agreement.
Any such assignment under this Section 10.5 shall (i) not be effective
until such Successor Primary Servicer enters into a written agreement reasonably
satisfactory to Master Servicer agreeing to be bound by the terms and provisions
of this Agreement (but not altering the obligations under this Agreement); and
(ii) not relieve the assigning Primary Servicer of any duties or liabilities
arising or incurred prior to such assignment. Any costs or expenses incurred in
connection with such assignment shall be payable by the assigning Primary
Servicer. Any assignment or delegation or attempted assignment or delegation in
contravention of this Agreement shall be null and void. The proceeds of any
assignment, sale or transfer permitted under this Section 10.5 or to which
consent was granted shall belong solely to the assignor of such rights, and
Master Servicer shall have no claim to them.
(b) Resignation of Primary Servicer (a) Except as otherwise provided
in Section 10.6(b) hereof, the Primary Servicer shall not resign from the
obligations and duties hereby imposed on it unless it determines that the
Primary Servicer's duties hereunder are no longer permissible under applicable
law or are in material conflict by reason of applicable law with any other
activities carried on by it. Any such determination permitting the resignation
of the Primary Servicer shall be evidenced by an Opinion of Counsel to such
effect delivered to the Master Servicer. No such resignation shall become
effective until a successor servicer designated by the Master Servicer shall
have assumed the Primary Servicer's responsibilities and obligations under this
Agreement, and Special Servicer and Operating Advisor shall have consented to
such successor servicer which consent shall not be unreasonably withheld or
delayed; provided that the designation and assumption by Master Servicer of
Primary Servicer's responsibilities and obligations under this Agreement
pursuant to this Section 10.6(a) shall not require the consent of Special
Servicer or Operating Advisor.
(c) The Primary Servicer may resign from the obligations and duties
imposed on it, upon 60 days' notice to the Master Servicer, provided that (i)
the Primary Servicer bears all costs associated with its resignation and the
transfer of servicing; (ii) Primary Servicer designates a successor servicer to
assume Primary Servicer's responsibilities and obligations under this Agreement;
(iii) Master Servicer, Special Servicer and Operating Advisor shall consent to
such successor servicer which consent shall not be unreasonably withheld or
delayed; and (iv) such successor servicer assumes Primary Servicer's
responsibilities and obligations under this Agreement; provided, however, that
the designation and assumption by Master Servicer of Primary Servicer's
responsibilities and obligations under this Agreement pursuant to this Section
10.6(b) shall not require the consent of Special Servicer or Operating Advisor.
31
(d) In connection with any resignation under subsections (a) or (b)
above, the Primary Servicer shall comply with Section 6.3 as if a Primary
Servicer Default occurred, except that reference in such Section to Primary
Servicing Termination Date shall be construed to mean the date of resignation
under subsections (a) or (b) above, as the case may be.
SECTION 10.6 PRIOR UNDERSTANDINGS This Agreement supersedes any and
all prior discussions and agreements between or among the Seller, the Primary
Servicer and the Master Servicer with respect to the Servicing of the Mortgage
Loans and the A/B Mortgage Loans and the other matters contained herein. This
Agreement, together with the Pooling and Servicing Agreement and each A/B
Intercreditor Agreement, contain the sole and entire understanding between the
parties hereto with respect to the transactions contemplated herein. Every
effort shall be made to construe this Agreement, the Pooling and Servicing
Agreement and each A/B Intercreditor Agreement consistently. If a conflict
exists between such agreements, then the Pooling and Servicing Agreement and
with respect to an A/B Mortgage Loan, the applicable A/B Intercreditor Agreement
shall control. If this Agreement requires Primary Servicer to perform a task or
duty, the details and obligations of which are (a) set forth in this Agreement
and (b)(i) are not set forth in the Pooling and Servicing Agreement or with
respect to an A/B Mortgage Loan, the applicable A/B Intercreditor Agreement,
(ii) are set forth in the Pooling and Servicing Agreement and with respect to an
A/B Mortgage Loan, the applicable A/B Intercreditor Agreement only in general
terms, then Primary Servicer shall perform such task and duties in accordance
with the details and obligations set forth in this Agreement. If this Agreement
requires Primary Servicer to perform a task or duty, the details and obligations
of which are not set forth in this Agreement but are contained in the Pooling
and Servicing Agreement and with respect to an A/B Mortgage Loan, the applicable
A/B Intercreditor Agreement, then the Primary Servicer shall perform such task
and duties in accordance with the Pooling and Servicing Agreement.
SECTION 10.7 INTEGRATED AGREEMENT This Agreement constitutes the final
complete expression of the intent and understanding of the Primary Servicer and
the Master Servicer and may not be altered or modified except by a subsequent
writing, signed by the Primary Servicer and the Master Servicer.
SECTION 10.8 COUNTERPARTS This Agreement may be executed in any number
of counterparts, each of which shall constitute one and the same instrument. Any
party hereto may execute this Agreement by signing any such counterpart.
SECTION 10.9 GOVERNING LAWS This Agreement shall be governed by and
construed in accordance with the laws of the State of New York without regard to
conflicts of law principles, and the obligations, rights and remedies of the
parties hereunder shall be determined in accordance with such laws.
SECTION 10.10 NOTICES Unless otherwise provided for herein, all
notices and other communications required or permitted hereunder shall be in
writing (including a writing delivered by facsimile transmission) and shall be
deemed to have been duly given (a) when delivered, if sent by registered or
certified mail (return receipt requested), if delivered personally or by
facsimile or (b) on the second following Business Day, if sent by overnight mail
or overnight courier, in each case to the parties at the following addresses (or
at such other addresses as shall be specified by like notice);
If to the Master Servicer: As set forth in Section 13.5 of the
Pooling and Servicing Agreement
32
If to the Primary Servicer: Principal Global Investors, LLC
000 Xxxxx Xxxxxx
Xxx Xxxxxx, XX 00000-0000
Attention: Xxxxx Xxxxxxx, Managing
Director
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
SECTION 10.11 AMENDMENT In the event that the Pooling and Servicing
Agreement or an A/B Intercreditor Agreement is amended, this Agreement shall be
deemed to have been amended and to the extent necessary to reflect such
amendment to the Pooling and Servicing Agreement or such A/B Intercreditor
Agreement, but no such amendment to the Pooling and Servicing Agreement or A/B
Intercreditor Agreement or deemed amendment to this Agreement shall increase the
obligations or decrease the rights of Primary Servicer under this Agreement
without its express written consent which consent shall not be unreasonably
withheld or delayed.
Notwithstanding anything to the contrary contained in this Section
10.12, the parties hereto agree that this Agreement may be amended pursuant to
Section 5.11 herein without any notice to or consent of any of the
Certificateholders, any B Note holder and Repurchasing Seller, Opinions of
Counsel, Officer's Certificates or Rating Agency Confirmation.
SECTION 10.12 OTHER This Agreement shall not be construed to grant to
any party hereto any claim, right or interest in, to or against the trust fund
created pursuant to the Pooling and Servicing Agreement or any assets of such
trust fund.
SECTION 10.13 BENEFITS OF AGREEMENT Nothing in this Agreement, express
or implied, shall be construed to grant to any Mortgagor or other Person, other
than the parties to this Agreement and the parties to the Pooling and Servicing
Agreement, any benefit or any legal or equitable right, power, remedy or claim
under this Agreement.
[end of page]
33
IN WITNESS WHEREOF, this Agreement has been signed on behalf of each
of the parties hereto by an authorized representative, all as of the day and
year first above written.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, acting solely in its capacity as Master
Servicer under the Pooling and Servicing Agreement
By: /s/
------------------------------------------------
Name: Xxxxxxx X. XxXxxxx
Title: V.P.
PRINCIPAL GLOBAL INVESTORS, LLC
By: /s/
------------------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Second V.P. and Counsel
By: /s/
------------------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Second V.P. and Counsel
34
SCHEDULE I
MORTGAGE LOAN SCHEDULES
SUBSERVICING
CUT-OFF DATE FEE RATE
LOAN NUMBER PROPERTY NAME BALANCE (BASIS POINTS)
----------- --------------------------------- ------------ --------------
754666 Two Renaissance Square $ 85,200,000 1
754514 Saddle Brook Shopping Center $ 23,471,972 1
754567 000 Xxxxxxxx Xxxxxx, Xxxxx $ 20,975,822 1
754580 11303 Antoine $ 15,963,271 1
754592 Willow Run Apartments $ 12,784,846 1
754595 FedEx Miami $ 11,250,000 1
754617 0000 Xxxxx Xxxxxxxxx Xxxxxxxxx $ 10,500,000 1
754566 00000 Xxxxxx Xxxxxx $ 9,000,000 1
000000 Xxxxxxxxxx Xxxxx $ 6,856,603 1
754582 0000 Xxxxxxxxxx Xxxxxxx $ 6,786,273 1
754519 Amberley Court Apartments Complex $ 6,400,000 1
754499 0000 Xxxxxxxxxx Xxxxxxx $ 5,757,300 1
754561 00-00 Xxxx 00xx Xxxxxx $ 5,285,000 1
754569 Spanish River Plaza $ 4,500,000 1
754586 000 Xxxxxx Xxxxxx $ 4,175,000 1
000000 Xxxxxx Xxxxx Apartments $ 3,493,287 1
754232 0000 Xxxxxxxxxx Xxxxx $ 3,093,187 1
754600 000 Xxxxx 00xx Xxxxxx $ 2,700,000 1
754622 Xxxxxx Centre East $ 2,697,072 1
754494 McBlock XxXxxxxxx $ 1,373,049 1
754494 McBlock Woodstock $ 1,319,553 1
754279 Stevens Creek Retail Center $ 2,485,660 1
754500 0000 Xxxxxxxxx Xxxxxx $ 2,307,883 1
754575 0000 Xxxxx Xxxxxx Xxxxxx $ 2,296,341 1
754593 000 X. Xxxxx Xxxx $ 2,247,380 1
754536 XxXxxxxxx Promenade $ 2,194,890 1
754614 0000 Xxxxxxxx Xxxxxx $ 2,000,000 1
754534 The Veranda $ 1,990,933 1
754601 Parkway Apartments $ 1,896,954 1
754605 0000 Xxxx Xxxxxxxx Xxxx Xxxx $ 1,248,695 1
754516 0000 Xxxx Xxxxxxxx Xxxxxx $ 773,194 1
754517 00 Xxxx 00xx Xxxxxx $ 688,392 1
754518 0000 Xxxx 00xx Xxxxxx $ 548,718 1
754641 West Towne Mall $113,000,000 1
000000 Xxxx Xxxxx Xxxx $ 80,000,000 1
SCHEDULE II
[reserved]
EXHIBIT A
Pooling and Servicing Agreement
See copy of signed Pooling and Servicing Agreement delivered under separate
cover.
EXHIBIT B
Exhibit B-1: Payment and Mortgage Loan Status Reports
Exhibit B-2: Overview of Methodology of Allocation of Responsibility on Post
Closing Requests
Exhibit B-3: Form of Property Inspection Reports
Exhibit B-4: Task Description
EXHIBIT B-1
Payment and Mortgage Loan Status Reports
Exhibit B-1(a): Remittance report for payments received on Mortgage Loans
during the applicable Collection Period
Exhibit B-1(b): Delinquency report
Exhibit B-1(c): Real estate tax delinquency report
Exhibit B-1(d): Insurance monitoring report
Exhibit B-1(e): UCC form monitoring report
Exhibit B-1(f): Day One Report
EXHIBIT B-2
Overview of Methodology of Allocation of Responsibility on Post
Closing Requests
Exhibit B-2(a): Overview of Methodology of Allocation of Responsibility on
Post Closing Requests
Exhibit B-2(b): Chart Showing Classification of Post Closing Requests
Exhibit B-2(c): Process for Handling Post Closing Requests Upon Classification
EXHIBIT B-2(a)
Overview of Methodology of Allocation of Responsibility on Post
Closing Requests
When Primary Servicer receives a request from a Mortgagor or other
obligor under the Mortgage Loan or A/B Mortgage Loan, as applicable, for action
("Post Closing Request") on its related Mortgage Loan or A/B Mortgage Loan,
Primary Servicer shall classify each Post Closing Request into one of the
following three (3) categories:
o Post Closing Requests over which Primary Servicer shall have decision
making authority to analyze, consent to, approve and process such
requests, subject to consent rights in certain circumstances set forth
in Exhibit B-2(c) below and, where applicable, Deemed Category 1
Requests ("Category 1 Requests");
o Post Closing Requests in which Primary Servicer shall gather
information from Mortgagor and shall deliver such information together
with a written analysis and recommendation for the consent and
approval of such requests to the Master Servicer or Special Servicer,
as applicable; other than Deemed Category 1 Requests ("Category 2
Requests"); and
o Post Closing Requests in which Primary Servicer will have no
involvement but will refer the request to the Special Servicer
("Category 3 Requests").
The attached chart details how a Post Closing Request will be
classified into one of the three (3) categories specified above and the
materials that follow detail how each Post Closing Request will be handled after
classification.
The objective is to process each Post Closing Request in accordance
with the Servicing Standard, the terms of this Agreement, the Pooling and
Servicing Agreement and with respect to any A/B Mortgage Loan, its applicable
A/B Intercreditor Agreement, the REMIC Provisions, while providing responsive
service to Mortgagors.
The attached chart does not address Payment and Collection
Description, Payment and Collection Reporting or Property Inspection
Description, which is covered elsewhere in this Agreement.
EXHIBIT B-2(b)
Chart Showing Classification of Post Closing Requests
----------------------------------------------------------------------------------------------------------------------------------
Category When Applicable Examples Allocation of Fees
----------------------------------------------------------------------------------------------------------------------------------
1 Category 1 Post Closing Request is either Transfer rights contemplated in Loan Primary Servicer collects entire
Requests (other (a) specifically authorized in Documents (including without limitation administrative or processing fee
than Deemed the related Loan Documents (as assignment and assumption rights); partial (including without limitation
Category 1 defined in Exhibit B- releases contemplated in Loan Documents; defeasance fees), legal fees and
Requests) 2(c)(A.1(b)), either expressly easements contemplated in Loan Documents; out-of-pocket expenses and 80% of
as a matter of right in favor evaluation of alterations under specified any additional fees or portions of
of the Mortgagor or upon the threshold; administer, monitor and release fees (including without limitation
satisfaction of certain of reserve or escrow amounts in accordance transfer fees) payable to Master
specified conditions (including with reserve or escrow agreements; approval Servicer under Pooling and
the exercise of any specified of leases below threshold specified in Loan Servicing Agreement (i.e. transfer
standard of consent or judgment Documents; additional lien, monetary fee). Other 20% of such additional
within such conditions subject encumbrance or mezzanine financing placed fees are payable to Master
to the terms of this on Mortgaged Property that is specifically Servicer. Special Servicer would
Agreement); or (b) seeks the contemplated in Loan Documents under receive any portion of fees due it
approval of the related specified conditions; or process of under the Pooling and Servicing
Mortgagee under the related defeasing a Mortgage Loan (except Agreement. Master Servicer may also
Loan Documents for a Lease defeasance of a Specially Serviced Mortgage collect its out-of-pocket expenses
and/or the issuance of an SNDA Loans which shall not be the responsibility which it shall itemize in
for a Lease. of the Primary Servicer) and servicing of reasonable detail.(1)
Mortgage Loans and A/B Mortgage Loans that
have been defeased; approval of a Lease
requiring such approval of Mortgagee under
the Loan Documents; or issuance of an SNDA.
----------------------------------------------------------------------------------------------------------------------------------
2 Category 2 Post Closing Request (other Consent to easement not contemplated in For all Mortgage Loans, other than
Requests for than Category 3 Request) is (a) Loan Documents; partial releases not A/B Mortgage Loans: Primary
all Mortgage not specifically authorized or specifically contemplated in Loan Servicer entitled to one hundred
Loans (other is prohibited or not addressed Documents; or subordinate or mezzanine percent (100%) of administrative or
than A/B in the Loan Documents; and (b) financing not specifically contemplated in processing fee. Additional fees are
Mortgage Loans) not seeking approval of a Lease Loan Documents. payable to Master Servicer and/or
and Deemed requiring such approval of Special Servicer as specified in
Category 1 Mortgagee under the related Pooling and Servicing Agreement.
Requests Loan Documents or issuance of Master Servicer may also collect
an SNDA. its out-of-pocket expenses.(1)
For all A/B Mortgage Loans: Same
allocation of fees as Category 1
Requests.
----------------------------------------------------------------------------------------------------------------------------------
----------
(3) No reference is made in this chart to the Aggregate Servicing Fee which
shall be collected and governed in accordance with the terms of Sections
2.1, 2.3, 6.3 and 6.4 of this Agreement.
----------------------------------------------------------------------------------------------------------------------------------
Category When Applicable Examples Allocation of Fees
----------------------------------------------------------------------------------------------------------------------------------
3 Category 3 Post Closing Requests to Money Changes to maturity date, interest rate, Primary Servicer not entitled to
Requests Terms, Defaulted Mortgage Loans principal balance, amortization term, fee. Master Servicer or Special
or Mortgage Loans upon which a payment amount or frequency; Servicer is entitled to fees as
Servicing Transfer Event has or provided in the Pooling and
occurred. any actions to loan in default. Servicing Agreement.(1)
----------------------------------------------------------------------------------------------------------------------------------
EXHIBIT B-2(c)
Process for Handling Post Closing Requests Upon Classification
A. Process for disposition of Post Closing Requests Once Classification is Made.
Upon classification of a Post Closing Request into one of the three (3)
categories enumerated above, Primary Servicer shall process the Post Closing
Request as follows:
1. Category 1 Requests and Deemed Category 1 Requests:
a) If Primary Servicer classifies a Post Closing Request as a Category
1 Request or Deemed Category 1 Request, it shall promptly (but in no event more
than five (5) Business Days after receiving such request) notify Master Servicer
of (a) such request; (b) Primary Servicer's classification of the Post Closing
Request as a Category 1 Request or Deemed Category 1 Request; and (c) Primary
Servicer's Materiality Determination regarding any Category 1 Consent Aspect
involved in such request. Notwithstanding the foregoing, as a result of the
quarterly reconciliation of reserve accounts that Primary Servicer provides to
Master Servicer under this Agreement, Primary Servicer shall have no obligation
(a) except as required under Section 8.18(d) of the Pooling and Servicing
Agreement, to notify or seek the consent of Master Servicer or Special Servicer
(as applicable) of any disbursement made from an escrow or reserve account
pursuant to and in accordance with the terms of such agreement governing such
reserve or escrow or (b) to seek consent of Master Servicer to extend (1) the
time available to a Mortgagor to complete repairs, replacements or improvements
pursuant to an escrow or reserve agreement or (2) the expiration date of any
letters of credit associated with such escrow or reserve, as long as (i) Primary
Servicer promptly notifies Master Servicer in writing of such extension; (ii)
the amount being held pursuant to the applicable escrow or reserve agreement at
the time of the proposed extension is less than $1,000,000.00; (iii) the length
of such extension when added to all other extensions granted after the Closing
Date does not exceed one hundred eighty (180) days; and (iv) any such extension
is in accordance with the terms of this Agreement (including without limitation
the Servicing Standard) and the Pooling and Servicing Agreement and with respect
to an A/B Mortgage Loan, the applicable A/B Intercreditor Agreement.
b) Primary Servicer shall evaluate the Category 1 Request or Deemed
Category 1 Request and process such request to meet the requirements set forth
in the loan documents for the applicable Mortgage Loan ("Loan Documents") in a
manner that complies with the terms of this Agreement and the Pooling and
Servicing Agreement and with respect to an A/B Mortgage Loan, the applicable A/B
Intercreditor Agreement. Such evaluation and processing may commence, and
continue but may not be completed prior to Primary Servicer's notice to Master
Servicer of the Category 1 Request or Deemed Category 1 Request. Primary
Servicer shall draft, or cause to be drafted, all documents necessary or
appropriate to effect the Category 1 Request or Deemed Category 1 Request in
accordance with the terms of the Loan Documents, this Agreement and the Pooling
and Servicing Agreement with respect to an A/B Mortgage Loan, the applicable A/B
Intercreditor Agreement.
c) Notwithstanding the foregoing, the following additional
requirements shall apply to particular types or aspects of Category 1 Requests:
(i) If a Mortgagor requests to defease a Mortgage Loan or A/B
Mortgage Loan (other than a Specially Serviced Mortgage
Loan) and the Loan Documents for such Mortgage Loan or A/B
Mortgage Loan expressly provide for a defeasance, Primary
Servicer shall treat such request as a Category 1 Request
but shall, in addition to
the other provisions of this Section 1 of Exhibit B-2(c),
seek the prior written consent of Master Servicer prior to
consenting to such defeasance, which consent shall not be
withheld or delayed unreasonably when Primary Servicer
submits to Master Servicer the items substantially as set
forth on Appendix 1 of this Agreement relating to such
defeasance, and any such decision of Master Servicer shall
be in accordance with the terms of the Loan Documents and
the Servicing Standard. Failure of the Master Servicer to
notify the Primary Servicer in writing of Master Servicer's
determination to grant or withhold such consent, within five
(5) Business Days following the Primary Servicer's delivery
of the request for defeasance described above and the
relevant information collected on such defeasance, shall be
deemed to constitute a grant of such consent.
(ii) If a Mortgagor requests consent to transfer the related
Mortgaged Property and assign the related Mortgage Loan or
A/B Mortgage Loan (other than a Specially Serviced Mortgage
Loan) to another Person who shall assume the Mortgage Loan
or A/B Mortgage Loan and the Loan Documents expressly permit
such assignment and assumption, subject to any conditions
set forth in the Loan Documents, Primary Servicer may treat
such request as a Category 1 Request but shall, in addition
to the other provisions of this Section 1 of Exhibit B-2(c),
seek the prior written consent of Special Servicer prior to
consenting to such assignment and assumption in accordance
with the terms of Section 8.7 of the Pooling and Servicing
Agreement (subject to any time periods applicable to Primary
Servicer or Special Servicer for the giving, granting or
deemed granting of such consent contained in the Pooling and
Servicing Agreement) by submitting to Special Servicer the
items substantially as set forth on Appendix 2 of this
Agreement relating to such assignment and assumption. For
the purpose of the foregoing sentence, the term "expressly
permits" shall have the meaning assigned to it in Section
8.7 of the Pooling and Servicing Agreement.
(iii) If a Mortgagor requests consent to place an additional
lien, monetary encumbrance or mezzanine financing on the
related Mortgaged Property and the Loan Documents expressly
permit such additional lien, monetary encumbrance or
mezzanine financing, subject to any conditions set forth in
the Loan Documents, Primary Servicer may treat such request
as a Category 1 Request but shall, in addition to the other
provisions of this Section 1 of Exhibit B-2(c), seek the
prior written consent of Special Servicer prior to
consenting to such additional lien, monetary encumbrance or
mezzanine financing in accordance with the terms of Section
8.7 of the Pooling and Servicing Agreement (subject to any
time periods applicable to Primary Servicer or Special
Servicer for the giving, granting or deemed granting of such
consent contained in the Pooling and Servicing Agreement) by
submitting to Special Servicer the items substantially as
set forth on Appendix 3 of this Agreement relating to such
additional lien, monetary encumbrance or mezzanine
financing. For the purpose of the foregoing sentence, the
term "expressly permits" shall have the meaning assigned to
it in Section 8.7 of the Pooling and Servicing Agreement.
(iv) If a Mortgagor requests consent to enter into a Lease on the
related Mortgaged Property (and/or the associated issuance
of an SNDA for such Lease), which Lease
(a) requires the consent of the Mortgagee under the related
Loan Documents and (b) qualifies as a Significant Lease,
Primary Servicer may treat such request as a Category 1
Request but shall, in addition to the other provisions of
this Section 1 of Exhibit B-2(c), seek the prior written
consent of Master Servicer, which consent shall not be
withheld or delayed unreasonably, prior to consenting to or
disapproving of such Significant Lease (and/or the related
SNDA) by submitting to Master Servicer the items
substantially as set forth on Appendix 4 of this Agreement
relating to such Significant Lease (and/or related SNDA).
Failure of the Master Servicer to notify the Primary
Servicer in writing of Master Servicer's determination to
grant or withhold such consent within ten (10) Business Days
following the Primary Servicer's delivery of the request for
consent to the Lease, shall be deemed to constitute a grant
of such consent.
(v) If Primary Servicer makes a Materiality Determination that a
Category 1 Consent Aspect is material, then Primary Servicer
shall treat such request as a Category 1 Request, but shall,
in addition to the other provisions of this Section A.1 of
this Exhibit B-2(c), seek the prior written consent of
Special Servicer prior to consenting to the applicable
Category 1 Request, which consent shall not be withheld or
delayed unreasonably, and any such decision of Special
Servicer shall relate only to the Category 1 Consent Aspect
and shall be in accordance with the terms of the Loan
Documents and the Servicing Standard. Failure of the Special
Servicer to notify the Primary Servicer in writing of
Special Servicer's determination to grant or withhold such
consent, within five (5) Business Days following the Primary
Servicer's delivery of the request for consent to the
Category 1 Consent Aspect, shall be deemed to constitute a
grant of such consent.
d) Upon conclusion of the negotiations of the documentation for the
Category 1 Request or Deemed Category 1 Request, Primary Servicer may execute
and deliver the operative documents to be executed to effect the Category 1
Request and take the other actions necessary or appropriate to conclude such
request, in each case in accordance with the terms of this Agreement and the
Pooling and Servicing Agreement and with respect to an A/B Mortgage Loan, the
related A/B Intercreditor Agreement.
e) Concurrently with the execution of this Agreement, Master Servicer
shall provide to Primary Servicer a counterpart original of the Power of
Attorney executed by the Trust in favor of the Master Servicer and shall execute
and deliver to Primary Servicer a Power of Attorney attached to this Agreement
as Exhibit C. Primary Servicer shall promptly notify Master Servicer of the
execution and delivery of any document on behalf of the Master Servicer and
Trustee under such Power of Attorney ("POA Notice").
f) Upon the request of Primary Servicer, Master Servicer shall execute
and deliver the documents necessary or appropriate to effect a Category 1
Request or Deemed Category 1 Request. Such request shall not relieve Primary
Servicer of its obligations under this Agreement regarding a Category 1 Request
or Deemed Category 1 Request, including without limitation its obligation to
evaluate and process such request in accordance with this Agreement and the
Pooling and Servicing Agreement and with respect to an A/B Mortgage Loan, the
related A/B Intercreditor Agreement and any indemnification obligation of
Primary Servicer.
g) Upon completion of each Category 1 Request or Deemed Category 1
Request, Primary Servicer shall promptly (but in no event more than five (5)
Business Days after concluding such request) notify Master Servicer and Special
Servicer (if its consent was required) and shall accompany such notice with a
brief summary of the Category 1 Request or Deemed Category 1 Request, a brief
summary of Primary Servicer's analysis and decision regarding such request, a
POA Notice (if required) and a counterpart original or copy of the operative
documents executed or received to effect the Category 1 Request or Deemed
Category 1 Request.
h) Notwithstanding the foregoing with the consent of Master Servicer,
Primary Servicer may elect to classify and treat a Post Closing Request that
otherwise qualifies as a Category 1 Request or Deemed Category 1 Request, as a
Category 2 Request instead. In such case, Primary Servicer shall adhere to the
provisions of this Agreement regarding Category 2 Requests or Deemed Category 1
Requests, and all aspects of such request (including without limitation the
allocation of fees) shall be governed by the terms of this Agreement covering
Category 2 Requests. Primary Servicer's decision in any one instance to treat a
Post Closing Request that otherwise qualifies as a Category 1 Request or Deemed
Category 1 Request, as a Category 2 Request instead, shall not compromise or
affect its right on any other occasion to treat a similar request as a Category
1 Request or Deemed Category 1 Request.
i) Notwithstanding anything to the contrary in this Section 1, if a
Category 1 Request or Deemed Category 1 Request involves an action requiring the
consent of Special Servicer under Section 8.18(d) of the Pooling and Servicing
Agreement, Primary Servicer shall not be permitted to take any such actions
without the consent of Special Servicer in accordance with such Section 8.18(d).
For any action relating to a Mortgage Loan or an A/B Mortgage Loan requiring the
consent of Special Servicer under Section 8.18(d) of the Pooling and Servicing
Agreement, Primary Servicer shall have the responsibility to seek the consent of
Special Servicer in accordance with such section. The foregoing conditions and
requirements shall be in addition to the other conditions and requirements for
Category 1 Requests or Deemed Category 1 Requests as set forth above.
2. Category 2 Requests (other than Deemed Category 1 Requests):
a) If Primary Servicer classifies a Post Closing Request as a Category
2 Request, it shall promptly (but in no event more than five (5) Business Days
after Primary Servicer's receiving such request) notify Master Servicer of
receiving such request, of the type of request and of Primary Servicer's
classification of the Post Closing Request as a Category 2 Request. As part of
such notice, Primary Servicer shall include the following:
(i) If such type of request has not previously been the subject
of a Category 2 Request or a Requirements List (as defined
below) has not previously been provided to Primary Servicer,
then Primary Servicer shall request from Master Servicer a
detailed list of the requirements to be satisfied for such
request (the "Requirements List"). Master Servicer shall
promptly (but in no event more than five (5) Business Days
after receiving notification of such request) provide to
Primary Servicer a Requirements List for such request.
(ii) If the type of Category 2 Request has previously been the
subject of a Post Closing Request, then Primary Servicer
shall submit the existing Requirements List to Master
Servicer. Primary Servicer may use such Requirements List
for such
request unless Master Servicer provides to Primary Servicer
a replacement Requirements List within five (5) Business
Days of such notice.
b) A Requirements List (i) shall in no event be more burdensome than
that required by Master Servicer of other loans in the Trust for similar Post
Closing Requests; (ii) shall not require Primary Servicer to incur additional
third party costs or expenses; and (iii) shall require the gathering, collection
and assembling of information only and not the preparation, evaluation, analysis
of information or a recommendation regarding the Post Closing Request.
c) Primary Servicer shall then use diligent efforts to collect and
assemble the items on the applicable Requirements List. Upon such collection and
assembly, Primary Servicer shall provide to Master Servicer all of the assembled
items, a list of the items collected from the Requirements List, a list of any
items not collected, any reasons why such items were not collected, a written
analysis of the Category 2 Request in light of the items collected in a form
reasonably satisfactory to Master Servicer, a recommendation whether to approve
or disapprove such request and the appropriate division of the applicable fees
in accordance with the terms of this Agreement and the Pooling and Servicing
Agreement.
d) Master Servicer shall use its reasonable best efforts to notify
Primary Servicer with a consent or disapproval of the Category 2 Request within
ten (10) Business Days of receiving such assembled items, analysis and
recommendation. If Master Servicer disapproves such request, it shall provide
Primary Servicer the reasons for such disapproval. If Master Servicer approves
such request, Primary Servicer shall promptly process the Category 2 Request in
a manner that complies with the terms of this Agreement and the Pooling and
Servicing Agreement and with respect to an A/B Mortgage Loan, the related A/B
Intercreditor Agreement. Primary Servicer shall draft, or cause to be drafted,
all documents necessary to effect the Category 2 Request in accordance with the
terms of the consent, the Loan Documents, this Agreement and the Pooling and
Servicing Agreement, and with respect to an A/B Mortgage Loan, the related A/B
Intercreditor Agreement. Primary Servicer shall deal directly with the
applicable Mortgagor regarding a Category 2 Request after Primary Servicer
submits the items on the applicable Requirements List.
e) Upon conclusion of the negotiations of the documentation for the
Category 2 Request for which Master Servicer has granted its consent, Primary
Servicer may execute and deliver the operative documents to be executed to
effect the Category 2 Request and take the other actions necessary or
appropriate to conclude such request, in each case in accordance with the terms
of this Agreement and the Pooling and Servicing Agreement and with respect to an
A/B Mortgage Loan, the related A/B Intercreditor Agreement.
f) Upon the request of Primary Servicer, Master Servicer shall execute
and deliver the documents necessary or appropriate to effect a Category 2
Request, which documents shall be prepared by the Primary Servicer. Such request
shall not relieve Primary Servicer of its obligations under this Agreement
regarding a Category 2 Request, including without limitation its obligation to
evaluate and process such request in accordance with this Agreement and the
Pooling and Servicing Agreement and with respect to an A/B Mortgage Loan, the
related A/B Intercreditor Agreement and any indemnification obligation of
Primary Servicer.
g) Upon completion of each Category 2 Request, Primary Servicer shall
promptly (but in no event more than ten (10) Business Days after concluding such
request) notify Master Servicer and shall
accompany such notice with a copy of the operative documents executed or
received to effect the Category 2 Request.
h) Notwithstanding anything to the contrary in this Section 2, if a
Category 2 Request involves an action requiring the consent of Special Servicer
under Section 8.18(d) of the Pooling and Servicing Agreement, Primary Servicer
shall not be permitted to take any such action without the consent of Special
Servicer in accordance with such Section 8.18(d). For any action relating to a
Mortgage Loan or an A/B Mortgage Loan requiring the consent of Special Servicer
under Section 8.18(d) of the Pooling and Servicing Agreement, Primary Servicer
shall have the responsibility to seek the consent of Special Servicer in
accordance with such section. The foregoing conditions and requirements shall be
in addition to the other conditions and requirements for Category 2 Requests as
set forth above.
3. Category 3 Requests:
a) If Primary Servicer classifies a Post Closing Request as a Category
3 Request, it shall promptly (but in no event more than five (5) Business Days
after receiving such request) notify Master Servicer and Special Servicer of
receiving such request and of Primary Servicer's classification of the Post
Closing Request as a Category 3 Request and shall refer such Category 3 Request
to the Special Servicer for handling in accordance with the Pooling and
Servicing Agreement.
b) Upon such referral, Primary Servicer shall notify the applicable
Mortgagor of such referral and shall direct the Mortgagor that all further
correspondence and interaction regarding the applicable Category 3 Request shall
be directed to and through the Special Servicer (unless the Special Servicer and
Master Servicer shall otherwise direct the Primary Servicer). Primary Servicer
shall forward all correspondence and other information regarding such request in
its possession to Special Servicer.
B. Dispute of Classification.
1. Notification of Dispute. If either Master Servicer or Special Servicer
disputes the classification of Primary Servicer of any Post Closing Request (for
purposes of this Section B, the term "classification" shall include a
Materiality Determination of Primary Servicer regarding a Category 1 Consent
Aspect with respect to such Post Closing Request), then Master Servicer or
Special Servicer, as applicable, shall notify Primary Servicer of such dispute
promptly (but in no event more than five (5) Business Days from Primary
Servicer's notice of such classification) in writing and the specific reasons
for such dispute. The parties shall then work in good faith for a period not
more than five (5) Business Days to resolve the classification of the Post
Closing Request. Primary Servicer's classification of a Post Closing Request
shall govern the handling of such request absent Primary Servicer's receipt of
notice of such dispute within the specified time period but shall not diminish
the obligation of Primary Servicer to classify Post Closing Requests in
accordance with this Agreement and to handle such requests in accordance with
this Agreement and the Pooling and Servicing Agreement and with respect to an
A/B Mortgage Loan, the related A/B Intercreditor Agreement.
2. Resolution of Dispute in Absence of Agreement. If after such good faith
efforts to resolve such classification dispute the parties cannot agree to a
classification, then the following shall apply: For Mortgage Loans or A/B
Mortgage Loans that individually, or together with all other Mortgage Loans and
A/B Mortgage Loans that have the same or an affiliated Mortgagor or that are
cross-collateralized with such Mortgage Loans or A/B Mortgage Loans have a
principal balance on the Cut-Off Date that is in excess of two percent (2%) of
the then Aggregate Principal Balance, then the good faith classification of
the Master Servicer or Special Servicer, as applicable, shall govern. For
Mortgage Loans that individually, or together with all other Mortgage Loans and
A/B Mortgage Loans that have the same or an affiliated Mortgagor or that are
cross-collateralized with such Mortgage Loans or A/B Mortgage Loans have a
principal balance on the Cut-Off Date that is equal to or less than two percent
(2%) of the then Aggregate Principal Balance, then the good faith classification
of the Primary Servicer shall govern; provided that, in no event, shall Primary
Servicer's classification govern if such classification would, in the sole
judgment of Master Servicer or Special Servicer (as applicable), conflict with
any provision of the Pooling and Servicing Agreement or result in a default by
Master Servicer or Special Servicer under the Pooling and Servicing Agreement.
3. Processing of Post Closing Request During Dispute. During a pending
dispute over classification of a Post Closing Request, the parties shall
continue to cooperate to process such request in accordance with Primary
Servicer's initial classification until a resolution is achieved or, failing
resolution, the Post Closing Request is classified in accordance with the terms
of Section B.2 of this Exhibit B-2(c). Master Servicer and Primary Servicer
acknowledge that it is a goal of both parties not to unduly burden or delay the
processing of a Post Closing Request even though a dispute about classification
of such request may exist but in any event the processing of a Post Closing
Request must be accomplished in a manner consistent and in compliance with the
Pooling and Servicing Agreement and with respect to an A/B Mortgage Loan, the
related A/B Intercreditor Agreement.
EXHIBIT B-3
Forms of Property Inspection Reports
See CMSA Website
EXHIBIT B-4
TASK DESCRIPTION
MASTER SERVICER/PRIMARY SERVICER TASK LIST
COMMERCIAL PASS-THROUGH CERTIFICATES, SERIES 2005-TOP20
Note: Some listed tasks designate more than one party to perform that function
by placing an "X" in more than one column. In these instances, the parties
shall follow any specific guidance about the allocation of responsibilities
in completing the task found in the terms of this Agreement (including
Exhibits B-2 and B-3). In the absence of specific allocation of obligations
in this Agreement, the parties shall work in good faith to allocate
responsibilities in a fair and equitable manner in accordance with this
Agreement and the Pooling and Servicing Agreement.
-----------------------------------------------------------------------------------------------------------------
MASTER PRIMARY SPECIAL
SERVICER SERVICER SERVICER TRUSTEE
-----------------------------------------------------------------------------------------------------------------
1. Asset Files
-----------------------------------------------------------------------------------------------------------------
Original credit file management X
-----------------------------------------------------------------------------------------------------------------
Original collateral file (security) X
-----------------------------------------------------------------------------------------------------------------
Authorized parties list for request for release of collateral
from Trustee X X
-----------------------------------------------------------------------------------------------------------------
Establish servicing files criteria X X
-----------------------------------------------------------------------------------------------------------------
Provide access to servicing files and copies of servicing files
or of specific docs upon request to the Master Servicer X
-----------------------------------------------------------------------------------------------------------------
Request delivery of files from Trustee upon request and
certification of Primary Servicer X
-----------------------------------------------------------------------------------------------------------------
2. Property Taxes
-----------------------------------------------------------------------------------------------------------------
Preparation and delivery of quarterly tax delinquency reports X
-----------------------------------------------------------------------------------------------------------------
Monitoring of tax status - Loans with/without escrows X
-----------------------------------------------------------------------------------------------------------------
Recommendation of payment of taxes - Loans with/without escrows X
-----------------------------------------------------------------------------------------------------------------
Notification of advance requirement 3 business days prior to
advance being required X
-----------------------------------------------------------------------------------------------------------------
Payment of taxes - with sufficient escrows X
-----------------------------------------------------------------------------------------------------------------
Payment of taxes - with escrow shortfall X
-----------------------------------------------------------------------------------------------------------------
3. Property Insurance
-----------------------------------------------------------------------------------------------------------------
Preparation and delivery of quarterly insurance tickler reports X
-----------------------------------------------------------------------------------------------------------------
Monitoring of insurance status - Loans with/without escrows X
-----------------------------------------------------------------------------------------------------------------
Ensure insurance carrier meets Pooling and Servicing Agreement
qualifications X
-----------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------
MASTER PRIMARY SPECIAL
SERVICER SERVICER SERVICER TRUSTEE
-----------------------------------------------------------------------------------------------------------------
Ensure insurance in favor of the Master Servicer on behalf of the
Trustee X
-----------------------------------------------------------------------------------------------------------------
Recommendation of payment or force placement of insurance
with/without escrow X
-----------------------------------------------------------------------------------------------------------------
Notification of advance requirement or force placement of
insurance 3 business days prior to advance being required X
-----------------------------------------------------------------------------------------------------------------
Payment of insurance - with sufficient escrows X
-----------------------------------------------------------------------------------------------------------------
Payment of insurance or force placement - with escrow shortfall X
-----------------------------------------------------------------------------------------------------------------
Category 1 Requests and Deemed Category 1 Requests
-----------------------------------------------------------------------------------------------------------------
Preparation and presentment of claims X
-----------------------------------------------------------------------------------------------------------------
Collection of insurance proceeds X
-----------------------------------------------------------------------------------------------------------------
Category 2 Requests
-----------------------------------------------------------------------------------------------------------------
Preparation and presentment of claims X
-----------------------------------------------------------------------------------------------------------------
Collection of insurance proceeds X
-----------------------------------------------------------------------------------------------------------------
4. UCC Continuation Filings
-----------------------------------------------------------------------------------------------------------------
Preparation and delivery of quarterly UCC tickler report X
-----------------------------------------------------------------------------------------------------------------
Maintain tickler system of refiling the dates on all Loans X
-----------------------------------------------------------------------------------------------------------------
File UCC Continuation Statements X
-----------------------------------------------------------------------------------------------------------------
Pay recording fees X
-----------------------------------------------------------------------------------------------------------------
Monitor tickler system X
-----------------------------------------------------------------------------------------------------------------
5. Collection/Deposit/Distribution of P&I payments and Principal
Prepayments
-----------------------------------------------------------------------------------------------------------------
Collection and deposit of loan P&I payments X
-----------------------------------------------------------------------------------------------------------------
Remittance of available Primary Servicer P&I payments to Master
Servicer and B Note holders, as applicable (net of Aggregate
Servicing Fee and other fees payable to the Primary Servicer
by the B Note holders and Repurchasing Sellers) X
-----------------------------------------------------------------------------------------------------------------
Provide Collection Reports to Master Servicer X
-----------------------------------------------------------------------------------------------------------------
Distribution of P&I payments to the Trustee X
-----------------------------------------------------------------------------------------------------------------
Distribution of Special Servicer compensation X
-----------------------------------------------------------------------------------------------------------------
Approval of Prepayment Premiums X
-----------------------------------------------------------------------------------------------------------------
6. Collection/Deposit/Disbursement of Reserves
-----------------------------------------------------------------------------------------------------------------
Collection and deposit of reserves X
-----------------------------------------------------------------------------------------------------------------
Disbursement of reserves X
-----------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------
MASTER PRIMARY SPECIAL
SERVICER SERVICER SERVICER TRUSTEE
-----------------------------------------------------------------------------------------------------------------
7. Customer Billing, Collection and Customer Service
-----------------------------------------------------------------------------------------------------------------
Contact delinquent borrowers by phone 3 days after delinquent
date X
-----------------------------------------------------------------------------------------------------------------
Send 30 day delinquent notices X
-----------------------------------------------------------------------------------------------------------------
Send notice of balloon payment to each Mortgagor one year, 180,
and 90 days prior to the related maturity date X
-----------------------------------------------------------------------------------------------------------------
Provide copy of Balloon Mortgage Loan notice to Master Servicer X
-----------------------------------------------------------------------------------------------------------------
8. Escrows
-----------------------------------------------------------------------------------------------------------------
Setup and monitor Escrow Accounts including escrow analysis X
-----------------------------------------------------------------------------------------------------------------
Pay borrower investment income required X
-----------------------------------------------------------------------------------------------------------------
Prepare annual escrow analysis X
-----------------------------------------------------------------------------------------------------------------
9. Loan payment history/calculation
-----------------------------------------------------------------------------------------------------------------
Maintain loan payment history X
-----------------------------------------------------------------------------------------------------------------
Create payoff/reinstatement statements and telecopy to Master
Servicer X
-----------------------------------------------------------------------------------------------------------------
Approve payoff calculations and telecopy approval to Primary
Servicer within five (5) Business Days X X
-----------------------------------------------------------------------------------------------------------------
10. Monitoring of Financial and Legal Covenants
-----------------------------------------------------------------------------------------------------------------
Collect quarterly and annual operating statements, budgets, rent
rolls and borrower financial statements, as applicable. X
-----------------------------------------------------------------------------------------------------------------
Deliver Operating Statement Analysis Report, CMSA Financial File
and NOI Adjustment Worksheet in accordance with Section 2.1(c)
(viii) of this Agreement. X
-----------------------------------------------------------------------------------------------------------------
Deliver one (1) copy of quarterly and annual operating
statements, budgets, rent rolls and borrower financial
statement, as applicable, within thirty (30) days of Primary
Servicer's receipt X
-----------------------------------------------------------------------------------------------------------------
Complete CMSA Loan Setup File for Mortgage Loans X X
-----------------------------------------------------------------------------------------------------------------
Complete CMSA Loan Periodic Update File for Mortgage Loans X
-----------------------------------------------------------------------------------------------------------------
Complete and deliver CMSA Property File for Mortgage Loans X
-----------------------------------------------------------------------------------------------------------------
Complete and deliver quarterly Operating Statement Analysis
Report and CMSA Quarterly Financial File in accordance with
Section 2.1(c)(viii) of this Agreement. X X
-----------------------------------------------------------------------------------------------------------------
Cash account Reconciliations - Copies of monthly bank statements
for all deposit, escrow and reserve accounts X
-----------------------------------------------------------------------------------------------------------------
CMSA Supplemental Reports
-----------------------------------------------------------------------------------------------------------------
Complete Servicer Watch List X
-----------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------
MASTER PRIMARY SPECIAL
SERVICER SERVICER SERVICER TRUSTEE
-----------------------------------------------------------------------------------------------------------------
Complete Comparative Financial Status Report X
-----------------------------------------------------------------------------------------------------------------
Delinquent Loan Status Report X
-----------------------------------------------------------------------------------------------------------------
REO Status Report X
-----------------------------------------------------------------------------------------------------------------
Historical Loan Status Report X
-----------------------------------------------------------------------------------------------------------------
Historical Liquidation Report X
-----------------------------------------------------------------------------------------------------------------
CMSA Loan Level Reserve/LOC Report X
-----------------------------------------------------------------------------------------------------------------
11. Advancing
-----------------------------------------------------------------------------------------------------------------
Determination of Non-Recoverability X
-----------------------------------------------------------------------------------------------------------------
12. Borrower Inquiries/Performing Loans
-----------------------------------------------------------------------------------------------------------------
Performing Loans - respond to routine billing questions X
-----------------------------------------------------------------------------------------------------------------
Category 1 Requests and Deemed Category 1 Requests
-----------------------------------------------------------------------------------------------------------------
Assumptions & Due on sale:
-----------------------------------------------------------------------------------------------------------------
Borrower contact and data gathering X
-----------------------------------------------------------------------------------------------------------------
Underwriting and analysis of request X
-----------------------------------------------------------------------------------------------------------------
Approval of assumption X
-----------------------------------------------------------------------------------------------------------------
Consent to assumption X
-----------------------------------------------------------------------------------------------------------------
Close assumption X
-----------------------------------------------------------------------------------------------------------------
Category 2 Requests
-----------------------------------------------------------------------------------------------------------------
Assumptions & Due on sale:
-----------------------------------------------------------------------------------------------------------------
Initial Borrower contact and data gathering X
-----------------------------------------------------------------------------------------------------------------
Underwriting and analysis X X
-----------------------------------------------------------------------------------------------------------------
Approval of assumption X X
-----------------------------------------------------------------------------------------------------------------
Consent to assumption X
-----------------------------------------------------------------------------------------------------------------
Close assumption (directly with Borrower) X
-----------------------------------------------------------------------------------------------------------------
Category 1 Requests and Deemed Category 1 Requests
-----------------------------------------------------------------------------------------------------------------
Additional Liens, Monetary Encumbrances or Mezzanine
Financing:
-----------------------------------------------------------------------------------------------------------------
Borrower contact and data gathering X
-----------------------------------------------------------------------------------------------------------------
Underwriting and analysis of request X
-----------------------------------------------------------------------------------------------------------------
Approval of additional lien, monetary encumbrance or
mezzanine financing X
-----------------------------------------------------------------------------------------------------------------
Consent to additional lien, monetary encumbrance or
mezzanine financing X
-----------------------------------------------------------------------------------------------------------------
Close additional lien, monetary encumbrance or
mezzanine financing X
-----------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------
MASTER PRIMARY SPECIAL
SERVICER SERVICER SERVICER TRUSTEE
-----------------------------------------------------------------------------------------------------------------
Category 2 Requests
-----------------------------------------------------------------------------------------------------------------
Additional Liens, Monetary Encumbrances or Mezzanine
Financing:
-----------------------------------------------------------------------------------------------------------------
Initial Borrower contact and data gathering X
-----------------------------------------------------------------------------------------------------------------
Underwriting and analysis X X
-----------------------------------------------------------------------------------------------------------------
Approval of additional lien, monetary encumbrance or
mezzanine financing X X
-----------------------------------------------------------------------------------------------------------------
Consent to additional lien, monetary encumbrance or
mezzanine financing X
-----------------------------------------------------------------------------------------------------------------
Close additional lien, monetary encumbrance or
mezzanine financing (directly with Borrower) X
-----------------------------------------------------------------------------------------------------------------
Modifications (Non-Money Terms), Waivers, Consents and Extensions
up to 60 days (not otherwise provided in this Agreement):
-----------------------------------------------------------------------------------------------------------------
Initial Borrower contact and data gathering X
-----------------------------------------------------------------------------------------------------------------
Underwriting and analysis X
-----------------------------------------------------------------------------------------------------------------
Approval of modification and extensions up to 60 days
(Category 1 Requests and Deemed Category 1 Requests) X
-----------------------------------------------------------------------------------------------------------------
Approval of modification and extensions up to 60 days
(Category 2 Request) X
-----------------------------------------------------------------------------------------------------------------
Consent to modification and waivers and other consents
(not otherwise provided in this Agreement) X
-----------------------------------------------------------------------------------------------------------------
Closing Documents and Closing X
-----------------------------------------------------------------------------------------------------------------
Modification (Money Terms): X
-----------------------------------------------------------------------------------------------------------------
Extensions of Maturity Date (more than 60 days): X
-----------------------------------------------------------------------------------------------------------------
Response to request for Discounted Payoffs, Workouts,
Restructures, Forbearances and Casualties X
-----------------------------------------------------------------------------------------------------------------
Condemnation (only with respect to Specially Serviced Mortgage
Loans the Special Servicer will perform such functions) X X X
-----------------------------------------------------------------------------------------------------------------
13. Monthly Reporting (Hardcopy & Electronic mail)
-----------------------------------------------------------------------------------------------------------------
Day One Report X
-----------------------------------------------------------------------------------------------------------------
Delinquency and past due reporting on all Loans X
-----------------------------------------------------------------------------------------------------------------
Deliver on April 25, July 25, October 25 and January 25 of each
year a Quarterly Servicing Accounts Reconciliation Certification
in the form of Exhibit E X
-----------------------------------------------------------------------------------------------------------------
14. Category 1 Requests and Deemed Category 1 Requests
-----------------------------------------------------------------------------------------------------------------
Release of Collateral
-----------------------------------------------------------------------------------------------------------------
Determination if collateral should be released X
-----------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------
MASTER PRIMARY SPECIAL
SERVICER SERVICER SERVICER TRUSTEE
-----------------------------------------------------------------------------------------------------------------
Consent to release collateral X
-----------------------------------------------------------------------------------------------------------------
Request delivery of files from Trustee upon Primary
Servicer request and certification X
-----------------------------------------------------------------------------------------------------------------
Preparation and recordation of release deeds all Loans
(full and partial) X
-----------------------------------------------------------------------------------------------------------------
Category 2 Requests
-----------------------------------------------------------------------------------------------------------------
Release of Collateral
-----------------------------------------------------------------------------------------------------------------
Initial Borrower contact and data gathering X
-----------------------------------------------------------------------------------------------------------------
Underwriting and analysis X
-----------------------------------------------------------------------------------------------------------------
Determination if collateral should be released X
-----------------------------------------------------------------------------------------------------------------
Consent to release collateral X
-----------------------------------------------------------------------------------------------------------------
Request delivery of files from Trustee X
-----------------------------------------------------------------------------------------------------------------
Preparation and recordation of release deeds all Loans
(full and partial) X
-----------------------------------------------------------------------------------------------------------------
15. Property Annual Inspections
-----------------------------------------------------------------------------------------------------------------
Conduct site inspection per Pooling and Servicing Agreement
requirement X
-----------------------------------------------------------------------------------------------------------------
Provide 3 copies of site inspection reports to the Master
Servicer within 30 days of inspection but not later than
December 15 of each year beginning in 2006 X
-----------------------------------------------------------------------------------------------------------------
16. Preparation of servicing transfer letters X
-----------------------------------------------------------------------------------------------------------------
17. Preparation of IRS Reporting (1098s and 1099s or other tax
reporting requirements) and delivery of copies to the Master
Servicer by January 31 of each year X
-----------------------------------------------------------------------------------------------------------------
18. Provide Annual Officer's Certificate as to compliance to Master
Servicer by March 15 of each year X
-----------------------------------------------------------------------------------------------------------------
19. Provide Annual Independent Accountant's Servicing Report (USAP)
to Master Servicer by March 1 of each year X
-----------------------------------------------------------------------------------------------------------------
20. Compensation
-----------------------------------------------------------------------------------------------------------------
Primary Servicer Fee and other fees payable to the Primary
Servicer by the B Note holders X
-----------------------------------------------------------------------------------------------------------------
Investment earnings on Primary Servicer Collection Account X
-----------------------------------------------------------------------------------------------------------------
Investment earnings on tax & insurance reserves not payable to
borrower X
-----------------------------------------------------------------------------------------------------------------
Investment earnings on reserve accounts not payable to borrower X
-----------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------
MASTER PRIMARY SPECIAL
SERVICER SERVICER SERVICER TRUSTEE
-----------------------------------------------------------------------------------------------------------------
Late charges to the extent collected from borrower (offsets
advance interest per Pooling and Servicing Agreement) X
-----------------------------------------------------------------------------------------------------------------
21. Defeasance
-----------------------------------------------------------------------------------------------------------------
Coordinate, analyze, approve, and process defeasance request X
-----------------------------------------------------------------------------------------------------------------
Consent to defeasance X
-----------------------------------------------------------------------------------------------------------------
Service Defeasance Loans X
-----------------------------------------------------------------------------------------------------------------
Retain all fees associated with Defeasance Loans X
-----------------------------------------------------------------------------------------------------------------
EXHIBIT C
Form of Power of Attorney from Master Servicer
RECORDING REQUESTED BY:
[ ]
AND WHEN RECORDED MAIL TO:
[ ]
Attention: Commercial Mortgage Pass-
Through Certificates Series
2005-TOP20
Space above this line for Recorder's use
LIMITED POWER OF ATTORNEY
(SPECIAL)
XXXXX FARGO BANK, NATIONAL ASSOCIATION, acting solely in its capacity
as Master Servicer ("Master Servicer"), under the Pooling and Servicing
Agreement dated as of October 1, 2005 (the "Pooling and Servicing Agreement")
and a Primary Servicing Agreement dated as of October 1, 2005 (the "Primary
Servicing Agreement"), in each case relating to the Commercial Mortgage
Pass-Through Certificates, Series 2005-TOP20, does hereby nominate, constitute
and appoint [ ], as Primary Servicer under the Primary Servicing Agreement
("[ ]"), as its true and lawful attorney-in-fact for it and in its name, place,
stead and for its use and benefit:
To perform any and all acts which may be necessary or appropriate to
enable [ ] to service and administer the Mortgage Loans (as defined in the
Primary Servicing Agreement) in connection with the performance by [ ] of its
duties as Primary Servicer under the Primary Servicing Agreement, giving and
granting unto [ ] full power and authority to do and perform any and every act
necessary, requisite, or proper in connection with the foregoing and hereby
ratifying, approving or confirming all that [ ] shall lawfully do or cause to be
done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has caused this limited power of
attorney to be executed as of this ___ day of ____, 2005.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, acting solely in its
capacity as Master Servicer under the
Pooling and Servicing Agreement and the
Primary Servicing Agreement
By:
------------------------------------
Name:
Title:
EXHIBIT D
Form of Backup Certification from Primary Servicer
CERTIFICATION
Re: Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 2005-TOP20, issued pursuant to the Pooling and
Servicing Agreement dated as of October 1, 2005 (the "Pooling and Servicing
Agreement") among Bear Xxxxxxx Commercial Mortgage Securities Inc., as
depositor, Xxxxx Fargo Bank, National Association, as master servicer (the
"Master Servicer"), ARCap Servicing, Inc., as special servicer, LaSalle Bank
National Association, as trustee, Xxxxx Fargo Bank, National Association, as
paying agent and certificate registrar (the "Paying Agent"), and ABN AMRO Bank
N.V., as fiscal agent; and Primary Servicing Agreement dated as of October 1,
2005 (the "Primary Servicing Agreement") between the Master Servicer and
Principal Global Investors, LLC (the "Primary Servicer"). Capitalized terms used
but not defined herein have the meanings set forth in the Primary Servicing
Agreement or, if not defined therein, in the Pooling and Servicing Agreement.
----------
The undersigned Primary Servicer hereby certifies to the Master Servicer
and its officers, directors and Affiliates (collectively, the "Certification
Parties") as follows, with the knowledge and intent that the Certification
Parties will rely on this Certification in connection with the certification
concerning the Trust to be signed by an officer of the Master Servicer and
submitted to the Securities and Exchange Commission pursuant to the
Xxxxxxxx-Xxxxx Act of 2002:
1. The Primary Servicer has reviewed the information in the Annual
Statement of Compliance and the Annual Independent Public Accountant's Servicing
Report to be provided by Principal Global Investors, LLC under the Primary
Servicing Agreement, as well as all servicing reports, officers' certificates
and other information that relate to the servicing of the Mortgage Loans and are
delivered under the Primary Servicing Agreement (the "Primary Servicer
Information");
2. Based on the Primary Servicer's knowledge, the Primary Servicer
Information, 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 calendar year preceding the date of this
Certification;
3. Based on the Primary Servicer's knowledge, all servicing information
required to be provided to the Master Servicer by the Primary Servicer under the
Primary Servicing Agreement for inclusion in the reports on Forms 8-K and 10-K
filed on behalf of the Trust for the calendar year preceding the date of this
Certification has been so provided by the Primary Servicer;
4. Based on the Primary Servicer's knowledge and the annual compliance
review required under the Primary Servicing Agreement, and except as disclosed
in the Officer's Certificate delivered to the Master Servicer pursuant to
Section 5.3 of the Primary Servicing Agreement in connection with such review,
the Primary Servicer has fulfilled its obligations under the Primary Servicing
Agreement; and
5. Based on the Primary Servicer's knowledge, the report provided by an
independent public accountant, after conducting a review in compliance with the
Uniform Single Attestation Program for Mortgage Bankers or similar procedure,
delivered to the Master Servicer pursuant to Section 5.4 of the Primary
Servicing Agreement, discloses all significant deficiencies, if any, relating to
the Primary Servicer's compliance with the minimum servicing standards.
This Certification is being signed on behalf of the Primary Servicer by an
officer of the Primary Servicer responsible for reviewing the activities
performed by the Primary Servicer under the Primary Servicing Agreement.
Date: _______ ___, 200__
PRINCIPAL GLOBAL INVESTORS, LLC
By
-------------------------------------
Name:
Title:
EXHIBIT E
QUARTERLY SERVICING ACCOUNTS RECONCILIATION CERTIFICATION
Primary Servicer: Principal Global Investors, LLC
RE: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2005-TOP20
Pursuant to the Primary Servicing Agreement between Xxxxx Fargo Bank,
National Association ("Xxxxx Fargo Bank") and Principal Global Investors, LLC
("Primary Servicer") for the transaction referenced above, I hereby certify with
respect to each mortgage loan serviced by Primary Servicer for Xxxxx Fargo Bank
for such transaction that within 25 days after the end of each of the months of
[January, February and March][April, May and June][July, August and
September][October, November and December], any and all deposit accounts, escrow
accounts and reserve accounts, and any and all other collection accounts and
servicing accounts, related to such mortgage loan have been properly reconciled,
and the reconciliations have been reviewed and approved, by Subservicer's
management, except as otherwise noted below:
EXCEPTIONS: ______________________________________________
__________________________ [Signature]
Name: [INSERT NAME OF SERVICING OFFICER] Title: Servicing Officer,
Principal Global Investors, LLC
Date: [April, July, October, January] 25, [20__]
APPENDIX 1
Items Required for Defeasance Submission to Master Servicer
REQUEST FOR MASTER SERVICER CONSENT TO DEFEASANCE
Primary Servicer shall submit to Master Servicer the following listed
items to seek the consent of Master Servicer to a defeasance of a Mortgage Loan
or an A/B Mortgage Loan that Primary Servicer is permitted to process under this
Primary Servicing Agreement.
Copy of written notice to Primary Servicer from Mortgagor requesting
defeasance of the applicable Mortgage Loan.
An Executed Certificate substantially in the form attached hereto at
Exhibit A.
(i) A description of the proposed defeasance collateral, (ii) written
confirmation from an independent accountant stating that payments made on
such defeasance collateral are sufficient to pay the subject Mortgage Loan,
and (iii) a copy of the form of opinion of counsel from the related
Mortgagor or other counsel that the related Trust has the benefit of a
first lien, perfected security interest in the defeasance collateral.
Such other items as are reasonably required by Master Servicer consistent
with the Servicing Standard as long as such requirements may be required of
the related Mortgagor under the related Loan Documents without additional
expense to Primary Servicer or Master Servicer.
EXHIBIT A TO APPENDIX 1
PRIMARY SERVICER DEFEASANCE CERTIFICATE
[INSERT DATE], 20[_]
RE: Defeasance of the "[INSERT NAME OF MORTGAGE LOAN FROM SCHEDULE I]"
(Prospectus ID Number: [INSERT ID NUMBER]) mortgage loan (the "Mortgage Loan")
to [INSERT NAME OF MORTGAGOR] (the "Mortgagor") serviced by Principal Global
Investors, LLC, as primary servicer (the "Primary Servicer") pursuant to that
Primary Servicing Agreement (the "Primary Servicing Agreement") dated as of
October 1, 2005, between Primary Servicer and Xxxxx Fargo Bank, N.A., as master
servicer (the "Master Servicer") related to the Xxxxxx Xxxxxxx Capital I Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2005-TOP20.
The undersigned hereby certifies to the Master Servicer on behalf of the Primary
Servicer as of the date hereof as follows:
1. The Mortgagor has the right to defease the Mortgage Loan pursuant to the loan
documents (the "Loan Documents") related to the Mortgage Loan.
2. The Mortgagor will have satisfied all of the requirements for the defeasance
of the Mortgage Loan under the Loan Documents by the closing date of the
defeasance.
3. (i) The Primary Servicer has retained outside legal counsel with experience
reviewing and documenting the defeasance of commercial mortgage loans to review
the Loan Document defeasance provisions and to document the defeasance of the
Mortgage Loan in accordance therewith and (ii) the Primary Servicer has provided
or will provide such legal counsel with the Loan Documents needed for such
purposes.
PRINCIPAL GLOBAL INVESTORS, LLC
By:
---------------------------------
Name:
Title:
APPENDIX 2
Assignment and Assumption Submission to Special Servicer
PRESENT MORTGAGOR:
PROPOSED MORTGAGOR:
PRIMARY SERVICER #:
SPECIAL SERVICER #:
COLLATERAL TYPE: (Retail, Industrial, Apartments, Office, etc.)
ADDRESS: Property Address
City, State, zip code
ASSET STATUS: As of (date)
Principal Balance: $
Unpaid Accrued Interest: $
Unpaid Late Fees/other fees: $
Tax Escrow Balance: $
(a) Insurance Escrow Balance: $
Reserve Escrow Balance: $
Monthly (P&I) Payment: $
Interest Rate: %
Date Principal Paid To:
Date Interest Paid To:
Maturity Date:
Origination Date:
Executive Summary:
1. Summarize the transaction
a. note any significant modification of terms of the Loan Documents
permitting assumption that could result in Adverse REMIC Event
2. Discuss proposed Mortgagor entity and ownership structure
a. include any changes in level of SAE or SPE compliance from existing
Mortgagor as noted on Asset Summary attached)
3. How will title be held
4. Source of cash for down payment
5. Briefly describe collateral
a. Size, occupancy, primary tenants, location
b. Prior year NOI and DSCR and Pro-forma NOI DSCR
6. Complete the chart below:
The sale terms and property characteristics are summarized as follows:
Purchase price $
Buyer down payment $ ____(%)
Estimated closing date
1% loan fee split: Principal 40% - $
WFB, Master Serv. 10% - $
ARCap, Special Serv. 50% - $
Most recent appraised value according to $
appraisal in Primary Servicer's possession
Loan-to-value as if initial underwriting %
Occupancy as of %
12/31/__ NOI $
Debt service coverage as of x
Financial Condition of Proposed Mortgagor/Guarantor:
1. Explain background and experience of the proposed Mortgagor/principals;
describe any deficiencies in Mortgagor's ability to meet creditworthiness
and experience requirements of Loan Documents and compare creditworthiness
and experience of proposed Mortgagor to that of transferring Mortgagor to
the extent information about transferring Mortgagor is available.
2. State date of the financial statement, who prepared, if CPA, state the
opinion rendered, how assets are valued
3. Highlight Balance sheet and Income statement
a. Describe significant assets (e.g. obtain from proposed Mortgagor and
Guarantor (as applicable) information about how it values its assets)
b. Related debt
4. For public companies that have historical financial information:
a. Spread Balance Sheet for minimum of two (2) years (request three (3)
years, if available)
b. Spread and commonsize Income statement for minimum of two (2) years
(request three (3) years, if available);
5. Explain results of credit checks, legal searches and banking credit
references (two required)
6. If Rating Agency Confirmation is permitted under applicable Loan Documents,
note if such Confirmation will be sought
7. Describe whether assigning Mortgagor and/or Guarantors will be released
from its obligations under the Loan Documents [from and after the date of
the transfer]. If so, describe extent of release and rationale for it.
Project Status & Description: (See attached Asset Summary, most recent
Inspection Report and most recent rent roll)
1. Describe any current, material issues regarding the operating status of the
property:
(e.g. issues surrounding current occupancy, anchor tenants, tenant rollover)
Appendix 2
Property Financial Summary: (See attached Income and Expense Statements for
Mortgaged Property and year-to-date operating statements)
New Environmental and Engineering Developments (if any) and Status of Issues
identified in Original Reports or Loan Documents as needing Remediation: (See
attached Asset Summary)
1. Describe any material issues requiring remediation contained in original
reports
2. Describe current status of issue and remediation
Escrow Status:
1. Explain status of all reserves
Property Management Summary:
1. Who is proposed property management firm
2. Background and Experience
Collateral Valuation:
1. Discuss the original appraisal
A. Who prepared
B. Attach Executive Summary and discussion of approach to value given
most weight from most recent appraisal in Primary Servicer's
possession
2. Comparison of the following (original to actual property):
A. Vacancy
B. Rents
C. Taxes
D. Other Key Expenses
Current Market Conditions:
Briefly state material current real estate market dynamics and
economic influences that may affect the operational performance of the property.
Recommendation:
1. State recommendation for approval.
2. Highlight strengths and weaknesses. How are weaknesses mitigated? (bullet
points are fine)
Request for Special Servicer Consent:
Primary Servicer hereby recommends and requests consent of Special Servicer to
the foregoing Assignment and Assumption.
[ ]
By:
------------------------------------
Title:
---------------------------------
Date:
----------------------------------
Consent to Assignment & Assumption is given:
ARCAP SERVICING, INC, acting solely in its capacity as
Special Servicer
By:
-------------------------------------
Title:
---------------------------------
Date:
----------------------------------
Schedule of Exhibits to Assumption Submission
1. Financial statements of purchasing entity and any guarantors (audited, if
available)
2. Financial statement of selling entity only if available
3. Bank and /or credit references for transferee
4. Credit report for principal(s) of the proposed borrowing entity.
5. Most recent Income & Expense Statement for Mortgaged Property and operating
statement review
6. Income & Expense Statement for Mortgaged Property for previous two (2)
years to the extent available
7. Most recent Property Inspection report
8. Original Asset Summary for Mortgaged Property
9. Purchase and Sale Agreement
10. If available from Mortgagor, diagram of proposed ownership structure,
including percentages of ownership
11. Proposed property management agreement
12. Description and source of equity being used for the purchase, if available
13. Most recent Rent Roll
14. Copy of Promissory Note, Mortgage and any Loan Agreement
15. Other items as required by the description set forth above
APPENDIX 3
Additional Lien, Monetary Encumbrance or Mezzanine Financing
Submission to Special Servicer
Mortgagor:
Master Servicer Loan #:
Primary Servicer Loan #:
Collateral Type: (Retail, Industrial, Apartments, Office, etc.)
Address of Property:
Asset Status As of (date):
------------ -------------
Principal Balance: $
Unpaid Accrued Interest: $
Unpaid Late Fees/other fees: $
Tax Escrow Balance: $
Insurance Escrow Balance: $
Monthly P+I Payment: $
Interest Rate: %
Date Principal Paid To:
Date Interest Paid To:
Origination Date:
Maturity Date:
Executive Summary:
1. Summarize the transaction
a. note deviations from requirements for subordinate/mezzanine financing
contained in Loan Documents
b. if Rating Agency Confirmation is permitted under applicable Loan
Documents, note if such Confirmation will be sought
2. State amount and purpose of Lien/Financing
3. Interest Rate
4. Amount of Monthly/Periodic Payment (identify if P&I or Interest only)
5. Identify Subordinate/Mezzanine Lender
a. provide any information furnished by Mortgagor regarding proposed
lender
6. Collateral pledged or mortgaged as security:
7. Briefly describe collateral
a. Size, occupancy, primary tenants, location
b. NOI and DSCR for prior year and, if available, prior two years and
Pro-forma NOI DSCR
8. Complete the chart below:
The transaction terms and property characteristics are summarized as follows:
Estimated closing date for financing:
Administrative fee to Primary Servicer $
Additional Fees, if any $
(50%: Special Servicer; 10%: Master
Servicer; 40%: Primary Servicer
Most recent appraised value according to $
appraisal in Primary Servicer's possession
Loan-to-value as of initial underwriting %
Occupancy as of %
12/31/__ NOI $
Debt service coverage as of x
Project Status & Description: (See attached Asset Summary, most recent
Inspection Report and most recent rent roll)
1. Describe any current, material issues regarding the operating status of the
property: (e.g. issues surrounding current occupancy, anchor tenants, tenant
rollover)
Property Financial Summary: (See attached most recent Income and Expense
Statement for Mortgaged Property and operating statement review)
Escrow Status:
1. Explain status of all Reserves
Collateral Valuation:
1. Discuss the original appraisal
A. Who prepared
B. Attach Executive Summary and discussion of approach to value given
most weight from most recent appraisal in Primary Servicer's
possession
2. Comparison of the following (original to actual property):
A. Vacancy
B. Rents
C. Taxes
D. Other Key Expenses
Current Market Conditions:
Briefly state material current real estate market dynamics and
economic influences that may affect the operational performance of the property.
Recommendation:
1. State recommendation for approval.
2. Highlight strengths and weaknesses. How are weaknesses mitigated? (bullet
points are fine)
Request for Special Servicer Consent:
Primary Servicer hereby recommends and requests consent of Special Servicer to
the foregoing [Subordinate/Mezzanine] Financing.
[ ]
By:
----------------------------------------
Title:
-------------------------------------
Date:
--------------------------------------
Consent to Additional Lien, Monetary Encumbrance or Mezzanine Financing as
described above is given:
ARCAP SERVICING, INC., acting solely in its capacity as
Special Servicer
By:
---------------------------------------
Title:
-------------------------------------
Date:
--------------------------------------
Schedule of Exhibits to Additional Lien, Monetary Encumbrance or Mezzanine
Financing Submission
1. Most recent Income & Expense Statement for property and operating statement
review
2. Original Asset Summary for Mortgaged Property
3. [For Mezzanine financing: If available from Mortgagor, diagram of proposed
ownership structure, including percentages of ownership]
4. [For subordinate mortgage: Copy of Subordination/Intercreditor Agreement in
substantially the form to be executed with subordinate lender]
5. Copy of Note, Mortgage and any Loan Agreement
6. Copy of subordinate loan documents in substantially the form to be executed
7. Most recent Rent Roll.
8. Other items as required by the description set forth above
APPENDIX 4
Lease Summary Submission Package
Loan # ______________________
Borrower Name:
_____________________________________________________________________________
Property Name:
_____________________________________________________________________________
Total Property NRSF (Per Rent Roll):
__________________________________________________________________
Lease Sq. Footage _________% of Total NRSF
Is Lease A Major Lease Per Loan Docs (Y/N)
__________________________________________________________
--------------------------------------------------------------------------------
LEASE INFORMATION
--------------------------------------------------------------------------------
1. Parties to Lease
a. Landlord: _________________________________________________________
b. Rent Commencement Date:
___________________________________________________________________
c. Tenant: ___________________________________________________________
d. Parent Company (if applicable): ___________________________________
e. Subtenant and/or Assignee (if applicable):_________________________
f. If Yes, Is Original Tenant Liable?
(Y/N) _____________________________________________________________
g. Guarantor(s): _____________________________________________________
h. Tenant financial statements
attached: _________________________________________________________
i. If not, why: ______________________________________________________
--------------------------------------------------------------------------------
2. Basic Lease Terms
a. Lease Commencement Date:
___________________________________________________________________
b. Rent Commencement Date:
___________________________________________________________________
c. Lease Expiration:
___________________________________________________________________
d. Unexercised Extension Options (Y/N):
___________________________________________________________________
-If Yes, # of Options/Term (i.e. 1-3 yrs):
___________________________________________________________________
-Terms:
_____________________________________________________________________________
e. Lease Type (Credit/Form):
___________________________________________________________________
f. Use of Premises:
___________________________________________________________________
3. Lease Economic Terms
a. Current Base Annual Rent $
___________________________________________________________________
b. Scheduled Increases Date/New Annual:
___________________________________________________________________
c. Increases/Option Periods (Date/New Annual Rent/PSF):
___________________________________________________________________
d. Percentage Rent Clause? Breakpoint:
___________________________________________________________________
e. TI Amortization Component:
___________________________________________________________________
f. Rent Concessions (enter month):
___________________________________________________________________
--------------------------------------------------------------------------------
4. Expense Reimbursement Recoverable From the Lease (Only note those that
apply):
a. Taxes _____________________________________________________________
b. Insurance _________________________________________________________
c. Management
Fees ______________________________________________________________
d. Utilities _________________________________________________________
e. Non-Structural
Maintanance/Repair ________________________________________________
f. Contract Services
___________________________________________________________________
g. Administrative (% of CAM)
___________________________________________________________________
h. Professional
Fees ______________________________________________________________
i. CAM _______________________________________________________________
--------------------------------------------------------------------------------
5. Options
a. Purchase Option (Note Date/Terms):
___________________________________________________________________
b. Right of First Refusal (Note Date/Terms/Reference
DOT): _____________________________________________________________
--------------------------------------------------------------------------------
6. Other Information (Only note those that apply):
a. Expense Stop
Formula ___________________________________________________________
b. Base
Year ______________________________________________________________
c. Security/Other
Deposits __________________________________________________________
d. Tenant Improvement
Allowance _________________________________________________________
-Above Standard
TI's? _______________________________________________________________________
7. Compliance
a. Lease meets all requirements of the Loan Documents. (Y/N)
If no,
specify _____________________________________________________________________
b. Landlord has complied with all leasing requirements in the Loan
Documents. (Y/N)
If no,
specify _____________________________________________________________________
8. Recommendation
Request for Master Servicer Consent:
Primary Servicer hereby recommends and requests consent of Master Servicer to
the foregoing Lease Approval.
By:
---------------------------------
Title:
------------------------------
Date:
-------------------------------
Consent to Lease Approval is given:
Xxxxx Fargo Bank, National Association, acting solely in its capacity as Master
Servicer
By:
---------------------------------
Title: Date:
------------------------------ ----------------------------------
Exhibits to Lease Summary Submission Package
1. Borrower's written request
2. Lease with amendments, if any
3. Current Rent Roll
4. Current Operating Statement
5. Tenant Financial Statement
6. Applicable provision of Loan Documents
EXHIBIT H
FORM OF EXCHANGE CERTIFICATION
__________ __, 200_
TO: The Depository Trust Company
CLEARSTREAM or
Xxxxxx Guaranty Trust Company of New York, Brussels Office
Euroclear Operation Center
Xxxxx Fargo Bank, National Association, as Master Servicer
Xxxxx Fargo Bank, National Association, as Certificate Registrar
LaSalle Bank National Association, as Trustee
This is to notify you as to the transfer of the beneficial interest in
$_______________ of Bear Xxxxxxx Commercial Mortgage Securities Inc. Commercial
Mortgage Pass-Through Certificates, Series 2005-TOP20, Class __(the
"Certificates").
The undersigned is the owner of a beneficial interest in the Class __
[Rule 144A-IAI Global Certificate] [Regulation S Global Certificate] and
requests that on [INSERT DATE], (i) [Euroclear] [CLEARSTREAM] [DTC] debit
account #__________, with respect to $__________ principal denomination of the
Class __ [Rule 144A-IAI Global Certificate] [Regulation S Global Certificate]
and (ii) [DTC] [Euroclear] [CLEARSTREAM] credit the beneficial interest of the
below-named purchaser, account #__________, in the Class __ [Rule 144A-IAI
Global Certificate] [Regulation S Global Certificate] in the same principal
denomination as follows:
Name:
Address:
Taxpayer I D. No.:
The undersigned hereby represents that this transfer is being made in
accordance with an exemption from the provisions of Section 5 of the United
States Securities Act of 1933, as amended (the "Securities Act"), which
representation is based upon the reasonable belief that the purchaser is [not a
U.S. Person as defined in Regulation S under the Securities Act][a "qualified
institutional buyer," as defined in Rule 144A under the Securities Act, and that
such purchaser has acquired the Certificates in a transaction effected in
accordance with the
exemption from the registration requirements of the Securities Act provided by
Rule 144A and, if the purchaser has purchased the Certificates for one or more
accounts for which it is acting as fiduciary or agent, each such account is a
qualified institutional buyer or an institutional "accredited investor" within
the meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D of the 1933
Act][an institutional "accredited investor" within the meaning of Rule
501(a)(1), (2), (3) or (7) of Regulation D of the 1933 Act and in accordance
with any applicable securities laws of any state of the United States and, if
the purchaser has purchased the Certificates for one or more accounts for which
it is acting as fiduciary or agent, each such account is a qualified
institutional buyer or an institutional "accredited investor" within the meaning
of Rule 501(a)(1), (2), (3) or (7) of Regulation D of the 1933 Act] and that the
purchaser is acquiring beneficial interests in the applicable Certificate(4) for
its own account or for one or more institutional accounts for which it is acting
as fiduciary or agent in a minimum amount equivalent to not less than
U.S.[$25,000] [$100,000] and integral multiples of U.S. $1 in excess thereof for
each such account.
Very truly yours,
[NAME OF HOLDER OF CERTIFICATE]
By:
------------------------------------
[Name], [Chief Financial
or other Executive Officer]
----------
(4) [NOTE: INFORMATION PROVIDED ABOVE WITH RESPECT TO PURCHASER AND THE
FOREGOING REPRESENTATION MUST BE PROVIDED TO THE CERTIFICATE REGISTRAR UPON
ANY TRANSFER OF CERTIFICATES IF THE CERTIFICATES ARE NO LONGER HELD IN
GLOBAL FORM.]
EXHIBIT I
FORM OF EUROCLEAR OR CLEARSTREAM CERTIFICATE
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-TOP20, CLASS___(THE "CERTIFICATES")
TO: Xxxxx Fargo Bank, National Association, as Certificate Registrar
Attn: Corporate Trust Services (CMBS) MAC #N9309-121
LaSalle Bank National Association, as Trustee
Attn: Global Securities and Trust Services Group
Bear Xxxxxxx Commercial Mortgage Securities Inc.
Commercial Mortgage Pass-Through Certificates,
Series 2005-TOP20
This is to certify that, based solely on certifications we have
received in writing, by tested telex or by electronic transmission from member
organizations appearing in our records as persons being entitled to a portion of
the principal amount of the Certificates set forth below (our "Member
Organizations") substantially to the effect set forth in the Pooling and
Servicing Agreement dated as of October 1, 2005 (the "Pooling and Servicing
Agreement") among both of you, Bear Xxxxxxx Commercial Mortgage Securities Inc.,
ABN AMRO Bank N.V. and Xxxxx Fargo Bank, National Association, U.S. $__________
principal amount of the above-captioned Certificates held by us or on our behalf
are beneficially owned by (a) non-U.S. person(s) or (b) U.S. person(s) who
purchased the Certificates in transactions that did not require registration
under the United States Securities Act of 1933, as amended (the "Securities
Act"). As used in this paragraph, the term "U.S. person" has the meaning given
to it by Regulation S under the Securities Act.
We further certify that as of the date hereof we have not received any
notification from any of our Member Organizations to the effect that the
statements made by such Member Organizations with respect to any interest in the
Certificates identified above are no longer true and cannot be relied upon as of
the date hereof.
[On Release Date: We hereby acknowledge that no portion of the Class
__ Regulation S Temporary Global Certificate shall be exchanged for an interest
in the Class __ Regulation S Permanent Global Certificate (as each such term is
defined in the Pooling and Servicing Agreement) with respect to the portion
thereof for which we have not received the applicable certifications from our
Member Organizations.]
[Upon any payments under the Regulation S Temporary Global
Certificate: We hereby agree to hold (and return to the Trustee upon request)
any payments received by us on the Class __ Regulation S Temporary Global
Certificate (as defined in the Pooling and Servicing Agreement) with respect to
the portion thereof for which we have not received the applicable certifications
from our Member Organizations.]
We understand that this certification is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certification is or would be relevant, we irrevocably authorize
you to produce this certification to any interested party in such proceedings.
Dated:
[XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK, Brussels office,
as operator of the Euroclear
System]
or
[CLEARSTREAM]
By:
------------------------------------
EXHIBIT J
LIST OF LOANS TO WHICH EXCESS SERVICING FEES ARE PAID
LOAN MORTGAGE CUT-OFF DATE
# LOAN SELLER PROPERTY NAME BALANCE SORT
---- ----------- -------------------------------------------------------- ------------ -----------
0 XXXX Xxxxxxxxxx Xxxx 121,050,000 121,050,000
2 PCF / MSMC West Towne Mall 113,000,000 113,000,000
3 WFB The Westin Xxxxxx Place 105,000,000 105,000,000
4 PCF Two Renaissance Square 85,200,000 85,200,000
5 PCF / MSMC East Towne Mall 80,000,000 80,000,000
6 BSCMI Xxxxxx Commons 58,300,000 58,300,000
7 WFB Park 'N Fly Atlanta 16,890,000 48,000,000
8 WFB Park 'N Fly Dallas 14,110,000 48,000,000
9 WFB Park 'N Fly Cleveland 9,440,000 48,000,000
00 XXX Xxxx 'N Fly Houston 7,560,000 48,000,000
11 MSMC 1345 Avenue of the Americas 46,800,000 46,800,000
12 MSMC 000 Xxxxxxx Xxxxxx 45,000,000 45,000,000
13 BSCMI Computershare Canton 44,500,000 44,500,000
00 XXX Xxxxx Xxxxxxxx Xxxx 42,000,000 42,000,000
15 BSCMI Wilton Executive Campus 36,000,000 36,000,000
00 XXXXX XxXxxx Xxxxxx - Xxxxxxxx Xxxxx 6,742,378 34,890,544
17 BSCMI InTown Suites - Xxxxxxx 5,579,138 34,890,544
00 XXXXX XxXxxx Xxxxxx - Xxxxxxxx Xxxxxx 3,616,225 34,890,544
19 BSCMI InTown Suites - Broad River 3,613,245 34,890,544
20 BSCMI InTown Suites - Mobile 3,497,348 34,890,544
00 XXXXX XxXxxx Xxxxxx - Xxxxx Xxxxxxx 2,860,726 34,890,544
00 XXXXX XxXxxx Xxxxxx - Xxxxxxx Xxxx 2,600,113 34,890,544
00 XXXXX XxXxxx Xxxxxx - Xxxxxxxxx Xxxxx 2,418,224 34,890,544
00 XXXXX XxXxxx Xxxxxx - Xxxxxxx XX 1,990,964 34,890,544
00 XXXXX XxXxxx Xxxxxx - Xxxxxxxxx Xxxx 1,972,183 34,890,544
00 XXXXX Xxxxxxx Xxxx Xxxxxxxxxxxx 31,270,000 31,270,000
27 BSCMI Marriott Philadelphia West 29,860,000 29,860,000
28 MSMC Fifth & Pine 28,500,000 28,500,000
29 BSCMI American Stock Exchange Building 26,500,000 26,500,000
30 WFB AMLI Downtown Apartments 25,000,000 25,000,000
31 PCF Saddle Brook Shopping Center 23,471,972 23,471,972
00 XXX Xxxxxxxxx Xxxxxxx Shopping Center 22,400,000 22,400,000
00 XXXXX Xxxxx Xxxxx Xxxxx 22,000,000 22,000,000
34 MSMC Corral Hollow 21,300,000 21,300,000
35 PCF 000 Xxxxxxxx Xxxxxx, Xxxxx 20,975,822 20,975,822
00 XXX Xxxx Xxxx Xxxxx 20,000,000 20,000,000
37 BSCMI 0000 Xxxx Xxxxxxxxx Xxxxxxxxx 19,737,600 19,737,600
00 XXXX Xxxx Xxxxxx Plaza 19,350,000 19,350,000
00 XXX Xxxxxx Xxxxx Center 18,976,444 18,976,444
40 WFB 24 Hour Fitness Portfolio - Cypress 16,400,004 18,873,908
41 WFB 24 Hour Fitness Portfolio - 7420 Xxxxxxx 2,473,904 18,873,908
00 XXX Xxxxxxxxxx Plaza 17,463,200 17,463,200
43 WFB Hinckley Portfolio - Stuart Facility 5,587,362 17,358,070
44 WFB Hinckley Portfolio - Portsmouth Facility 5,512,864 17,358,070
00 XXX Xxxxxxxx Xxxxxxxxx - XX Xxxxxx Xxxxx 3,836,655 17,358,070
00 XXX Xxxxxxxx Xxxxxxxxx - Xxxxxxx Facility 2,197,695 17,358,070
47 WFB Hinckley Portfolio - SW Harbor Bass Harbor 223,495 17,358,070
48 WFB Springview Terrace Portfolio - Grand Valley Village 7,060,000 16,920,000
00 XXX Xxxxxxxxxx Xxxxxxx Xxxxxxxxx - Xxxxxxxxx Xxxxxxx 3,320,000 16,920,000
00 XXX Xxxxxxxxxx Xxxxxxx Xxxxxxxxx - Xxxxxxxx Xxxxxxx 3,300,000 16,920,000
00 XXX Xxxxxxxxxx Xxxxxxx Xxxxxxxxx - Xxxxxxxxxx Xxxxxxx 3,240,000 16,920,000
52 WFB The Colonnade Shopping Center 16,200,000 16,200,000
53 PCF 11303 Antoine 15,963,271 15,963,271
00 XXXX Xxxxxxx Xxx Xx. Louis 14,982,954 14,982,954
00 XXXX Xxxxxxx Xxxxxxxxx Center 14,500,000 14,500,000
56 BSCMI Rollingwood Shopping Center 13,600,000 13,600,000
57 WFB 0000 Xxxxxx Xxxx. 13,000,000 13,000,000
00 XXXX XxxXxx Xxxxx Xxxx 12,970,243 12,970,243
59 PCF Willow Run Apartments 12,784,846 12,784,846
60 BSCMI Sun Trust 12,600,000 12,600,000
61 MSMC Xxxxxxx Fiesta Center 11,386,678 11,386,678
62 PCF FedEx Miami 11,250,000 11,250,000
63 PCF 0000 Xxxxx Xxxxxxxxx Xxxxxxxxx 10,500,000 10,500,000
64 WFB Winding Commons 10,400,000 10,400,000
65 BSCMI Xxxxxxx Portfolio - Applebee's - Mount Xxxxxx 2,040,000 10,300,000
00 XXXXX Xxxxxxx Xxxxxxxxx - Xxxxxx Xxxxxx - Xxxxxxxx 1,600,000 10,300,000
67 BSCMI Xxxxxxx Portfolio - Black Eyed Pea - Plano 1,490,000 10,300,000
68 BSCMI Xxxxxxx Portfolio - Xxxx Xxxx'x - Jacksonville 1,300,000 10,300,000
69 BSCMI Xxxxxxx Portfolio - Denny's - Virginia Beach 990,000 10,300,000
70 BSCMI Xxxxxxx Portfolio - Xxxx in the Box - Xxxxx 880,000 10,300,000
71 BSCMI Xxxxxxx Portfolio - Taco Xxxx - Macomb 720,000 10,300,000
72 BSCMI Xxxxxxx Portfolio - Church's - San Antonio 700,000 10,300,000
73 BSCMI Xxxxxxx Portfolio - Arby's - New Bern 580,000 10,300,000
00 XXX Xxxxxxx - Xxxxxx Xxxxxxxx Xxxx 10,250,000 10,250,000
00 XXXX Xxxxxxxxx Xxxxxxx Xxxx 10,100,000 10,100,000
76 WFB Security Public Storage - Bethesda 9,988,379 9,988,379
77 BSCMI Pride Center 9,976,137 9,976,137
78 MSMC AMTEC Center 4 & 10 9,941,035 9,941,035
79 MSMC Brookstone Apartments 9,690,000 9,690,000
80 BSCMI Meridian Town Centre 9,360,000 9,360,000
81 PCF 00000 Xxxxxx Xxxxxx 9,000,000 9,000,000
82 XXXX 00 Xxxx Xxx Xxxxxx Coop 8,900,000 8,900,000
83 BSCMI 205 Place 8,800,000 8,800,000
84 BSCMI Queen's Boulevard Office 8,650,000 8,650,000
85 WFB Wal-Mart Supercenter 8,011,850 8,011,850
86 BSCMI The Tannery 8,000,000 8,000,000
00 XXX Xxxxxx Xxxxxx Station Apartments 8,000,000 8,000,000
00 XXXX Xxxxxxx Xxx - Xxxxxxx Xxxxx 7,986,884 7,986,884
89 BSCMI Lynnwood Corporate Center 7,600,000 7,600,000
00 XXX Xxxx Xxx, Xxxxxxx, XX 7,537,741 7,537,741
91 MSMC Days Inn - Anaheim 7,238,587 7,238,587
00 XXXX Xxxxxx Xxxxxx Xxxxxx Xxxx 7,200,000 7,200,000
00 XXX Xxxxxxxxxx Xxxxx 6,856,603 6,856,603
94 PCF 0000 Xxxxxxxxxx Xxxxxxx 6,786,273 6,786,273
00 XXX Xxxxxxxxxx Xxxxxxxxxx - Xxxxx 6,780,874 6,780,874
96 WFB Birch Commons Apartment Complex 6,550,000 6,550,000
97 MSMC 000 Xxxx 00xx Xxxxxx Coop 6,500,000 6,500,000
98 MSMC Plantation Corporate Center 6,500,000 6,500,000
99 WFB Security Public Storage - Richmond 6,450,000 6,450,000
100 BSCMI Staples Plaza 6,400,000 6,400,000
000 XXX Xxxxxxxx Xxxxx Apartments Complex 6,400,000 6,400,000
000 XXX Xxxxxx Xxxxxx Xxxxx 6,400,000 6,400,000
000 XXXX Xxxxxxxxxx Apartments 6,400,000 6,400,000
104 WFB Shoppes of Midtown 5,880,000 5,880,000
000 XXX XxxxXxxxxx 400 5,800,000 5,800,000
106 PCF 0000 Xxxxxxxxxx Xxxxxxx 5,757,300 5,757,300
000 XXX Xxxxxx K Portfolio Pod 3 - 00000 X Xxxxxxx Xxx 655,000 5,420,000
000 XXX Xxxxxx K Portfolio Pod 3 - 410 N Center 599,000 5,420,000
000 XXX Xxxxxx K Portfolio Pod 3 - 000 X Xxxxxxxx Xxx 592,000 5,420,000
000 XXX Xxxxxx K Portfolio Pod 3 - 0000 X Xxxxxxxxxx Xx 585,000 5,420,000
000 XXX Xxxxxx K Portfolio Pod 3 - 00 X Xxxxxxxx Xxx 571,000 5,420,000
000 XXX Xxxxxx K Portfolio Pod 3 - 0000 X Xxxx Xx 570,000 5,420,000
000 XXX Xxxxxx K Portfolio Pod 3 - 2815 E University 494,000 5,420,000
000 XXX Xxxxxx K Portfolio Pod 3 - 0000 X Xxxxxx Xx 494,000 5,420,000
000 XXX Xxxxxx K Portfolio Pod 3 - 0000 X Xxxxxx Xxx 435,000 5,420,000
000 XXX Xxxxxx K Portfolio Pod 3 - 0000 X Xxxxxxxx Xxx 425,000 5,420,000
117 PCF 00-00 Xxxx 00xx Xxxxxx 5,285,000 5,285,000
000 XXXX XX Retail Portfolio 2,581,808 5,283,237
119 MSMC Metroliner Center 1,385,604 5,283,237
000 XXXX Xxxxxxxx Xxxxx 1,315,825 5,283,237
121 WFB Security Public Storage - Xxxxxxx 5,250,000 5,250,000
000 XXXX Xxxxxxxx Xxxxx 5,190,577 5,190,577
123 WFB Xxxx Xxxxx Shopping Center 5,154,180 5,154,180
000 XXX Xxxxxx K Portfolio Xxx 00 - 000 X 00 Xx 000,000 5,138,000
000 XXX Xxxxxx K Portfolio Xxx 00 - 00 Xxxxxxx Xx 593,000 5,138,000
000 XXX Xxxxxx K Portfolio Pod 10 - 1825 Xxxxxxx Harlem Dr 578,000 5,138,000
000 XXX Xxxxxx K Portfolio Pod 10 - 0000 X Xxxxxxxx Xxx 557,000 5,138,000
000 XXX Xxxxxx K Portfolio Pod 10 - 0000 XXX 00 X 529,000 5,138,000
000 XXX Xxxxxx K Portfolio Xxx 00 - 000 Xxxxxxxxxx Xx 502,000 5,138,000
000 XXX Xxxxxx K Portfolio Pod 10 - 000 X Xxxxxxxx Xxxx 487,000 5,138,000
000 XXX Xxxxxx K Portfolio Pod 10 - 0000 Xxxxxxxxxxx Xx 484,000 5,138,000
000 XXX Xxxxxx K Portfolio Pod 10 - 3275 W Gulf To Lake Hwy 418,000 5,138,000
000 XXX Xxxxxx K Portfolio Xxx 00 - 000 XX Xxxxxxx 00 000,000 5,138,000
134 BSCMI 25 East Salem 5,000,000 5,000,000
000 XXXX 0 Xxxx Xxxxxx Xxxxxx Xxxxx 5,000,000 5,000,000
136 WFB Corporate Pointe 4,991,616 4,991,616
137 WFB Posthole Office 4,979,409 4,979,409
138 BSCMI CVS - Keystone Heights 2,534,009 4,918,958
139 BSCMI CVS - Lakeland 2,384,949 4,918,958
140 BSCMI 00000 Xxxxxxx Xxxx. 4,700,000 4,700,000
000 XXX Xxxxxxxxx - Cheyenne 4,613,133 4,613,133
000 XXX Xxxxxxxxx - Xxxxxxxxxxx 4,540,288 4,540,288
143 PCF Spanish River Plaza 4,500,000 4,500,000
144 MSMC Campus Edge Apts - Phase II 4,456,000 4,456,000
145 WFB Terri's Consign and Design Furnishings 4,426,240 4,426,240
146 BSCMI Swift Creek Shopping Center 4,335,735 4,335,735
147 BSCMI Hanover Commons 4,250,000 4,250,000
000 XXX Xxxxxxxxxxx Xxxxxx 4,214,967 4,214,967
149 PCF 000 Xxxxxx Xxxxxx 4,175,000 4,175,000
150 WFB Security Public Storage - Escondido 4,095,262 4,095,262
000 XXX Xxxxx Xxx Self Storage 4,095,182 4,095,182
000 XXX Xxxxxxxx Xxxxxxx 3,894,008 3,894,008
153 WFB Castroville and Xxxxxxx Industrial 3,891,711 3,891,711
000 XXX Xxxxxxxxx - Xxxxxx 3,841,782 3,841,782
155 BSCMI Rosamond Apartments 3,800,000 3,800,000
156 WFB 0000 X. Xx Xxxxx Xxx. 3,788,401 3,788,401
157 BSCMI 000 Xxxxxxxx Xxxxxx 3,782,645 3,782,645
000 XXX Xxxx Xxxxx Professional Center 3,716,724 3,716,724
000 XXXXX Xxxx Xxxx Benicia 3,589,280 3,589,280
160 MSMC Pyramid Self Storage 3,575,000 3,575,000
000 XXX Xxxxxxxxx - Ruidoso 3,572,359 3,572,359
000 XXX Xxxxxxxxx - Xxx Xxxxxx 3,567,369 3,567,369
163 WFB 00000 Xxxxxxx Xxxx 3,500,000 3,500,000
000 XXX Xxxxxx Xxxxx Apartments 3,493,287 3,493,287
000 XXXX Xxxxxx Xxxxxx Apartments 3,493,056 3,493,056
166 WFB 0000 X. Xxxxxxxxx Xxxxxx 3,490,110 3,490,110
000 XXX Xxx Xxxxx Xxxxxxxxx 3,439,363 3,439,363
000 XXXXX Xxxxxxxxx - Xxxxx 3,400,000 3,400,000
000 XXX Xxxxxxxxx - Xxx Xxxxxxxxxx 3,396,410 3,396,410
000 XXX Xxxxx Xxxxx Xxxxxxxx Xxxxxx-Xxxxxx XX 3,240,015 3,240,015
000 XXX Xxxxxxxx Xxxxxx 3,225,000 3,225,000
000 XXX Xxxxxxxxxx Xxxx Shopping Center 3,190,642 3,190,642
000 XXXXX Xxxx Xxxxx 3,119,502 3,119,502
174 MSMC 0000-0000 Xxxxxx Xxxx 3,100,000 3,100,000
175 PCF 0000 Xxxxxxxxxx Xxxxx 3,093,187 3,093,187
000 XXX Xxxxxx Xxxxx Apartments 3,093,040 3,093,040
177 WFB Xxxxxx Xxxxx Apartments 2,993,474 2,993,474
178 MSMC Xxxx Center Ground Lease 2,987,854 2,987,854
179 WFB CVS Pharmacy-CT 2,941,334 2,941,334
180 BSCMI 000 Xxxxxxxx Xxxx 2,900,000 2,900,000
181 WFB Page Self Storage 2,860,544 2,860,544
182 WFB Dollar General (Pool 7) - Weslaco 587,954 2,820,777
183 WFB Dollar General (Pool 7) - Edinburg 580,954 2,820,777
184 WFB Dollar General (Pool 7) - Southpark 580,954 2,820,777
185 WFB Dollar General (Pool 7) - Santa Xxxx 566,954 2,820,777
186 WFB Dollar General (Pool 7) - Heavenly 503,961 2,820,777
000 XXX Xxxxxxxx Xxxxxxx 2,754,368 2,754,368
188 PCF 000 Xxxxx 00xx Xxxxxx 2,700,000 2,700,000
000 XXX Xxxxxx Xxxxxx Xxxx 2,697,072 2,697,072
000 XXX Xxxx Xxxxxxx - Xxxxxxx Xxxxx 2,694,346 2,694,346
191 WFB Security Public Storage - Oceanside 2,694,200 2,694,200
192 BSCMI Eckerd - McKeesport 2,694,024 2,694,024
193 PCF McBlock XxXxxxxxx 1,373,049 2,692,602
000 XXX XxXxxxx Xxxxxxxxx 1,319,553 2,692,602
000 XXXX Xxxxxxxx Xxxxxx Shopping Center 2,647,116 2,647,116
196 WFB Tractor Supply Company - Wisconsin 2,574,609 2,574,609
000 XXX Xxxxxxx Xxxxxx 2,550,000 2,550,000
000 XXX Xxxxxxx Xxxxxx Apartments 2,524,680 2,524,680
199 BSCMI Walgreens Chesapeake 2,500,000 2,500,000
000 XXX Xxxxxxxxx Xxxxxx 2,497,154 2,497,154
201 WFB Maple Commerce Center 2,494,765 2,494,765
202 PCF Stevens Creek Retail Center 2,485,660 2,485,660
203 BSCMI Kash N' Xxxxx - New Port Xxxxxx 2,452,308 2,452,308
204 WFB Dollar General (Pool 5) - Laredo 630,106 2,396,412
205 WFB Dollar General (Pool 5) - McAllen (Auburn) 616,699 2,396,412
206 WFB Dollar General (Pool 5) - Xxxxx 613,348 2,396,412
207 WFB Dollar General (Pool 5) - McAllen (Dove) 536,260 2,396,412
208 BSCMI Eckerd - Virginia Beach 2,339,577 2,339,577
209 BSCMI CVS Wilmington 2,335,000 2,335,000
210 PCF 0000 Xxxxxxxxx Xxxxxx 2,307,883 2,307,883
000 XXXX Xxxx Xxxx Retail 2,300,000 2,300,000
212 WFB Security Public Storage - Roseville 2,297,396 2,297,396
000 XXX Xxxxxxx Xxxx Plaza 2,297,357 2,297,357
214 PCF 0000 Xxxxx Xxxxxx Xxxxxx 2,296,341 2,296,341
000 XXXX Xxxxxxxx Xxxxxxx 2,250,000 2,250,000
216 PCF 000 X. Xxxxx Xxxx 2,247,380 2,247,380
217 BSCMI Eckerd - Xxxxx 2,200,000 2,200,000
218 PCF XxXxxxxxx Promenade 2,194,890 2,194,890
219 WFB Redding Hilltop Apartments 2,095,431 2,095,431
220 WFB Dollar General (Pool 3) - Castroville 555,101 2,046,936
221 WFB Dollar General (Pool 3) - Harlingen 534,285 2,046,936
222 WFB Dollar General (Pool 3) - Dripping Springs 499,591 2,046,936
223 WFB Dollar General (Pool 3) - New Waverly 457,958 2,046,936
224 MSMC 00 Xxxxx Xxxxxxx Xx. 2,037,933 2,037,933
225 PCF 0000 Xxxxxxxx Xxxxxx 2,000,000 2,000,000
000 XXX Xxxxx Xxxxx Xxxxxxxx 1,996,741 1,996,741
227 PCF The Veranda 1,990,933 1,990,933
228 WFB University Manor Apartments 1,990,918 1,990,918
000 XXX Xxxxxxxx Xxxxxxx Apartments 1,921,197 1,921,197
230 WFB 0000 00xx Xxxxxx Apartments 1,897,804 1,897,804
000 XXX Xxxxxxx Apartments 1,896,954 1,896,954
232 WFB Holiday Xxxxxxx and The Edge 1,869,579 1,869,579
233 WFB Rite Aid - Philadelphia 1,802,773 1,802,773
234 WFB 0000 X. 00xx Xxxxxx 1,800,000 1,800,000
235 WFB City View Apartments 1,800,000 1,800,000
236 WFB Security Public Storage - Sacramento II 1,797,958 1,797,958
237 WFB White Cap Industries II 1,797,097 1,797,097
238 WFB Sundance Apartments 1,787,456 1,787,456
239 WFB Dollar General (Pool 6) - San Marcos 617,277 1,782,472
240 WFB Dollar General (Pool 6) - Walnut 596,469 1,782,472
241 WFB Dollar General (Pool 6) - Hwy 46 568,726 1,782,472
242 BSCMI Rite Aid - Medford 1,775,000 1,775,000
000 XXX Xxxxx Xxxxxxxx Xxxx 1,721,380 1,721,380
000 XXX Xxxxxx Aero Building 1,696,175 1,696,175
245 WFB Van Nuys and Xxxxxxx Way Shopping Center 1,694,893 1,694,893
246 WFB 0000 X. Xxxxx Xxxxxx 1,679,741 1,679,741
247 WFB Broomfield Marketplace 1,650,000 1,650,000
248 BSCMI Xxxxxxxx Retail 1,642,313 1,642,313
249 WFB 0000 Xxx Xxxxxxxx Xxxx 1,637,339 1,637,339
250 BSCMI Rite Aid - Poulsbo 1,600,000 1,600,000
251 BSCMI Rite Aid - Sequim 1,600,000 1,600,000
252 MSMC College & Horizon 1,600,000 1,600,000
253 WFB Red Branch Center 1,598,134 1,598,134
254 WFB Dollar General (Pool 4) - Edinburg 620,712 1,597,627
255 WFB Dollar General (Pool 4) - San Xxxx 613,657 1,597,627
256 WFB Dollar General (Pool 4) - Premont 363,257 1,597,627
257 WFB Security Public Storage - Vallejo 1,596,563 1,596,563
000 XXX Xxxxxx Xxx - Xxx Xxxxxxxxx 1,570,749 1,570,749
259 BSCMI Rite Aid - Turlock 1,550,000 1,550,000
260 WFB 0000 Xxxxxx Xxxxxx 1,498,446 1,498,446
000 XXXX Xxxxx Xxxxxxx - Xxxx Xxxxxx 1,498,407 1,498,407
262 WFB Country Faire Shopping Center 1,498,273 1,498,273
263 BSCMI 0000 Xxxxx Xxxxxx 1,498,158 1,498,158
264 BSCMI 0000 Xxxxxxxx Xxxxxx 1,498,158 1,498,158
265 WFB 00000 Xxx Xxxxxx Industrial 1,484,156 1,484,156
266 BSCMI Rite Aid - Seaside 1,475,000 1,475,000
267 WFB XX XXXXX - Muncie, IN. 1,462,433 1,462,433
000 XXXX Xxxxxxxx Xxxxxx Apartments 1,350,000 1,350,000
000 XXX XxxxxXxxx Mobile Home Park 1,347,991 1,347,991
000 XXX Xxxxxxx Xxxxxxxx Xxxx 1,298,503 1,298,503
271 PCF 0000 Xxxx Xxxxxxxx Xxxx Xxxx 1,248,695 1,248,695
272 WFB Xxxx Xxxxxxxxxx Xxxxxxxxx - Xxxxx 00xx Xxxxxx Apartments 812,381 1,216,513
000 XXX Xxxx Xxxxxxxxxx Xxxxxxxxx - 0000 & 1604 Xxxxx 227,083 1,216,513
274 WFB Waco Apartments Portfolio - St. Xxxxx Apartments 177,048 1,216,513
000 XXX Xxxxxxxxx Xxxxxxx 1,198,644 1,198,644
000 XXXX Xxxxxxxx Xxxxx Apartments 1,195,004 1,195,004
277 MSMC Rite Aid - Xxxxxxxx, LA 1,182,634 1,182,634
278 WFB 5800 Park Center, Ltd 1,148,265 1,148,265
279 BSCMI Kirklands Cookeville 1,100,000 1,100,000
000 XXX Xxxxxx Xxxxx Apartments 1,098,261 1,098,261
000 XXXX Xxxxxxxxx Xxxxxx Apartments 796,669 796,669
282 PCF 0000 Xxxx Xxxxxxxx Xxxxxx 773,194 773,194
283 PCF 00 Xxxx 00xx Xxxxxx 688,392 688,392
284 MSMC 00 Xxxx Xxxxxx 600,000 600,000
285 PCF 0000 Xxxx 00xx Xxxxxx 548,718 548,718
OTHER
MORTGAGE MASTER MASTER PRIMARY EXCESS EXCESS DEAL TRUSTEE ADMINISTRATIVE
LOAN # LOAN SELLER FEE FEE FEE SERVICING SERVICING FEES* FEE COST RATE
------ ----------- ------ ------ ------- --------- --------- ----- ------- --------------
1 MSMC 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
2 PCF / MSMC 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
3 WFB 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
4 PCF 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
5 PCF / MSMC 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
6 BSCMI 0.00 2.00 5.00 2.00 0.00 7.00 0.128 9.128
7 WFB 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
8 WFB 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
9 WFB 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
10 WFB 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
11 MSMC 0.00 0.00 0.25 0.00 0.00 0.25 0.128 0.378
12 MSMC 0.00 0.00 1.00 0.00 0.00 1.00 0.128 1.128
13 BSCMI 0.00 2.00 5.00 2.00 0.00 7.00 0.128 9.128
14 WFB 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
15 BSCMI 0.00 2.00 6.00 2.00 0.00 8.00 0.128 10.128
16 BSCMI 0.00 2.00 1.00 2.00 0.00 3.00 0.128 5.128
17 BSCMI 0.00 2.00 1.00 2.00 0.00 3.00 0.128 5.128
18 BSCMI 0.00 2.00 1.00 2.00 0.00 3.00 0.128 5.128
19 BSCMI 0.00 2.00 1.00 2.00 0.00 3.00 0.128 5.128
20 BSCMI 0.00 2.00 1.00 2.00 0.00 3.00 0.128 5.128
21 BSCMI 0.00 2.00 1.00 2.00 0.00 3.00 0.128 5.128
22 BSCMI 0.00 2.00 1.00 2.00 0.00 3.00 0.128 5.128
23 BSCMI 0.00 2.00 1.00 2.00 0.00 3.00 0.128 5.128
24 BSCMI 0.00 2.00 1.00 2.00 0.00 3.00 0.128 5.128
25 BSCMI 0.00 2.00 1.00 2.00 0.00 3.00 0.128 5.128
26 BSCMI 0.00 2.00 1.00 2.00 0.00 3.00 0.128 5.128
27 BSCMI 0.00 2.00 1.00 2.00 0.00 3.00 0.128 5.128
28 MSMC 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
29 BSCMI 0.00 2.00 3.00 2.00 0.00 5.00 0.128 7.128
30 WFB 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
31 PCF 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
32 WFB 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
33 BSCMI 0.00 2.00 5.00 2.00 0.00 7.00 0.128 9.128
34 MSMC 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
35 PCF 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
36 WFB 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
37 BSCMI 0.00 2.00 1.00 2.00 0.00 3.00 0.128 5.128
38 MSMC 0.00 0.00 0.25 0.00 0.00 0.25 0.128 0.378
39 WFB 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
40 WFB 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
41 WFB 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
42 WFB 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
43 WFB 2.00 2.00 1.00 0.00 0.00 3.00 0.128 5.128
44 WFB 2.00 2.00 1.00 0.00 0.00 3.00 0.128 5.128
45 WFB 2.00 2.00 1.00 0.00 0.00 3.00 0.128 5.128
46 WFB 2.00 2.00 1.00 0.00 0.00 3.00 0.128 5.128
47 WFB 2.00 2.00 1.00 0.00 0.00 3.00 0.128 5.128
48 WFB 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
49 WFB 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
50 WFB 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
51 WFB 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
52 WFB 0.00 2.00 5.00 1.00 0.00 7.00 0.128 8.128
53 PCF 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
54 MSMC 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
55 MSMC 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
56 BSCMI 0.00 2.00 1.00 2.00 0.00 3.00 0.128 5.128
57 WFB 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
58 MSMC 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
59 PCF 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
60 BSCMI 0.00 2.00 6.00 2.00 0.00 8.00 0.128 10.128
61 MSMC 0.00 2.00 5.00 1.00 0.00 7.00 0.128 8.128
62 PCF 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
63 PCF 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
64 WFB 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
65 BSCMI 0.00 2.00 1.00 2.00 0.00 3.00 0.128 5.128
66 BSCMI 0.00 2.00 1.00 2.00 0.00 3.00 0.128 5.128
67 BSCMI 0.00 2.00 1.00 2.00 0.00 3.00 0.128 5.128
68 BSCMI 0.00 2.00 1.00 2.00 0.00 3.00 0.128 5.128
69 BSCMI 0.00 2.00 1.00 2.00 0.00 3.00 0.128 5.128
70 BSCMI 0.00 2.00 1.00 2.00 0.00 3.00 0.128 5.128
71 BSCMI 0.00 2.00 1.00 2.00 0.00 3.00 0.128 5.128
72 BSCMI 0.00 2.00 1.00 2.00 0.00 3.00 0.128 5.128
73 BSCMI 0.00 2.00 1.00 2.00 0.00 3.00 0.128 5.128
74 WFB 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
75 MSMC 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
76 WFB 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
77 BSCMI 0.00 2.00 1.00 2.00 0.00 3.00 0.128 5.128
78 MSMC 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
79 MSMC 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
80 BSCMI 0.00 2.00 1.00 2.00 0.00 3.00 0.128 5.128
81 PCF 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
82 MSMC 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
83 BSCMI 0.00 2.00 1.00 2.00 0.00 3.00 0.128 5.128
84 BSCMI 0.00 2.00 1.00 2.00 0.00 3.00 0.128 5.128
85 WFB 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
86 BSCMI 0.00 2.00 1.00 2.00 0.00 3.00 0.128 5.128
87 WFB 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
88 MSMC 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
89 BSCMI 0.00 2.00 1.00 2.00 0.00 3.00 0.128 5.128
90 WFB 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
91 MSMC 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
92 MSMC 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
93 PCF 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
94 PCF 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
95 WFB 0.00 2.00 5.00 1.00 0.00 7.00 0.128 8.128
96 WFB 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
97 MSMC 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
98 MSMC 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
99 WFB 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
100 BSCMI 0.00 2.00 1.00 2.00 0.00 3.00 0.128 5.128
101 PCF 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
102 WFB 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
103 MSMC 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
104 WFB 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
105 WFB 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
106 PCF 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
107 WFB 0.00 2.00 1.00 16.00 0.00 3.00 0.128 19.128
108 WFB 0.00 2.00 1.00 16.00 0.00 3.00 0.128 19.128
109 WFB 0.00 2.00 1.00 16.00 0.00 3.00 0.128 19.128
110 WFB 0.00 2.00 1.00 16.00 0.00 3.00 0.128 19.128
111 WFB 0.00 2.00 1.00 16.00 0.00 3.00 0.128 19.128
112 WFB 0.00 2.00 1.00 16.00 0.00 3.00 0.128 19.128
113 WFB 0.00 2.00 1.00 16.00 0.00 3.00 0.128 19.128
114 WFB 0.00 2.00 1.00 16.00 0.00 3.00 0.128 19.128
115 WFB 0.00 2.00 1.00 16.00 0.00 3.00 0.128 19.128
116 WFB 0.00 2.00 1.00 16.00 0.00 3.00 0.128 19.128
117 PCF 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
118 MSMC 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
119 MSMC 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
120 MSMC 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
121 WFB 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
122 MSMC 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
123 WFB 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
124 WFB 0.00 2.00 1.00 17.00 0.00 3.00 0.128 20.128
125 WFB 0.00 2.00 1.00 17.00 0.00 3.00 0.128 20.128
126 WFB 0.00 2.00 1.00 17.00 0.00 3.00 0.128 20.128
127 WFB 0.00 2.00 1.00 17.00 0.00 3.00 0.128 20.128
128 WFB 0.00 2.00 1.00 17.00 0.00 3.00 0.128 20.128
129 WFB 0.00 2.00 1.00 17.00 0.00 3.00 0.128 20.128
130 WFB 0.00 2.00 1.00 17.00 0.00 3.00 0.128 20.128
131 WFB 0.00 2.00 1.00 17.00 0.00 3.00 0.128 20.128
132 WFB 0.00 2.00 1.00 17.00 0.00 3.00 0.128 20.128
133 WFB 0.00 2.00 1.00 17.00 0.00 3.00 0.128 20.128
134 BSCMI 0.00 2.00 5.00 2.00 0.00 7.00 0.128 9.128
135 MSMC 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
136 WFB 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
137 WFB 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
138 BSCMI 0.00 2.00 6.00 2.00 0.00 8.00 0.128 10.128
139 BSCMI 0.00 2.00 6.00 2.00 0.00 8.00 0.128 10.128
140 BSCMI 0.00 2.00 1.00 2.00 0.00 3.00 0.128 5.128
141 WFB 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
142 WFB 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
143 PCF 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
144 MSMC 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
145 WFB 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
146 BSCMI 0.00 2.00 1.00 2.00 0.00 3.00 0.128 5.128
147 BSCMI 0.00 2.00 1.00 2.00 0.00 3.00 0.128 5.128
148 WFB 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
149 PCF 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
150 WFB 0.00 2.00 1.00 5.00 0.00 3.00 0.128 8.128
151 WFB 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
152 WFB 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
153 WFB 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
154 WFB 0.00 2.00 1.00 5.00 0.00 3.00 0.128 8.128
155 BSCMI 0.00 2.00 1.00 2.00 0.00 3.00 0.128 5.128
156 WFB 0.00 2.00 5.00 1.00 0.00 7.00 0.128 8.128
157 BSCMI 0.00 2.00 1.00 2.00 0.00 3.00 0.128 5.128
158 WFB 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
159 BSCMI 0.00 2.00 1.00 2.00 0.00 3.00 0.128 5.128
160 MSMC 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
161 WFB 0.00 2.00 1.00 5.00 0.00 3.00 0.128 8.128
162 WFB 0.00 2.00 1.00 5.00 0.00 3.00 0.128 8.128
163 WFB 0.00 2.00 1.00 5.00 0.00 3.00 0.128 8.128
164 PCF 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
165 MSMC 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
166 WFB 0.00 2.00 1.00 5.00 0.00 3.00 0.128 8.128
167 WFB 0.00 2.00 5.00 1.00 0.00 7.00 0.128 8.128
168 BSCMI 0.00 2.00 1.00 2.00 0.00 3.00 0.128 5.128
169 WFB 0.00 2.00 1.00 5.00 0.00 3.00 0.128 8.128
170 WFB 0.00 2.00 1.00 5.00 0.00 3.00 0.128 8.128
171 WFB 0.00 2.00 5.00 6.00 0.00 7.00 0.128 13.128
172 WFB 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
173 BSCMI 0.00 2.00 1.00 2.00 0.00 3.00 0.128 5.128
174 MSMC 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
175 PCF 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
176 WFB 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
177 WFB 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
178 MSMC 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
179 WFB 0.00 2.00 1.00 5.00 0.00 3.00 0.128 8.128
180 BSCMI 0.00 2.00 1.00 2.00 0.00 3.00 0.128 5.128
181 WFB 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
182 WFB 0.00 2.00 1.00 17.00 0.00 3.00 0.128 20.128
183 WFB 0.00 2.00 1.00 17.00 0.00 3.00 0.128 20.128
184 WFB 0.00 2.00 1.00 17.00 0.00 3.00 0.128 20.128
185 WFB 0.00 2.00 1.00 17.00 0.00 3.00 0.128 20.128
186 WFB 0.00 2.00 1.00 17.00 0.00 3.00 0.128 20.128
187 WFB 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
188 PCF 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
189 PCF 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
190 WFB 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
191 WFB 0.00 2.00 1.00 5.00 0.00 3.00 0.128 8.128
192 BSCMI 0.00 2.00 6.00 2.00 0.00 8.00 0.128 10.128
193 PCF 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
194 PCF 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
195 MSMC 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
196 WFB 0.00 2.00 1.00 5.00 0.00 3.00 0.128 8.128
197 WFB 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
198 WFB 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
199 BSCMI 0.00 2.00 1.00 2.00 0.00 3.00 0.128 5.128
200 WFB 0.00 2.00 1.00 5.00 0.00 3.00 0.128 8.128
201 WFB 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
202 PCF 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
203 BSCMI 0.00 2.00 1.00 2.00 0.00 3.00 0.128 5.128
204 WFB 0.00 2.00 1.00 17.00 0.00 3.00 0.128 20.128
205 WFB 0.00 2.00 1.00 17.00 0.00 3.00 0.128 20.128
206 WFB 0.00 2.00 1.00 17.00 0.00 3.00 0.128 20.128
207 WFB 0.00 2.00 1.00 17.00 0.00 3.00 0.128 20.128
208 BSCMI 0.00 2.00 1.00 2.00 0.00 3.00 0.128 5.128
209 BSCMI 0.00 2.00 1.00 2.00 0.00 3.00 0.128 5.128
210 PCF 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
211 MSMC 0.00 2.00 10.00 1.00 0.00 12.00 0.128 13.128
212 WFB 0.00 2.00 1.00 5.00 0.00 3.00 0.128 8.128
213 WFB 0.00 2.00 1.00 5.00 0.00 3.00 0.128 8.128
214 PCF 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
215 MSMC 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
216 PCF 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
217 BSCMI 0.00 2.00 6.00 2.00 0.00 8.00 0.128 10.128
218 PCF 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
219 WFB 0.00 2.00 1.00 5.00 0.00 3.00 0.128 8.128
220 WFB 0.00 2.00 1.00 17.00 0.00 3.00 0.128 20.128
221 WFB 0.00 2.00 1.00 17.00 0.00 3.00 0.128 20.128
222 WFB 0.00 2.00 1.00 17.00 0.00 3.00 0.128 20.128
223 WFB 0.00 2.00 1.00 17.00 0.00 3.00 0.128 20.128
224 MSMC 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
225 PCF 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
226 WFB 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
227 PCF 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
228 WFB 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
229 WFB 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
230 WFB 0.00 2.00 1.00 5.00 0.00 3.00 0.128 8.128
231 PCF 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
232 WFB 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
233 WFB 0.00 2.00 1.00 10.00 0.00 3.00 0.128 13.128
234 WFB 0.00 2.00 1.00 10.00 0.00 3.00 0.128 13.128
235 WFB 0.00 2.00 1.00 5.00 0.00 3.00 0.128 8.128
236 WFB 0.00 2.00 1.00 10.00 0.00 3.00 0.128 13.128
237 WFB 0.00 2.00 1.00 10.00 0.00 3.00 0.128 13.128
238 WFB 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
239 WFB 0.00 2.00 1.00 17.00 0.00 3.00 0.128 20.128
240 WFB 0.00 2.00 1.00 17.00 0.00 3.00 0.128 20.128
241 WFB 0.00 2.00 1.00 17.00 0.00 3.00 0.128 20.128
242 BSCMI 0.00 2.00 1.00 2.00 0.00 3.00 0.128 5.128
243 WFB 0.00 2.00 1.00 10.00 0.00 3.00 0.128 13.128
244 WFB 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
245 WFB 0.00 2.00 1.00 10.00 0.00 3.00 0.128 13.128
246 WFB 0.00 2.00 1.00 5.00 0.00 3.00 0.128 8.128
247 WFB 0.00 2.00 5.00 11.00 0.00 7.00 0.128 18.128
248 BSCMI 0.00 2.00 1.00 2.00 0.00 3.00 0.128 5.128
249 WFB 0.00 2.00 1.00 5.00 0.00 3.00 0.128 8.128
250 BSCMI 0.00 2.00 1.00 2.00 0.00 3.00 0.128 5.128
251 BSCMI 0.00 2.00 1.00 2.00 0.00 3.00 0.128 5.128
252 MSMC 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
253 WFB 0.00 2.00 1.00 10.00 0.00 3.00 0.128 13.128
254 WFB 0.00 2.00 1.00 17.00 0.00 3.00 0.128 20.128
255 WFB 0.00 2.00 1.00 17.00 0.00 3.00 0.128 20.128
256 WFB 0.00 2.00 1.00 17.00 0.00 3.00 0.128 20.128
257 WFB 0.00 2.00 1.00 10.00 0.00 3.00 0.128 13.128
258 WFB 0.00 2.00 1.00 15.00 0.00 3.00 0.128 18.128
259 BSCMI 0.00 2.00 1.00 2.00 0.00 3.00 0.128 5.128
260 WFB 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
261 MSMC 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
262 WFB 0.00 2.00 1.00 5.00 0.00 3.00 0.128 8.128
263 BSCMI 0.00 2.00 1.00 2.00 0.00 3.00 0.128 5.128
264 BSCMI 0.00 2.00 1.00 2.00 0.00 3.00 0.128 5.128
265 WFB 0.00 2.00 1.00 15.00 0.00 3.00 0.128 18.128
266 BSCMI 0.00 2.00 1.00 2.00 0.00 3.00 0.128 5.128
267 WFB 0.00 2.00 1.00 5.00 0.00 3.00 0.128 8.128
268 MSMC 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
269 WFB 0.00 2.00 1.00 5.00 0.00 3.00 0.128 8.128
270 WFB 0.00 2.00 1.00 5.00 0.00 3.00 0.128 8.128
271 PCF 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
272 WFB 0.00 2.00 1.00 17.00 0.00 3.00 0.128 20.128
273 WFB 0.00 2.00 1.00 17.00 0.00 3.00 0.128 20.128
274 WFB 0.00 2.00 1.00 17.00 0.00 3.00 0.128 20.128
275 WFB 0.00 2.00 1.00 15.00 0.00 3.00 0.128 18.128
276 MSMC 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
277 MSMC 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
278 WFB 0.00 2.00 1.00 10.00 0.00 3.00 0.128 13.128
279 BSCMI 0.00 2.00 1.00 2.00 0.00 3.00 0.128 5.128
280 WFB 0.00 2.00 1.00 10.00 0.00 3.00 0.128 13.128
281 MSMC 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
282 PCF 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
283 PCF 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
284 MSMC 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
285 PCF 0.00 2.00 1.00 0.00 0.00 3.00 0.128 3.128
EXHIBIT K-1
FORM OF MORTGAGE LOAN PURCHASE AGREEMENT I (BSCMI)
--------------------------------------------------------------------------------
MORTGAGE LOAN PURCHASE AGREEMENT
between
BEAR XXXXXXX COMMERCIAL MORTGAGE, INC.
as Seller
and
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
as Purchaser
Dated as of October 20, 2005
--------------------------------------------------------------------------------
TABLE OF CONTENTS
1. AGREEMENT TO PURCHASE................................................ 4
2. CONVEYANCE OF MORTGAGE LOANS......................................... 4
3. EXAMINATION OF MORTGAGE FILES AND DUE DILIGENCE REVIEW............... 12
4. REPRESENTATIONS AND WARRANTIES OF SELLER AND PURCHASER............... 13
5. REMEDIES UPON BREACH OF REPRESENTATIONS AND WARRANTIES
MADE BY SELLER.................................................... 16
6. CLOSING.............................................................. 22
7. CLOSING DOCUMENTS.................................................... 23
8. COSTS................................................................ 25
9. NOTICES.............................................................. 25
10. SEVERABILITY OF PROVISIONS........................................... 26
11. FURTHER ASSURANCES................................................... 26
12. SURVIVAL............................................................. 26
13. GOVERNING LAW........................................................ 26
14. BENEFITS OF MORTGAGE LOAN PURCHASE AGREEMENT......................... 26
15. MISCELLANEOUS........................................................ 27
16. ENTIRE AGREEMENT..................................................... 27
Exhibit 1 Mortgage Loan Schedule
Exhibit 2 Representations and Warranties
Exhibit 3 Pricing Formulation
Exhibit 4 Xxxx of Sale
Exhibit 5 Power of Attorney
Index of Defined Terms
Affected Loan(s)........................................................... 17
Agreement.................................................................. 2
Certificate Purchase Agreement............................................. 2
Certificates............................................................... 2
Closing Date............................................................... 3
Collateral Information..................................................... 10
Crossed Mortgage Loans..................................................... 16
Defective Mortgage Loan.................................................... 16
Final Judicial Determination............................................... 19
Fiscal Agent............................................................... 2
Indemnification Agreement.................................................. 13
Initial Purchasers......................................................... 2
Master Servicer............................................................ 2
Material Breach............................................................ 15
Material Document Defect................................................... 15
Memorandum................................................................. 2
Mortgage File.............................................................. 4
Mortgage Loan Schedule..................................................... 3
Mortgage Loans............................................................. 2
Officer's Certificate...................................................... 7
Other Mortgage Loans....................................................... 2
Pooling and Servicing Agreement............................................ 2
Private Certificates....................................................... 2
Prospectus Supplement...................................................... 2
Public Certificates........................................................ 2
Purchaser.................................................................. 2
Repurchased Loan........................................................... 17
Seller..................................................................... 2
Special Servicer........................................................... 2
Trust...................................................................... 2
Trustee.................................................................... 2
Underwriters............................................................... 2
Underwriting Agreement..................................................... 2
MORTGAGE LOAN PURCHASE AGREEMENT
(BEAR XXXXXXX COMMERCIAL MORTGAGE LOANS)
Mortgage Loan Purchase Agreement ("Agreement"), dated as of October
20, 2005, between Bear Xxxxxxx Commercial Mortgage, Inc. ("Seller"), and Bear
Xxxxxxx Commercial Mortgage Securities Inc. ("Purchaser").
Seller agrees to sell and Purchaser agrees to purchase certain
mortgage loans listed on Exhibit 1 hereto (the "Mortgage Loans") as described
herein. Purchaser will convey the Mortgage Loans to a trust (the "Trust")
created pursuant to a Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement"), to be dated as of October 1, 2005 between Purchaser, as
depositor, Xxxxx Fargo Bank, National Association, as master servicer (the
"Master Servicer"), ARCap Servicing, Inc., as special servicer (the "Special
Servicer"), LaSalle Bank National Association, as trustee (the "Trustee"), Xxxxx
Fargo Bank, National Association, as paying agent and certificate registrar, and
ABN AMRO Bank N.V., as fiscal agent (the "Fiscal Agent"). In exchange for the
Mortgage Loans and certain other mortgage loans to be purchased by Purchaser
(collectively the "Other Mortgage Loans"), the Trust will issue to the Depositor
pass-through certificates to be known as Bear Xxxxxxx Commercial Mortgage
Securities Inc., Commercial Mortgage Pass-Through Certificates, Series
2005-TOP20 (the "Certificates"). The Certificates will be issued pursuant to the
Pooling and Servicing Agreement.
Capitalized terms used herein but not defined herein shall have the
meanings assigned to them in the Pooling and Servicing Agreement.
The Class A-1, Class A-2, Class A-3, Class A-AB, Class X-0X, Xxxxx
X-0X, Xxxxx X-X, Class B, Class C, Class D and Class E Certificates (the "Public
Certificates") will be sold by Purchaser to Bear, Xxxxxxx & Co. Inc. and Xxxxxx
Xxxxxxx & Co. Incorporated (the "Underwriters"), pursuant to an Underwriting
Agreement, between Purchaser and the Underwriters, dated October 20, 2005 (the
"Underwriting Agreement"), and the Class X, Class F, Class G, Class H, Class J,
Class K, Class L, Class M, Class N, Class O, Class P, Class Q, Class LF, Class
R-I, Class R-II and Class R-III Certificates (the "Private Certificates") will
be sold by Purchaser to Bear, Xxxxxxx & Co. Inc. and Xxxxxx Xxxxxxx & Co.
Incorporated (the "Initial Purchasers") pursuant to a Certificate Purchase
Agreement, between Purchaser and the Initial Purchasers, dated October 20, 2005
(the "Certificate Purchase Agreement"). The Underwriters will offer the Public
Certificates for sale publicly pursuant to a Prospectus dated September 2, 2005,
as supplemented by a Prospectus Supplement dated October 20, 2005 (together, the
"Prospectus Supplement") and the Initial Purchasers will offer the Private
Certificates for sale in transactions exempt from the registration requirements
of the Securities Act of 1933 pursuant to a Private Placement Memorandum dated
October 20, 2005 (the "Memorandum").
In consideration of the mutual agreements contained herein, Seller and
Purchaser hereby agree as follows:
1. AGREEMENT TO PURCHASE.
1.1. Seller agrees to sell, and Purchaser agrees to purchase, on a
servicing released basis, the Mortgage Loans identified on the
schedule (the "Mortgage Loan Schedule") annexed hereto as Exhibit 1,
as such schedule may be amended to reflect the actual Mortgage Loans
accepted by Purchaser pursuant to the terms hereof. The Cut-Off Date
with respect to the Mortgage Loans is October 1, 2005. The Mortgage
Loans will have an aggregate principal balance as of the close of
business on the Cut-Off Date, after giving effect to any payments due
on or before such date, whether or not received, of $470,399,939. The
sale of the Mortgage Loans shall take place on October 28, 2005 or
such other date as shall be mutually acceptable to the parties hereto
(the "Closing Date"). The purchase price to be paid by Purchaser for
the Mortgage Loans shall equal the amount set forth as such purchase
price on Exhibit 3 hereto. The purchase price shall be paid to Seller
by wire transfer in immediately available funds on the Closing Date.
1.2. On the Closing Date, Purchaser will assign to the Trustee pursuant to
the Pooling and Servicing Agreement all of its right, title and
interest in and to the Mortgage Loans and its rights under this
Agreement (to the extent set forth in Section 14), and the Trustee
shall succeed to such right, title and interest in and to the Mortgage
Loans and Purchaser's rights under this Agreement (to the extent set
forth in Section 14).
2. CONVEYANCE OF MORTGAGE LOANS.
2.1. Effective as of the Closing Date, subject only to receipt of the
consideration referred to in Section 1 hereof and the satisfaction of
the conditions specified in Sections 6 and 7 hereof, Seller does
hereby transfer, assign, set over and otherwise convey to Purchaser,
without recourse, except as specifically provided herein all the
right, title and interest of Seller, with the understanding that a
Servicing Rights Purchase and Sale Agreement, dated October 1, 2005,
will be executed by Seller and the Master Servicer, in and to the
Mortgage Loans identified on the Mortgage Loan Schedule as of the
Closing Date. The Mortgage Loan Schedule, as it may be amended from
time to time on or prior to the Closing Date, shall conform to the
requirements of this Agreement and the Pooling and Servicing
Agreement. In connection with such transfer and assignment, Seller
shall deliver to or on behalf of the Trustee, on behalf of Purchaser,
on or prior to the Closing Date, the Mortgage Note (as described in
clause 2.2.1 hereof) for each Mortgage Loan and on or prior to the
fifth Business Day after the Closing Date, five limited powers of
attorney substantially in the form attached hereto as Exhibit 5 in
favor of the Trustee and the Special Servicer to empower the Trustee
and, in the event of the failure or incapacity of the Trustee, the
Special Servicer, to submit for recording, at the expense of Seller,
any mortgage loan documents required to be recorded as described in
the Pooling and Servicing Agreement and any intervening assignments
with evidence of recording thereon that are required to be included in
the Mortgage Files (so long as original counterparts have previously
been delivered to the Trustee). Seller agrees to reasonably cooperate
with the Trustee and the Special Servicer in connection with any
additional powers of attorney or revisions thereto that are requested
by such parties for purposes of such recordation. The parties hereto
agree that no such power of attorney shall be used
with respect to any Mortgage Loan by or under authorization by any
party hereto except to the extent that the absence of a document
described in the second preceding sentence with respect to such
Mortgage Loan remains unremedied as of the earlier of (i) the date
that is 180 days following the delivery of notice of such absence to
Seller, but in no event earlier than 18 months from the Closing Date,
and (ii) the date (if any) on which such Mortgage Loan becomes a
Specially Serviced Mortgage Loan. The Trustee shall submit such
documents, at Seller's expense, after the periods set forth above,
provided, however, the Trustee shall not submit such assignments for
recording if Seller produces evidence that it has sent any such
assignment for recording and certifies that Seller is awaiting its
return from the applicable recording office. In addition, not later
than the 30th day following the Closing Date, Seller shall deliver to
or on behalf of the Trustee each of the remaining documents or
instruments specified in Section 2.2 hereof (with such exceptions as
are permitted by this Section 2) with respect to each Mortgage Loan
(each, a "Mortgage File"). (Seller acknowledges that the term "without
recourse" does not modify the duties of Seller under Section 5
hereof.)
2.2. All Mortgage Files, or portions thereof, delivered prior to the
Closing Date are to be held by or on behalf of the Trustee in escrow
on behalf of Seller at all times prior to the Closing Date. The
Mortgage Files shall be released from escrow upon closing of the sale
of the Mortgage Loans and payments of the purchase price therefor as
contemplated hereby. The Mortgage File for each Mortgage Loan shall
contain the following documents:
2.2.1. The original Mortgage Note bearing all intervening
endorsements, endorsed "Pay to the order of LaSalle Bank National Association,
as Trustee for Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2005-TOP20, without recourse,
representation or warranty" or if the original Mortgage Note is not included
therein, then a lost note affidavit, with a copy of the Mortgage Note attached
thereto;
2.2.2. The original Mortgage, with evidence of recording thereon, and,
if the Mortgage was executed pursuant to a power of attorney, a certified true
copy of the power of attorney certified by the public recorder's office, with
evidence of recording thereon (if recording is customary in the jurisdiction in
which such power of attorney was executed), or certified by a title insurance
company or escrow company to be a true copy thereof; provided that if such
original Mortgage cannot be delivered with evidence of recording thereon on or
prior to the 45th day following the Closing Date because of a delay caused by
the public recording office where such original Mortgage has been delivered for
recordation or because such original Mortgage has been lost, Seller shall
deliver or cause to be delivered to the Trustee a true and correct copy of such
Mortgage, together with (i) in the case of a delay caused by the public
recording office, an Officer's Certificate (as defined below) of Seller stating
that such original Mortgage has been sent to the appropriate public recording
official for recordation or (ii) in the case of an original Mortgage that has
been lost after recordation, a certification by the appropriate county recording
office where such Mortgage is recorded that such copy is a true and complete
copy of the original recorded Mortgage;
2.2.3. The originals of all agreements modifying a Money Term or other
material modification, consolidation and extension agreements, if any, with
evidence of recording
thereon, or if any such original modification, consolidation or extension
agreement has been delivered to the appropriate recording office for recordation
and either has not yet been returned on or prior to the 45th day following the
Closing Date with evidence of recordation thereon or has been lost after
recordation, a true copy of such modification, consolidation or extension
certified by Seller together with (i) in the case of a delay caused by the
public recording office, an Officer's Certificate of Seller stating that such
original modification, consolidation or extension agreement has been dispatched
or sent to the appropriate public recording official for recordation or (ii) in
the case of an original modification, consolidation or extension agreement that
has been lost after recordation, a certification by the appropriate county
recording office where such document is recorded that such copy is a true and
complete copy of the original recorded modification, consolidation or extension
agreement, and the originals of all assumption agreements, if any;
2.2.4. An original Assignment of Mortgage for each Mortgage Loan, in form
and substance acceptable for recording, signed by the holder of record in favor
of "LaSalle Bank National Association, as Trustee for Bear Xxxxxxx Commercial
Mortgage Securities Inc., Commercial Mortgage Pass-Through Certificates, Series
2005-TOP20," provided, if the related Mortgage has been recorded in the name of
Mortgage Electronic Registration Systems, Inc. ("MERS") or its designee, no such
assignments will be required to be submitted for recording or filing and
instead, Seller shall take all actions as are necessary to cause the Trustee to
be shown as the owner of the related Mortgage on the record of MERS for purposes
of the system of recording transfers of beneficial ownership of mortgages
maintained by MERS and shall deliver to the Master Servicer and the Special
Servicer evidence confirming that the Trustee is shown as the owner on the
record of MERS;
2.2.5. Originals of all intervening assignments of Mortgage (except with
respect to any Mortgage that has been recorded in the name of MERS or its
designees), if any, with evidence of recording thereon or, if such original
assignments of Mortgage have been delivered to the appropriate recorder's office
for recordation, certified true copies of such assignments of Mortgage certified
by Seller, or in the case of an original blanket intervening assignment of
Mortgage retained by Seller, a copy thereof certified by Seller or, if any
original intervening assignment of Mortgage has not yet been returned on or
prior to the 45th day following the Closing Date from the applicable recording
office or has been lost, a true and correct copy thereof, together with (i) in
the case of a delay caused by the public recording office, an Officer's
Certificate of Seller stating that such original intervening assignment of
Mortgage has been sent to the appropriate public recording official for
recordation or (ii) in the case of an original intervening Assignment of
Mortgage that has been lost after recordation, a certification by the
appropriate county recording office where such assignment is recorded that such
copy is a true and complete copy of the original recorded intervening Assignment
of Mortgage;
2.2.6. If the related Assignment of Leases is separate from the Mortgage,
the original of such Assignment of Leases with evidence of recording thereon or,
if such Assignment of Leases has not been returned on or prior to the 45th day
following the Closing Date from the applicable public recording office, a copy
of such Assignment of Leases certified by Seller to be a true and complete copy
of the original Assignment of Leases submitted for recording, together with (i)
an original of each assignment of such Assignment of Leases with evidence of
recording thereon and showing a complete recorded chain of assignment from the
named assignee to the holder of
record, and if any such assignment of such Assignment of Leases has not been
returned from the applicable public recording office, a copy of such assignment
certified by Seller to be a true and complete copy of the original assignment
submitted for recording, and (ii) an original assignment of such Assignment of
Leases, in recordable form, signed by the holder of record in favor of "LaSalle
Bank National Association, as Trustee for Bear Xxxxxxx Commercial Mortgage
Securities Inc., Commercial Mortgage Pass-Through Certificates, Series
2005-TOP20," which assignment may be effected in the related Assignment of
Mortgage, provided, if the related Mortgage has been recorded in the name of
MERS or its designee, no assignment of Assignment of Leases in favor of the
Trustee will be required to be recorded or delivered and instead, Seller shall
take all actions as are necessary to cause the Trustee to be shown as the owner
of the related Mortgage on the record of MERS for purposes of the system of
recording transfers of beneficial ownership of mortgages maintained by MERS and
shall deliver to the Master Servicer and the Special Servicer evidence
confirming that the Trustee is shown as the owner on the record of MERS;
2.2.7. The original of each guaranty, if any, constituting additional
security for the repayment of such Mortgage Loan;
2.2.8. The original Title Insurance Policy, or in the event such original
Title Insurance Policy has not been issued, an original binder or actual title
commitment or a copy thereof certified by the title company with the original
Title Insurance Policy to follow within 180 days of the Closing Date or a
preliminary title report binding on the title company with an original Title
Insurance Policy to follow within 180 days of the Closing Date;
2.2.9. (A) UCC financing statements (together with all assignments thereof)
and (B) UCC-2 or UCC-3 financing statements to the Trustee executed and
delivered in connection with the Mortgage Loan, provided, if the related
Mortgage has been recorded in the name of MERS or its designee, no such
financing statements will be required to be recorded or delivered and instead,
Seller shall take all actions as are necessary to cause the Trustee to be shown
as the owner of the related Mortgage on the record of MERS for purposes of the
system of recording transfers of beneficial ownership of mortgages maintained by
MERS and shall deliver to the Master Servicer and the Special Servicer evidence
confirming that the Trustee is shown as the owner on the record of MERS;
2.2.10. Copies of the related ground lease(s), if any, to any Mortgage Loan
where the Mortgagor is the lessee under such ground lease and there is a lien in
favor of the mortgagee in such lease;
2.2.11. Copies of any loan agreements, lock-box agreements and
intercreditor agreements (including, without limitation, any Intercreditor
Agreement, and a copy (that is, not the original) of the mortgage note
evidencing the related B Note), if any, related to any Mortgage Loan;
2.2.12. Either (A) the original of each letter of credit, if any,
constituting additional collateral for such Mortgage Loan, which shall be
assigned and delivered to the Trustee on behalf of the Trust with a copy to be
held by the Primary Servicer (or the Master Servicer), and applied, drawn,
reduced or released in accordance with documents evidencing or securing the
applicable Mortgage Loan, the Pooling and Servicing Agreement and the Primary
Servicing
Agreement or (B) the original of each letter of credit, if any, constituting
additional collateral for such Mortgage Loan, which shall be held by the Primary
Servicer (or the Master Servicer) on behalf of the Trustee, with a copy to be
held by the Trustee, and applied, drawn, reduced or released in accordance with
documents evidencing or securing the applicable Mortgage Loan, the Pooling and
Servicing Agreement and the Primary Servicing Agreement (it being understood
that Seller has agreed (a) that the proceeds of such letter of credit belong to
the Trust, (b) to notify, on or before the Closing Date, the bank issuing the
letter of credit that the letter of credit and the proceeds thereof belong to
the Trust, and to use reasonable efforts to obtain within 30 days (but in any
event to obtain within 90 days) following the Closing Date, an acknowledgement
thereof by the bank (with a copy of such acknowledgement to be sent to the
Trustee) or a reissued letter of credit and (c) to indemnify the Trust for any
liabilities, charges, costs, fees or other expenses accruing from the failure of
Seller to assign all the rights to the letter of credit hereunder including the
right and power to draw on the letter of credit). In the case of clause (B)
above, any letter of credit held by the Primary Servicer (or Master Servicer)
shall be held in its capacity as agent of the Trust, and if the Primary Servicer
(or Master Servicer) sells its rights to service the applicable Mortgage Loan,
the Primary Servicer (or Master Servicer) has agreed to assign the applicable
letter of credit to the Trust or at the direction of the Special Servicer to
such party as the Special Servicer may instruct, in each case, at the expense of
the Primary Servicer (or Master Servicer). The Primary Servicer (or Master
Servicer) has agreed to indemnify the Trust for any loss caused by the
ineffectiveness of such assignment;
2.2.13. The original environmental indemnity agreement, if any, related to
any Mortgage Loan;
2.2.14. Third-party management agreements for all hotels and for such other
Mortgaged Properties securing Mortgage Loans with a Cut-Off Date principal
balance equal to or greater than $20,000,000;
2.2.15. Any Environmental Insurance Policy;
2.2.16. Any affidavit and indemnification agreement; and
The original of each letter of credit referred to in clause 2.2.12
above shall be delivered to the Primary Servicer, the Master Servicer or the
Trustee (as the case may be) within 45 days of the Closing Date. In addition, a
copy of any ground lease shall be delivered to the Primary Servicer within 30
days of the Closing Date. Any failure to deliver any ground lease shall
constitute a document defect.
"Officer's Certificate" shall mean a certificate signed by one or more of the
Chairman of the Board, any Vice Chairman, the President, any Senior Vice
President, any Vice President, any Assistant Vice President, any Treasurer or
any Assistant Treasurer.
2.3. The Assignments of Mortgage and assignment of Assignment of Leases
referred to in Sections 2.2.4 and 2.2.6 may be in the form of a single
instrument assigning the Mortgage and the Assignment of Leases to the
extent permitted by applicable law. To avoid the unnecessary expense
and administrative inconvenience associated with the execution and
recording or filing of multiple assignments of mortgages, assignments
of
leases (to the extent separate from the mortgages) and assignments of
UCC financing statements, Seller shall execute, in accordance with the
third succeeding paragraph, the assignments of mortgages, the
assignments of leases (to the extent separate from the mortgages) and
the assignments of UCC financing statements relating to the Mortgage
Loans naming the Trustee on behalf of the Certificateholders as
assignee. Notwithstanding the fact that such assignments of mortgages,
assignments of leases (to the extent separate from the assignments of
mortgages) and assignments of UCC financing statements shall name the
Trustee on behalf of the Certificateholders as the assignee, the
parties hereto acknowledge and agree that the Mortgage Loans shall for
all purposes be deemed to have been transferred from Seller to
Purchaser and from Purchaser to the Trustee on behalf of the
Certificateholders.
2.4. If Seller cannot deliver, or cause to be delivered, as to any Mortgage
Loan, any of the documents and/or instruments referred to in Sections
2.2.2, 2.2.3, 2.2.5 or 2.2.6, with evidence of recording thereon,
solely because of a delay caused by the public recording office where
such document or instrument has been delivered for recordation within
such 45 day period, but Seller delivers a photocopy thereof (certified
by the appropriate county recorder's office to be a true and complete
copy of the original thereof submitted for recording), to the Trustee
within such 45 day period, Seller shall then deliver within 90 days
after the Closing Date the recorded document (or within such longer
period after the Closing Date as the Trustee may consent to, which
consent shall not be unreasonably withheld so long as Seller is, as
certified in writing to the Trustee no less often than monthly, in
good faith attempting to obtain from the appropriate county recorder's
office such original or photocopy).
2.5. The Trustee, as assignee or transferee of Purchaser, shall be entitled
to all scheduled payments of principal due thereon after the Cut-Off
Date, all other payments of principal collected after the Cut-Off Date
(other than scheduled payments of principal due on or before the
Cut-Off Date), and all payments of interest on the Mortgage Loans
allocable to the period commencing on the Cut-Off Date. All scheduled
payments of principal and interest due on or before the Cut-Off Date
and collected after the Cut-Off Date shall belong to Seller.
2.6. Within 45 days following the Closing Date, Seller shall deliver and
Purchaser, the Trustee or the agents of either may submit or cause to
be submitted for recordation at the expense of Seller, in the
appropriate public office for real property records, each assignment
referred to in clauses 2.2.4 and 2.2.6(ii) above. Within 90 days
following the Closing Date, Seller shall deliver and Purchaser, the
Trustee or the agents of either may submit or cause to be submitted
for filing, at the expense of Seller, in the appropriate public office
for Uniform Commercial Code financing statements, the assignment
referred to in clause 2.2.1. If any such document or instrument is
lost or returned unrecorded or unfiled, as the case may be, because of
a defect therein, Seller shall prepare a substitute therefor or cure
such defect, and Seller shall, at its own expense (except in the case
of a document or instrument that is lost by the Trustee), record or
file, as the case may be, and deliver such document or instrument in
accordance with this Section 2.
2.7. Documents that are in the possession of Seller, its agents or its
subcontractors that relate to the Mortgage Loans and that are not
required to be delivered to the Trustee shall be shipped by Seller to
or at the direction of the Master Servicer, on behalf of Purchaser, on
or prior to the 75th day after the Closing Date, in accordance with
Section 3.1 of the Primary Servicing Agreement, if applicable.
2.8. The documents required to be delivered to the Master Servicer (or in
the alternative, the Primary Servicer) shall include, to the extent
required to be (and actually) delivered to Seller pursuant to the
applicable Mortgage Loan documents, copies of the following items: the
Mortgage Note, any Mortgage, the Assignment of Leases and the
Assignment of Mortgage, any guaranty/indemnity agreement, any loan
agreement, the insurance policies or certificates, as applicable, the
property inspection reports, any financial statements on the property,
any escrow analysis, the tax bills, the Appraisal, the environmental
report, the engineering report, the asset summary, financial
information on the Borrower/sponsor and any guarantors, any letters of
credit, any intercreditor agreement and any Environmental Insurance
Policies. Delivery of any of the foregoing documents to the Primary
Servicer shall be deemed a delivery to the Master Servicer and satisfy
Seller's obligations under this subparagraph.
2.9. Upon the sale of the Mortgage Loans by Seller to Purchaser pursuant to
this Agreement, the ownership of each Mortgage Note, Mortgage and the
other contents of the related Mortgage File shall be vested in
Purchaser and its assigns, and the ownership of all records and
documents with respect to the related Mortgage Loan prepared by or
that come into the possession of Seller shall immediately vest in
Purchaser and its assigns, and shall be delivered promptly by Seller
to or on behalf of either the Trustee or the Master Servicer as set
forth herein, subject to the requirements of the Primary Servicing
Agreement. Seller's and Purchaser's records shall reflect the transfer
of each Mortgage Loan from Seller to Purchaser and its assigns as a
sale.
2.10. It is the express intent of the parties hereto that the conveyance of
the Mortgage Loans and related property to Purchaser by Seller as
provided in this Section 2 be, and be construed as, an absolute sale
of the Mortgage Loans and related property. It is, further, not the
intention of the parties that such conveyance be deemed a pledge of
the Mortgage Loans and related property by Seller to Purchaser to
secure a debt or other obligation of Seller. However, in the event
that, notwithstanding the intent of the parties, the Mortgage Loans or
any related property are held to be the property of Seller, or if for
any other reason this Agreement is held or deemed to create a security
interest in the Mortgage Loans or any related property, then:
2.10.1. this Agreement shall be deemed to be a security agreement; and
2.10.2. the conveyance provided for in this Section 2 shall be deemed to be
a grant by Seller to Purchaser of a security interest in all of Seller's right,
title, and interest, whether now owned or hereafter acquired, in and to:
2.10.2.1. All accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates of deposit,
goods, letters of credit,
advices of credit and investment property consisting of, arising from or
relating to any of the following property: the Mortgage Loans identified on
the Mortgage Loan Schedule, including the related Mortgage Notes,
Mortgages, security agreements, and title, hazard and other insurance
policies, all distributions with respect thereto payable after the Cut-Off
Date, all substitute or replacement Mortgage Loans and all distributions
with respect thereto, and the Mortgage Files;
2.10.2.2. All accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates of deposit,
goods, letters of credit, advices of credit, investment property and other
rights arising from or by virtue of the disposition of, or collections with
respect to, or insurance proceeds payable with respect to, or claims
against other Persons with respect to, all or any part of the collateral
described in clause (A) above (including any accrued discount realized on
liquidation of any investment purchased at a discount); and
2.10.2.3. All cash and non-cash proceeds of the collateral described
in clauses (A) and (B) above.
2.11. The possession by Purchaser or its designee of the Mortgage Notes,
the Mortgages, and such other goods, letters of credit, advices of
credit, instruments, money, documents, chattel paper or certificated
securities shall be deemed to be possession by the secured party or
possession by a purchaser for purposes of perfecting the security
interest pursuant to the Uniform Commercial Code (including, without
limitation, Sections 9-313 thereof) as in force in the relevant
jurisdiction. Notwithstanding the foregoing, Seller makes no
representation or warranty as to the perfection of any such security
interest.
2.12. Notifications to Persons holding such property, and acknowledgments,
receipts, or confirmations from persons holding such property, shall
be deemed to be notifications to, or acknowledgments, receipts or
confirmations from, securities intermediaries, bailees or agents of,
or Persons holding for, Purchaser or its designee, as applicable, for
the purpose of perfecting such security interest under applicable law.
2.13. Seller shall, to the extent consistent with this Agreement, take such
reasonable actions as may be necessary to ensure that, if this
Agreement were deemed to create a security interest in the property
described above, such security interest would be deemed to be a
perfected security interest of first priority under applicable law and
will be maintained as such throughout the term of the Agreement. In
such case, Seller shall file all filings necessary to maintain the
effectiveness of any original filings necessary under the Uniform
Commercial Code as in effect in any jurisdiction to perfect such
security interest in such property. In connection herewith, Purchaser
shall have all of the rights and remedies of a secured party and
creditor under the Uniform Commercial Code as in force in the relevant
jurisdiction.
2.14. Notwithstanding anything to the contrary contained herein, and
subject to Section 2.1, Purchaser shall not be required to purchase
any Mortgage Loan as to which any Mortgage Note (endorsed as described
in clause 2.2.1) required to be delivered to or on
behalf of the Trustee or the Master Servicer pursuant to this Section
2 on or before the Closing Date is not so delivered, or is not
properly executed or is defective on its face, and Purchaser's
acceptance of the related Mortgage Loan on the Closing Date shall in
no way constitute a waiver of such omission or defect or of
Purchaser's or its successors' and assigns' rights in respect thereof
pursuant to Section 5.
3. EXAMINATION OF MORTGAGE FILES AND DUE DILIGENCE REVIEW.
3.1. Seller shall (i) deliver to Purchaser on or before the Closing Date a
diskette acceptable to Purchaser that contains such information about
the Mortgage Loans as may be reasonably requested by Purchaser, (ii)
deliver to Purchaser investor files (collectively the "Collateral
Information") with respect to the assets proposed to be included in
the Mortgage Pool and made available at Purchaser's headquarters in
New York, and (iii) otherwise cooperate fully with Purchaser in its
examination of the credit files, underwriting documentation and
Mortgage Files for the Mortgage Loans and its due diligence review of
the Mortgage Loans. The fact that Purchaser has conducted or has
failed to conduct any partial or complete examination of the credit
files, underwriting documentation or Mortgage Files for the Mortgage
Loans shall not affect the right of Purchaser or the Trustee to cause
Seller to cure any Material Document Defect or Material Breach (each
as defined below), or to repurchase or replace the defective Mortgage
Loans pursuant to Section 5 hereof.
3.2. On or prior to the Closing Date, Seller shall allow representatives of
any of Purchaser, each Underwriter, each Initial Purchaser, the
Trustee, the Special Servicer and each Rating Agency to examine and
audit all books, records and files pertaining to the Mortgage Loans,
Seller's underwriting procedures and Seller's ability to perform or
observe all of the terms, covenants and conditions of this Agreement.
Such examinations and audits shall take place at one or more offices
of Seller during normal business hours and shall not be conducted in a
manner that is disruptive to Seller's normal business operations upon
reasonable prior advance notice. In the course of such examinations
and audits, Seller will make available to such representatives of any
of Purchaser, each Underwriter, each Initial Purchaser, the Trustee,
the Special Servicer and each Rating Agency reasonably adequate
facilities, as well as the assistance of a sufficient number of
knowledgeable and responsible individuals who are familiar with the
Mortgage Loans and the terms of this Agreement, and Seller shall
cooperate fully with any such examination and audit in all material
respects. On or prior to the Closing Date, Seller shall provide
Purchaser with all material information regarding Seller's financial
condition and access to knowledgeable financial or accounting officers
for the purpose of answering questions with respect to Seller's
financial condition, financial statements as provided to Purchaser or
other developments affecting Seller's ability to consummate the
transactions contemplated hereby or otherwise affecting Seller in any
material respect. Within 45 days after the Closing Date, Seller shall
provide the Master Servicer or Primary Servicer, if applicable, with
any additional information identified by the Master Servicer or
Primary Servicer, if applicable, as necessary to complete the CMSA
Property File, to the extent that such information is available.
3.3. Purchaser may exercise any of its rights hereunder through one or more
designees or agents, provided Purchaser has provided Seller with prior
notice of the identity of such designee or agent.
3.4. Purchaser shall keep confidential any information regarding Seller and
the Mortgage Loans that has been delivered into Purchaser's possession
and that is not otherwise publicly available; provided, however, that
such information shall not be kept confidential (and the right to
require confidentiality under any confidentiality agreement is hereby
waived) to the extent such information is required to be included in
the Memorandum or the Prospectus Supplement or Purchaser is required
by law or court order to disclose such information. If Purchaser is
required to disclose in the Memorandum or the Prospectus Supplement
confidential information regarding Seller as described in the
preceding sentence, Purchaser shall provide to Seller a copy of the
proposed form of such disclosure prior to making such disclosure and
Seller shall promptly, and in any event within two Business Days,
notify Purchaser of any inaccuracies therein, in which case Purchaser
shall modify such form in a manner that corrects such inaccuracies. If
Purchaser is required by law or court order to disclose confidential
information regarding Seller as described in the second preceding
sentence, Purchaser shall notify Seller and cooperate in Seller's
efforts to obtain a protective order or other reasonable assurance
that confidential treatment will be accorded such information and, if
in the absence of a protective order or such assurance, Purchaser is
compelled as a matter of law to disclose such information, Purchaser
shall, prior to making such disclosure, advise and consult with Seller
and its counsel as to such disclosure and the nature and wording of
such disclosure and Purchaser shall use reasonable efforts to obtain
confidential treatment therefor. Notwithstanding the foregoing, if
reasonably advised by counsel that Purchaser is required by a
regulatory agency or court order to make such disclosure immediately,
then Purchaser shall be permitted to make such disclosure without
prior review by Seller.
4. REPRESENTATIONS AND WARRANTIES OF SELLER AND PURCHASER.
4.1. To induce Purchaser to enter into this Agreement, Seller hereby makes
for the benefit of Purchaser and its assigns with respect to each
Mortgage Loan as of the date hereof (or as of such other date
specifically set forth in the particular representation and warranty)
each of the representations and warranties set forth on Exhibit 2
hereto, except as otherwise set forth on Schedule A attached hereto,
and hereby further represents and warrants to Purchaser as of the date
hereof that:
4.1.1. Seller is duly organized and is validly existing as a corporation in
good standing under the laws of the State of New York. Seller has the requisite
power and authority and legal right to own the Mortgage Loans and to transfer
and convey the Mortgage Loans to Purchaser and has the requisite power and
authority to execute and deliver, engage in the transactions contemplated by,
and perform and observe the terms and conditions of, this Agreement.
4.1.2. This Agreement has been duly and validly authorized, executed and
delivered by Seller, and assuming the due authorization, execution and delivery
hereof by Purchaser, this
Agreement constitutes the valid, legal and binding agreement of Seller,
enforceable in accordance with its terms, except as such enforcement may be
limited by (A) laws relating to bankruptcy, insolvency, reorganization,
receivership or moratorium, (B) other laws relating to or affecting the rights
of creditors generally, (C) general equity principles (regardless of whether
such enforcement is considered in a proceeding in equity or at law) or (D)
public policy considerations underlying the securities laws, to the extent that
such public policy considerations limit the enforceability of the provisions of
this Agreement that purport to provide indemnification from liabilities under
applicable securities laws.
4.1.3. No consent, approval, authorization or order of, registration or
filing with, or notice to, any governmental authority or court is required,
under federal or state law, for the execution, delivery and performance of or
compliance by Seller with this Agreement, or the consummation by Seller of any
transaction contemplated hereby, other than (A) such qualifications as may be
required under state securities or blue sky laws, (B) the filing or recording of
financing statements, instruments of assignment and other similar documents
necessary in connection with Seller's sale of the Mortgage Loans to Purchaser,
(C) such consents, approvals, authorizations, qualifications, registrations,
filings or notices as have been obtained and (D) where the lack of such consent,
approval, authorization, qualification, registration, filing or notice would not
have a material adverse effect on the performance by Seller under this
Agreement.
4.1.4. Neither the transfer of the Mortgage Loans to Purchaser, nor the
execution, delivery or performance of this Agreement by Seller, conflicts or
will conflict with, results or will result in a breach of, or constitutes or
will constitute a default under (A) any term or provision of Seller's articles
of organization or by-laws, (B) any term or provision of any material agreement,
contract, instrument or indenture to which Seller is a party or by which it or
any of its assets is bound or results in the creation or imposition of any lien,
charge or encumbrance upon any of its property pursuant to the terms of any such
indenture, mortgage, contract or other instrument, other than pursuant to this
Agreement, or (C) after giving effect to the consents or taking of the actions
contemplated in subsection 4.1.3, any law, rule, regulation, order, judgment,
writ, injunction or decree of any court or governmental authority having
jurisdiction over Seller or its assets, except where in any of the instances
contemplated by clauses (B) or (C) above, any conflict, breach or default, or
creation or imposition of any lien, charge or encumbrance, will not have a
material adverse effect on the consummation of the transactions contemplated
hereby by Seller or its ability to perform its obligations and duties hereunder
or result in any material adverse change in the business, operations, financial
condition, properties or assets of Seller, or in any material impairment of the
right or ability of Seller to carry on its business substantially as now
conducted.
4.1.5. There are no actions or proceedings against, or investigations of,
Seller pending or, to Seller's knowledge, threatened in writing against Seller
before any court, administrative agency or other tribunal, the outcome of which
could reasonably be expected to materially and adversely affect the transfer of
the Mortgage Loans to Purchaser or the execution or delivery by, or
enforceability against, Seller of this Agreement or have an effect on the
financial condition of Seller that would materially and adversely affect the
ability of Seller to perform its obligations under this Agreement.
4.1.6. On the Closing Date, the sale of the Mortgage Loans pursuant to this
Agreement will effect a transfer by Seller of all of its right, title and
interest in and to the Mortgage Loans to Purchaser.
4.1.7. To Seller's knowledge, Seller's Information (as defined in that
certain indemnification agreement, dated October 20, 2005, between Seller,
Purchaser, the Underwriters and the Initial Purchasers (the "Indemnification
Agreement")) relating to the Mortgage Loans does not contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading. Notwithstanding anything contained herein to the contrary,
this subparagraph 4.1.7 shall run exclusively to the benefit of Purchaser and no
other party.
To induce Purchaser to enter into this Agreement, Seller hereby
covenants that the foregoing representations and warranties and those set forth
on Exhibit 2 hereto will be true and correct in all material respects on and as
of the Closing Date with the same effect as if made on the Closing Date.
Each of the representations, warranties and covenants made by Seller
pursuant to this Section 4.1 shall survive the sale of the Mortgage Loans and
shall continue in full force and effect notwithstanding any restrictive or
qualified endorsement on the Mortgage Notes.
4.2. To induce Seller to enter into this Agreement, Purchaser hereby
represents and warrants to Seller as of the date hereof:
4.2.1. Purchaser is a corporation duly organized, validly existing, and in
good standing under the laws of the State of Delaware with full power and
authority to carry on its business as presently conducted by it.
4.2.2. Purchaser has full power and authority to acquire the Mortgage
Loans, to execute and deliver this Agreement and to enter into and consummate
all transactions contemplated by this Agreement. Purchaser has duly and validly
authorized the execution, delivery and performance of this Agreement and has
duly and validly executed and delivered this Agreement. This Agreement, assuming
due authorization, execution and delivery by Seller, constitutes the valid and
binding obligation of Purchaser, enforceable against it in accordance with its
terms, except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity, regardless of
whether such enforcement is considered in a proceeding in equity or at law.
4.2.3. No consent, approval, authorization or order of, registration or
filing with, or notice to, any governmental authority or court is required,
under federal or state law, for the execution, delivery and performance of or
compliance by Purchaser with this Agreement, or the consummation by Purchaser of
any transaction contemplated hereby that has not been obtained or made by
Purchaser.
4.2.4. Neither the purchase of the Mortgage Loans nor the execution,
delivery and performance of this Agreement by Purchaser will violate Purchaser's
certificate of incorporation
or by-laws or constitute a default (or an event that, with notice or lapse of
time or both, would constitute a default) under, or result in a breach of, any
material agreement, contract, instrument or indenture to which Purchaser is a
party or that may be applicable to Purchaser or its assets.
4.2.5. Purchaser's 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, rule, writ, injunction, order or decree of any court, or
order or regulation of any federal, state or municipal government agency having
jurisdiction over Purchaser or its assets, which violation could materially and
adversely affect the condition (financial or otherwise) or the operation of
Purchaser or its assets or could materially and adversely affect its ability to
perform its obligations and duties hereunder.
4.2.6. There are no actions or proceedings against, or investigations of,
Purchaser pending or, to Purchaser's knowledge, threatened against Purchaser
before any court, administrative agency or other tribunal, the outcome of which
could reasonably be expected to adversely affect the transfer of the Mortgage
Loans, the issuance of the Certificates, the execution, delivery or
enforceability of this Agreement or have an effect on the financial condition of
Purchaser that would materially and adversely affect the ability of Purchaser to
perform its obligation under this Agreement.
4.2.7. Purchaser has not dealt with any broker, investment banker, agent or
other person, other than Seller, the Underwriters, the Initial Purchasers and
their respective affiliates, that may be entitled to any commission or
compensation in connection with the sale of the Mortgage Loans or consummation
of any of the transactions contemplated hereby.
To induce Seller to enter into this Agreement, Purchaser hereby
covenants that the foregoing representations and warranties will be true and
correct in all material respects on and as of the Closing Date with the same
effect as if made on the Closing Date.
Each of the representations and warranties made by Purchaser pursuant
to this Section 4.2 shall survive the purchase of the Mortgage Loans.
5. REMEDIES UPON BREACH OF REPRESENTATIONS AND WARRANTIES MADE BY SELLER.
5.1. It is hereby acknowledged that Seller shall make for the benefit of
the Trustee on behalf of the holders of the Certificates, whether
directly or by way of Purchaser's assignment of its rights hereunder
to the Trustee, the representations and warranties set forth on
Exhibit 2 hereto (each as of the date hereof unless otherwise
specified).
5.2. It is hereby further acknowledged that if any document required to be
delivered to the Trustee pursuant to Section 2 is not delivered as and
when required, not properly executed or is defective on its face, or
if there is a breach of any of the representations and warranties
required to be made by Seller regarding the characteristics of the
Mortgage Loans and/or the related Mortgaged Properties as set forth in
Exhibit 2 hereto, and in either case the party discovering such breach
or defect determines that either (i) the defect or breach materially
and adversely affects the interests of the holders of the
Certificates in the related Mortgage Loan or (ii) both (A) the defect
or breach materially and adversely affects the value of the Mortgage
Loan and (B) the Mortgage Loan is a Specially Serviced Mortgage Loan
or Rehabilitated Mortgage Loan (any such defect described in the
preceding clause (i) or (ii), a "Material Document Defect" and any
such breach described in the preceding clause (i) or (ii), a "Material
Breach"), the party determining that such Material Document Defect or
Material Breach exists shall promptly notify, in writing, the other
parties; provided that any breach of the representation and warranty
contained in paragraph (41) of such Exhibit 2 shall constitute a
Material Breach only if such prepayment premium or yield maintenance
charge is not deemed "customary" for commercial mortgage loans as
evidenced by (i) an opinion of tax counsel to such effect or (ii) a
determination by the Internal Revenue Service that such provision is
not customary. Promptly (but in any event within three Business Days)
upon determining (or becoming aware of another party's determination)
that any such Material Document Defect or Material Breach exists
(which determination shall, absent evidence to the contrary, be
presumed to be no earlier than three Business Days prior to delivery
of the notice to Seller referred to below), the Master Servicer shall,
and the Special Servicer may, request that Seller, not later than 90
days from Seller's receipt of the notice of such Material Document
Defect or Material Breach, cure such Material Document Defect or
Material Breach, as the case may be, in all material respects;
provided, however, that if such Material Document Defect or Material
Breach, as the case may be, cannot be corrected or cured in all
material respects within such 90 day period, and such Material
Document Defect or Material Breach would not cause the Mortgage Loan
to be other than a "qualified mortgage"(as defined in the Code) but
Seller is diligently attempting to effect such correction or cure, as
certified by Seller in an Officer's Certificate delivered to the
Trustee, then the cure period will be extended for an additional 90
days unless, solely in the case of a Material Document Defect, (x) the
Mortgage Loan is then a Specially Serviced Mortgage Loan and a
Servicing Transfer Event has occurred as a result of a monetary
default or as described in clause (ii) or clause (v) of the definition
of "Servicing Transfer Event" in the Pooling and Servicing Agreement
and (y) the Material Document Defect was identified in a certification
delivered to Seller by the Trustee pursuant to Section 2.2 of the
Pooling and Servicing Agreement not less than 90 days prior to the
delivery of the notice of such Material Document Defect. The parties
acknowledge that neither delivery of a certification or schedule of
exceptions to Seller pursuant to Section 2.2 of the Pooling and
Servicing Agreement or otherwise nor possession of such certification
or schedule by Seller shall, in and of itself, constitute delivery of
notice of any Material Document Defect or knowledge or awareness by
Seller, the Master Servicer or the Special Servicer of any Material
Document Defect listed therein.
5.3. Seller hereby covenants and agrees that, if any such Material Document
Defect or Material Breach cannot be corrected or cured or Seller
otherwise fails to correct or cure within the above cure periods,
Seller shall, on or before the termination of such cure periods,
either (i) repurchase the affected Mortgage Loan or REO Mortgage Loan
from Purchaser or its assignee at the Purchase Price as defined in the
Pooling and Servicing Agreement, or (ii) if within the three-month
period commencing on the Closing Date (or within the two-year period
commencing on the Closing Date if the related Mortgage Loan is a
"defective obligation" within the meaning of Section 860G(a)(4)(B)(ii)
of the
Code and Treasury Regulation Section 1.860G-2(f)), at its option
replace, without recourse, any Mortgage Loan or REO Mortgage Loan to
which such defect relates with a Qualifying Substitute Mortgage Loan.
If such Material Document Defect or Material Breach would cause the
Mortgage Loan to be other than a "qualified mortgage" (as defined in
the Code), then notwithstanding the previous sentence or the previous
paragraph, repurchase must occur within 85 days from the date Seller
was notified of the defect. Seller agrees that any substitution shall
be completed in accordance with the terms and conditions of the
Pooling and Servicing Agreement.
5.4. If (x) a Mortgage Loan is to be repurchased or replaced as
contemplated above (a "Defective Mortgage Loan"), (y) such Defective
Mortgage Loan is cross-collateralized and cross-defaulted with one or
more other Mortgage Loans ("Crossed Mortgage Loans") and (z) the
applicable document defect or breach does not constitute a Material
Document Defect or Material Breach, as the case may be, as to such
Crossed Mortgage Loans (without regard to this paragraph), then the
applicable document defect or breach (as the case may be) shall be
deemed to constitute a Material Document Defect or Material Breach, as
the case may be, as to each such Crossed Mortgage Loan for purposes of
the above provisions, and Seller shall be obligated to repurchase or
replace each such Crossed Mortgage Loan in accordance with the
provisions above, unless, in the case of such breach or document
defect, (A) Seller provides a Nondisqualification Opinion to the
Trustee at the expense of Seller if, in the reasonable business
judgment of the Trustee, it would be usual and customary in accordance
with industry practice to obtain a Nondisqualification Opinion and (B)
both of the following conditions would be satisfied if Seller were to
repurchase or replace only those Mortgage Loans as to which a Material
Breach or Material Document Defect had occurred without regard to this
paragraph (the "Affected Loan(s)"): (i) the debt service coverage
ratio for all such other Mortgage Loans (excluding the Affected
Loan(s)) for the four calendar quarters immediately preceding the
repurchase or replacement is not less than the lesser of (A) 0.10x
below the debt service coverage ratio for all such other Mortgage
Loans (including the Affected Loans(s)) set forth in Appendix A to the
Final Prospectus Supplement and (B) the debt service coverage ratio
for all such Crossed Mortgage Loans (including the Affected Loan(s))
for the four preceding calendar quarters preceding the repurchase or
replacement, and (ii) the loan-to-value ratio for all such Crossed
Mortgage Loans (excluding the Affected Loan(s)) is not greater than
the greater of (A) the loan-to-value ratio, expressed as a whole
number (taken to one decimal place), for all such Crossed Mortgage
Loans (including the Affected Loan(s)) set forth in Appendix A to the
Final Prospectus Supplement plus 10% and (B) the loan-to-value ratio
for all such Crossed Mortgage Loans (including the Affected Loans(s)),
at the time of repurchase or replacement. The determination of the
Master Servicer as to whether the conditions set forth above have been
satisfied shall be conclusive and binding in the absence of manifest
error. The Master Servicer will be entitled to cause to be delivered,
or direct Seller to (in which case Seller shall) cause to be delivered
to the Master Servicer, an Appraisal of any or all of the related
Mortgaged Properties for purposes of determining whether the condition
set forth in clause (ii) above has been satisfied, in each case at the
expense of Seller if the scope and cost of the Appraisal is approved
by Seller (such approval not to be unreasonably withheld).
5.5. With respect to any Defective Mortgage Loan, to the extent that Seller
is required to repurchase or substitute for such Defective Mortgage
Loan (each, a "Repurchased Loan") in the manner prescribed above while
the Trustee (as assignee of Purchaser) continues to hold any Crossed
Mortgage Loan, Seller and Purchaser hereby agree to forebear from
enforcing any remedies against the other's Primary Collateral but may
exercise remedies against the Primary Collateral securing their
respective Mortgage Loans, including with respect to the Trustee, the
Primary Collateral securing the 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.
If the exercise of remedies by one party would impair the ability of
the other party to exercise its remedies with respect to the Primary
Collateral securing the Mortgage Loan or Mortgage Loans held by such
party, then both parties shall forbear from exercising such remedies
until the loan documents evidencing and securing the relevant Mortgage
Loans can be modified in a manner that complies with the Pooling and
Servicing Agreement to remove the threat of impairment as a result of
the exercise of remedies. Any reserve or other cash collateral or
letters of credit securing the Crossed Mortgage Loans shall be
allocated between such Mortgage Loans in accordance with the Mortgage
Loan documents, or otherwise on a pro rata basis based upon their
outstanding Principal Balances. All other terms of the Mortgage Loans
shall remain in full force and effect, without any modification
thereof. The Mortgagors set forth on Schedule B hereto are intended
third-party beneficiaries of the provisions set forth in this
paragraph and the preceding paragraph. The provisions of this
paragraph and the preceding paragraph may not be modified with respect
to any Mortgage Loan without the related Mortgagor's consent.
5.6. Any of the following document defects shall be conclusively presumed
materially and adversely to affect the interests of Certificateholders
in a Mortgage Loan and be a Material Document Defect: (a) the absence
from the Mortgage File of the original signed Mortgage Note, unless
the Mortgage File contains a signed lost note affidavit and indemnity
that appears to be regular on its face; (b) the absence from the
Mortgage File of the original signed Mortgage that appears to be
regular on its face, unless there is included in the Mortgage File a
certified copy of the Mortgage by the local authority with which the
Mortgage was recorded; or (c) the absence from the Mortgage File of
the item specified in paragraph 2.2.8. If any of the foregoing
Material Document Defects is discovered by the Custodian (or the
Trustee if there is no Custodian), the Trustee (or as set forth in
Section 2.3(a) of the Pooling and Servicing Agreement, the Master
Servicer) will take the steps described elsewhere in this Section,
including the giving of notices to the Rating Agencies and the parties
hereto and making demand upon Seller for the cure of the Material
Document Defect or repurchase or replacement of the related Mortgage
Loan.
5.7. If Seller disputes that a Material Document Defect or Material Breach
exists with respect to a Mortgage Loan or otherwise refuses (i) to
effect a correction or cure of such Material Document Defect or
Material Breach, (ii) to repurchase the affected Mortgage Loan from
Purchaser or its assignee or (iii) to replace such Mortgage Loan with
a Qualifying Substitute Mortgage Loan, each in accordance with this
Agreement, then provided that (i) the period of time provided for
Seller to correct, repurchase or cure has
expired and (ii) the Mortgage Loan is then in default and is then a
Specially Serviced Mortgage Loan, the Special Servicer may, subject to
the Servicing Standard, modify, work-out or foreclose, sell or
otherwise liquidate (or permit the liquidation of) the Mortgage Loan
pursuant to Sections 9.5, 9.12, 9.15 and 9.36, as applicable, of the
Pooling and Servicing Agreement, while pursuing the repurchase claim.
Seller acknowledges and agrees that any modification of the Mortgage
Loan pursuant to a work-out shall not constitute a defense to any
repurchase claim nor shall such modification and work-out change the
Purchase Price due from Seller for any repurchase claim. In the event
of any such modification and work-out, Seller shall be obligated to
repurchase the Mortgage Loan as modified and the Purchase Price shall
include any Work-Out Fee paid to the Special Servicer up to the date
of repurchase plus the present value (calculated at a discount rate
equal to the applicable Mortgage Rate) of the Work-Out Fee that would
have been payable to the Special Servicer in respect of such Mortgage
Loan if the Mortgage Loan performed in accordance with its terms to
its Maturity Date, provided that no amount shall be paid by Seller in
respect of any Work-Out Fee if a Liquidation Fee already comprises a
portion of the Purchase Price.
5.8. Seller shall be notified promptly and in writing by (i) the Trustee of
any notice that it receives that an Option Holder intends to exercise
its Option to purchase the Mortgage Loan in accordance with and as
described in Section 9.36 of the Pooling and Servicing Agreement and
(ii) the Special Servicer of any offer that it receives to purchase
the applicable REO Property, each in connection with such liquidation.
Upon the receipt of such notice by Seller, Seller shall then have the
right to purchase the related Mortgage Loan or REO Property, as
applicable, from the Trust at a purchase price equal to, in the case
of clause (i) of the immediately preceding sentence, the Option
Purchase Price or, in the case of clause (ii) of the immediately
preceding sentence, the amount of such offer. Notwithstanding anything
to the contrary contained in this Agreement or in the Pooling and
Servicing Agreement, the right of any Option Holder to purchase such
Mortgage Loan shall be subject and subordinate to Seller's right to
purchase such Mortgage Loan as described in the immediately preceding
sentence. Seller shall have five Business Days to notify the Trustee
or Special Servicer, as applicable, of its intent to so purchase the
Mortgage Loan or related REO Property from the date that it was
notified of such intention to exercise such Option or of such offer.
The Special Servicer shall be obligated to provide Seller with any
appraisal or other third party reports relating to the Mortgaged
Property within its possession to enable Seller to evaluate the
Mortgage Loan or REO Property. Any sale of the Mortgage Loan, or
foreclosure upon such Mortgage Loan and sale of the REO Property, to a
Person other than Seller shall be without (i) recourse of any kind
(either express or implied) by such Person against Seller and (ii)
representation or warranty of any kind (either express or implied) by
Seller to or for the benefit of such Person.
5.9. The fact that a Material Document Defect or Material Breach is not
discovered until after foreclosure (but in all instances prior to the
sale of the related REO Property or Mortgage Loan) shall not prejudice
any claim against Seller for repurchase of the REO Mortgage Loan or
REO Property. In such an event, the Master Servicer shall notify
Seller of the discovery of the Material Document Defect or Material
Breach and Seller shall have 90 days to correct or cure such Material
Document Defect or Material Breach
or purchase the REO Property at the Purchase Price. If Seller fails to
correct or cure the Material Document Defect or Material Breach or
purchase the REO Property, then the provisions above regarding notice
of offers related to such REO Property and Seller's right to purchase
such REO Property shall apply. After a final liquidation of the
Mortgage Loan or REO Mortgage Loan, if a court of competent
jurisdiction issues a final order after the expiration of any
applicable appeal period that Seller is or was obligated to repurchase
the related Mortgage Loan or REO Mortgage Loan (a "Final Judicial
Determination") or Seller otherwise accepts liability, then, but in no
event later than the Termination of the Trust pursuant to Section 9.30
of the Pooling and Servicing Agreement, Seller will be obligated to
pay to the Trust the difference between any Liquidation Proceeds
received upon such liquidation in accordance with the Pooling and
Servicing Agreement (including those arising from any sale to Seller)
and the Purchase Price.
5.10. Notwithstanding anything to the contrary contained herein, in
connection with any sale or other liquidation of a Mortgage Loan or
REO Property as described in this Section 5, the Special Servicer
shall not receive a Liquidation Fee from Seller (but may collect such
Liquidation Fee from the related Liquidation Proceeds as otherwise
provided herein); provided, however, that in the event Seller is
obligated to repurchase the Mortgage Loan or REO Mortgaged Property
after a final liquidation of such Mortgage Loan or REO Property
pursuant to the immediately preceding paragraph, an amount equal to
any Liquidation Fee (calculated on the basis of Liquidation Proceeds)
payable to the Special Servicer shall be included in the definition of
"Purchase Price" in respect of such Mortgage Loan or REO Mortgaged
Property. Except as expressly set forth above, no Liquidation Fee
shall be payable in connection with a repurchase of a Mortgage Loan by
Seller.
5.11. The obligations of Seller set forth in this Section 5 to cure a
Material Document Defect or a Material Breach or repurchase or replace
a defective Mortgage Loan constitute the sole remedies of Purchaser or
its assignees with respect to a Material Document Defect or Material
Breach in respect of an outstanding Mortgage Loan; provided, that this
limitation shall not in any way limit Purchaser's rights or remedies
upon breach of any other representation or warranty or covenant by
Seller set forth in this Agreement (other than those set forth in
Exhibit 2).
5.12. Notwithstanding the foregoing, in the event that there is a breach of
the representations and warranties set forth in paragraph 39 in
Exhibit 2 hereto, and as a result the payments, by a Mortgagor, of
reasonable costs and expenses associated with the defeasance or
assumption of a Mortgage Loan are insufficient causing the Trust to
incur an Additional Trust Expense in an amount equal to such
reasonable costs and expenses not paid by such Mortgagor, Seller
hereby covenants and agrees to reimburse the Trust within 90 days of
the receipt of notice of such breach in an amount sufficient to avoid
such Additional Trust Expense. The parties hereto acknowledge that
such reimbursement shall be Seller's sole obligation with respect to
the breach discussed in the previous sentence.
5.13. The Pooling and Servicing Agreement shall provide that the Trustee
(or the Master Servicer or the Special Servicer on its behalf) shall
give written notice promptly (but in any event within three Business
Days) to Seller of its determination that any Material Document Defect
or Material Breach exists (which determination shall, absent evidence
to the contrary, be presumed to be no earlier than three Business Days
prior to delivery of the notice) and prompt written notice to Seller
in the event that any Mortgage Loan becomes a Specially Serviced
Mortgage Loan (as defined in the Pooling and Servicing Agreement).
5.14. If Seller repurchases any Mortgage Loan pursuant to this Section 5,
Purchaser or its assignee, following receipt by the Trustee of the
Purchase Price therefor, promptly shall deliver or cause to be
delivered to Seller all Mortgage Loan documents with respect to such
Mortgage Loan, and each document that constitutes a part of the
Mortgage File that was endorsed or assigned to the Trustee shall be
endorsed and assigned to Seller in the same manner such that Seller
shall be vested with legal and beneficial title to such Mortgage Loan,
in each case without recourse, including any property acquired in
respect of such Mortgage Loan or proceeds of any insurance policies
with respect thereto.
6. CLOSING.
6.1. The closing of the sale of the Mortgage Loans shall be held at the
offices of Xxxxxx & Xxxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000
at 9:00 a.m., New York time, on the Closing Date. The closing shall be
subject to each of the following conditions:
6.1.1. All of the representations and warranties of Seller and Purchaser
specified in Section 4 hereof (including, without limitation, the
representations and warranties set forth on Exhibit 2 hereto) shall be true and
correct as of the Closing Date (to the extent of the standard, if any, set forth
in each representation and warranty).
6.1.2. All Closing Documents specified in Section 7 hereof, in such forms
as are agreed upon and reasonably acceptable to Seller or Purchaser, as
applicable, shall be duly executed and delivered by all signatories as required
pursuant to the respective terms thereof.
6.1.3. Seller shall have delivered and released to Purchaser or its
designee all documents required to be delivered to Purchaser as of the Closing
Date pursuant to Section 2 hereof.
6.1.4. The result of the examination and audit performed by Purchaser and
its affiliates pursuant to Section 3 hereof shall be satisfactory to Purchaser
and its affiliates in their sole determination and the parties shall have agreed
to the form and contents of Seller's Information to be disclosed in the
Memorandum and the Prospectus Supplement.
6.1.5. All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with, and
Seller and Purchaser shall have the ability to comply with all terms and
conditions and perform all duties and obligations required to be complied with
or performed after the Closing Date.
6.1.6. Seller shall have paid all fees and expenses payable by it to
Purchaser pursuant to Section 8 hereof.
6.1.7. The Certificates to be so rated shall have been assigned ratings by
each Rating Agency no lower than the ratings specified for each such Class in
the Memorandum and the Prospectus Supplement.
6.1.8. No Underwriter shall have terminated the Underwriting Agreement and
none of the Initial Purchasers shall have terminated the Certificate Purchase
Agreement, and neither the Underwriters nor the Initial Purchasers shall have
suspended, delayed or otherwise cancelled the Closing Date.
6.1.9. Seller shall have received the purchase price for the Mortgage Loans
pursuant to Section 1 hereof.
6.2. Each party agrees to use its best efforts to perform its respective
obligations hereunder in a manner that will enable Purchaser to
purchase the Mortgage Loans on the Closing Date.
CLOSING DOCUMENTS. The Closing Documents shall consist of the
following:
6.3. This Agreement duly executed by Purchaser and Seller.
6.4. A certificate of Seller, executed by a duly authorized officer of
Seller and dated the Closing Date, and upon which Purchaser and its
successors and assigns may rely, to the effect that: (i) the
representations and warranties of Seller in this Agreement are true
and correct in all material respects on and as of the Closing Date
with the same force and effect as if made on the Closing Date,
provided that any representations and warranties made as of a
specified date shall be true and correct as of such specified date;
and (ii) Seller has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied on or prior to the
Closing Date.
6.5. True, complete and correct copies of Seller's articles of organization
and by-laws.
6.6. A certificate of existence for Seller from the Secretary of State of
New York dated not earlier than 30 days prior to the Closing Date.
6.7. A certificate of the Secretary or Assistant Secretary of Seller, dated
the Closing Date, and upon which Purchaser may rely, to the effect
that each individual who, as an officer or representative of Seller,
signed this Agreement or any other document or certificate delivered
on or before the Closing Date in connection with the transactions
contemplated herein, was at the respective times of such signing and
delivery, and is as of the Closing Date, duly elected or appointed,
qualified and acting as such officer or representative, and the
signatures of such persons appearing on such documents and
certificates are their genuine signatures.
6.8. An opinion of counsel (which, other than as to the opinion described
in paragraph 7.6.6 below, may be in-house counsel) to Seller, dated
the Closing Date, substantially to the effect of the following (with
such changes and modifications as Purchaser may approve and subject to
such counsel's reasonable qualifications):
6.8.1. Seller is validly existing under New York law and has full corporate
power and authority to enter into and perform its obligations under this
Agreement.
6.8.2. This Agreement has been duly authorized, executed and delivered by
Seller.
6.8.3. No consent, approval, authorization or order of any federal court or
governmental agency or body is required for the consummation by Seller of the
transactions contemplated by the terms of this Agreement except any approvals as
have been obtained.
6.8.4. Neither the execution, delivery or performance of this Agreement by
Seller, nor the consummation by Seller of any of the transactions contemplated
by the terms of this Agreement (A) conflicts with or results in a breach or
violation of, or constitutes a default under, the organizational documents of
Seller, (B) to the knowledge of such counsel, constitutes a default under any
term or provision of any material agreement, contract, instrument or indenture,
to which Seller is a party or by which it or any of its assets is bound or
results in the creation or imposition of any lien, charge or encumbrance upon
any of its property pursuant to the terms of any such indenture, mortgage,
contract or other instrument, other than pursuant to this Agreement, or (C)
conflicts with or results in a breach or violation of any law, rule, regulation,
order, judgment, writ, injunction or decree of any court or governmental
authority having jurisdiction over Seller or its assets, except where in any of
the instances contemplated by clauses (B) or (C) above, any conflict, breach or
default, or creation or imposition of any lien, charge or encumbrance, will not
have a material adverse effect on the consummation of the transactions
contemplated hereby by Seller or materially and adversely affect its ability to
perform its obligations and duties hereunder or result in any material adverse
change in the business, operations, financial condition, properties or assets of
Seller, or in any material impairment of the right or ability of Seller to carry
on its business substantially as now conducted.
6.8.5. To his or her knowledge, there are no legal or governmental actions,
investigations or proceedings pending to which Seller is a party, or threatened
against Seller, (a) asserting the invalidity of this Agreement or (b) which
materially and adversely affect the performance by Seller of its obligations
under, or the validity or enforceability of, this Agreement.
6.8.6. This Agreement is a valid, legal and binding agreement of Seller,
enforceable against Seller in accordance with its terms, except as such
enforcement may be limited by (1) laws relating to bankruptcy, insolvency,
reorganization, receivership or moratorium, (2) other laws relating to or
affecting the rights of creditors generally, (3) general equity principles
(regardless of whether such enforcement is considered in a proceeding in equity
or at law) or (4) public policy considerations underlying the securities laws,
to the extent that such public policy considerations limit the enforceability of
the provisions of this Agreement that purport to provide indemnification from
liabilities under applicable securities laws.
Such opinion may express its reliance as to factual matters on, among
other things specified in such opinion, the representations and warranties made
by, and on certificates or other documents furnished by officers of, the parties
to this Agreement.
In rendering the opinions expressed above, such counsel may limit such
opinions to matters governed by the federal laws of the United States and the
corporate laws of the State of Delaware and the State of New York, as
applicable.
6.9. Such other opinions of counsel as any Rating Agency may request in
connection with the sale of the Mortgage Loans by Seller to Purchaser
or Seller's execution and delivery of, or performance under, this
Agreement.
6.10. A letter from Deloitte & Touche, certified public accountants, dated
the date hereof, to the effect that they have performed certain
specified procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature set
forth in the Memorandum and the Prospectus Supplement agrees with the
records of Seller.
6.11. Such further certificates, opinions and documents as Purchaser may
reasonably request.
6.12. An officer's certificate of Purchaser, dated as of the Closing Date,
with the resolutions of Purchaser authorizing the transactions
described herein attached thereto, together with certified copies of
the charter, by-laws and certificate of good standing of Purchaser
dated not earlier than 30 days prior to the Closing Date.
6.13. Such other certificates of Purchaser's officers or others and such
other documents to evidence fulfillment of the conditions set forth in
this Agreement as Seller or its counsel may reasonably request.
6.14. An executed Xxxx of Sale in the form attached hereto as Exhibit 4.
COSTS. Seller shall pay Purchaser the costs and expenses as agreed
upon by Seller and Purchaser in a separate Letter of Understanding entered into
in connection with this Agreement and the issuance of the Certificates.
NOTICES. All communications provided for or permitted hereunder shall
be in writing and shall be deemed to have been duly given if (a) personally
delivered, (b) mailed by registered or certified mail, postage prepaid and
received by the addressee, (c) sent by express courier delivery service and
received by the addressee, or (d) transmitted by telex or facsimile transmission
(or any other type of electronic transmission agreed upon by the parties) and
confirmed by a writing delivered by any of the means described in (a), (b) or
(c), if (i) to Purchaser, addressed to Bear Xxxxxxx Commercial Mortgage
Securities Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: J.
Xxxxxxxxxxx Xxxxxxx (or to such other address as Purchaser may designate in
writing), with a copy to Bear Xxxxxxx Commercial Mortgage Securities Inc., 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Legal Department (or to
such other address as Purchaser may designate in writing), or if (ii) to Seller,
addressed to the Seller at Bear Xxxxxxx Commercial Mortgage, Inc., 000 Xxxxxxx
Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: J. Xxxxxxxxxxx Xxxxxxx (or to such other
address as Seller may designate in writing), with a copy to the attention of
Xxxxxx X. Xxxxxxxxx, Xx., Esq., telecopy number: (000) 000-0000.
SEVERABILITY OF PROVISIONS. Any part, provision, representation,
warranty or covenant of this Agreement that is prohibited or that is held to be
void or unenforceable shall be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof. Any part,
provision, representation, warranty or covenant of this Agreement that is
prohibited or unenforceable or is held to be void or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. To the extent permitted by applicable law, the parties
hereto waive any provision of law that prohibits or renders void or
unenforceable any provision hereof.
FURTHER ASSURANCES. Seller and Purchaser each agree to execute and
deliver such instruments and take such actions as the other may, from time to
time, reasonably request in order to effectuate the purpose and to carry out the
terms of this Agreement and the Pooling and Servicing Agreement.
SURVIVAL. Each party hereto agrees that the representations,
warranties and agreements made by it herein and in any certificate or other
instrument delivered pursuant hereto shall be deemed to be relied upon by the
other party, notwithstanding any investigation heretofore or hereafter made by
the other party or on its behalf, and that the representations, warranties and
agreements made by such other party herein or in any such certificate or other
instrument shall survive the delivery of and payment for the Mortgage Loans and
shall continue in full force and effect, notwithstanding any restrictive or
qualified endorsement on the Mortgage Notes and notwithstanding subsequent
termination of this Agreement.
GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND
RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK. THE
PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK
GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
BENEFITS OF MORTGAGE LOAN PURCHASE AGREEMENT. This Agreement shall
inure to the benefit of and shall be binding upon Seller, Purchaser and their
respective successors, legal representatives, and permitted assigns, and nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any other person any legal or equitable right, remedy or claim under or in
respect of this Agreement, or any provisions herein contained, this Agreement
and all conditions and provisions hereof being intended to be and being for the
sole and exclusive benefit of such persons and for the benefit of no other
person except that the rights and obligations of Purchaser pursuant to Sections
2, 4.1 (other than clause 4.1.7), 5, 9, 10, 11, 12 and 13 hereof may be assigned
to the Trustee as may be required to effect the purposes of the Pooling and
Servicing Agreement and, upon such assignment, the
Trustee shall succeed to the rights and obligations hereunder of Purchaser. No
owner of a Certificate issued pursuant to the Pooling and Servicing Agreement
shall be deemed a successor or permitted assigns because of such ownership.
MISCELLANEOUS. This Agreement may be executed in two or more
counterparts, each of which when so executed and delivered shall be an original,
but all of which together shall constitute one and the same instrument. Neither
this Agreement nor any term hereof may be changed, waived, discharged or
terminated orally, but only by an instrument in writing signed by the party
against whom enforcement of the change, waiver, discharge or termination is
sought. The headings in this Agreement are for purposes of reference only and
shall not limit or otherwise affect the meaning hereof. The rights and
obligations of Seller under this Agreement shall not be assigned by Seller
without the prior written consent of Purchaser, except that any person into
which Seller may be merged or consolidated, or any corporation resulting from
any merger, conversion or consolidation to which Seller is a party, or any
person succeeding to the entire business of Seller shall be the successor to
Seller hereunder.
ENTIRE AGREEMENT. This Agreement contains the entire agreement and
understanding between the parties hereto with respect to the subject matter
hereof (other than the Letter of Understanding (solely with respect to those
portions of this Agreement that are not assigned to the Trustee), the
Indemnification Agreement and the Pooling and Servicing Agreement), and
supersedes all prior and contemporaneous agreements, understandings, inducements
and conditions, express or implied, oral or written, of any nature whatsoever
with respect to the subject matter hereof. The express terms hereof control and
supersede any course of performance or usage of the trade inconsistent with any
of the terms hereof.
IN WITNESS WHEREOF, Purchaser and Seller have caused this Agreement to
be executed by their respective duly authorized officers as of the date first
above written.
BEAR XXXXXXX COMMERCIAL MORTGAGE, INC.
By: /s/
------------------------------------
Name: Xxxxxxx X. Xxxxxx, Xx.
----------------------------------
Title: Managing Director
---------------------------------
BEAR XXXXXXX COMMERCIAL MORTGAGE
SECURITIES INC.
By: /s/
------------------------------------
Name: Xxxxxxx X. Xxxxxx, Xx.
----------------------------------
Title: V.P.
---------------------------------
EXHIBIT 1
MORTGAGE LOAN SCHEDULE
EXHIBIT 2
REPRESENTATIONS AND WARRANTIES REGARDING
INDIVIDUAL MORTGAGE LOANS
1. Mortgage Loan Schedule. The information set forth in the Mortgage
Loan Schedule is complete, true and correct in all material respects as of the
date of this Agreement and as of the Cut-Off Date.
2. Whole Loan; Ownership of Mortgage Loans. Each Mortgage Loan is a
whole loan and not a participation interest in a mortgage loan. Immediately
prior to the transfer to Purchaser of the Mortgage Loans, Seller had good title
to, and was the sole owner of, each Mortgage Loan. Seller has full right, power
and authority to transfer and assign each of the Mortgage Loans to or at the
direction of Purchaser and has validly and effectively conveyed (or caused to be
conveyed) to Purchaser or its designee all of Seller's legal and beneficial
interest in and to the Mortgage Loans free and clear of any and all pledges,
liens, charges, security interests and/or other encumbrances. The sale of the
Mortgage Loans to Purchaser or its designee does not require Seller to obtain
any governmental or regulatory approval or consent that has not been obtained.
3. Payment Record. No scheduled payment of principal and interest
under any Mortgage Loan was 30 days or more past due as of the Cut-Off Date, and
no Mortgage Loan was 30 days or more delinquent in the twelve-month period
immediately preceding the Cut-Off Date.
4. Lien; Valid Assignment. The Mortgage related to and delivered in
connection with each Mortgage Loan constitutes a valid and, subject to the
exceptions set forth in paragraph 13 below, enforceable first priority lien upon
the related Mortgaged Property, prior to all other liens and encumbrances,
except for (a) the lien for current real estate taxes and assessments not yet
due and payable, (b) covenants, conditions and restrictions, rights of way,
easements and other matters that are of public record and/or are referred to in
the related lender's title insurance policy, (c) exceptions and exclusions
specifically referred to in such lender's title insurance policy, (d) other
matters to which like properties are commonly subject, none of which matters
referred to in clauses (b), (c) or (d), individually or in the aggregate,
materially interferes with the security intended to be provided by such
Mortgage, the marketability or current use of the Mortgaged Property or the
current ability of the Mortgaged Property to generate operating income
sufficient to service the Mortgage Loan debt and (e) if such Mortgage Loan is
cross-collateralized with any other Mortgage Loan, the lien of the Mortgage for
such other Mortgage Loan (the foregoing items (a) through (e), the "Permitted
Encumbrances"). The related assignment of such Mortgage executed and delivered
in favor of the Trustee is in recordable form and constitutes a legal, valid and
binding assignment, sufficient to convey to the assignee named therein all of
the assignor's right, title and interest in, to and under such Mortgage. Such
Mortgage, together with any separate security agreements, chattel mortgages or
equivalent instruments, establishes and creates a valid and, subject to the
exceptions set forth in paragraph 13 below, enforceable security interest in
favor of the holder thereof in all of the related Mortgagor's personal property
used in, and reasonably necessary to operate, the related Mortgaged Property. In
the case of a Mortgaged Property operated as a hotel or an assisted living
facility, the Mortgagor's personal property includes all personal property that
a prudent
mortgage lender making a similar Mortgage Loan would deem reasonably necessary
to operate the related Mortgaged Property as it is currently being operated. A
Uniform Commercial Code financing statement has been filed and/or recorded in
all places necessary to perfect a valid security interest in such personal
property, to the extent a security interest may be so created therein, and such
security interest is a first priority security interest, subject to any prior
purchase money security interest in such personal property and any personal
property leases applicable to such personal property. Notwithstanding the
foregoing, no representation is made as to the perfection of any security
interest in rents or other personal property to the extent that possession or
control of such items or actions other than the filing of Uniform Commercial
Code financing statements are required in order to effect such perfection.
5. Assignment of Leases and Rents. The Assignment of Leases related to
and delivered in connection with each Mortgage Loan establishes and creates a
valid, subsisting and, subject to the exceptions set forth in paragraph 13
below, enforceable first priority lien and first priority security interest in
the related Mortgagor's interest in all leases, sub-leases, licenses or other
agreements pursuant to which any person is entitled to occupy, use or possess
all or any portion of the real property subject to the related Mortgage, and
each assignor thereunder has the full right to assign the same. The related
assignment of any Assignment of Leases not included in a Mortgage has been
executed and delivered in favor of the Trustee and is in recordable form and
constitutes a legal, valid and binding assignment, sufficient to convey to the
assignee named therein all of the assignor's right, title and interest in, to
and under such Assignment of Leases.
6. Mortgage Status; Waivers and Modifications. No Mortgage has been
satisfied, cancelled, rescinded or subordinated in whole or in part, and the
related Mortgaged Property has not been released from the lien of such Mortgage,
in whole or in part (except for partial reconveyances of real property that are
set forth on Schedule A to Exhibit 2), nor has any instrument been executed that
would effect any such satisfaction, cancellation, subordination, rescission or
release, in any manner that, in each case, materially adversely affects the
value of the related Mortgaged Property. None of the terms of any Mortgage Note,
Mortgage or Assignment of Leases has been impaired, waived, altered or modified
in any respect, except by written instruments, all of which are included in the
related Mortgage File.
7. Condition of Property; Condemnation. (i) With respect to the
Mortgaged Properties securing the Mortgage Loans that were the subject of an
engineering report within 18 months prior to the Cut-Off Date as set forth on
Schedule A to this Exhibit 2, each Mortgaged Property is, to Seller's knowledge,
free and clear of any damage (or adequate reserves therefor have been
established) that would materially and adversely affect its value as security
for the related Mortgage Loan, and (ii) with respect to the Mortgaged Properties
securing the Mortgage Loans that were not the subject of an engineering report
within 18 months prior to the Cut-Off Date as set forth on Schedule A to this
Exhibit 2, each Mortgaged Property is in good repair and condition and all
building systems contained therein are in good working order (or adequate
reserves therefor have been established) and each Mortgaged Property is free of
structural defects, in each case, that would materially and adversely affect its
value as security for the related Mortgage Loan as of the date hereof. Seller
has received no notice of the commencement of any proceeding for the
condemnation of all or any material portion of any Mortgaged Property. To
Seller's knowledge (based on surveys and/or title insurance obtained in
connection with the origination of the Mortgage Loans), as of the date of the
origination of each Mortgage
Loan, all of the material improvements on the related Mortgaged Property that
were considered in determining the appraised value of the Mortgaged Property lay
wholly within the boundaries and building restriction lines of such property,
except for encroachments that are insured against by the lender's title
insurance policy referred to herein or that do not materially and adversely
affect the value or marketability of such Mortgaged Property, and no
improvements on adjoining properties materially encroached upon such Mortgaged
Property so as to materially and adversely affect the value or marketability of
such Mortgaged Property, except those encroachments that are insured against by
the Title Policy referred to herein.
8. Title Insurance. Each Mortgaged Property is covered by an American
Land Title Association (or an equivalent form of) lender's title insurance
policy or a marked-up title insurance commitment (on which the required premium
has been paid) which evidences such title insurance policy (the "Title Policy")
in the original principal amount of the related Mortgage Loan after all advances
of principal. Each Title Policy insures that the related Mortgage is a valid
first priority lien on such Mortgaged Property, subject only to Permitted
Encumbrances. Each Title Policy (or, if it has yet to be issued, the coverage to
be provided thereby) is in full force and effect, all premiums thereon have been
paid and no material claims have been made thereunder and no claims have been
paid thereunder. No holder of the related Mortgage has done, by act or omission,
anything that would materially impair the coverage under such Title Policy.
Immediately following the transfer and assignment of the related Mortgage Loan
to the Trustee, such Title Policy (or, if it has yet to be issued, the coverage
to be provided thereby) will inure to the benefit of the Trustee without the
consent of or notice to the insurer. To Seller's knowledge, the insurer issuing
such Title Policy is qualified to do business in the jurisdiction in which the
related Mortgaged Property is located.
9. No Holdbacks. The proceeds of each Mortgage Loan have been fully
disbursed and there is no obligation for future advances with respect thereto.
With respect to each Mortgage Loan, any and all requirements as to completion of
any on-site or off-site improvement and as to disbursements of any funds
escrowed for such purpose that were to have been complied with on or before the
Closing Date have been complied with, or any such funds so escrowed have not
been released.
10. Mortgage Provisions. The Mortgage Note or Mortgage for each
Mortgage Loan, together with applicable state law, contains customary and
enforceable provisions (subject to the exceptions set forth in paragraph 13)
such as to render the rights and remedies of the holder thereof adequate for the
practical realization against the related Mortgaged Property of the principal
benefits of the security intended to be provided thereby.
11. Trustee under Deed of Trust. If any Mortgage is a deed of trust,
(1) a trustee, duly qualified under applicable law to serve as such, is properly
designated and serving under such Mortgage, and (2) no fees or expenses are
payable to such trustee by Seller, Purchaser or any transferee thereof except in
connection with a trustee's sale after default by the related Mortgagor or in
connection with any full or partial release of the related Mortgaged Property or
related security for the related Mortgage Loan.
12. Environmental Conditions.
(i) Except as set forth on Schedule A to this Exhibit 2, with respect to
the Mortgaged Properties securing the Mortgage Loans that were the
subject of an environmental site assessment within 18 months prior to
the Cut-Off Date, an environmental site assessment prepared to ASTM
standards, or an update of a previous such report, was performed with
respect to each Mortgaged Property in connection with the origination
or the sale of the related Mortgage Loan, a report of each such
assessment (or the most recent assessment with respect to each
Mortgaged Property) (an "Environmental Report") has been delivered to,
or on behalf of, Purchaser or its designee, and Seller has no
knowledge of any material and adverse environmental condition or
circumstance affecting any Mortgaged Property that was not disclosed
in such report. Each Mortgage requires the related Mortgagor to comply
with all applicable federal, state and local environmental laws and
regulations. Where such assessment disclosed the existence of a
material and adverse environmental condition or circumstance affecting
any Mortgaged Property, (i) a party not related to the Mortgagor was
identified as the responsible party for such condition or circumstance
or (ii) environmental insurance covering such condition was obtained
or must be maintained until the condition is remediated or (iii) the
related Mortgagor was required either to provide additional security
that was deemed to be sufficient by the originator in light of the
circumstances and/or to establish an operations and maintenance plan.
EACH MORTGAGE LOAN SET FORTH ON SCHEDULE C TO THIS EXHIBIT 2 (EACH, A
"SCHEDULE C LOAN") IS THE SUBJECT OF A SECURED CREDITOR IMPAIRED
PROPERTY POLICY, ISSUED BY THE ISSUER SET FORTH ON SCHEDULE C (THE
"POLICY ISSUER") AND EFFECTIVE AS OF THE DATE THEREOF (THE
"ENVIRONMENTAL INSURANCE POLICY"). EXCEPT AS SET FORTH ON SCHEDULE A
TO THIS EXHIBIT 2, WITH RESPECT TO EACH SCHEDULE C LOAN, (I) THE
ENVIRONMENTAL INSURANCE POLICY IS IN FULL FORCE AND EFFECT, (ii)(A) A
PROPERTY CONDITION OR ENGINEERING REPORT WAS PREPARED WITH RESPECT TO
LEAD BASED PAINT ("LBP") AND RADON GAS ("RG") AT EACH MORTGAGED
PROPERTY THAT IS USED AS A MULTIFAMILY DWELLING, AND WITH RESPECT TO
ASBESTOS CONTAINING MATERIALS ("ACM") AT EACH RELATED MORTGAGED
PROPERTY AND (B) IF such REPORT DISCLOSED THE EXISTENCE OF A MATERIAL
AND ADVERSE LBP, ACM OR RG environmental condition or circumstance
AFFECTING THE RELATED MORTGAGED PROPERTY, THE RELATED MORTGAGOR (A)
WAS REQUIRED TO REMEDIATE THE IDENTIFIED CONDITION PRIOR TO CLOSING
THE MORTGAGE LOAN OR PROVIDE ADDITIONAL SECURITY, OR ESTABLISH WITH
THE LENDER A RESERVE FROM LOAN PROCEEDS, IN AN AMOUNT DEEMED TO BE
SUFFICIENT BY SELLER FOR THE REMEDIATION OF THE PROBLEM AND/OR (B)
AGREED IN THE MORTGAGE LOAN DOCUMENTS TO ESTABLISH AN OPERATIONS AND
MAINTENANCE PLAN AFTER THE CLOSING OF THE MORTGAGE LOAN, (iii) ON the
EFFECTIVE DATE OF THE ENVIRONMENTAL INSURANCE POLICY, SELLER AS
originator HAD NO KNOWLEDGE OF ANY MATERIAL AND ADVERSE ENVIRONMENTAL
CONDITION OR CIRCUMSTANCE AFFECTING THE MORTGAGED PROPERTY (OTHER THAN
THE EXISTENCE OF LBP, ACM OR RG) THAT WAS NOT DISCLOSED TO THE POLICY
ISSUER in ONE OR MORE of the FOLLOWING: (A) THE APPLICATION FOR
INSURANCE, (B) A BORROWER QUESTIONNAIRE THAT WAS PROVIDED to THE
POLICY ISSUER OR (C) an ENGINEERING OR OTHER REPORT PROVIDED TO THE
POLICY ISSUER AND (IV) THE PREMIUM OF ANY ENVIRONMENTAL INSURANCE
POLICY HAS BEEN PAID
THROUGH THE MATURITY OF THE POLICY'S TERM AND THE TERM OF SUCH POLICY
EXTENDS AT LEAST FIVE YEARS BEYOND THE MATURITY OF THE MORTGAGE LOAN.
(II) With respect to the Mortgaged Properties securing the Mortgage Loans
that were not the subject of an environmental site assessment prepared
to ASTM standards within 18 months prior to the Cut-Off Date as set
forth on Schedule A to this Exhibit 2, (i) no Hazardous Material is
present on such Mortgaged Property such that (1) the value of such
Mortgaged Property is materially and adversely affected or (2) under
applicable federal, state or local law, (a) such Hazardous Material
could be required to be eliminated at a cost materially and adversely
affecting the value of the Mortgaged Property before such Mortgaged
Property could be altered, renovated, demolished or transferred or (b)
the presence of such Hazardous Material could (upon action by the
appropriate governmental authorities) subject the owner of such
Mortgaged Property, or the holders of a security interest therein, to
liability for the cost of eliminating such Hazardous Material or the
hazard created thereby at a cost materially and adversely affecting
the value of the Mortgaged Property, and (ii) such Mortgaged Property
is in material compliance with all applicable federal, state and local
laws pertaining to Hazardous Materials or environmental hazards, any
noncompliance with such laws does not have a material adverse effect
on the value of such Mortgaged Property and neither Seller nor, to
Seller's knowledge, the related Mortgagor or any current tenant
thereon, has received any notice of violation or potential violation
of any such law.
"Hazardous Materials" means gasoline, petroleum products, explosives,
radioactive materials, polychlorinated biphenyls or related or similar
materials, and any other substance or material as may be defined as a
hazardous or toxic substance by any federal, state or local
environmental law, ordinance, rule, regulation or order, including
without limitation, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended (42 U.S.C.
Sections. 9601 et seq.), the Hazardous Materials Transportation Act as
amended (42 U.S.C. Sections. 6901 et seq.), the Federal Water
Pollution Control Act as amended (33 U.S.C. Sections. 1251 et seq.),
the Clean Air Act (42 U.S.C. Sections. 1251 et seq.) and any
regulations promulgated pursuant thereto.
13. Loan Document Status. Each Mortgage Note, Mortgage and other
agreement that evidences or secures such Mortgage Loan and was executed by or on
behalf of the related Mortgagor is the legal, valid and binding obligation of
the maker thereof (subject to any non-recourse provisions contained in any of
the foregoing agreements and any applicable state anti-deficiency or market
value limit deficiency legislation), enforceable in accordance with its terms,
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 enforcement is considered in a proceeding in equity or at law) and there is
no valid defense, counterclaim or right of offset or rescission available to the
related Mortgagor with respect to such Mortgage Note, Mortgage or other
agreement.
14. Insurance. Each Mortgaged Property is, and is required pursuant to
the related Mortgage to be, insured by (a) a fire and extended perils insurance
policy providing coverage against loss or damage sustained by reason of fire,
lightning, windstorm, hail, explosion, riot, riot attending a strike, civil
commotion, aircraft, vehicles and smoke, and, to the extent required as of the
date of origination by the originator of such Mortgage Loan consistent with its
normal commercial mortgage lending practices, against other risks insured
against by persons operating like properties in the locality of the Mortgaged
Property in an amount not less than the lesser of the principal balance of the
related Mortgage Loan and the replacement cost of the Mortgaged Property, and
not less than the amount necessary to avoid the operation of any co-insurance
provisions with respect to the Mortgaged Property, and the policy contains no
provisions for a deduction for depreciation; (b) a business interruption or
rental loss insurance policy, in an amount at least equal to six months of
operations of the Mortgaged Property estimated as of the date of origination by
the originator of such Mortgage Loan consistent with its normal commercial
lending practices; (c) a flood insurance policy (if any portion of buildings or
other structures on the Mortgaged Property are located in an area identified by
the Federal Emergency Management Agency as having special flood hazards and the
Federal Emergency Management Agency requires flood insurance to be maintained);
and (d) a comprehensive general liability insurance policy in amounts as are
generally required by commercial mortgage lenders, and in any event not less
than $1 million per occurrence. Such insurance policy contains a standard
mortgagee clause that names the mortgagee as an additional insured in the case
of liability insurance policies and as a loss payee in the case of property
insurance policies and requires prior notice to the holder of the Mortgage of
termination or cancellation. No such notice has been received, including any
notice of nonpayment of premiums, that has not been cured. Each Mortgage
obligates the related Mortgagor to maintain all such insurance and, upon such
Mortgagor's failure to do so, authorizes the holder of the Mortgage to maintain
such insurance at the Mortgagor's cost and expense and to seek reimbursement
therefor from such Mortgagor. Each Mortgage provides that casualty insurance
proceeds will be applied (a) to the restoration or repair of the related
Mortgaged Property, (b) to the restoration or repair of the related Mortgaged
Property, with any excess insurance proceeds after restoration or repair being
paid to the Mortgagor, or (c) to the reduction of the principal amount of the
Mortgage Loan.
15. Taxes and Assessments. As of the Closing Date, there are no
delinquent or unpaid taxes, assessments (including assessments payable in future
installments) or other outstanding charges affecting any Mortgaged Property that
are or may become a lien of priority equal to or higher than the lien of the
related Mortgage. For purposes of this representation and warranty, real
property taxes and assessments shall not be considered unpaid until the date on
which interest or penalties would be first payable thereon.
16. Mortgagor Bankruptcy. No Mortgagor is, to Seller's knowledge, a
debtor in any state or federal bankruptcy or insolvency proceeding. As of the
date of origination, (i) with respect to Mortgage Loans with a principal balance
greater than $3,500,000, no tenant physically occupying 25% or more (by square
feet) of the net rentable area of the related Mortgaged Property was, to
Seller's knowledge, a debtor in any state or federal bankruptcy or insolvency
proceeding and (ii) with respect to Mortgage Loans with a principal balance
equal to or less than $3,500,000 no tenant physically occupying 50% or more (by
square feet) of the net rentable area of the related Mortgaged Property was, to
Seller's knowledge, a debtor in any state or federal bankruptcy or insolvency
proceeding.
17. Leasehold Estate. Each Mortgaged Property consists of a fee simple
estate in real estate or, if the related Mortgage Loan is secured in whole or in
part by the interest of a Mortgagor as a lessee under a ground lease of a
Mortgaged Property (a "Ground Lease"), by the related Mortgagor's interest in
the Ground Lease but not by the related fee interest in such Mortgaged Property
(the "Fee Interest"), and as to such Ground Leases:
(i) Such Ground Lease or a memorandum thereof has been or will be duly
recorded; such Ground Lease (or the related estoppel letter or lender
protection agreement between Seller and related lessor) does not
prohibit the current use of the Mortgaged Property and does not
prohibit the interest of the lessee thereunder to be encumbered by the
related Mortgage; and there has been no material change in the payment
terms of such Ground Lease since the origination of the related
Mortgage Loan, with the exception of material changes reflected in
written instruments that are a part of the related Mortgage File;
(ii) The lessee's interest in such Ground Lease is not subject to any liens
or encumbrances superior to, or of equal priority with, the related
Mortgage, other than Permitted Encumbrances;
(iii) The Mortgagor's interest in such Ground Lease is assignable to
Purchaser and its successors and assigns upon notice to, but without
the consent of, the lessor thereunder (or, if such consent is
required, it has been obtained prior to the Closing Date) and, in the
event that it is so assigned, is further assignable by Purchaser and
its successors and assigns upon notice to, but without the need to
obtain the consent of, such lessor or if such lessor's consent is
required it cannot be unreasonably withheld;
(iv) Such Ground Lease is in full force and effect, and the Ground Lease
provides that no material amendment to such Ground Lease is binding on
a mortgagee unless the mortgagee has consented thereto, and Seller has
received no notice that an event of default has occurred thereunder,
and, to Seller's knowledge, there exists no condition that, but for
the passage of time or the giving of notice, or both, would result in
an event of default under the terms of such Ground Lease;
(v) Such Ground Lease, or an estoppel letter or other agreement, (A)
requires the lessor under such Ground Lease to give notice of any
default by the lessee to the holder of the Mortgage; and (B) provides
that no notice of termination given under such Ground Lease is
effective against the holder of the Mortgage unless a copy of such
notice has been delivered to such holder and the lessor has offered or
is required to enter into a new lease with such holder on terms that
do not materially vary from the economic terms of the Ground Lease.
(vi) A mortgagee is permitted a reasonable opportunity (including, where
necessary, sufficient time to gain possession of the interest of the
lessee under such Ground Lease) to cure any default under such Ground
Lease, which is curable after the receipt of notice of any such
default, before the lessor thereunder may terminate such Ground Lease;
(vii) Such Ground Lease has an original term (including any extension
options set forth therein) which extends not less than twenty years
beyond the Stated Maturity Date of the related Mortgage Loan;
(viii) Under the terms of such Ground Lease and the related Mortgage, taken
together, any related insurance proceeds or condemnation award awarded
to the holder of the ground lease interest will be applied either (A)
to the repair or restoration of all or part of the related Mortgaged
Property, with the mortgagee or a trustee appointed by the related
Mortgage having the right to hold and disburse such proceeds as the
repair or restoration progresses (except in such cases where a
provision entitling a third party to hold and disburse such proceeds
would not be viewed as commercially unreasonable by a prudent
commercial mortgage lender), or (B) to the payment of the outstanding
principal balance of the Mortgage Loan together with any accrued
interest thereon; and
(ix) Such Ground Lease does not impose any restrictions on subletting which
would be viewed as commercially unreasonable by prudent commercial
mortgage lenders lending on a similar Mortgaged Property in the
lending area where the Mortgaged Property is located; and such Ground
Lease contains a covenant that the lessor thereunder is not permitted,
in the absence of an uncured default, to disturb the possession,
interest or quiet enjoyment of the lessee thereunder for any reason,
or in any manner, which would materially adversely affect the security
provided by the related Mortgage.
(x) Such Ground Lease requires the Lessor to enter into a new lease upon
termination of such Ground Lease if the Ground Lease is rejected in a
bankruptcy proceeding.
18. Escrow Deposits. All escrow deposits and payments relating to each
Mortgage Loan that are, as of the Closing Date, required to be deposited or paid
have been so deposited or paid.
19. LTV Ratio. The gross proceeds of each Mortgage Loan to the related
Mortgagor at origination did not exceed the non-contingent principal amount of
the Mortgage Loan and either: (a) such Mortgage Loan is secured by an interest
in real property having a fair market value (i) at the date the Mortgage Loan
was originated, at least equal to 80 percent of the original principal balance
of the Mortgage Loan or (ii) at the Closing Date, at least equal to 80 percent
of the principal balance of the Mortgage Loan on such date; provided that for
purposes hereof, the fair market value of the real property interest must first
be reduced by (x) the amount of any lien on the real property interest that is
senior to the Mortgage Loan and (y) a proportionate amount of any lien that is
in parity with the Mortgage Loan (unless such other lien secures a Mortgage Loan
that is cross-collateralized with such Mortgage Loan, in which event the
computation described in clauses (a)(i) and (a)(ii) of this paragraph 19 shall
be made on a pro rata basis in accordance with the fair market values of the
Mortgaged Properties securing such cross-collateralized Mortgage Loans); or (b)
substantially all the proceeds of such Mortgage Loan were used to acquire,
improve or protect the real property that served as the only security for such
Mortgage Loan (other than a recourse feature or other third party credit
enhancement within the meaning of Treasury Regulations Section
1.860G-2(a)(1)(ii)).
20. Mortgage Loan Modifications. Any Mortgage Loan that was
"significantly modified" prior to the Closing Date so as to result in a taxable
exchange under Section 1001 of the Code either (a) was modified as a result of
the default under such Mortgage Loan or under circumstances that made a default
reasonably foreseeable or (b) satisfies the provisions of either clause (a)(i)
of paragraph 19 (substituting the date of the last such modification for the
date the Mortgage Loan was originated) or clause (a)(ii) of paragraph 19,
including the proviso thereto.
21. Advancement of Funds by Seller. No holder of a Mortgage Loan has
advanced funds or induced, solicited or knowingly received any advance of funds
from a party other than the owner of the related Mortgaged Property, directly or
indirectly, for the payment of any amount required by such Mortgage Loan.
22. No Mechanics' Liens. Each Mortgaged Property is free and clear of
any and all mechanics' and materialmen's liens that are prior or equal to the
lien of the related Mortgage, and no rights are outstanding that under law could
give rise to any such lien that would be prior or equal to the lien of the
related Mortgage except, in each case, for liens insured against by the Title
Policy referred to herein.
23. Compliance with Usury Laws. Each Mortgage Loan complied with all
applicable usury laws in effect at its date of origination.
24. Cross-collateralization. No Mortgage Loan is cross-collateralized
or cross-defaulted with any loan other than one or more other Mortgage Loans.
25. Releases of Mortgaged Property. Except as described in the next
sentence, no Mortgage Note or Mortgage requires the mortgagee to release all or
any material portion of the related Mortgaged Property that was included in the
appraisal for such Mortgaged Property, and/or generates income from the lien of
the related Mortgage except upon payment in full of all amounts due under the
related Mortgage Loan or in connection with the defeasance provisions of the
related Note and Mortgage. The Mortgages relating to those Mortgage Loans
identified on Schedule A hereto require the mortgagee to grant releases of
portions of the related Mortgaged Properties upon (a) the satisfaction of
certain legal and underwriting requirements and/or (b) the payment of a
predetermined or objectively determinable release price and prepayment
consideration in connection therewith. Except as described in the first sentence
hereof and for those Mortgage Loans identified on Schedule A, no Mortgage Loan
permits the full or partial release or substitution of collateral unless the
mortgagee or servicer can require the Borrower to provide an opinion of tax
counsel to the effect that such release or substitution of collateral (a) would
not constitute a "significant modification" of such Mortgage Loan within the
meaning of Treas. Reg. Section 1.1001-3 and (b) would not cause such Mortgage
Loan to fail to be a "qualified mortgage" within the meaning of Section
860G(a)(3)(A) of the Code.
26. No Equity Participation or Contingent Interest. No Mortgage Loan
contains any equity participation by the lender or provides for negative
amortization (except that the ARD Loan may provide for the accrual of interest
at an increased rate after the Anticipated Repayment Date) or for any contingent
or additional interest in the form of participation in the cash flow of the
related Mortgaged Property.
27. No Material Default. To Seller's knowledge, there exists no
material default, breach, violation or event of acceleration (and no event
which, with the passage of time or the giving of notice, or both, would
constitute any of the foregoing) under the documents evidencing or securing the
Mortgage Loan, in any such case to the extent the same materially and adversely
affects the value of the Mortgage Loan and the related Mortgaged Property;
provided, however, that this representation and warranty does not address or
otherwise cover any default, breach, violation or event of acceleration that
specifically pertains to any matter otherwise covered by any other
representation and warranty made by Seller in any of paragraphs 3, 7, 8, 12, 14,
15, 16 and 17 of this Exhibit 2.
28. Inspections. Seller (or if Seller is not the originator, the
originator of the Mortgage Loan) has inspected or caused to be inspected each
Mortgaged Property in connection with the origination of the related Mortgage
Loan.
29. Local Law Compliance. Based on due diligence considered reasonable
by prudent commercial mortgage lenders in the lending area where the Mortgaged
Property is located, the improvements located on or forming part of each
Mortgaged Property comply with applicable zoning laws and ordinances, or
constitute a legal non-conforming use or structure or, if any such improvement
does not so comply, such non-compliance does not materially and adversely affect
the value of the related Mortgaged Property, such value as determined by the
appraisal performed at origination or in connection with the sale of the related
Mortgage Loan by Seller hereunder.
30. Junior Liens. None of the Mortgage Loans permits the related
Mortgaged Property to be encumbered by any lien (other than a Permitted
Encumbrance) junior to or of equal priority with the lien of the related
Mortgage without the prior written consent of the holder thereof or the
satisfaction of debt service coverage or similar criteria specified therein.
Seller has no knowledge that any of the Mortgaged Properties is encumbered by
any lien junior to the lien of the related Mortgage.
31. Actions Concerning Mortgage Loans. To the knowledge of Seller,
there are no actions, suits or proceedings before any court, administrative
agency or arbitrator concerning any Mortgage Loan, Mortgagor or related
Mortgaged Property that might adversely affect title to the Mortgaged Property
or the validity or enforceability of the related Mortgage or that might
materially and adversely affect the value of the Mortgaged Property as security
for the Mortgage Loan or the use for which the premises were intended.
32. Servicing. The servicing and collection practices used by Seller
or any prior holder or servicer of each Mortgage Loan have been in all material
respects legal, proper and prudent and have met customary industry standards.
33. Licenses and Permits. To Seller's knowledge, based on due
diligence that it customarily performs in the origination of comparable mortgage
loans, as of the date of origination of each Mortgage Loan or as of the date of
the sale of the related Mortgage Loan by Seller hereunder, the related Mortgagor
was in possession of all material licenses, permits and franchises required by
applicable law for the ownership and operation of the related Mortgaged Property
as it was then operated.
34. Assisted Living Facility Regulation. If the Mortgaged Property is
operated as an assisted living facility, to Seller's knowledge (a) the related
Mortgagor is in compliance in all material respects with all federal and state
laws applicable to the use and operation of the related Mortgaged Property and
(b) if the operator of the Mortgaged Property participates in Medicare or
Medicaid programs, the facility is in compliance in all material respects with
the requirements for participation in such programs.
35. Collateral in Trust. The Mortgage Note for each Mortgage Loan is
not secured by a pledge of any collateral that has not been assigned to
Purchaser.
36. Due on Sale. Each Mortgage Loan contains a "due on sale" clause,
which provides for the acceleration of the payment of the unpaid principal
balance of the Mortgage Loan if, without prior written consent of the holder of
the Mortgage, the property subject to the Mortgage or any material portion
thereof, or a controlling interest in the related Mortgagor, is transferred,
sold or encumbered by a junior mortgage or deed of trust; provided, however,
that certain Mortgage Loans provide a mechanism for the assumption of the loan
by a third party upon the Mortgagor's satisfaction of certain conditions
precedent, and upon payment of a transfer fee, if any, or transfer of interests
in the Mortgagor or constituent entities of the Mortgagor to a third party or
parties related to the Mortgagor upon the Mortgagor's satisfaction of certain
conditions precedent.
37. Single Purpose Entity. The Mortgagor on each Mortgage Loan with a
Cut-Off Date Principal Balance in excess of $10 million, was, as of the
origination of the Mortgage Loan, a Single Purpose Entity. For this purpose, a
"Single Purpose Entity" shall mean an entity, other than an individual, whose
organizational documents provide substantially to the effect that it was formed
or organized solely for the purpose of owning and operating one or more of the
Mortgaged Properties securing the Mortgage Loans and prohibit it from engaging
in any business unrelated to such Mortgaged Property or Properties, and whose
organizational documents further provide, or which entity represented in the
related Mortgage Loan documents, substantially to the effect that it does not
have any assets other than those related to its interest in and operation of
such Mortgaged Property or Properties, or any indebtedness other than as
permitted by the related Mortgage(s) or the other related Mortgage Loan
documents, that it has its own books and records and accounts separate and apart
from any other person (other than a Mortgagor for a Mortgage Loan that is
cross-collateralized and cross-defaulted with the related Mortgage Loan), and
that it holds itself out as a legal entity, separate and apart from any other
person.
38. Non-Recourse Exceptions. The Mortgage Loan documents for each
Mortgage Loan provide that such Mortgage Loan constitutes either (a) the
recourse obligations of at least one natural person or (b) the non-recourse
obligations of the related Mortgagor, provided that at least one natural person
(and the Mortgagor if the Mortgagor is not a natural person) is liable to the
holder of the Mortgage Loan for damages arising in the case of fraud or willful
misrepresentation by the Mortgagor, misappropriation of rents, insurance
proceeds or condemnation awards and breaches of the environmental covenants in
the Mortgage Loan documents.
39. Defeasance and Assumption Costs. The related Mortgage Loan
documents provide that the related borrower is responsible for the payment of
all reasonable costs and expenses of the lender incurred in connection with the
defeasance of such Mortgage Loan and the release of the related Mortgaged
Property, and the borrower is required to pay all reasonable costs and expenses
of the lender associated with the approval of an assumption of such Mortgage
Loan.
40. Defeasance. No Mortgage Loan provides that (i) it can be defeased
until the date that is more than two years after the Closing Date, (ii) that it
can be defeased with any property other than government securities (as defined
in Section 2(a)(16) of the Investment Company Act of 1940, as amended) or any
direct non-callable security issued or guaranteed as to principal or interest by
the United States that will provide interest and principal payments sufficient
to satisfy scheduled payments of interest and principal as required under the
related Mortgage Loan, or (iii) defeasance requires the payment of any
consideration other than (a) reimbursement of incidental costs and expenses
and/or (b) a specified dollar amount or an amount that is based on a formula
that uses objective financial information (as defined in Treasury Regulation
Section 1.446-3(c)(4)(ii)).
41. Prepayment Premiums. As of the applicable date of origination of
each such Mortgage Loan, any prepayment premiums and yield maintenance charges
payable under the terms of the Mortgage Loans, in respect of voluntary
prepayments, constituted customary prepayment premiums and yield maintenance
charges for commercial mortgage loans.
42. Terrorism Insurance. With respect to each Mortgage Loan that has a
principal balance as of the Cut-off Date that is greater than or equal to
$20,000,000, the related all risk insurance policy and business interruption
policy do not specifically exclude Acts of Terrorism, as defined in the
Terrorism Risk Insurance Act of 2002, from coverage, or if such coverage is
excluded, is covered by a separate terrorism insurance policy. With respect to
each other Mortgage Loan, the related all risk insurance policy and business
interruption policy did not as of the date of origination of the Mortgage Loan,
and, to Seller's knowledge, do not, as of the date hereof, specifically exclude
Acts of Terrorism from coverage, or if such coverage is excluded, it is covered
by a separate terrorism insurance policy. With respect to each of the Mortgage
Loans, the related Mortgage Loan documents do not expressly waive or prohibit
the mortgagee from requiring coverage for acts of terrorism or damages related
thereto, except to the extent that any right to require such coverage may be
limited by commercially reasonable availability, or as otherwise indicated on
Schedule A.
43. Foreclosure Property. Seller is not selling any Mortgage Loan as
part of a plan to transfer the underlying Mortgaged Property to Purchaser, and
Seller does not know or, to Seller's knowledge, have reason to know that any
Mortgage Loan will default. The representations in this paragraph 43 are being
made solely for the purpose of determining whether the Mortgaged Property, if
acquired by the Trust, would qualify as "foreclosure property" within the
meaning of Section 860G(a)(8) of the Code, and may not be relied upon or used
for any other purpose. Such representations shall not be construed as a
guarantee to any degree that defaults or losses will not occur.
EXHIBIT 3
PRICING FORMULATION
SCHEDULE A
Exceptions to Representations and Warranties
SCHEDULE B
List of Mortgagors that are Third-Party Beneficiaries Under Section 5.2
SCHEDULE C
List of Mortgage Loans Subject to Secured Creditor Impaired Property
Policies
EXHIBIT 4
XXXX OF SALE
1. Parties. The parties to this Xxxx of Sale are the following:
Seller: Bear Xxxxxxx Commercial Mortgage, Inc.
Purchaser: Bear Xxxxxxx Commercial Mortgage Securities Inc.
2. Sale. For value received, Seller hereby conveys to Purchaser,
without recourse, all right, title and interest in and to the Mortgage Loans
identified on Exhibit 1 (the "Mortgage Loan Schedule") to the Mortgage Loan
Purchase Agreement, dated as of October 20, 2005 (the "Mortgage Loan Purchase
Agreement"), between Seller and Purchaser and all of the following property:
(a) All accounts, general intangibles, chattel paper, instruments,
documents, money, deposit accounts, certificates of deposit, goods, letters
of credit, advices of credit and investment property consisting of, arising
from or relating to any of the following property: the Mortgage Loans
identified on the Mortgage Loan Schedule including the related Mortgage
Notes, Mortgages, security agreements, and title, hazard and other
insurance policies, all distributions with respect thereto payable after
the Cut-Off Date, all substitute or replacement Mortgage Loans and all
distributions with respect thereto, and the Mortgage Files;
(b) All accounts, general intangibles, chattel paper, instruments,
documents, money, deposit accounts, certificates of deposit, goods, letters
of credit, advices of credit, investment property, and other rights arising
from or by virtue of the disposition of, or collections with respect to, or
insurance proceeds payable with respect to, or claims against other Persons
with respect to, all or any part of the collateral described in clause (a)
above (including any accrued discount realized on liquidation of any
investment purchased at a discount); and
(c) All cash and non-cash proceeds of the collateral described in
clauses (a) and (b) above.
3. Purchase Price. The amount and other consideration set forth on
Exhibit 3 to the Mortgage Loan Purchase Agreement.
4. Definitions. Terms used but not defined herein shall have the
meanings assigned to them in the Mortgage Loan Purchase Agreement.
IN WITNESS WHEREOF, each of the parties hereto has caused this Xxxx of
Sale to be duly executed and delivered on this __ day of October, 2005.
SELLER: BEAR XXXXXXX COMMERCIAL MORTGAGE, INC.
By: /s/
------------------------------------
Name: Xxxxxxx X. Xxxxxx, Xx.
------------------------------
Title: Managing Director
-----------------------------
PURCHASER: BEAR XXXXXXX COMMERCIAL MORTGAGE
SECURITIES INC.
By: /s/
------------------------------------
Name: Xxxxxxx X. Xxxxxx, Xx.
------------------------------
Title: V.P.
-----------------------------
EXHIBIT 5
FORM OF LIMITED POWER OF ATTORNEY
EXHIBIT K-2
FORM OF MORTGAGE LOAN PURCHASE AGREEMENT II (XXXXX)
MORTGAGE LOAN PURCHASE AGREEMENT
between
XXXXX FARGO BANK, NATIONAL ASSOCIATION
as Seller
and
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
as Purchaser
Dated as of October 20, 2005
================================================================================
TABLE OF CONTENTS
1. AGREEMENT TO PURCHASE............................................... 2
2. CONVEYANCE OF MORTGAGE LOANS........................................ 2
3. EXAMINATION OF MORTGAGE FILES AND DUE DILIGENCE REVIEW.............. 10
4. REPRESENTATIONS AND WARRANTIES OF SELLER AND PURCHASER.............. 11
5. REMEDIES UPON BREACH OF REPRESENTATIONS AND WARRANTIES
MADE BY SELLER...................................................... 14
6. CLOSING............................................................. 20
7. CLOSING DOCUMENTS................................................... 21
8. COSTS............................................................... 23
9. NOTICES............................................................. 23
10. SEVERABILITY OF PROVISIONS.......................................... 24
11. FURTHER ASSURANCES.................................................. 24
12. SURVIVAL............................................................ 24
13. GOVERNING LAW....................................................... 24
14. BENEFITS OF MORTGAGE LOAN PURCHASE AGREEMENT........................ 25
15. MISCELLANEOUS....................................................... 25
16. ENTIRE AGREEMENT.................................................... 25
Exhibit 1 Mortgage Loan Schedule
Exhibit 2 Representations and Warranties
Exhibit 3 Pricing Formulation
Exhibit 4 Xxxx of Sale
Exhibit 5 Power of Attorney
Index of Defined Terms
Affected Loan(s).......................................................... 16
Agreement................................................................. 1
Certificate Purchase Agreement............................................ 1
Certificates.............................................................. 1
Closing Date.............................................................. 2
Collateral Information.................................................... 10
Crossed Mortgage Loans.................................................... 16
Defective Mortgage Loan................................................... 16
Final Judicial Determination.............................................. 19
Fiscal Agent.............................................................. 1
Indemnification Agreement................................................. 13
Initial Purchasers........................................................ 1
Master Servicer........................................................... 1
Material Breach........................................................... 15
Material Document Defect.................................................. 15
Memorandum................................................................ 1
Mortgage File............................................................. 3
Mortgage Loan Schedule.................................................... 2
Mortgage Loans............................................................ 1
Officer's Certificate..................................................... 7
Other Mortgage Loans...................................................... 1
Pooling and Servicing Agreement........................................... 1
Private Certificates...................................................... 1
Prospectus Supplement..................................................... 1
Public Certificates....................................................... 1
Purchaser................................................................. 1
Repurchased Loan.......................................................... 17
Seller.................................................................... 1
Special Servicer.......................................................... 1
Trust..................................................................... 1
Trustee................................................................... 1
Underwriters.............................................................. 1
Underwriting Agreement.................................................... 1
MORTGAGE LOAN PURCHASE AGREEMENT
(XXXXX LOANS)
Mortgage Loan Purchase Agreement ("Agreement"), dated as of October
20, 2005, between Xxxxx Fargo Bank, National Association ("Seller"), and Bear
Xxxxxxx Commercial Mortgage Securities Inc. ("Purchaser").
Seller agrees to sell and Purchaser agrees to purchase certain
mortgage loans listed on Exhibit 1 hereto (the "Mortgage Loans") as described
herein. Purchaser will convey the Mortgage Loans to a trust (the "Trust")
created pursuant to a Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement"), to be dated as of October 1, 2005 between Purchaser, as
depositor, Xxxxx Fargo Bank, National Association, as master servicer (the
"Master Servicer"), ARCap Servicing, Inc., as special servicer (the "Special
Servicer"), LaSalle Bank National Association, as trustee (the "Trustee"), Xxxxx
Fargo Bank, National Association, as paying agent and certificate registrar and
ABN AMRO Bank N.V., as fiscal agent (the "Fiscal Agent"). In exchange for the
Mortgage Loans and certain other mortgage loans to be purchased by Purchaser
(collectively the "Other Mortgage Loans"), the Trust will issue to the Depositor
pass-through certificates to be known as Bear Xxxxxxx Commercial Mortgage
Securities Inc., Commercial Mortgage Pass-Through Certificates, Series
2005-TOP20 (the "Certificates"). The Certificates will be issued pursuant to the
Pooling and Servicing Agreement.
Capitalized terms used herein but not defined herein shall have the
meanings assigned to them in the Pooling and Servicing Agreement.
The Class A-1, Class A-2, Class A-3, Class A-AB, Class X-0X, Xxxxx
X-0X, Xxxxx X-X, Class B, Class C, Class D and Class E Certificates (the "Public
Certificates") will be sold by Purchaser to Bear, Xxxxxxx & Co. Inc. and Xxxxxx
Xxxxxxx & Co. Incorporated (the "Underwriters"), pursuant to an Underwriting
Agreement, between Purchaser and the Underwriters, dated October 20, 2005 (the
"Underwriting Agreement"), and the Class X, Class F, Class G, Class H, Class J,
Class K, Class L, Class M, Class N, Class O, Class P, Class Q, Class LF, Class
R-I, Class R-II and Class R-III Certificates (the "Private Certificates") will
be sold by Purchaser to Bear, Xxxxxxx & Co. Inc. and Xxxxxx Xxxxxxx & Co.
Incorporated (the "Initial Purchasers") pursuant to a Certificate Purchase
Agreement, between Purchaser and the Initial Purchasers, dated October 20, 2005
(the "Certificate Purchase Agreement"). The Underwriters will offer the Public
Certificates for sale publicly pursuant to a Prospectus dated September 2, 2005,
as supplemented by a Prospectus Supplement dated October 20, 2005 (together, the
"Prospectus Supplement") and the Initial Purchasers will offer the Private
Certificates for sale in transactions exempt from the registration requirements
of the Securities Act of 1933 pursuant to a Private Placement Memorandum dated
October 20, 2005 (the "Memorandum").
In consideration of the mutual agreements contained herein, Seller and
Purchaser hereby agree as follows:
1. AGREEMENT TO PURCHASE.
1.1. Seller agrees to sell, and Purchaser agrees to purchase, on a
servicing released basis, the Mortgage Loans identified on the
schedule (the "Mortgage Loan Schedule") annexed hereto as Exhibit 1,
as such schedule may be amended to reflect the actual Mortgage Loans
accepted by Purchaser pursuant to the terms hereof. The Cut-Off Date
with respect to the Mortgage Loans is October 1, 2005. The Mortgage
Loans will have an aggregate principal balance as of the close of
business on the Cut-Off Date, after giving effect to any payments due
on or before such date, whether or not received, of $678,477,543. The
sale of the Mortgage Loans shall take place on October 28, 2005 or
such other date as shall be mutually acceptable to the parties hereto
(the "Closing Date"). The purchase price to be paid by Purchaser for
the Mortgage Loans shall equal the amount set forth as such purchase
price on Exhibit 3 hereto. The purchase price shall be paid to Seller
by wire transfer in immediately available funds on the Closing Date.
1.2. On the Closing Date, Purchaser will assign to the Trustee pursuant to
the Pooling and Servicing Agreement all of its right, title and
interest in and to the Mortgage Loans and its rights under this
Agreement (to the extent set forth in Section 14), and the Trustee
shall succeed to such right, title and interest in and to the Mortgage
Loans and Purchaser's rights under this Agreement (to the extent set
forth in Section 14).
2. CONVEYANCE OF MORTGAGE LOANS.
2.1. Effective as of the Closing Date, subject only to receipt of the
consideration referred to in Section 1 hereof and the satisfaction of
the conditions specified in Sections 6 and 7 hereof, Seller does
hereby transfer, assign, set over and otherwise convey to Purchaser,
without recourse, except as specifically provided herein all the
right, title and interest of Seller, with the understanding that a
Servicing Rights Purchase and Sale Agreement, dated October 1, 2005,
will be executed by Seller and the Master Servicer, in and to the
Mortgage Loans identified on the Mortgage Loan Schedule as of the
Closing Date. The Mortgage Loan Schedule, as it may be amended from
time to time on or prior to the Closing Date, shall conform to the
requirements of this Agreement and the Pooling and Servicing
Agreement. In connection with such transfer and assignment, Seller
shall deliver to or on behalf of the Trustee, on behalf of Purchaser,
on or prior to the Closing Date, the Mortgage Note (as described in
clause 2.2.1 hereof) for each Mortgage Loan and on or prior to the
fifth Business Day after the Closing Date, five limited powers of
attorney substantially in the form attached hereto as Exhibit 5 in
favor of the Trustee and the Special Servicer to empower the Trustee
and, in the event of the failure or incapacity of the Trustee, the
Special Servicer, to submit for recording, at the expense of Seller,
any mortgage loan documents required to be recorded as described in
the Pooling and Servicing Agreement and any intervening assignments
with evidence of recording thereon that are required to be included in
the Mortgage Files (so long as original counterparts have previously
been delivered to the Trustee). Seller agrees to reasonably cooperate
with the Trustee and the Special Servicer in connection with any
additional powers of attorney or revisions thereto that are requested
by such parties for purposes of such recordation. The parties hereto
agree that no such power of attorney shall be used
with respect to any Mortgage Loan by or under authorization by any
party hereto except to the extent that the absence of a document
described in the second preceding sentence with respect to such
Mortgage Loan remains unremedied as of the earlier of (i) the date
that is 180 days following the delivery of notice of such absence to
Seller, but in no event earlier than 18 months from the Closing Date,
and (ii) the date (if any) on which such Mortgage Loan becomes a
Specially Serviced Mortgage Loan. The Trustee shall submit such
documents, at Seller's expense, after the periods set forth above,
provided, however, the Trustee shall not submit such assignments for
recording if Seller produces evidence that it has sent any such
assignment for recording and certifies that Seller is awaiting its
return from the applicable recording office. In addition, not later
than the 30th day following the Closing Date, Seller shall deliver to
or on behalf of the Trustee each of the remaining documents or
instruments specified in Section 2.2 hereof (with such exceptions as
are permitted by this Section 2) with respect to each Mortgage Loan
(each, a "Mortgage File"). (Seller acknowledges that the term "without
recourse" does not modify the duties of Seller under Section 5
hereof.)
2.2. All Mortgage Files, or portions thereof, delivered prior to the
Closing Date are to be held by or on behalf of the Trustee in escrow
on behalf of Seller at all times prior to the Closing Date. The
Mortgage Files shall be released from escrow upon closing of the sale
of the Mortgage Loans and payments of the purchase price therefor as
contemplated hereby. The Mortgage File for each Mortgage Loan shall
contain the following documents:
2.2.1. The original Mortgage Note bearing all intervening endorsements,
endorsed "Pay to the order of LaSalle Bank National Association, as Trustee for
Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 2005-TOP20, without recourse, representation
or warranty" or if the original Mortgage Note is not included therein, then a
lost note affidavit, with a copy of the Mortgage Note attached thereto;
2.2.2. The original Mortgage, with evidence of recording thereon, and, if
the Mortgage was executed pursuant to a power of attorney, a certified true copy
of the power of attorney certified by the public recorder's office, with
evidence of recording thereon (if recording is customary in the jurisdiction in
which such power of attorney was executed), or certified by a title insurance
company or escrow company to be a true copy thereof; provided that if such
original Mortgage cannot be delivered with evidence of recording thereon on or
prior to the 45th day following the Closing Date because of a delay caused by
the public recording office where such original Mortgage has been delivered for
recordation or because such original Mortgage has been lost, Seller shall
deliver or cause to be delivered to the Trustee a true and correct copy of such
Mortgage, together with (i) in the case of a delay caused by the public
recording office, an Officer's Certificate (as defined below) of Seller stating
that such original Mortgage has been sent to the appropriate public recording
official for recordation or (ii) in the case of an original Mortgage that has
been lost after recordation, a certification by the appropriate county recording
office where such Mortgage is recorded that such copy is a true and complete
copy of the original recorded Mortgage;
2.2.3. The originals of all agreements modifying a Money Term or other
material modification, consolidation and extension agreements, if any, with
evidence of recording
thereon, or if any such original modification, consolidation or extension
agreement has been delivered to the appropriate recording office for recordation
and either has not yet been returned on or prior to the 45th day following the
Closing Date with evidence of recordation thereon or has been lost after
recordation, a true copy of such modification, consolidation or extension
certified by Seller together with (i) in the case of a delay caused by the
public recording office, an Officer's Certificate of Seller stating that such
original modification, consolidation or extension agreement has been dispatched
or sent to the appropriate public recording official for recordation or (ii) in
the case of an original modification, consolidation or extension agreement that
has been lost after recordation, a certification by the appropriate county
recording office where such document is recorded that such copy is a true and
complete copy of the original recorded modification, consolidation or extension
agreement, and the originals of all assumption agreements, if any;
2.2.4. An original Assignment of Mortgage for each Mortgage Loan, in form
and substance acceptable for recording, signed by the holder of record in favor
of "LaSalle Bank National Association, as Trustee for Bear Xxxxxxx Commercial
Mortgage Securities Inc., Commercial Mortgage Pass-Through Certificates, Series
2005-TOP20," provided, if the related Mortgage has been recorded in the name of
Mortgage Electronic Registration Systems, Inc. ("MERS") or its designee, no such
assignments will be required to be submitted for recording or filing and
instead, Seller shall take all actions as are necessary to cause the Trustee to
be shown as the owner of the related Mortgage on the record of MERS for purposes
of the system of recording transfers of beneficial ownership of mortgages
maintained by MERS and shall deliver to the Master Servicer and the Special
Servicer evidence confirming that the Trustee is shown as the owner on the
record of MERS;
2.2.5. Originals of all intervening assignments of Mortgage (except with
respect to any Mortgage that has been recorded in the name of MERS or its
designees), if any, with evidence of recording thereon or, if such original
assignments of Mortgage have been delivered to the appropriate recorder's office
for recordation, certified true copies of such assignments of Mortgage certified
by Seller, or in the case of an original blanket intervening assignment of
Mortgage retained by Seller, a copy thereof certified by Seller or, if any
original intervening assignment of Mortgage has not yet been returned on or
prior to the 45th day following the Closing Date from the applicable recording
office or has been lost, a true and correct copy thereof, together with (i) in
the case of a delay caused by the public recording office, an Officer's
Certificate of Seller stating that such original intervening assignment of
Mortgage has been sent to the appropriate public recording official for
recordation or (ii) in the case of an original intervening Assignment of
Mortgage that has been lost after recordation, a certification by the
appropriate county recording office where such assignment is recorded that such
copy is a true and complete copy of the original recorded intervening Assignment
of Mortgage;
2.2.6. If the related Assignment of Leases is separate from the Mortgage,
the original of such Assignment of Leases with evidence of recording thereon or,
if such Assignment of Leases has not been returned on or prior to the 45th day
following the Closing Date from the applicable public recording office, a copy
of such Assignment of Leases certified by Seller to be a true and complete copy
of the original Assignment of Leases submitted for recording, together with (i)
an original of each assignment of such Assignment of Leases with evidence of
recording thereon and showing a complete recorded chain of assignment from the
named assignee to the holder of
record, and if any such assignment of such Assignment of Leases has not been
returned from the applicable public recording office, a copy of such assignment
certified by Seller to be a true and complete copy of the original assignment
submitted for recording, and (ii) an original assignment of such Assignment of
Leases, in recordable form, signed by the holder of record in favor of "LaSalle
Bank National Association, as Trustee for Bear Xxxxxxx Commercial Mortgage
Securities Inc., Commercial Mortgage Pass-Through Certificates, Series
2005-TOP20," which assignment may be effected in the related Assignment of
Mortgage, provided, if the related Mortgage has been recorded in the name of
MERS or its designee, no assignment of Assignment of Leases in favor of the
Trustee will be required to be recorded or delivered and instead, Seller shall
take all actions as are necessary to cause the Trustee to be shown as the owner
of the related Mortgage on the record of MERS for purposes of the system of
recording transfers of beneficial ownership of mortgages maintained by MERS and
shall deliver to the Master Servicer and the Special Servicer evidence
confirming that the Trustee is shown as the owner on the record of MERS;
2.2.7. The original of each guaranty, if any, constituting additional
security for the repayment of such Mortgage Loan;
2.2.8. The original Title Insurance Policy, or in the event such original
Title Insurance Policy has not been issued, an original binder or actual title
commitment or a copy thereof certified by the title company with the original
Title Insurance Policy to follow within 180 days of the Closing Date or a
preliminary title report binding on the title company with an original Title
Insurance Policy to follow within 180 days of the Closing Date;
2.2.9. (A) UCC financing statements (together with all assignments thereof)
and (B) UCC-2 or UCC-3 financing statements to the Trustee executed and
delivered in connection with the Mortgage Loan, provided, if the related
Mortgage has been recorded in the name of MERS or its designee, no such
financing statements will be required to be recorded or delivered and instead,
Seller shall take all actions as are necessary to cause the Trustee to be shown
as the owner of the related Mortgage on the record of MERS for purposes of the
system of recording transfers of beneficial ownership of mortgages maintained by
MERS and shall deliver to the Master Servicer and the Special Servicer evidence
confirming that the Trustee is shown as the owner on the record of MERS;
2.2.10. Copies of the related ground lease(s), if any, to any Mortgage Loan
where the Mortgagor is the lessee under such ground lease and there is a lien in
favor of the mortgagee in such lease;
2.2.11. Copies of any loan agreements, lock-box agreements and
intercreditor agreements (including, without limitation, any Intercreditor
Agreement, and a copy (that is, not the original) of the mortgage note
evidencing the related B Note), if any, related to any Mortgage Loan;
2.2.12. Either (A) the original of each letter of credit, if any,
constituting additional collateral for such Mortgage Loan, which shall be
assigned and delivered to the Trustee on behalf of the Trust with a copy to be
held by the Primary Servicer (or the Master Servicer), and applied, drawn,
reduced or released in accordance with documents evidencing or securing the
applicable Mortgage Loan, the Pooling and Servicing Agreement and the Primary
Servicing
Agreement or (B) the original of each letter of credit, if any, constituting
additional collateral for such Mortgage Loan, which shall be held by the Primary
Servicer (or the Master Servicer) on behalf of the Trustee, with a copy to be
held by the Trustee, and applied, drawn, reduced or released in accordance with
documents evidencing or securing the applicable Mortgage Loan, the Pooling and
Servicing Agreement and the Primary Servicing Agreement (it being understood
that Seller has agreed (a) that the proceeds of such letter of credit belong to
the Trust, (b) to notify, on or before the Closing Date, the bank issuing the
letter of credit that the letter of credit and the proceeds thereof belong to
the Trust, and to use reasonable efforts to obtain within 30 days (but in any
event to obtain within 90 days) following the Closing Date, an acknowledgement
thereof by the bank (with a copy of such acknowledgement to be sent to the
Trustee) or a reissued letter of credit and (c) to indemnify the Trust for any
liabilities, charges, costs, fees or other expenses accruing from the failure of
Seller to assign all rights in and to the letter of credit hereunder including
the right and power to draw on the letter of credit). In the case of clause (B)
above, any letter of credit held by the Primary Servicer (or Master Servicer)
shall be held in its capacity as agent of the Trust, and if the Primary Servicer
(or Master Servicer) sells its rights to service the applicable Mortgage Loan,
the Primary Servicer (or Master Servicer) has agreed to assign the applicable
letter of credit to the Trust or at the direction of the Special Servicer to
such party as the Special Servicer may instruct, in each case, at the expense of
the Primary Servicer (or Master Servicer). The Primary Servicer (or Master
Servicer) has agreed to indemnify the Trust for any loss caused by the
ineffectiveness of such assignment;
2.2.13. The original environmental indemnity agreement, if any, related to
any Mortgage Loan;
2.2.14. Third-party management agreements for all hotels and for such other
Mortgaged Properties securing Mortgage Loans with a Cut-Off Date principal
balance equal to or greater than $20,000,000;
2.2.15. Any Environmental Insurance Policy; and
2.2.16. Any affidavit and indemnification agreement.
2.2.17 With respect to the Hinckley Portfolio Pari Passu Loan, a copy of
the MSCI 2005-TOP19 Pooling and Servicing Agreement.
With respect to the Hinckley Portfolio Pari Passu Loan, the preceding
document delivery requirements will be met by the delivery by the Depositor of
copies of the documents specified above (other than the Mortgage Notes and all
intervening endorsements) evidencing the Hinckley Portfolio Pari Passu Loan,
including a copy of the related Pari Passu Mortgage.
The original of each letter of credit referred to in clause 2.2.12
above shall be delivered to the Primary Servicer, the Master Servicer or the
Trustee (as the case may be) within 45 days of the Closing Date. In addition, a
copy of any ground lease shall be delivered to the Primary Servicer within 30
days of the Closing Date. Any failure to deliver any ground lease shall
constitute a document defect.
"Officer's Certificate" shall mean a certificate signed by one or more of the
Chairman of the Board, any Vice Chairman, the President, any Senior Vice
President, any Vice President, any Assistant Vice President, any Treasurer or
any Assistant Treasurer.
2.3. The Assignments of Mortgage and assignment of Assignment of Leases
referred to in Sections 2.2.4 and 2.2.6 may be in the form of a single
instrument assigning the Mortgage and the Assignment of Leases to the
extent permitted by applicable law. To avoid the unnecessary expense
and administrative inconvenience associated with the execution and
recording or filing of multiple assignments of mortgages, assignments
of leases (to the extent separate from the mortgages) and assignments
of UCC financing statements, Seller shall execute, in accordance with
the third succeeding paragraph, the assignments of mortgages, the
assignments of leases (to the extent separate from the mortgages) and
the assignments of UCC financing statements relating to the Mortgage
Loans naming the Trustee on behalf of the Certificateholders as
assignee. Notwithstanding the fact that such assignments of mortgages,
assignments of leases (to the extent separate from the assignments of
mortgages) and assignments of UCC financing statements shall name the
Trustee on behalf of the Certificateholders as the assignee, the
parties hereto acknowledge and agree that the Mortgage Loans shall for
all purposes be deemed to have been transferred from Seller to
Purchaser and from Purchaser to the Trustee on behalf of the
Certificateholders.
2.4. If Seller cannot deliver, or cause to be delivered, as to any Mortgage
Loan, any of the documents and/or instruments referred to in Sections
2.2.2, 2.2.3, 2.2.5 or 2.2.6, with evidence of recording thereon,
solely because of a delay caused by the public recording office where
such document or instrument has been delivered for recordation within
such 45 day period, but Seller delivers a photocopy thereof (certified
by the appropriate county recorder's office to be a true and complete
copy of the original thereof submitted for recording), to the Trustee
within such 45 day period, Seller shall then deliver within 90 days
after the Closing Date the recorded document (or within such longer
period after the Closing Date as the Trustee may consent to, which
consent shall not be unreasonably withheld so long as Seller is, as
certified in writing to the Trustee no less often than monthly, in
good faith attempting to obtain from the appropriate county recorder's
office such original or photocopy).
2.5. The Trustee, as assignee or transferee of Purchaser, shall be entitled
to all scheduled payments of principal due thereon after the Cut-Off
Date, all other payments of principal collected after the Cut-Off Date
(other than scheduled payments of principal due on or before the
Cut-Off Date), and all payments of interest on the Mortgage Loans
allocable to the period commencing on the Cut-Off Date. All scheduled
payments of principal and interest due on or before the Cut-Off Date
and collected after the Cut-Off Date shall belong to Seller.
2.6. Within 45 days following the Closing Date, Seller shall deliver and
Purchaser, the Trustee or the agents of either may submit or cause to
be submitted for recordation at the expense of Seller, in the
appropriate public office for real property records, each assignment
referred to in clauses 2.2.4 and 2.2.6(ii) above. Within 90 days
following the Closing Date, Seller shall deliver and Purchaser, the
Trustee or the agents of either may
submit or cause to be submitted for filing, at the expense of Seller,
in the appropriate public office for Uniform Commercial Code financing
statements, the assignment referred to in clause 2.2.1. If any such
document or instrument is lost or returned unrecorded or unfiled, as
the case may be, because of a defect therein, Seller shall prepare a
substitute therefor or cure such defect, and Seller shall, at its own
expense (except in the case of a document or instrument that is lost
by the Trustee), record or file, as the case may be, and deliver such
document or instrument in accordance with this Section 2.
2.7. Documents that are in the possession of Seller, its agents or its
subcontractors that relate to the Mortgage Loans and that are not
required to be delivered to the Trustee shall be shipped by Seller to
or at the direction of the Master Servicer, on behalf of Purchaser, on
or prior to the 75th day after the Closing Date, in accordance with
Section 3.1 of the Primary Servicing Agreement, if applicable.
2.8. The documents required to be delivered to the Master Servicer (or in
the alternative, the Primary Servicer) shall include, to the extent
required to be (and actually) delivered to Seller pursuant to the
applicable Mortgage Loan documents, copies of the following items: the
Mortgage Note, any Mortgage, the Assignment of Leases and the
Assignment of Mortgage, any guaranty/indemnity agreement, any loan
agreement, the insurance policies or certificates, as applicable, the
property inspection reports, any financial statements on the property,
any escrow analysis, the tax bills, the Appraisal, the environmental
report, the engineering report, the asset summary, financial
information on the Borrower/sponsor and any guarantors, any letters of
credit, any intercreditor agreement and any Environmental Insurance
Policies. Delivery of any of the foregoing documents to the Primary
Servicer shall be deemed a delivery to the Master Servicer and satisfy
Seller's obligations under this subparagraph.
2.9. Upon the sale of the Mortgage Loans by Seller to Purchaser pursuant to
this Agreement, the ownership of each Mortgage Note, Mortgage and the
other contents of the related Mortgage File shall be vested in
Purchaser and its assigns, and the ownership of all records and
documents with respect to the related Mortgage Loan prepared by or
that come into the possession of Seller shall immediately vest in
Purchaser and its assigns, and shall be delivered promptly by Seller
to or on behalf of either the Trustee or the Master Servicer as set
forth herein, subject to the requirements of the Primary Servicing
Agreement. Seller's and Purchaser's records shall reflect the transfer
of each Mortgage Loan from Seller to Purchaser and its assigns as a
sale.
2.10. It is the express intent of the parties hereto that the conveyance of
the Mortgage Loans and related property to Purchaser by Seller as
provided in this Section 2 be, and be construed as, an absolute sale
of the Mortgage Loans and related property. It is, further, not the
intention of the parties that such conveyance be deemed a pledge of
the Mortgage Loans and related property by Seller to Purchaser to
secure a debt or other obligation of Seller. However, in the event
that, notwithstanding the intent of the parties, the Mortgage Loans or
any related property are held to be the property of Seller, or if for
any other reason this Agreement is held or deemed to create a security
interest in the Mortgage Loans or any related property, then:
2.10.1. this Agreement shall be deemed to be a security agreement; and
2.10.2. the conveyance provided for in this Section 2 shall be deemed to be
a grant by Seller to Purchaser of a security interest in all of Seller's right,
title, and interest, whether now owned or hereafter acquired, in and to:
2.10.2.1. All accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates of deposit,
goods, letters of credit, advices of credit and investment property
consisting of, arising from or relating to any of the following property:
the Mortgage Loans identified on the Mortgage Loan Schedule, including the
related Mortgage Notes, Mortgages, security agreements, and title, hazard
and other insurance policies, all distributions with respect thereto
payable after the Cut-Off Date, all substitute or replacement Mortgage
Loans and all distributions with respect thereto, and the Mortgage Files;
2.10.2.2. All accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates of deposit,
goods, letters of credit, advices of credit, investment property and other
rights arising from or by virtue of the disposition of, or collections with
respect to, or insurance proceeds payable with respect to, or claims
against other Persons with respect to, all or any part of the collateral
described in clause (A) above (including any accrued discount realized on
liquidation of any investment purchased at a discount); and
2.10.2.3. All cash and non-cash proceeds of the collateral described
in clauses (A) and (B) above.
2.11. The possession by Purchaser or its designee of the Mortgage Notes,
the Mortgages, and such other goods, letters of credit, advices of
credit, instruments, money, documents, chattel paper or certificated
securities shall be deemed to be possession by the secured party or
possession by a purchaser for purposes of perfecting the security
interest pursuant to the Uniform Commercial Code (including, without
limitation, Sections 9-313 thereof) as in force in the relevant
jurisdiction. Notwithstanding the foregoing, Seller makes no
representation or warranty as to the perfection of any such security
interest.
2.12. Notifications to Persons holding such property, and acknowledgments,
receipts, or confirmations from persons holding such property, shall
be deemed to be notifications to, or acknowledgments, receipts or
confirmations from, securities intermediaries, bailees or agents of,
or Persons holding for, Purchaser or its designee, as applicable, for
the purpose of perfecting such security interest under applicable law.
2.13. Seller shall, to the extent consistent with this Agreement, take such
reasonable actions as may be necessary to ensure that, if this
Agreement were deemed to create a security interest in the property
described above, such security interest would be deemed to be a
perfected security interest of first priority under applicable law and
will be maintained as such throughout the term of the Agreement. In
such case, Seller shall file all filings necessary to maintain the
effectiveness of any original filings necessary under
the Uniform Commercial Code as in effect in any jurisdiction to
perfect such security interest in such property. In connection
herewith, Purchaser shall have all of the rights and remedies of a
secured party and creditor under the Uniform Commercial Code as in
force in the relevant jurisdiction.
2.14. Notwithstanding anything to the contrary contained herein, and
subject to Section 2.1, Purchaser shall not be required to purchase
any Mortgage Loan as to which any Mortgage Note (endorsed as described
in clause 2.2.1) required to be delivered to or on behalf of the
Trustee or the Master Servicer pursuant to this Section 2 on or before
the Closing Date is not so delivered, or is not properly executed or
is defective on its face, and Purchaser's acceptance of the related
Mortgage Loan on the Closing Date shall in no way constitute a waiver
of such omission or defect or of Purchaser's or its successors' and
assigns' rights in respect thereof pursuant to Section 5.
3. EXAMINATION OF MORTGAGE FILES AND DUE DILIGENCE REVIEW.
3.1. Seller shall (i) deliver to Purchaser on or before the Closing Date a
diskette acceptable to Purchaser that contains such information about
the Mortgage Loans as may be reasonably requested by Purchaser, (ii)
deliver to Purchaser investor files (collectively the "Collateral
Information") with respect to the assets proposed to be included in
the Mortgage Pool and made available at Purchaser's headquarters in
New York, and (iii) otherwise cooperate fully with Purchaser in its
examination of the credit files, underwriting documentation and
Mortgage Files for the Mortgage Loans and its due diligence review of
the Mortgage Loans. The fact that Purchaser has conducted or has
failed to conduct any partial or complete examination of the credit
files, underwriting documentation or Mortgage Files for the Mortgage
Loans shall not affect the right of Purchaser or the Trustee to cause
Seller to cure any Material Document Defect or Material Breach (each
as defined below), or to repurchase or replace the defective Mortgage
Loans pursuant to Section 5 hereof.
3.2. On or prior to the Closing Date, Seller shall allow representatives of
any of Purchaser, each Underwriter, each Initial Purchaser, the
Trustee, the Special Servicer and each Rating Agency to examine and
audit all books, records and files pertaining to the Mortgage Loans,
Seller's underwriting procedures and Seller's ability to perform or
observe all of the terms, covenants and conditions of this Agreement.
Such examinations and audits shall take place at one or more offices
of Seller during normal business hours and shall not be conducted in a
manner that is disruptive to Seller's normal business operations upon
reasonable prior advance notice. In the course of such examinations
and audits, Seller will make available to such representatives of any
of Purchaser, each Underwriter, each Initial Purchaser, the Trustee,
the Special Servicer and each Rating Agency reasonably adequate
facilities, as well as the assistance of a sufficient number of
knowledgeable and responsible individuals who are familiar with the
Mortgage Loans and the terms of this Agreement, and Seller shall
cooperate fully with any such examination and audit in all material
respects. On or prior to the Closing Date, Seller shall provide
Purchaser with all material information regarding Seller's financial
condition and access to knowledgeable financial or accounting officers
for the
purpose of answering questions with respect to Seller's financial
condition, financial statements as provided to Purchaser or other
developments affecting Seller's ability to consummate the transactions
contemplated hereby or otherwise affecting Seller in any material
respect. Within 45 days after the Closing Date, Seller shall provide
the Master Servicer or Primary Servicer, if applicable, with any
additional information identified by the Master Servicer or Primary
Servicer, if applicable, as necessary to complete the CMSA Property
File, to the extent that such information is available.
3.3. Purchaser may exercise any of its rights hereunder through one or more
designees or agents, provided Purchaser has provided Seller with prior
notice of the identity of such designee or agent.
3.4. Purchaser shall keep confidential any information regarding Seller and
the Mortgage Loans that has been delivered into Purchaser's possession
and that is not otherwise publicly available; provided, however, that
such information shall not be kept confidential (and the right to
require confidentiality under any confidentiality agreement is hereby
waived) to the extent such information is required to be included in
the Memorandum or the Prospectus Supplement or Purchaser is required
by law or court order to disclose such information. If Purchaser is
required to disclose in the Memorandum or the Prospectus Supplement
confidential information regarding Seller as described in the
preceding sentence, Purchaser shall provide to Seller a copy of the
proposed form of such disclosure prior to making such disclosure and
Seller shall promptly, and in any event within two Business Days,
notify Purchaser of any inaccuracies therein, in which case Purchaser
shall modify such form in a manner that corrects such inaccuracies. If
Purchaser is required by law or court order to disclose confidential
information regarding Seller as described in the second preceding
sentence, Purchaser shall notify Seller and cooperate in Seller's
efforts to obtain a protective order or other reasonable assurance
that confidential treatment will be accorded such information and, if
in the absence of a protective order or such assurance, Purchaser is
compelled as a matter of law to disclose such information, Purchaser
shall, prior to making such disclosure, advise and consult with Seller
and its counsel as to such disclosure and the nature and wording of
such disclosure and Purchaser shall use reasonable efforts to obtain
confidential treatment therefor. Notwithstanding the foregoing, if
reasonably advised by counsel that Purchaser is required by a
regulatory agency or court order to make such disclosure immediately,
then Purchaser shall be permitted to make such disclosure without
prior review by Seller.
4. REPRESENTATIONS AND WARRANTIES OF SELLER AND PURCHASER.
4.1. To induce Purchaser to enter into this Agreement, Seller hereby makes
for the benefit of Purchaser and its assigns with respect to each
Mortgage Loan as of the date hereof (or as of such other date
specifically set forth in the particular representation and warranty)
each of the representations and warranties set forth on Exhibit 2
hereto, except as otherwise set forth on Schedule A attached hereto,
and hereby further represents and warrants to Purchaser as of the date
hereof that:
4.1.1. Seller is duly organized and is validly existing as a national
banking association in good standing under the laws of the United States. Seller
has the requisite power and authority and legal right to own the Mortgage Loans
and to transfer and convey the Mortgage Loans to Purchaser and has the requisite
power and authority to execute and deliver, engage in the transactions
contemplated by, and perform and observe the terms and conditions of, this
Agreement.
4.1.2. This Agreement has been duly and validly authorized, executed and
delivered by Seller, and assuming the due authorization, execution and delivery
hereof by Purchaser, this Agreement constitutes the valid, legal and binding
agreement of Seller, enforceable in accordance with its terms, except as such
enforcement may be limited by (A) laws relating to bankruptcy, insolvency,
reorganization, receivership or moratorium, (B) other laws relating to or
affecting the rights of creditors generally, (C) general equity principles
(regardless of whether such enforcement is considered in a proceeding in equity
or at law) or (D) public policy considerations underlying the securities laws,
to the extent that such public policy considerations limit the enforceability of
the provisions of this Agreement that purport to provide indemnification from
liabilities under applicable securities laws.
4.1.3. No consent, approval, authorization or order of, registration or
filing with, or notice to, any governmental authority or court is required,
under federal or state law, for the execution, delivery and performance of or
compliance by Seller with this Agreement, or the consummation by Seller of any
transaction contemplated hereby, other than (A) such qualifications as may be
required under state securities or blue sky laws, (B) the filing or recording of
financing statements, instruments of assignment and other similar documents
necessary in connection with Seller's sale of the Mortgage Loans to Purchaser,
(C) such consents, approvals, authorizations, qualifications, registrations,
filings or notices as have been obtained and (D) where the lack of such consent,
approval, authorization, qualification, registration, filing or notice would not
have a material adverse effect on the performance by Seller under this
Agreement.
4.1.4. Neither the transfer of the Mortgage Loans to Purchaser, nor the
execution, delivery or performance of this Agreement by Seller, conflicts or
will conflict with, results or will result in a breach of, or constitutes or
will constitute a default under (A) any term or provision of Seller's articles
of organization or by-laws, (B) any term or provision of any material agreement,
contract, instrument or indenture to which Seller is a party or by which it or
any of its assets is bound or results in the creation or imposition of any lien,
charge or encumbrance upon any of its property pursuant to the terms of any such
indenture, mortgage, contract or other instrument, other than pursuant to this
Agreement, or (C) after giving effect to the consents or taking of the actions
contemplated in subsection 4.1.3, any law, rule, regulation, order, judgment,
writ, injunction or decree of any court or governmental authority having
jurisdiction over Seller or its assets, except where in any of the instances
contemplated by clauses (B) or (C) above, any conflict, breach or default, or
creation or imposition of any lien, charge or encumbrance, will not have a
material adverse effect on the consummation of the transactions contemplated
hereby by Seller or its ability to perform its obligations and duties hereunder
or result in any material adverse change in the business, operations, financial
condition, properties or assets of Seller, or in any material impairment of the
right or ability of Seller to carry on its business substantially as now
conducted.
4.1.5. There are no actions or proceedings against, or investigations of,
Seller pending or, to Seller's knowledge, threatened in writing against Seller
before any court, administrative agency or other tribunal, the outcome of which
could reasonably be expected to materially and adversely affect the transfer of
the Mortgage Loans to Purchaser or the execution or delivery by, or
enforceability against, Seller of this Agreement or have an effect on the
financial condition of Seller that would materially and adversely affect the
ability of Seller to perform its obligations under this Agreement.
4.1.6. On the Closing Date, the sale of the Mortgage Loans pursuant to this
Agreement will effect a transfer by Seller of all of its right, title and
interest in and to the Mortgage Loans to Purchaser.
4.1.7. To Seller's knowledge, Seller's Information (as defined in that
certain indemnification agreement, dated October 20, 2005, between Seller,
Purchaser, the Underwriters and the Initial Purchasers (the "Indemnification
Agreement")) relating to the Mortgage Loans does not contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading. Notwithstanding anything contained herein to the contrary,
this subparagraph 4.1.7 shall run exclusively to the benefit of Purchaser and no
other party.
To induce Purchaser to enter into this Agreement, Seller hereby
covenants that the foregoing representations and warranties and those set forth
on Exhibit 2 hereto will be true and correct in all material respects on and as
of the Closing Date with the same effect as if made on the Closing Date.
Each of the representations, warranties and covenants made by Seller
pursuant to this Section 4.1 shall survive the sale of the Mortgage Loans and
shall continue in full force and effect notwithstanding any restrictive or
qualified endorsement on the Mortgage Notes.
4.2. To induce Seller to enter into this Agreement, Purchaser hereby
represents and warrants to Seller as of the date hereof:
4.2.1. Purchaser is a corporation duly organized, validly existing, and in
good standing under the laws of the State of Delaware with full power and
authority to carry on its business as presently conducted by it.
4.2.2. Purchaser has full power and authority to acquire the Mortgage
Loans, to execute and deliver this Agreement and to enter into and consummate
all transactions contemplated by this Agreement. Purchaser has duly and validly
authorized the execution, delivery and performance of this Agreement and has
duly and validly executed and delivered this Agreement. This Agreement, assuming
due authorization, execution and delivery by Seller, constitutes the valid and
binding obligation of Purchaser, enforceable against it in accordance with its
terms, except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity, regardless of
whether such enforcement is considered in a proceeding in equity or at law.
4.2.3. No consent, approval, authorization or order of, registration or
filing with, or notice to, any governmental authority or court is required,
under federal or state law, for the execution, delivery and performance of or
compliance by Purchaser with this Agreement, or the consummation by Purchaser of
any transaction contemplated hereby that has not been obtained or made by
Purchaser.
4.2.4. Neither the purchase of the Mortgage Loans nor the execution,
delivery and performance of this Agreement by Purchaser will violate Purchaser's
certificate of incorporation or by-laws or constitute a default (or an event
that, with notice or lapse of time or both, would constitute a default) under,
or result in a breach of, any material agreement, contract, instrument or
indenture to which Purchaser is a party or that may be applicable to Purchaser
or its assets.
4.2.5. Purchaser's 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, rule, writ, injunction, order or decree of any court, or
order or regulation of any federal, state or municipal government agency having
jurisdiction over Purchaser or its assets, which violation could materially and
adversely affect the condition (financial or otherwise) or the operation of
Purchaser or its assets or could materially and adversely affect its ability to
perform its obligations and duties hereunder.
4.2.6. There are no actions or proceedings against, or investigations of,
Purchaser pending or, to Purchaser's knowledge, threatened against Purchaser
before any court, administrative agency or other tribunal, the outcome of which
could reasonably be expected to adversely affect the transfer of the Mortgage
Loans, the issuance of the Certificates, the execution, delivery or
enforceability of this Agreement or have an effect on the financial condition of
Purchaser that would materially and adversely affect the ability of Purchaser to
perform its obligation under this Agreement.
4.2.7. Purchaser has not dealt with any broker, investment banker, agent or
other person, other than Seller, the Underwriters, the Initial Purchasers and
their respective affiliates, that may be entitled to any commission or
compensation in connection with the sale of the Mortgage Loans or consummation
of any of the transactions contemplated hereby.
To induce Seller to enter into this Agreement, Purchaser hereby
covenants that the foregoing representations and warranties will be true and
correct in all material respects on and as of the Closing Date with the same
effect as if made on the Closing Date.
Each of the representations and warranties made by Purchaser pursuant
to this Section 4.2 shall survive the purchase of the Mortgage Loans.
5. REMEDIES UPON BREACH OF REPRESENTATIONS AND WARRANTIES MADE BY SELLER.
5.1. It is hereby acknowledged that Seller shall make for the benefit of
the Trustee on behalf of the holders of the Certificates, whether
directly or by way of Purchaser's assignment of its rights hereunder
to the Trustee, the representations and warranties set forth on
Exhibit 2 hereto (each as of the date hereof unless otherwise
specified).
5.2. It is hereby further acknowledged that if any document required to be
delivered to the Trustee pursuant to Section 2 is not delivered as and
when required, not properly executed or is defective on its face, or
if there is a breach of any of the representations and warranties
required to be made by Seller regarding the characteristics of the
Mortgage Loans and/or the related Mortgaged Properties as set forth in
Exhibit 2 hereto, and in either case the party discovering such breach
or defect determines that either (i) the defect or breach materially
and adversely affects the interests of the holders of the Certificates
in the related Mortgage Loan or (ii) both (A) the defect or breach
materially and adversely affects the value of the Mortgage Loan and
(B) the Mortgage Loan is a Specially Serviced Mortgage Loan or
Rehabilitated Mortgage Loan (any such defect described in the
preceding clause (i) or (ii), a "Material Document Defect" and any
such breach described in the preceding clause (i) or (ii), a "Material
Breach"), the party determining that such Material Document Defect or
Material Breach exists shall promptly notify, in writing, the other
parties; provided that any breach of the representation and warranty
contained in paragraph (41) of such Exhibit 2 shall constitute a
Material Breach only if such prepayment premium or yield maintenance
charge is not deemed "customary" for commercial mortgage loans as
evidenced by (i) an opinion of tax counsel to such effect or (ii) a
determination by the Internal Revenue Service that such provision is
not customary. Promptly (but in any event within three Business Days)
upon determining (or becoming aware of another party's determination)
that any such Material Document Defect or Material Breach exists
(which determination shall, absent evidence to the contrary, be
presumed to be no earlier than three Business Days prior to delivery
of the notice to Seller referred to below), the Master Servicer shall,
and the Special Servicer may, request that Seller, not later than 90
days from Seller's receipt of the notice of such Material Document
Defect or Material Breach, cure such Material Document Defect or
Material Breach, as the case may be, in all material respects;
provided, however, that if such Material Document Defect or Material
Breach, as the case may be, cannot be corrected or cured in all
material respects within such 90 day period, and such Material
Document Defect or Material Breach would not cause the Mortgage Loan
to be other than a "qualified mortgage"(as defined in the Code) but
Seller is diligently attempting to effect such correction or cure, as
certified by Seller in an Officer's Certificate delivered to the
Trustee, then the cure period will be extended for an additional 90
days unless, solely in the case of a Material Document Defect, (x) the
Mortgage Loan is then a Specially Serviced Mortgage Loan and a
Servicing Transfer Event has occurred as a result of a monetary
default or as described in clause (ii) or clause (v) of the definition
of "Servicing Transfer Event" in the Pooling and Servicing Agreement
and (y) the Material Document Defect was identified in a certification
delivered to Seller by the Trustee pursuant to Section 2.2 of the
Pooling and Servicing Agreement not less than 90 days prior to the
delivery of the notice of such Material Document Defect. The parties
acknowledge that neither delivery of a certification or schedule of
exceptions to Seller pursuant to Section 2.2 of the Pooling and
Servicing Agreement or otherwise nor possession of such certification
or schedule by Seller shall, in and of itself, constitute delivery of
notice of any Material Document Defect or knowledge or awareness by
Seller, the Master Servicer or the Special Servicer of any Material
Document Defect listed therein.
5.3. Seller hereby covenants and agrees that, if any such Material Document
Defect or Material Breach cannot be corrected or cured or Seller
otherwise fails to correct or cure within the above cure periods,
Seller shall, on or before the termination of such cure periods,
either (i) repurchase the affected Mortgage Loan or REO Mortgage Loan
from Purchaser or its assignee at the Purchase Price as defined in the
Pooling and Servicing Agreement, or (ii) if within the three-month
period commencing on the Closing Date (or within the two-year period
commencing on the Closing Date if the related Mortgage Loan is a
"defective obligation" within the meaning of Section 860G(a)(4)(B)(ii)
of the Code and Treasury Regulation Section 1.860G-2(f)), at its
option replace, without recourse, any Mortgage Loan or REO Mortgage
Loan to which such defect relates with a Qualifying Substitute
Mortgage Loan. If such Material Document Defect or Material Breach
would cause the Mortgage Loan to be other than a "qualified mortgage"
(as defined in the Code), then notwithstanding the previous sentence
or the previous paragraph, repurchase must occur within 85 days from
the date Seller was notified of the defect. Seller agrees that any
substitution shall be completed in accordance with the terms and
conditions of the Pooling and Servicing Agreement.
5.4. If (x) a Mortgage Loan is to be repurchased or replaced as
contemplated above (a "Defective Mortgage Loan"), (y) such Defective
Mortgage Loan is cross-collateralized and cross-defaulted with one or
more other Mortgage Loans ("Crossed Mortgage Loans") and (z) the
applicable document defect or breach does not constitute a Material
Document Defect or Material Breach, as the case may be, as to such
Crossed Mortgage Loans (without regard to this paragraph), then the
applicable document defect or breach (as the case may be) shall be
deemed to constitute a Material Document Defect or Material Breach, as
the case may be, as to each such Crossed Mortgage Loan for purposes of
the above provisions, and Seller shall be obligated to repurchase or
replace each such Crossed Mortgage Loan in accordance with the
provisions above, unless, in the case of such breach or document
defect, (A) Seller provides a Nondisqualification Opinion to the
Trustee at the expense of Seller if, in the reasonable business
judgment of the Trustee, it would be usual and customary in accordance
with industry practice to obtain a Nondisqualification Opinion and (B)
both of the following conditions would be satisfied if Seller were to
repurchase or replace only those Mortgage Loans as to which a Material
Breach or Material Document Defect had occurred without regard to this
paragraph (the "Affected Loan(s)"): (i) the debt service coverage
ratio for all such other Mortgage Loans (excluding the Affected
Loan(s)) for the four calendar quarters immediately preceding the
repurchase or replacement is not less than the lesser of (A) 0.10x
below the debt service coverage ratio for all such other Mortgage
Loans (including the Affected Loans(s)) set forth in Appendix A to the
Final Prospectus Supplement and (B) the debt service coverage ratio
for all such Crossed Mortgage Loans (including the Affected Loan(s))
for the four preceding calendar quarters preceding the repurchase or
replacement, and (ii) the loan-to-value ratio for all such Crossed
Mortgage Loans (excluding the Affected Loan(s)) is not greater than
the greater of (A) the loan-to-value ratio, expressed as a whole
number (taken to one decimal place), for all such Crossed Mortgage
Loans (including the Affected Loan(s)) set forth in Appendix A to the
Final Prospectus Supplement plus 10% and (B) the loan-to-value ratio
for all such Crossed Mortgage Loans (including the Affected Loans(s)),
at the time of repurchase or replacement. The determination of the
Master Servicer as to whether the conditions set
forth above have been satisfied shall be conclusive and binding in the
absence of manifest error. The Master Servicer will be entitled to
cause to be delivered, or direct Seller to (in which case Seller
shall) cause to be delivered to the Master Servicer, an Appraisal of
any or all of the related Mortgaged Properties for purposes of
determining whether the condition set forth in clause (ii) above has
been satisfied, in each case at the expense of Seller if the scope and
cost of the Appraisal is approved by Seller (such approval not to be
unreasonably withheld).
5.5. With respect to any Defective Mortgage Loan, to the extent that Seller
is required to repurchase or substitute for such Defective Mortgage
Loan (each, a "Repurchased Loan") in the manner prescribed above while
the Trustee (as assignee of Purchaser) continues to hold any Crossed
Mortgage Loan, Seller and Purchaser hereby agree to forebear from
enforcing any remedies against the other's Primary Collateral but may
exercise remedies against the Primary Collateral securing their
respective Mortgage Loans, including with respect to the Trustee, the
Primary Collateral securing the 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.
If the exercise of remedies by one party would impair the ability of
the other party to exercise its remedies with respect to the Primary
Collateral securing the Mortgage Loan or Mortgage Loans held by such
party, then both parties shall forbear from exercising such remedies
until the loan documents evidencing and securing the relevant Mortgage
Loans can be modified in a manner that complies with the Pooling and
Servicing Agreement to remove the threat of impairment as a result of
the exercise of remedies. Any reserve or other cash collateral or
letters of credit securing the Crossed Mortgage Loans shall be
allocated between such Mortgage Loans in accordance with the Mortgage
Loan documents, or otherwise on a pro rata basis based upon their
outstanding Principal Balances. All other terms of the Mortgage Loans
shall remain in full force and effect, without any modification
thereof. The Mortgagors set forth on Schedule B hereto are intended
third-party beneficiaries of the provisions set forth in this
paragraph and the preceding paragraph. The provisions of this
paragraph and the preceding paragraph may not be modified with respect
to any Mortgage Loan without the related Mortgagor's consent.
5.6. Any of the following document defects shall be conclusively presumed
materially and adversely to affect the interests of Certificateholders
in a Mortgage Loan and be a Material Document Defect: (a) the absence
from the Mortgage File of the original signed Mortgage Note, unless
the Mortgage File contains a signed lost note affidavit and indemnity
that appears to be regular on its face; (b) the absence from the
Mortgage File of the original signed Mortgage that appears to be
regular on its face, unless there is included in the Mortgage File a
certified copy of the Mortgage by the local authority with which the
Mortgage was recorded; or (c) the absence from the Mortgage File of
the item specified in paragraph 2.2.8. If any of the foregoing
Material Document Defects is discovered by the Custodian (or the
Trustee if there is no Custodian), the Trustee (or as set forth in
Section 2.3(a) of the Pooling and Servicing Agreement, the Master
Servicer) will take the steps described elsewhere in this Section,
including the giving of notices to the Rating Agencies and the parties
hereto and making demand upon Seller for the cure
of the Material Document Defect or repurchase or replacement of the
related Mortgage Loan.
5.7. If Seller disputes that a Material Document Defect or Material Breach
exists with respect to a Mortgage Loan or otherwise refuses (i) to
effect a correction or cure of such Material Document Defect or
Material Breach, (ii) to repurchase the affected Mortgage Loan from
Purchaser or its assignee or (iii) to replace such Mortgage Loan with
a Qualifying Substitute Mortgage Loan, each in accordance with this
Agreement, then provided that (i) the period of time provided for
Seller to correct, repurchase or cure has expired and (ii) the
Mortgage Loan is then in default and is then a Specially Serviced
Mortgage Loan, the Special Servicer may, subject to the Servicing
Standard, modify, work-out or foreclose, sell or otherwise liquidate
(or permit the liquidation of) the Mortgage Loan pursuant to Sections
9.5, 9.12, 9.15 and 9.36, as applicable, of the Pooling and Servicing
Agreement, while pursuing the repurchase claim. Seller acknowledges
and agrees that any modification of the Mortgage Loan pursuant to a
work-out shall not constitute a defense to any repurchase claim nor
shall such modification and work-out change the Purchase Price due
from Seller for any repurchase claim. In the event of any such
modification and work-out, Seller shall be obligated to repurchase the
Mortgage Loan as modified and the Purchase Price shall include any
Work-Out Fee paid to the Special Servicer up to the date of repurchase
plus the present value (calculated at a discount rate equal to the
applicable Mortgage Rate) of the Work-Out Fee that would have been
payable to the Special Servicer in respect of such Mortgage Loan if
the Mortgage Loan performed in accordance with its terms to its
Maturity Date, provided that no amount shall be paid by Seller in
respect of any Work-Out Fee if a Liquidation Fee already comprises a
portion of the Purchase Price.
5.8. Seller shall be notified promptly and in writing by (i) the Trustee of
any notice that it receives that an Option Holder intends to exercise
its Option to purchase the Mortgage Loan in accordance with and as
described in Section 9.36 of the Pooling and Servicing Agreement and
(ii) the Special Servicer of any offer that it receives to purchase
the applicable REO Property, each in connection with such liquidation.
Upon the receipt of such notice by Seller, Seller shall then have the
right to purchase the related Mortgage Loan or REO Property, as
applicable, from the Trust at a purchase price equal to, in the case
of clause (i) of the immediately preceding sentence, the Option
Purchase Price or, in the case of clause (ii) of the immediately
preceding sentence, the amount of such offer. Notwithstanding anything
to the contrary contained in this Agreement or in the Pooling and
Servicing Agreement, the right of any Option Holder to purchase such
Mortgage Loan shall be subject and subordinate to Seller's right to
purchase such Mortgage Loan as described in the immediately preceding
sentence. Seller shall have five Business Days to notify the Trustee
or Special Servicer, as applicable, of its intent to so purchase the
Mortgage Loan or related REO Property from the date that it was
notified of such intention to exercise such Option or of such offer.
The Special Servicer shall be obligated to provide Seller with any
appraisal or other third party reports relating to the Mortgaged
Property within its possession to enable Seller to evaluate the
Mortgage Loan or REO Property. Any sale of the Mortgage Loan, or
foreclosure upon such Mortgage Loan and sale of the REO Property, to a
Person other than Seller shall be without (i) recourse of any kind
(either express or implied) by such Person against Seller
and (ii) representation or warranty of any kind (either express or
implied) by Seller to or for the benefit of such Person.
5.9. The fact that a Material Document Defect or Material Breach is not
discovered until after foreclosure (but in all instances prior to the
sale of the related REO Property or Mortgage Loan) shall not prejudice
any claim against Seller for repurchase of the REO Mortgage Loan or
REO Property. In such an event, the Master Servicer shall notify
Seller of the discovery of the Material Document Defect or Material
Breach and Seller shall have 90 days to correct or cure such Material
Document Defect or Material Breach or purchase the REO Property at the
Purchase Price. If Seller fails to correct or cure the Material
Document Defect or Material Breach or purchase the REO Property, then
the provisions above regarding notice of offers related to such REO
Property and Seller's right to purchase such REO Property shall apply.
After a final liquidation of the Mortgage Loan or REO Mortgage Loan,
if a court of competent jurisdiction issues a final order after the
expiration of any applicable appeal period that Seller is or was
obligated to repurchase the related Mortgage Loan or REO Mortgage Loan
(a "Final Judicial Determination") or Seller otherwise accepts
liability, then, but in no event later than the Termination of the
Trust pursuant to Section 9.30 of the Pooling and Servicing Agreement,
Seller will be obligated to pay to the Trust the difference between
any Liquidation Proceeds received upon such liquidation in accordance
with the Pooling and Servicing Agreement (including those arising from
any sale to Seller) and the Purchase Price.
5.10. Notwithstanding anything to the contrary contained herein, in
connection with any sale or other liquidation of a Mortgage Loan or
REO Property as described in this Section 5, the Special Servicer
shall not receive a Liquidation Fee from Seller (but may collect such
Liquidation Fee from the related Liquidation Proceeds as otherwise
provided herein); provided, however, that in the event Seller is
obligated to repurchase the Mortgage Loan or REO Mortgaged Property
after a final liquidation of such Mortgage Loan or REO Property
pursuant to the immediately preceding paragraph, an amount equal to
any Liquidation Fee (calculated on the basis of Liquidation Proceeds)
payable to the Special Servicer shall be included in the definition of
"Purchase Price" in respect of such Mortgage Loan or REO Mortgaged
Property. Except as expressly set forth above, no Liquidation Fee
shall be payable in connection with a repurchase of a Mortgage Loan by
Seller.
5.11. The obligations of Seller set forth in this Section 5 to cure a
Material Document Defect or a Material Breach or repurchase or replace
a defective Mortgage Loan constitute the sole remedies of Purchaser or
its assignees with respect to a Material Document Defect or Material
Breach in respect of an outstanding Mortgage Loan; provided, that this
limitation shall not in any way limit Purchaser's rights or remedies
upon breach of any other representation or warranty or covenant by
Seller set forth in this Agreement (other than those set forth in
Exhibit 2).
5.12. Notwithstanding the foregoing, in the event that there is a breach of
the representations and warranties set forth in paragraph 39 in
Exhibit 2 hereto, and as a result the payments, by a Mortgagor, of
reasonable costs and expenses associated with
the defeasance or assumption of a Mortgage Loan are insufficient
causing the Trust to incur an Additional Trust Expense in an amount
equal to such reasonable costs and expenses not paid by such
Mortgagor, Seller hereby covenants and agrees to reimburse the Trust
within 90 days of the receipt of notice of such breach in an amount
sufficient to avoid such Additional Trust Expense. The parties hereto
acknowledge that such reimbursement shall be Seller's sole obligation
with respect to the breach discussed in the previous sentence.
5.13. The Pooling and Servicing Agreement shall provide that the Trustee
(or the Master Servicer or the Special Servicer on its behalf) shall
give written notice promptly (but in any event within three Business
Days) to Seller of its determination that any Material Document Defect
or Material Breach exists (which determination shall, absent evidence
to the contrary, be presumed to be no earlier than three Business Days
prior to delivery of the notice) and prompt written notice to Seller
in the event that any Mortgage Loan becomes a Specially Serviced
Mortgage Loan (as defined in the Pooling and Servicing Agreement).
5.14. If Seller repurchases any Mortgage Loan pursuant to this Section 5,
Purchaser or its assignee, following receipt by the Trustee of the
Purchase Price therefor, promptly shall deliver or cause to be
delivered to Seller all Mortgage Loan documents with respect to such
Mortgage Loan, and each document that constitutes a part of the
Mortgage File that was endorsed or assigned to the Trustee shall be
endorsed and assigned to Seller in the same manner such that Seller
shall be vested with legal and beneficial title to such Mortgage Loan,
in each case without recourse, including any property acquired in
respect of such Mortgage Loan or proceeds of any insurance policies
with respect thereto.
6. CLOSING.
6.1. The closing of the sale of the Mortgage Loans shall be held at the
offices of Xxxxxx & Xxxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000
at 9:00 a.m., New York time, on the Closing Date. The closing shall be
subject to each of the following conditions:
6.1.1. All of the representations and warranties of Seller and Purchaser
specified in Section 4 hereof (including, without limitation, the
representations and warranties set forth on Exhibit 2 hereto) shall be true and
correct as of the Closing Date (to the extent of the standard, if any, set forth
in each representation and warranty).
6.1.2. All Closing Documents specified in Section 7 hereof, in such forms
as are agreed upon and reasonably acceptable to Seller or Purchaser, as
applicable, shall be duly executed and delivered by all signatories as required
pursuant to the respective terms thereof.
6.1.3. Seller shall have delivered and released to Purchaser or its
designee all documents required to be delivered to Purchaser as of the Closing
Date pursuant to Section 2 hereof.
6.1.4. The result of the examination and audit performed by Purchaser and
its affiliates pursuant to Section 3 hereof shall be satisfactory to Purchaser
and its affiliates in their sole
determination and the parties shall have agreed to the form and contents of
Seller's Information to be disclosed in the Memorandum and the Prospectus
Supplement.
6.1.5. All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with, and
Seller and Purchaser shall have the ability to comply with all terms and
conditions and perform all duties and obligations required to be complied with
or performed after the Closing Date.
6.1.6. Seller shall have paid all fees and expenses payable by it to
Purchaser pursuant to Section 8 hereof.
6.1.7. The Certificates to be so rated shall have been assigned ratings by
each Rating Agency no lower than the ratings specified for each such Class in
the Memorandum and the Prospectus Supplement.
6.1.8. No Underwriter shall have terminated the Underwriting Agreement and
none of the Initial Purchasers shall have terminated the Certificate Purchase
Agreement, and neither the Underwriters nor the Initial Purchasers shall have
suspended, delayed or otherwise cancelled the Closing Date.
6.1.9. Seller shall have received the purchase price for the Mortgage Loans
pursuant to Section 1 hereof.
6.2. Each party agrees to use its best efforts to perform its respective
obligations hereunder in a manner that will enable Purchaser to
purchase the Mortgage Loans on the Closing Date.
CLOSING DOCUMENTS. The Closing Documents shall consist of the
following:
6.3. This Agreement duly executed by Purchaser and Seller.
6.4. A certificate of Seller, executed by a duly authorized officer of
Seller and dated the Closing Date, and upon which Purchaser and its
successors and assigns may rely, to the effect that: (i) the
representations and warranties of Seller in this Agreement are true
and correct in all material respects on and as of the Closing Date
with the same force and effect as if made on the Closing Date,
provided that any representations and warranties made as of a
specified date shall be true and correct as of such specified date;
and (ii) Seller has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied on or prior to the
Closing Date.
6.5. True, complete and correct copies of Seller's articles of organization
and by-laws.
6.6. A certificate of existence for Seller from the Comptroller of the
Currency dated not earlier than 30 days prior to the Closing Date.
6.7. A certificate of the Secretary or Assistant Secretary of Seller, dated
the Closing Date, and upon which Purchaser may rely, to the effect
that each individual who, as an officer or
representative of Seller, signed this Agreement or any other document
or certificate delivered on or before the Closing Date in connection
with the transactions contemplated herein, was at the respective times
of such signing and delivery, and is as of the Closing Date, duly
elected or appointed, qualified and acting as such officer or
representative, and the signatures of such persons appearing on such
documents and certificates are their genuine signatures.
6.8. An opinion of counsel (which, other than as to the opinion described
in paragraph 7.6.6 below, may be in-house counsel) to Seller, dated
the Closing Date, substantially to the effect of the following (with
such changes and modifications as Purchaser may approve and subject to
such counsel's reasonable qualifications):
6.8.1. Seller is validly existing under United States law and has full
corporate power and authority to enter into and perform its obligations under
this Agreement.
6.8.2. This Agreement has been duly authorized, executed and delivered by
Seller.
6.8.3. No consent, approval, authorization or order of any federal court or
governmental agency or body is required for the consummation by Seller of the
transactions contemplated by the terms of this Agreement except any approvals as
have been obtained.
6.8.4. Neither the execution, delivery or performance of this Agreement by
Seller, nor the consummation by Seller of any of the transactions contemplated
by the terms of this Agreement (A) conflicts with or results in a breach or
violation of, or constitutes a default under, the organizational documents of
Seller, (B) to the knowledge of such counsel, constitutes a default under any
term or provision of any material agreement, contract, instrument or indenture,
to which Seller is a party or by which it or any of its assets is bound or
results in the creation or imposition of any lien, charge or encumbrance upon
any of its property pursuant to the terms of any such indenture, mortgage,
contract or other instrument, other than pursuant to this Agreement, or (C)
conflicts with or results in a breach or violation of any law, rule, regulation,
order, judgment, writ, injunction or decree of any court or governmental
authority having jurisdiction over Seller or its assets, except where in any of
the instances contemplated by clauses (B) or (C) above, any conflict, breach or
default, or creation or imposition of any lien, charge or encumbrance, will not
have a material adverse effect on the consummation of the transactions
contemplated hereby by Seller or materially and adversely affect its ability to
perform its obligations and duties hereunder or result in any material adverse
change in the business, operations, financial condition, properties or assets of
Seller, or in any material impairment of the right or ability of Seller to carry
on its business substantially as now conducted.
6.8.5. To his or her knowledge, there are no legal or governmental actions,
investigations or proceedings pending to which Seller is a party, or threatened
against Seller, (a) asserting the invalidity of this Agreement or (b) which
materially and adversely affect the performance by Seller of its obligations
under, or the validity or enforceability of, this Agreement.
6.8.6. This Agreement is a valid, legal and binding agreement of Seller,
enforceable against Seller in accordance with its terms, except as such
enforcement may be limited by (1) laws relating to bankruptcy, insolvency,
reorganization, receivership or moratorium, (2) other laws relating to or
affecting the rights of creditors generally, (3) general equity principles
(regardless of whether such enforcement is considered in a proceeding in equity
or at law) or (4) public policy considerations underlying the securities laws,
to the extent that such public policy considerations limit the enforceability of
the provisions of this Agreement that purport to provide indemnification from
liabilities under applicable securities laws.
Such opinion may express its reliance as to factual matters on, among
other things specified in such opinion, the representations and warranties made
by, and on certificates or other documents furnished by officers of, the parties
to this Agreement.
In rendering the opinions expressed above, such counsel may limit such
opinions to matters governed by the federal laws of the United States and the
corporate laws of the State of Delaware and the State of New York, as
applicable.
6.9. Such other opinions of counsel as any Rating Agency may request in
connection with the sale of the Mortgage Loans by Seller to Purchaser
or Seller's execution and delivery of, or performance under, this
Agreement.
6.10. A letter from Deloitte & Touche, certified public accountants, dated
the date hereof, to the effect that they have performed certain
specified procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature set
forth in the Memorandum and the Prospectus Supplement agrees with the
records of Seller.
6.11. Such further certificates, opinions and documents as Purchaser may
reasonably request.
6.12. An officer's certificate of Purchaser, dated as of the Closing Date,
with the resolutions of Purchaser authorizing the transactions
described herein attached thereto, together with certified copies of
the charter, by-laws and certificate of good standing of Purchaser
dated not earlier than 30 days prior to the Closing Date.
6.13. Such other certificates of Purchaser's officers or others and such
other documents to evidence fulfillment of the conditions set forth in
this Agreement as Seller or its counsel may reasonably request.
6.14. An executed Xxxx of Sale in the form attached hereto as Exhibit 4.
COSTS. Seller shall pay Purchaser the costs and expenses as agreed
upon by Seller and Purchaser in a separate Letter of Understanding entered into
in connection with this Agreement and the issuance of the Certificates.
NOTICES. All communications provided for or permitted hereunder shall
be in writing and shall be deemed to have been duly given if (a) personally
delivered, (b) mailed by registered or certified mail, postage prepaid and
received by the addressee, (c) sent by express
courier delivery service and received by the addressee, or (d) transmitted by
telex or facsimile transmission (or any other type of electronic transmission
agreed upon by the parties) and confirmed by a writing delivered by any of the
means described in (a), (b) or (c), if (i) to Purchaser, addressed to Bear
Xxxxxxx Commercial Mortgage Securities Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: J. Xxxxxxxxxxx Xxxxxxx (or to such other address as
Purchaser may designate in writing), with a copy to Bear Xxxxxxx Commercial
Mortgage Securities Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Legal Department (or to such other address as Purchaser may designate
in writing), or if (ii) to Seller, addressed to the Seller at Xxxxx Fargo Bank,
National Association, 000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx
00000, Attention: Xxxxxx Xxxxxxxxx with copies to the attention of Xxxxxx X.
Xxxxxxx, Esq., Xxxxx Fargo Bank, National Association, 000 Xxxxxx Xxxxxx, 0xx
Xxxxx, XXX X0000-000, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 (or to such other address
as the Seller may designate in writing).
SEVERABILITY OF PROVISIONS. Any part, provision, representation,
warranty or covenant of this Agreement that is prohibited or that is held to be
void or unenforceable shall be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof. Any part,
provision, representation, warranty or covenant of this Agreement that is
prohibited or unenforceable or is held to be void or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. To the extent permitted by applicable law, the parties
hereto waive any provision of law that prohibits or renders void or
unenforceable any provision hereof.
FURTHER ASSURANCES. Seller and Purchaser each agree to execute and
deliver such instruments and take such actions as the other may, from time to
time, reasonably request in order to effectuate the purpose and to carry out the
terms of this Agreement and the Pooling and Servicing Agreement.
SURVIVAL. Each party hereto agrees that the representations,
warranties and agreements made by it herein and in any certificate or other
instrument delivered pursuant hereto shall be deemed to be relied upon by the
other party, notwithstanding any investigation heretofore or hereafter made by
the other party or on its behalf, and that the representations, warranties and
agreements made by such other party herein or in any such certificate or other
instrument shall survive the delivery of and payment for the Mortgage Loans and
shall continue in full force and effect, notwithstanding any restrictive or
qualified endorsement on the Mortgage Notes and notwithstanding subsequent
termination of this Agreement.
GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND
RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK. THE
PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK
GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
BENEFITS OF MORTGAGE LOAN PURCHASE AGREEMENT. This Agreement shall
inure to the benefit of and shall be binding upon Seller, Purchaser and their
respective successors, legal representatives, and permitted assigns, and nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any other person any legal or equitable right, remedy or claim under or in
respect of this Agreement, or any provisions herein contained, this Agreement
and all conditions and provisions hereof being intended to be and being for the
sole and exclusive benefit of such persons and for the benefit of no other
person except that the rights and obligations of Purchaser pursuant to Sections
2, 4.1 (other than clause 4.1.7), 5, 9, 10, 11, 12 and 13 hereof may be assigned
to the Trustee as may be required to effect the purposes of the Pooling and
Servicing Agreement and, upon such assignment, the Trustee shall succeed to the
rights and obligations hereunder of Purchaser. No owner of a Certificate issued
pursuant to the Pooling and Servicing Agreement shall be deemed a successor or
permitted assigns because of such ownership.
MISCELLANEOUS. This Agreement may be executed in two or more
counterparts, each of which when so executed and delivered shall be an original,
but all of which together shall constitute one and the same instrument. Neither
this Agreement nor any term hereof may be changed, waived, discharged or
terminated orally, but only by an instrument in writing signed by the party
against whom enforcement of the change, waiver, discharge or termination is
sought. The headings in this Agreement are for purposes of reference only and
shall not limit or otherwise affect the meaning hereof. The rights and
obligations of Seller under this Agreement shall not be assigned by Seller
without the prior written consent of Purchaser, except that any person into
which Seller may be merged or consolidated, or any corporation resulting from
any merger, conversion or consolidation to which Seller is a party, or any
person succeeding to the entire business of Seller shall be the successor to
Seller hereunder.
ENTIRE AGREEMENT. This Agreement contains the entire agreement and
understanding between the parties hereto with respect to the subject matter
hereof (other than the Letter of Understanding (solely with respect to those
portions of this Agreement that are not assigned to the Trustee), the
Indemnification Agreement and the Pooling and Servicing Agreement), and
supersedes all prior and contemporaneous agreements, understandings, inducements
and conditions, express or implied, oral or written, of any nature whatsoever
with respect to the subject matter hereof. The express terms hereof control and
supersede any course of performance or usage of the trade inconsistent with any
of the terms hereof.
IN WITNESS WHEREOF, Purchaser and Seller have caused this Agreement to
be executed by their respective duly authorized officers as of the date first
above written.
XXXXX FARGO BANK, NATIONAL ASSOCIATION
By: /s/
------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
------------------------------
Title: Managing Director
------------------------------
BEAR XXXXXXX COMMERCIAL MORTGAGE
SECURITIES INC.
By: /s/
------------------------------------
Name: Xxxxxxx X. Xxxxxx, Xx.
------------------------------
Title: V.P.
-----------------------------
EXHIBIT 1
MORTGAGE LOAN SCHEDULE
EXHIBIT 2
REPRESENTATIONS AND WARRANTIES REGARDING
INDIVIDUAL MORTGAGE LOANS
1. Mortgage Loan Schedule. The information set forth in the Mortgage
Loan Schedule is complete, true and correct in all material respects as of the
date of this Agreement and as of the Cut-Off Date.
2. Whole Loan; Ownership of Mortgage Loans. Each Mortgage Loan is a
whole loan and not a participation interest in a mortgage loan. Immediately
prior to the transfer to Purchaser of the Mortgage Loans, Seller had good title
to, and was the sole owner of, each Mortgage Loan. Seller has full right, power
and authority to transfer and assign each of the Mortgage Loans to or at the
direction of Purchaser and has validly and effectively conveyed (or caused to be
conveyed) to Purchaser or its designee all of Seller's legal and beneficial
interest in and to the Mortgage Loans free and clear of any and all pledges,
liens, charges, security interests and/or other encumbrances. The sale of the
Mortgage Loans to Purchaser or its designee does not require Seller to obtain
any governmental or regulatory approval or consent that has not been obtained.
3. Payment Record. No scheduled payment of principal and interest
under any Mortgage Loan was 30 days or more past due as of the Cut-Off Date, and
no Mortgage Loan was 30 days or more delinquent in the twelve-month period
immediately preceding the Cut-Off Date.
4. Lien; Valid Assignment. The Mortgage related to and delivered in
connection with each Mortgage Loan constitutes a valid and, subject to the
exceptions set forth in paragraph 13 below, enforceable first priority lien upon
the related Mortgaged Property, prior to all other liens and encumbrances,
except for (a) the lien for current real estate taxes and assessments not yet
due and payable, (b) covenants, conditions and restrictions, rights of way,
easements and other matters that are of public record and/or are referred to in
the related lender's title insurance policy, (c) exceptions and exclusions
specifically referred to in such lender's title insurance policy, (d) other
matters to which like properties are commonly subject, none of which matters
referred to in clauses (b), (c) or (d), individually or in the aggregate,
materially interferes with the security intended to be provided by such
Mortgage, the marketability or current use of the Mortgaged Property or the
current ability of the Mortgaged Property to generate operating income
sufficient to service the Mortgage Loan debt and (e) if such Mortgage Loan is
cross-collateralized with any other Mortgage Loan, the lien of the Mortgage for
such other Mortgage Loan (the foregoing items (a) through (e), the "Permitted
Encumbrances"). The related assignment of such Mortgage executed and delivered
in favor of the Trustee is in recordable form and constitutes a legal, valid and
binding assignment, sufficient to convey to the assignee named therein all of
the assignor's right, title and interest in, to and under such Mortgage. Such
Mortgage, together with any separate security agreements, chattel mortgages or
equivalent instruments, establishes and creates a valid and, subject to the
exceptions set forth in paragraph 13 below, enforceable security interest in
favor of the holder thereof in all of the related Mortgagor's personal property
used in, and reasonably necessary to operate, the related Mortgaged Property. In
the case of a Mortgaged Property operated as a hotel or an assisted living
facility, the Mortgagor's personal property includes all personal property that
a prudent
mortgage lender making a similar Mortgage Loan would deem reasonably necessary
to operate the related Mortgaged Property as it is currently being operated. A
Uniform Commercial Code financing statement has been filed and/or recorded in
all places necessary to perfect a valid security interest in such personal
property, to the extent a security interest may be so created therein, and such
security interest is a first priority security interest, subject to any prior
purchase money security interest in such personal property and any personal
property leases applicable to such personal property. Notwithstanding the
foregoing, no representation is made as to the perfection of any security
interest in rents or other personal property to the extent that possession or
control of such items or actions other than the filing of Uniform Commercial
Code financing statements are required in order to effect such perfection.
5. Assignment of Leases and Rents. The Assignment of Leases related to
and delivered in connection with each Mortgage Loan establishes and creates a
valid, subsisting and, subject to the exceptions set forth in paragraph 13
below, enforceable first priority lien and first priority security interest in
the related Mortgagor's interest in all leases, sub-leases, licenses or other
agreements pursuant to which any person is entitled to occupy, use or possess
all or any portion of the real property subject to the related Mortgage, and
each assignor thereunder has the full right to assign the same. The related
assignment of any Assignment of Leases not included in a Mortgage has been
executed and delivered in favor of the Trustee and is in recordable form and
constitutes a legal, valid and binding assignment, sufficient to convey to the
assignee named therein all of the assignor's right, title and interest in, to
and under such Assignment of Leases.
6. Mortgage Status; Waivers and Modifications. No Mortgage has been
satisfied, cancelled, rescinded or subordinated in whole or in part, and the
related Mortgaged Property has not been released from the lien of such Mortgage,
in whole or in part (except for partial reconveyances of real property that are
set forth on Schedule A to Exhibit 2), nor has any instrument been executed that
would effect any such satisfaction, cancellation, subordination, rescission or
release, in any manner that, in each case, materially adversely affects the
value of the related Mortgaged Property. None of the terms of any Mortgage Note,
Mortgage or Assignment of Leases has been impaired, waived, altered or modified
in any respect, except by written instruments, all of which are included in the
related Mortgage File.
7. Condition of Property; Condemnation. (i) With respect to the
Mortgaged Properties securing the Mortgage Loans that were the subject of an
engineering report within 18 months prior to the Cut-Off Date as set forth on
Schedule A to this Exhibit 2, each Mortgaged Property is, to Seller's knowledge,
free and clear of any damage (or adequate reserves therefor have been
established) that would materially and adversely affect its value as security
for the related Mortgage Loan, and (ii) with respect to the Mortgaged Properties
securing the Mortgage Loans that were not the subject of an engineering report
within 18 months prior to the Cut-Off Date as set forth on Schedule A to this
Exhibit 2, each Mortgaged Property is in good repair and condition and all
building systems contained therein are in good working order (or adequate
reserves therefor have been established) and each Mortgaged Property is free of
structural defects, in each case, that would materially and adversely affect its
value as security for the related Mortgage Loan as of the date hereof. Seller
has received no notice of the commencement of any proceeding for the
condemnation of all or any material portion of any Mortgaged Property. To
Seller's knowledge (based on surveys and/or title insurance obtained in
connection with the origination of the Mortgage Loans), as of the date of the
origination of each Mortgage
Loan, all of the material improvements on the related Mortgaged Property that
were considered in determining the appraised value of the Mortgaged Property lay
wholly within the boundaries and building restriction lines of such property,
except for encroachments that are insured against by the lender's title
insurance policy referred to herein or that do not materially and adversely
affect the value or marketability of such Mortgaged Property, and no
improvements on adjoining properties materially encroached upon such Mortgaged
Property so as to materially and adversely affect the value or marketability of
such Mortgaged Property, except those encroachments that are insured against by
the Title Policy referred to herein.
8. Title Insurance. Each Mortgaged Property is covered by an American
Land Title Association (or an equivalent form of) lender's title insurance
policy or a marked-up title insurance commitment (on which the required premium
has been paid) which evidences such title insurance policy (the "Title Policy")
in the original principal amount of the related Mortgage Loan after all advances
of principal. Each Title Policy insures that the related Mortgage is a valid
first priority lien on such Mortgaged Property, subject only to Permitted
Encumbrances. Each Title Policy (or, if it has yet to be issued, the coverage to
be provided thereby) is in full force and effect, all premiums thereon have been
paid and no material claims have been made thereunder and no claims have been
paid thereunder. No holder of the related Mortgage has done, by act or omission,
anything that would materially impair the coverage under such Title Policy.
Immediately following the transfer and assignment of the related Mortgage Loan
to the Trustee, such Title Policy (or, if it has yet to be issued, the coverage
to be provided thereby) will inure to the benefit of the Trustee without the
consent of or notice to the insurer. To Seller's knowledge, the insurer issuing
such Title Policy is qualified to do business in the jurisdiction in which the
related Mortgaged Property is located.
9. No Holdbacks. The proceeds of each Mortgage Loan have been fully
disbursed and there is no obligation for future advances with respect thereto.
With respect to each Mortgage Loan, any and all requirements as to completion of
any on-site or off-site improvement and as to disbursements of any funds
escrowed for such purpose that were to have been complied with on or before the
Closing Date have been complied with, or any such funds so escrowed have not
been released.
10. Mortgage Provisions. The Mortgage Note or Mortgage for each
Mortgage Loan, together with applicable state law, contains customary and
enforceable provisions (subject to the exceptions set forth in paragraph 13)
such as to render the rights and remedies of the holder thereof adequate for the
practical realization against the related Mortgaged Property of the principal
benefits of the security intended to be provided thereby.
11. Trustee under Deed of Trust. If any Mortgage is a deed of trust,
(1) a trustee, duly qualified under applicable law to serve as such, is properly
designated and serving under such Mortgage, and (2) no fees or expenses are
payable to such trustee by Seller, Purchaser or any transferee thereof except in
connection with a trustee's sale after default by the related Mortgagor or in
connection with any full or partial release of the related Mortgaged Property or
related security for the related Mortgage Loan.
12. Environmental Conditions.
(i) Except as set forth on Schedule A to this Exhibit 2, with respect to
the Mortgaged Properties securing the Mortgage Loans that were the
subject of an environmental site assessment within 18 months prior to
the Cut-Off Date, an environmental site assessment prepared to ASTM
standards, or an update of a previous such report, was performed with
respect to each Mortgaged Property in connection with the origination
or the sale of the related Mortgage Loan, a report of each such
assessment (or the most recent assessment with respect to each
Mortgaged Property) (an "Environmental Report") has been delivered to,
or on behalf of, Purchaser or its designee, and Seller has no
knowledge of any material and adverse environmental condition or
circumstance affecting any Mortgaged Property that was not disclosed
in such report. Each Mortgage requires the related Mortgagor to comply
with all applicable federal, state and local environmental laws and
regulations. Where such assessment disclosed the existence of a
material and adverse environmental condition or circumstance affecting
any Mortgaged Property, (i) a party not related to the Mortgagor was
identified as the responsible party for such condition or circumstance
or (ii) environmental insurance covering such condition was obtained
or must be maintained until the condition is remediated or (iii) the
related Mortgagor was required either to provide additional security
that was deemed to be sufficient by the originator in light of the
circumstances and/or to establish an operations and maintenance plan.
EACH MORTGAGE LOAN SET FORTH ON SCHEDULE C TO THIS EXHIBIT 2 (EACH, A
"SCHEDULE C LOAN") IS THE SUBJECT OF A SECURED CREDITOR IMPAIRED
PROPERTY POLICY, ISSUED BY THE ISSUER SET FORTH ON SCHEDULE C (THE
"POLICY ISSUER") AND EFFECTIVE AS OF THE DATE THEREOF (THE
"ENVIRONMENTAL INSURANCE POLICY"). EXCEPT AS SET FORTH ON SCHEDULE A
TO THIS EXHIBIT 2, WITH RESPECT TO EACH SCHEDULE C LOAN, (I) THE
ENVIRONMENTAL INSURANCE POLICY IS IN FULL FORCE AND EFFECT, (ii)(A) A
PROPERTY CONDITION OR ENGINEERING REPORT WAS PREPARED WITH RESPECT TO
LEAD BASED PAINT ("LBP") AND RADON GAS ("RG") AT EACH MORTGAGED
PROPERTY THAT IS USED AS A MULTIFAMILY DWELLING, AND WITH RESPECT TO
ASBESTOS CONTAINING MATERIALS ("ACM") AT EACH RELATED MORTGAGED
PROPERTY AND (B) IF such REPORT DISCLOSED THE EXISTENCE OF A MATERIAL
AND ADVERSE LBP, ACM OR RG environmental condition or circumstance
AFFECTING THE RELATED MORTGAGED PROPERTY, THE RELATED MORTGAGOR (A)
WAS REQUIRED TO REMEDIATE THE IDENTIFIED CONDITION PRIOR TO CLOSING
THE MORTGAGE LOAN OR PROVIDE ADDITIONAL SECURITY, OR ESTABLISH WITH
THE LENDER A RESERVE FROM LOAN PROCEEDS, IN AN AMOUNT DEEMED TO BE
SUFFICIENT BY SELLER FOR THE REMEDIATION OF THE PROBLEM AND/OR (B)
AGREED IN THE MORTGAGE LOAN DOCUMENTS TO ESTABLISH AN OPERATIONS AND
MAINTENANCE PLAN AFTER THE CLOSING OF THE MORTGAGE LOAN, (iii) ON the
EFFECTIVE DATE OF THE ENVIRONMENTAL INSURANCE POLICY, SELLER AS
originator HAD NO KNOWLEDGE OF ANY MATERIAL AND ADVERSE ENVIRONMENTAL
CONDITION OR CIRCUMSTANCE AFFECTING THE MORTGAGED PROPERTY (OTHER THAN
THE EXISTENCE OF LBP, ACM OR RG) THAT WAS NOT DISCLOSED TO THE POLICY
ISSUER in ONE OR MORE of the FOLLOWING: (A) THE APPLICATION FOR
INSURANCE, (B) A BORROWER QUESTIONNAIRE THAT WAS PROVIDED to THE
POLICY ISSUER OR (C) an ENGINEERING OR OTHER REPORT PROVIDED TO THE
POLICY ISSUER AND (IV) THE PREMIUM OF ANY ENVIRONMENTAL INSURANCE
POLICY HAS BEEN PAID
THROUGH THE MATURITY OF THE POLICY'S TERM AND THE TERM OF SUCH POLICY
EXTENDS AT LEAST FIVE YEARS BEYOND THE MATURITY OF THE MORTGAGE LOAN.
(II) With respect to the Mortgaged Properties securing the Mortgage Loans
that were not the subject of an environmental site assessment prepared
to ASTM standards within 18 months prior to the Cut-Off Date as set
forth on Schedule A to this Exhibit 2, (i) no Hazardous Material is
present on such Mortgaged Property such that (1) the value of such
Mortgaged Property is materially and adversely affected or (2) under
applicable federal, state or local law, (a) such Hazardous Material
could be required to be eliminated at a cost materially and adversely
affecting the value of the Mortgaged Property before such Mortgaged
Property could be altered, renovated, demolished or transferred or (b)
the presence of such Hazardous Material could (upon action by the
appropriate governmental authorities) subject the owner of such
Mortgaged Property, or the holders of a security interest therein, to
liability for the cost of eliminating such Hazardous Material or the
hazard created thereby at a cost materially and adversely affecting
the value of the Mortgaged Property, and (ii) such Mortgaged Property
is in material compliance with all applicable federal, state and local
laws pertaining to Hazardous Materials or environmental hazards, any
noncompliance with such laws does not have a material adverse effect
on the value of such Mortgaged Property and neither Seller nor, to
Seller's knowledge, the related Mortgagor or any current tenant
thereon, has received any notice of violation or potential violation
of any such law.
"Hazardous Materials" means gasoline, petroleum products, explosives,
radioactive materials, polychlorinated biphenyls or related or similar
materials, and any other substance or material as may be defined as a
hazardous or toxic substance by any federal, state or local
environmental law, ordinance, rule, regulation or order, including
without limitation, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended (42 U.S.C. Sections
9601 et seq.), the Hazardous Materials Transportation Act as amended
(42 U.S.C. Sections 6901 et seq.), the Federal Water Pollution Control
Act as amended (33 U.S.C. Sections 1251 et seq.), the Clean Air Act
(42 U.S.C. Sections 1251 et seq.) and any regulations promulgated
pursuant thereto.
13. Loan Document Status. Each Mortgage Note, Mortgage and other
agreement that evidences or secures such Mortgage Loan and was executed by or on
behalf of the related Mortgagor is the legal, valid and binding obligation of
the maker thereof (subject to any non-recourse provisions contained in any of
the foregoing agreements and any applicable state anti-deficiency or market
value limit deficiency legislation), enforceable in accordance with its terms,
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 enforcement is considered in a proceeding in equity or at law) and there is
no valid defense, counterclaim or right of offset or rescission available to the
related Mortgagor with respect to such Mortgage Note, Mortgage or other
agreement.
14. Insurance. Each Mortgaged Property is, and is required pursuant to
the related Mortgage to be, insured by (a) a fire and extended perils insurance
policy providing coverage against loss or damage sustained by reason of fire,
lightning, windstorm, hail, explosion, riot, riot attending a strike, civil
commotion, aircraft, vehicles and smoke, and, to the extent required as of the
date of origination by the originator of such Mortgage Loan consistent with its
normal commercial mortgage lending practices, against other risks insured
against by persons operating like properties in the locality of the Mortgaged
Property in an amount not less than the lesser of the principal balance of the
related Mortgage Loan and the replacement cost of the Mortgaged Property, and
not less than the amount necessary to avoid the operation of any co-insurance
provisions with respect to the Mortgaged Property, and the policy contains no
provisions for a deduction for depreciation; (b) a business interruption or
rental loss insurance policy, in an amount at least equal to six months of
operations of the Mortgaged Property estimated as of the date of origination by
the originator of such Mortgage Loan consistent with its normal commercial
lending practices; (c) a flood insurance policy (if any portion of buildings or
other structures on the Mortgaged Property are located in an area identified by
the Federal Emergency Management Agency as having special flood hazards and the
Federal Emergency Management Agency requires flood insurance to be maintained);
and (d) a comprehensive general liability insurance policy in amounts as are
generally required by commercial mortgage lenders, and in any event not less
than $1 million per occurrence. Such insurance policy contains a standard
mortgagee clause that names the mortgagee as an additional insured in the case
of liability insurance policies and as a loss payee in the case of property
insurance policies and requires prior notice to the holder of the Mortgage of
termination or cancellation. No such notice has been received, including any
notice of nonpayment of premiums, that has not been cured. Each Mortgage
obligates the related Mortgagor to maintain all such insurance and, upon such
Mortgagor's failure to do so, authorizes the holder of the Mortgage to maintain
such insurance at the Mortgagor's cost and expense and to seek reimbursement
therefor from such Mortgagor. Each Mortgage provides that casualty insurance
proceeds will be applied (a) to the restoration or repair of the related
Mortgaged Property, (b) to the restoration or repair of the related Mortgaged
Property, with any excess insurance proceeds after restoration or repair being
paid to the Mortgagor, or (c) to the reduction of the principal amount of the
Mortgage Loan.
15. Taxes and Assessments. As of the Closing Date, there are no
delinquent or unpaid taxes, assessments (including assessments payable in future
installments) or other outstanding charges affecting any Mortgaged Property that
are or may become a lien of priority equal to or higher than the lien of the
related Mortgage. For purposes of this representation and warranty, real
property taxes and assessments shall not be considered unpaid until the date on
which interest or penalties would be first payable thereon.
16. Mortgagor Bankruptcy. No Mortgagor is, to Seller's knowledge, a
debtor in any state or federal bankruptcy or insolvency proceeding. As of the
date of origination, (i) with respect to Mortgage Loans with a principal balance
greater than $3,500,000, no tenant physically occupying 25% or more (by square
feet) of the net rentable area of the related Mortgaged Property was, to
Seller's knowledge, a debtor in any state or federal bankruptcy or insolvency
proceeding and (ii) with respect to Mortgage Loans with a principal balance
equal to or less than $3,500,000 no tenant physically occupying 50% or more (by
square feet) of the net rentable area of the related Mortgaged Property was, to
Seller's knowledge, a debtor in any state or federal bankruptcy or insolvency
proceeding.
17. Leasehold Estate. Each Mortgaged Property consists of a fee simple
estate in real estate or, if the related Mortgage Loan is secured in whole or in
part by the interest of a Mortgagor as a lessee under a ground lease of a
Mortgaged Property (a "Ground Lease"), by the related Mortgagor's interest in
the Ground Lease but not by the related fee interest in such Mortgaged Property
(the "Fee Interest"), and as to such Ground Leases:
(i) Such Ground Lease or a memorandum thereof has been or will be duly
recorded; such Ground Lease (or the related estoppel letter or lender
protection agreement between Seller and related lessor) does not
prohibit the current use of the Mortgaged Property and does not
prohibit the interest of the lessee thereunder to be encumbered by the
related Mortgage; and there has been no material change in the payment
terms of such Ground Lease since the origination of the related
Mortgage Loan, with the exception of material changes reflected in
written instruments that are a part of the related Mortgage File;
(ii) The lessee's interest in such Ground Lease is not subject to any liens
or encumbrances superior to, or of equal priority with, the related
Mortgage, other than Permitted Encumbrances;
(iii) The Mortgagor's interest in such Ground Lease is assignable to
Purchaser and its successors and assigns upon notice to, but without
the consent of, the lessor thereunder (or, if such consent is
required, it has been obtained prior to the Closing Date) and, in the
event that it is so assigned, is further assignable by Purchaser and
its successors and assigns upon notice to, but without the need to
obtain the consent of, such lessor or if such lessor's consent is
required it cannot be unreasonably withheld;
(iv) Such Ground Lease is in full force and effect, and the Ground Lease
provides that no material amendment to such Ground Lease is binding on
a mortgagee unless the mortgagee has consented thereto, and Seller has
received no notice that an event of default has occurred thereunder,
and, to Seller's knowledge, there exists no condition that, but for
the passage of time or the giving of notice, or both, would result in
an event of default under the terms of such Ground Lease;
(v) Such Ground Lease, or an estoppel letter or other agreement, (A)
requires the lessor under such Ground Lease to give notice of any
default by the lessee to the holder of the Mortgage; and (B) provides
that no notice of termination given under such Ground Lease is
effective against the holder of the Mortgage unless a copy of such
notice has been delivered to such holder and the lessor has offered or
is required to enter into a new lease with such holder on terms that
do not materially vary from the economic terms of the Ground Lease.
(vi) A mortgagee is permitted a reasonable opportunity (including, where
necessary, sufficient time to gain possession of the interest of the
lessee under such Ground Lease) to cure any default under such Ground
Lease, which is curable after the receipt of notice of any such
default, before the lessor thereunder may terminate such Ground Lease;
(vii) Such Ground Lease has an original term (including any extension
options set forth therein) which extends not less than twenty years
beyond the Stated Maturity Date of the related Mortgage Loan;
(viii) Under the terms of such Ground Lease and the related Mortgage, taken
together, any related insurance proceeds or condemnation award awarded
to the holder of the ground lease interest will be applied either (A)
to the repair or restoration of all or part of the related Mortgaged
Property, with the mortgagee or a trustee appointed by the related
Mortgage having the right to hold and disburse such proceeds as the
repair or restoration progresses (except in such cases where a
provision entitling a third party to hold and disburse such proceeds
would not be viewed as commercially unreasonable by a prudent
commercial mortgage lender), or (B) to the payment of the outstanding
principal balance of the Mortgage Loan together with any accrued
interest thereon; and
(ix) Such Ground Lease does not impose any restrictions on subletting which
would be viewed as commercially unreasonable by prudent commercial
mortgage lenders lending on a similar Mortgaged Property in the
lending area where the Mortgaged Property is located; and such Ground
Lease contains a covenant that the lessor thereunder is not permitted,
in the absence of an uncured default, to disturb the possession,
interest or quiet enjoyment of the lessee thereunder for any reason,
or in any manner, which would materially adversely affect the security
provided by the related Mortgage.
(x) Such Ground Lease requires the Lessor to enter into a new lease upon
termination of such Ground Lease if the Ground Lease is rejected in a
bankruptcy proceeding.
18. Escrow Deposits. All escrow deposits and payments relating to each
Mortgage Loan that are, as of the Closing Date, required to be deposited or paid
have been so deposited or paid.
19. LTV Ratio. The gross proceeds of each Mortgage Loan to the related
Mortgagor at origination did not exceed the non-contingent principal amount of
the Mortgage Loan and either: (a) such Mortgage Loan is secured by an interest
in real property having a fair market value (i) at the date the Mortgage Loan
was originated, at least equal to 80 percent of the original principal balance
of the Mortgage Loan or (ii) at the Closing Date, at least equal to 80 percent
of the principal balance of the Mortgage Loan on such date; provided that for
purposes hereof, the fair market value of the real property interest must first
be reduced by (x) the amount of any lien on the real property interest that is
senior to the Mortgage Loan and (y) a proportionate amount of any lien that is
in parity with the Mortgage Loan (unless such other lien secures a Mortgage Loan
that is cross-collateralized with such Mortgage Loan, in which event the
computation described in clauses (a)(i) and (a)(ii) of this paragraph 19 shall
be made on a pro rata basis in accordance with the fair market values of the
Mortgaged Properties securing such cross-collateralized Mortgage Loans); or (b)
substantially all the proceeds of such Mortgage Loan were used to acquire,
improve or protect the real property that served as the only security for such
Mortgage Loan (other than a recourse feature or other third party credit
enhancement within the meaning of Treasury Regulations Section
1.860G-2(a)(1)(ii)).
20. Mortgage Loan Modifications. Any Mortgage Loan that was
"significantly modified" prior to the Closing Date so as to result in a taxable
exchange under Section 1001 of the Code either (a) was modified as a result of
the default under such Mortgage Loan or under circumstances that made a default
reasonably foreseeable or (b) satisfies the provisions of either clause (a)(i)
of paragraph 19 (substituting the date of the last such modification for the
date the Mortgage Loan was originated) or clause (a)(ii) of paragraph 19,
including the proviso thereto.
21. Advancement of Funds by Seller. No holder of a Mortgage Loan has
advanced funds or induced, solicited or knowingly received any advance of funds
from a party other than the owner of the related Mortgaged Property, directly or
indirectly, for the payment of any amount required by such Mortgage Loan.
22. No Mechanics' Liens. Each Mortgaged Property is free and clear of
any and all mechanics' and materialmen's liens that are prior or equal to the
lien of the related Mortgage, and no rights are outstanding that under law could
give rise to any such lien that would be prior or equal to the lien of the
related Mortgage except, in each case, for liens insured against by the Title
Policy referred to herein.
23. Compliance with Usury Laws. Each Mortgage Loan complied with all
applicable usury laws in effect at its date of origination.
24. Cross-collateralization. No Mortgage Loan is cross-collateralized
or cross-defaulted with any loan other than one or more other Mortgage Loans.
25. Releases of Mortgaged Property. Except as described in the next
sentence, no Mortgage Note or Mortgage requires the mortgagee to release all or
any material portion of the related Mortgaged Property that was included in the
appraisal for such Mortgaged Property, and/or generates income from the lien of
the related Mortgage except upon payment in full of all amounts due under the
related Mortgage Loan or in connection with the defeasance provisions of the
related Note and Mortgage. The Mortgages relating to those Mortgage Loans
identified on Schedule A hereto require the mortgagee to grant releases of
portions of the related Mortgaged Properties upon (a) the satisfaction of
certain legal and underwriting requirements and/or (b) the payment of a
predetermined or objectively determinable release price and prepayment
consideration in connection therewith. Except as described in the first sentence
hereof and for those Mortgage Loans identified on Schedule A, no Mortgage Loan
permits the full or partial release or substitution of collateral unless the
mortgagee or servicer can require the Borrower to provide an opinion of tax
counsel to the effect that such release or substitution of collateral (a) would
not constitute a "significant modification" of such Mortgage Loan within the
meaning of Treas. Reg. Section 1.1001-3 and (b) would not cause such Mortgage
Loan to fail to be a "qualified mortgage" within the meaning of Section
860G(a)(3)(A) of the Code.
26. No Equity Participation or Contingent Interest. No Mortgage Loan
contains any equity participation by the lender or provides for negative
amortization (except that the ARD Loan may provide for the accrual of interest
at an increased rate after the Anticipated Repayment Date) or for any contingent
or additional interest in the form of participation in the cash flow of the
related Mortgaged Property.
27. No Material Default. To Seller's knowledge, there exists no
material default, breach, violation or event of acceleration (and no event
which, with the passage of time or the giving of notice, or both, would
constitute any of the foregoing) under the documents evidencing or securing the
Mortgage Loan, in any such case to the extent the same materially and adversely
affects the value of the Mortgage Loan and the related Mortgaged Property;
provided, however, that this representation and warranty does not address or
otherwise cover any default, breach, violation or event of acceleration that
specifically pertains to any matter otherwise covered by any other
representation and warranty made by Seller in any of paragraphs 3, 7, 8, 12, 14,
15, 16 and 17 of this Exhibit 2.
28. Inspections. Seller (or if Seller is not the originator, the
originator of the Mortgage Loan) has inspected or caused to be inspected each
Mortgaged Property in connection with the origination of the related Mortgage
Loan.
29. Local Law Compliance. Based on due diligence considered reasonable
by prudent commercial mortgage lenders in the lending area where the Mortgaged
Property is located, the improvements located on or forming part of each
Mortgaged Property comply with applicable zoning laws and ordinances, or
constitute a legal non-conforming use or structure or, if any such improvement
does not so comply, such non-compliance does not materially and adversely affect
the value of the related Mortgaged Property, such value as determined by the
appraisal performed at origination or in connection with the sale of the related
Mortgage Loan by Seller hereunder.
30. Junior Liens. None of the Mortgage Loans permits the related
Mortgaged Property to be encumbered by any lien (other than a Permitted
Encumbrance) junior to or of equal priority with the lien of the related
Mortgage without the prior written consent of the holder thereof or the
satisfaction of debt service coverage or similar criteria specified therein.
Seller has no knowledge that any of the Mortgaged Properties is encumbered by
any lien junior to the lien of the related Mortgage.
31. Actions Concerning Mortgage Loans. To the knowledge of Seller,
there are no actions, suits or proceedings before any court, administrative
agency or arbitrator concerning any Mortgage Loan, Mortgagor or related
Mortgaged Property that might adversely affect title to the Mortgaged Property
or the validity or enforceability of the related Mortgage or that might
materially and adversely affect the value of the Mortgaged Property as security
for the Mortgage Loan or the use for which the premises were intended.
32. Servicing. The servicing and collection practices used by Seller
or any prior holder or servicer of each Mortgage Loan have been in all material
respects legal, proper and prudent and have met customary industry standards.
33. Licenses and Permits. To Seller's knowledge, based on due
diligence that it customarily performs in the origination of comparable mortgage
loans, as of the date of origination of each Mortgage Loan or as of the date of
the sale of the related Mortgage Loan by Seller hereunder, the related Mortgagor
was in possession of all material licenses, permits and franchises required by
applicable law for the ownership and operation of the related Mortgaged Property
as it was then operated.
34. Assisted Living Facility Regulation. If the Mortgaged Property is
operated as an assisted living facility, to Seller's knowledge (a) the related
Mortgagor is in compliance in all material respects with all federal and state
laws applicable to the use and operation of the related Mortgaged Property and
(b) if the operator of the Mortgaged Property participates in Medicare or
Medicaid programs, the facility is in compliance in all material respects with
the requirements for participation in such programs.
35. Collateral in Trust. The Mortgage Note for each Mortgage Loan is
not secured by a pledge of any collateral that has not been assigned to
Purchaser.
36. Due on Sale. Each Mortgage Loan contains a "due on sale" clause,
which provides for the acceleration of the payment of the unpaid principal
balance of the Mortgage Loan if, without prior written consent of the holder of
the Mortgage, the property subject to the Mortgage or any material portion
thereof, or a controlling interest in the related Mortgagor, is transferred,
sold or encumbered by a junior mortgage or deed of trust; provided, however,
that certain Mortgage Loans provide a mechanism for the assumption of the loan
by a third party upon the Mortgagor's satisfaction of certain conditions
precedent, and upon payment of a transfer fee, if any, or transfer of interests
in the Mortgagor or constituent entities of the Mortgagor to a third party or
parties related to the Mortgagor upon the Mortgagor's satisfaction of certain
conditions precedent.
37. SINGLE PURPOSE ENTITY. THE MORTGAGOR ON EACH MORTGAGE LOAN WITH A
CUT-OFF DATE PRINCIPAL BALANCE IN EXCESS OF $10 MILLION, WAS, AS OF THE
ORIGINATION OF THE MORTGAGE LOAN, A SINGLE PURPOSE ENTITY. FOR THIS PURPOSE, A
"SINGLE PURPOSE ENTITY" SHALL MEAN AN ENTITY, OTHER THAN AN INDIVIDUAL, WHOSE
ORGANIZATIONAL DOCUMENTS PROVIDE SUBSTANTIALLY TO THE EFFECT THAT IT WAS FORMED
OR ORGANIZED SOLELY FOR THE PURPOSE OF OWNING AND OPERATING ONE OR MORE OF THE
MORTGAGED PROPERTIES SECURING THE MORTGAGE LOANS AND PROHIBIT IT FROM ENGAGING
IN ANY BUSINESS UNRELATED TO SUCH MORTGAGED PROPERTY OR PROPERTIES, AND WHOSE
ORGANIZATIONAL DOCUMENTS FURTHER PROVIDE, OR WHICH ENTITY REPRESENTED IN THE
RELATED MORTGAGE LOAN DOCUMENTS, SUBSTANTIALLY TO THE EFFECT THAT IT DOES NOT
HAVE ANY ASSETS OTHER THAN THOSE RELATED TO ITS INTEREST IN AND OPERATION OF
SUCH MORTGAGED PROPERTY OR PROPERTIES, OR ANY INDEBTEDNESS OTHER THAN AS
PERMITTED BY THE RELATED MORTGAGE(S) OR THE OTHER RELATED MORTGAGE LOAN
DOCUMENTS, THAT IT HAS ITS OWN BOOKS AND RECORDS AND ACCOUNTS SEPARATE AND APART
FROM ANY OTHER PERSON (OTHER THAN A MORTGAGOR FOR A MORTGAGE LOAN THAT IS
CROSS-COLLATERALIZED AND CROSS-DEFAULTED WITH THE RELATED MORTGAGE LOAN), AND
THAT IT HOLDS ITSELF OUT AS A LEGAL ENTITY, SEPARATE AND APART FROM ANY OTHER
PERSON.
38. Non-Recourse Exceptions. The Mortgage Loan documents for each
Mortgage Loan provide that such Mortgage Loan constitutes either (a) the
recourse obligations of at least one natural person or (b) the non-recourse
obligations of the related Mortgagor, provided that at least one natural person
(and the Mortgagor if the Mortgagor is not a natural person) is liable to the
holder of the Mortgage Loan for damages arising in the case of fraud or willful
misrepresentation by the Mortgagor, misappropriation of rents, insurance
proceeds or condemnation awards and breaches of the environmental covenants in
the Mortgage Loan documents.
39. Defeasance and Assumption Costs. The related Mortgage Loan
documents provide that the related borrower is responsible for the payment of
all reasonable costs and expenses of the lender incurred in connection with the
defeasance of such Mortgage Loan and the release of the related Mortgaged
Property, and the borrower is required to pay all reasonable costs and expenses
of the lender associated with the approval of an assumption of such Mortgage
Loan.
40. Defeasance. No Mortgage Loan provides that (i) it can be defeased
until the date that is more than two years after the Closing Date, (ii) that it
can be defeased with any property other than government securities (as defined
in Section 2(a)(16) of the Investment Company Act of 1940, as amended) or any
direct non-callable security issued or guaranteed as to principal or interest by
the United States that will provide interest and principal payments sufficient
to satisfy scheduled payments of interest and principal as required under the
related Mortgage Loan, or (iii) defeasance requires the payment of any
consideration other than (a) reimbursement of incidental costs and expenses
and/or (b) a specified dollar amount or an amount that is based on a formula
that uses objective financial information (as defined in Treasury Regulation
Section 1.446-3(c)(4)(ii)).
41. Prepayment Premiums. As of the applicable date of origination of
each such Mortgage Loan, any prepayment premiums and yield maintenance charges
payable under the terms of the Mortgage Loans, in respect of voluntary
prepayments, constituted customary prepayment premiums and yield maintenance
charges for commercial mortgage loans.
42. Terrorism Insurance. With respect to each Mortgage Loan that has a
principal balance as of the Cut-off Date that is greater than or equal to
$20,000,000, the related all risk insurance policy and business interruption
policy do not specifically exclude Acts of Terrorism, as defined in the
Terrorism Risk Insurance Act of 2002, from coverage, or if such coverage is
excluded, is covered by a separate terrorism insurance policy. With respect to
each other Mortgage Loan, the related all risk insurance policy and business
interruption policy did not as of the date of origination of the Mortgage Loan,
and, to Seller's knowledge, do not, as of the date hereof, specifically exclude
Acts of Terrorism from coverage, or if such coverage is excluded, it is covered
by a separate terrorism insurance policy. With respect to each of the Mortgage
Loans, the related Mortgage Loan documents do not expressly waive or prohibit
the mortgagee from requiring coverage for acts of terrorism or damages related
thereto, except to the extent that any right to require such coverage may be
limited by commercially reasonable availability, or as otherwise indicated on
Schedule A.
43. Foreclosure Property. Seller is not selling any Mortgage Loan as
part of a plan to transfer the underlying Mortgaged Property to Purchaser, and
Seller does not know or, to Seller's knowledge, have reason to know that any
Mortgage Loan will default. The representations in this paragraph 43 are being
made solely for the purpose of determining whether the Mortgaged Property, if
acquired by the Trust, would qualify as "foreclosure property" within the
meaning of Section 860G(a)(8) of the Code, and may not be relied upon or used
for any other purpose. Such representations shall not be construed as a
guarantee to any degree that defaults or losses will not occur.
SCHEDULE A
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
XXXXX FARGO LOANS
SCHEDULE B
List of Mortgagors that are Third-Party Beneficiaries Under Section 5.2
SCHEDULE C
LIST OF MORTGAGE LOANS SUBJECT TO SECURED CREDITOR IMPAIRED PROPERTY POLICIES
EXHIBIT 3
PRICING FORMULATION
Xxxxx Fargo: ___________
EXHIBIT 4
XXXX OF SALE
1. Parties. The parties to this Xxxx of Sale are the following:
Seller: Xxxxx Fargo Bank, National Association
Purchaser: Bear Xxxxxxx Commercial Mortgage Securities Inc.
2. Sale. For value received, Seller hereby conveys to Purchaser,
without recourse, all right, title and interest in and to the Mortgage Loans
identified on Exhibit 1 (the "Mortgage Loan Schedule") to the Mortgage Loan
Purchase Agreement, dated as of October 20, 2005 (the "Mortgage Loan Purchase
Agreement"), between Seller and Purchaser and all of the following property:
(a) All accounts, general intangibles, chattel paper, instruments,
documents, money, deposit accounts, certificates of deposit, goods, letters
of credit, advices of credit and investment property consisting of, arising
from or relating to any of the following property: the Mortgage Loans
identified on the Mortgage Loan Schedule including the related Mortgage
Notes, Mortgages, security agreements, and title, hazard and other
insurance policies, all distributions with respect thereto payable after
the Cut-Off Date, all substitute or replacement Mortgage Loans and all
distributions with respect thereto, and the Mortgage Files;
(b) All accounts, general intangibles, chattel paper, instruments,
documents, money, deposit accounts, certificates of deposit, goods, letters
of credit, advices of credit, investment property, and other rights arising
from or by virtue of the disposition of, or collections with respect to, or
insurance proceeds payable with respect to, or claims against other Persons
with respect to, all or any part of the collateral described in clause (a)
above (including any accrued discount realized on liquidation of any
investment purchased at a discount); and
(c) All cash and non-cash proceeds of the collateral described in
clauses (a) and (b) above.
3. Purchase Price. The amount and other consideration set forth on
Exhibit 3 to the Mortgage Loan Purchase Agreement.
4. Definitions. Terms used but not defined herein shall have the
meanings assigned to them in the Mortgage Loan Purchase Agreement.
IN WITNESS WHEREOF, each of the parties hereto has caused this Xxxx of
Sale to be duly executed and delivered on this 20th day of October, 2005.
SELLER: XXXXX FARGO BANK NATIONAL ASSOCIATION
By: /s/
------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
------------------------------
Title: Managing Director
-----------------------------
PURCHASER: BEAR XXXXXXX COMMERCIAL MORTGAGE
SECURITIES INC.
By: /s/
------------------------------------
Name: Xxxxxxx X. Xxxxxx, Xx.
------------------------------
Title: V.P.
-----------------------------
EXHIBIT 5
FORM OF LIMITED POWER OF ATTORNEY
================================================================================
MORTGAGE LOAN PURCHASE AGREEMENT
between
PRINCIPAL COMMERCIAL FUNDING, LLC
as Seller
and
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
as Purchaser
Dated as of October 20, 2005
================================================================================
TABLE OF CONTENTS
1. AGREEMENT TO PURCHASE....................................................3
2. CONVEYANCE OF MORTGAGE LOANS.............................................3
3. EXAMINATION OF MORTGAGE FILES AND DUE DILIGENCE REVIEW..................11
4. REPRESENTATIONS AND WARRANTIES OF SELLER AND PURCHASER..................12
5. REMEDIES UPON BREACH OF REPRESENTATIONS AND WARRANTIES
MADE BY SELLER..........................................................16
6. CLOSING.................................................................21
7. CLOSING DOCUMENTS.......................................................22
8. COSTS...................................................................24
9. NOTICES.................................................................24
10. SEVERABILITY OF PROVISIONS..............................................25
11. FURTHER ASSURANCES......................................................25
12. SURVIVAL................................................................25
13. GOVERNING LAW...........................................................25
14. BENEFITS OF MORTGAGE LOAN PURCHASE AGREEMENT............................26
15. MISCELLANEOUS...........................................................26
16. ENTIRE AGREEMENT........................................................26
Exhibit 1 Mortgage Loan Schedule
Exhibit 2 Representations and Warranties
Exhibit 3 Pricing Formulation
Exhibit 4 Xxxx of Sale
Exhibit 5 Power of Attorney
Index of Defined Terms
Affected Loan(s)..............................................................17
Agreement......................................................................2
Certificate Purchase Agreement.................................................2
Certificates...................................................................2
Closing Date...................................................................3
Collateral Information........................................................11
Crossed Mortgage Loans........................................................17
Defective Mortgage Loan.......................................................17
East Towne Mall Mortgage Note..................................................3
Final Judicial Determination..................................................19
Fiscal Agent...................................................................2
Indemnification Agreement.....................................................14
Initial Purchasers.............................................................2
Master Servicer................................................................2
Material Breach...............................................................16
Material Document Defect......................................................16
Memorandum.....................................................................2
Mortgage File..................................................................4
Mortgage Loan Schedule.........................................................3
Mortgage Loans.................................................................2
Officer's Certificate..........................................................8
Other Mortgage Loans...........................................................2
Pooling and Servicing Agreement................................................2
Private Certificates...........................................................2
Prospectus Supplement..........................................................2
Public Certificates............................................................2
Purchaser......................................................................2
Repurchased Loan..............................................................17
Seller.........................................................................2
Special Servicer...............................................................2
Trust..........................................................................2
Trustee........................................................................2
Underwriters...................................................................2
Underwriting Agreement.........................................................2
West Towne Mall Mortgage Note..................................................3
MORTGAGE LOAN PURCHASE AGREEMENT
(PRINCIPAL LOANS)
Mortgage Loan Purchase Agreement ("Agreement"), dated as of October 20, 2005,
between Principal Commercial Funding, LLC ("Seller"), and Bear Xxxxxxx
Commercial Mortgage Securities Inc. ("Purchaser").
Seller agrees to sell and Purchaser agrees to purchase certain mortgage loans
listed on Exhibit 1 hereto (the "Mortgage Loans") as described herein. Purchaser
will convey the Mortgage Loans to a trust (the "Trust") created pursuant to a
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"), to be
dated as of October 1, 2005 between Purchaser, as depositor, Xxxxx Fargo Bank,
National Association, as master servicer (the "Master Servicer"), ARCap
Servicing, Inc., as special servicer (the "Special Servicer"), LaSalle Bank
National Association, as trustee (the "Trustee"), Xxxxx Fargo Bank, National
Association, as paying agent and certificate registrar and ABN AMRO Bank N.V.,
as fiscal agent (the "Fiscal Agent"). In exchange for the Mortgage Loans and
certain other mortgage loans to be purchased by Purchaser (collectively the
"Other Mortgage Loans"), the Trust will issue to the Depositor pass-through
certificates to be known as Bear Xxxxxxx Commercial Mortgage Securities Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2005-TOP20 (the
"Certificates"). The Certificates will be issued pursuant to the Pooling and
Servicing Agreement.
Capitalized terms used herein but not defined herein shall have the meanings
assigned to them in the Pooling and Servicing Agreement.
The Class A-1, Class A-2, Class A-3, Class A-AB, Class X-0X, Xxxxx X-0X, Xxxxx
X-X, Class B, Class C, Class D and Class E Certificates (the "Public
Certificates") will be sold by Purchaser to Bear, Xxxxxxx & Co. Inc. and Xxxxxx
Xxxxxxx & Co. Incorporated (the "Underwriters"), pursuant to an Underwriting
Agreement, between Purchaser and the Underwriters, dated October 20, 2005 (the
"Underwriting Agreement"), and the Class X, Class F, Class G, Class H, Class J,
Class K, Class L, Class M, Class N, Class O, Class P, Class Q, Class LF, Class
R-I, Class R-II and Class R-III Certificates (the "Private Certificates") will
be sold by Purchaser to Bear, Xxxxxxx & Co. Inc. and Xxxxxx Xxxxxxx & Co.
Incorporated (the "Initial Purchasers") pursuant to a Certificate Purchase
Agreement, between Purchaser and the Initial Purchasers, dated October 20, 2005
(the "Certificate Purchase Agreement"). The Underwriters will offer the Public
Certificates for sale publicly pursuant to a Prospectus dated September 7, 2005,
as supplemented by a Prospectus Supplement dated October 20, 2005 (together, the
"Prospectus Supplement") and the Initial Purchasers will offer the Private
Certificates for sale in transactions exempt from the registration requirements
of the Securities Act of 1933 pursuant to a Private Placement Memorandum dated
October 20, 2005 (the "Memorandum").
In consideration of the mutual agreements contained herein, Seller and Purchaser
hereby agree as follows:
1. AGREEMENT TO PURCHASE.
1.1 Seller agrees to sell, and Purchaser agrees to purchase, on a servicing
released basis, the Mortgage Loans identified on the schedule (the "Mortgage
Loan Schedule") annexed hereto as Exhibit 1, as such schedule may be amended to
reflect the actual Mortgage Loans accepted by Purchaser pursuant to the terms
hereof. The Cut-Off Date with respect to the Mortgage Loans is October 1, 2005.
The Mortgage Loans will have an aggregate principal balance as of the close of
business on the Cut-Off Date, after giving effect to any payments due on or
before such date, whether or not received, of (i) $264,261,278 plus (ii) the 50%
pari passu interest of Seller in each of the Mortgage Loans identified as (a)
the East Towne Mall Mortgage Loan, which such pari passu interest is represented
by the Mortgage Note with a Cut-Off Date balance of $40,000,000 (the "East Towne
Mall Mortgage Note") and (b) the West Towne Mall Mortgage Loan, which such pari
passu interest is represented by the Mortgage Note with a Cut-Off Date balance
of $56,500,000 (the "West Towne Mall Mortgage Note"). Seller and Xxxxxx Xxxxxxx
Mortgage Capital Inc. co-originated 2 Mortgage Loans, the West Towne Mall
Mortgage Loan and the East Towne Mall Mortgage Loan, which will have an
aggregate balance as of the close of business on the Cut-Off Date, after giving
effect to any payments due on or before such date, whether or not received, of
$193,000,000. The sale of the Mortgage Loans shall take place on October 28,
2005 or such other date as shall be mutually acceptable to the parties hereto
(the "Closing Date"). The purchase price to be paid by Purchaser for the
Mortgage Loans shall equal the amount set forth as such purchase price on
Exhibit 3 hereto. The purchase price shall be paid to Seller by wire transfer in
immediately available funds on the Closing Date. Notwithstanding anything to the
contrary contained herein, with respect to either the East Towne Mall Mortgage
Loan or the West Towne Mall Mortgage Loan, references to a Mortgage Note herein
shall mean the East Towne Mall Mortgage Note or the West Towne Mall Mortgage
Note, respectively.
1.2 On the Closing Date, Purchaser will assign to the Trustee pursuant to the
Pooling and Servicing Agreement all of its right, title and interest in and to
the Mortgage Loans and its rights under this Agreement (to the extent set forth
in Section 14), and the Trustee shall succeed to such right, title and interest
in and to the Mortgage Loans and Purchaser's rights under this Agreement (to the
extent set forth in Section 14).
2. CONVEYANCE OF MORTGAGE LOANS.
2.1 Effective as of the Closing Date, subject only to receipt of the
consideration referred to in Section 1 hereof and the satisfaction of the
conditions specified in Sections 6 and 7 hereof, Seller does hereby transfer,
assign, set over and otherwise convey to Purchaser, without recourse, except as
specifically provided herein all the right, title and interest of Seller, with
the understanding that a Servicing Rights Purchase and Sale Agreement, dated
October 1, 2005, will be executed by Seller and the Master Servicer, in and to
the Mortgage Loans identified on the Mortgage Loan Schedule as of the Closing
Date. The Mortgage Loan Schedule, as it may be amended from time to time on or
prior to the Closing Date, shall conform to the requirements of this Agreement
and the Pooling and Servicing Agreement. In connection with such transfer and
assignment, Seller shall deliver to or on behalf of the Trustee, on behalf of
Purchaser, on or prior to the Closing Date, the Mortgage Note (as described in
clause 2.2.1 hereof) for each Mortgage Loan and on or prior to the fifth
Business Day after the Closing Date, five limited powers of
attorney substantially in the form attached hereto as Exhibit 5 in favor of the
Trustee and the Special Servicer to empower the Trustee and, in the event of the
failure or incapacity of the Trustee, the Special Servicer, to submit for
recording, at the expense of Seller, any mortgage loan documents required to be
recorded as described in the Pooling and Servicing Agreement and any intervening
assignments with evidence of recording thereon that are required to be included
in the Mortgage Files (so long as original counterparts have previously been
delivered to the Trustee). Seller agrees to reasonably cooperate with the
Trustee and the Special Servicer in connection with any additional powers of
attorney or revisions thereto that are requested by such parties for purposes of
such recordation. The parties hereto agree that no such power of attorney shall
be used with respect to any Mortgage Loan by or under authorization by any party
hereto except to the extent that the absence of a document described in the
second preceding sentence with respect to such Mortgage Loan remains unremedied
as of the earlier of (i) the date that is 180 days following the delivery of
notice of such absence to Seller, but in no event earlier than 18 months from
the Closing Date, and (ii) the date (if any) on which such Mortgage Loan becomes
a Specially Serviced Mortgage Loan. The Trustee shall submit such documents, at
Seller's expense, after the periods set forth above, provided, however, the
Trustee shall not submit such assignments for recording if Seller produces
evidence that it has sent any such assignment for recording and certifies that
Seller is awaiting its return from the applicable recording office. In addition,
not later than the 30th day following the Closing Date, Seller shall deliver to
or on behalf of the Trustee each of the remaining documents or instruments
specified in Section 2.2 hereof (with such exceptions as are permitted by this
Section 2) with respect to each Mortgage Loan (each, a "Mortgage File"). (Seller
acknowledges that the term "without recourse" does not modify the duties of
Seller under Section 5 hereof.)
2.2 All Mortgage Files, or portions thereof, delivered prior to the Closing Date
are to be held by or on behalf of the Trustee in escrow on behalf of Seller at
all times prior to the Closing Date. The Mortgage Files shall be released from
escrow upon closing of the sale of the Mortgage Loans and payments of the
purchase price therefor as contemplated hereby. The Mortgage File for each
Mortgage Loan shall contain the following documents:
2.2.1 The original Mortgage Note bearing all intervening endorsements,
endorsed "Pay to the order of LaSalle Bank National Association, as Trustee for
Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 2005-TOP20, without recourse, representation
or warranty" or if the original Mortgage Note is not included therein, then a
lost note affidavit, with a copy of the Mortgage Note attached thereto;
2.2.2 The original Mortgage, with evidence of recording thereon, and, if
the Mortgage was executed pursuant to a power of attorney, a certified true copy
of the power of attorney certified by the public recorder's office, with
evidence of recording thereon (if recording is customary in the jurisdiction in
which such power of attorney was executed), or certified by a title insurance
company or escrow company to be a true copy thereof; provided that if such
original Mortgage cannot be delivered with evidence of recording thereon on or
prior to the 45th day following the Closing Date because of a delay caused by
the public recording office where such original Mortgage has been delivered for
recordation or because such original Mortgage has been lost, Seller shall
deliver or cause to be delivered to the Trustee a true and correct copy of such
Mortgage, together with (i) in the case of a delay caused by the public
recording office, an Officer's Certificate (as defined below) of Seller stating
that such original Mortgage has been
sent to the appropriate public recording official for recordation or (ii) in the
case of an original Mortgage that has been lost after recordation, a
certification by the appropriate county recording office where such Mortgage is
recorded that such copy is a true and complete copy of the original recorded
Mortgage;
2.2.3 The originals of all agreements modifying a Money Term or other
material modification, consolidation and extension agreements, if any, with
evidence of recording thereon, or if any such original modification,
consolidation or extension agreement has been delivered to the appropriate
recording office for recordation and either has not yet been returned on or
prior to the 45th day following the Closing Date with evidence of recordation
thereon or has been lost after recordation, a true copy of such modification,
consolidation or extension certified by Seller together with (i) in the case of
a delay caused by the public recording office, an Officer's Certificate of
Seller stating that such original modification, consolidation or extension
agreement has been dispatched or sent to the appropriate public recording
official for recordation or (ii) in the case of an original modification,
consolidation or extension agreement that has been lost after recordation, a
certification by the appropriate county recording office where such document is
recorded that such copy is a true and complete copy of the original recorded
modification, consolidation or extension agreement, and the originals of all
assumption agreements, if any;
2.2.4 An original Assignment of Mortgage for each Mortgage Loan, in form
and substance acceptable for recording, signed by the holder of record in favor
of "LaSalle Bank National Association, as Trustee for Bear Xxxxxxx Commercial
Mortgage Securities Inc., Commercial Mortgage Pass-Through Certificates, Series
2005-TOP20," provided, if the related Mortgage has been recorded in the name of
Mortgage Electronic Registration Systems, Inc. ("MERS") or its designee, no such
assignments will be required to be submitted for recording or filing and
instead, Seller shall take all actions as are necessary to cause the Trustee to
be shown as the owner of the related Mortgage on the record of MERS for purposes
of the system of recording transfers of beneficial ownership of mortgages
maintained by MERS and shall deliver to the Master Servicer and the Special
Servicer evidence confirming that the Trustee is shown as the owner on the
record of MERS;
2.2.5 Originals of all intervening assignments of Mortgage (except with
respect to any Mortgage that has been recorded in the name of MERS or its
designees), if any, with evidence of recording thereon or, if such original
assignments of Mortgage have been delivered to the appropriate recorder's office
for recordation, certified true copies of such assignments of Mortgage certified
by Seller, or in the case of an original blanket intervening assignment of
Mortgage retained by Seller, a copy thereof certified by Seller or, if any
original intervening assignment of Mortgage has not yet been returned on or
prior to the 45th day following the Closing Date from the applicable recording
office or has been lost, a true and correct copy thereof, together with (i) in
the case of a delay caused by the public recording office, an Officer's
Certificate of Seller stating that such original intervening assignment of
Mortgage has been sent to the appropriate public recording official for
recordation or (ii) in the case of an original intervening Assignment of
Mortgage that has been lost after recordation, a certification by the
appropriate county recording office where such assignment is recorded that such
copy is a true and complete copy of the original recorded intervening Assignment
of Mortgage;
2.2.6 If the related Assignment of Leases is separate from the Mortgage,
the original of such Assignment of Leases with evidence of recording thereon or,
if such Assignment of Leases has not been returned on or prior to the 45th day
following the Closing Date from the applicable public recording office, a copy
of such Assignment of Leases certified by Seller to be a true and complete copy
of the original Assignment of Leases submitted for recording, together with (i)
an original of each assignment of such Assignment of Leases with evidence of
recording thereon and showing a complete recorded chain of assignment from the
named assignee to the holder of record, and if any such assignment of such
Assignment of Leases has not been returned from the applicable public recording
office, a copy of such assignment certified by Seller to be a true and complete
copy of the original assignment submitted for recording, and (ii) an original
assignment of such Assignment of Leases, in recordable form, signed by the
holder of record in favor of "LaSalle Bank National Association, as Trustee for
Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 2005-TOP20," which assignment may be effected
in the related Assignment of Mortgage, provided, if the related Mortgage has
been recorded in the name of MERS or its designee, no assignment of Assignment
of Leases in favor of the Trustee will be required to be recorded or delivered
and instead, Seller shall take all actions as are necessary to cause the Trustee
to be shown as the owner of the related Mortgage on the record of MERS for
purposes of the system of recording transfers of beneficial ownership of
mortgages maintained by MERS and shall deliver to the Master Servicer and the
Special Servicer evidence confirming that the Trustee is shown as the owner on
the record of MERS;
2.2.7 The original of each guaranty, if any, constituting additional
security for the repayment of such Mortgage Loan;
2.2.8 The original Title Insurance Policy, or in the event such original
Title Insurance Policy has not been issued, an original binder or actual title
commitment or a copy thereof certified by the title company with the original
Title Insurance Policy to follow within 180 days of the Closing Date or a
preliminary title report binding on the title company with an original Title
Insurance Policy to follow within 180 days of the Closing Date;
2.2.9 (A) UCC financing statements (together with all assignments thereof)
and (B) UCC-2 or UCC-3 financing statements to the Trustee executed and
delivered in connection with the Mortgage Loan, provided, if the related
Mortgage has been recorded in the name of MERS or its designee, no such
financing statements will be required to be recorded or delivered and instead,
Seller shall take all actions as are necessary to cause the Trustee to be shown
as the owner of the related Mortgage on the record of MERS for purposes of the
system of recording transfers of beneficial ownership of mortgages maintained by
MERS and shall deliver to the Master Servicer and the Special Servicer evidence
confirming that the Trustee is shown as the owner on the record of MERS;
2.2.10 Copies of the related ground lease(s), if any, to any Mortgage Loan
where the Mortgagor is the lessee under such ground lease and there is a lien in
favor of the mortgagee in such lease;
2.2.11 Copies of any loan agreements, lock-box agreements and intercreditor
agreements (including, without limitation, any Intercreditor Agreement, and a
copy (that is, not the original) of the mortgage note evidencing the related B
Note), if any, related to any Mortgage Loan;
2.2.12 Either (A) the original of each letter of credit, if any,
constituting additional collateral for such Mortgage Loan, which shall be
assigned and delivered to the Trustee on behalf of the Trust with a copy to be
held by the Primary Servicer (or the Master Servicer), and applied, drawn,
reduced or released in accordance with documents evidencing or securing the
applicable Mortgage Loan, the Pooling and Servicing Agreement and the Primary
Servicing Agreement or (B) the original of each letter of credit, if any,
constituting additional collateral for such Mortgage Loan, which shall be held
by the Primary Servicer (or the Master Servicer) on behalf of the Trustee, with
a copy to be held by the Trustee, and applied, drawn, reduced or released in
accordance with documents evidencing or securing the applicable Mortgage Loan,
the Pooling and Servicing Agreement and the Primary Servicing Agreement (it
being understood that Seller has agreed (a) that the proceeds of such letter of
credit belong to the Trust, (b) to notify, on or before the Closing Date, the
bank issuing the letter of credit that the letter of credit and the proceeds
thereof belong to the Trust, and to use reasonable efforts to obtain within 30
days (but in any event to obtain within 90 days) following the Closing Date, an
acknowledgement thereof by the bank (with a copy of such acknowledgement to be
sent to the Trustee) or a reissued letter of credit and (c) to indemnify the
Trust for any liabilities, charges, costs, fees or other expenses accruing from
the failure of Seller to assign all rights in and to the letter of credit
hereunder including the right and power to draw on the letter of credit). In the
case of clause (B) above, any letter of credit held by the Primary Servicer (or
Master Servicer) shall be held in its capacity as agent of the Trust, and if the
Primary Servicer (or Master Servicer) sells its rights to service the applicable
Mortgage Loan, the Primary Servicer (or Master Servicer) has agreed to assign
the applicable letter of credit to the Trust or at the direction of the Special
Servicer to such party as the Special Servicer may instruct, in each case, at
the expense of the Primary Servicer (or Master Servicer). The Primary Servicer
(or Master Servicer) has agreed to indemnify the Trust for any loss caused by
the ineffectiveness of such assignment;
2.2.13 The original environmental indemnity agreement, if any, related to
any Mortgage Loan;
2.2.14 Third-party management agreements for all hotels and for such other
Mortgaged Properties securing Mortgage Loans with a Cut-Off Date principal
balance equal to or greater than $20,000,000;
2.2.15 Any Environmental Insurance Policy; and
2.2.16 Any affidavit and indemnification agreement.
The original of each letter of credit referred to in clause 2.2.12 above shall
be delivered to the Primary Servicer, the Master Servicer or the Trustee (as the
case may be) within 45 days of the Closing Date. In addition, a copy of any
ground lease shall be delivered to the Primary Servicer within 30 days of the
Closing Date. Any failure to deliver any ground lease shall constitute a
document defect.
"Officer's Certificate" shall mean a certificate signed by one or more of the
Chairman of the Board, any Vice Chairman, the President, any Senior Vice
President, any Vice President, any Assistant Vice President, any Treasurer or
any Assistant Treasurer.
Notwithstanding anything to the contrary contained herein, with respect to
either the East Towne Mall Mortgage Loan or the West Towne Mall Mortgage Loan,
delivery of the Mortgage File by either MSMC or Principal shall satisfy the
delivery requirement for Principal hereunder.
2.3 The Assignments of Mortgage and assignment of Assignment of Leases referred
to in Sections 2.2.4 and 2.2.6 may be in the form of a single instrument
assigning the Mortgage and the Assignment of Leases to the extent permitted by
applicable law. To avoid the unnecessary expense and administrative
inconvenience associated with the execution and recording or filing of multiple
assignments of mortgages, assignments of leases (to the extent separate from the
mortgages) and assignments of UCC financing statements, Seller shall execute, in
accordance with the third succeeding paragraph, the assignments of mortgages,
the assignments of leases (to the extent separate from the mortgages) and the
assignments of UCC financing statements relating to the Mortgage Loans naming
the Trustee on behalf of the Certificateholders as assignee. Notwithstanding the
fact that such assignments of mortgages, assignments of leases (to the extent
separate from the assignments of mortgages) and assignments of UCC financing
statements shall name the Trustee on behalf of the Certificateholders as the
assignee, the parties hereto acknowledge and agree that the Mortgage Loans shall
for all purposes be deemed to have been transferred from Seller to Purchaser and
from Purchaser to the Trustee on behalf of the Certificateholders.
2.4 If Seller cannot deliver, or cause to be delivered, as to any Mortgage Loan,
any of the documents and/or instruments referred to in Sections 2.2.2, 2.2.3,
2.2.5 or 2.2.6, with evidence of recording thereon, solely because of a delay
caused by the public recording office where such document or instrument has been
delivered for recordation within such 45 day period, but Seller delivers a
photocopy thereof (certified by the appropriate county recorder's office to be a
true and complete copy of the original thereof submitted for recording), to the
Trustee within such 45 day period, Seller shall then deliver within 90 days
after the Closing Date the recorded document (or within such longer period after
the Closing Date as the Trustee may consent to, which consent shall not be
unreasonably withheld so long as Seller is, as certified in writing to the
Trustee no less often than monthly, in good faith attempting to obtain from the
appropriate county recorder's office such original or photocopy).
2.5 The Trustee, as assignee or transferee of Purchaser, shall be entitled to
all scheduled payments of principal due thereon after the Cut-Off Date, all
other payments of principal collected after the Cut-Off Date (other than
scheduled payments of principal due on or before the Cut-Off Date), and all
payments of interest on the Mortgage Loans allocable to the period commencing on
the Cut-Off Date. All scheduled payments of principal and interest due on or
before the Cut-Off Date and collected after the Cut-Off Date shall belong to
Seller.
2.6 Within 45 days following the Closing Date, Seller shall deliver and
Purchaser, the Trustee or the agents of either may submit or cause to be
submitted for recordation at the expense of Seller, in the appropriate public
office for real property records, each assignment referred to in clauses 2.2.4
and 2.2.6(ii) above. Within 90 days following the Closing Date,
Seller shall deliver and Purchaser, the Trustee or the agents of either may
submit or cause to be submitted for filing, at the expense of Seller, in the
appropriate public office for Uniform Commercial Code financing statements, the
assignment referred to in clause 2.2.1. If any such document or instrument is
lost or returned unrecorded or unfiled, as the case may be, because of a defect
therein, Seller shall prepare a substitute therefor or cure such defect, and
Seller shall, at its own expense (except in the case of a document or instrument
that is lost by the Trustee), record or file, as the case may be, and deliver
such document or instrument in accordance with this Section 2.
2.7 Documents that are in the possession of Seller, its agents or its
subcontractors that relate to the Mortgage Loans and that are not required to be
delivered to the Trustee shall be shipped by Seller to or at the direction of
the Master Servicer, on behalf of Purchaser, on or prior to the 75th day after
the Closing Date, in accordance with Section 3.1 of the Primary Servicing
Agreement, if applicable.
2.8 The documents required to be delivered to the Master Servicer (or in the
alternative, the Primary Servicer) shall include, to the extent required to be
(and actually) delivered to Seller pursuant to the applicable Mortgage Loan
documents, copies of the following items: the Mortgage Note, any Mortgage, the
Assignment of Leases and the Assignment of Mortgage, any guaranty/indemnity
agreement, any loan agreement, the insurance policies or certificates, as
applicable, the property inspection reports, any financial statements on the
property, any escrow analysis, the tax bills, the Appraisal, the environmental
report, the engineering report, the asset summary, financial information on the
Borrower/sponsor and any guarantors, any letters of credit, any intercreditor
agreement and any Environmental Insurance Policies. Delivery of any of the
foregoing documents to the Primary Servicer shall be deemed a delivery to the
Master Servicer and satisfy Seller's obligations under this subparagraph.
2.9 Upon the sale of the Mortgage Loans by Seller to Purchaser pursuant to this
Agreement, the ownership of each Mortgage Note, Mortgage and the other contents
of the related Mortgage File shall be vested in Purchaser and its assigns, and
the ownership of all records and documents with respect to the related Mortgage
Loan prepared by or that come into the possession of Seller shall immediately
vest in Purchaser and its assigns, and shall be delivered promptly by Seller to
or on behalf of either the Trustee or the Master Servicer as set forth herein,
subject to the requirements of the Primary Servicing Agreement. Seller's and
Purchaser's records shall reflect the transfer of each Mortgage Loan from Seller
to Purchaser and its assigns as a sale.
2.10 It is the express intent of the parties hereto that the conveyance of the
Mortgage Loans and related property to Purchaser by Seller as provided in this
Section 2 be, and be construed as, an absolute sale of the Mortgage Loans and
related property. It is, further, not the intention of the parties that such
conveyance be deemed a pledge of the Mortgage Loans and related property by
Seller to Purchaser to secure a debt or other obligation of Seller. However, in
the event that, notwithstanding the intent of the parties, the Mortgage Loans or
any related property are held to be the property of Seller, or if for any other
reason this Agreement is held or deemed to create a security interest in the
Mortgage Loans or any related property, then:
2.10.1 this Agreement shall be deemed to be a security agreement; and
2.10.2 the conveyance provided for in this Section 2 shall be deemed to be
a grant by Seller to Purchaser of a security interest in all of Seller's right,
title, and interest, whether now owned or hereafter acquired, in and to:
A. All accounts, general intangibles, chattel paper, instruments,
documents, money, deposit accounts, certificates of deposit, goods, letters
of credit, advices of credit and investment property consisting of, arising
from or relating to any of the following property: the Mortgage Loans
identified on the Mortgage Loan Schedule, including the related Mortgage
Notes, Mortgages, security agreements, and title, hazard and other
insurance policies, all distributions with respect thereto payable after
the Cut-Off Date, all substitute or replacement Mortgage Loans and all
distributions with respect thereto, and the Mortgage Files;
B. All accounts, general intangibles, chattel paper, instruments,
documents, money, deposit accounts, certificates of deposit, goods, letters
of credit, advices of credit, investment property and other rights arising
from or by virtue of the disposition of, or collections with respect to, or
insurance proceeds payable with respect to, or claims against other Persons
with respect to, all or any part of the collateral described in clause (A)
above (including any accrued discount realized on liquidation of any
investment purchased at a discount); and
C. All cash and non-cash proceeds of the collateral described in
clauses (A) and (B) above.
2.11 The possession by Purchaser or its designee of the Mortgage Notes, the
Mortgages, and such other goods, letters of credit, advices of credit,
instruments, money, documents, chattel paper or certificated securities shall be
deemed to be possession by the secured party or possession by a purchaser for
purposes of perfecting the security interest pursuant to the Uniform Commercial
Code (including, without limitation, Sections 9-313 thereof) as in force in the
relevant jurisdiction. Notwithstanding the foregoing, Seller makes no
representation or warranty as to the perfection of any such security interest.
2.12 Notifications to Persons holding such property, and acknowledgments,
receipts, or confirmations from persons holding such property, shall be deemed
to be notifications to, or acknowledgments, receipts or confirmations from,
securities intermediaries, bailees or agents of, or Persons holding for,
Purchaser or its designee, as applicable, for the purpose of perfecting such
security interest under applicable law.
2.13 Seller shall, to the extent consistent with this Agreement, take such
reasonable actions as may be necessary to ensure that, if this Agreement were
deemed to create a security interest in the property described above, such
security interest would be deemed to be a perfected security interest of first
priority under applicable law and will be maintained as such throughout the term
of the Agreement. In such case, Seller shall file all filings necessary to
maintain the effectiveness of any original filings necessary under the Uniform
Commercial Code as in effect in any jurisdiction to perfect such security
interest in such property. In connection herewith, Purchaser shall have all of
the rights and remedies of a secured party and creditor under the Uniform
Commercial Code as in force in the relevant jurisdiction.
2.14 Notwithstanding anything to the contrary contained herein, and subject to
Section 2.1, Purchaser shall not be required to purchase any Mortgage Loan as to
which any Mortgage Note (endorsed as described in clause 2.2.1) required to be
delivered to or on behalf of the Trustee or the Master Servicer pursuant to this
Section 2 on or before the Closing Date is not so delivered, or is not properly
executed or is defective on its face, and Purchaser's acceptance of the related
Mortgage Loan on the Closing Date shall in no way constitute a waiver of such
omission or defect or of Purchaser's or its successors' and assigns' rights in
respect thereof pursuant to Section 5.
3. EXAMINATION OF MORTGAGE FILES AND DUE DILIGENCE REVIEW.
3.1 Seller shall (i) deliver to Purchaser on or before the Closing Date a
diskette acceptable to Purchaser that contains such information about the
Mortgage Loans as may be reasonably requested by Purchaser, (ii) deliver to
Purchaser investor files (collectively the "Collateral Information") with
respect to the assets proposed to be included in the Mortgage Pool and made
available at Purchaser's headquarters in New York, and (iii) otherwise cooperate
fully with Purchaser in its examination of the credit files, underwriting
documentation and Mortgage Files for the Mortgage Loans and its due diligence
review of the Mortgage Loans. The fact that Purchaser has conducted or has
failed to conduct any partial or complete examination of the credit files,
underwriting documentation or Mortgage Files for the Mortgage Loans shall not
affect the right of Purchaser or the Trustee to cause Seller to cure any
Material Document Defect or Material Breach (each as defined below), or to
repurchase or replace the defective Mortgage Loans pursuant to Section 5 hereof.
3.2 On or prior to the Closing Date, Seller shall allow representatives of any
of Purchaser, each Underwriter, each Initial Purchaser, the Trustee, the Special
Servicer and each Rating Agency to examine and audit all books, records and
files pertaining to the Mortgage Loans, Seller's underwriting procedures and
Seller's ability to perform or observe all of the terms, covenants and
conditions of this Agreement. Such examinations and audits shall take place at
one or more offices of Seller during normal business hours and shall not be
conducted in a manner that is disruptive to Seller's normal business operations
upon reasonable prior advance notice. In the course of such examinations and
audits, Seller will make available to such representatives of any of Purchaser,
each Underwriter, each Initial Purchaser, the Trustee, the Special Servicer and
each Rating Agency reasonably adequate facilities, as well as the assistance of
a sufficient number of knowledgeable and responsible individuals who are
familiar with the Mortgage Loans and the terms of this Agreement, and Seller
shall cooperate fully with any such examination and audit in all material
respects. On or prior to the Closing Date, Seller shall provide Purchaser with
all material information regarding Seller's financial condition and access to
knowledgeable financial or accounting officers for the purpose of answering
questions with respect to Seller's financial condition, financial statements as
provided to Purchaser or other developments affecting Seller's ability to
consummate the transactions contemplated hereby or otherwise affecting Seller in
any material respect. Within 45 days after the Closing Date, Seller shall
provide the Master Servicer or Primary Servicer, if applicable, with any
additional information identified by the Master Servicer or Primary Servicer, if
applicable, as necessary to complete the CMSA Property File, to the extent that
such information is available.
3.3 Purchaser may exercise any of its rights hereunder through one or more
designees or agents, provided Purchaser has provided Seller with prior notice of
the identity of such designee or agent.
3.4 Purchaser shall keep confidential any information regarding Seller and the
Mortgage Loans that has been delivered into Purchaser's possession and that is
not otherwise publicly available; provided, however, that such information shall
not be kept confidential (and the right to require confidentiality under any
confidentiality agreement is hereby waived) to the extent such information is
required to be included in the Memorandum or the Prospectus Supplement or
Purchaser is required by law or court order to disclose such information. If
Purchaser is required to disclose in the Memorandum or the Prospectus Supplement
confidential information regarding Seller as described in the preceding
sentence, Purchaser shall provide to Seller a copy of the proposed form of such
disclosure prior to making such disclosure and Seller shall promptly, and in any
event within two Business Days, notify Purchaser of any inaccuracies therein, in
which case Purchaser shall modify such form in a manner that corrects such
inaccuracies. If Purchaser is required by law or court order to disclose
confidential information regarding Seller as described in the second preceding
sentence, Purchaser shall notify Seller and cooperate in Seller's efforts to
obtain a protective order or other reasonable assurance that confidential
treatment will be accorded such information and, if in the absence of a
protective order or such assurance, Purchaser is compelled as a matter of law to
disclose such information, Purchaser shall, prior to making such disclosure,
advise and consult with Seller and its counsel as to such disclosure and the
nature and wording of such disclosure and Purchaser shall use reasonable efforts
to obtain confidential treatment therefor. Notwithstanding the foregoing, if
reasonably advised by counsel that Purchaser is required by a regulatory agency
or court order to make such disclosure immediately, then Purchaser shall be
permitted to make such disclosure without prior review by Seller.
4. REPRESENTATIONS AND WARRANTIES OF SELLER AND PURCHASER.
4.1 To induce Purchaser to enter into this Agreement, Seller hereby makes for
the benefit of Purchaser and its assigns with respect to each Mortgage Loan as
of the date hereof (or as of such other date specifically set forth in the
particular representation and warranty) each of the representations and
warranties set forth on Exhibit 2 hereto, except as otherwise set forth on
Schedule A attached hereto, and hereby further represents and warrants to
Purchaser as of the date hereof that:
4.1.1 Seller is duly organized and is validly existing as a corporation in
good standing under the laws of the State of Delaware. Seller has the requisite
power and authority and legal right to own the Mortgage Loans and to transfer
and convey the Mortgage Loans to Purchaser and has the requisite power and
authority to execute and deliver, engage in the transactions contemplated by,
and perform and observe the terms and conditions of, this Agreement.
4.1.2 This Agreement has been duly and validly authorized, executed and
delivered by Seller, and assuming the due authorization, execution and delivery
hereof by Purchaser, this Agreement constitutes the valid, legal and binding
agreement of Seller, enforceable in accordance with its terms, except as such
enforcement may be limited by (A) laws relating to
bankruptcy, insolvency, reorganization, receivership or moratorium, (B) other
laws relating to or affecting the rights of creditors generally, (C) general
equity principles (regardless of whether such enforcement is considered in a
proceeding in equity or at law) or (D) public policy considerations underlying
the securities laws, to the extent that such public policy considerations limit
the enforceability of the provisions of this Agreement that purport to provide
indemnification from liabilities under applicable securities laws.
4.1.3 No consent, approval, authorization or order of, registration or
filing with, or notice to, any governmental authority or court is required,
under federal or state law, for the execution, delivery and performance of or
compliance by Seller with this Agreement, or the consummation by Seller of any
transaction contemplated hereby, other than (A) such qualifications as may be
required under state securities or blue sky laws, (B) the filing or recording of
financing statements, instruments of assignment and other similar documents
necessary in connection with Seller's sale of the Mortgage Loans to Purchaser,
(C) such consents, approvals, authorizations, qualifications, registrations,
filings or notices as have been obtained and (D) where the lack of such consent,
approval, authorization, qualification, registration, filing or notice would not
have a material adverse effect on the performance by Seller under this
Agreement.
4.1.4 Neither the transfer of the Mortgage Loans to Purchaser, nor the
execution, delivery or performance of this Agreement by Seller, conflicts or
will conflict with, results or will result in a breach of, or constitutes or
will constitute a default under (A) any term or provision of Seller's articles
of organization or by-laws, (B) any term or provision of any material agreement,
contract, instrument or indenture to which Seller is a party or by which it or
any of its assets is bound or results in the creation or imposition of any lien,
charge or encumbrance upon any of its property pursuant to the terms of any such
indenture, mortgage, contract or other instrument, other than pursuant to this
Agreement, or (C) after giving effect to the consents or taking of the actions
contemplated in subsection 4.1.3, any law, rule, regulation, order, judgment,
writ, injunction or decree of any court or governmental authority having
jurisdiction over Seller or its assets, except where in any of the instances
contemplated by clauses (B) or (C) above, any conflict, breach or default, or
creation or imposition of any lien, charge or encumbrance, will not have a
material adverse effect on the consummation of the transactions contemplated
hereby by Seller or its ability to perform its obligations and duties hereunder
or result in any material adverse change in the business, operations, financial
condition, properties or assets of Seller, or in any material impairment of the
right or ability of Seller to carry on its business substantially as now
conducted.
4.1.5 There are no actions or proceedings against, or investigations of,
Seller pending or, to Seller's knowledge, threatened in writing against Seller
before any court, administrative agency or other tribunal, the outcome of which
could reasonably be expected to materially and adversely affect the transfer of
the Mortgage Loans to Purchaser or the execution or delivery by, or
enforceability against, Seller of this Agreement or have an effect on the
financial condition of Seller that would materially and adversely affect the
ability of Seller to perform its obligations under this Agreement.
4.1.6 On the Closing Date, the sale of the Mortgage Loans pursuant to this
Agreement will effect a transfer by Seller of all of its right, title and
interest in and to the Mortgage Loans to Purchaser.
4.1.7 To Seller's knowledge, Seller's Information (as defined in that
certain indemnification agreement, dated October 20, 2005, between Seller,
Purchaser, the Underwriters and the Initial Purchasers (the "Indemnification
Agreement")) relating to the Mortgage Loans does not contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading. Notwithstanding anything contained herein to the contrary,
this subparagraph 4.1.7 shall run exclusively to the benefit of Purchaser and no
other party.
To induce Purchaser to enter into this Agreement, Seller hereby covenants that
the foregoing representations and warranties and those set forth on Exhibit 2
hereto will be true and correct in all material respects on and as of the
Closing Date with the same effect as if made on the Closing Date.
Each of the representations, warranties and covenants made by Seller pursuant to
this Section 4.1 shall survive the sale of the Mortgage Loans and shall continue
in full force and effect notwithstanding any restrictive or qualified
endorsement on the Mortgage Notes.
4.2 To induce Seller to enter into this Agreement, Purchaser hereby represents
and warrants to Seller as of the date hereof:
4.2.1 Purchaser is a corporation duly organized, validly existing, and in
good standing under the laws of the State of Delaware with full power and
authority to carry on its business as presently conducted by it.
4.2.2 Purchaser has full power and authority to acquire the Mortgage Loans,
to execute and deliver this Agreement and to enter into and consummate all
transactions contemplated by this Agreement. Purchaser has duly and validly
authorized the execution, delivery and performance of this Agreement and has
duly and validly executed and delivered this Agreement. This Agreement, assuming
due authorization, execution and delivery by Seller, constitutes the valid and
binding obligation of Purchaser, enforceable against it in accordance with its
terms, except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity, regardless of
whether such enforcement is considered in a proceeding in equity or at law.
4.2.3 No consent, approval, authorization or order of, registration or
filing with, or notice to, any governmental authority or court is required,
under federal or state law, for the execution, delivery and performance of or
compliance by Purchaser with this Agreement, or the consummation by Purchaser of
any transaction contemplated hereby that has not been obtained or made by
Purchaser.
4.2.4 Neither the purchase of the Mortgage Loans nor the execution,
delivery and performance of this Agreement by Purchaser will violate Purchaser's
certificate of incorporation
or by-laws or constitute a default (or an event that, with notice or lapse of
time or both, would constitute a default) under, or result in a breach of, any
material agreement, contract, instrument or indenture to which Purchaser is a
party or that may be applicable to Purchaser or its assets.
4.2.5 Purchaser's 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, rule, writ, injunction, order or decree of any court, or
order or regulation of any federal, state or municipal government agency having
jurisdiction over Purchaser or its assets, which violation could materially and
adversely affect the condition (financial or otherwise) or the operation of
Purchaser or its assets or could materially and adversely affect its ability to
perform its obligations and duties hereunder.
4.2.6 There are no actions or proceedings against, or investigations of,
Purchaser pending or, to Purchaser's knowledge, threatened against Purchaser
before any court, administrative agency or other tribunal, the outcome of which
could reasonably be expected to adversely affect the transfer of the Mortgage
Loans, the issuance of the Certificates, the execution, delivery or
enforceability of this Agreement or have an effect on the financial condition of
Purchaser that would materially and adversely affect the ability of Purchaser to
perform its obligation under this Agreement.
4.2.7 Purchaser has not dealt with any broker, investment banker, agent or
other person, other than Seller, the Underwriters, the Initial Purchasers and
their respective affiliates, that may be entitled to any commission or
compensation in connection with the sale of the Mortgage Loans or consummation
of any of the transactions contemplated hereby.
To induce Seller to enter into this Agreement, Purchaser hereby covenants that
the foregoing representations and warranties will be true and correct in all
material respects on and as of the Closing Date with the same effect as if made
on the Closing Date.
Each of the representations and warranties made by Purchaser pursuant to this
Section 4.2 shall survive the purchase of the Mortgage Loans.
5. REMEDIES UPON BREACH OF REPRESENTATIONS AND WARRANTIES MADE BY SELLER.
5.1 It is hereby acknowledged that Seller shall make for the benefit of the
Trustee on behalf of the holders of the Certificates, whether directly or by way
of Purchaser's assignment of its rights hereunder to the Trustee, the
representations and warranties set forth on Exhibit 2 hereto (each as of the
date hereof unless otherwise specified).
5.2 It is hereby further acknowledged that if any document required to be
delivered to the Trustee pursuant to Section 2 is not delivered as and when
required, not properly executed or is defective on its face, or if there is a
breach of any of the representations and warranties required to be made by
Seller regarding the characteristics of the Mortgage Loans and/or the related
Mortgaged Properties as set forth in Exhibit 2 hereto, and in either case the
party discovering such breach or defect determines that either (i) the defect or
breach materially and adversely affects the interests of the holders of the
Certificates in the related Mortgage Loan or (ii) both
(A) the defect or breach materially and adversely affects the value of the
Mortgage Loan and (B) the Mortgage Loan is a Specially Serviced Mortgage Loan or
Rehabilitated Mortgage Loan (any such defect described in the preceding clause
(i) or (ii), a "Material Document Defect" and any such breach described in the
preceding clause (i) or (ii), a "Material Breach"), the party determining that
such Material Document Defect or Material Breach exists shall promptly notify,
in writing, the other parties; provided that any breach of the representation
and warranty contained in paragraph (41) of such Exhibit 2 shall constitute a
Material Breach only if such prepayment premium or yield maintenance charge is
not deemed "customary" for commercial mortgage loans as evidenced by (i) an
opinion of tax counsel to such effect or (ii) a determination by the Internal
Revenue Service that such provision is not customary. Promptly (but in any event
within three Business Days) upon determining (or becoming aware of another
party's determination) that any such Material Document Defect or Material Breach
exists (which determination shall, absent evidence to the contrary, be presumed
to be no earlier than three Business Days prior to delivery of the notice to
Seller referred to below), the Master Servicer shall, and the Special Servicer
may, request that Seller, not later than 90 days from Seller's receipt of the
notice of such Material Document Defect or Material Breach, cure such Material
Document Defect or Material Breach, as the case may be, in all material
respects; provided, however, that if such Material Document Defect or Material
Breach, as the case may be, cannot be corrected or cured in all material
respects within such 90 day period, and such Material Document Defect or
Material Breach would not cause the Mortgage Loan to be other than a "qualified
mortgage"(as defined in the Code) but Seller is diligently attempting to effect
such correction or cure, as certified by Seller in an Officer's Certificate
delivered to the Trustee, then the cure period will be extended for an
additional 90 days unless, solely in the case of a Material Document Defect, (x)
the Mortgage Loan is then a Specially Serviced Mortgage Loan and a Servicing
Transfer Event has occurred as a result of a monetary default or as described in
clause (ii) or clause (v) of the definition of "Servicing Transfer Event" in the
Pooling and Servicing Agreement and (y) the Material Document Defect was
identified in a certification delivered to Seller by the Trustee pursuant to
Section 2.2 of the Pooling and Servicing Agreement not less than 90 days prior
to the delivery of the notice of such Material Document Defect. The parties
acknowledge that neither delivery of a certification or schedule of exceptions
to Seller pursuant to Section 2.2 of the Pooling and Servicing Agreement or
otherwise nor possession of such certification or schedule by Seller shall, in
and of itself, constitute delivery of notice of any Material Document Defect or
knowledge or awareness by Seller, the Master Servicer or the Special Servicer of
any Material Document Defect listed therein.
5.3 Seller hereby covenants and agrees that, if any such Material Document
Defect or Material Breach cannot be corrected or cured or Seller otherwise fails
to correct or cure within the above cure periods, Seller shall, on or before the
termination of such cure periods, either (i) repurchase the affected Mortgage
Loan or REO Mortgage Loan (or interest therein) from Purchaser or its assignee
at the Purchase Price as defined in the Pooling and Servicing Agreement, or (ii)
if within the three-month period commencing on the Closing Date (or within the
two-year period commencing on the Closing Date if the related Mortgage Loan is a
"defective obligation" within the meaning of Section 860G(a)(4)(B)(ii) of the
Code and Treasury Regulation Section 1.860G-2(f)), at its option replace,
without recourse, any Mortgage Loan or REO Mortgage Loan to which such defect
relates with a Qualifying Substitute Mortgage Loan. If such Material Document
Defect or Material Breach would cause the Mortgage Loan to be
other than a "qualified mortgage" (as defined in the Code), then notwithstanding
the previous sentence or the previous paragraph, repurchase must occur within 85
days from the date Seller was notified of the defect. Seller agrees that any
substitution shall be completed in accordance with the terms and conditions of
the Pooling and Servicing Agreement.
5.4 If (x) a Mortgage Loan is to be repurchased or replaced as contemplated
above (a "Defective Mortgage Loan"), (y) such Defective Mortgage Loan is
cross-collateralized and cross-defaulted with one or more other Mortgage Loans
("Crossed Mortgage Loans") and (z) the applicable document defect or breach does
not constitute a Material Document Defect or Material Breach, as the case may
be, as to such Crossed Mortgage Loans (without regard to this paragraph), then
the applicable document defect or breach (as the case may be) shall be deemed to
constitute a Material Document Defect or Material Breach, as the case may be, as
to each such Crossed Mortgage Loan for purposes of the above provisions, and
Seller shall be obligated to repurchase or replace each such Crossed Mortgage
Loan in accordance with the provisions above, unless, in the case of such breach
or document defect, (A) Seller provides a Nondisqualification Opinion to the
Trustee at the expense of Seller if, in the reasonable business judgment of the
Trustee, it would be usual and customary in accordance with industry practice to
obtain a Nondisqualification Opinion and (B) both of the following conditions
would be satisfied if Seller were to repurchase or replace only those Mortgage
Loans as to which a Material Breach or Material Document Defect had occurred
without regard to this paragraph (the "Affected Loan(s)"): (i) the debt service
coverage ratio for all such other Mortgage Loans (excluding the Affected
Loan(s)) for the four calendar quarters immediately preceding the repurchase or
replacement is not less than the lesser of (A) 0.10x below the debt service
coverage ratio for all such other Mortgage Loans (including the Affected
Loans(s)) set forth in Appendix A to the Final Prospectus Supplement and (B) the
debt service coverage ratio for all such Crossed Mortgage Loans (including the
Affected Loan(s)) for the four preceding calendar quarters preceding the
repurchase or replacement, and (ii) the loan-to-value ratio for all such Crossed
Mortgage Loans (excluding the Affected Loan(s)) is not greater than the greater
of (A) the loan-to-value ratio, expressed as a whole number (taken to one
decimal place), for all such Crossed Mortgage Loans (including the Affected
Loan(s)) set forth in Appendix A to the Final Prospectus Supplement plus 10% and
(B) the loan-to-value ratio for all such Crossed Mortgage Loans (including the
Affected Loans(s)), at the time of repurchase or replacement. The determination
of the Master Servicer as to whether the conditions set forth above have been
satisfied shall be conclusive and binding in the absence of manifest error. The
Master Servicer will be entitled to cause to be delivered, or direct Seller to
(in which case Seller shall) cause to be delivered to the Master Servicer, an
Appraisal of any or all of the related Mortgaged Properties for purposes of
determining whether the condition set forth in clause (ii) above has been
satisfied, in each case at the expense of Seller if the scope and cost of the
Appraisal is approved by Seller (such approval not to be unreasonably withheld).
5.5 With respect to any Defective Mortgage Loan, to the extent that Seller is
required to repurchase or substitute for such Defective Mortgage Loan (each, a
"Repurchased Loan") in the manner prescribed above while the Trustee (as
assignee of Purchaser) continues to hold any Crossed Mortgage Loan, Seller and
Purchaser hereby agree to forebear from enforcing any remedies against the
other's Primary Collateral but may exercise remedies against the Primary
Collateral securing their respective Mortgage Loans, including with respect to
the Trustee, the Primary Collateral securing the 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. If the exercise of remedies by one party would
impair the ability of the other party to exercise its remedies with respect to
the Primary Collateral securing the Mortgage Loan or Mortgage Loans held by such
party, then both parties shall forbear from exercising such remedies until the
loan documents evidencing and securing the relevant Mortgage Loans can be
modified in a manner that complies with the Pooling and Servicing Agreement to
remove the threat of impairment as a result of the exercise of remedies. Any
reserve or other cash collateral or letters of credit securing the Crossed
Mortgage Loans shall be allocated between such Mortgage Loans in accordance with
the Mortgage Loan documents, or otherwise on a pro rata basis based upon their
outstanding Principal Balances. All other terms of the Mortgage Loans shall
remain in full force and effect, without any modification thereof. The
Mortgagors set forth on Schedule B hereto are intended third-party beneficiaries
of the provisions set forth in this paragraph and the preceding paragraph. The
provisions of this paragraph and the preceding paragraph may not be modified
with respect to any Mortgage Loan without the related Mortgagor's consent.
5.6 Any of the following document defects shall be conclusively presumed
materially and adversely to affect the interests of Certificateholders in a
Mortgage Loan and be a Material Document Defect: (a) the absence from the
Mortgage File of the original signed Mortgage Note, unless the Mortgage File
contains a signed lost note affidavit and indemnity that appears to be regular
on its face; (b) the absence from the Mortgage File of the original signed
Mortgage that appears to be regular on its face, unless there is included in the
Mortgage File a certified copy of the Mortgage by the local authority with which
the Mortgage was recorded; or (c) the absence from the Mortgage File of the item
specified in paragraph 2.2.8. If any of the foregoing Material Document Defects
is discovered by the Custodian (or the Trustee if there is no Custodian), the
Trustee (or as set forth in Section 2.3(a) of the Pooling and Servicing
Agreement, the Master Servicer) will take the steps described elsewhere in this
Section, including the giving of notices to the Rating Agencies and the parties
hereto and making demand upon Seller for the cure of the Material Document
Defect or repurchase or replacement of the related Mortgage Loan.
5.7 If Seller disputes that a Material Document Defect or Material Breach exists
with respect to a Mortgage Loan or otherwise refuses (i) to effect a correction
or cure of such Material Document Defect or Material Breach, (ii) to repurchase
the affected Mortgage Loan from Purchaser or its assignee or (iii) to replace
such Mortgage Loan with a Qualifying Substitute Mortgage Loan, each in
accordance with this Agreement, then provided that (i) the period of time
provided for Seller to correct, repurchase or cure has expired and (ii) the
Mortgage Loan is then in default and is then a Specially Serviced Mortgage Loan,
the Special Servicer may, subject to the Servicing Standard, modify, work-out or
foreclose, sell or otherwise liquidate (or permit the liquidation of) the
Mortgage Loan pursuant to Sections 9.5, 9.12, 9.15 and 9.36, as applicable, of
the Pooling and Servicing Agreement, while pursuing the repurchase claim. Seller
acknowledges and agrees that any modification of the Mortgage Loan pursuant to a
work-out shall not constitute a defense to any repurchase claim nor shall such
modification and work-out change the Purchase Price due from Seller for any
repurchase claim. In the event of any such modification and work-out, Seller
shall be obligated to repurchase the Mortgage Loan as modified and the Purchase
Price shall include any Work-Out Fee paid to the Special
Servicer up to the date of repurchase plus the present value (calculated at a
discount rate equal to the applicable Mortgage Rate) of the Work-Out Fee that
would have been payable to the Special Servicer in respect of such Mortgage Loan
if the Mortgage Loan performed in accordance with its terms to its Maturity
Date, provided that no amount shall be paid by Seller in respect of any Work-Out
Fee if a Liquidation Fee already comprises a portion of the Purchase Price.
5.8 [RESERVED].
5.9 The fact that a Material Document Defect or Material Breach is not
discovered until after foreclosure (but in all instances prior to the sale of
the related REO Property or Mortgage Loan) shall not prejudice any claim against
Seller for repurchase of the REO Mortgage Loan or REO Property. In such an
event, the Master Servicer shall notify Seller of the discovery of the Material
Document Defect or Material Breach and Seller shall have 90 days to correct or
cure such Material Document Defect or Material Breach or purchase the REO
Property (or interest therein) at the Purchase Price. After a final liquidation
of the Mortgage Loan or REO Mortgage Loan, if a court of competent jurisdiction
issues a final order after the expiration of any applicable appeal period that
Seller is or was obligated to repurchase the related Mortgage Loan or REO
Mortgage Loan (or interest therein) (a "Final Judicial Determination") or Seller
otherwise accepts liability, then, but in no event later than the Termination of
the Trust pursuant to Section 9.30 of the Pooling and Servicing Agreement,
Seller will be obligated to pay to the Trust the difference between any
Liquidation Proceeds received upon such liquidation in accordance with the
Pooling and Servicing Agreement (including those arising from any sale to
Seller) and the Purchase Price. With respect to each of the Joint Mortgage
Loans, Seller's obligation shall be Seller's pro rata share based on Seller's
percentage interest as of the date hereof in the applicable Joint Mortgage Loan.
5.10 Notwithstanding anything to the contrary contained herein, in connection
with any sale or other liquidation of a Mortgage Loan or REO Property as
described in this Section 5, the Special Servicer shall not receive a
Liquidation Fee from Seller (but may collect such Liquidation Fee from the
related Liquidation Proceeds as otherwise provided herein); provided, however,
that in the event Seller is obligated to repurchase the Mortgage Loan or REO
Mortgaged Property (or interest therein) after a final liquidation of such
Mortgage Loan or REO Property pursuant to the immediately preceding paragraph,
an amount equal to any Liquidation Fee (calculated on the basis of Liquidation
Proceeds) payable to the Special Servicer shall be included in the definition of
"Purchase Price" in respect of such Mortgage Loan or REO Mortgaged Property.
Except as expressly set forth above, no Liquidation Fee shall be payable in
connection with a repurchase of a Mortgage Loan by Seller.
5.11 The obligations of Seller set forth in this Section 5 to cure a Material
Document Defect or a Material Breach or repurchase or replace a defective
Mortgage Loan constitute the sole remedies of Purchaser or its assignees with
respect to a Material Document Defect or Material Breach in respect of an
outstanding Mortgage Loan; provided, that this limitation shall not in any way
limit Purchaser's rights or remedies upon breach of any other representation or
warranty or covenant by Seller set forth in this Agreement (other than those set
forth in Exhibit 2).
5.12 Notwithstanding the foregoing, in the event that there is a breach of the
representations and warranties set forth in paragraph 39 in Exhibit 2 hereto,
and as a result the payments, by a Mortgagor, of reasonable costs and expenses
associated with the defeasance or assumption of a Mortgage Loan are insufficient
causing the Trust to incur an Additional Trust Expense in an
amount equal to such reasonable costs and expenses not paid by such Mortgagor,
Seller hereby covenants and agrees to reimburse the Trust within 90 days of the
receipt of notice of such breach in an amount sufficient to avoid such
Additional Trust Expense. With respect to each of the Joint Mortgage Loans,
Seller's obligation shall be Seller's pro rata share based on Seller's
percentage interest as of the date hereof in the applicable Joint Mortgage Loan.
The parties hereto acknowledge that such reimbursement shall be Seller's sole
obligation with respect to the breach discussed in the previous sentence.
5.13 The Pooling and Servicing Agreement shall provide that the Trustee (or the
Master Servicer or the Special Servicer on its behalf) shall give written notice
promptly (but in any event within three Business Days) to Seller of its
determination that any Material Document Defect or Material Breach exists (which
determination shall, absent evidence to the contrary, be presumed to be no
earlier than three Business Days prior to delivery of the notice) and prompt
written notice to Seller in the event that any Mortgage Loan becomes a Specially
Serviced Mortgage Loan (as defined in the Pooling and Servicing Agreement).
5.14 If Seller repurchases any Mortgage Loan pursuant to this Section 5,
Purchaser or its assignee, following receipt by the Trustee of the Purchase
Price therefor, promptly shall deliver or cause to be delivered to Seller all
Mortgage Loan documents with respect to such Mortgage Loan, and each document
that constitutes a part of the Mortgage File that was endorsed or assigned to
the Trustee shall be endorsed and assigned to Seller in the same manner such
that Seller shall be vested with legal and beneficial title to such Mortgage
Loan, in each case without recourse, including any property acquired in respect
of such Mortgage Loan or proceeds of any insurance policies with respect
thereto.
5.15 In the event that the Mortgage Note with respect to either of the Joint
Mortgage Loans is repurchased by Seller pursuant to this Section 5, and the
other related mortgage note of the applicable Joint Mortgage Loan is not
repurchased by Xxxxxx Xxxxxxx Mortgage Capital Inc. and such mortgage note
remains in the Trust, Seller and Purchaser hereby agree that the provisions in
Section 8.32 of the Pooling and Servicing Agreement shall govern the servicing
and administration of such Joint Mortgage Loan, and Seller's and Purchaser's
rights and obligations with respect thereto.
6. CLOSING.
6.1 The closing of the sale of the Mortgage Loans shall be held at the offices
of Xxxxxx & Xxxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000 at 9:00 a.m., New
York time, on the Closing Date. The closing shall be subject to each of the
following conditions:
6.1.1 All of the representations and warranties of Seller and Purchaser
specified in Section 4 hereof (including, without limitation, the
representations and warranties set forth on Exhibit 2 hereto) shall be true and
correct as of the Closing Date (to the extent of the standard, if any, set forth
in each representation and warranty).
6.1.2 All Closing Documents specified in Section 7 hereof, in such forms as
are agreed upon and reasonably acceptable to Seller or Purchaser, as applicable,
shall be duly executed and delivered by all signatories as required pursuant to
the respective terms thereof.
6.1.3 Seller shall have delivered and released to Purchaser or its designee
all documents required to be delivered to Purchaser as of the Closing Date
pursuant to Section 2 hereof.
6.1.4 The result of the examination and audit performed by Purchaser and
its affiliates pursuant to Section 3 hereof shall be satisfactory to Purchaser
and its affiliates in their sole determination and the parties shall have agreed
to the form and contents of Seller's Information to be disclosed in the
Memorandum and the Prospectus Supplement.
6.1.5 All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with, and
Seller and Purchaser shall have the ability to comply with all terms and
conditions and perform all duties and obligations required to be complied with
or performed after the Closing Date.
6.1.6 Seller shall have paid all fees and expenses payable by it to
Purchaser pursuant to Section 8 hereof.
6.1.7 The Certificates to be so rated shall have been assigned ratings by
each Rating Agency no lower than the ratings specified for each such Class in
the Memorandum and the Prospectus Supplement.
6.1.8 No Underwriter shall have terminated the Underwriting Agreement and
none of the Initial Purchasers shall have terminated the Certificate Purchase
Agreement, and neither the Underwriters nor the Initial Purchasers shall have
suspended, delayed or otherwise cancelled the Closing Date.
6.1.9 Seller shall have received the purchase price for the Mortgage Loans
pursuant to Section 1 hereof.
6.2 Each party agrees to use its best efforts to perform its respective
obligations hereunder in a manner that will enable Purchaser to purchase the
Mortgage Loans on the Closing Date.
7. CLOSING DOCUMENTS. The Closing Documents shall consist of the following:
7.1 This Agreement duly executed by Purchaser and Seller.
7.2 A certificate of Seller, executed by a duly authorized officer of Seller and
dated the Closing Date, and upon which Purchaser and its successors and assigns
may rely, to the effect that: (i) the representations and warranties of Seller
in this Agreement are true and correct in all material respects on and as of the
Closing Date with the same force and effect as if made on the Closing Date,
provided that any representations and warranties made as of a specified date
shall be true and correct as of such specified date; and (ii) Seller has
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied on or prior to the Closing Date.
7.3 True, complete and correct copies of Seller's articles of organization and
by-laws.
7.4 A certificate of existence for Seller from the Secretary of State of
Delaware dated not earlier than 30 days prior to the Closing Date.
7.5 A certificate of the Secretary or Assistant Secretary of Seller, dated the
Closing Date, and upon which Purchaser may rely, to the effect that each
individual who, as an officer or representative of Seller, signed this Agreement
or any other document or certificate delivered on or before the Closing Date in
connection with the transactions contemplated herein, was at the respective
times of such signing and delivery, and is as of the Closing Date, duly elected
or appointed, qualified and acting as such officer or representative, and the
signatures of such persons appearing on such documents and certificates are
their genuine signatures.
7.6 An opinion of counsel (which, other than as to the opinion described in
paragraph 7.6.6 below, may be in-house counsel) to Seller, dated the Closing
Date, substantially to the effect of the following (with such changes and
modifications as Purchaser may approve and subject to such counsel's reasonable
qualifications):
7.6.1 Seller is validly existing under Delaware law and has full corporate
power and authority to enter into and perform its obligations under this
Agreement.
7.6.2 This Agreement has been duly authorized, executed and delivered by
Seller.
7.6.3 No consent, approval, authorization or order of any federal court or
governmental agency or body is required for the consummation by Seller of the
transactions contemplated by the terms of this Agreement except any approvals as
have been obtained.
7.6.4 Neither the execution, delivery or performance of this Agreement by
Seller, nor the consummation by Seller of any of the transactions contemplated
by the terms of this Agreement (A) conflicts with or results in a breach or
violation of, or constitutes a default under, the organizational documents of
Seller, (B) to the knowledge of such counsel, constitutes a default under any
term or provision of any material agreement, contract, instrument or indenture,
to which Seller is a party or by which it or any of its assets is bound or
results in the creation or imposition of any lien, charge or encumbrance upon
any of its property pursuant to the terms of any such indenture, mortgage,
contract or other instrument, other than pursuant to this Agreement, or (C)
conflicts with or results in a breach or violation of any law, rule, regulation,
order, judgment, writ, injunction or decree of any court or governmental
authority having jurisdiction over Seller or its assets, except where in any of
the instances contemplated by clauses (B) or (C) above, any conflict, breach or
default, or creation or imposition of any lien, charge or encumbrance, will not
have a material adverse effect on the consummation of the transactions
contemplated hereby by Seller or materially and adversely affect its ability to
perform its obligations and duties hereunder or result in any material adverse
change in the business, operations, financial condition, properties or assets of
Seller, or in any material impairment of the right or ability of Seller to carry
on its business substantially as now conducted.
7.6.5 To his or her knowledge, there are no legal or governmental actions,
investigations or proceedings pending to which Seller is a party, or threatened
against Seller, (a) asserting the invalidity of this Agreement or (b) which
materially and adversely affect the performance by Seller of its obligations
under, or the validity or enforceability of, this Agreement.
7.6.6 This Agreement is a valid, legal and binding agreement of Seller,
enforceable against Seller in accordance with its terms, except as such
enforcement may be limited by (1) laws relating to bankruptcy, insolvency,
reorganization, receivership or moratorium, (2) other laws relating to or
affecting the rights of creditors generally, (3) general equity principles
(regardless of whether such enforcement is considered in a proceeding in equity
or at law) or (4) public policy considerations underlying the securities laws,
to the extent that such public policy considerations limit the enforceability of
the provisions of this Agreement that purport to provide indemnification from
liabilities under applicable securities laws.
Such opinion may express its reliance as to factual matters on, among other
things specified in such opinion, the representations and warranties made by,
and on certificates or other documents furnished by officers of, the parties to
this Agreement.
In rendering the opinions expressed above, such counsel may limit such opinions
to matters governed by the federal laws of the United States and the corporate
laws of the State of Delaware and the State of New York, as applicable.
7.7 Such other opinions of counsel as any Rating Agency may request in
connection with the sale of the Mortgage Loans by Seller to Purchaser or
Seller's execution and delivery of, or performance under, this Agreement.
7.8 A letter from Deloitte & Touche, certified public accountants, dated the
date hereof, to the effect that they have performed certain specified procedures
as a result of which they determined that certain information of an accounting,
financial or statistical nature set forth in the Memorandum and the Prospectus
Supplement agrees with the records of Seller.
7.9 Such further certificates, opinions and documents as Purchaser may
reasonably request.
7.10 An officer's certificate of Purchaser, dated as of the Closing Date, with
the resolutions of Purchaser authorizing the transactions described herein
attached thereto, together with certified copies of the charter, by-laws and
certificate of good standing of Purchaser dated not earlier than 30 days prior
to the Closing Date.
7.11 Such other certificates of Purchaser's officers or others and such other
documents to evidence fulfillment of the conditions set forth in this Agreement
as Seller or its counsel may reasonably request.
7.12 An executed Xxxx of Sale in the form attached hereto as Exhibit 4.
COSTS. Seller shall pay Purchaser the costs and expenses as agreed upon by
Seller and Purchaser in a separate Letter of Understanding entered into in
connection with this Agreement and the issuance of the Certificates.
NOTICES. All communications provided for or permitted hereunder shall be in
writing and shall be deemed to have been duly given if (a) personally delivered,
(b) mailed by registered or certified mail, postage prepaid and received by the
addressee, (c) sent by express courier delivery service and received by the
addressee, or (d) transmitted by telex or facsimile transmission (or any other
type of electronic transmission agreed upon by the parties) and confirmed by a
writing delivered by any of the means described in (a), (b) or (c), if (i) to
Purchaser, addressed to Bear Xxxxxxx Commercial Mortgage Securities Inc., 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: J. Xxxxxxxxxxx Xxxxxxx (or
to such other address as Purchaser may designate in writing), with a copy to
Bear Xxxxxxx Commercial Mortgage Securities Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Legal Department (or to such other address as
Purchaser may designate in writing), or if (ii) to Seller, addressed to Seller
at Principal Commercial Funding, LLC, 000 Xxxxx Xxxxxx, Xxx Xxxxxx, Xxxx 00000,
Attention: Xxxxxx X. Xxxxxx (or to such other address as Seller may designate in
writing) with a copy to the attention of Xxxxxx X. Xxxxxxxxx, Esq.
SEVERABILITY OF PROVISIONS. Any part, provision, representation, warranty or
covenant of this Agreement that is prohibited or that is held to be void or
unenforceable shall be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof. Any part,
provision, representation, warranty or covenant of this Agreement that is
prohibited or unenforceable or is held to be void or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. To the extent permitted by applicable law, the parties
hereto waive any provision of law that prohibits or renders void or
unenforceable any provision hereof.
FURTHER ASSURANCES. Seller and Purchaser each agree to execute and deliver
such instruments and take such actions as the other may, from time to time,
reasonably request in order to effectuate the purpose and to carry out the terms
of this Agreement and the Pooling and Servicing Agreement.
SURVIVAL. Each party hereto agrees that the representations, warranties and
agreements made by it herein and in any certificate or other instrument
delivered pursuant hereto shall be deemed to be relied upon by the other party,
notwithstanding any investigation heretofore or hereafter made by the other
party or on its behalf, and that the representations, warranties and agreements
made by such other party herein or in any such certificate or other instrument
shall survive the delivery of and payment for the Mortgage Loans and shall
continue in full force and effect, notwithstanding any restrictive or qualified
endorsement on the Mortgage Notes and notwithstanding subsequent termination of
this Agreement.
GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND
RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK. THE
PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK
GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
BENEFITS OF MORTGAGE LOAN PURCHASE AGREEMENT. This Agreement shall inure to
the benefit of and shall be binding upon Seller, Purchaser and their respective
successors, legal representatives, and permitted assigns, and nothing expressed
or mentioned in this Agreement is intended or shall be construed to give any
other person any legal or equitable right, remedy or claim under or in respect
of this Agreement, or any provisions herein contained, this Agreement and all
conditions and provisions hereof being intended to be and being for the sole and
exclusive benefit of such persons and for the benefit of no other person except
that the rights and obligations of Purchaser pursuant to Sections 2, 4.1 (other
than clause 4.1.7), 5, 9, 10, 11, 12 and 13 hereof may be assigned to the
Trustee as may be required to effect the purposes of the Pooling and Servicing
Agreement and, upon such assignment, the Trustee shall succeed to the rights and
obligations hereunder of Purchaser. No owner of a Certificate issued pursuant to
the Pooling and Servicing Agreement shall be deemed a successor or permitted
assigns because of such ownership.
MISCELLANEOUS. This Agreement may be executed in two or more counterparts,
each of which when so executed and delivered shall be an original, but all of
which together shall constitute one and the same instrument. Neither this
Agreement nor any term hereof may be changed, waived, discharged or terminated
orally, but only by an instrument in writing signed by the party against whom
enforcement of the change, waiver, discharge or termination is sought. The
headings in this Agreement are for purposes of reference only and shall not
limit or otherwise affect the meaning hereof. The rights and obligations of
Seller under this Agreement shall not be assigned by Seller without the prior
written consent of Purchaser, except that any person into which Seller may be
merged or consolidated, or any corporation resulting from any merger, conversion
or consolidation to which Seller is a party, or any person succeeding to the
entire business of Seller shall be the successor to Seller hereunder.
ENTIRE AGREEMENT. This Agreement contains the entire agreement and
understanding between the parties hereto with respect to the subject matter
hereof (other than the Letter of Understanding (solely with respect to those
portions of this Agreement that are not assigned to the Trustee), the
Indemnification Agreement and the Pooling and Servicing Agreement), and
supersedes all prior and contemporaneous agreements, understandings, inducements
and conditions, express or implied, oral or written, of any nature whatsoever
with respect to the subject matter hereof. The express terms hereof control and
supersede any course of performance or usage of the trade inconsistent with any
of the terms hereof.
IN WITNESS WHEREOF, Purchaser and Seller have caused this Agreement to be
executed by their respective duly authorized officers as of the date first above
written.
PRINCIPAL COMMERCIAL FUNDING, LLC
By: /s/
------------------------------------
Name: Xxxxxx X. Xxxxxx
------------------------------
Title: Senior V.P./Managing Director
-----------------------------
By: /s/
------------------------------------
Name: Xxxxxxxx X. Xxxxxx
------------------------------
Title: C.F.O./Director of Finance
-----------------------------
BEAR XXXXXXX COMMERCIAL
MORTGAGE SECURITIES INC.
By: /s/
------------------------------------
Name: Xxxxxxx X. Xxxxxx
------------------------------
Title: V.P.
-----------------------------
EXHIBIT 1
MORTGAGE LOAN SCHEDULE
EXHIBIT 2
REPRESENTATIONS AND WARRANTIES REGARDING
INDIVIDUAL MORTGAGE LOANS
1. Mortgage Loan Schedule. The information set forth in the Mortgage Loan
Schedule is complete, true and correct in all material respects as of the date
of this Agreement and as of the Cut-Off Date.
2. Whole Loan; Ownership of Mortgage Loans. Each Mortgage Loan is a whole loan
and not a participation interest in a mortgage loan. Immediately prior to the
transfer to Purchaser of the Mortgage Loans, Seller had good title to, and was
the sole owner of, each Mortgage Loan. Seller has full right, power and
authority to transfer and assign each of the Mortgage Loans to or at the
direction of Purchaser and has validly and effectively conveyed (or caused to be
conveyed) to Purchaser or its designee all of Seller's legal and beneficial
interest in and to the Mortgage Loans free and clear of any and all pledges,
liens, charges, security interests and/or other encumbrances. The sale of the
Mortgage Loans to Purchaser or its designee does not require Seller to obtain
any governmental or regulatory approval or consent that has not been obtained.
3. Payment Record. No scheduled payment of principal and interest under any
Mortgage Loan was 30 days or more past due as of the Cut-Off Date, and no
Mortgage Loan was 30 days or more delinquent in the twelve-month period
immediately preceding the Cut-Off Date.
4. Lien; Valid Assignment. The Mortgage related to and delivered in connection
with each Mortgage Loan constitutes a valid and, subject to the exceptions set
forth in paragraph 13 below, enforceable first priority lien upon the related
Mortgaged Property, prior to all other liens and encumbrances, except for (a)
the lien for current real estate taxes and assessments not yet due and payable,
(b) covenants, conditions and restrictions, rights of way, easements and other
matters that are of public record and/or are referred to in the related lender's
title insurance policy, (c) exceptions and exclusions specifically referred to
in such lender's title insurance policy, (d) other matters to which like
properties are commonly subject, none of which matters referred to in clauses
(b), (c) or (d), individually or in the aggregate, materially interferes with
the security intended to be provided by such Mortgage, the marketability or
current use of the Mortgaged Property or the current ability of the Mortgaged
Property to generate operating income sufficient to service the Mortgage Loan
debt and (e) if such Mortgage Loan is cross-collateralized with any other
Mortgage Loan, the lien of the Mortgage for such other Mortgage Loan (the
foregoing items (a) through (e), the "Permitted Encumbrances"). The related
assignment of such Mortgage executed and delivered in favor of the Trustee is in
recordable form and constitutes a legal, valid and binding assignment,
sufficient to convey to the assignee named therein all of the assignor's right,
title and interest in, to and under such Mortgage. Such Mortgage, together with
any separate security agreements, chattel mortgages or equivalent instruments,
establishes and creates a valid and, subject to the exceptions set forth in
paragraph 13 below, enforceable security interest in favor of the holder thereof
in all of the related Mortgagor's personal property used in, and reasonably
necessary to operate, the related Mortgaged Property. In the case of a Mortgaged
Property operated as a hotel or an assisted living facility, the Mortgagor's
personal property includes all personal property that a prudent mortgage lender
making a similar Mortgage Loan would deem reasonably necessary to operate
the related Mortgaged Property as it is currently being operated. A Uniform
Commercial Code financing statement has been filed and/or recorded in all places
necessary to perfect a valid security interest in such personal property, to the
extent a security interest may be so created therein, and such security interest
is a first priority security interest, subject to any prior purchase money
security interest in such personal property and any personal property leases
applicable to such personal property. Notwithstanding the foregoing, no
representation is made as to the perfection of any security interest in rents or
other personal property to the extent that possession or control of such items
or actions other than the filing of Uniform Commercial Code financing statements
are required in order to effect such perfection.
5. Assignment of Leases and Rents. The Assignment of Leases related to and
delivered in connection with each Mortgage Loan establishes and creates a valid,
subsisting and, subject to the exceptions set forth in paragraph 13 below,
enforceable first priority lien and first priority security interest in the
related Mortgagor's interest in all leases, sub-leases, licenses or other
agreements pursuant to which any person is entitled to occupy, use or possess
all or any portion of the real property subject to the related Mortgage, and
each assignor thereunder has the full right to assign the same. The related
assignment of any Assignment of Leases not included in a Mortgage has been
executed and delivered in favor of the Trustee and is in recordable form and
constitutes a legal, valid and binding assignment, sufficient to convey to the
assignee named therein all of the assignor's right, title and interest in, to
and under such Assignment of Leases.
6. Mortgage Status; Waivers and Modifications. No Mortgage has been satisfied,
cancelled, rescinded or subordinated in whole or in part, and the related
Mortgaged Property has not been released from the lien of such Mortgage, in
whole or in part (except for partial reconveyances of real property that are set
forth on Schedule A to Exhibit 2), nor has any instrument been executed that
would effect any such satisfaction, cancellation, subordination, rescission or
release, in any manner that, in each case, materially adversely affects the
value of the related Mortgaged Property. None of the terms of any Mortgage Note,
Mortgage or Assignment of Leases has been impaired, waived, altered or modified
in any respect, except by written instruments, all of which are included in the
related Mortgage File.
7. Condition of Property; Condemnation. (i) With respect to the Mortgaged
Properties securing the Mortgage Loans that were the subject of an engineering
report within 18 months prior to the Cut-Off Date as set forth on Schedule A to
this Exhibit 2, each Mortgaged Property is, to Seller's knowledge, free and
clear of any damage (or adequate reserves therefor have been established) that
would materially and adversely affect its value as security for the related
Mortgage Loan, and (ii) with respect to the Mortgaged Properties securing the
Mortgage Loans that were not the subject of an engineering report within 18
months prior to the Cut-Off Date as set forth on Schedule A to this Exhibit 2,
each Mortgaged Property is in good repair and condition and all building systems
contained therein are in good working order (or adequate reserves therefor have
been established) and each Mortgaged Property is free of structural defects, in
each case, that would materially and adversely affect its value as security for
the related Mortgage Loan as of the date hereof. Seller has received no notice
of the commencement of any proceeding for the condemnation of all or any
material portion of any Mortgaged Property. To Seller's knowledge (based on
surveys and/or title insurance obtained in connection with the origination of
the Mortgage Loans), as of the date of the origination of each Mortgage
Loan, all of the material improvements on the related Mortgaged Property that
were considered in determining the appraised value of the Mortgaged Property lay
wholly within the boundaries and building restriction lines of such property,
except for encroachments that are insured against by the lender's title
insurance policy referred to herein or that do not materially and adversely
affect the value or marketability of such Mortgaged Property, and no
improvements on adjoining properties materially encroached upon such Mortgaged
Property so as to materially and adversely affect the value or marketability of
such Mortgaged Property, except those encroachments that are insured against by
the Title Policy referred to herein.
8. Title Insurance. Each Mortgaged Property is covered by an American Land Title
Association (or an equivalent form of) lender's title insurance policy or a
marked-up title insurance commitment (on which the required premium has been
paid) which evidences such title insurance policy (the "Title Policy") in the
original principal amount of the related Mortgage Loan after all advances of
principal. Each Title Policy insures that the related Mortgage is a valid first
priority lien on such Mortgaged Property, subject only to Permitted
Encumbrances. Each Title Policy (or, if it has yet to be issued, the coverage to
be provided thereby) is in full force and effect, all premiums thereon have been
paid and no material claims have been made thereunder and no claims have been
paid thereunder. No holder of the related Mortgage has done, by act or omission,
anything that would materially impair the coverage under such Title Policy.
Immediately following the transfer and assignment of the related Mortgage Loan
to the Trustee, such Title Policy (or, if it has yet to be issued, the coverage
to be provided thereby) will inure to the benefit of the Trustee without the
consent of or notice to the insurer. To Seller's knowledge, the insurer issuing
such Title Policy is qualified to do business in the jurisdiction in which the
related Mortgaged Property is located.
9. No Holdbacks. The proceeds of each Mortgage Loan have been fully disbursed
and there is no obligation for future advances with respect thereto. With
respect to each Mortgage Loan, any and all requirements as to completion of any
on-site or off-site improvement and as to disbursements of any funds escrowed
for such purpose that were to have been complied with on or before the Closing
Date have been complied with, or any such funds so escrowed have not been
released.
10. Mortgage Provisions. The Mortgage Note or Mortgage for each Mortgage Loan,
together with applicable state law, contains customary and enforceable
provisions (subject to the exceptions set forth in paragraph 13) such as to
render the rights and remedies of the holder thereof adequate for the practical
realization against the related Mortgaged Property of the principal benefits of
the security intended to be provided thereby.
11. Trustee under Deed of Trust. If any Mortgage is a deed of trust, (1) a
trustee, duly qualified under applicable law to serve as such, is properly
designated and serving under such Mortgage, and (2) no fees or expenses are
payable to such trustee by Seller, Purchaser or any transferee thereof except in
connection with a trustee's sale after default by the related Mortgagor or in
connection with any full or partial release of the related Mortgaged Property or
related security for the related Mortgage Loan.
12. Environmental Conditions.
(i) Except as set forth on Schedule A to this Exhibit 2, with respect to
the Mortgaged Properties securing the Mortgage Loans that were the
subject of an environmental site assessment within 18 months prior to
the Cut-Off Date, an environmental site assessment prepared to ASTM
standards, or an update of a previous such report, was performed with
respect to each Mortgaged Property in connection with the origination
or the sale of the related Mortgage Loan, a report of each such
assessment (or the most recent assessment with respect to each
Mortgaged Property) (an "Environmental Report") has been delivered to,
or on behalf of, Purchaser or its designee, and Seller has no
knowledge of any material and adverse environmental condition or
circumstance affecting any Mortgaged Property that was not disclosed
in such report. Each Mortgage requires the related Mortgagor to comply
with all applicable federal, state and local environmental laws and
regulations. Where such assessment disclosed the existence of a
material and adverse environmental condition or circumstance affecting
any Mortgaged Property, (i) a party not related to the Mortgagor was
identified as the responsible party for such condition or circumstance
or (ii) environmental insurance covering such condition was obtained
or must be maintained until the condition is remediated or (iii) the
related Mortgagor was required either to provide additional security
that was deemed to be sufficient by the originator in light of the
circumstances and/or to establish an operations and maintenance plan.
Each Mortgage Loan set forth on Schedule C to this Exhibit 2 (each, a
"Schedule C Loan") is the subject of a Secured Creditor Impaired
Property Policy, issued by the issuer set forth on Schedule C (the
"Policy Issuer") and effective as of the date thereof (the
"Environmental Insurance Policy"). Except as set forth on Schedule A
to this Exhibit 2, with respect to each Schedule C Loan, (i) the
Environmental Insurance Policy is in full force and effect, (ii)(a) a
property condition or engineering report was prepared with respect to
lead based paint ("LBP") and radon gas ("RG") at each Mortgaged
Property that is used as a multifamily dwelling, and with respect to
asbestos containing materials ("ACM") at each related Mortgaged
Property and (b) if such report disclosed the existence of a material
and adverse LBP, ACM or RG environmental condition or circumstance
affecting the related Mortgaged Property, the related Mortgagor (A)
was required to remediate the identified condition prior to closing
the Mortgage Loan or provide additional security, or establish with
the lender a reserve from loan proceeds, in an amount deemed to be
sufficient by Seller for the remediation of the problem and/or (B)
agreed in the Mortgage Loan documents to establish an operations and
maintenance plan after the closing of the Mortgage Loan, (iii) on the
effective date of the Environmental Insurance Policy, Seller as
originator had no knowledge of any material and adverse environmental
condition or circumstance affecting the Mortgaged Property (other than
the existence of LBP, ACM or RG) that was not disclosed to the Policy
Issuer in one or more of the following: (a) the application for
insurance, (b) a borrower questionnaire that was provided to the
Policy Issuer or (c) an engineering or other report provided to the
Policy Issuer and (iv) the premium of any Environmental Insurance
Policy has
been paid through the maturity of the policy's term and the term of
such policy extends at least five years beyond the maturity of the
Mortgage Loan.
(ii) With respect to the Mortgaged Properties securing the Mortgage Loans
that were not the subject of an environmental site assessment prepared
to ASTM standards within 18 months prior to the Cut-Off Date as set
forth on Schedule A to this Exhibit 2, (i) no Hazardous Material is
present on such Mortgaged Property such that (1) the value of such
Mortgaged Property is materially and adversely affected or (2) under
applicable federal, state or local law, (a) such Hazardous Material
could be required to be eliminated at a cost materially and adversely
affecting the value of the Mortgaged Property before such Mortgaged
Property could be altered, renovated, demolished or transferred or (b)
the presence of such Hazardous Material could (upon action by the
appropriate governmental authorities) subject the owner of such
Mortgaged Property, or the holders of a security interest therein, to
liability for the cost of eliminating such Hazardous Material or the
hazard created thereby at a cost materially and adversely affecting
the value of the Mortgaged Property, and (ii) such Mortgaged Property
is in material compliance with all applicable federal, state and local
laws pertaining to Hazardous Materials or environmental hazards, any
noncompliance with such laws does not have a material adverse effect
on the value of such Mortgaged Property and neither Seller nor, to
Seller's knowledge, the related Mortgagor or any current tenant
thereon, has received any notice of violation or potential violation
of any such law.
"Hazardous Materials" means gasoline, petroleum products, explosives,
radioactive materials, polychlorinated biphenyls or related or similar
materials, and any other substance or material as may be defined as a
hazardous or toxic substance by any federal, state or local
environmental law, ordinance, rule, regulation or order, including
without limitation, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended (42 U.S.C. Sections
9601 et seq.), the Hazardous Materials Transportation Act as amended
(42 U.S.C. Sections 6901 et seq.), the Federal Water Pollution Control
Act as amended (33 U.S.C. Sections 1251 et seq.), the Clean Air Act
(42 U.S.C. Sections 1251 et seq.) and any regulations promulgated
pursuant thereto.
13. Loan Document Status. Each Mortgage Note, Mortgage and other agreement that
evidences or secures such Mortgage Loan and was executed by or on behalf of the
related Mortgagor is the legal, valid and binding obligation of the maker
thereof (subject to any non-recourse provisions contained in any of the
foregoing agreements and any applicable state anti-deficiency or market value
limit deficiency legislation), enforceable in accordance with its terms, 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 enforcement is
considered in a proceeding in equity or at law) and there is no valid defense,
counterclaim or right of offset or rescission available to the related Mortgagor
with respect to such Mortgage Note, Mortgage or other agreement.
14. Insurance. Each Mortgaged Property is, and is required pursuant to the
related Mortgage to be, insured by (a) a fire and extended perils insurance
policy providing coverage against loss or damage sustained by reason of fire,
lightning, windstorm, hail, explosion, riot, riot attending a strike, civil
commotion, aircraft, vehicles and smoke, and, to the extent required as of the
date of origination by the originator of such Mortgage Loan consistent with its
normal commercial mortgage lending practices, against other risks insured
against by persons operating like properties in the locality of the Mortgaged
Property in an amount not less than the lesser of the principal balance of the
related Mortgage Loan and the replacement cost of the Mortgaged Property, and
not less than the amount necessary to avoid the operation of any co-insurance
provisions with respect to the Mortgaged Property, and the policy contains no
provisions for a deduction for depreciation; (b) a business interruption or
rental loss insurance policy, in an amount at least equal to six months of
operations of the Mortgaged Property estimated as of the date of origination by
the originator of such Mortgage Loan consistent with its normal commercial
lending practices; (c) a flood insurance policy (if any portion of buildings or
other structures on the Mortgaged Property are located in an area identified by
the Federal Emergency Management Agency as having special flood hazards and the
Federal Emergency Management Agency requires flood insurance to be maintained);
and (d) a comprehensive general liability insurance policy in amounts as are
generally required by commercial mortgage lenders, and in any event not less
than $1 million per occurrence. Such insurance policy contains a standard
mortgagee clause that names the mortgagee as an additional insured in the case
of liability insurance policies and as a loss payee in the case of property
insurance policies and requires prior notice to the holder of the Mortgage of
termination or cancellation. No such notice has been received, including any
notice of nonpayment of premiums, that has not been cured. Each Mortgage
obligates the related Mortgagor to maintain all such insurance and, upon such
Mortgagor's failure to do so, authorizes the holder of the Mortgage to maintain
such insurance at the Mortgagor's cost and expense and to seek reimbursement
therefor from such Mortgagor. Each Mortgage provides that casualty insurance
proceeds will be applied (a) to the restoration or repair of the related
Mortgaged Property, (b) to the restoration or repair of the related Mortgaged
Property, with any excess insurance proceeds after restoration or repair being
paid to the Mortgagor, or (c) to the reduction of the principal amount of the
Mortgage Loan.
15. Taxes and Assessments. As of the Closing Date, there are no delinquent or
unpaid taxes, assessments (including assessments payable in future installments)
or other outstanding charges affecting any Mortgaged Property that are or may
become a lien of priority equal to or higher than the lien of the related
Mortgage. For purposes of this representation and warranty, real property taxes
and assessments shall not be considered unpaid until the date on which interest
or penalties would be first payable thereon.
16. Mortgagor Bankruptcy. No Mortgagor is, to Seller's knowledge, a debtor in
any state or federal bankruptcy or insolvency proceeding. As of the date of
origination, (i) with respect to Mortgage Loans with a principal balance greater
than $3,500,000, no tenant physically occupying 25% or more (by square feet) of
the net rentable area of the related Mortgaged Property was, to Seller's
knowledge, a debtor in any state or federal bankruptcy or insolvency proceeding
and (ii) with respect to Mortgage Loans with a principal balance equal to or
less than $3,500,000 no tenant physically occupying 50% or more (by square feet)
of the net rentable area
of the related Mortgaged Property was, to Seller's knowledge, a debtor in any
state or federal bankruptcy or insolvency proceeding.
17. Leasehold Estate. Each Mortgaged Property consists of a fee simple estate in
real estate or, if the related Mortgage Loan is secured in whole or in part by
the interest of a Mortgagor as a lessee under a ground lease of a Mortgaged
Property (a "Ground Lease"), by the related Mortgagor's interest in the Ground
Lease but not by the related fee interest in such Mortgaged Property (the "Fee
Interest"), and as to such Ground Leases:
(i) Such Ground Lease or a memorandum thereof has been or will be duly
recorded; such Ground Lease (or the related estoppel letter or lender
protection agreement between Seller and related lessor) does not
prohibit the current use of the Mortgaged Property and does not
prohibit the interest of the lessee thereunder to be encumbered by the
related Mortgage; and there has been no material change in the payment
terms of such Ground Lease since the origination of the related
Mortgage Loan, with the exception of material changes reflected in
written instruments that are a part of the related Mortgage File;
(ii) The lessee's interest in such Ground Lease is not subject to any liens
or encumbrances superior to, or of equal priority with, the related
Mortgage, other than Permitted Encumbrances;
(iii) The Mortgagor's interest in such Ground Lease is assignable to
Purchaser and its successors and assigns upon notice to, but without
the consent of, the lessor thereunder (or, if such consent is
required, it has been obtained prior to the Closing Date) and, in the
event that it is so assigned, is further assignable by Purchaser and
its successors and assigns upon notice to, but without the need to
obtain the consent of, such lessor or if such lessor's consent is
required it cannot be unreasonably withheld;
(iv) Such Ground Lease is in full force and effect, and the Ground Lease
provides that no material amendment to such Ground Lease is binding on
a mortgagee unless the mortgagee has consented thereto, and Seller has
received no notice that an event of default has occurred thereunder,
and, to Seller's knowledge, there exists no condition that, but for
the passage of time or the giving of notice, or both, would result in
an event of default under the terms of such Ground Lease;
(v) Such Ground Lease, or an estoppel letter or other agreement, (A)
requires the lessor under such Ground Lease to give notice of any
default by the lessee to the holder of the Mortgage; and (B) provides
that no notice of termination given under such Ground Lease is
effective against the holder of the Mortgage unless a copy of such
notice has been delivered to such holder and the lessor has offered or
is required to enter into a new lease with such holder on terms that
do not materially vary from the economic terms of the Ground Lease.
(vi) A mortgagee is permitted a reasonable opportunity (including, where
necessary, sufficient time to gain possession of the interest of the
lessee under such Ground Lease) to cure any default under such Ground
Lease, which is curable after the receipt of notice of any such
default, before the lessor thereunder may terminate such Ground Lease;
(vii) Such Ground Lease has an original term (including any extension
options set forth therein) which extends not less than twenty years
beyond the Stated Maturity Date of the related Mortgage Loan;
(viii) Under the terms of such Ground Lease and the related Mortgage, taken
together, any related insurance proceeds or condemnation award awarded
to the holder of the ground lease interest will be applied either (A)
to the repair or restoration of all or part of the related Mortgaged
Property, with the mortgagee or a trustee appointed by the related
Mortgage having the right to hold and disburse such proceeds as the
repair or restoration progresses (except in such cases where a
provision entitling a third party to hold and disburse such proceeds
would not be viewed as commercially unreasonable by a prudent
commercial mortgage lender), or (B) to the payment of the outstanding
principal balance of the Mortgage Loan together with any accrued
interest thereon; and
(ix) Such Ground Lease does not impose any restrictions on subletting which
would be viewed as commercially unreasonable by prudent commercial
mortgage lenders lending on a similar Mortgaged Property in the
lending area where the Mortgaged Property is located; and such Ground
Lease contains a covenant that the lessor thereunder is not permitted,
in the absence of an uncured default, to disturb the possession,
interest or quiet enjoyment of the lessee thereunder for any reason,
or in any manner, which would materially adversely affect the security
provided by the related Mortgage.
(x) Such Ground Lease requires the Lessor to enter into a new lease upon
termination of such Ground Lease if the Ground Lease is rejected in a
bankruptcy proceeding.
18. Escrow Deposits. All escrow deposits and payments relating to each Mortgage
Loan that are, as of the Closing Date, required to be deposited or paid have
been so deposited or paid.
19. LTV Ratio. The gross proceeds of each Mortgage Loan to the related Mortgagor
at origination did not exceed the non-contingent principal amount of the
Mortgage Loan and either: (a) such Mortgage Loan is secured by an interest in
real property having a fair market value (i) at the date the Mortgage Loan was
originated, at least equal to 80 percent of the original principal balance of
the Mortgage Loan or (ii) at the Closing Date, at least equal to 80 percent of
the principal balance of the Mortgage Loan on such date; provided that for
purposes hereof, the fair market value of the real property interest must first
be reduced by (x) the amount of any lien on the real property interest that is
senior to the Mortgage Loan and (y) a proportionate amount of any lien that is
in parity with the Mortgage Loan (unless such other lien secures a Mortgage Loan
that is cross-collateralized with such Mortgage Loan, in which event the
computation described
in clauses (a)(i) and (a)(ii) of this paragraph 19 shall be made on a pro rata
basis in accordance with the fair market values of the Mortgaged Properties
securing such cross-collateralized Mortgage Loans); or (b) substantially all the
proceeds of such Mortgage Loan were used to acquire, improve or protect the real
property that served as the only security for such Mortgage Loan (other than a
recourse feature or other third party credit enhancement within the meaning of
Treasury Regulations Section 1.860G-2(a)(1)(ii)).
20. Mortgage Loan Modifications. Any Mortgage Loan that was "significantly
modified" prior to the Closing Date so as to result in a taxable exchange under
Section 1001 of the Code either (a) was modified as a result of the default
under such Mortgage Loan or under circumstances that made a default reasonably
foreseeable or (b) satisfies the provisions of either clause (a)(i) of paragraph
19 (substituting the date of the last such modification for the date the
Mortgage Loan was originated) or clause (a)(ii) of paragraph 19, including the
proviso thereto.
21. Advancement of Funds by Seller. No holder of a Mortgage Loan has advanced
funds or induced, solicited or knowingly received any advance of funds from a
party other than the owner of the related Mortgaged Property, directly or
indirectly, for the payment of any amount required by such Mortgage Loan.
22. No Mechanics' Liens. Each Mortgaged Property is free and clear of any and
all mechanics' and materialmen's liens that are prior or equal to the lien of
the related Mortgage, and no rights are outstanding that under law could give
rise to any such lien that would be prior or equal to the lien of the related
Mortgage except, in each case, for liens insured against by the Title Policy
referred to herein.
23. Compliance with Usury Laws. Each Mortgage Loan complied with all applicable
usury laws in effect at its date of origination.
24. Cross-collateralization. No Mortgage Loan is cross-collateralized or
cross-defaulted with any loan other than one or more other Mortgage Loans.
25. Releases of Mortgaged Property. Except as described in the next sentence, no
Mortgage Note or Mortgage requires the mortgagee to release all or any material
portion of the related Mortgaged Property that was included in the appraisal for
such Mortgaged Property, and/or generates income from the lien of the related
Mortgage except upon payment in full of all amounts due under the related
Mortgage Loan or in connection with the defeasance provisions of the related
Note and Mortgage. The Mortgages relating to those Mortgage Loans identified on
Schedule A hereto require the mortgagee to grant releases of portions of the
related Mortgaged Properties upon (a) the satisfaction of certain legal and
underwriting requirements and/or (b) the payment of a predetermined or
objectively determinable release price and prepayment consideration in
connection therewith. Except as described in the first sentence hereof and for
those Mortgage Loans identified on Schedule A, no Mortgage Loan permits the full
or partial release or substitution of collateral unless the mortgagee or
servicer can require the Borrower to provide an opinion of tax counsel to the
effect that such release or substitution of collateral (a) would not constitute
a "significant modification" of such Mortgage Loan within the meaning of
Treas. Reg. Section 1.1001-3 and (b) would not cause such Mortgage Loan to fail
to be a "qualified mortgage" within the meaning of Section 860G(a)(3)(A) of the
Code.
26. No Equity Participation or Contingent Interest. No Mortgage Loan contains
any equity participation by the lender or provides for negative amortization
(except that the ARD Loan may provide for the accrual of interest at an
increased rate after the Anticipated Repayment Date) or for any contingent or
additional interest in the form of participation in the cash flow of the related
Mortgaged Property.
27. No Material Default. To Seller's knowledge, there exists no material
default, breach, violation or event of acceleration (and no event which, with
the passage of time or the giving of notice, or both, would constitute any of
the foregoing) under the documents evidencing or securing the Mortgage Loan, in
any such case to the extent the same materially and adversely affects the value
of the Mortgage Loan and the related Mortgaged Property; provided, however, that
this representation and warranty does not address or otherwise cover any
default, breach, violation or event of acceleration that specifically pertains
to any matter otherwise covered by any other representation and warranty made by
Seller in any of paragraphs 3, 7, 8, 12, 14, 15, 16 and 17 of this Exhibit 2.
28. Inspections. Seller (or if Seller is not the originator, the originator of
the Mortgage Loan) has inspected or caused to be inspected each Mortgaged
Property in connection with the origination of the related Mortgage Loan.
29. Local Law Compliance. Based on due diligence considered reasonable by
prudent commercial mortgage lenders in the lending area where the Mortgaged
Property is located, the improvements located on or forming part of each
Mortgaged Property comply with applicable zoning laws and ordinances, or
constitute a legal non-conforming use or structure or, if any such improvement
does not so comply, such non-compliance does not materially and adversely affect
the value of the related Mortgaged Property, such value as determined by the
appraisal performed at origination or in connection with the sale of the related
Mortgage Loan by Seller hereunder.
30. Junior Liens. None of the Mortgage Loans permits the related Mortgaged
Property to be encumbered by any lien (other than a Permitted Encumbrance)
junior to or of equal priority with the lien of the related Mortgage without the
prior written consent of the holder thereof or the satisfaction of debt service
coverage or similar criteria specified therein. Seller has no knowledge that any
of the Mortgaged Properties is encumbered by any lien junior to the lien of the
related Mortgage.
31. Actions Concerning Mortgage Loans. To the knowledge of Seller, there are no
actions, suits or proceedings before any court, administrative agency or
arbitrator concerning any Mortgage Loan, Mortgagor or related Mortgaged Property
that might adversely affect title to the Mortgaged Property or the validity or
enforceability of the related Mortgage or that might materially and adversely
affect the value of the Mortgaged Property as security for the Mortgage Loan or
the use for which the premises were intended.
32. Servicing. The servicing and collection practices used by Seller or any
prior holder or servicer of each Mortgage Loan have been in all material
respects legal, proper and prudent and have met customary industry standards.
33. Licenses and Permits. To Seller's knowledge, based on due diligence that it
customarily performs in the origination of comparable mortgage loans, as of the
date of origination of each Mortgage Loan or as of the date of the sale of the
related Mortgage Loan by Seller hereunder, the related Mortgagor was in
possession of all material licenses, permits and franchises required by
applicable law for the ownership and operation of the related Mortgaged Property
as it was then operated.
34. Assisted Living Facility Regulation. If the Mortgaged Property is operated
as an assisted living facility, to Seller's knowledge (a) the related Mortgagor
is in compliance in all material respects with all federal and state laws
applicable to the use and operation of the related Mortgaged Property and (b) if
the operator of the Mortgaged Property participates in Medicare or Medicaid
programs, the facility is in compliance in all material respects with the
requirements for participation in such programs.
35. Collateral in Trust. The Mortgage Note for each Mortgage Loan is not secured
by a pledge of any collateral that has not been assigned to Purchaser.
36. Due on Sale. Each Mortgage Loan contains a "due on sale" clause, which
provides for the acceleration of the payment of the unpaid principal balance of
the Mortgage Loan if, without prior written consent of the holder of the
Mortgage, the property subject to the Mortgage or any material portion thereof,
or a controlling interest in the related Mortgagor, is transferred, sold or
encumbered by a junior mortgage or deed of trust; provided, however, that
certain Mortgage Loans provide a mechanism for the assumption of the loan by a
third party upon the Mortgagor's satisfaction of certain conditions precedent,
and upon payment of a transfer fee, if any, or transfer of interests in the
Mortgagor or constituent entities of the Mortgagor to a third party or parties
related to the Mortgagor upon the Mortgagor's satisfaction of certain conditions
precedent.
37. Single Purpose Entity. The Mortgagor on each Mortgage Loan with a Cut-Off
Date Principal Balance in excess of $10 million, was, as of the origination of
the Mortgage Loan, a Single Purpose Entity. For this purpose, a "Single Purpose
Entity" shall mean an entity, other than an individual, whose organizational
documents provide substantially to the effect that it was formed or organized
solely for the purpose of owning and operating one or more of the Mortgaged
Properties securing the Mortgage Loans and prohibit it from engaging in any
business unrelated to such Mortgaged Property or Properties, and whose
organizational documents further provide, or which entity represented in the
related Mortgage Loan documents, substantially to the effect that it does not
have any assets other than those related to its interest in and operation of
such Mortgaged Property or Properties, or any indebtedness other than as
permitted by the related Mortgage(s) or the other related Mortgage Loan
documents, that it has its own books and records and accounts separate and apart
from any other person (other than a Mortgagor for a Mortgage Loan that is
cross-collateralized and cross-defaulted with the related
Mortgage Loan), and that it holds itself out as a legal entity, separate and
apart from any other person.
38. Non-Recourse Exceptions. The Mortgage Loan documents for each Mortgage Loan
provide that such Mortgage Loan constitutes either (a) the recourse obligations
of at least one natural person or (b) the non-recourse obligations of the
related Mortgagor, provided that at least one natural person (and the Mortgagor
if the Mortgagor is not a natural person) is liable to the holder of the
Mortgage Loan for damages arising in the case of fraud or willful
misrepresentation by the Mortgagor, misappropriation of rents, insurance
proceeds or condemnation awards and breaches of the environmental covenants in
the Mortgage Loan documents.
39. Defeasance and Assumption Costs. The related Mortgage Loan documents provide
that the related borrower is responsible for the payment of all reasonable costs
and expenses of the lender incurred in connection with the defeasance of such
Mortgage Loan and the release of the related Mortgaged Property, and the
borrower is required to pay all reasonable costs and expenses of the lender
associated with the approval of an assumption of such Mortgage Loan.
40. Defeasance. No Mortgage Loan provides that (i) it can be defeased until the
date that is more than two years after the Closing Date, (ii) that it can be
defeased with any property other than government securities (as defined in
Section 2(a)(16) of the Investment Company Act of 1940, as amended) or any
direct non-callable security issued or guaranteed as to principal or interest by
the United States that will provide interest and principal payments sufficient
to satisfy scheduled payments of interest and principal as required under the
related Mortgage Loan, or (iii) defeasance requires the payment of any
consideration other than (a) reimbursement of incidental costs and expenses
and/or (b) a specified dollar amount or an amount that is based on a formula
that uses objective financial information (as defined in Treasury Regulation
Section 1.446-3(c)(4)(ii)).
41. Prepayment Premiums. As of the applicable date of origination of each such
Mortgage Loan, any prepayment premiums and yield maintenance charges payable
under the terms of the Mortgage Loans, in respect of voluntary prepayments,
constituted customary prepayment premiums and yield maintenance charges for
commercial mortgage loans.
42. Terrorism Insurance. With respect to each Mortgage Loan that has a principal
balance as of the Cut-off Date that is greater than or equal to $20,000,000, the
related all risk insurance policy and business interruption policy do not
specifically exclude Acts of Terrorism, as defined in the Terrorism Risk
Insurance Act of 2002, from coverage, or if such coverage is excluded, is
covered by a separate terrorism insurance policy. With respect to each other
Mortgage Loan, the related all risk insurance policy and business interruption
policy did not as of the date of origination of the Mortgage Loan, and, to
Seller's knowledge, do not, as of the date hereof, specifically exclude Acts of
Terrorism from coverage, or if such coverage is excluded, it is covered by a
separate terrorism insurance policy. With respect to each of the Mortgage Loans,
the related Mortgage Loan documents do not expressly waive or prohibit the
mortgagee from requiring coverage for acts of terrorism or damages related
thereto, except to the extent that any right to require such coverage may be
limited by commercially reasonable availability, or as otherwise indicated on
Schedule A.
43. Foreclosure Property. Seller is not selling any Mortgage Loan as part of a
plan to transfer the underlying Mortgaged Property to Purchaser, and Seller does
not know or, to Seller's knowledge, have reason to know that any Mortgage Loan
will default. The representations in this paragraph 43 are being made solely for
the purpose of determining whether the Mortgaged Property, if acquired by the
Trust, would qualify as "foreclosure property" within the meaning of Section
860G(a)(8) of the Code, and may not be relied upon or used for any other
purpose. Such representations shall not be construed as a guarantee to any
degree that defaults or losses will not occur.
Schedule A
Exceptions to Representations and Warranties
Principal Commercial Funding, LLC
Schedule B
List of Mortgagors that are Third-Party Beneficiaries Under Section 5.2
Schedule C
List of Mortgage Loans Subject to Secured Creditor Impaired Property Policies
EXHIBIT 3
PRICING FORMULATION
Principal: _________________
EXHIBIT 4
XXXX OF SALE
1. Parties. The parties to this Xxxx of Sale are the following:
Seller: Principal Commercial Funding, LLC
Purchaser: Bear Xxxxxxx Commercial Mortgage Securities Inc.
2. Sale. For value received, Seller hereby conveys to Purchaser, without
recourse, all right, title and interest in and to the Mortgage Loans identified
on Exhibit 1 (the "Mortgage Loan Schedule") to the Mortgage Loan Purchase
Agreement, dated as of October 20, 2005 (the "Mortgage Loan Purchase
Agreement"), between Seller and Purchaser and all of the following property:
(a) All accounts, general intangibles, chattel paper, instruments,
documents, money, deposit accounts, certificates of deposit, goods, letters
of credit, advices of credit and investment property consisting of, arising
from or relating to any of the following property: the Mortgage Loans
identified on the Mortgage Loan Schedule including the related Mortgage
Notes, Mortgages, security agreements, and title, hazard and other
insurance policies, all distributions with respect thereto payable after
the Cut-Off Date, all substitute or replacement Mortgage Loans and all
distributions with respect thereto, and the Mortgage Files;
(b) All accounts, general intangibles, chattel paper, instruments,
documents, money, deposit accounts, certificates of deposit, goods, letters
of credit, advices of credit, investment property, and other rights arising
from or by virtue of the disposition of, or collections with respect to, or
insurance proceeds payable with respect to, or claims against other Persons
with respect to, all or any part of the collateral described in clause (a)
above (including any accrued discount realized on liquidation of any
investment purchased at a discount); and
(c) All cash and non-cash proceeds of the collateral described in
clauses (a) and (b) above.
3. Purchase Price. The amount and other consideration set forth on Exhibit 3 to
the Mortgage Loan Purchase Agreement.
4. Definitions. Terms used but not defined herein shall have the meanings
assigned to them in the Mortgage Loan Purchase Agreement.
IN WITNESS WHEREOF, each of the parties hereto has caused this Xxxx of Sale to
be duly executed and delivered on this 20th day of October, 2005.
SELLER: PRINCIPAL COMMERCIAL FUNDING, LLC
By: /s/
------------------------------------
Name: Xxxxxx X. Xxxxxx
------------------------------
Title: Senior V.P./Managing Director
-----------------------------
By: /s/
------------------------------------
Name: Xxxxxxxx X. Xxxxxx
------------------------------
Title: C.F.O./Director of Finance
-----------------------------
PURCHASER: BEAR XXXXXXX COMMERCIAL
MORTGAGE SECURITIES INC.
By: /s/
------------------------------------
Name: Xxxxxxx X. Xxxxxx Xx.
------------------------------
Title: V.P.
-----------------------------
EXHIBIT 5
FORM OF LIMITED POWER OF ATTORNEY
EXHIBIT 5
FORM OF LIMITED POWER OF ATTORNEY
[Under Separate Tab]
EXHIBIT K-4
FORM OF MORTGAGE LOAN PURCHASE AGREEMENT IV (MSMC)
================================================================================
MORTGAGE LOAN PURCHASE AGREEMENT
between
XXXXXX XXXXXXX MORTGAGE CAPITAL INC.
as Seller
and
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
as Purchaser
Dated as of October 20, 2005
================================================================================
TABLE OF CONTENTS
1. AGREEMENT TO PURCHASE................................................ 4
2. CONVEYANCE OF MORTGAGE LOANS......................................... 4
3. EXAMINATION OF MORTGAGE FILES AND DUE DILIGENCE REVIEW............... 12
4. REPRESENTATIONS AND WARRANTIES OF SELLER AND PURCHASER............... 14
5. REMEDIES UPON BREACH OF REPRESENTATIONS AND WARRANTIES MADE BY
SELLER............................................................... 17
6. CLOSING.............................................................. 23
7. CLOSING DOCUMENTS.................................................... 24
8. COSTS................................................................ 26
9. NOTICES.............................................................. 26
10. SEVERABILITY OF PROVISIONS........................................... 27
11. FURTHER ASSURANCES................................................... 27
12. SURVIVAL............................................................. 27
13. GOVERNING LAW........................................................ 27
14. BENEFITS OF MORTGAGE LOAN PURCHASE AGREEMENT......................... 27
15. MISCELLANEOUS........................................................ 28
16. ENTIRE AGREEMENT..................................................... 28
Exhibit 1 Mortgage Loan Schedule
Exhibit 2 Representations and Warranties
Exhibit 3 Pricing Formulation
Exhibit 4 Xxxx of Sale
Exhibit 5 Power of Attorney
Index of Defined Terms
Affected Loan(s).......................................................... 17
Agreement................................................................. 2
Certificate Purchase Agreement............................................ 2
Certificates.............................................................. 2
Closing Date.............................................................. 3
Collateral Information.................................................... 11
Crossed Mortgage Loans.................................................... 17
Defective Mortgage Loan................................................... 17
Final Judicial Determination.............................................. 19
Fiscal Agent.............................................................. 2
Indemnification Agreement................................................. 14
Initial Purchasers........................................................ 2
Master Servicer........................................................... 2
Material Breach........................................................... 16
Material Document Defect.................................................. 16
Memorandum................................................................ 2
Mortgage File............................................................. 4
Mortgage Loan Schedule.................................................... 3
Mortgage Loans............................................................ 2
Officer's Certificate..................................................... 8
Other Mortgage Loans...................................................... 2
Pooling and Servicing Agreement........................................... 2
Private Certificates...................................................... 2
Prospectus Supplement..................................................... 2
Public Certificates....................................................... 2
Purchaser................................................................. 2
Repurchased Loan.......................................................... 17
Seller.................................................................... 2
Special Servicer.......................................................... 2
Trust..................................................................... 2
Trustee................................................................... 2
Underwriters.............................................................. 2
Underwriting Agreement.................................................... 2
MORTGAGE LOAN PURCHASE AGREEMENT
(MSMC LOANS)
Mortgage Loan Purchase Agreement ("Agreement"), dated as of October
20, 2005, between Xxxxxx Xxxxxxx Mortgage Capital Inc. ("Seller") and Bear
Xxxxxxx Commercial Mortgage Inc. ("Purchaser").
Seller agrees to sell and Purchaser agrees to purchase certain
mortgage loans listed on Exhibit 1 hereto (the "Mortgage Loans") as described
herein. Purchaser will convey the Mortgage Loans to a trust (the "Trust")
created pursuant to a Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement"), to be dated as of October 1, 2005 between Purchaser, as
depositor, Xxxxx Fargo Bank, National Association, as master servicer (the
"Master Servicer"), ARCap Servicing, Inc., as special servicer (the "Special
Servicer"), LaSalle Bank National Association, as trustee (the "Trustee"), Xxxxx
Fargo Bank, National Association, as paying agent and certificate registrar and
ABN AMRO Bank N.V., as fiscal agent (the "Fiscal Agent"). In exchange for the
Mortgage Loans and certain other mortgage loans to be purchased by Purchaser
(collectively the "Other Mortgage Loans"), the Trust will issue to the Depositor
pass-through certificates to be known as Bear Xxxxxxx Commercial Mortgage
Securities Inc., Commercial Mortgage Pass-Through Certificates, Series
2005-TOP20 (the "Certificates"). The Certificates will be issued pursuant to the
Pooling and Servicing Agreement.
Capitalized terms used herein but not defined herein shall have the
meanings assigned to them in the Pooling and Servicing Agreement.
The Class A-1, Class A-2, Class A-3, Class A-AB, Class X-0X, Xxxxx
X-0X, Xxxxx X-X, Class B, Class C, Class D and Class E Certificates (the "Public
Certificates") will be sold by Purchaser to Bear, Xxxxxxx & Co. Inc. and Xxxxxx
Xxxxxxx & Co. Incorporated (the "Underwriters"), pursuant to an Underwriting
Agreement, between Purchaser and the Underwriters, dated October 20, 2005 (the
"Underwriting Agreement"), and the Class X, Class F, Class G, Class H, Class J,
Class K, Class L, Class M, Class N, Class O, Class P, Class Q, Class LF, Class
R-I, Class R-II and Class R-III Certificates (the "Private Certificates") will
be sold by Purchaser to Bear, Xxxxxxx & Co. Inc. and Xxxxxx Xxxxxxx & Co.
Incorporated (the "Initial Purchasers") pursuant to a Certificate Purchase
Agreement, between Purchaser and the Initial Purchasers, dated October 20, 2005
(the "Certificate Purchase Agreement"). The Underwriters will offer the Public
Certificates for sale publicly pursuant to a Prospectus dated September 2, 2005,
as supplemented by a Prospectus Supplement dated October 20, 2005 (together, the
"Prospectus Supplement") and the Initial Purchasers will offer the Private
Certificates for sale in transactions exempt from the registration requirements
of the Securities Act of 1933 pursuant to a Private Placement Memorandum dated
October 20, 2005 (the "Memorandum").
In consideration of the mutual agreements contained herein, Seller and
Purchaser hereby agree as follows:
1. AGREEMENT TO PURCHASE.
1.1. Seller agrees to sell, and Purchaser agrees to purchase, on a
servicing released basis, the Mortgage Loans identified on the
schedule (the "Mortgage Loan Schedule") annexed hereto as Exhibit 1,
as such schedule may be amended to reflect the actual Mortgage Loans
accepted by Purchaser pursuant to the terms hereof. The Cut-Off Date
with respect to the Mortgage Loans is October 1, 2005. The Mortgage
Loans will have an aggregate principal balance as of the close of
business on the Cut-Off Date, after giving effect to any payments due
on or before such date, whether or not received, of (i) $466,839,868
plus (ii) the 50% pari passu interest of the Seller in each of the
Mortgage Loans identified as (a) the East Towne Mall Mortgage Loan,
which such pari passu interest is represented by the Note with a
Cut-Off Date balance of $40,000,000 and (b) the West Towne Mall
Mortgage Loan, which such pari passu interest is represented by the
Note with a Cut-Off Date balance of $56,500,000. Seller and Principal
Commercial Funding, LLC co-originated 2 Mortgage Loans, the West Towne
Mall Mortgage Loan and the East Towne Mall Mortgage Loan, which will
have an aggregate balance as of the close of business on the Cut-Off
Date, after giving effect to any payments due on or before such date,
whether or not received, of $193,000,000. The sale of the Mortgage
Loans shall take place on October 28, 2005 or such other date as shall
be mutually acceptable to the parties hereto (the "Closing Date"). The
purchase price to be paid by Purchaser for the Mortgage Loans shall
equal the amount set forth as such purchase price on Exhibit 3 hereto.
The purchase price shall be paid to Seller by wire transfer in
immediately available funds on the Closing Date.
1.2. On the Closing Date, Purchaser will assign to the Trustee pursuant to
the Pooling and Servicing Agreement all of its right, title and
interest in and to the Mortgage Loans and its rights under this
Agreement (to the extent set forth in Section 14), and the Trustee
shall succeed to such right, title and interest in and to the Mortgage
Loans and Purchaser's rights under this Agreement (to the extent set
forth in Section 14).
2. CONVEYANCE OF MORTGAGE LOANS.
2.1. Effective as of the Closing Date, subject only to receipt of the
consideration referred to in Section 1 hereof and the satisfaction of
the conditions specified in Sections 6 and 7 hereof, Seller does
hereby transfer, assign, set over and otherwise convey to Purchaser,
without recourse, except as specifically provided herein all the
right, title and interest of Seller, with the understanding that a
Servicing Rights Purchase and Sale Agreement, dated October 1, 2005,
will be executed by Seller and the Master Servicer, in and to the
Mortgage Loans identified on the Mortgage Loan Schedule as of the
Closing Date. The Mortgage Loan Schedule, as it may be amended from
time to time on or prior to the Closing Date, shall conform to the
requirements of this Agreement and the Pooling and Servicing
Agreement. In connection with such transfer and assignment, Seller
shall deliver to or on behalf of the Trustee, on behalf of Purchaser,
on or prior to the Closing Date, the Mortgage Note (as described in
clause 2.2.1 hereof) for each Mortgage Loan and on or prior to the
fifth Business Day after the Closing Date, five limited powers of
attorney substantially in the form attached hereto as Exhibit 5 in
favor of the Trustee and
the Special Servicer to empower the Trustee and, in the event of the
failure or incapacity of the Trustee, the Special Servicer, to submit
for recording, at the expense of Seller, any mortgage loan documents
required to be recorded as described in the Pooling and Servicing
Agreement and any intervening assignments with evidence of recording
thereon that are required to be included in the Mortgage Files (so
long as original counterparts have previously been delivered to the
Trustee). Seller agrees to reasonably cooperate with the Trustee and
the Special Servicer in connection with any additional powers of
attorney or revisions thereto that are requested by such parties for
purposes of such recordation. The parties hereto agree that no such
power of attorney shall be used with respect to any Mortgage Loan by
or under authorization by any party hereto except to the extent that
the absence of a document described in the second preceding sentence
with respect to such Mortgage Loan remains unremedied as of the
earlier of (i) the date that is 180 days following the delivery of
notice of such absence to Seller, but in no event earlier than 18
months from the Closing Date, and (ii) the date (if any) on which such
Mortgage Loan becomes a Specially Serviced Mortgage Loan. The Trustee
shall submit such documents, at Seller's expense, after the periods
set forth above, provided, however, the Trustee shall not submit such
assignments for recording if Seller produces evidence that it has sent
any such assignment for recording and certifies that Seller is
awaiting its return from the applicable recording office. In addition,
not later than the 30th day following the Closing Date, Seller shall
deliver to or on behalf of the Trustee each of the remaining documents
or instruments specified in Section 2.2 hereof (with such exceptions
as are permitted by this Section 2) with respect to each Mortgage Loan
(each, a "Mortgage File"). (Seller acknowledges that the term "without
recourse" does not modify the duties of Seller under Section 5
hereof.)
2.2. All Mortgage Files, or portions thereof, delivered prior to the
Closing Date are to be held by or on behalf of the Trustee in escrow
on behalf of Seller at all times prior to the Closing Date. The
Mortgage Files shall be released from escrow upon closing of the sale
of the Mortgage Loans and payments of the purchase price therefor as
contemplated hereby. The Mortgage File for each Mortgage Loan shall
contain the following documents:
2.2.1. The original Mortgage Note bearing all intervening endorsements,
endorsed "Pay to the order of LaSalle Bank National Association, as Trustee for
Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 2005-TOP20, without recourse, representation
or warranty" or if the original Mortgage Note is not included therein, then a
lost note affidavit, with a copy of the Mortgage Note attached thereto;
2.2.2. The original Mortgage, with evidence of recording thereon, and, if
the Mortgage was executed pursuant to a power of attorney, a certified true copy
of the power of attorney certified by the public recorder's office, with
evidence of recording thereon (if recording is customary in the jurisdiction in
which such power of attorney was executed), or certified by a title insurance
company or escrow company to be a true copy thereof; provided that if such
original Mortgage cannot be delivered with evidence of recording thereon on or
prior to the 45th day following the Closing Date because of a delay caused by
the public recording office where such original Mortgage has been delivered for
recordation or because such original Mortgage has been lost, Seller shall
deliver or cause to be delivered to the Trustee a true and correct copy of
such Mortgage, together with (i) in the case of a delay caused by the public
recording office, an Officer's Certificate (as defined below) of Seller stating
that such original Mortgage has been sent to the appropriate public recording
official for recordation or (ii) in the case of an original Mortgage that has
been lost after recordation, a certification by the appropriate county recording
office where such Mortgage is recorded that such copy is a true and complete
copy of the original recorded Mortgage;
2.2.3. The originals of all agreements modifying a Money Term or other
material modification, consolidation and extension agreements, if any, with
evidence of recording thereon, or if any such original modification,
consolidation or extension agreement has been delivered to the appropriate
recording office for recordation and either has not yet been returned on or
prior to the 45th day following the Closing Date with evidence of recordation
thereon or has been lost after recordation, a true copy of such modification,
consolidation or extension certified by Seller together with (i) in the case of
a delay caused by the public recording office, an Officer's Certificate of
Seller stating that such original modification, consolidation or extension
agreement has been dispatched or sent to the appropriate public recording
official for recordation or (ii) in the case of an original modification,
consolidation or extension agreement that has been lost after recordation, a
certification by the appropriate county recording office where such document is
recorded that such copy is a true and complete copy of the original recorded
modification, consolidation or extension agreement, and the originals of all
assumption agreements, if any;
2.2.4. An original Assignment of Mortgage for each Mortgage Loan, in form
and substance acceptable for recording, signed by the holder of record in favor
of "LaSalle Bank National Association, as Trustee for Bear Xxxxxxx Commercial
Mortgage Securities Inc., Commercial Mortgage Pass-Through Certificates, Series
2005-TOP20," provided, if the related Mortgage has been recorded in the name of
Mortgage Electronic Registration Systems, Inc. ("MERS") or its designee, no such
assignments will be required to be submitted for recording or filing and
instead, Seller shall take all actions as are necessary to cause the Trustee to
be shown as the owner of the related Mortgage on the record of MERS for purposes
of the system of recording transfers of beneficial ownership of mortgages
maintained by MERS and shall deliver to the Master Servicer and the Special
Servicer evidence confirming that the Trustee is shown as the owner on the
record of MERS;
2.2.5. Originals of all intervening assignments of Mortgage (except with
respect to any Mortgage that has been recorded in the name of MERS or its
designees), if any, with evidence of recording thereon or, if such original
assignments of Mortgage have been delivered to the appropriate recorder's office
for recordation, certified true copies of such assignments of Mortgage certified
by Seller, or in the case of an original blanket intervening assignment of
Mortgage retained by Seller, a copy thereof certified by Seller or, if any
original intervening assignment of Mortgage has not yet been returned on or
prior to the 45th day following the Closing Date from the applicable recording
office or has been lost, a true and correct copy thereof, together with (i) in
the case of a delay caused by the public recording office, an Officer's
Certificate of Seller stating that such original intervening assignment of
Mortgage has been sent to the appropriate public recording official for
recordation or (ii) in the case of an original intervening Assignment of
Mortgage that has been lost after recordation, a certification by the
appropriate county recording office where such assignment is recorded that such
copy is a true and complete copy of the original recorded intervening Assignment
of Mortgage;
2.2.6. If the related Assignment of Leases is separate from the Mortgage,
the original of such Assignment of Leases with evidence of recording thereon or,
if such Assignment of Leases has not been returned on or prior to the 45th day
following the Closing Date from the applicable public recording office, a copy
of such Assignment of Leases certified by Seller to be a true and complete copy
of the original Assignment of Leases submitted for recording, together with (i)
an original of each assignment of such Assignment of Leases with evidence of
recording thereon and showing a complete recorded chain of assignment from the
named assignee to the holder of record, and if any such assignment of such
Assignment of Leases has not been returned from the applicable public recording
office, a copy of such assignment certified by Seller to be a true and complete
copy of the original assignment submitted for recording, and (ii) an original
assignment of such Assignment of Leases, in recordable form, signed by the
holder of record in favor of "LaSalle Bank National Association, as Trustee for
Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 2005-TOP20," which assignment may be effected
in the related Assignment of Mortgage, provided, if the related Mortgage has
been recorded in the name of MERS or its designee, no assignment of Assignment
of Leases in favor of the Trustee will be required to be recorded or delivered
and instead, Seller shall take all actions as are necessary to cause the Trustee
to be shown as the owner of the related Mortgage on the record of MERS for
purposes of the system of recording transfers of beneficial ownership of
mortgages maintained by MERS and shall deliver to the Master Servicer and the
Special Servicer evidence confirming that the Trustee is shown as the owner on
the record of MERS;
2.2.7. The original of each guaranty, if any, constituting additional
security for the repayment of such Mortgage Loan;
2.2.8. The original Title Insurance Policy, or in the event such original
Title Insurance Policy has not been issued, an original binder or actual title
commitment or a copy thereof certified by the title company with the original
Title Insurance Policy to follow within 180 days of the Closing Date or a
preliminary title report binding on the title company with an original Title
Insurance Policy to follow within 180 days of the Closing Date;
2.2.9. (A) UCC financing statements (together with all assignments thereof)
and (B) UCC-2 or UCC-3 financing statements to the Trustee executed and
delivered in connection with the Mortgage Loan, provided, if the related
Mortgage has been recorded in the name of MERS or its designee, no such
financing statements will be required to be recorded or delivered and instead,
Seller shall take all actions as are necessary to cause the Trustee to be shown
as the owner of the related Mortgage on the record of MERS for purposes of the
system of recording transfers of beneficial ownership of mortgages maintained by
MERS and shall deliver to the Master Servicer and the Special Servicer evidence
confirming that the Trustee is shown as the owner on the record of MERS;
2.2.10. Copies of the related ground lease(s), if any, to any Mortgage Loan
where the Mortgagor is the lessee under such ground lease and there is a lien in
favor of the mortgagee in such lease;
2.2.11. Copies of any loan agreements, lock-box agreements and
intercreditor agreements (including, without limitation, any Intercreditor
Agreement, and a copy (that is, not the original) of the mortgage note
evidencing the related B Note), if any, related to any Mortgage Loan;
2.2.12. Either (A) the original of each letter of credit, if any,
constituting additional collateral for such Mortgage Loan, which shall be
assigned and delivered to the Trustee on behalf of the Trust with a copy to be
held by the Primary Servicer (or the Master Servicer), and applied, drawn,
reduced or released in accordance with documents evidencing or securing the
applicable Mortgage Loan, the Pooling and Servicing Agreement and the Primary
Servicing Agreement or (B) the original of each letter of credit, if any,
constituting additional collateral for such Mortgage Loan, which shall be held
by the Primary Servicer (or the Master Servicer) on behalf of the Trustee, with
a copy to be held by the Trustee, and applied, drawn, reduced or released in
accordance with documents evidencing or securing the applicable Mortgage Loan,
the Pooling and Servicing Agreement and the Primary Servicing Agreement (it
being understood that Seller has agreed (a) that the proceeds of such letter of
credit belong to the Trust, (b) to notify, on or before the Closing Date, the
bank issuing the letter of credit that the letter of credit and the proceeds
thereof belong to the Trust, and to use reasonable efforts to obtain within 30
days (but in any event to obtain within 90 days) following the Closing Date, an
acknowledgement thereof by the bank (with a copy of such acknowledgement to be
sent to the Trustee) or a reissued letter of credit and (c) to indemnify the
Trust for any liabilities, charges, costs, fees or other expenses accruing from
the failure of Seller to assign all rights to the letter of credit hereunder
including the right and power to draw on the letter of credit). In the case of
clause (B) above, any letter of credit held by the Primary Servicer (or Master
Servicer) shall be held in its capacity as agent of the Trust, and if the
Primary Servicer (or Master Servicer) sells its rights to service the applicable
Mortgage Loan, the Primary Servicer (or Master Servicer) has agreed to assign
the applicable letter of credit to the Trust or at the direction of the Special
Servicer to such party as the Special Servicer may instruct, in each case, at
the expense of the Primary Servicer (or Master Servicer). The Primary Servicer
(or Master Servicer) has agreed to indemnify the Trust for any loss caused by
the ineffectiveness of such assignment;
2.2.13. The original environmental indemnity agreement, if any, related to
any Mortgage Loan;
2.2.14. Third-party management agreements for all hotels and for such other
Mortgaged Properties securing Mortgage Loans with a Cut-Off Date principal
balance equal to or greater than $20,000,000;
2.2.15. Any Environmental Insurance Policy; and
2.2.16. Any affidavit and indemnification agreement.
2.2.17 With respect to the 000 Xxxxxxx Xxxxxx Pari Passu Loan, a copy of
the GSMSC 2005-GG4 Pooling and Servicing Agreement.
With respect to the 000 Xxxxxxx Xxxxxx Pari Passu Loan, the preceding
document delivery requirements will be met by the delivery by the Depositor of
copies of the documents specified above (other than the Mortgage Notes and all
intervening endorsements)
evidencing the 200 Madison Avenue Pari Passu Loan, including a copy of the
related Pari Passu Mortgage.
2.2.18 With respect to the 1345 Avenue of the Americas Pari Passu Loan and
the Park Avenue Plaza Pari Passu Loan, a copy of the XXXX XX 0000-0 Xxxxxxx and
Servicing Agreement.
With respect to the 1345 Avenue of the Americas Pari Passu Loan and
the Park Avenue Plaza Pari Passu Loan, the preceding document delivery
requirements will be met by the delivery by the Depositor of copies of the
documents specified above (other than the respective Mortgage Notes and all
intervening endorsements) evidencing the 1345 Avenue of the Americas Pari Passu
Loan and the Park Avenue Plaza Pari Passu Loan, including a copy of the related
applicable Pari Passu Mortgage.
The original of each letter of credit referred to in clause 2.2.12
above shall be delivered to the Primary Servicer, the Master Servicer or the
Trustee (as the case may be) within 45 days of the Closing Date. In addition, a
copy of any ground lease shall be delivered to the Primary Servicer within 30
days of the Closing Date. Any failure to deliver any ground lease shall
constitute a document defect.
"Officer's Certificate" shall mean a certificate signed by one or more of the
Chairman of the Board, any Vice Chairman, the President, any Senior Vice
President, any Vice President, any Assistant Vice President, any Treasurer or
any Assistant Treasurer.
2.3. The Assignments of Mortgage and assignment of Assignment of Leases
referred to in Sections 2.2.4 and 2.2.6 may be in the form of a single
instrument assigning the Mortgage and the Assignment of Leases to the
extent permitted by applicable law. To avoid the unnecessary expense
and administrative inconvenience associated with the execution and
recording or filing of multiple assignments of mortgages, assignments
of leases (to the extent separate from the mortgages) and assignments
of UCC financing statements, Seller shall execute, in accordance with
the third succeeding paragraph, the assignments of mortgages, the
assignments of leases (to the extent separate from the mortgages) and
the assignments of UCC financing statements relating to the Mortgage
Loans naming the Trustee on behalf of the Certificateholders as
assignee. Notwithstanding the fact that such assignments of mortgages,
assignments of leases (to the extent separate from the assignments of
mortgages) and assignments of UCC financing statements shall name the
Trustee on behalf of the Certificateholders as the assignee, the
parties hereto acknowledge and agree that the Mortgage Loans shall for
all purposes be deemed to have been transferred from Seller to
Purchaser and from Purchaser to the Trustee on behalf of the
Certificateholders.
2.4. If Seller cannot deliver, or cause to be delivered, as to any Mortgage
Loan, any of the documents and/or instruments referred to in Sections
2.2.2, 2.2.3, 2.2.5 or 2.2.6, with evidence of recording thereon,
solely because of a delay caused by the public recording office where
such document or instrument has been delivered for recordation within
such 45 day period, but Seller delivers a photocopy thereof (certified
by the appropriate county recorder's office to be a true and complete
copy of the original thereof submitted
for recording), to the Trustee within such 45 day period, Seller shall
then deliver within 90 days after the Closing Date the recorded
document (or within such longer period after the Closing Date as the
Trustee may consent to, which consent shall not be unreasonably
withheld so long as Seller is, as certified in writing to the Trustee
no less often than monthly, in good faith attempting to obtain from
the appropriate county recorder's office such original or photocopy).
2.5. The Trustee, as assignee or transferee of Purchaser, shall be entitled
to all scheduled payments of principal due thereon after the Cut-Off
Date, all other payments of principal collected after the Cut-Off Date
(other than scheduled payments of principal due on or before the
Cut-Off Date), and all payments of interest on the Mortgage Loans
allocable to the period commencing on the Cut-Off Date. All scheduled
payments of principal and interest due on or before the Cut-Off Date
and collected after the Cut-Off Date shall belong to Seller.
2.6. Within 45 days following the Closing Date, Seller shall deliver and
Purchaser, the Trustee or the agents of either may submit or cause to
be submitted for recordation at the expense of Seller, in the
appropriate public office for real property records, each assignment
referred to in clauses 2.2.4 and 2.2.6(ii) above. Within 90 days
following the Closing Date, Seller shall deliver and Purchaser, the
Trustee or the agents of either may submit or cause to be submitted
for filing, at the expense of Seller, in the appropriate public office
for Uniform Commercial Code financing statements, the assignment
referred to in clause 2.2.1. If any such document or instrument is
lost or returned unrecorded or unfiled, as the case may be, because of
a defect therein, Seller shall prepare a substitute therefor or cure
such defect, and Seller shall, at its own expense (except in the case
of a document or instrument that is lost by the Trustee), record or
file, as the case may be, and deliver such document or instrument in
accordance with this Section 2.
2.7. Documents that are in the possession of Seller, its agents or its
subcontractors that relate to the Mortgage Loans and that are not
required to be delivered to the Trustee shall be shipped by Seller to
or at the direction of the Master Servicer, on behalf of Purchaser, on
or prior to the 75th day after the Closing Date, in accordance with
Section 3.1 of the Primary Servicing Agreement, if applicable.
2.8. The documents required to be delivered to the Master Servicer (or in
the alternative, the Primary Servicer) shall include, to the extent
required to be (and actually) delivered to Seller pursuant to the
applicable Mortgage Loan documents, copies of the following items: the
Mortgage Note, any Mortgage, the Assignment of Leases and the
Assignment of Mortgage, any guaranty/indemnity agreement, any loan
agreement, the insurance policies or certificates, as applicable, the
property inspection reports, any financial statements on the property,
any escrow analysis, the tax bills, the Appraisal, the environmental
report, the engineering report, the asset summary, financial
information on the Borrower/sponsor and any guarantors, any letters of
credit, any intercreditor agreement and any Environmental Insurance
Policies. Delivery of any of the foregoing documents to the Primary
Servicer shall be deemed a delivery to the Master Servicer and satisfy
Seller's obligations under this subparagraph.
2.9. Upon the sale of the Mortgage Loans by Seller to Purchaser pursuant to
this Agreement, the ownership of each Mortgage Note, Mortgage and the
other contents of the related Mortgage File shall be vested in
Purchaser and its assigns, and the ownership of all records and
documents with respect to the related Mortgage Loan prepared by or
that come into the possession of Seller shall immediately vest in
Purchaser and its assigns, and shall be delivered promptly by Seller
to or on behalf of either the Trustee or the Master Servicer as set
forth herein, subject to the requirements of the Primary Servicing
Agreement. Seller's and Purchaser's records shall reflect the transfer
of each Mortgage Loan from Seller to Purchaser and its assigns as a
sale.
2.10. It is the express intent of the parties hereto that the conveyance of
the Mortgage Loans and related property to Purchaser by Seller as
provided in this Section 2 be, and be construed as, an absolute sale
of the Mortgage Loans and related property. It is, further, not the
intention of the parties that such conveyance be deemed a pledge of
the Mortgage Loans and related property by Seller to Purchaser to
secure a debt or other obligation of Seller. However, in the event
that, notwithstanding the intent of the parties, the Mortgage Loans or
any related property are held to be the property of Seller, or if for
any other reason this Agreement is held or deemed to create a security
interest in the Mortgage Loans or any related property, then:
2.10.1. this Agreement shall be deemed to be a security agreement; and
2.10.2. the conveyance provided for in this Section 2 shall be deemed to be
a grant by Seller to Purchaser of a security interest in all of Seller's right,
title, and interest, whether now owned or hereafter acquired, in and to:
2.10.2.1. All accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates of deposit,
goods, letters of credit, advices of credit and investment property
consisting of, arising from or relating to any of the following property:
the Mortgage Loans identified on the Mortgage Loan Schedule, including the
related Mortgage Notes, Mortgages, security agreements, and title, hazard
and other insurance policies, all distributions with respect thereto
payable after the Cut-Off Date, all substitute or replacement Mortgage
Loans and all distributions with respect thereto, and the Mortgage Files;
2.10.2.2. All accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates of deposit,
goods, letters of credit, advices of credit, investment property and other
rights arising from or by virtue of the disposition of, or collections with
respect to, or insurance proceeds payable with respect to, or claims
against other Persons with respect to, all or any part of the collateral
described in clause (A) above (including any accrued discount realized on
liquidation of any investment purchased at a discount); and
2.10.2.3. All cash and non-cash proceeds of the collateral described
in clauses (A) and (B) above.
2.11. The possession by Purchaser or its designee of the Mortgage Notes,
the Mortgages, and such other goods, letters of credit, advices of
credit, instruments, money, documents, chattel paper or certificated
securities shall be deemed to be possession by the secured party or
possession by a purchaser for purposes of perfecting the security
interest pursuant to the Uniform Commercial Code (including, without
limitation, Sections 9-313 thereof) as in force in the relevant
jurisdiction. Notwithstanding the foregoing, Seller makes no
representation or warranty as to the perfection of any such security
interest.
2.12. Notifications to Persons holding such property, and acknowledgments,
receipts, or confirmations from persons holding such property, shall
be deemed to be notifications to, or acknowledgments, receipts or
confirmations from, securities intermediaries, bailees or agents of,
or Persons holding for, Purchaser or its designee, as applicable, for
the purpose of perfecting such security interest under applicable law.
2.13. Seller shall, to the extent consistent with this Agreement, take such
reasonable actions as may be necessary to ensure that, if this
Agreement were deemed to create a security interest in the property
described above, such security interest would be deemed to be a
perfected security interest of first priority under applicable law and
will be maintained as such throughout the term of the Agreement. In
such case, Seller shall file all filings necessary to maintain the
effectiveness of any original filings necessary under the Uniform
Commercial Code as in effect in any jurisdiction to perfect such
security interest in such property. In connection herewith, Purchaser
shall have all of the rights and remedies of a secured party and
creditor under the Uniform Commercial Code as in force in the relevant
jurisdiction.
2.14. Notwithstanding anything to the contrary contained herein, and
subject to Section 2.1, Purchaser shall not be required to purchase
any Mortgage Loan as to which any Mortgage Note (endorsed as described
in clause 2.2.1) required to be delivered to or on behalf of the
Trustee or the Master Servicer pursuant to this Section 2 on or before
the Closing Date is not so delivered, or is not properly executed or
is defective on its face, and Purchaser's acceptance of the related
Mortgage Loan on the Closing Date shall in no way constitute a waiver
of such omission or defect or of Purchaser's or its successors' and
assigns' rights in respect thereof pursuant to Section 5.
3. EXAMINATION OF MORTGAGE FILES AND DUE DILIGENCE REVIEW.
3.1. Seller shall (i) deliver to Purchaser on or before the Closing Date a
diskette acceptable to Purchaser that contains such information about
the Mortgage Loans as may be reasonably requested by Purchaser, (ii)
deliver to Purchaser investor files (collectively the "Collateral
Information") with respect to the assets proposed to be included in
the Mortgage Pool and made available at Purchaser's headquarters in
New York, and (iii) otherwise cooperate fully with Purchaser in its
examination of the credit files, underwriting documentation and
Mortgage Files for the Mortgage Loans and its due diligence review of
the Mortgage Loans. The fact that Purchaser has conducted or has
failed to conduct any partial or complete examination of the credit
files, underwriting
documentation or Mortgage Files for the Mortgage Loans shall not
affect the right of Purchaser or the Trustee to cause Seller to cure
any Material Document Defect or Material Breach (each as defined
below), or to repurchase or replace the defective Mortgage Loans
pursuant to Section 5 hereof.
3.2. On or prior to the Closing Date, Seller shall allow representatives of
any of Purchaser, each Underwriter, each Initial Purchaser, the
Trustee, the Special Servicer and each Rating Agency to examine and
audit all books, records and files pertaining to the Mortgage Loans,
Seller's underwriting procedures and Seller's ability to perform or
observe all of the terms, covenants and conditions of this Agreement.
Such examinations and audits shall take place at one or more offices
of Seller during normal business hours and shall not be conducted in a
manner that is disruptive to Seller's normal business operations upon
reasonable prior advance notice. In the course of such examinations
and audits, Seller will make available to such representatives of any
of Purchaser, each Underwriter, each Initial Purchaser, the Trustee,
the Special Servicer and each Rating Agency reasonably adequate
facilities, as well as the assistance of a sufficient number of
knowledgeable and responsible individuals who are familiar with the
Mortgage Loans and the terms of this Agreement, and Seller shall
cooperate fully with any such examination and audit in all material
respects. On or prior to the Closing Date, Seller shall provide
Purchaser with all material information regarding Seller's financial
condition and access to knowledgeable financial or accounting officers
for the purpose of answering questions with respect to Seller's
financial condition, financial statements as provided to Purchaser or
other developments affecting Seller's ability to consummate the
transactions contemplated hereby or otherwise affecting Seller in any
material respect. Within 45 days after the Closing Date, Seller shall
provide the Master Servicer or Primary Servicer, if applicable, with
any additional information identified by the Master Servicer or
Primary Servicer, if applicable, as necessary to complete the CMSA
Property File, to the extent that such information is available.
3.3. Purchaser may exercise any of its rights hereunder through one or more
designees or agents, provided Purchaser has provided Seller with prior
notice of the identity of such designee or agent.
3.4. Purchaser shall keep confidential any information regarding Seller and
the Mortgage Loans that has been delivered into Purchaser's possession
and that is not otherwise publicly available; provided, however, that
such information shall not be kept confidential (and the right to
require confidentiality under any confidentiality agreement is hereby
waived) to the extent such information is required to be included in
the Memorandum or the Prospectus Supplement or Purchaser is required
by law or court order to disclose such information. If Purchaser is
required to disclose in the Memorandum or the Prospectus Supplement
confidential information regarding Seller as described in the
preceding sentence, Purchaser shall provide to Seller a copy of the
proposed form of such disclosure prior to making such disclosure and
Seller shall promptly, and in any event within two Business Days,
notify Purchaser of any inaccuracies therein, in which case Purchaser
shall modify such form in a manner that corrects such inaccuracies. If
Purchaser is required by law or court order to disclose confidential
information regarding Seller as described in the second preceding
sentence,
Purchaser shall notify Seller and cooperate in Seller's efforts to
obtain a protective order or other reasonable assurance that
confidential treatment will be accorded such information and, if in
the absence of a protective order or such assurance, Purchaser is
compelled as a matter of law to disclose such information, Purchaser
shall, prior to making such disclosure, advise and consult with Seller
and its counsel as to such disclosure and the nature and wording of
such disclosure and Purchaser shall use reasonable efforts to obtain
confidential treatment therefor. Notwithstanding the foregoing, if
reasonably advised by counsel that Purchaser is required by a
regulatory agency or court order to make such disclosure immediately,
then Purchaser shall be permitted to make such disclosure without
prior review by Seller.
4. REPRESENTATIONS AND WARRANTIES OF SELLER AND PURCHASER.
4.1. To induce Purchaser to enter into this Agreement, Seller hereby makes
for the benefit of Purchaser and its assigns with respect to each
Mortgage Loan as of the date hereof (or as of such other date
specifically set forth in the particular representation and warranty)
each of the representations and warranties set forth on Exhibit 2
hereto, except as otherwise set forth on Schedule A attached hereto,
and hereby further represents and warrants to Purchaser as of the date
hereof that:
4.1.1. Seller is duly organized and is validly existing as a corporation in
good standing under the laws of the State of New York. Seller has the requisite
power and authority and legal right to own the Mortgage Loans and to transfer
and convey the Mortgage Loans to Purchaser and has the requisite power and
authority to execute and deliver, engage in the transactions contemplated by,
and perform and observe the terms and conditions of, this Agreement.
4.1.2. This Agreement has been duly and validly authorized, executed and
delivered by Seller, and assuming the due authorization, execution and delivery
hereof by Purchaser, this Agreement constitutes the valid, legal and binding
agreement of Seller, enforceable in accordance with its terms, except as such
enforcement may be limited by (A) laws relating to bankruptcy, insolvency,
reorganization, receivership or moratorium, (B) other laws relating to or
affecting the rights of creditors generally, (C) general equity principles
(regardless of whether such enforcement is considered in a proceeding in equity
or at law) or (D) public policy considerations underlying the securities laws,
to the extent that such public policy considerations limit the enforceability of
the provisions of this Agreement that purport to provide indemnification from
liabilities under applicable securities laws.
4.1.3. No consent, approval, authorization or order of, registration or
filing with, or notice to, any governmental authority or court is required,
under federal or state law, for the execution, delivery and performance of or
compliance by Seller with this Agreement, or the consummation by Seller of any
transaction contemplated hereby, other than (A) such qualifications as may be
required under state securities or blue sky laws, (B) the filing or recording of
financing statements, instruments of assignment and other similar documents
necessary in connection with Seller's sale of the Mortgage Loans to Purchaser,
(C) such consents, approvals, authorizations, qualifications, registrations,
filings or notices as have been obtained and (D) where the lack of such consent,
approval, authorization, qualification,
registration, filing or notice would not have a material adverse effect on the
performance by Seller under this Agreement.
4.1.4. Neither the transfer of the Mortgage Loans to Purchaser, nor the
execution, delivery or performance of this Agreement by Seller, conflicts or
will conflict with, results or will result in a breach of, or constitutes or
will constitute a default under (A) any term or provision of Seller's articles
of organization or by-laws, (B) any term or provision of any material agreement,
contract, instrument or indenture to which Seller is a party or by which it or
any of its assets is bound or results in the creation or imposition of any lien,
charge or encumbrance upon any of its property pursuant to the terms of any such
indenture, mortgage, contract or other instrument, other than pursuant to this
Agreement, or (C) after giving effect to the consents or taking of the actions
contemplated in subsection 4.1.3, any law, rule, regulation, order, judgment,
writ, injunction or decree of any court or governmental authority having
jurisdiction over Seller or its assets, except where in any of the instances
contemplated by clauses (B) or (C) above, any conflict, breach or default, or
creation or imposition of any lien, charge or encumbrance, will not have a
material adverse effect on the consummation of the transactions contemplated
hereby by Seller or its ability to perform its obligations and duties hereunder
or result in any material adverse change in the business, operations, financial
condition, properties or assets of Seller, or in any material impairment of the
right or ability of Seller to carry on its business substantially as now
conducted.
4.1.5. There are no actions or proceedings against, or investigations of,
Seller pending or, to Seller's knowledge, threatened in writing against Seller
before any court, administrative agency or other tribunal, the outcome of which
could reasonably be expected to materially and adversely affect the transfer of
the Mortgage Loans to Purchaser or the execution or delivery by, or
enforceability against, Seller of this Agreement or have an effect on the
financial condition of Seller that would materially and adversely affect the
ability of Seller to perform its obligations under this Agreement.
4.1.6. On the Closing Date, the sale of the Mortgage Loans pursuant to this
Agreement will effect a transfer by Seller of all of its right, title and
interest in and to the Mortgage Loans to Purchaser.
4.1.7. To Seller's knowledge, Seller's Information (as defined in that
certain indemnification agreement, dated October 20, 2005, between Seller,
Purchaser, the Underwriters and the Initial Purchasers (the "Indemnification
Agreement")) relating to the Mortgage Loans does not contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading. Notwithstanding anything contained herein to the contrary,
this subparagraph 4.1.7 shall run exclusively to the benefit of Purchaser and no
other party.
To induce Purchaser to enter into this Agreement, Seller hereby
covenants that the foregoing representations and warranties and those set forth
on Exhibit 2 hereto will be true and correct in all material respects on and as
of the Closing Date with the same effect as if made on the Closing Date.
Each of the representations, warranties and covenants made by Seller
pursuant to this Section 4.1 shall survive the sale of the Mortgage Loans and
shall continue in full force and effect notwithstanding any restrictive or
qualified endorsement on the Mortgage Notes.
4.2. To induce Seller to enter into this Agreement, Purchaser hereby
represents and warrants to Seller as of the date hereof:
4.2.1. Purchaser is a corporation duly organized, validly existing, and in
good standing under the laws of the State of Delaware with full power and
authority to carry on its business as presently conducted by it.
4.2.2. Purchaser has full power and authority to acquire the Mortgage
Loans, to execute and deliver this Agreement and to enter into and consummate
all transactions contemplated by this Agreement. Purchaser has duly and validly
authorized the execution, delivery and performance of this Agreement and has
duly and validly executed and delivered this Agreement. This Agreement, assuming
due authorization, execution and delivery by Seller, constitutes the valid and
binding obligation of Purchaser, enforceable against it in accordance with its
terms, except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity, regardless of
whether such enforcement is considered in a proceeding in equity or at law.
4.2.3. No consent, approval, authorization or order of, registration or
filing with, or notice to, any governmental authority or court is required,
under federal or state law, for the execution, delivery and performance of or
compliance by Purchaser with this Agreement, or the consummation by Purchaser of
any transaction contemplated hereby that has not been obtained or made by
Purchaser.
4.2.4. Neither the purchase of the Mortgage Loans nor the execution,
delivery and performance of this Agreement by Purchaser will violate Purchaser's
certificate of incorporation or by-laws or constitute a default (or an event
that, with notice or lapse of time or both, would constitute a default) under,
or result in a breach of, any material agreement, contract, instrument or
indenture to which Purchaser is a party or that may be applicable to Purchaser
or its assets.
4.2.5. Purchaser's 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, rule, writ, injunction, order or decree of any court, or
order or regulation of any federal, state or municipal government agency having
jurisdiction over Purchaser or its assets, which violation could materially and
adversely affect the condition (financial or otherwise) or the operation of
Purchaser or its assets or could materially and adversely affect its ability to
perform its obligations and duties hereunder.
4.2.6. There are no actions or proceedings against, or investigations of,
Purchaser pending or, to Purchaser's knowledge, threatened against Purchaser
before any court, administrative agency or other tribunal, the outcome of which
could reasonably be expected to adversely affect the transfer of the Mortgage
Loans, the issuance of the Certificates, the execution, delivery or
enforceability of this Agreement or have an effect on the financial
condition of Purchaser that would materially and adversely affect the ability of
Purchaser to perform its obligation under this Agreement.
4.2.7. Purchaser has not dealt with any broker, investment banker, agent or
other person, other than Seller, the Underwriters, the Initial Purchasers and
their respective affiliates, that may be entitled to any commission or
compensation in connection with the sale of the Mortgage Loans or consummation
of any of the transactions contemplated hereby.
To induce Seller to enter into this Agreement, Purchaser hereby
covenants that the foregoing representations and warranties will be true and
correct in all material respects on and as of the Closing Date with the same
effect as if made on the Closing Date.
Each of the representations and warranties made by Purchaser pursuant
to this Section 4.2 shall survive the purchase of the Mortgage Loans.
5. REMEDIES UPON BREACH OF REPRESENTATIONS AND WARRANTIES MADE BY SELLER.
5.1. It is hereby acknowledged that Seller shall make for the benefit of
the Trustee on behalf of the holders of the Certificates, whether
directly or by way of Purchaser's assignment of its rights hereunder
to the Trustee, the representations and warranties set forth on
Exhibit 2 hereto (each as of the date hereof unless otherwise
specified).
5.2. It is hereby further acknowledged that if any document required to be
delivered to the Trustee pursuant to Section 2 is not delivered as and
when required, not properly executed or is defective on its face, or
if there is a breach of any of the representations and warranties
required to be made by Seller regarding the characteristics of the
Mortgage Loans and/or the related Mortgaged Properties as set forth in
Exhibit 2 hereto, and in either case the party discovering such breach
or defect determines that either (i) the defect or breach materially
and adversely affects the interests of the holders of the Certificates
in the related Mortgage Loan or (ii) both (A) the defect or breach
materially and adversely affects the value of the Mortgage Loan and
(B) the Mortgage Loan is a Specially Serviced Mortgage Loan or
Rehabilitated Mortgage Loan (any such defect described in the
preceding clause (i) or (ii), a "Material Document Defect" and any
such breach described in the preceding clause (i) or (ii), a "Material
Breach"), the party determining that such Material Document Defect or
Material Breach exists shall promptly notify, in writing, the other
parties; provided that any breach of the representation and warranty
contained in paragraph (41) of such Exhibit 2 shall constitute a
Material Breach only if such prepayment premium or yield maintenance
charge is not deemed "customary" for commercial mortgage loans as
evidenced by (i) an opinion of tax counsel to such effect or (ii) a
determination by the Internal Revenue Service that such provision is
not customary. Promptly (but in any event within three Business Days)
upon determining (or becoming aware of another party's determination)
that any such Material Document Defect or Material Breach exists
(which determination shall, absent evidence to the contrary, be
presumed to be no earlier than three Business Days prior to delivery
of the notice to Seller referred to below), the Master Servicer
shall, and the Special Servicer may, request that Seller, not later
than 90 days from Seller's receipt of the notice of such Material
Document Defect or Material Breach, cure such Material Document Defect
or Material Breach, as the case may be, in all material respects;
provided, however, that if such Material Document Defect or Material
Breach, as the case may be, cannot be corrected or cured in all
material respects within such 90 day period, and such Material
Document Defect or Material Breach would not cause the Mortgage Loan
to be other than a "qualified mortgage"(as defined in the Code) but
Seller is diligently attempting to effect such correction or cure, as
certified by Seller in an Officer's Certificate delivered to the
Trustee, then the cure period will be extended for an additional 90
days unless, solely in the case of a Material Document Defect, (x) the
Mortgage Loan is then a Specially Serviced Mortgage Loan and a
Servicing Transfer Event has occurred as a result of a monetary
default or as described in clause (ii) or clause (v) of the definition
of "Servicing Transfer Event" in the Pooling and Servicing Agreement
and (y) the Material Document Defect was identified in a certification
delivered to Seller by the Trustee pursuant to Section 2.2 of the
Pooling and Servicing Agreement not less than 90 days prior to the
delivery of the notice of such Material Document Defect. The parties
acknowledge that neither delivery of a certification or schedule of
exceptions to Seller pursuant to Section 2.2 of the Pooling and
Servicing Agreement or otherwise nor possession of such certification
or schedule by Seller shall, in and of itself, constitute delivery of
notice of any Material Document Defect or knowledge or awareness by
Seller, the Master Servicer or the Special Servicer of any Material
Document Defect listed therein.
5.3. Seller hereby covenants and agrees that, if any such Material Document
Defect or Material Breach cannot be corrected or cured or Seller
otherwise fails to correct or cure within the above cure periods,
Seller shall, on or before the termination of such cure periods,
either (i) repurchase the affected Mortgage Loan or REO Mortgage Loan
from Purchaser or its assignee at the Purchase Price as defined in the
Pooling and Servicing Agreement, or (ii) if within the three-month
period commencing on the Closing Date (or within the two-year period
commencing on the Closing Date if the related Mortgage Loan is a
"defective obligation" within the meaning of Section 860G(a)(4)(B)(ii)
of the Code and Treasury Regulation Section 1.860G-2(f)), at its
option replace, without recourse, any Mortgage Loan or REO Mortgage
Loan to which such defect relates with a Qualifying Substitute
Mortgage Loan. If such Material Document Defect or Material Breach
would cause the Mortgage Loan to be other than a "qualified mortgage"
(as defined in the Code), then notwithstanding the previous sentence
or the previous paragraph, repurchase must occur within 85 days from
the date Seller was notified of the defect. Seller agrees that any
substitution shall be completed in accordance with the terms and
conditions of the Pooling and Servicing Agreement.
5.4. If (x) a Mortgage Loan is to be repurchased or replaced as
contemplated above (a "Defective Mortgage Loan"), (y) such Defective
Mortgage Loan is cross-collateralized and cross-defaulted with one or
more other Mortgage Loans ("Crossed Mortgage Loans") and (z) the
applicable document defect or breach does not constitute a Material
Document Defect or Material Breach, as the case may be, as to such
Crossed Mortgage Loans (without regard to this paragraph), then the
applicable document defect or breach (as the case may be) shall be
deemed to constitute a Material Document Defect or
Material Breach, as the case may be, as to each such Crossed Mortgage
Loan for purposes of the above provisions, and Seller shall be
obligated to repurchase or replace each such Crossed Mortgage Loan in
accordance with the provisions above, unless, in the case of such
breach or document defect, (A) Seller provides a Nondisqualification
Opinion to the Trustee at the expense of Seller if, in the reasonable
business judgment of the Trustee, it would be usual and customary in
accordance with industry practice to obtain a Nondisqualification
Opinion and (B) both of the following conditions would be satisfied if
Seller were to repurchase or replace only those Mortgage Loans as to
which a Material Breach or Material Document Defect had occurred
without regard to this paragraph (the "Affected Loan(s)"): (i) the
debt service coverage ratio for all such other Mortgage Loans
(excluding the Affected Loan(s)) for the four calendar quarters
immediately preceding the repurchase or replacement is not less than
the lesser of (A) 0.10x below the debt service coverage ratio for all
such other Mortgage Loans (including the Affected Loans(s)) set forth
in Appendix A to the Final Prospectus Supplement and (B) the debt
service coverage ratio for all such Crossed Mortgage Loans (including
the Affected Loan(s)) for the four preceding calendar quarters
preceding the repurchase or replacement, and (ii) the loan-to-value
ratio for all such Crossed Mortgage Loans (excluding the Affected
Loan(s)) is not greater than the greater of (A) the loan-to-value
ratio, expressed as a whole number (taken to one decimal place), for
all such Crossed Mortgage Loans (including the Affected Loan(s)) set
forth in Appendix A to the Final Prospectus Supplement plus 10% and
(B) the loan-to-value ratio for all such Crossed Mortgage Loans
(including the Affected Loans(s)), at the time of repurchase or
replacement. The determination of the Master Servicer as to whether
the conditions set forth above have been satisfied shall be conclusive
and binding in the absence of manifest error. The Master Servicer will
be entitled to cause to be delivered, or direct Seller to (in which
case Seller shall) cause to be delivered to the Master Servicer, an
Appraisal of any or all of the related Mortgaged Properties for
purposes of determining whether the condition set forth in clause (ii)
above has been satisfied, in each case at the expense of Seller if the
scope and cost of the Appraisal is approved by Seller (such approval
not to be unreasonably withheld).
5.5. With respect to any Defective Mortgage Loan, to the extent that Seller
is required to repurchase or substitute for such Defective Mortgage
Loan (each, a "Repurchased Loan") in the manner prescribed above while
the Trustee (as assignee of Purchaser) continues to hold any Crossed
Mortgage Loan, Seller and Purchaser hereby agree to forebear from
enforcing any remedies against the other's Primary Collateral but may
exercise remedies against the Primary Collateral securing their
respective Mortgage Loans, including with respect to the Trustee, the
Primary Collateral securing the 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.
If the exercise of remedies by one party would impair the ability of
the other party to exercise its remedies with respect to the Primary
Collateral securing the Mortgage Loan or Mortgage Loans held by such
party, then both parties shall forbear from exercising such remedies
until the loan documents evidencing and securing the relevant Mortgage
Loans can be modified in a manner that complies with the Pooling and
Servicing Agreement to remove the threat of impairment as a result of
the exercise of remedies. Any reserve or other cash collateral or
letters of credit securing the Crossed Mortgage Loans shall be
allocated between such Mortgage Loans in accordance with the Mortgage
Loan documents, or otherwise on a pro rata basis based upon their
outstanding Principal Balances. All other terms of the Mortgage Loans
shall remain in full force and effect, without any modification
thereof. The Mortgagors set forth on Schedule B hereto are intended
third-party beneficiaries of the provisions set forth in this
paragraph and the preceding paragraph. The provisions of this
paragraph and the preceding paragraph may not be modified with respect
to any Mortgage Loan without the related Mortgagor's consent.
5.6. Any of the following document defects shall be conclusively presumed
materially and adversely to affect the interests of Certificateholders
in a Mortgage Loan and be a Material Document Defect: (a) the absence
from the Mortgage File of the original signed Mortgage Note, unless
the Mortgage File contains a signed lost note affidavit and indemnity
that appears to be regular on its face; (b) the absence from the
Mortgage File of the original signed Mortgage that appears to be
regular on its face, unless there is included in the Mortgage File a
certified copy of the Mortgage by the local authority with which the
Mortgage was recorded; or (c) the absence from the Mortgage File of
the item specified in paragraph 2.2.8. If any of the foregoing
Material Document Defects is discovered by the Custodian (or the
Trustee if there is no Custodian), the Trustee (or as set forth in
Section 2.3(a) of the Pooling and Servicing Agreement, the Master
Servicer) will take the steps described elsewhere in this Section,
including the giving of notices to the Rating Agencies and the parties
hereto and making demand upon Seller for the cure of the Material
Document Defect or repurchase or replacement of the related Mortgage
Loan.
5.7. If Seller disputes that a Material Document Defect or Material Breach
exists with respect to a Mortgage Loan or otherwise refuses (i) to
effect a correction or cure of such Material Document Defect or
Material Breach, (ii) to repurchase the affected Mortgage Loan from
Purchaser or its assignee or (iii) to replace such Mortgage Loan with
a Qualifying Substitute Mortgage Loan, each in accordance with this
Agreement, then provided that (i) the period of time provided for
Seller to correct, repurchase or cure has expired and (ii) the
Mortgage Loan is then in default and is then a Specially Serviced
Mortgage Loan, the Special Servicer may, subject to the Servicing
Standard, modify, work-out or foreclose, sell or otherwise liquidate
(or permit the liquidation of) the Mortgage Loan pursuant to Sections
9.5, 9.12, 9.15 and 9.36, as applicable, of the Pooling and Servicing
Agreement, while pursuing the repurchase claim. Seller acknowledges
and agrees that any modification of the Mortgage Loan pursuant to a
work-out shall not constitute a defense to any repurchase claim nor
shall such modification and work-out change the Purchase Price due
from Seller for any repurchase claim. In the event of any such
modification and work-out, Seller shall be obligated to repurchase the
Mortgage Loan as modified and the Purchase Price shall include any
Work-Out Fee paid to the Special Servicer up to the date of repurchase
plus the present value (calculated at a discount rate equal to the
applicable Mortgage Rate) of the Work-Out Fee that would have been
payable to the Special Servicer in respect of such Mortgage Loan if
the Mortgage Loan performed in accordance with its terms to its
Maturity Date, provided that no amount shall be paid by Seller in
respect of any Work-Out Fee if a Liquidation Fee already comprises a
portion of the Purchase Price.
5.8. Seller shall be notified promptly and in writing by (i) the Trustee of
any notice that it receives that an Option Holder intends to exercise
its Option to purchase the Mortgage Loan in accordance with and as
described in Section 9.36 of the Pooling and Servicing Agreement and
(ii) the Special Servicer of any offer that it receives to purchase
the applicable REO Property, each in connection with such liquidation.
Upon the receipt of such notice by Seller, Seller shall then have the
right to purchase the related Mortgage Loan or REO Property, as
applicable, from the Trust at a purchase price equal to, in the case
of clause (i) of the immediately preceding sentence, the Option
Purchase Price or, in the case of clause (ii) of the immediately
preceding sentence, the amount of such offer. Notwithstanding anything
to the contrary contained in this Agreement or in the Pooling and
Servicing Agreement, the right of any Option Holder to purchase such
Mortgage Loan shall be subject and subordinate to Seller's right to
purchase such Mortgage Loan as described in the immediately preceding
sentence. Seller shall have five Business Days to notify the Trustee
or Special Servicer, as applicable, of its intent to so purchase the
Mortgage Loan or related REO Property from the date that it was
notified of such intention to exercise such Option or of such offer.
The Special Servicer shall be obligated to provide Seller with any
appraisal or other third party reports relating to the Mortgaged
Property within its possession to enable Seller to evaluate the
Mortgage Loan or REO Property. Any sale of the Mortgage Loan, or
foreclosure upon such Mortgage Loan and sale of the REO Property, to a
Person other than Seller shall be without (i) recourse of any kind
(either express or implied) by such Person against Seller and (ii)
representation or warranty of any kind (either express or implied) by
Seller to or for the benefit of such Person.
5.9. The fact that a Material Document Defect or Material Breach is not
discovered until after foreclosure (but in all instances prior to the
sale of the related REO Property or Mortgage Loan) shall not prejudice
any claim against Seller for repurchase of the REO Mortgage Loan or
REO Property. In such an event, the Master Servicer shall notify
Seller of the discovery of the Material Document Defect or Material
Breach and Seller shall have 90 days to correct or cure such Material
Document Defect or Material Breach or purchase the REO Property at the
Purchase Price. If Seller fails to correct or cure the Material
Document Defect or Material Breach or purchase the REO Property, then
the provisions above regarding notice of offers related to such REO
Property and Seller's right to purchase such REO Property shall apply.
After a final liquidation of the Mortgage Loan or REO Mortgage Loan,
if a court of competent jurisdiction issues a final order after the
expiration of any applicable appeal period that Seller is or was
obligated to repurchase the related Mortgage Loan or REO Mortgage Loan
(a "Final Judicial Determination") or Seller otherwise accepts
liability, then, but in no event later than the Termination of the
Trust pursuant to Section 9.30 of the Pooling and Servicing Agreement,
Seller will be obligated to pay to the Trust the difference between
any Liquidation Proceeds received upon such liquidation in accordance
with the Pooling and Servicing Agreement (including those arising from
any sale to Seller) and the Purchase Price. In the case of the East
Towne Mall Mortgage Loan and the West Towne Mall Mortgage Loan, the
Seller's obligation shall be the Seller's pro rata share based on
percentage interest as of the date hereof of the East Towne Mall
Mortgage Loan or the West Towne Mall Mortgage Loan, as applicable,
sold by the Seller hereunder.
5.10. Notwithstanding anything to the contrary contained herein, in
connection with any sale or other liquidation of a Mortgage Loan or
REO Property as described in this Section 5, the Special Servicer
shall not receive a Liquidation Fee from Seller (but may collect such
Liquidation Fee from the related Liquidation Proceeds as otherwise
provided herein); provided, however, that in the event Seller is
obligated to repurchase the Mortgage Loan or REO Mortgaged Property
after a final liquidation of such Mortgage Loan or REO Property
pursuant to the immediately preceding paragraph, an amount equal to
any Liquidation Fee (calculated on the basis of Liquidation Proceeds)
payable to the Special Servicer shall be included in the definition of
"Purchase Price" in respect of such Mortgage Loan or REO Mortgaged
Property. Except as expressly set forth above, no Liquidation Fee
shall be payable in connection with a repurchase of a Mortgage Loan by
Seller.
5.11. The obligations of Seller set forth in this Section 5 to cure a
Material Document Defect or a Material Breach or repurchase or replace
a defective Mortgage Loan constitute the sole remedies of Purchaser or
its assignees with respect to a Material Document Defect or Material
Breach in respect of an outstanding Mortgage Loan; provided, that this
limitation shall not in any way limit Purchaser's rights or remedies
upon breach of any other representation or warranty or covenant by
Seller set forth in this Agreement (other than those set forth in
Exhibit 2).
5.12. Notwithstanding the foregoing, in the event that there is a breach of
the representations and warranties set forth in paragraph 39 in
Exhibit 2 hereto, and as a result the payments, by a Mortgagor, of
reasonable costs and expenses associated with the defeasance or
assumption of a Mortgage Loan are insufficient causing the Trust to
incur an Additional Trust Expense in an amount equal to such
reasonable costs and expenses not paid by such Mortgagor, Seller
hereby covenants and agrees to reimburse the Trust within 90 days of
the receipt of notice of such breach in an amount sufficient to avoid
such Additional Trust Expense. In the case of the East Towne Mall
Mortgage Loan and the West Towne Mall Mortgage Loan, the Seller's
obligation shall be the Seller's pro rata share based on percentage
interest as of the date hereof of the East Towne Mall Mortgage Loan or
the West Towne Mall Mortgage Loan, as applicable, sold by the Seller
hereunder. The parties hereto acknowledge that such reimbursement
shall be Seller's sole obligation with respect to the breach discussed
in the previous sentence.
5.13. The Pooling and Servicing Agreement shall provide that the Trustee
(or the Master Servicer or the Special Servicer on its behalf) shall
give written notice promptly (but in any event within three Business
Days) to Seller of its determination that any Material Document Defect
or Material Breach exists (which determination shall, absent evidence
to the contrary, be presumed to be no earlier than three Business Days
prior to delivery of the notice) and prompt written notice to Seller
in the event that any Mortgage Loan becomes a Specially Serviced
Mortgage Loan (as defined in the Pooling and Servicing Agreement).
5.14. If Seller repurchases any Mortgage Loan pursuant to this Section 5,
Purchaser or its assignee, following receipt by the Trustee of the
Purchase Price therefor, promptly shall deliver or cause to be
delivered to Seller all Mortgage Loan documents with respect
to such Mortgage Loan, and each document that constitutes a part of
the Mortgage File that was endorsed or assigned to the Trustee shall
be endorsed and assigned to Seller in the same manner such that Seller
shall be vested with legal and beneficial title to such Mortgage Loan,
in each case without recourse, including any property acquired in
respect of such Mortgage Loan or proceeds of any insurance policies
with respect thereto.
5.15. In the event that either East Towne Mall Mortgage Loan or the West
Towne Mall Mortgage Loan is repurchased pursuant to this Section 5,
and the other related mortgage note of the applicable Mortgage Loan is
not repurchased by Xxxxxx Xxxxxxx Mortgage Capital Inc. and such
Mortgage Loan remains in the Trust, the Seller and the Purchaser
hereby agree that the provisions in Section 8.32 of the Pooling and
Servicing Agreement shall govern the servicing and administration of
such Mortgage Loan, the Repurchased Loan, and the other related
mortgage note, and the Seller's and the Purchaser's rights and
obligations with respect thereto.
6. CLOSING.
6.1. The closing of the sale of the Mortgage Loans shall be held at the
offices of Xxxxxx & Xxxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000
at 9:00 a.m., New York time, on the Closing Date. The closing shall be
subject to each of the following conditions:
6.1.1. All of the representations and warranties of Seller and Purchaser
specified in Section 4 hereof (including, without limitation, the
representations and warranties set forth on Exhibit 2 hereto) shall be true and
correct as of the Closing Date (to the extent of the standard, if any, set forth
in each representation and warranty).
6.1.2. All Closing Documents specified in Section 7 hereof, in such forms
as are agreed upon and reasonably acceptable to Seller or Purchaser, as
applicable, shall be duly executed and delivered by all signatories as required
pursuant to the respective terms thereof.
6.1.3. Seller shall have delivered and released to Purchaser or its
designee all documents required to be delivered to Purchaser as of the Closing
Date pursuant to Section 2 hereof.
6.1.4. The result of the examination and audit performed by Purchaser and
its affiliates pursuant to Section 3 hereof shall be satisfactory to Purchaser
and its affiliates in their sole determination and the parties shall have agreed
to the form and contents of Seller's Information to be disclosed in the
Memorandum and the Prospectus Supplement.
6.1.5. All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with, and
Seller and Purchaser shall have the ability to comply with all terms and
conditions and perform all duties and obligations required to be complied with
or performed after the Closing Date.
6.1.6. Seller shall have paid all fees and expenses payable by it to
Purchaser pursuant to Section 8 hereof.
6.1.7. The Certificates to be so rated shall have been assigned ratings by
each Rating Agency no lower than the ratings specified for each such Class in
the Memorandum and the Prospectus Supplement.
6.1.8. No Underwriter shall have terminated the Underwriting Agreement and
none of the Initial Purchasers shall have terminated the Certificate Purchase
Agreement, and neither the Underwriters nor the Initial Purchasers shall have
suspended, delayed or otherwise cancelled the Closing Date.
6.1.9. Seller shall have received the purchase price for the Mortgage Loans
pursuant to Section 1 hereof.
6.2. Each party agrees to use its best efforts to perform its respective
obligations hereunder in a manner that will enable Purchaser to
purchase the Mortgage Loans on the Closing Date.
CLOSING DOCUMENTS. The Closing Documents shall consist of the
following:
6.3. This Agreement duly executed by Purchaser and Seller.
6.4. A certificate of Seller, executed by a duly authorized officer of
Seller and dated the Closing Date, and upon which Purchaser and its
successors and assigns may rely, to the effect that: (i) the
representations and warranties of Seller in this Agreement are true
and correct in all material respects on and as of the Closing Date
with the same force and effect as if made on the Closing Date,
provided that any representations and warranties made as of a
specified date shall be true and correct as of such specified date;
and (ii) Seller has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied on or prior to the
Closing Date.
6.5. True, complete and correct copies of Seller's articles of organization
and by-laws.
6.6. A certificate of existence for Seller from the Secretary of State of
New York dated not earlier than 30 days prior to the Closing Date.
6.7. A certificate of the Secretary or Assistant Secretary of Seller, dated
the Closing Date, and upon which Purchaser may rely, to the effect
that each individual who, as an officer or representative of Seller,
signed this Agreement or any other document or certificate delivered
on or before the Closing Date in connection with the transactions
contemplated herein, was at the respective times of such signing and
delivery, and is as of the Closing Date, duly elected or appointed,
qualified and acting as such officer or representative, and the
signatures of such persons appearing on such documents and
certificates are their genuine signatures.
6.8. An opinion of counsel (which, other than as to the opinion described
in paragraph 7.6.6 below, may be in-house counsel) to Seller, dated
the Closing Date, substantially to the effect of the following (with
such changes and modifications as Purchaser may approve and subject to
such counsel's reasonable qualifications):
6.8.1. Seller is validly existing under New York law and has full corporate
power and authority to enter into and perform its obligations under this
Agreement.
6.8.2. This Agreement has been duly authorized, executed and delivered by
Seller.
6.8.3. No consent, approval, authorization or order of any federal court or
governmental agency or body is required for the consummation by Seller of the
transactions contemplated by the terms of this Agreement except any approvals as
have been obtained.
6.8.4. Neither the execution, delivery or performance of this Agreement by
Seller, nor the consummation by Seller of any of the transactions contemplated
by the terms of this Agreement (A) conflicts with or results in a breach or
violation of, or constitutes a default under, the organizational documents of
Seller, (B) to the knowledge of such counsel, constitutes a default under any
term or provision of any material agreement, contract, instrument or indenture,
to which Seller is a party or by which it or any of its assets is bound or
results in the creation or imposition of any lien, charge or encumbrance upon
any of its property pursuant to the terms of any such indenture, mortgage,
contract or other instrument, other than pursuant to this Agreement, or (C)
conflicts with or results in a breach or violation of any law, rule, regulation,
order, judgment, writ, injunction or decree of any court or governmental
authority having jurisdiction over Seller or its assets, except where in any of
the instances contemplated by clauses (B) or (C) above, any conflict, breach or
default, or creation or imposition of any lien, charge or encumbrance, will not
have a material adverse effect on the consummation of the transactions
contemplated hereby by Seller or materially and adversely affect its ability to
perform its obligations and duties hereunder or result in any material adverse
change in the business, operations, financial condition, properties or assets of
Seller, or in any material impairment of the right or ability of Seller to carry
on its business substantially as now conducted.
6.8.5. To his or her knowledge, there are no legal or governmental actions,
investigations or proceedings pending to which Seller is a party, or threatened
against Seller, (a) asserting the invalidity of this Agreement or (b) which
materially and adversely affect the performance by Seller of its obligations
under, or the validity or enforceability of, this Agreement.
6.8.6. This Agreement is a valid, legal and binding agreement of Seller,
enforceable against Seller in accordance with its terms, except as such
enforcement may be limited by (1) laws relating to bankruptcy, insolvency,
reorganization, receivership or moratorium, (2) other laws relating to or
affecting the rights of creditors generally, (3) general equity principles
(regardless of whether such enforcement is considered in a proceeding in equity
or at law) or (4) public policy considerations underlying the securities laws,
to the extent that such public policy considerations limit the enforceability of
the provisions of this Agreement that purport to provide indemnification from
liabilities under applicable securities laws.
Such opinion may express its reliance as to factual matters on, among
other things specified in such opinion, the representations and warranties made
by, and on certificates or other documents furnished by officers of, the parties
to this Agreement.
In rendering the opinions expressed above, such counsel may limit such
opinions to matters governed by the federal laws of the United States and the
corporate laws of the State of Delaware and the State of New York, as
applicable.
6.9. Such other opinions of counsel as any Rating Agency may request in
connection with the sale of the Mortgage Loans by Seller to Purchaser
or Seller's execution and delivery of, or performance under, this
Agreement.
6.10. A letter from Deloitte & Touche, certified public accountants, dated
the date hereof, to the effect that they have performed certain
specified procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature set
forth in the Memorandum and the Prospectus Supplement agrees with the
records of Seller.
6.11. Such further certificates, opinions and documents as Purchaser may
reasonably request.
6.12. An officer's certificate of Purchaser, dated as of the Closing Date,
with the resolutions of Purchaser authorizing the transactions
described herein attached thereto, together with certified copies of
the charter, by-laws and certificate of good standing of Purchaser
dated not earlier than 30 days prior to the Closing Date.
6.13. Such other certificates of Purchaser's officers or others and such
other documents to evidence fulfillment of the conditions set forth in
this Agreement as Seller or its counsel may reasonably request.
6.14. An executed Xxxx of Sale in the form attached hereto as Exhibit 4.
COSTS. Seller shall pay Purchaser the costs and expenses as agreed
upon by Seller and Purchaser in a separate Letter of Understanding entered into
in connection with this Agreement and the issuance of the Certificates.
NOTICES. All communications provided for or permitted hereunder shall
be in writing and shall be deemed to have been duly given if (a) personally
delivered, (b) mailed by registered or certified mail, postage prepaid and
received by the addressee, (c) sent by express courier delivery service and
received by the addressee, or (d) transmitted by telex or facsimile transmission
(or any other type of electronic transmission agreed upon by the parties) and
confirmed by a writing delivered by any of the means described in (a), (b) or
(c), if (i) to Purchaser, addressed to Bear Xxxxxxx Commercial Mortgage
Securities Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: J.
Xxxxxxxxxxx Xxxxxxx, with a copy to Bear Xxxxxxx Commercial Mortgage Securities
Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Legal Department
(so such other address as may hereafter be furnished in writing by Purchase) or
if (ii) to Seller, addressed to Seller at Xxxxxx Xxxxxxx Mortgage Capital Inc.,
0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxxxx (or to such
other address as Seller may designate in writing) with a copy to the attention
of Xxxxxxxx Xxxxx, Esq. at 0000 Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
SEVERABILITY OF PROVISIONS. Any part, provision, representation,
warranty or covenant of this Agreement that is prohibited or that is held to be
void or unenforceable shall be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof. Any part,
provision, representation, warranty or covenant of this Agreement that is
prohibited or unenforceable or is held to be void or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. To the extent permitted by applicable law, the parties
hereto waive any provision of law that prohibits or renders void or
unenforceable any provision hereof.
FURTHER ASSURANCES. Seller and Purchaser each agree to execute and
deliver such instruments and take such actions as the other may, from time to
time, reasonably request in order to effectuate the purpose and to carry out the
terms of this Agreement and the Pooling and Servicing Agreement.
SURVIVAL. Each party hereto agrees that the representations,
warranties and agreements made by it herein and in any certificate or other
instrument delivered pursuant hereto shall be deemed to be relied upon by the
other party, notwithstanding any investigation heretofore or hereafter made by
the other party or on its behalf, and that the representations, warranties and
agreements made by such other party herein or in any such certificate or other
instrument shall survive the delivery of and payment for the Mortgage Loans and
shall continue in full force and effect, notwithstanding any restrictive or
qualified endorsement on the Mortgage Notes and notwithstanding subsequent
termination of this Agreement.
GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND
RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK. THE
PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK
GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
BENEFITS OF MORTGAGE LOAN PURCHASE AGREEMENT. This Agreement shall
inure to the benefit of and shall be binding upon Seller, Purchaser and their
respective successors, legal representatives, and permitted assigns, and nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any other person any legal or equitable right, remedy or claim under or in
respect of this Agreement, or any provisions herein contained, this Agreement
and all conditions and provisions hereof being intended to be and being for the
sole and exclusive benefit of such persons and for the benefit of no other
person except that the rights and obligations of Purchaser pursuant to Sections
2, 4.1 (other than clause 4.1.7), 5, 9, 10, 11, 12 and 13 hereof may be assigned
to the Trustee as may be required to effect the purposes of the Pooling and
Servicing Agreement and, upon such assignment, the Trustee shall succeed to the
rights and obligations hereunder of Purchaser. No owner of a Certificate issued
pursuant to the Pooling and Servicing Agreement shall be deemed a successor or
permitted assigns because of such ownership.
MISCELLANEOUS. This Agreement may be executed in two or more
counterparts, each of which when so executed and delivered shall be an original,
but all of which together shall constitute one and the same instrument. Neither
this Agreement nor any term hereof may be changed, waived, discharged or
terminated orally, but only by an instrument in writing signed by the party
against whom enforcement of the change, waiver, discharge or termination is
sought. The headings in this Agreement are for purposes of reference only and
shall not limit or otherwise affect the meaning hereof. The rights and
obligations of Seller under this Agreement shall not be assigned by Seller
without the prior written consent of Purchaser, except that any person into
which Seller may be merged or consolidated, or any corporation resulting from
any merger, conversion or consolidation to which Seller is a party, or any
person succeeding to the entire business of Seller shall be the successor to
Seller hereunder.
ENTIRE AGREEMENT. This Agreement contains the entire agreement and
understanding between the parties hereto with respect to the subject matter
hereof (other than the Letter of Understanding (solely with respect to those
portions of this Agreement that are not assigned to the Trustee), the
Indemnification Agreement and the Pooling and Servicing Agreement), and
supersedes all prior and contemporaneous agreements, understandings, inducements
and conditions, express or implied, oral or written, of any nature whatsoever
with respect to the subject matter hereof. The express terms hereof control and
supersede any course of performance or usage of the trade inconsistent with any
of the terms hereof.
IN WITNESS WHEREOF, Purchaser and Seller have caused this Agreement to
be executed by their respective duly authorized officers as of the date first
above written.
XXXXXX XXXXXXX MORTGAGE CAPITAL INC.
By: /s/
------------------------------------
Name: Xxxxxx X. Friend
------------------------------
Title: V.P.
-----------------------------
BEAR XXXXXXX COMMERCIAL MORTGAGE
SECURITIES INC.
By: /s/
------------------------------------
Name: Xxxxxxx X. Xxxxxx Xx.
------------------------------
Title: V.P.
-----------------------------
EXHIBIT 1
MORTGAGE LOAN SCHEDULE
EXHIBIT 2
REPRESENTATIONS AND WARRANTIES REGARDING
INDIVIDUAL MORTGAGE LOANS
1. Mortgage Loan Schedule. The information set forth in the Mortgage
Loan Schedule is complete, true and correct in all material respects as of the
date of this Agreement and as of the Cut-Off Date.
2. Whole Loan; Ownership of Mortgage Loans. Each Mortgage Loan is a
whole loan and not a participation interest in a mortgage loan. Immediately
prior to the transfer to Purchaser of the Mortgage Loans, Seller had good title
to, and was the sole owner of, each Mortgage Loan. Seller has full right, power
and authority to transfer and assign each of the Mortgage Loans to or at the
direction of Purchaser and has validly and effectively conveyed (or caused to be
conveyed) to Purchaser or its designee all of Seller's legal and beneficial
interest in and to the Mortgage Loans free and clear of any and all pledges,
liens, charges, security interests and/or other encumbrances. The sale of the
Mortgage Loans to Purchaser or its designee does not require Seller to obtain
any governmental or regulatory approval or consent that has not been obtained.
3. Payment Record. No scheduled payment of principal and interest
under any Mortgage Loan was 30 days or more past due as of the Cut-Off Date, and
no Mortgage Loan was 30 days or more delinquent in the twelve-month period
immediately preceding the Cut-Off Date.
4. Lien; Valid Assignment. The Mortgage related to and delivered in
connection with each Mortgage Loan constitutes a valid and, subject to the
exceptions set forth in paragraph 13 below, enforceable first priority lien upon
the related Mortgaged Property, prior to all other liens and encumbrances,
except for (a) the lien for current real estate taxes and assessments not yet
due and payable, (b) covenants, conditions and restrictions, rights of way,
easements and other matters that are of public record and/or are referred to in
the related lender's title insurance policy, (c) exceptions and exclusions
specifically referred to in such lender's title insurance policy, (d) other
matters to which like properties are commonly subject, none of which matters
referred to in clauses (b), (c) or (d), individually or in the aggregate,
materially interferes with the security intended to be provided by such
Mortgage, the marketability or current use of the Mortgaged Property or the
current ability of the Mortgaged Property to generate operating income
sufficient to service the Mortgage Loan debt and (e) if such Mortgage Loan is
cross-collateralized with any other Mortgage Loan, the lien of the Mortgage for
such other Mortgage Loan (the foregoing items (a) through (e), the "Permitted
Encumbrances"). The related assignment of such Mortgage executed and delivered
in favor of the Trustee is in recordable form and constitutes a legal, valid and
binding assignment, sufficient to convey to the assignee named therein all of
the assignor's right, title and interest in, to and under such Mortgage. Such
Mortgage, together with any separate security agreements, chattel mortgages or
equivalent instruments, establishes and creates a valid and, subject to the
exceptions set forth in paragraph 13 below, enforceable security interest in
favor of the holder thereof in all of the related Mortgagor's personal property
used in, and reasonably necessary to operate, the related Mortgaged Property. In
the case of a Mortgaged Property operated as a hotel or an assisted living
facility, the Mortgagor's personal property includes all personal property that
a prudent
mortgage lender making a similar Mortgage Loan would deem reasonably
necessary to operate the related Mortgaged Property as it is currently being
operated. A Uniform Commercial Code financing statement has been filed and/or
recorded in all places necessary to perfect a valid security interest in such
personal property, to the extent a security interest may be so created therein,
and such security interest is a first priority security interest, subject to any
prior purchase money security interest in such personal property and any
personal property leases applicable to such personal property. Notwithstanding
the foregoing, no representation is made as to the perfection of any security
interest in rents or other personal property to the extent that possession or
control of such items or actions other than the filing of Uniform Commercial
Code financing statements are required in order to effect such perfection.
5. Assignment of Leases and Rents. The Assignment of Leases related to
and delivered in connection with each Mortgage Loan establishes and creates a
valid, subsisting and, subject to the exceptions set forth in paragraph 13
below, enforceable first priority lien and first priority security interest in
the related Mortgagor's interest in all leases, sub-leases, licenses or other
agreements pursuant to which any person is entitled to occupy, use or possess
all or any portion of the real property subject to the related Mortgage, and
each assignor thereunder has the full right to assign the same. The related
assignment of any Assignment of Leases not included in a Mortgage has been
executed and delivered in favor of the Trustee and is in recordable form and
constitutes a legal, valid and binding assignment, sufficient to convey to the
assignee named therein all of the assignor's right, title and interest in, to
and under such Assignment of Leases.
6. Mortgage Status; Waivers and Modifications. No Mortgage has been
satisfied, cancelled, rescinded or subordinated in whole or in part, and the
related Mortgaged Property has not been released from the lien of such Mortgage,
in whole or in part (except for partial reconveyances of real property that are
set forth on Schedule A to Exhibit 2), nor has any instrument been executed that
would effect any such satisfaction, cancellation, subordination, rescission or
release, in any manner that, in each case, materially adversely affects the
value of the related Mortgaged Property. None of the terms of any Mortgage Note,
Mortgage or Assignment of Leases has been impaired, waived, altered or modified
in any respect, except by written instruments, all of which are included in the
related Mortgage File.
7. Condition of Property; Condemnation. (i) With respect to the
Mortgaged Properties securing the Mortgage Loans that were the subject of an
engineering report within 18 months prior to the Cut-Off Date as set forth on
Schedule A to this Exhibit 2, each Mortgaged Property is, to Seller's knowledge,
free and clear of any damage (or adequate reserves therefor have been
established) that would materially and adversely affect its value as security
for the related Mortgage Loan, and (ii) with respect to the Mortgaged Properties
securing the Mortgage Loans that were not the subject of an engineering report
within 18 months prior to the Cut-Off Date as set forth on Schedule A to this
Exhibit 2, each Mortgaged Property is in good repair and condition and all
building systems contained therein are in good working order (or adequate
reserves therefor have been established) and each Mortgaged Property is free of
structural defects, in each case, that would materially and adversely affect its
value as security for the related Mortgage Loan as of the date hereof. Seller
has received no notice of the commencement of any proceeding for the
condemnation of all or any material portion of any Mortgaged Property. To
Seller's knowledge (based on surveys and/or title insurance obtained in
connection with the origination of the Mortgage Loans), as of the date of the
origination of each Mortgage
Loan, all of the material improvements on the related Mortgaged Property that
were considered in determining the appraised value of the Mortgaged Property lay
wholly within the boundaries and building restriction lines of such property,
except for encroachments that are insured against by the lender's title
insurance policy referred to herein or that do not materially and adversely
affect the value or marketability of such Mortgaged Property, and no
improvements on adjoining properties materially encroached upon such Mortgaged
Property so as to materially and adversely affect the value or marketability of
such Mortgaged Property, except those encroachments that are insured against by
the Title Policy referred to herein.
8. Title Insurance. Each Mortgaged Property is covered by an American
Land Title Association (or an equivalent form of) lender's title insurance
policy or a marked-up title insurance commitment (on which the required premium
has been paid) which evidences such title insurance policy (the "Title Policy")
in the original principal amount of the related Mortgage Loan after all advances
of principal. Each Title Policy insures that the related Mortgage is a valid
first priority lien on such Mortgaged Property, subject only to Permitted
Encumbrances. Each Title Policy (or, if it has yet to be issued, the coverage to
be provided thereby) is in full force and effect, all premiums thereon have been
paid and no material claims have been made thereunder and no claims have been
paid thereunder. No holder of the related Mortgage has done, by act or omission,
anything that would materially impair the coverage under such Title Policy.
Immediately following the transfer and assignment of the related Mortgage Loan
to the Trustee, such Title Policy (or, if it has yet to be issued, the coverage
to be provided thereby) will inure to the benefit of the Trustee without the
consent of or notice to the insurer. To Seller's knowledge, the insurer issuing
such Title Policy is qualified to do business in the jurisdiction in which the
related Mortgaged Property is located.
9. No Holdbacks. The proceeds of each Mortgage Loan have been fully
disbursed and there is no obligation for future advances with respect thereto.
With respect to each Mortgage Loan, any and all requirements as to completion of
any on-site or off-site improvement and as to disbursements of any funds
escrowed for such purpose that were to have been complied with on or before the
Closing Date have been complied with, or any such funds so escrowed have not
been released.
10. Mortgage Provisions. The Mortgage Note or Mortgage for each
Mortgage Loan, together with applicable state law, contains customary and
enforceable provisions (subject to the exceptions set forth in paragraph 13)
such as to render the rights and remedies of the holder thereof adequate for the
practical realization against the related Mortgaged Property of the principal
benefits of the security intended to be provided thereby.
11. Trustee under Deed of Trust. If any Mortgage is a deed of trust,
(1) a trustee, duly qualified under applicable law to serve as such, is properly
designated and serving under such Mortgage, and (2) no fees or expenses are
payable to such trustee by Seller, Purchaser or any transferee thereof except in
connection with a trustee's sale after default by the related Mortgagor or in
connection with any full or partial release of the related Mortgaged Property or
related security for the related Mortgage Loan.
12. Environmental Conditions.
(i) Except as set forth on Schedule A to this Exhibit 2, with respect to
the Mortgaged Properties securing the Mortgage Loans that were the
subject of an environmental site assessment within 18 months prior to
the Cut-Off Date, an environmental site assessment prepared to ASTM
standards, or an update of a previous such report, was performed with
respect to each Mortgaged Property in connection with the origination
or the sale of the related Mortgage Loan, a report of each such
assessment (or the most recent assessment with respect to each
Mortgaged Property) (an "Environmental Report") has been delivered to,
or on behalf of, Purchaser or its designee, and Seller has no
knowledge of any material and adverse environmental condition or
circumstance affecting any Mortgaged Property that was not disclosed
in such report. Each Mortgage requires the related Mortgagor to comply
with all applicable federal, state and local environmental laws and
regulations. Where such assessment disclosed the existence of a
material and adverse environmental condition or circumstance affecting
any Mortgaged Property, (i) a party not related to the Mortgagor was
identified as the responsible party for such condition or circumstance
or (ii) environmental insurance covering such condition was obtained
or must be maintained until the condition is remediated or (iii) the
related Mortgagor was required either to provide additional security
that was deemed to be sufficient by the originator in light of the
circumstances and/or to establish an operations and maintenance plan.
EACH MORTGAGE LOAN SET FORTH ON SCHEDULE C TO THIS EXHIBIT 2 (EACH, A
"SCHEDULE C LOAN") IS THE SUBJECT OF A SECURED CREDITOR IMPAIRED
PROPERTY POLICY, ISSUED BY THE ISSUER SET FORTH ON SCHEDULE C (THE
"POLICY ISSUER") AND EFFECTIVE AS OF THE DATE THEREOF (THE
"ENVIRONMENTAL INSURANCE POLICY"). EXCEPT AS SET FORTH ON SCHEDULE A
TO THIS EXHIBIT 2, WITH RESPECT TO EACH SCHEDULE C LOAN, (I) THE
ENVIRONMENTAL INSURANCE POLICY IS IN FULL FORCE AND EFFECT, (ii)(A) A
PROPERTY CONDITION OR ENGINEERING REPORT WAS PREPARED WITH RESPECT TO
LEAD BASED PAINT ("LBP") AND RADON GAS ("RG") AT EACH MORTGAGED
PROPERTY THAT IS USED AS A MULTIFAMILY DWELLING, AND WITH RESPECT TO
ASBESTOS CONTAINING MATERIALS ("ACM") AT EACH RELATED MORTGAGED
PROPERTY AND AND (B) IF such REPORT DISCLOSED THE EXISTENCE OF A
MATERIAL AND ADVERSE LBP, ACM OR RG environmental condition or
circumstance AFFECTING THE RELATED MORTGAGED PROPERTY, THE RELATED
MORTGAGOR (A) WAS REQUIRED TO REMEDIATE THE IDENTIFIED CONDITION PRIOR
TO CLOSING THE MORTGAGE LOAN OR PROVIDE ADDITIONAL SECURITY, OR
ESTABLISH WITH THE LENDER A RESERVE FROM LOAN PROCEEDS, IN AN AMOUNT
DEEMED TO BE SUFFICIENT BY SELLER FOR THE REMEDIATION OF THE PROBLEM
AND/OR (B) AGREED IN THE MORTGAGE LOAN DOCUMENTS TO ESTABLISH AN
OPERATIONS AND MAINTENANCE PLAN AFTER THE CLOSING OF THE MORTGAGE
LOAN, (iii) ON the EFFECTIVE DATE OF THE ENVIRONMENTAL INSURANCE
POLICY, SELLER AS originator HAD NO KNOWLEDGE OF ANY MATERIAL AND
ADVERSE ENVIRONMENTAL CONDITION OR CIRCUMSTANCE AFFECTING THE
MORTGAGED PROPERTY (OTHER THAN THE EXISTENCE OF LBP, ACM OR RG) THAT
WAS NOT DISCLOSED TO THE POLICY ISSUER in ONE OR MORE of the
FOLLOWING: (A) THE APPLICATION FOR INSURANCE, (B) A BORROWER
QUESTIONNAIRE THAT WAS PROVIDED to THE POLICY ISSUER OR (C) an
ENGINEERING OR OTHER REPORT PROVIDED TO THE POLICY ISSUER AND (IV) THE
PREMIUM OF ANY ENVIRONMENTAL INSURANCE POLICY HAS BEEN PAID
THROUGH THE MATURITY OF THE POLICY'S TERM AND THE TERM OF SUCH POLICY
EXTENDS AT LEAST FIVE YEARS BEYOND THE MATURITY OF THE MORTGAGE LOAN.
(II) With respect to the Mortgaged Properties securing the Mortgage Loans
that were not the subject of an environmental site assessment prepared
to ASTM standards within 18 months prior to the Cut-Off Date as set
forth on Schedule A to this Exhibit 2, (i) no Hazardous Material is
present on such Mortgaged Property such that (1) the value of such
Mortgaged Property is materially and adversely affected or (2) under
applicable federal, state or local law, (a) such Hazardous Material
could be required to be eliminated at a cost materially and adversely
affecting the value of the Mortgaged Property before such Mortgaged
Property could be altered, renovated, demolished or transferred or (b)
the presence of such Hazardous Material could (upon action by the
appropriate governmental authorities) subject the owner of such
Mortgaged Property, or the holders of a security interest therein, to
liability for the cost of eliminating such Hazardous Material or the
hazard created thereby at a cost materially and adversely affecting
the value of the Mortgaged Property, and (ii) such Mortgaged Property
is in material compliance with all applicable federal, state and local
laws pertaining to Hazardous Materials or environmental hazards, any
noncompliance with such laws does not have a material adverse effect
on the value of such Mortgaged Property and neither Seller nor, to
Seller's knowledge, the related Mortgagor or any current tenant
thereon, has received any notice of violation or potential violation
of any such law.
"Hazardous Materials" means gasoline, petroleum products, explosives,
radioactive materials, polychlorinated biphenyls or related or similar
materials, and any other substance or material as may be defined as a
hazardous or toxic substance by any federal, state or local
environmental law, ordinance, rule, regulation or order, including
without limitation, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended (42 U.S.C. Sections
9601 et seq.), the Hazardous Materials Transportation Act as amended
(42 U.S.C. Sections 6901 et seq.), the Federal Water Pollution Control
Act as amended (33 U.S.C. Sections 1251 et seq.), the Clean Air Act
(42 U.S.C. Sections 1251 et seq.) and any regulations promulgated
pursuant thereto.
13. Loan Document Status. Each Mortgage Note, Mortgage and other
agreement that evidences or secures such Mortgage Loan and was executed by or on
behalf of the related Mortgagor is the legal, valid and binding obligation of
the maker thereof (subject to any non-recourse provisions contained in any of
the foregoing agreements and any applicable state anti-deficiency or market
value limit deficiency legislation), enforceable in accordance with its terms,
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 enforcement is considered in a proceeding in equity or at law) and there is
no valid defense, counterclaim or right of offset or rescission available to the
related Mortgagor with respect to such Mortgage Note, Mortgage or other
agreement.
14. Insurance. Each Mortgaged Property is, and is required pursuant to
the related Mortgage to be, insured by (a) a fire and extended perils insurance
policy providing coverage against loss or damage sustained by reason of fire,
lightning, windstorm, hail, explosion, riot, riot attending a strike, civil
commotion, aircraft, vehicles and smoke, and, to the extent required as of the
date of origination by the originator of such Mortgage Loan consistent with its
normal commercial mortgage lending practices, against other risks insured
against by persons operating like properties in the locality of the Mortgaged
Property in an amount not less than the lesser of the principal balance of the
related Mortgage Loan and the replacement cost of the Mortgaged Property, and
not less than the amount necessary to avoid the operation of any co-insurance
provisions with respect to the Mortgaged Property, and the policy contains no
provisions for a deduction for depreciation; (b) a business interruption or
rental loss insurance policy, in an amount at least equal to six months of
operations of the Mortgaged Property estimated as of the date of origination by
the originator of such Mortgage Loan consistent with its normal commercial
lending practices; (c) a flood insurance policy (if any portion of buildings or
other structures on the Mortgaged Property are located in an area identified by
the Federal Emergency Management Agency as having special flood hazards and the
Federal Emergency Management Agency requires flood insurance to be maintained);
and (d) a comprehensive general liability insurance policy in amounts as are
generally required by commercial mortgage lenders, and in any event not less
than $1 million per occurrence. Such insurance policy contains a standard
mortgagee clause that names the mortgagee as an additional insured in the case
of liability insurance policies and as a loss payee in the case of property
insurance policies and requires prior notice to the holder of the Mortgage of
termination or cancellation. No such notice has been received, including any
notice of nonpayment of premiums, that has not been cured. Each Mortgage
obligates the related Mortgagor to maintain all such insurance and, upon such
Mortgagor's failure to do so, authorizes the holder of the Mortgage to maintain
such insurance at the Mortgagor's cost and expense and to seek reimbursement
therefor from such Mortgagor. Each Mortgage provides that casualty insurance
proceeds will be applied (a) to the restoration or repair of the related
Mortgaged Property, (b) to the restoration or repair of the related Mortgaged
Property, with any excess insurance proceeds after restoration or repair being
paid to the Mortgagor, or (c) to the reduction of the principal amount of the
Mortgage Loan.
15. Taxes and Assessments. As of the Closing Date, there are no
delinquent or unpaid taxes, assessments (including assessments payable in future
installments) or other outstanding charges affecting any Mortgaged Property that
are or may become a lien of priority equal to or higher than the lien of the
related Mortgage. For purposes of this representation and warranty, real
property taxes and assessments shall not be considered unpaid until the date on
which interest or penalties would be first payable thereon.
16. Mortgagor Bankruptcy. No Mortgagor is, to Seller's knowledge, a
debtor in any state or federal bankruptcy or insolvency proceeding. As of the
date of origination, (i) with respect to Mortgage Loans with a principal balance
greater than $3,500,000, no tenant physically occupying 25% or more (by square
feet) of the net rentable area of the related Mortgaged Property was, to
Seller's knowledge, a debtor in any state or federal bankruptcy or insolvency
proceeding and (ii) with respect to Mortgage Loans with a principal balance
equal to or less than $3,500,000 no tenant physically occupying 50% or more (by
square feet) of the net rentable area of the related Mortgaged Property was, to
Seller's knowledge, a debtor in any state or federal bankruptcy or insolvency
proceeding.
17. Leasehold Estate. Each Mortgaged Property consists of a fee simple
estate in real estate or, if the related Mortgage Loan is secured in whole or in
part by the interest of a Mortgagor as a lessee under a ground lease of a
Mortgaged Property (a "Ground Lease"), by the related Mortgagor's interest in
the Ground Lease but not by the related fee interest in such Mortgaged Property
(the "Fee Interest"), and as to such Ground Leases:
(i) Such Ground Lease or a memorandum thereof has been or will be duly
recorded; such Ground Lease (or the related estoppel letter or lender
protection agreement between Seller and related lessor) does not
prohibit the current use of the Mortgaged Property and does not
prohibit the interest of the lessee thereunder to be encumbered by the
related Mortgage; and there has been no material change in the payment
terms of such Ground Lease since the origination of the related
Mortgage Loan, with the exception of material changes reflected in
written instruments that are a part of the related Mortgage File;
(ii) The lessee's interest in such Ground Lease is not subject to any liens
or encumbrances superior to, or of equal priority with, the related
Mortgage, other than Permitted Encumbrances;
(iii) The Mortgagor's interest in such Ground Lease is assignable to
Purchaser and its successors and assigns upon notice to, but without
the consent of, the lessor thereunder (or, if such consent is
required, it has been obtained prior to the Closing Date) and, in the
event that it is so assigned, is further assignable by Purchaser and
its successors and assigns upon notice to, but without the need to
obtain the consent of, such lessor or if such lessor's consent is
required it cannot be unreasonably withheld;
(iv) Such Ground Lease is in full force and effect, and the Ground Lease
provides that no material amendment to such Ground Lease is binding on
a mortgagee unless the mortgagee has consented thereto, and Seller has
received no notice that an event of default has occurred thereunder,
and, to Seller's knowledge, there exists no condition that, but for
the passage of time or the giving of notice, or both, would result in
an event of default under the terms of such Ground Lease;
(v) Such Ground Lease, or an estoppel letter or other agreement, (A)
requires the lessor under such Ground Lease to give notice of any
default by the lessee to the holder of the Mortgage; and (B) provides
that no notice of termination given under such Ground Lease is
effective against the holder of the Mortgage unless a copy of such
notice has been delivered to such holder and the lessor has offered or
is required to enter into a new lease with such holder on terms that
do not materially vary from the economic terms of the Ground Lease.
(vi) A mortgagee is permitted a reasonable opportunity (including, where
necessary, sufficient time to gain possession of the interest of the
lessee under such Ground Lease) to cure any default under such Ground
Lease, which is curable after the receipt of notice of any such
default, before the lessor thereunder may terminate such Ground Lease;
(vii) Such Ground Lease has an original term (including any extension
options set forth therein) which extends not less than twenty years
beyond the Stated Maturity Date of the related Mortgage Loan;
(viii) Under the terms of such Ground Lease and the related Mortgage, taken
together, any related insurance proceeds or condemnation award awarded
to the holder of the ground lease interest will be applied either (A)
to the repair or restoration of all or part of the related Mortgaged
Property, with the mortgagee or a trustee appointed by the related
Mortgage having the right to hold and disburse such proceeds as the
repair or restoration progresses (except in such cases where a
provision entitling a third party to hold and disburse such proceeds
would not be viewed as commercially unreasonable by a prudent
commercial mortgage lender), or (B) to the payment of the outstanding
principal balance of the Mortgage Loan together with any accrued
interest thereon; and
(ix) Such Ground Lease does not impose any restrictions on subletting which
would be viewed as commercially unreasonable by prudent commercial
mortgage lenders lending on a similar Mortgaged Property in the
lending area where the Mortgaged Property is located; and such Ground
Lease contains a covenant that the lessor thereunder is not permitted,
in the absence of an uncured default, to disturb the possession,
interest or quiet enjoyment of the lessee thereunder for any reason,
or in any manner, which would materially adversely affect the security
provided by the related Mortgage.
(x) Such Ground Lease requires the Lessor to enter into a new lease upon
termination of such Ground Lease if the Ground Lease is rejected in a
bankruptcy proceeding.
18. Escrow Deposits. All escrow deposits and payments relating to each
Mortgage Loan that are, as of the Closing Date, required to be deposited or paid
have been so deposited or paid.
19. LTV Ratio. The gross proceeds of each Mortgage Loan to the related
Mortgagor at origination did not exceed the non-contingent principal amount of
the Mortgage Loan and either: (a) such Mortgage Loan is secured by an interest
in real property having a fair market value (i) at the date the Mortgage Loan
was originated, at least equal to 80 percent of the original principal balance
of the Mortgage Loan or (ii) at the Closing Date, at least equal to 80 percent
of the principal balance of the Mortgage Loan on such date; provided that for
purposes hereof, the fair market value of the real property interest must first
be reduced by (x) the amount of any lien on the real property interest that is
senior to the Mortgage Loan and (y) a proportionate amount of any lien that is
in parity with the Mortgage Loan (unless such other lien secures a Mortgage Loan
that is cross-collateralized with such Mortgage Loan, in which event the
computation described in clauses (a)(i) and (a)(ii) of this paragraph 19 shall
be made on a pro rata basis in accordance with the fair market values of the
Mortgaged Properties securing such cross-collateralized Mortgage Loans); or (b)
substantially all the proceeds of such Mortgage Loan were used to acquire,
improve or protect the real property that served as the only security for such
Mortgage Loan (other than a recourse feature or other third party credit
enhancement within the meaning of Treasury Regulations Section
1.860G-2(a)(1)(ii)).
20. Mortgage Loan Modifications. Any Mortgage Loan that was
"significantly modified" prior to the Closing Date so as to result in a taxable
exchange under Section 1001 of the Code either (a) was modified as a result of
the default under such Mortgage Loan or under circumstances that made a default
reasonably foreseeable or (b) satisfies the provisions of either clause (a)(i)
of paragraph 19 (substituting the date of the last such modification for the
date the Mortgage Loan was originated) or clause (a)(ii) of paragraph 19,
including the proviso thereto.
21. Advancement of Funds by Seller. No holder of a Mortgage Loan has
advanced funds or induced, solicited or knowingly received any advance of funds
from a party other than the owner of the related Mortgaged Property, directly or
indirectly, for the payment of any amount required by such Mortgage Loan.
22. No Mechanics' Liens. Each Mortgaged Property is free and clear of
any and all mechanics' and materialmen's liens that are prior or equal to the
lien of the related Mortgage, and no rights are outstanding that under law could
give rise to any such lien that would be prior or equal to the lien of the
related Mortgage except, in each case, for liens insured against by the Title
Policy referred to herein.
23. Compliance with Usury Laws. Each Mortgage Loan complied with all
applicable usury laws in effect at its date of origination.
24. Cross-collateralization. No Mortgage Loan is cross-collateralized
or cross-defaulted with any loan other than one or more other Mortgage Loans.
25. Releases of Mortgaged Property. Except as described in the next
sentence, no Mortgage Note or Mortgage requires the mortgagee to release all or
any material portion of the related Mortgaged Property that was included in the
appraisal for such Mortgaged Property, and/or generates income from the lien of
the related Mortgage except upon payment in full of all amounts due under the
related Mortgage Loan or in connection with the defeasance provisions of the
related Note and Mortgage. The Mortgages relating to those Mortgage Loans
identified on Schedule A hereto require the mortgagee to grant releases of
portions of the related Mortgaged Properties upon (a) the satisfaction of
certain legal and underwriting requirements and/or (b) the payment of a
predetermined or objectively determinable release price and prepayment
consideration in connection therewith. Except as described in the first sentence
hereof and for those Mortgage Loans identified on Schedule A, no Mortgage Loan
permits the full or partial release or substitution of collateral unless the
mortgagee or servicer can require the Borrower to provide an opinion of tax
counsel to the effect that such release or substitution of collateral (a) would
not constitute a "significant modification" of such Mortgage Loan within the
meaning of Treas. Reg. Section 1.1001-3 and (b) would not cause such Mortgage
Loan to fail to be a "qualified mortgage" within the meaning of Section
860G(a)(3)(A) of the Code.
26. No Equity Participation or Contingent Interest. No Mortgage Loan
contains any equity participation by the lender or provides for negative
amortization (except that the ARD Loan may provide for the accrual of interest
at an increased rate after the Anticipated Repayment Date) or for any contingent
or additional interest in the form of participation in the cash flow of the
related Mortgaged Property.
27. No Material Default. To Seller's knowledge, there exists no
material default, breach, violation or event of acceleration (and no event
which, with the passage of time or the giving of notice, or both, would
constitute any of the foregoing) under the documents evidencing or securing the
Mortgage Loan, in any such case to the extent the same materially and adversely
affects the value of the Mortgage Loan and the related Mortgaged Property;
provided, however, that this representation and warranty does not address or
otherwise cover any default, breach, violation or event of acceleration that
specifically pertains to any matter otherwise covered by any other
representation and warranty made by Seller in any of paragraphs 3, 7, 8, 12, 14,
15, 16 and 17 of this Exhibit 2.
28. Inspections. Seller (or if Seller is not the originator, the
originator of the Mortgage Loan) has inspected or caused to be inspected each
Mortgaged Property in connection with the origination of the related Mortgage
Loan.
29. Local Law Compliance. Based on due diligence considered reasonable
by prudent commercial mortgage lenders in the lending area where the Mortgaged
Property is located, the improvements located on or forming part of each
Mortgaged Property comply with applicable zoning laws and ordinances, or
constitute a legal non-conforming use or structure or, if any such improvement
does not so comply, such non-compliance does not materially and adversely affect
the value of the related Mortgaged Property, such value as determined by the
appraisal performed at origination or in connection with the sale of the related
Mortgage Loan by Seller hereunder.
30. Junior Liens. None of the Mortgage Loans permits the related
Mortgaged Property to be encumbered by any lien (other than a Permitted
Encumbrance) junior to or of equal priority with the lien of the related
Mortgage without the prior written consent of the holder thereof or the
satisfaction of debt service coverage or similar criteria specified therein.
Seller has no knowledge that any of the Mortgaged Properties is encumbered by
any lien junior to the lien of the related Mortgage.
31. Actions Concerning Mortgage Loans. To the knowledge of Seller,
there are no actions, suits or proceedings before any court, administrative
agency or arbitrator concerning any Mortgage Loan, Mortgagor or related
Mortgaged Property that might adversely affect title to the Mortgaged Property
or the validity or enforceability of the related Mortgage or that might
materially and adversely affect the value of the Mortgaged Property as security
for the Mortgage Loan or the use for which the premises were intended.
32. Servicing. The servicing and collection practices used by Seller
or any prior holder or servicer of each Mortgage Loan have been in all material
respects legal, proper and prudent and have met customary industry standards.
33. Licenses and Permits. To Seller's knowledge, based on due
diligence that it customarily performs in the origination of comparable mortgage
loans, as of the date of origination of each Mortgage Loan or as of the date of
the sale of the related Mortgage Loan by Seller hereunder, the related Mortgagor
was in possession of all material licenses, permits and franchises required by
applicable law for the ownership and operation of the related Mortgaged Property
as it was then operated.
34. Assisted Living Facility Regulation. If the Mortgaged Property is
operated as an assisted living facility, to Seller's knowledge (a) the related
Mortgagor is in compliance in all material respects with all federal and state
laws applicable to the use and operation of the related Mortgaged Property and
(b) if the operator of the Mortgaged Property participates in Medicare or
Medicaid programs, the facility is in compliance in all material respects with
the requirements for participation in such programs.
35. Collateral in Trust. The Mortgage Note for each Mortgage Loan is
not secured by a pledge of any collateral that has not been assigned to
Purchaser.
36. Due on Sale. Each Mortgage Loan contains a "due on sale" clause,
which provides for the acceleration of the payment of the unpaid principal
balance of the Mortgage Loan if, without prior written consent of the holder of
the Mortgage, the property subject to the Mortgage or any material portion
thereof, or a controlling interest in the related Mortgagor, is transferred,
sold or encumbered by a junior mortgage or deed of trust; provided, however,
that certain Mortgage Loans provide a mechanism for the assumption of the loan
by a third party upon the Mortgagor's satisfaction of certain conditions
precedent, and upon payment of a transfer fee, if any, or transfer of interests
in the Mortgagor or constituent entities of the Mortgagor to a third party or
parties related to the Mortgagor upon the Mortgagor's satisfaction of certain
conditions precedent.
37. SINGLE PURPOSE ENTITY. THE MORTGAGOR ON EACH MORTGAGE LOAN WITH A
CUT-OFF DATE PRINCIPAL BALANCE IN EXCESS OF $10 MILLION, WAS, AS OF THE
ORIGINATION OF THE MORTGAGE LOAN, A SINGLE PURPOSE ENTITY. FOR THIS PURPOSE, A
"SINGLE PURPOSE ENTITY" SHALL MEAN AN ENTITY, OTHER THAN AN INDIVIDUAL, WHOSE
ORGANIZATIONAL DOCUMENTS PROVIDE SUBSTANTIALLY TO THE EFFECT THAT IT WAS FORMED
OR ORGANIZED SOLELY FOR THE PURPOSE OF OWNING AND OPERATING ONE OR MORE OF THE
MORTGAGED PROPERTIES SECURING THE MORTGAGE LOANS AND PROHIBIT IT FROM ENGAGING
IN ANY BUSINESS UNRELATED TO SUCH MORTGAGED PROPERTY OR PROPERTIES, AND WHOSE
ORGANIZATIONAL DOCUMENTS FURTHER PROVIDE, OR WHICH ENTITY REPRESENTED IN THE
RELATED MORTGAGE LOAN DOCUMENTS, SUBSTANTIALLY TO THE EFFECT THAT IT DOES NOT
HAVE ANY ASSETS OTHER THAN THOSE RELATED TO ITS INTEREST IN AND OPERATION OF
SUCH MORTGAGED PROPERTY OR PROPERTIES, OR ANY INDEBTEDNESS OTHER THAN AS
PERMITTED BY THE RELATED MORTGAGE(S) OR THE OTHER RELATED MORTGAGE LOAN
DOCUMENTS, THAT IT HAS ITS OWN BOOKS AND RECORDS AND ACCOUNTS SEPARATE AND APART
FROM ANY OTHER PERSON (OTHER THAN A MORTGAGOR FOR A MORTGAGE LOAN THAT IS
CROSS-COLLATERALIZED AND CROSS-DEFAULTED WITH THE RELATED MORTGAGE LOAN), AND
THAT IT HOLDS ITSELF OUT AS A LEGAL ENTITY, SEPARATE AND APART FROM ANY OTHER
PERSON.
38. Non-Recourse Exceptions. The Mortgage Loan documents for each
Mortgage Loan provide that such Mortgage Loan constitutes either (a) the
recourse obligations of at least one natural person or (b) the non-recourse
obligations of the related Mortgagor, provided that at least one natural person
(and the Mortgagor if the Mortgagor is not a natural person) is liable to the
holder of the Mortgage Loan for damages arising in the case of fraud or willful
misrepresentation by the Mortgagor, misappropriation of rents, insurance
proceeds or condemnation awards and breaches of the environmental covenants in
the Mortgage Loan documents.
39. Defeasance and Assumption Costs. The related Mortgage Loan
documents provide that the related borrower is responsible for the payment of
all reasonable costs and expenses of the lender incurred in connection with the
defeasance of such Mortgage Loan and the release of the related Mortgaged
Property, and the borrower is required to pay all reasonable costs and expenses
of the lender associated with the approval of an assumption of such Mortgage
Loan.
40. Defeasance. No Mortgage Loan provides that (i) it can be defeased
until the date that is more than two years after the Closing Date, (ii) that it
can be defeased with any property other than government securities (as defined
in Section 2(a)(16) of the Investment Company Act of 1940, as amended) or any
direct non-callable security issued or guaranteed as to principal or interest by
the United States that will provide interest and principal payments sufficient
to satisfy scheduled payments of interest and principal as required under the
related Mortgage Loan, or (iii) defeasance requires the payment of any
consideration other than (a) reimbursement of incidental costs and expenses
and/or (b) a specified dollar amount or an amount that is based on a formula
that uses objective financial information (as defined in Treasury Regulation
Section 1.446-3(c)(4)(ii)).
41. Prepayment Premiums. As of the applicable date of origination of
each such Mortgage Loan, any prepayment premiums and yield maintenance charges
payable under the terms of the Mortgage Loans, in respect of voluntary
prepayments, constituted customary prepayment premiums and yield maintenance
charges for commercial mortgage loans.
42. Terrorism Insurance. With respect to each Mortgage Loan that has a
principal balance as of the Cut-off Date that is greater than or equal to
$20,000,000, the related all risk insurance policy and business interruption
policy do not specifically exclude Acts of Terrorism, as defined in the
Terrorism Risk Insurance Act of 2002, from coverage, or if such coverage is
excluded, is covered by a separate terrorism insurance policy. With respect to
each other Mortgage Loan, the related all risk insurance policy and business
interruption policy did not as of the date of origination of the Mortgage Loan,
and, to Seller's knowledge, do not, as of the date hereof, specifically exclude
Acts of Terrorism from coverage, or if such coverage is excluded, it is covered
by a separate terrorism insurance policy. With respect to each of the Mortgage
Loans, the related Mortgage Loan documents do not expressly waive or prohibit
the mortgagee from requiring coverage for acts of terrorism or damages related
thereto, except to the extent that any right to require such coverage may be
limited by commercially reasonable availability, or as otherwise indicated on
Schedule A.
43. Foreclosure Property. Seller is not selling any Mortgage Loan as
part of a plan to transfer the underlying Mortgaged Property to Purchaser, and
Seller does not know or, to Seller's knowledge, have reason to know that any
Mortgage Loan will default. The representations in this paragraph 43 are being
made solely for the purpose of determining whether the Mortgaged Property, if
acquired by the Trust, would qualify as "foreclosure property" within the
meaning of Section 860G(a)(8) of the Code, and may not be relied upon or used
for any other purpose. Such representations shall not be construed as a
guarantee to any degree that defaults or losses will not occur.
SCHEDULE A
Exceptions to Representations and Warranties
SCHEDULE B
List of Mortgagors that are Third-Party Beneficiaries Under Section
5.2
SCHEDULE C
List of Mortgage Loans Subject to Secured Creditor Impaired Property Policies
EXHIBIT 3
PRICING FORMULATION
Xxxxxx Xxxxxxx: _______________
EXHIBIT 4
XXXX OF SALE
1. Parties. The parties to this Xxxx of Sale are the following:
Seller: Xxxxxx Xxxxxxx Mortgage Capital Inc.
Purchaser: Bear Xxxxxxx Commercial Mortgage Securities Inc.
2. Sale. For value received, Seller hereby conveys to Purchaser,
without recourse, all right, title and interest in and to the Mortgage Loans
identified on Exhibit 1 (the "Mortgage Loan Schedule") to the Mortgage Loan
Purchase Agreement, dated as of October 20, 2005 (the "Mortgage Loan Purchase
Agreement"), between Seller and Purchaser and all of the following property:
(a) All accounts, general intangibles, chattel paper, instruments,
documents, money, deposit accounts, certificates of deposit, goods, letters
of credit, advices of credit and investment property consisting of, arising
from or relating to any of the following property: the Mortgage Loans
identified on the Mortgage Loan Schedule including the related Mortgage
Notes, Mortgages, security agreements, and title, hazard and other
insurance policies, all distributions with respect thereto payable after
the Cut-Off Date, all substitute or replacement Mortgage Loans and all
distributions with respect thereto, and the Mortgage Files;
(b) All accounts, general intangibles, chattel paper, instruments,
documents, money, deposit accounts, certificates of deposit, goods, letters
of credit, advices of credit, investment property, and other rights arising
from or by virtue of the disposition of, or collections with respect to, or
insurance proceeds payable with respect to, or claims against other Persons
with respect to, all or any part of the collateral described in clause (a)
above (including any accrued discount realized on liquidation of any
investment purchased at a discount); and
(c) All cash and non-cash proceeds of the collateral described in
clauses (a) and (b) above.
3. Purchase Price. The amount and other consideration set forth on
Exhibit 3 to the Mortgage Loan Purchase Agreement.
4. Definitions. Terms used but not defined herein shall have the
meanings assigned to them in the Mortgage Loan Purchase Agreement.
IN WITNESS WHEREOF, each of the parties hereto has caused this Xxxx of
Sale to be duly executed and delivered on this 20TH day of October, 2005.
SELLER: XXXXXX XXXXXXX MORTGAGE CAPITAL INC.
By: /s/
------------------------------------
Name: Xxxxxx X. Friend
------------------------------
Title: V.P.
-----------------------------
PURCHASER: BEAR XXXXXXX COMMERCIAL MORTGAGE
SECURITIES INC.
By: /s/
------------------------------------
Name: Xxxxxxx X. Xxxxxx Xx.
------------------------------
Title: V.P.
-----------------------------
EXHIBIT 5
FORM OF LIMITED POWER OF ATTORNEY
EXHIBIT L
FORM OF INSPECTION REPORT
[Available at CMSA Website version 3.0 dated 4/1/2003]
EXHIBIT M
FORM OF MONTHLY CERTIFICATEHOLDER REPORT
Substantially Similar to the Information
Repeated in the Form of Statement to
Certificateholders in the
Prospectus Supplement
EXHIBIT N
FORM OF CMSA OPERATING STATEMENT ANALYSIS REPORT
[Available at CMSA Website version 3.0 dated 4/1/2003]
EXHIBIT O
[RESERVED]
EXHIBIT P
[RESERVED]
EXHIBIT Q
[RESERVED]
EXHIBIT R
[RESERVED]
EXHIBIT S-1
FORM OF POWER OF ATTORNEY FOR MASTER SERVICER
RECORDING REQUESTED BY:
XXXXX FARGO BANK, N.A.
AND WHEN RECORDED MAIL TO:
XXXXX FARGO BANK, N.A.
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Commercial Mortgage Pass-Through Certificates Series 2005-TOP20
Space above this line for Recorder's use
--------------------------------------------------------------------------------
LIMITED POWER OF ATTORNEY
(SPECIAL)
KNOW ALL MEN BY THESE PRESENTS, that LASALLE BANK NATIONAL
ASSOCIATION, as trustee for Bear Xxxxxxx Commercial Mortgage Securities Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2005-TOP20 ("Trustee"),
under that certain Pooling and Servicing Agreement dated as of October 1, 2005
(the "Pooling and Servicing Agreement"), does hereby nominate, constitute and
appoint XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Master Servicer under the
Pooling and Servicing Agreement ("Xxxxx Fargo Bank"), as its true and lawful
attorney-in-fact for it and in its name, place, stead and for its use and
benefit:
To perform any and all acts which may be necessary or appropriate to
enable Xxxxx Fargo Bank to service and administer the Mortgage Loans (as defined
in the Pooling and Servicing Agreement) in connection with the performance by
Xxxxx Fargo Bank of its duties as Master Servicer under the Pooling and
Servicing Agreement, giving and granting unto Xxxxx Fargo Bank full power and
authority to do and perform any and every act necessary, requisite, or proper in
connection with the foregoing and hereby ratifying, approving or confirming all
that Xxxxx Fargo Bank shall lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has caused this limited power of
attorney to be executed as of this ___ day of ______________, 2005.
LASALLE BANK NATIONAL ASSOCIATION,
as trustee for Bear Xxxxxxx Commercial
Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates,
Series 2005-TOP20
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
================================================================================
ALL-PURPOSE ACKNOWLEDGEMENT
)
)
)
On ________________ before me, ______________________________
Date Name and Title of Officer (i.e., Your Name,
Notary Public)
personally appeared __________________________________________________________
Name(s) of Document Signer(s)
________________________________________________________________________________
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
----------------------------------
Signature of Notary
(Affix seal in the above blank space)
================================================================================
EXHIBIT S-2
FORM OF POWER OF ATTORNEY FOR SPECIAL SERVICER
RECORDING REQUESTED BY:
XXXXX FARGO BANK, N.A.
AND WHEN RECORDED MAIL TO:
ARCAP SERVICING, INC.
0000 Xxxxx XxxXxxxxx Xxxx.
Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: [__________________]
Space above this line for Recorder's use
--------------------------------------------------------------------------------
LIMITED POWER OF ATTORNEY
(SPECIAL)
KNOW ALL MEN BY THESE PRESENTS, that LASALLE BANK NATIONAL
ASSOCIATION, as trustee for Bear Xxxxxxx Commercial Mortgage Securities Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2005-TOP20 ("Trustee"),
under that certain Pooling and Servicing Agreement dated as of October 1, 2005
(the "Pooling and Servicing Agreement"), does hereby nominate, constitute and
appoint ARCAP SERVICING, INC., as Special Servicer under the Pooling and
Servicing Agreement ("ARCAP"), as its true and lawful attorney-in-fact for it
and in its name, place, stead and for its use and benefit:
To perform any and all acts which may be necessary or appropriate to
enable ARCAP to service and administer the Mortgage Loans (as defined in the
Pooling and Servicing Agreement) in connection with the performance by ARCAP of
its duties as Special Servicer under the Pooling and Servicing Agreement, giving
and granting unto ARCAP full power and authority to do and perform any and every
act necessary, requisite, or proper in connection with the foregoing and hereby
ratifying, approving or confirming all that ARCAP shall lawfully do or cause to
be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has caused this limited power of
attorney to be executed as of this ___ day of __________, 2005.
LASALLE BANK NATIONAL ASSOCIATION, as
trustee for Bear Xxxxxxx Commercial
Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates,
Series 2005-TOP20
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
================================================================================
ALL-PURPOSE ACKNOWLEDGEMENT
)
)
)
On ________________ before me, ______________________________
Date Name and Title of Officer (i.e., Your Name,
Notary Public)
personally appeared __________________________________________________________
Name(s) of Document Signer(s)
________________________________________________________________________________
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
-----------------------------------
Signature of Notary
(Affix seal in the above blank space)
================================================================================
EXHIBIT T
FORM OF DEBT SERVICE COVERAGE RATIO PROCEDURES
"Debt Service Coverage Ratios" generally means the ratio of
"Underwritable Cash Flow" estimated to be produced by the related Mortgaged
Property to the annualized amount of debt service payable under that Mortgage
Loan. "Underwritable Cash Flow" in each case is an estimate of stabilized cash
flow available for debt service. In general, it is the estimated stabilized
revenue derived from the use and operation of a Mortgaged Property (consisting
primarily of rental income) less the sum of (a) estimated stabilized operating
expenses (such as utilities, administrative expenses, repairs and maintenance,
management fees and advertising), (b) fixed expenses (such as insurance, real
estate taxes and, if applicable, ground lease payments) and (c) capital
expenditures and reserves for capital expenditures, including tenant improvement
costs and leasing commissions. Underwritable Cash Flow generally does not
reflect interest expenses and non-cash items such as depreciation and
amortization. In determining Underwritable Cash Flow for a Mortgaged Property,
the Master Servicer may rely on rent rolls and other generally unaudited
financial information provided by the respective borrowers and may estimate cash
flow taking into account historical financial statements, material changes in
the operating position of the Mortgaged Property, and estimated capital
expenditures, leasing commissions and tenant improvement reserves. The Master
Servicer may make certain changes to operating statements and operating
information obtained from the respective borrowers.
EXHIBIT U
FORM OF ASSIGNMENT AND ASSUMPTION SUBMISSION TO SPECIAL SERVICER
PRESENT MORTGAGOR:
PROPOSED MORTGAGOR:
PRIMARY SERVICER #:
SPECIAL SERVICER #:
COLLATERAL TYPE: (Retail, Industrial, Apartments, Office, etc.)
ADDRESS: PROPERTY ADDRESS
CITY, STATE, ZIP CODE
ASSET STATUS: As of (date)
Principal Balance: $
Unpaid Accrued Interest: $
Unpaid Late Fees/other fees: $
Tax Escrow Balance: $
A. Insurance Escrow Balance: $
Reserve Escrow Balance: $
Monthly (P&I) Payment: $
Interest Rate: %
Date Principal Paid To:
Date Interest Paid To:
Maturity Date:
Origination Date:
EXECUTIVE SUMMARY:
1. Summarize the transaction
a. note any significant modification of terms of the Loan Documents
permitting assumption that could result in Adverse REMIC Event
2. Discuss proposed Mortgagor entity and ownership structure
a. include any changes in level of SAE or SPE compliance from existing
Mortgagor as noted on Asset Summary attached)
3. How will title be held
4. Source of cash for down payment
5. Briefly describe collateral
a. Size, occupancy, primary tenants, location
b. Prior year NOI and DSCR and Pro-forma NOI DSCR
6. Complete the chart below:
The sale terms and property characteristics are summarized as follows:
-------------------------------------------------------
Purchase price $
Buyer down payment $______(%)
Estimated closing date
1% loan fee split: Principal 40% - $
Xxxxx Fargo, Master Serv. 10% - $
ARCap, Special Serv. 50% - $
Most recent appraised value according to
appraisal in Primary Servicer's possession $
Loan-to-value as if initial underwriting %
Occupancy as of %
12/31/__ NOI $
Debt service coverage as of x
-------------------------------------------------------
FINANCIAL CONDITION OF PROPOSED MORTGAGOR/GUARANTOR:
1. Explain background and experience of the proposed Mortgagor/principals;
describe any deficiencies in Mortgagor's ability to meet creditworthiness
and experience requirements of Loan Documents and compare creditworthiness
and experience of proposed Mortgagor to that of transferring Mortgagor to
the extent information about transferring Mortgagor is available.
2. State date of the financial statement, who prepared, if CPA, state the
opinion rendered, how assets are valued
3. Highlight Balance sheet and Income statement
a. Describe significant assets (e.g. obtain from proposed Mortgagor and
Guarantor (as applicable) information about how it values its assets)
b. Related debt
4. For public companies that have historical financial information:
a. Spread Balance Sheet for minimum of two (2) years (request three (3)
years, if available)
b. Spread and commonsize Income statement for minimum of two (2) years
(request three (3) years, if available);
5. Explain results of credit checks, legal searches and banking credit
references (two required)
6. If Rating Agency Confirmation is permitted under applicable Loan Documents,
note if such Confirmation will be sought
7. Describe whether assigning Mortgagor and/or Guarantors will be released
from its obligations under the Loan Documents [from and after the date of
the transfer]. If so, describe extent of release and rationale for it.
PROJECT STATUS & DESCRIPTION: (See attached Asset Summary, most recent
Inspection Report and most recent rent roll)
1. Describe any current, material issues regarding the operating status of the
property: (e.g. issues surrounding current occupancy, anchor tenants, tenant
rollover)
PROPERTY FINANCIAL SUMMARY: (See attached Income and Expense Statements for
Mortgaged Property and year-to-date operating statements)
NEW ENVIRONMENTAL AND ENGINEERING DEVELOPMENTS (IF ANY) AND STATUS OF ISSUES
IDENTIFIED IN ORIGINAL REPORTS OR LOAN DOCUMENTS AS NEEDING REMEDIATION: (See
attached Asset Summary)
1. Describe any material issues requiring remediation contained in original
reports
2. Describe current status of issue and remediation
ESCROW STATUS:
1. Explain status of all reserves
PROPERTY MANAGEMENT SUMMARY:
1. Who is proposed property management firm
2. Background and Experience
COLLATERAL VALUATION:
1. Discuss the original appraisal
C. Who prepared
D. Attach Executive Summary and discussion of approach to value given
most weight from most recent appraisal in Primary Servicer's
possession
2. Comparison of the following (original to actual property):
E. Vacancy
F. Rents
G. Taxes
H. Other Key Expenses
Current Market Conditions:
Briefly state material current real estate market dynamics and
economic influences that may affect the operational performance of the property.
RECOMMENDATION:
1. State recommendation for approval.
2. Highlight strengths and weaknesses. How are weaknesses mitigated? (bullet
points are fine)
REQUEST FOR SPECIAL SERVICER CONSENT:
Primary Servicer hereby recommends and requests consent of Special Servicer to
the foregoing Assignment and Assumption.
* **
By:
---------------------------------------
Title:
------------------------------------
Date:
-------------------------------------
Consent to Assignment & Assumption is given:
ARCAP SERVICING, INC., acting solely in its capacity as Special Servicer
By:
---------------------------------------
Title:
------------------------------------
Date:
-------------------------------------
SCHEDULE OF EXHIBITS TO ASSUMPTION SUBMISSION
1. Financial statements of purchasing entity and any guarantors (audited, if
available)
2. Financial statement of selling entity only if available
3. Bank and /or credit references for transferee
4. Credit report for principal(s) of the proposed borrowing entity.
5. Most recent Income & Expense Statement for Mortgaged Property and operating
statement review
6. Income & Expense Statement for Mortgaged Property for previous two (2)
years to the extent available
7. Most recent Property Inspection report
8. Original Asset Summary for Mortgaged Property
9. Purchase and Sale Agreement
10. If available from Mortgagor, diagram of proposed ownership structure,
including percentages of ownership
11. Proposed property management agreement
12. Description and source of equity being used for the purchase, if available
13. Most recent Rent Roll
14. Copy of Promissory Note, Mortgage and any Loan Agreement
15. Other items as required by the description set forth above
EXHIBIT V
FORM OF ADDITIONAL LIEN, MONETARY ENCUMBRANCE AND MEZZANINE FINANCING SUBMISSION
PACKAGE TO THE SPECIAL SERVICES
MORTGAGOR:
MASTER SERVICER LOAN #:
PRIMARY SERVICER LOAN #:
COLLATERAL TYPE: (Retail, Industrial, Apartments, Office, etc.)
ADDRESS OF PROPERTY:
ASSET STATUS As of (date):
Principal Balance: $
Unpaid Accrued Interest: $
Unpaid Late Fees/other fees: $
Tax Escrow Balance: $
Insurance Escrow Balance: $
Monthly P+I Payment: $
Interest Rate: %
Date Principal Paid To:
Date Interest Paid To:
Origination Date:
Maturity Date:
EXECUTIVE SUMMARY:
1. Summarize the transaction
a. note deviations from requirements for subordinate/mezzanine financing
contained in Loan Documents
b. if Rating Agency Confirmation is permitted under applicable Loan
Documents, note if such Confirmation will be sought
2. State amount and purpose of Lien/Financing
3. Interest Rate
4. Amount of Monthly/Periodic Payment (identify if P&I or Interest only)
5. Identify Subordinate/Mezzanine Lender
a. provide any information furnished by Mortgagor regarding proposed
lender
6. Collateral pledged or mortgaged as security:
7. Briefly describe collateral
a. Size, occupancy, primary tenants, location
b. NOI and DSCR for prior year and, if available, prior two years and
Pro-forma NOI DSCR
8. Complete the chart below:
The transaction terms and property characteristics are summarized as follows:
Estimated closing date for financing:
Administrative fee to Primary Servicer $
Additional Fees, if any
(50%: Special Servicer; 10%: Master Servicer;
40%: Primary Servicer $
Most recent appraised value according to appraisal
in Primary Servicer's possession $
Loan-to-value as of initial underwriting %
Occupancy as of %
12/31/__ NOI $
Debt service coverage as of x
PROJECT STATUS & DESCRIPTION: (See attached Asset Summary, most recent
Inspection Report and most recent rent roll)
1. Describe any current, material issues regarding the operating status of the
property: (e.g. issues surrounding current occupancy, anchor tenants, tenant
rollover)
Property Financial Summary: (See attached most recent Income and Expense
Statement for Mortgaged Property and operating statement review)
ESCROW STATUS:
1. Explain status of all Reserves
COLLATERAL VALUATION:
1. Discuss the original appraisal
C. Who prepared
D. Attach Executive Summary and discussion of approach to value given
most weight from most recent appraisal in Primary Servicer's
possession
2. Comparison of the following (original to actual property):
E. Vacancy
F. Rents
G. Taxes
H. Other Key Expenses
Current Market Conditions:
Briefly state material current real estate market dynamics and
economic influences that may affect the operational performance of the property.
RECOMMENDATION:
1. State recommendation for approval.
2. Highlight strengths and weaknesses. How are weaknesses mitigated? (bullet
points are fine)
REQUEST FOR SPECIAL SERVICER CONSENT:
Primary Servicer hereby recommends and requests consent of Special Servicer to
the foregoing [Subordinate/Mezzanine] Financing.
* **
By:
-------------------------------
Title:
----------------------------
Date:
-----------------------------
Consent to Additional Lien, Monetary Encumbrance or Mezzanine Financing as
described above is given:
ARCAP SERVICING, INC., acting solely in its capacity as Special Servicer
By:
-------------------------------
Title:
----------------------------
Date:
-----------------------------
SCHEDULE OF EXHIBITS TO ADDITIONAL LIEN, MONETARY ENCUMBRANCE OR MEZZANINE
FINANCING SUBMISSION
1. Most recent Income & Expense Statement for property and operating statement
review
2. Original Asset Summary for Mortgaged Property
3. [FOR MEZZANINE FINANCING: If available from Mortgagor, diagram of proposed
ownership structure, including percentages of ownership]
4. [FOR SUBORDINATE MORTGAGE: Copy of Subordination/Intercreditor Agreement in
substantially the form to be executed with subordinate lender]
5. Copy of Note, Mortgage and any Loan Agreement
6. Copy of subordinate loan documents in substantially the form to be executed
7. Most recent Rent Roll.
8. Other items as required by the description set forth above
EXHIBIT W
[Reserved]
EXHIBIT X
[Reserved]
EXHIBIT Y
INVESTOR CERTIFICATION
Date: ________________
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxx Xxx
Xxxxxxxxx, Xxxxxxxx 00000
Tel: 000-000-0000
Fax: 000-000-0000
Attention: Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 2005-TOP20
In accordance with the Pooling and Servicing Agreement, dated as of October
1, 2005 (the "Agreement"), by and among Bear Xxxxxxx Commercial Mortgage
Securities Inc., as Depositor, Xxxxx Fargo Bank, National Association, as
Master Servicer, ARCap Servicing, Inc., as Special Servicer, ABN AMRO Bank
N.V., as Fiscal Agent, LaSalle Bank National Association, as Trustee, and
Xxxxx Fargo Bank, N.A. as Paying Agent and Certificate Registrar (the
"Paying Agent"), with respect to the above referenced certificates (the
"Certificates"), the undersigned hereby certifies and agrees as follows:
1. The undersigned is a beneficial owner or prospective purchaser of the Class
__ Certificates.
2. The undersigned is requesting access to the Paying Agent's internet website
containing certain information (the "Information") and/or is requesting the
information identified on the schedule attached hereto (also, the
"Information") pursuant to the provisions of the Agreement.
3. In consideration of the Paying Agent's disclosure to the undersigned of the
Information, or access thereto, the undersigned will keep the Information
confidential (except from such outside persons as are assisting it in
making an evaluation in connection with purchasing the related
Certificates, from its accountants and attorneys, and otherwise from such
governmental or banking authorities or agencies to which the undersigned is
subject), and such Information will not, without the prior written consent
of the Paying Agent, be otherwise disclosed by the undersigned or by its
officers, directors, partners, employees, agents or representatives
(collectively, the "Representatives") in any manner whatsoever, in whole or
in part.
4. The undersigned will not use or disclose the Information in any manner
which could result in a violation of any provision of the Securities Act of
1933, as amended (the "Securities Act"), or the Securities Exchange Act of
1934, as amended, or would require registration of any Certificate pursuant
to Section 5 of the Securities Act.
5. The undersigned shall be fully liable for any breach of this agreement by
itself or any of its Representatives and shall indemnify the Depositor, the
Paying Agent and the Trust Fund for
any loss, liability or expense incurred thereby with respect to any such
breach by the undersigned or any of its Representatives.
6. Capitalized terms used but not defined herein shall have the respective
meanings assigned thereto in the Agreement.
IN WITNESS WHEREOF, the undersigned has caused its name to be signed
hereto by its duly authorized officer, as of the day and year written above.
-----------------------------------------
Beneficial Owner or Prospective Purchaser
By:
-------------------------------------
Title:
----------------------------------
Company:
--------------------------------
Phone:
----------------------------------
EXHIBIT Z
FORM OF NOTICE AND CERTIFICATION REGARDING DEFEASANCE OF MORTGAGE LOANS
FORM OF
NOTICE AND CERTIFICATION
REGARDING DEFEASANCE OF MORTGAGE LOAN
FOR LOANS HAVING BALANCE OF (A) $20,000,000 OR LESS, OR (B) LESS THAN 5% OF
OUTSTANDING POOL BALANCE, WHICHEVER IS LESS
To: [Address]
Attn: _______________
From: _____________________________________, in its capacity as Servicer (the
"Servicer") under the Pooling and Servicing Agreement dated as of
__________________ (the "Pooling and Servicing Agreement"), among the Servicer,
__________________as Trustee, and others.
Date: _________, 20___
Re: _____________________________________________.
Commercial Mortgage Pass-Through Certificates
Series ___________
Mortgage Loan (the "Mortgage Loan") identified by loan number _____ on the
Mortgage Loan Schedule attached to the Pooling and Servicing Agreement and
heretofore secured by the Mortgaged Properties identified on the Mortgage Loan
Schedule by the following names: ____________________
____________________
Reference is made to the Pooling and Servicing Agreement described above.
Capitalized terms used but not defined herein have the meanings assigned to such
terms in the Pooling and Servicing Agreement. [NOTE: ALL TERMS IN THIS
CERTIFICATION MUST BE CONFORMED TO TERMS USED IN THE POOLING AND SERVICING
AGREEMENT]
As Servicer under the Pooling and Servicing Agreement, we hereby:
2. Notify you that the Mortgagor has consummated a defeasance of the
Mortgage Loan pursuant to the terms of the Mortgage Loan, of the type
checked below:
____ a full defeasance of the payments scheduled to be due
in respect of the entire Principal Balance of the
Mortgage Loan; or
____ a partial defeasance of the payments scheduled to be
due in respect of a portion of the Principal Balance of
the Mortgage Loan that represents ___% of the entire
Principal Balance of the Mortgage Loan and, under the
Mortgage, has an allocated loan amount of $____________
or _______% of the entire Principal Balance;
3. Certify that each of the following is true, subject to those
exceptions set forth with explanatory notes on EXHIBIT A hereto, which
exceptions the Servicer has determined, consistent with the Servicing
Standard, will have no material adverse effect on the Mortgage Loan or
the defeasance transaction:
A. The Mortgage Loan Documents permit the defeasance, and the terms
and conditions for defeasance specified therein were satisfied in
all material respects in completing the defeasance.
B. The defeasance was consummated on __________, 20__.
C. The defeasance collateral consists of securities that (i)
constitute "government securities" as defined in Section 2(a)(16)
of the Investment Company Act of 1940 as amended (15 U.S.C.
80a-1), (ii) are listed as "Qualified Investments for 'AAA'
Financings" under Paragraphs 1, 2 or 3 of "Cash Flow Approach" in
Standard & Poor's Public Finance Criteria 2000, as amended to the
date of the defeasance, (iii) are rated 'AAA' by Standard &
Poor's, (iv) if they include a principal obligation, the
principal due at maturity cannot vary or change, and (v) are not
subject to prepayment, call or early redemption. Such securities
have the characteristics set forth below:
CUSIP RATE MAT PAY DATES ISSUED
D. The Servicer received an opinion of counsel (from counsel
approved by Servicer in accordance with the Servicing Standard)
that the defeasance will not result in an Adverse REMIC Event.
E. The Servicer determined that the defeasance collateral will be
owned by an entity (the "Defeasance Obligor") as to which one of
the statements checked below is true:
____ the related Mortgagor was a Single-Purpose Entity (as
defined in Standard & Poor's Structured Finance Ratings
Real Estate Finance Criteria, as amended to the date of
the defeasance (the "S&P Criteria")) as of the date of
the defeasance, and after the defeasance owns no assets
other than the defeasance collateral and real property
securing Mortgage Loans included in the pool.
____ the related Mortgagor designated a Single-Purpose
Entity (as defined in the S&P Criteria) to own the
defeasance collateral; or
____ the Servicer designated a Single-Purpose Entity (as
defined in the S&P Criteria) established for the
benefit of the Trust to own the defeasance collateral.
F. The Servicer received a broker or similar confirmation of the
credit, or the accountant's letter described below contained
statements that it reviewed a broker or similar confirmation of
the credit, of the defeasance collateral to an Eligible Account
(as defined in the S&P Criteria) in the name of the Defeasance
Obligor, which account is maintained as a securities account by
the Trustee acting as a securities intermediary.
G. As securities intermediary, Trustee is obligated to make the
scheduled payments on the Mortgage Loan from the proceeds of the
defeasance collateral directly to the Servicer's collection
account in the amounts and on the dates specified in the Mortgage
Loan Documents or, in a partial defeasance, the portion of such
scheduled payments attributed to the allocated loan amount for
the real property defeased, increased by any defeasance premium
specified in the Mortgage Loan Documents (the "Scheduled
Payments").
H. The Servicer received from the Mortgagor written confirmation
from a firm of independent certified public accountants, who were
approved by Servicer in accordance with the Servicing Standard,
stating that (i) revenues from principal and interest payments
made on the defeasance collateral (without taking into account
any earnings on reinvestment of such revenues) will be sufficient
to timely pay each of the Scheduled Payments after the defeasance
including the payment in full of the Mortgage Loan (or the
allocated portion thereof in connection with a partial
defeasance) on its Maturity Date (or, in the case of an ARD Loan,
on its Anticipated Repayment Date), (ii) the revenues received in
any month from the defeasance collateral will be applied to make
Scheduled Payments within four (4) months after the date of
receipt, and (iii) interest income from the defeasance collateral
to the Defeasance Obligor in any calendar or fiscal year will not
exceed such Defeasance Obligor's interest expense for the
Mortgage Loan (or the allocated portion thereof in a partial
defeasance) for such year.
I. The Servicer received opinions from counsel, who were approved by
Servicer in accordance with the Servicing Standard, that (i) the
agreements executed by the Mortgagor and/or the Defeasance
Obligor in connection with the defeasance are enforceable against
them in accordance with their terms, and (ii) the Trustee will
have a perfected, first priority security interest in the
defeasance collateral described above.
J. The agreements executed in connection with the defeasance (i)
permit reinvestment of proceeds of the defeasance collateral only
in Permitted Investments (as defined in the S&P Criteria), (ii)
permit release of surplus defeasance collateral and earnings on
reinvestment to the Defeasance Obligor or the Mortgagor only
after the Mortgage Loan has been paid in full, if any such
release is permitted, (iii) prohibit any subordinate liens
against the defeasance collateral, and (iv) provide for payment
from sources other than the defeasance collateral or other assets
of the Defeasance Obligor of all fees and expenses of the
securities intermediary for administering the defeasance and the
securities account and all fees and expenses of maintaining the
existence of the Defeasance Obligor.
K. The entire Principal Balance of the Mortgage Loan as of the date
of defeasance was $___________ [$5,000,000 OR LESS OR LESS THAN
ONE PERCENT OF POOL BALANCE, WHICHEVER IS LESS] which is less
than 1% of the Aggregate Certificate Balance of the Certificates
as of the date of the most recent Paying Agent's Monthly
Certificateholder Report received by us (the "Current Report").
L. The defeasance described herein, together with all prior and
simultaneous defeasances of Mortgage Loans, brings the total of
all fully and partially defeased Mortgage Loans to
$__________________, which is _____% of the Aggregate Certificate
Balance of the Certificates as of the date of the Current Report.
4. Certify that, in addition to the foregoing, Servicer has imposed such
additional conditions to the defeasance, subject to the limitations
imposed by the Mortgage Loan Documents, as are consistent with the
Servicing Standard.
5. Certify that EXHIBIT B hereto is a list of the material agreements,
instruments, organizational documents for the Defeasance Obligor, and
opinions of counsel and independent accountants executed and delivered
in connection with the defeasance described above and that originals
or copies of such agreements, instruments and opinions have been
transmitted to the Trustee for placement in the related Mortgage File
or, to the extent not required to be part of the related Mortgage
File, are in the possession of the Servicer as part of the Servicer's
Mortgage File.
6. Certify and confirm that the determinations and certifications
described above were rendered in accordance with the Servicing
Standard set forth in, and the other applicable terms and conditions
of, the Pooling and Servicing Agreement.
7. Certify that the individual under whose hand the Servicer has caused
this Notice and Certification to be executed did constitute a
Servicing Officer as of the date of the defeasance described above.
8. Agree to provide copies of all items listed in EXHIBIT B to you upon
request.
IN WITNESS WHEREOF, the Servicer has caused this Notice and Certification
to be executed as of the date captioned above.
SERVICER:_______________________________
By:
------------------------------------
Name:
Title:
EXHIBIT AA
FORM OF XXXXX FARGO PRIMARY SERVICING AGREEMENT
(SECTION 8.29(B))
PRIMARY SERVICING AGREEMENT
DATED AS OF ______________, 20__
BETWEEN
[NAME OF SUCCESSOR MASTER SERVICER]
Master Servicer
AND
XXXXX FARGO BANK, NATIONAL ASSOCIATION
Primary Servicer
TO BE ENTERED INTO IN CONNECTION WITH
THAT CERTAIN POOLING AND SERVICING AGREEMENT
Dated as of ________ 1, 20__
among
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES, INC.
as Depositor,
[NAME OF SUCCESSOR MASTER SERVICER]
as successor Master Servicer,
ARCAP SERVICING, INC.
as Special Servicer,
LASALLE BANK NATIONAL ASSOCIATION
as Trustee,
XXXXX FARGO BANK, NATIONAL ASSOCIATION
as Paying Agent and Certificate Registrar
and
ABN AMRO BANK N.V.
as Fiscal Agent
This PRIMARY SERVICING AGREEMENT, dated and effective as of
[___________] 1, 20__, by and between XXXXX FARGO BANK, NATIONAL ASSOCIATION (in
the capacity of primary servicer, the "Primary Servicer") and [NAME OF SUCCESSOR
MASTER SERVICER], a _____________, acting solely in its capacity as successor
Master Servicer under the Pooling and Servicing Agreement (as defined below)
(the "Master Servicer").
Preliminary Statement
WHEREAS, Bear Xxxxxxx Commercial Mortgage Securities Inc., as Depositor,
Xxxxx Fargo Bank, National Association, as master servicer, ARCap Servicing,
Inc., as special servicer (together with its successors and assigns in such
capacity, the "Special Servicer"), ABN AMRO Bank N.V., as fiscal agent, Xxxxx
Fargo Bank, National Association, as paying agent and certificate registrar, and
LaSalle Bank National Association, as trustee (together with its successors and
assigns in such capacity, the "Trustee"), have entered into a Pooling and
Servicing Agreement, dated as of [date], 20__, relating to the Commercial
Mortgage Pass-Through Certificates, Series 2005-TOP20 (as amended, from time to
time, the "Pooling and Servicing Agreement"), a copy of which is attached hereto
as Exhibit A;
WHEREAS, [Name of Successor Master Servicer], has become the successor
Master Servicer under the Pooling and Servicing Agreement; and
WHEREAS, the Master Servicer desires that the Primary Servicer act as
Primary Servicer with respect to the mortgage loans listed on Schedule I hereto
(each, a "Mortgage Loan") and provide, on behalf of the Master Servicer, the
necessary servicing of the Mortgage Loans performed in a manner consistent with
the Servicing Standard and in a manner consistent with this Agreement and the
Pooling and Servicing Agreement from the Closing Date until this Agreement is
terminated in accordance herewith;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the Primary Servicer and the Master Servicer hereby
agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Definitions. As used in this Agreement, the following terms
shall have the meanings set forth below. Capitalized terms not defined herein
shall have the meanings ascribed to them in the Pooling and Servicing Agreement.
"Agreement": This Primary Servicing Agreement, as modified, amended and
supplemented from time to time, including all exhibits, schedules and addenda
hereto.
"Day One Report": With respect to each Mortgage Loan, a statement in the
form of the CMSA Loan Periodic Update File (in the form and containing the
information called for by the version of such report in effect at the time under
the reporting standards of the CMSA) setting forth the scheduled payments of
interest and principal and the amount of any unanticipated prepayments of which
the Primary Servicer has received notice (including without limitation those for
which a notice has been given to the effect that the prepayment will be made at
any time during the applicable Collection Period), indicating the Mortgage Loan
and on account of what type of payment such amount is to be applied on behalf of
the related Mortgagor.
"Loan Status Reports": The form of reports to be submitted by Primary
Servicer with respect to reporting about the status of real estate taxes, status
of insurance and status of UCC financing statement for the Mortgage Loans as
more particularly described and set forth in Exhibit B-3.
"Master Servicer": As defined in the preamble to this Agreement.
"Master Servicer Servicing Documents": A copy of the documents contained in
the Mortgage File for the Mortgage Loans.
"Monthly Remittance Report": The Monthly Remittance Report described in
Exhibit B-2 hereto and required to be delivered by the Primary Servicer to the
Master Servicer under the Task Description.
"Mortgage Loan": As defined in the Preliminary Statement.
"Officer's Certificate": In the case of the Primary Servicer, a certificate
signed by one or more of the Chairman of the Board, any Vice Chairman, the
President, or any Senior Vice President, Vice President or Assistant Vice
President or an employee designated as a Primary Servicing Officer pursuant to
this Agreement.
"Payment and Collection Description": The description of the obligations of
the Primary Servicer with respect to collection and remittance of payments on
the Mortgage Loans as more particularly described in clauses (d), (e) and (f) of
Section 2.1.
"Payment and Loan Status Reports": Collectively, the Monthly Remittance
Reports, the Loan Status Reports and the following reports described in the Task
Description: the Operating Statement Analysis Reports, the NOI Adjustment
Worksheets, the CMSA Loan Periodic Update
File, the CMSA Property File, the CMSA Servicer Watch List and the CMSA
Comparative Financial Status Report.
"Pooling and Servicing Agreement": As defined in the preamble to this
Agreement.
"Power of Attorney": A power of attorney of the Master Servicer in favor of
the Primary Servicer substantially in the form of Exhibit C hereto.
"Primary Servicer": As defined in the preamble to this Agreement.
"Primary Servicer Collection Account": An account which is an Eligible
Account established by Primary Servicer for the purposes set forth in this
Agreement in the name of "Xxxxx Fargo Bank, National Association, as Primary
Servicer for [NAME OF SUCCESSOR MASTER SERVICER], as Master Servicer for LaSalle
Bank National Association, as Trustee for the Holders of Bear Xxxxxxx Commercial
Mortgage Securities Inc., Commercial Mortgage Pass-Through Certificates, Series
2005-TOP20."
"Primary Servicer Default": As defined in Section 6.1 hereof.
"Primary Servicer Determination Date": The Business Day immediately
preceding each Determination Date.
"Primary Servicer Errors and Omissions Insurance Policy": As defined in
Section 5.4(a) hereof.
"Primary Servicer Fidelity Bond": As defined in Section 5.4(a) hereof.
"Primary Servicer Remittance Date": For each Distribution Date, the
Business Day immediately succeeding the related Primary Servicer Determination
Date.
"Primary Servicer Servicing Documents": (a) A copy of the documents
contained in the Mortgage Files for the Mortgage Loans and (b) all other
servicing documents and records in possession of Primary Servicer that relate to
or are used for the servicing of the Mortgage Loans and that are not required to
be part of the applicable Mortgage Files.
"Primary Servicing Fee": For each calendar month, as to each Mortgage Loan,
one-twelfth of the Primary Servicing Fee Rate multiplied by the Scheduled
Principal Balance of each Loan immediately before the Due Date occurring in such
month, but prorated for the number of days during the calendar month for such
Mortgage Loan for which interest actually accrues on the Mortgage Loan and only
from collections on such Mortgage Loan. The Primary Servicing Fee shall be
determined in the same manner (other than the rate and basis of accrual) as the
applicable Mortgage Rate is determined for such Mortgage Loan for such month.
"Primary Servicing Fee Rate": For each Mortgage Loan, the rate per annum
set forth as the "primary servicing fee rate" for such Mortgage Loan in the
mortgage loan schedule attached to the Pooling and Servicing Agreement.
"Primary Servicing Officer": Any officer or employee of the Primary
Servicer involved in, or responsible for, the administration and servicing of
the Mortgage Loans whose name and specimen signature appear on a list of
servicing officers or employees furnished to the Master
Servicer by the Primary Servicer and signed by an officer of the Primary
Servicer, as such list may from time to time be amended.
"Primary Servicing Termination Date": As defined in Section 6.2 hereof.
"Services": Those activities to be provided by the Primary Servicer for the
Servicing of the Mortgage Loans pursuant to the provisions of this Agreement.
"Servicing": With respect to any Mortgage Loan, the right and obligation of
the Primary Servicer to administer such Mortgage Loan in accordance with the
provisions hereof.
"Servicing Documents": The Master Servicer Servicing Documents and Primary
Servicer Servicing Documents.
"Servicing Standard": With respect to the Primary Servicer, to service and
administer the Mortgage Loans that the Primary Servicer is obligated to service
and administer pursuant to this Agreement on behalf of the Master Servicer and
in the best interests of and for the benefit of the Certificateholders (as
determined by the Primary Servicer in its good faith and reasonable judgment),
in accordance with applicable law, the terms of this Agreement and the terms of
the respective Mortgage Loans and, to the extent consistent with the foregoing,
further as follows: (a) with the same care, skill and diligence as is normal and
usual in its general mortgage servicing and REO property management activities
on behalf of third parties or on behalf of itself, whichever is higher, with
respect to mortgage loans and REO properties that are comparable to those for
which it is responsible hereunder; (b) with a view to the timely collection of
all scheduled payments of principal and interest under the Mortgage Loans; and
without regard to: (I) any other relationship that the Primary Servicer, or any
Affiliate thereof, may have with the related Mortgagor; (II) the ownership of
any Certificate by the Primary Servicer, or any Affiliate thereof; (III) the
Master Servicer's obligation to make Advances; and (IV) the right of the Primary
Servicer (or any Affiliate thereof) to receive reimbursement of costs, or the
sufficiency of any compensation payable to it, hereunder or with respect to any
particular transaction; provided, however, that in no event shall the foregoing
standards be less than the applicable provisions of the Servicing Standard set
forth in the Pooling and Servicing Agreement.
"Special Servicer": As defined in the Preliminary Statement.
"Successor Primary Servicer": The Person selected by the Master Servicer
upon the termination of the Primary Servicer resulting from any Primary Servicer
Default, if any, who shall thereafter perform the Services with respect to the
Mortgage Loans; provided, that the Master Servicer shall perform all Services
with respect to the Mortgage Loan until such Person, if any, is selected.
"Task Description": The outline description of the obligations of the
Primary Servicer and Master Servicer with respect to the Mortgage Loans as set
forth in Exhibit B-5 attached to this Agreement.
"Trustee": As defined in the Preliminary Statement.
ARTICLE II
PRIMARY SERVICING
Section 2.1 Primary Servicing.
(a) From the Closing Date until the Primary Servicing Termination
Date, Master Servicer hereby authorizes and directs the Primary Servicer to
service, and the Primary Servicer hereby agrees to service, the Mortgage Loans
as primary servicer on behalf and at the direction of the Master Servicer as
provided in this Agreement.
(b) The Primary Servicer shall perform all tasks and responsibilities
necessary to satisfy the requirements set forth under the Task Description, in
each case in a manner not inconsistent with the Pooling and Servicing Agreement.
(c) On or before the Closing Date the Primary Servicer shall establish
the Primary Servicer Collection Account, which shall be an Eligible Account,
notify the Master Servicer in writing of the name and address of the depository
institution at which the Primary Servicer Collection Account is maintained and
the number of the Primary Servicer Collection Account. The Primary Servicer
shall deliver to the Master Servicer prior written notice of any change in the
location, name or address of the applicable depository institution or account
number of the Primary Servicer Collection Account.
(d) The Primary Servicer shall make efforts consistent with the
Servicing Standard to collect all monthly payments of principal and interest
with respect to the Mortgage Loans (except for payments due on or prior to the
Cut-Off Date), as well as late charges, default interest, Prepayment Premiums,
Insurance Proceeds, Condemnation Proceeds and any and all other amounts due from
the Mortgagor or a third party with respect to the Mortgage Loans pursuant to
the mortgage loan documents for each Mortgage Loan; provided, however, that with
respect to any payments that are required under the terms of the applicable
mortgage loan documents to be made directly to a Person other than the holder of
the related Mortgage Loan, the Primary Servicer shall use efforts consistent
with the Servicing Standard to cause such payments to be made. The Primary
Servicer shall deposit all payments and collections received by the Primary
Servicer into the Primary Servicer Collection Account on or before the next
Business Day after receiving each such payment; provided, however, that the
Primary Servicer shall be entitled to retain and pay to itself the related
Primary Servicing Fee from the interest portion of any such payments.
(e) The Primary Servicer shall not withdraw funds from the Primary
Servicer Collection Account, except as follows: (1) on the Primary Servicer
Remittance Date occurring in each month, the Primary Servicer shall remit to the
Master Servicer by wire transfer of immediately available funds any and all
amounts on deposit in the Primary Servicer Collection Account as of the close of
business on the Primary Servicer
Determination Date occurring in such month (net of any amounts permitted to be
withdrawn prior thereto), other than any amounts that represent Scheduled
Payments received for a Due Date occurring after such Primary Servicer
Determination Date; (2) the Primary Servicer shall remit to the Master Servicer
by wire transfer of immediately available funds within one Business Day
following the receipt thereof any late payments and any principal prepayments or
other unscheduled payments or Balloon Payments (in each case including the
related interest payment paid by the Mortgagor); (3) the Primary Servicer shall
be entitled to withdraw and pay to itself any investment or other income earned
on amounts on deposit in the Primary Servicer Collection Account to the extent
provided below; (4) the Primary Servicer shall withdraw and pay to itself each
other item of compensation to which it is entitled (but only from the amounts
from which such compensation is payable as otherwise provided herein) and (5)
the Primary Servicer shall be entitled to withdraw from the Primary Servicer
Collection Account at any time any amounts on deposit therein that were not
required to be deposited into the Primary Servicer Collection Account. The
Master Servicer shall notify the Primary Servicer not later than 3:00 p.m. (New
York City time) on each Primary Servicer Remittance Date if the Master Servicer
has not then received a remittance from the Primary Servicer. The Primary
Servicer shall keep and maintain separate accounting for the purpose of
justifying any withdrawals made from the Primary Servicer Collection Account. In
the event any payments received by Primary Servicer becomes NSF after the monies
associated with that payment have been remitted to the Master Servicer, the
Master Servicer will return such moneys to Primary Servicer by wire transfer in
immediately available funds within one Business Day following notice from the
Primary Servicer. Funds in the Primary Servicer Collection Account may be
invested and, if invested, shall be invested by, and at the risk of, the Primary
Servicer in Eligible Investments selected by the Primary Servicer which shall
mature, unless payable on demand, not later than the Business Day immediately
preceding the next date on which such funds are required to be remitted to the
Master Servicer, and any such Eligible Investment shall not be sold or disposed
of prior to its maturity unless payable on demand. All such Eligible Investments
shall be made in the name of "LaSalle Bank National Association, as Trustee for
the Holders of the Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2005-TOP20." An amount equal to all
income and gain realized from any such investment shall be for the account of
the Primary Servicer as additional servicing compensation and the Primary
Servicer shall be entitled to withdraw such income and gain from the Primary
Servicer Collection Account at any time and from time to time. The amount of any
losses incurred in respect of any such investments shall be for the account of
the Primary Servicer, which shall deposit the amount of such loss (to the extent
not offset by income from other investments) in the Primary Servicer Collection
Account out of its own funds immediately as realized.
(f) With respect to escrow or reserve payments as listed on the Task
Description, the Primary Servicer shall collect escrow or reserve amounts with
respect to the Mortgage Loans, and shall deposit such funds in an escrow
account, which shall be an Eligible Account, and shall maintain, disburse and
account for such funds as provided in the Task Description, for real estate
taxes, insurance and reserves, and escrows for
repairs, replacements, principal and interest payments and lease payments, and
any other matters specified in any agreement in which funds are held at the
time, and in the manner and for the purposes as otherwise required or delineated
in the mortgage loan documents for each Mortgage Loan and with respect to the
Master Servicer under the Pooling and Servicing Agreement. The Primary Servicer
may direct the investment of such funds subject to and in accordance with the
criteria and requirements set forth in the Pooling and Servicing Agreement
relating to Escrow Accounts, including without limitation the obligation to
deposit into the Escrow Account the amount of any investment losses to the
extent required in the Pooling and Servicing Agreement. The Primary Servicer
shall have the benefit and shall retain all interest and income earned on the
Escrow Accounts for the Mortgage Loans that is not paid to Mortgagors.
(g) Notwithstanding any contrary provision of the Task Description, if
at any time that the Primary Servicer determines that any Mortgagor may not or
does not maintain terrorism insurance required by the mortgage loan documents
and the Pooling and Servicing Agreement, the Primary Servicer shall promptly
notify the Master Servicer of such possible or actual failure and, if requested,
provide the Master Servicer with details of the Mortgagor's insurance coverage.
The Master Servicer will make (i) the determination of whether or not the
insurance coverage meets the requirements of the mortgage loan documents and the
Pooling and Servicing Agreement, including any assessment of the availability of
such insurance at commercial reasonable rates and terms, (ii) any decision to
advance or force place insurance and (iii) any determination to waive or enforce
any such insurance requirement.
Section 2.2 Standard of Care. The Primary Servicer shall perform all
Services on behalf of the Master Servicer in accordance with the terms of this
Agreement, the Servicing Standard and the applicable provisions of the Pooling
and Servicing Agreement. Primary Servicer and the Master Servicer agree that, in
connection with the performance of its obligations hereunder, the Primary
Servicer shall be entitled to request from the Master Servicer, and the Master
Servicer agrees that it shall provide, express instructions for the completion
of any of the Services to be performed or completed by the Primary Servicer, to
the extent necessary to clarify any ambiguities in the terms of this Agreement.
The Master Servicer further agrees that the Primary Servicer shall be entitled
to rely upon any such written instructions. The Master Servicer shall be
entitled from time to time to provide reasonable instructions to the Primary
Servicer regarding the actions or inactions that comply with the Servicing
Standard under the Pooling and Servicing Agreement and the Primary Servicer
shall comply with such instructions.
Section 2.3 Compensation and Other Payments to the Primary Servicer.
As consideration for the Primary Servicer's performance of the Services
hereunder, the Primary Servicer shall be entitled to deduct (and retain from the
remittance otherwise required to be made to the Master Servicer) the Primary
Servicing Fee in accordance with Section 2.1(e) of this Agreement, with respect
to the related Collection Period for the Mortgage Loans, and only with respect
to such Mortgage Loan for which a
payment was received by the Master Servicer or forwarded to the Master Servicer
by the Primary Servicer. Notwithstanding the foregoing, Primary Servicer shall
not be entitled to a Primary Servicing Fee with respect to any Mortgage Loan for
which a Servicing Transfer Event has occurred unless such Mortgage Loan becomes
a Rehabilitated Mortgage Loan or with respect to which the Primary Servicer has
been terminated as Primary Servicer under this Agreement and the Pooling and
Servicing Agreement.
Primary Servicer shall have the benefit and shall retain all interest
and income earned on the Primary Servicer Collection Account for the Mortgage
Loans to the extent provided in Section 2.1(e) and on the escrow accounts to the
extent provided in Section 2.1(f). If Primary Servicer is terminated under this
Agreement, it shall be entitled to collect all such interest and income that
accrues through the date of termination. If any Mortgage Loan becomes a
Specially Serviced Mortgage Loan, Primary Servicer shall be entitled to collect
all such interest and income that accrues through the date of the applicable
Servicing Transfer Event. The right to retain such interest and income shall
resume if such Mortgage Loan becomes a Rehabilitated Mortgage Loan.
The Primary Servicer shall also be entitled to retain the fees or
portions of fees set forth in the Task Description and Exhibit B-6. The Primary
Servicer shall not be entitled to receive any default interest or late fees
collected from the Mortgagor, and the Primary Servicer shall promptly, upon
collection of such amounts, forward such interest and fees to the Master
Servicer in accordance with the Payment and Collection Description. Primary
Servicer may waive the right to collect a fee or portion of a fee to which it is
entitled under this Agreement but may not waive or otherwise affect the rights
of other parties to any other fees or portions of fees to which Primary Servicer
is not entitled.
The Primary Servicer shall be required to pay out of its own funds,
without reimbursement, all overhead and general and administrative expenses
incurred by it in connection with its servicing activities hereunder, including
costs for office space, office equipment, supplies and related expenses,
employee salaries and related expenses and similar internal costs and expenses,
and Primary Servicer shall be required to pay all expenses that it incurs in the
administration of this Agreement (but not those incurred at the direction or
request of Master Servicer or a third party which direction or request requires
the performance of a task or obligation not contemplated of Primary Servicer
under this Agreement) and shall not be entitled to reimbursement of such costs
and expenses, except (1) as may be specifically provided in this Agreement or
(2) to the extent expenses are reimbursable by a Mortgagor under the applicable
mortgage loan documents and the Mortgagor makes such reimbursement.
Section 2.4 Primary Servicer Representations and Warranties. The
Primary Servicer hereby makes for the benefit of the Master Servicer the same
representations and warranties as are made by the Master Servicer under Section
___ of the Pooling and Servicing Agreement; provided, however, that references
therein to the
Master Servicer shall be deemed to be references to the Primary Servicer and
references to the Trustee shall be deemed references to the Master Servicer.
ARTICLE III
DOCUMENTS AND OTHER MATTERS
Section 3.1 Segregation of Loan Documents. The Primary Servicer shall
segregate the Primary Servicer Servicing Documents related to the Mortgage Loans
from all other assets of the Primary Servicer and, upon request, forward to the
Master Servicer copies of such documents or originals of such documents if in
the possession of Primary Servicer and not part of the Mortgage File forwarded
to the Trustee.
Section 3.2 Access to Documents; Provision of Certain Information. The
Primary Servicer shall make available to the Master Servicer or any Successor
Primary Servicer, at a reasonable time, such information as the Master Servicer
or such Successor Primary Servicer shall reasonably request in writing and shall
make available to the Master Servicer or any Successor Primary Servicer or
Persons designated by the Master Servicer or such Successor Primary Servicer
such documents as the Master Servicer shall reasonably request in writing. To
the extent the Primary Servicer possesses the information described in Section
8.15(b) of the Pooling and Servicing Agreement, the Primary Servicer shall
afford access to that information to those Persons identified in such Section
that are entitled to such access from the Master Servicer. The Master Servicer
shall make available to the Primary Servicer, at a reasonable time, such
information as the Primary Servicer shall reasonably request in writing in
connection with the performance of the Services and, subject to the terms and
conditions of Section 8.15(b) of the Pooling and Servicing Agreement, shall make
available to the Primary Servicer or Persons designated by the Primary Servicer
such documents related to the Mortgage Loans and the Servicing of the Mortgage
Loans as the Primary Servicer shall reasonably request in writing.
ARTICLE IV
MASTER SERVICER ASSISTANCE
Section 4.1 Master Servicer Assistance.
(a) The Master Servicer shall make reasonable efforts to do any and
all things reasonably requested by the Primary Servicer to enable the Primary
Servicer to render the Services, including, without limitation, delivering to
the Trustee any receipts or other documentation that the Trustee may require to
allow it to release any Mortgage Files or documents contained therein or
acquired in respect thereof requested by the Primary Servicer. Notwithstanding
any other provision of this Agreement to the contrary (including any contrary
provision of Exhibit B-5), the Primary Servicer shall do any and
all things reasonably requested by the Master Servicer to enable the Master
Servicer to comply with its obligations under the Pooling and Servicing
Agreement. Before the Master Servicer releases all or any portion of any
Mortgage File or document contained therein or acquired in respect thereof to
the Primary Servicer, the Master Servicer may require the Primary Servicer to
execute a receipt therefor or, in the event of a Mortgage Loan that has been
repaid in full, a certificate with respect to the payment in full of the related
Mortgage Loan.
(b) The Master Servicer shall deliver to the Primary Servicer the
Power of Attorney on or before the Closing Date. If required in connection with
the provision of the Services, the Master Servicer shall furnish, or cause to be
furnished, to the Primary Servicer, upon request, any powers of attorney of the
Master Servicer or the Trustee, empowering the Primary Servicer to take such
actions as it determines to be reasonably necessary to comply with its Servicing
duties hereunder or to enable the Primary Servicer to service and administer the
Mortgage Loans and carry out its duties hereunder, in each case in accordance
with the Servicing Standard and the terms of this Agreement. The Primary
Servicer hereby agrees to indemnify the Master Servicer and the Trustee from any
loss, damage, expense or claim relating to misuse or wrongful use of any such
power of attorney.
Section 4.2 Specially Serviced Mortgage Loans. The Primary Servicer
shall promptly notify the Master Servicer and the Special Servicer, with respect
to each Specially Serviced Mortgage Loan, of any questions, complaints, legal
notices, or other communications relating to the foreclosure or default of such
loans or bankruptcy proceedings of a Mortgagor that are received by the Primary
Servicer and such other matters as would, consistent with the Servicing
Standard, require notification to the owner or the servicer of the Mortgage
Loan. The Master Servicer shall notify the Primary Servicer of any Specially
Serviced Mortgage Loan becoming a Rehabilitated Mortgage Loan promptly following
the Master Servicer's receipt of notice to such effect from the Special Servicer
and shall request, upon request by the Primary Servicer, from the Special
Servicer copies of all relevant documents received by the Special Servicer
during the time that such Mortgage Loan was a Specially Serviced Mortgage Loan
and deliver to the Primary Servicer such documents promptly following the Master
Servicer's receipt thereof, together with any relevant documents received by the
Master Servicer (other than from the Primary Servicer) during the time that such
Mortgage Loan was a Specially Serviced Mortgage Loan.
ARTICLE V
ADDITIONAL PRIMARY SERVICER COVENANTS
Section 5.1 Additional Notices. The Primary Servicer shall promptly
notify the Master Servicer of any significant events which become known to
Primary Servicer affecting the Mortgage Loans, the related Mortgagor or related
Mortgaged Property, such as a payment default, a bankruptcy, a judicial lien or
casualty
event, and the Primary Servicer shall also promptly advise the Master Servicer
of all material collection and customer service issues and, if requested, shall
furnish the Master Servicer with copies of any correspondence or other documents
in the possession of the Primary Servicer related to any such matter. If
litigation is instituted with respect to a Mortgage Loan, the Primary Servicer,
if aware of such litigation, shall notify the Master Servicer immediately as to
the status of the litigation related to such Mortgage Loan and shall, when
reasonably required or requested by the Master Servicer, provide to the Master
Servicer copies of all pertinent information in the Primary Servicer's
possession related to such litigation, including, without limitation, copies of
related Servicing Documents.
Section 5.2 Annual Officer's Certificate as to Compliance. The Primary
Servicer shall deliver to the Master Servicer on or before March 15 of each
year, commencing in the calendar year immediately following the calendar year in
which the Closing Date occurs, an Officer's Certificate of a Primary Servicing
Officer certifying that, with respect to the period ending on the preceding
December 31, (i) such Primary Servicing Officer has reviewed the activities of
the Primary Servicer during the preceding calendar year or portion thereof and
its performance under this Agreement has been made under such officer's
supervision and (ii) to the best of such Primary Servicing Officer's knowledge,
based on such review, the Primary Servicer has performed and fulfilled its
duties, responsibilities and obligations under this Agreement in all material
respects throughout such year, or, if there has been a default in the
fulfillment of any such duties, responsibilities or obligations, specifying each
such default known to such Primary Servicing Officer and the nature and status
thereof.
Section 5.3 Annual Independent Accountants' Servicing Report. Not
later than March 15 of each year (or March 14 if a leap year), commencing in the
calendar year immediately following the calendar year in which the Closing Date
occurs, the Primary Servicer at its own expense shall cause a firm of nationally
recognized Independent public accountants (who may also render other services to
the Primary Servicer) which is a member of the American Institute of Certified
Public Accountants to furnish a statement (an "Accountant's Statement") to the
Master Servicer to the effect that (i) such firm has obtained a letter of
representations regarding certain matters from the management of the Primary
Servicer, which includes an assertion that the Primary Servicer 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 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 representation is fairly stated in all material respects, subject to such
exceptions and other qualifications that may be appropriate. If the same entity
acts as Primary Servicer hereunder and Special Servicer under the Pooling and
Servicing Agreement, the Accountant's Statement may be delivered as part of a
single statement.
Section 5.4 Fidelity Bond and Errors and Omissions Insurance Policy.
(a) The Primary Servicer, at its own expense, shall maintain in effect
a fidelity bond (the "Primary Servicer Fidelity Bond") and an errors and
omissions policy (the "Primary Servicer Errors and Omissions Insurance Policy")
with a Qualified Insurer, naming the Master Servicer as certificateholder,
affording coverage for all directors, officers and employees (it being
acknowledged that a "Qualified Insurer" shall for this purpose include any
entity that satisfies all of the criteria, other than the ratings criteria, set
forth in the definition of "Qualified Insurer" and whose obligations under the
related Primary Servicer Fidelity Bond or Primary Servicer Errors and Omissions
Insurance Policy are guaranteed or backed by an entity that satisfies the
ratings criteria set forth in the definition of "Qualified Insurer" (construed
as if such entity were an insurer referred to therein)). The Primary Servicer
Errors and Omissions Insurance Policy and Primary Servicer Fidelity Bond shall
be in such form and amount that would satisfy the requirements for such policies
as the Master Servicer must satisfy as set forth in Section 8.2 of the Pooling
and Servicing Agreement. The Primary Servicer shall furnish to the Master
Servicer, not later than thirty (30) days after the Closing Date, evidence
(which evidence may consist of a certificate from the applicable insurance
company or companies) of the Primary Servicer's compliance with this Section
5.4(a).
(b) The Primary Servicer shall promptly report in writing to the
Master Servicer any material adverse changes that may occur in the Primary
Servicer Fidelity Bond or the Primary Servicer Errors and Omissions Insurance
Policy and shall furnish to the Master Servicer upon written request copies of
all certificates from the applicable insurance company or companies evidencing
that such bond and insurance policy are in full force and effect. If a bond or
insurance claim report is filed with any of the Primary Servicer's bonding
companies or insurers relating to the Mortgage Loans or the servicing thereof, a
copy of such report (which report may omit any references to individuals
suspected of such embezzlement, fraud or irregularities of operation) shall be
promptly furnished to the Master Servicer.
Section 5.5 Primary Servicer's Financial Statements and Related
Information. The Primary Servicer shall deliver to the Master Servicer, within
120 days after the end of its fiscal year, a copy of its annual financial
statements, such financial statements to be audited if then customarily audited,
and with respect to any unaudited financial statements provided by the Primary
Servicer, which financial statements shall be certified by the Primary
Servicer's chief financial officer to be true, correct and complete. The Primary
Servicer shall notify the Master Servicer, as of the Closing Date, of the
Primary Servicer's fiscal year and shall notify the Master Servicer promptly
after any change thereof.
Section 5.6 No Advancing. Under no circumstance shall the Primary
Servicer make or have an obligation to make any Advances. The Primary Servicer
will promptly notify the Master Servicer in accordance with the Task
Description if the Primary Servicer believes that a Servicing Advance is or will
be required to be made with respect to any Mortgage Loan.
Section 5.7 Inspection Rights. The Primary Servicer shall afford the
Master Servicer and the Trustee, upon reasonable notice and during normal
business hours, reasonable access to all records, information, books and
documentation regarding the Mortgage Loans, and all accounts, insurance policies
and other relevant matters relating to this Agreement, and access to Primary
Servicing Officers of the Primary Servicer responsible for its obligations
hereunder. Without limiting the foregoing, the Master Servicer may visit the
offices of the Primary Servicer no more than once annually (including visits
under similar primary servicing agreements between the Master Servicer and the
Primary Servicer for commercial mortgage loans) for the purpose of reviewing the
Primary Servicer's compliance with this Agreement and such similar agreements,
upon reasonable notice and during normal business hours, and Primary Servicer
will cooperate with Master Servicer to provide Master Servicer with the
information that Master Servicer reasonably requests to permit such review.
Section 5.8 Authorized Officer. Primary Servicer shall provide Master
Servicer promptly with a written list of authorized Primary Servicing Officers
of Primary Servicer, which may be amended from time to time by written notice
from Primary Servicer to Master Servicer; provided, however, that such list
shall denote one principal Primary Servicing Officer responsible for the Primary
Servicer's obligations under this Agreement.
Section 5.9 Additional Reports. Primary Servicer shall produce such
additional written reports with respect to the Mortgage Loans as the Master
Servicer may from time to time reasonably request in order to comply with its
obligations under the Pooling and Servicing Agreement, provided that if any
Person is requesting the report from the Master Servicer pursuant to the Pooling
and Servicing Agreement, such report constitutes an ad-hoc non-standard report,
no additional recalculation or combinations of the information provided by the
Primary Servicer are required for the Master Servicer to produce such report and
the Master Servicer receives a fee for the production of such report, then the
Master Servicer shall pay such fee to the Primary Servicer.
Section 5.10 Consents. Proposed modifications, waivers, consents or
amendments shall be handled as set forth in Exhibit B-6.
Section 5.11 Xxxxxxxx-Xxxxx Backup Certification. The Primary Servicer
shall execute and deliver to the Master Servicer a backup certification
substantially in the form set forth in Exhibit D hereto ("Backup Certification")
no later than March 25 of each year in which the Master Servicer becomes subject
to a certification obligation under the Pooling and Servicing Agreement in
connection with the certification requirements of the Xxxxxxxx-Xxxxx Act of 2002
and the rules and regulations promulgated by the Commission thereunder
(including any interpretations thereof by the staff of the Commission).
Section 5.12 Quarterly Servicing Accounts Reconciliation
Certification. The Primary Servicer shall execute and deliver to the Master
Servicer a certification substantially in the form set forth in Exhibit E hereto
no later than the 15th calendar day of each February, May, August and November,
commencing in May 20__ (the date of such delivery, in each case, a
"Reconciliation Certification Date"), with respect to the calendar quarters
ending the immediately preceding December 31st, March 31st, June 30th and
September 30th, respectively.
ARTICLE VI
PRIMARY SERVICER DEFAULT; TERMINATION;
POST-TERMINATION OBLIGATIONS
Section 6.1 Primary Servicer Default. Each of the following events
shall constitute a "Primary Servicer Default" hereunder:
(i) any failure by the Primary Servicer to remit to the Master
Servicer when due any amount required to be remitted under this Agreement
and the continuation of such failure for a period of one Business Day; or
(ii) any failure by the Primary Servicer duly to observe or
perform in any material respect any of the covenants or agreements on the
part of the Primary Servicer contained in this Agreement, which failure
continues unremedied for a period of twenty-five (25) days after the date
on which written notice of such failure, requiring the same to be remedied,
shall have been given to the Primary Servicer by the Master Servicer;
provided, however, that to the extent the Master Servicer determines, in
its reasonable discretion, that the Primary Servicer is in good faith
attempting to remedy such failure and the Certificateholders shall not be
materially and adversely affected thereby, such cure period may be extended
to the extent necessary to permit the Primary Servicer to cure such
failure; provided, further, that such cure period may not exceed sixty (60)
days; and; provided, further that if such failure to perform on the part of
the Primary Servicer results in an Event of Default by the Master Servicer
under the Pooling and Servicing Agreement, then the cure periods described
in this Section 6.1(ii) shall not apply; or
(iii) any breach of the representations and warranties made
pursuant to Section 2.4 hereof that materially and adversely affects the
interest of the Master Servicer and that continues unremedied for a period
of twenty-five (25) days after the date on which written notice of such
breach, requiring the same to be remedied, shall have been given by the
Master Servicer to Primary Servicer; provided, however, that to the extent
the Master Servicer determines in
its reasonable discretion that the Primary Servicer is in good faith
attempting to remedy such breach and the Certificateholders shall not be
materially and adversely affected thereby, such cure period may be extended
to the extent necessary to permit the Primary Servicer to cure such breach;
provided, however, that such cure period may not exceed sixty (60) days;
and provided, further, that if such failure to perform on the part of the
Primary Servicer results in an Event of Default (or an event that with
notice or the passage of time would constitute such an Event of Default) by
the Master Servicer under the Pooling and Servicing Agreement, then the
cure periods described in this Section 6.1(iii) shall not apply; or
(iv) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case under
any present or future federal or state bankruptcy, insolvency or similar
law for the appointment of a conservator, receiver, liquidator, trustee or
similar official in any bankruptcy, insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against
the Primary Servicer and such decree or order shall have remained in force
undischarged or unstayed for a period of sixty (60) days; or
(v) the Primary Servicer shall consent to the appointment of a
conservator, receiver, liquidator, trustee or similar official in any
bankruptcy, insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings or of or relating to all or
substantially all of its property; or
(vi) the Primary 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
(vii) any other event caused by the Primary Servicer which
creates an Event of Default (or an event that with notice or the passage
time would constitute such an Event of Default) of the Master Servicer
under the Pooling and Servicing Agreement.
Primary Servicer agrees to give prompt written notice to Master
Servicer upon the occurrence of any Primary Servicer Default.
If the Primary Servicer fails to remit to the Master Servicer when due
any amount required to be remitted under this Agreement (whether or not such
failure constitutes a Primary Servicer Default), then interest shall accrue on
the amount that was required to be remitted, and the Primary Servicer shall
promptly pay such interest to the Master Servicer, at a per annum rate equal to
the Advance Rate from and including the
date when such remittance was required to be made to but excluding the day when
such remittance is actually made.
Section 6.2 Termination.
(a) The obligations and responsibilities of the Primary Servicer as
created hereby (other than as expressly provided herein) shall terminate upon
the earlier to occur of (i) the receipt by the Primary Servicer of the Master
Servicer's written notice of such termination delivered at the Master Servicer's
option following the occurrence of a Primary Servicer Default or (ii) the final
payment or other liquidation of the last Mortgage Loan remaining outstanding
(the "Primary Servicing Termination Date"). From and after the Primary Servicing
Termination Date, the Primary Servicer shall, if applicable, continue to
cooperate in the transfer of primary servicing, including the delivery of files
and transfer of accounts as contemplated hereby but shall have no further
obligations under this Agreement.
(b) Without limiting the foregoing, the Primary Servicer agrees that
the rights and duties of the Master Servicer under this Agreement and the
Pooling and Servicing Agreement may be assumed by a successor Master Servicer or
the Trustee upon a termination of the Master Servicer's servicing rights
pursuant to the Pooling and Servicing Agreement.
(c) Primary Servicer's rights and obligations shall expressly survive
a termination of Master Servicer's servicing rights pursuant to the Pooling and
Servicing Agreement (except a termination of Master Servicer caused by a Primary
Servicer Default). In the event of such a termination, any successor Master
Servicer or the Trustee (if it assumes the servicing obligations of the Master
Servicer) shall be deemed to automatically have assumed and agreed to this
Agreement without further action upon becoming the successor Master Servicer.
(d) Upon the request of Primary Servicer, the successor Master
Servicer or Trustee, as applicable, shall confirm to Primary Servicer in writing
that this Agreement remains in full force and effect. Upon the request of the
successor Master Servicer or Trustee, Primary Servicer shall confirm to the
successor Master Servicer or Trustee, as applicable, in writing that this
Agreement remains in full force and effect.
(e) The Master Servicer's reimbursement obligations to the Primary
Servicer hereunder and the Primary Servicer's entitlement to payment of the
Primary Servicing Fee hereunder shall survive the Primary Servicing Termination
Date, but only to the extent such reimbursement or such Primary Servicing Fee
relates to a period prior to the termination of all of the Primary Servicer's
obligations hereunder.
(f) The rights of Master Servicer to terminate Primary Servicer upon
the occurrence of a Primary Servicer Default shall be in addition to any other
rights
Master Servicer may have at law or in equity, including injunctive relief or
specific performance.
Section 6.3 Assignment by Primary Servicer. This Agreement and the
rights and benefits hereunder of the Primary Servicer shall not be assignable,
and the duties and obligations hereunder of such party shall not be delegable;
provided, however, that (i) the Primary Servicer may assign, sell or transfer
its rights and duties under this Agreement (in whole and not in part) to a
parent company of Primary Servicer or a wholly-owned subsidiary or affiliate of
such party, or a successor by merger of Primary Servicer; (ii) the Primary
Servicer shall be entitled to employ subcontractors to the extent provided in
Article VII and (iii) the Primary Servicer shall be entitled to assign, sell or
transfer its rights and duties under this Agreement (in whole and not in part),
provided that (in the case of this subclause (iii)) either (A) the Master
Servicer has approved the proposed successor, such approval not to be
unreasonably withheld, or (B) the proposed successor to the Primary Servicer
then: (a) is rated "above average" or the equivalent by each Rating Agency, (b)
has at least $15,000,000 in total assets and (c) is appropriately qualified to
do business and/or is licensed in all jurisdictions where such qualification
and/or licensing is necessary to service the Mortgage Loans. Any such assignment
under this Section 6.3 (other than one described in clause (ii) above) shall (i)
not be effective until such successor Primary Servicer enters into a written
agreement satisfactory to Master Servicer agreeing to be bound by the terms and
provisions of this Agreement (but not altering the obligations under this
Agreement); and (ii) not relieve the assigning Primary Servicer of any duties or
liabilities arising or incurred prior to such assignment. Any costs or expenses
incurred in connection with such assignment shall be payable by the assigning
Primary Servicer. Any assignment or delegation or attempted assignment or
delegation in contravention of this Agreement shall be null and void.
Section 6.4 Resignation of Primary Servicer. The Primary Servicer
shall not resign from the obligations and duties hereby imposed on it (except as
otherwise permitted under Section 6.3) unless it determines that the Primary
Servicer's duties hereunder are no longer permissible under applicable law or
are in material conflict by reason of applicable law with any other activities
carried on by it. Any such determination permitting the resignation of the
Primary Servicer shall be evidenced by an Opinion of Counsel to such effect
delivered to the Master Servicer. No such resignation shall become effective
until a successor servicer designated by the Master Servicer shall have assumed
the Primary Servicer's responsibilities and obligations under this Agreement.
Section 6.5 Post-Termination Obligations.
(a) In the event of a termination of the Primary Servicer's rights and
duties hereunder due to a Primary Servicer Default, any assignment of the
Primary Servicer's rights and duties hereunder permitted under Section 6.3 or
any resignation of the Primary Servicer from its rights and duties hereunder
permitted under Section 6.4, as the case may be, the Primary Servicer shall
promptly (i) deliver the Servicing Documents
to the Master Servicer or a Successor Primary Servicer, as directed by the
Master Servicer, (ii) remit to or at the direction of the Master Servicer, by
wire transfer of immediately available funds, all cash held by the Primary
Servicer with respect to the Mortgage Loans (other than any portion of such cash
representing primary servicing compensation to which the Primary Servicer is
entitled pursuant to Section 2.3), and (iii) if so requested by the Master
Servicer, assign to the Master Servicer or a Successor Primary Servicer, as
directed by the Master Servicer, and in such event the Master Servicer shall
assume, or cause the Successor Primary Servicer to assume, all service contracts
related to the Mortgage Loans transferred thereon but only to the extent such
contracts are assignable and the required consents (if any) to such assignments
have been obtained. The Primary Servicer shall use all reasonable efforts to
obtain the consents required to effect such assignments.
(b) On and after the Primary Servicing Termination Date, the date of
any assignment of the Primary Servicer's rights and duties hereunder in
accordance with Section 6.3 or the date of any resignation by the Primary
Servicer from its rights and duties hereunder in accordance with Section 6.4, as
the case may be, the Primary Servicer shall promptly endorse and send to or at
the direction of the Master Servicer via overnight mail or delivery service any
checks or other funds in respect of the Mortgage Loans which are received by the
Primary Servicer.
(c) The Primary Servicer shall provide to the Master Servicer promptly
(but in no event later than ten (10) Business Days) after the Primary Servicing
Termination Date, the date of any assignment of the Primary Servicer's rights
and duties hereunder in accordance with Section 6.3 or the date of any
resignation by the Primary Servicer from its rights and duties hereunder in
accordance with Section 6.4, as the case may be, the following information, in
each case as of such date: (a) a ledger accounting itemizing the dates and
amounts of all payments made, received or applied by the Primary Servicer with
regard to the Mortgage Loans, further itemizing principal and interest payments,
tax payments, special assessments, hazard insurance, mortgage insurance
premiums, ground rents, if any, and all other payments and (b) a current trial
balance for such Mortgage Loan.
(d) On a date to be agreed upon by the Primary Servicer and the Master
Servicer, but not later than the Business Day following the Primary Servicing
Termination Date, the date of any assignment of the Primary Servicer's rights
and duties hereunder in accordance with Section 6.3 or the date of any
resignation by the Primary Servicer from its rights and duties hereunder in
accordance with Section 6.4, as the case may be, the Primary Servicer shall
commence and continue diligently to completion at its own expense, to notify the
Mortgagors under the Mortgage Loans of the address to which payments on such
Mortgage Loans should be sent after the Primary Servicing Termination Date, the
date of any assignment of the Primary Servicer's rights and duties hereunder in
accordance with Section 6.3 or the date of any resignation by the Primary
Servicer from its rights and duties hereunder in accordance with Section 6.4, as
the case may be; provided, however, that in any event, Primary Servicer shall be
obligated to
notify Mortgagors within seven (7) Business Days following the Primary Servicing
Termination Date, the date of any assignment of the Primary Servicer's rights
and duties hereunder in accordance with Section 6.3 or the date of any
resignation by the Primary Servicer from its rights and duties hereunder in
accordance with Section 6.4, as the case may be.
(e) The Primary Servicer shall promptly forward to the Master
Servicer, at the Primary Servicer's expense all Mortgagor correspondence,
insurance notices, tax bills or any other correspondence or documentation
related to any Mortgage Loan which is received by the Primary Servicer after the
Primary Servicing Termination Date, the date of any assignment of the Primary
Servicer's rights and duties hereunder in accordance with Section 6.3 or the
date of any resignation by the Primary Servicer from its rights and duties
hereunder in accordance with Section 6.4, as the case may be.
(f) The Primary Servicer shall otherwise cooperate in the orderly
transfer of the servicing of the Mortgage Loans and shall forward to the Master
Servicer and any Successor Primary Servicer such documents as it may receive
from time to time regarding any Mortgage Loan transferred and provide such other
assistance as may reasonably be required by the Master Servicer or any Successor
Primary Servicer regarding such transfer.
(g) Primary Servicer shall be entitled to all fees, compensation,
interest and earnings on the Mortgage Loans accrued through the date of
termination of its obligations and rights under this Agreement.
Section 6.6 Additional Terminations. Notwithstanding any provision
herein to the contrary, this Agreement shall terminate with respect to any
Mortgage Loan if and when (i) such Mortgage Loan becomes a Specially Serviced
Mortgage Loan or an REO Mortgage Loan (provided that this Agreement shall resume
as to such Mortgage Loan if and when such Mortgage Loan becomes a Rehabilitated
Mortgage Loan) or (ii) such Mortgage Loan is sold or otherwise disposed of by or
on behalf of the Trust (which sale or disposition shall not include the
transformation of a Loan into a Defeasance Loan). In the event of such
termination, the Primary Servicer shall comply with Section 6.5 as if a Primary
Servicer Default had occurred, except that such Section shall be construed to
relate only to such Mortgage Loan and references therein to Primary Servicing
Termination Date shall be construed to mean the date of such termination, and
(ii) the Primary Servicer shall cooperate in the orderly transfer of the
servicing of such Mortgage Loan and shall forward to the Master Servicer such
documents as it may receive from time to time with respect thereto and provide
such other assistance as may reasonably be required by the Master Servicer with
respect thereto. The Primary Servicer shall be entitled to all fees,
compensation, interest and earnings on such Mortgage Loan (to which the Primary
Servicer is otherwise entitled hereunder) accrued through the date of
termination of its obligations and rights with respect to such Mortgage Loan
under this Agreement. If a Mortgage Loan subsequently
becomes a Rehabilitated Mortgage Loan, then the Primary Servicer shall promptly
resume the servicing of such Mortgage Loan in accordance with the terms hereof.
ARTICLE VII
SUBCONTRACTORS
Without prior notice to or the prior written consent of the Master
Servicer, the Primary Servicer shall be permitted to employ, at its own expense,
subcontractors to perform selected services (such as the engagement of tax
monitoring services, property inspections, etc.) in connection with Primary
Servicer's performance of the Services for the Mortgage Loans; provided,
however, that: the Primary Servicer shall remain fully liable at all times for
the timely performance of all Services and for all other obligations hereunder.
ARTICLE VIII
PRIMARY SERVICER TO HOLD PROPERTY FOR THE MASTER SERVICER
All records relating to the Mortgage Loans held by the Primary
Servicer, including but not limited to the Primary Servicer Servicing Documents,
mortgage servicing documents, books, computer tapes and other documents and
records (except for microfilm records) as well as any reproductions or copies of
such records furnished for the purposes of performing Services from the Cut-Off
Date are, and shall continue at all times to be, held by the Primary Servicer
for the benefit of the Master Servicer and, unless required by applicable law,
regulation, legal process or regulatory authority, shall not be released,
disseminated or otherwise made available to third parties without the prior
written consent of the Master Servicer.
ARTICLE IX
INDEMNIFICATION
Section 9.1 Primary Servicer's Indemnity.
(a) The Primary Servicer shall indemnify the Master Servicer, its
officers, employees and agents against, and hold the Master Servicer harmless
from, any and all losses, liabilities, expenses, claims, demands, costs, or
judgment of any type against the Master Servicer arising out of or related to
(i) a negligent or willful failure of the Primary Servicer or any Person hired
by the Primary Servicer to perform properly any of the Services to be performed
by the Primary Servicer pursuant to the Payment and Collection Description, the
Payment and Loan Status Reports and Task Description, (ii) any failure by the
Primary Servicer to perform its obligations under this Agreement, or (iii)
breach of any of the Primary Servicer's representations and warranties
hereunder;
provided, however, that the Primary Servicer shall not be required to indemnify
the Master Servicer, its officers, employees or agents against or hold the
Master Servicer, its officers, employees or agents harmless from any losses to
the extent that such loss is caused by the actions of the Master Servicer, its
officers, employees or agents in violation of the Master Servicer's duties under
this Agreement or under the Pooling and Servicing Agreement (except to the
extent that such failure was caused by the Primary Servicer's failure to perform
its obligations hereunder). The indemnification provided under this Section 9.1
shall survive the Primary Servicing Termination Date. The Master Servicer shall
promptly notify the Primary Servicer if a claim is made by a third party with
respect to this Agreement or the Mortgage Loans entitling the Master Servicer to
indemnification hereunder. The Primary Servicer shall assume the defense of any
such claim (with counsel reasonably satisfactory to the Master Servicer) and pay
all expenses in connection therewith, including counsel fees, and promptly pay,
discharge and satisfy any judgment or decree which may be entered against it or
them in respect of such claim. Any failure to so notify the Primary Servicer
shall not affect any of the Master Servicer's rights to indemnification.
(b) Neither the Primary Servicer nor any of the directors, officers,
employees or agents of the Primary Servicer shall be under any liability to the
Master Servicer, the holders of the Certificates, the Depositor, the Trustee or
any other Person for any action taken or for refraining from the taking of any
action in good faith and using its reasonable business judgment pursuant to this
Agreement, or for errors in judgment; provided that this provision shall not
protect the Primary Servicer or any such person against any breach of a
covenant, representation or warranty contained herein or any liability which
would otherwise be imposed by reason of willful misfeasance, bad faith or
negligence in its performance of duties or by reason of negligent disregard for
its obligations and duties under this Agreement. The Primary Servicer and any
director, officer, employee or agent of the Primary Servicer may rely in good
faith on any document of any kind prima facie properly executed and submitted by
any Person respecting any matters arising hereunder.
Section 9.2 Master Servicer's Indemnity.
(a) Master Servicer shall use all reasonable efforts to obtain the
benefits of the rights of indemnification in favor of Master Servicer contained
in the Pooling and Servicing Agreement on behalf of the Primary Servicer and the
Primary Servicer's agents, employees and subcontractors insofar as such
indemnification relates to losses, liabilities, expenses, claims, demands, costs
or judgments against the Primary Servicer arising out of or related to the
Primary Servicer's performance hereunder. To the extent that the Master Servicer
is not entitled to indemnification under the Pooling and Servicing Agreement,
the Master Servicer shall indemnify the Primary Servicer for all losses,
liabilities, expenses, claims, demands, costs or judgements against the Primary
Servicer arising out of the Master Servicer's failure to perform its obligations
under Sections 4.1 and 4.2 hereof.
(b) The Master Servicer shall indemnify the Primary Servicer, its
officers, employees and agents against, and hold the Primary Servicer harmless
from, any and all losses, liabilities, expenses, claims, demands, costs, or
judgment of any type against the Primary Servicer arising out of or related to
any failure by the Master Servicer to perform its obligations under this
Agreement or the Pooling and Servicing Agreement; provided, however, that the
Master Servicer shall not be required to indemnify the Primary Servicer, its
officers, employees or agents against or hold the Primary Servicer, its
officers, employees or agents harmless from any losses to the extent that such
loss is caused by the actions of the Primary Servicer, its officers, employees
or agents in violation of the Primary Servicer's duties under this Agreement
(except to the extent that such failure was caused by the Master Servicer's
failure to perform its obligations hereunder or under the Pooling and Servicing
Agreement). For the avoidance of doubt, the Master Servicer shall not have any
liability under the immediately preceding sentence for any loss that is caused
by any action that is required to be taken by the Master Servicer under the
Pooling and Servicing Agreement or the Master Servicer's failure to take any
action that the Master Servicer is required to refrain from taking under the
Pooling and Servicing Agreement (but this sentence shall not be construed to
limit the rights of the Primary Servicer under subsection (a)). The Primary
Servicer shall promptly notify the Master Servicer if a claim is made by a third
party with respect to this Agreement or the Mortgage Loans entitling the Primary
Servicer to indemnification hereunder. The Master Servicer shall assume the
defense of any such claim (with counsel reasonably satisfactory to the Primary
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 Master Servicer shall not affect any of the Primary Servicer's rights to
indemnification.
(c) The rights of the Primary Servicer provided under this Section 9.2
shall survive the Primary Servicing Termination Date.
ARTICLE X
MISCELLANEOUS
Section 10.1 Severability. If any term, covenant, condition or
provision hereof is unlawful, invalid, or unenforceable for any reasons
whatsoever, and such illegality, invalidity, or unenforceability does not affect
remaining part of this Agreement, then all such remaining parts hereof shall be
valid and enforceable and have full force and effect as if the invalid or
unenforceable part had not been included.
Section 10.2 Rights Cumulative; Waivers. The rights of each of the
parties under this Agreement are cumulative and may be exercised as often as any
party considers appropriate. The rights of each of the parties hereunder shall
not be capable of being waived or amended other than by an express waiver or
amendment in writing. Any failure to exercise (or any delay in exercising) any
of such rights shall not operate as a
waiver or amendment of that or any other such right. Any defective or partial
exercise of any of such right shall not preclude any other or further exercise
of that or any other such right. No act or course of conduct or negotiation on
the part of any party shall in any way estop or preclude such party from
exercising any such right or constitute a suspension or any waiver of any such
right.
Section 10.3 Headings. The headings of the Sections and Articles
contained in this Agreement are inserted for convenience only and shall not
affect the meaning or interpretation of this Agreement or any provision hereof.
Section 10.4 Construction. Unless the context otherwise requires,
singular nouns and pronouns, when used herein, shall be deemed to include the
plural of such noun or pronoun and pronouns of one gender shall be deemed to
include the equivalent pronoun of the other gender. This Agreement is the result
of arm's-length negotiations between the parties and has been reviewed by each
party hereto and its counsel. Each party agrees that any ambiguity in this
Agreement shall not be interpreted against the party drafting the particular
clause which is in question.
Section 10.5 Successors and Assigns. This Agreement and the terms,
covenants, conditions, provisions, obligations, undertakings, rights and
benefits hereof, shall be binding upon, and shall inure to the benefit of, the
undersigned parties and their respective successors and permitted assigns.
Section 10.6 Prior Understandings. This Agreement supersedes any and
all prior discussions and agreements between or among the Primary Servicer and
the Master Servicer with respect to the Servicing of the Mortgage Loans and the
other matters contained herein. This Agreement, together with the Pooling and
Servicing Agreement, contains the sole and entire understanding between the
parties hereto with respect to the transactions contemplated herein. If a
conflict exists between this Agreement and the Pooling and Servicing Agreement,
then the Pooling and Servicing Agreement shall control. If this Agreement
requires Primary Servicer to perform a task or duty, the details and obligations
of which (a) are set forth in this Agreement and (b)(i) are not set forth in the
Pooling and Servicing Agreement or (ii) are set forth in the Pooling and
Servicing Agreement only in general terms, then Primary Servicer shall perform
such task and duties in accordance with the details and obligations set forth in
this Agreement. If this Agreement requires Primary Servicer to perform a task or
duty, the details and obligations of which are not set forth in this Agreement
but are contained in the Pooling and Servicing Agreement, then the Primary
Servicer shall perform such task and duties in accordance with the Pooling and
Servicing Agreement.
Section 10.7 Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall constitute one and the same
instrument. Any party hereto may execute this Agreement by signing any such
counterpart.
Section 10.8 Governing Laws. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES.
Section 10.9 Notices. Unless otherwise provided for herein, all
notices and other communications required or permitted hereunder shall be in
writing (including a writing delivered by facsimile transmission) and shall be
deemed to have been duly given (a) when delivered, if sent by registered or
certified mail (return receipt requested), if delivered personally or by
facsimile or (b) on the second following Business Day, if sent by overnight mail
or overnight courier, in each case to the parties at the following addresses (or
at such other addresses as shall be specified by like notice);
If to the Master Servicer:
___________________________________
___________________________________
___________________________________
___________________________________
If to the Primary Servicer:
___________________________________
___________________________________
___________________________________
___________________________________
Section 10.10 Amendment. If the Pooling and Servicing Agreement is
amended, then, upon the Primary Servicer's receipt of such amendment, this
Agreement shall be deemed to have been amended to the extent necessary to
reflect such amendment to the Pooling and Servicing Agreement, but no such
amendment to the Pooling and Servicing Agreement or deemed amendment to this
Agreement shall increase the obligations or decrease the rights of Primary
Servicer under this Agreement without its express written consent which consent
shall not be unreasonably withheld or delayed. This Agreement may not otherwise
be altered or modified except by a written instrument executed by the party
against whom enforcement is sought.
Section 10.11 Other. This Agreement shall not be construed to grant to
any party hereto any claim, right or interest in, to or against the trust fund
created pursuant to the Pooling and Servicing Agreement or any assets of such
trust fund.
Section 10.12 Benefits of Agreement. Nothing in this Agreement,
express or implied, shall be construed to grant to any Mortgagor or other
Person, other than the parties to this Agreement and the parties to the Pooling
and Servicing Agreement, any benefit or any legal or equitable right, power,
remedy or claim under this Agreement.
[signature page follows]
IN WITNESS WHEREOF, this Agreement has been signed on behalf of each of the
parties hereto by an authorized representative, all as of the day and year first
above written.
[NAME OF SUCCESSOR
MASTER SERVICER], acting
solely in its capacity as
Master Servicer under the
Pooling and Servicing Agreement
By:
-------------------------------
Name:
Title:
XXXXX FARGO BANK,
NATIONAL ASSOCIATION
By:
-------------------------------
Name:
Title:
SCHEDULE I
LOAN SCHEDULE
EXHIBIT A
POOLING AND SERVICING AGREEMENT
EXHIBIT B
Exhibit B-1: Form of Day One Report
Exhibit B-2: Form of Monthly Remittance Report
Exhibit B-3: Forms of Loan Status Reports
Exhibit B-4: Form of Monthly Report on Pending Special Requests
Exhibit B-5: Task Description
Exhibit B-6: Consent Procedures
EXHIBIT B-1
FORM OF DAY ONE REPORT
EXHIBIT B-2
FORM OF MONTHLY REMITTANCE REPORT
EXHIBIT B-3
FORMS OF LOAN STATUS REPORTS
Exhibit B-3(a): Real estate tax monitoring report
Exhibit B-3(b): Insurance monitoring report
Exhibit B-3(c): UCC monitoring report
EXHIBIT B-3(A)
(REAL ESTATE TAX MONITORING REPORT)
EXHIBIT B-3(B)
(INSURANCE MONITORING REPORT)
EXHIBIT B-3(C)
(UCC MONITORING REPORT)
EXHIBIT B-4
(REPORT ON PENDING SPECIAL REQUESTS)
EXHIBIT B-5
TASK DESCRIPTION
MASTER SERVICER/PRIMARY SERVICER TASK LIST
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2005-TOP18
NOTE: SOME LISTED TASKS DESIGNATE MORE THAN ONE PARTY TO PERFORM THAT FUNCTION
BY PLACING AN "X" IN MORE THAN ONE COLUMN. IN THESE INSTANCES, THE PARTIES
SHALL FOLLOW ANY SPECIFIC GUIDANCE ABOUT THE ALLOCATION OF
RESPONSIBILITIES IN COMPLETING THE TASK FOUND IN THE TERMS OF THIS
AGREEMENT. IN THE ABSENCE OF SPECIFIC ALLOCATION OF OBLIGATIONS IN THIS
AGREEMENT, THE PARTIES SHALL WORK IN GOOD FAITH TO ALLOCATE
RESPONSIBILITIES IN A FAIR AND EQUITABLE MANNER IN ACCORDANCE WITH THIS
AGREEMENT AND THE POOLING AND SERVICING AGREEMENT.
MASTER PRIMARY SPECIAL
SERVICER SERVICER SERVICER TRUSTEE
-------- -------- -------- -------
1. Asset Files
Original collateral file (security) X
Authorized parties list for request for release of collateral from Trustee X X
Establish servicing files criteria X
Establish and maintain servicing files X
Provide access to servicing files and copies of servicing files or of specific
documents upon request to the Master Servicer X
Request delivery of files from Trustee upon request and certification of Primary
Servicer X
2. Property Taxes
Monitoring of tax status - Loans with/without escrows X
Recommendation of payment of taxes - Loans with/without escrows X
Notification of advance requirement not less than 3 business days prior to advance
being required X
Payment of taxes - with sufficient escrows X
Payment of taxes - with escrow shortfall X
3. Property Insurance
Monitoring of insurance status - Loans with/without escrows X
Ensure insurance carrier meets Pooling and Servicing Agreement qualifications X
Ensure insurance in favor of the Master Servicer on behalf of the Trustee X
Recommendation of payment or force placement of insurance with/without escrow X
MASTER PRIMARY SPECIAL
SERVICER SERVICER SERVICER TRUSTEE
-------- -------- -------- -------
Notification of advance requirement or force placement of insurance not less than 3
business days prior to advance being required X
Payment of insurance - with sufficient escrows X
Payment of insurance or force placement - with escrow shortfall X
Manage processing of insurance claims in accordance with Mortgage Loan documents
and the Pooling and Servicing Agreement X
Collection of insurance proceeds X
Consent to application of insurance proceeds X
4. UCC Continuation Filings
Maintain and monitory tickler system of the refiling dates on all Loans X
File UCC Continuation Statements X
Pay recording fees X
5. Collection/Deposit/Remittance of P&I payments and Principal Prepayments
Collection and deposit of loan P&I payments and Principal Prepayments X
Remittance of available Primary Servicer P&I payments (net of Primary Servicing Fee)
to Master Servicer X
Remittance of collections to the Trustee X
Remittance of Special Servicer compensation to the Special Servicer X
Approval of Prepayment Premiums X
6. Collection/Deposit/Disbursement of Reserves
Collection and deposit of reserves X
Disbursement of reserves X
X
7. Customer Billing, Collection and Customer Service
Contact delinquent borrowers by phone not more than 3 days after date of delinquency X
Send 30 day delinquent notices X
Send notice of balloon payment to each Mortgagor one year, 180 days and 90 days
prior to the related maturity date X
Provide copy of balloon payment notice to Master Servicer X
8. Escrows
Setup and monitor Escrow Accounts including escrow analysis X
Pay borrower investment income as required under mortgage loan documents or
applicable law X
MASTER PRIMARY SPECIAL
SERVICER SERVICER SERVICER TRUSTEE
-------- -------- -------- -------
X
Prepare annual escrow analysis X
9. Loan payment history/calculation
Maintain loan payment history X
Create payoff/reinstatement statements and telecopy to Master Servicer X
Approve payoff calculations and telecopy approval to Primary Servicer within five
(5) Business Days X
10. Monitoring of Financial and Legal Covenants
Collect annual operating statements, budgets, rent rolls and borrower financial
statements, as applicable X
For each Mortgaged Property, within 95 calendar days after the end of each of the
first three quarters (in each year), commencing in the quarter ending on [date],
20__, in each case for the trailing or quarterly information received, deliver one
(1) copy of completed annual operating statement analysis using the CMSA Operating
Statement Analysis Report and a completed CMSA Financial File (in each case in the
form and containing the information called for by the version of such report in
effect at the time under the reporting standards of the CMSA) (in electronic format)
for each Mortgaged Property to the Master Servicer, prepared using non-normalized
quarterly operating statements and rent rolls received from the related Mortgagor. X
With respect to each calendar year, beginning in 20__ for year-end 20__, no later
than the earlier of (i) 30 days after receipt of the underlying operating statements
from the related Mortgagor and (ii) October 1 of such calendar year, deliver to the
Master Servicer an operating statement analysis report using the CMSA Operating
Statement Analysis Report, a completed CMSA Financial File and a completed NOI
Adjustment Worksheet (in each case in the form and containing the information called
for by the version of such report in effect at the time under the reporting
standards of the CMSA) for each Mortgage Loan (in electronic format), based on the
most recently available year-end financial statements and most recently available
rent rolls of each applicable Mortgagor (to the extent provided to the Primary
Servicer by or on behalf of each Mortgagor), containing such information and
analyses for each Mortgage Loan provided for in the respective forms of Operating
Statement Analysis Report, CMSA Financial File and NOI Adjustment Worksheet as would
customarily be included in accordance with the Servicing Standard, including without
limitation, Debt Service Coverage Ratios and income X
MASTER PRIMARY SPECIAL
SERVICER SERVICER SERVICER TRUSTEE
-------- -------- -------- -------
Deliver to Master Servicer and the Persons identified in (and otherwise in
accordance with) Section 8.14 of the Pooling and Servicing Agreement copies of any
annual, monthly or quarterly financial statements and rent rolls collected with
respect to the Mortgaged Properties, in each case within 30 days following receipt
thereof by the Primary Servicer. As and to the extent requested by Master Servicer
following request therefor received by Special Servicer, make inquiry of any
Mortgagor with respect to such information or as regards the performance of the
related Mortgaged Property in general. X
11. Advancing
Determination of Non-Recoverability X
12. Reporting (Electronic mail)
Prepare and deliver to the Master Servicer the Day One Report (in the form of and
setting the information called for by Exhibit B-1) on the first business day of each
month X
Prepare and deliver to the Master Servicer a Monthly Remittance Report (in the form
of and setting the information called for by Exhibit B-2) for payments received on
Mortgage Loans on each day that funds are required to be wired to the Master
Servicer under Section 2 of this Agreement X
Prepare and deliver to the Master Servicer a CMSA Delinquent Loan Status Report (in
the form and containing the information called for by the version of such report in
effect at the time under the reporting standards of the CMSA) on all Mortgage Loans
on the Primary Servicer Remittance Date occurring in each month reflecting
information as of the close of business on the Primary Servicer Determination Date
occurring in such month X
Prepare and deliver to the Master Servicer, on the Primary Servicer Remittance Date
in each month, a Monthly Report on Pending Special Requests (in the form of, and
setting forth the information called for by, Exhibit B-4 and in accordance with
Exhibit B-6) X
Report of payment/account status (trial balance/transaction detail) within 30 days
of the Primary Servicer Remittance Date occurring in each month; report to be as of
the close of business on applicable Distribution Date X
Deliver on February 15, May 15, August 15, and November 15 of each year a Quarterly
Servicing Accounts Reconciliation Certification in the form of Exhibit E. X
Prepare Loan Status Reports (in the forms of and setting the information called for
by Exhibit B-3) in each January, April, July and October of each year; deliver same
to Master Servicer not later than the Primary Servicer Remittance Date X
Complete and deliver CMSA Loan Setup File (in the form and containing the
information called for by the version of such report in effect at the time under the
reporting standards of the CMSA) for Mortgage Loans in accordance with Pooling and
Servicing Agreement X X
MASTER PRIMARY SPECIAL
SERVICER SERVICER SERVICER TRUSTEE
-------- -------- -------- -------
Complete CMSA Loan Periodic Update File (in the form and containing the information
called for by the version of such report in effect at the time under the reporting
standards of the CMSA) for Mortgage Loans reflecting information as of the close of
business on the Primary Servicer Determination Date in each month; deliver same to
Master Servicer not later than the Primary Servicer Remittance Date occurring in
such month; such report to be in addition to the Day One Report X
Complete CMSA Property File (in the form and containing the information called for
by the version of such report in effect at the time under the reporting standards of
the CMSA) for Mortgage Loans reflecting information as of the close of business on
the Primary Servicer Determination Date in each month; deliver same to Master
Servicer not later than the Primary Servicer Remittance Date occurring in such month X
Complete CMSA Servicer Watch List (in the form and containing the information called
for by the version of such report in effect at the time under the reporting
standards of the CMSA) for Mortgage Loans reflecting information (including the
information required under Section 8.11(h) of the Pooling and Servicing Agreement)
as of the close of business on the Primary Servicer Determination Date in each
month; deliver same to Master Servicer not later than the Primary Servicer
Remittance Date occurring in such month X
Complete and deliver CMSA Comparative Financial Status Report (in the form and
containing the information called for by the version of such report in effect at the
time under the reporting standards of the CMSA) reflecting information as of the
close of business on the Primary Servicer Determination Date in each month; deliver
same to Master Servicer not later than the Primary Servicer Remittance Date
occurring in such month X
Complete all other CMSA reports (in the form and containing the information called
for by the version of each such report in effect at the time under the reporting
standards of the CMSA) required to be provided by the Master Servicer under the
Pooling and Servicing Agreement, reflecting information as of the close of business
on the Primary Servicer Determination Date in each month; deliver same to Master
Servicer not later than the Primary Servicer Remittance Date occurring in such month X
13. Property Annual Inspections
Conduct site inspection in accordance with requirement of Section 8.17 of the
Pooling and Servicing Agreement X
Provide one copy of Inspection Reports (in the form of and setting forth the
information called for by Exhibit L to the Pooling and Servicing Agreement) to the
Master Servicer and other Persons identified in Section 8.17 of the Pooling and
Servicing Agreement within 30 days of inspection X
14. Preparation of servicing transfer letters X
MASTER PRIMARY SPECIAL
SERVICER SERVICER SERVICER TRUSTEE
-------- -------- -------- -------
15. Preparation of IRS Reporting (1098s and 1099s or other tax reporting requirements)
and delivery of copies to the Master Servicer by January 31st of each year X
16. Provide Annual Officer's Certificate as to compliance to Master Servicer in
accordance with Section 5.2 of this Primary Servicing Agreement X
17. Provide Annual Independent Accountant's Servicing Report (USAP) to Master Servicer
in accordance with Section 5.3 of this Primary Servicing Agreement X
18. Compensation
Primary Servicing Fee X
Investment earnings on Primary Servicer Collection Account, to the extent provided
in Section 2.1(e) of this Agreement X
Investment earnings on escrow or reserve accounts not payable to borrower, to the
extent provided in Section 2.1(f) of this Agreement X
Compensation specified on Exhibit B-6 in connection with modifications, waivers,
consents or amendments X
Late charges and default interest to the extent collected from borrowers (offsets
advance interest per Pooling and Servicing Agreement with remainder to Master
Servicer) X
EXHIBIT B-6
CONSENT PROCEDURES
EXHIBIT C
FORM OF POWER OF ATTORNEY FROM MASTER SERVICER
RECORDING REQUESTED BY:
AND WHEN RECORDED MAIL TO:
Attention: Commercial Mortgage Pass-
Through Certificates Series 2005-TOP18
Space above this line for Recorder's use
--------------------------------------------------------------------------------
LIMITED POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that [NAME OF SUCCESSOR MASTER
SERVICER], acting solely in its capacity as Master Servicer ("Master Servicer"),
under the Pooling and Servicing Agreement dated as of [date], 20__ (the "Pooling
and Servicing Agreement") and a Primary Servicing Agreement dated as of [date],
20__ (the "Primary Servicing Agreement"), in each case relating to the
Commercial Mortgage Pass-Through Certificates, Series 2005-TOP18, does hereby
nominate, constitute and appoint XXXXX FARGO BANK, NATIONAL ASSOCIATION, as
Primary Servicer under the Primary Servicing Agreement ("Primary Servicer"), as
its true and lawful attorney-in-fact for it and in its name, place, stead and
for its use and benefit:
To perform any and all acts which may be necessary or appropriate to
enable Primary Servicer to service and administer the Mortgage Loans (as defined
in the Primary Servicing Agreement) in connection with the performance by
Primary Servicer of its duties as Primary Servicer under the Primary Servicing
Agreement, giving and granting unto Primary Servicer full power and authority to
do and perform any and every act necessary, requisite, or proper in connection
with the foregoing and hereby ratifying, approving or confirming all that
Primary Servicer shall lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has caused this limited power of
attorney to be executed as of this ___ day of [date] ____________________, 20__.
[NAME OF SUCCESSOR MASTER SERVICER],
acting solely in its capacity as Master
Servicer under the Pooling and Servicing
Agreement and the Primary Servicing
Agreement
By:
------------------------------------
Name:
Title:
EXHIBIT D
CERTIFICATION
Re: BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES, INC., COMMERCIAL
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2005-TOP18 issued pursuant to the
pooling and servicing agreement dated as of [date], 20__ (the "Pooling and
Servicing Agreement") among Bear Xxxxxxx Commercial Mortgage Securities Inc., as
depositor, [NAME OF SUCCESSOR MASTER SERVICER], as master servicer (the
"Servicer"), ARCap Servicing, Inc., as special servicer, LaSalle Bank National
Association, as trustee (the "Trustee"), Xxxxx Fargo Bank, National Association,
as paying agent and certificate registrar, and ABN AMRO Bank N.V., as fiscal
agent.
I, ________________ [identify the certifying individual], a
____________________ [name of officer title] of XXXXX FARGO BANK, NATIONAL
ASSOCIATION, a national banking association ("Xxxxx Fargo"), on behalf of Xxxxx
Fargo, as primary servicer (the "Primary Servicer"), do hereby certify to the
Servicer and its officers, directors and affiliates, and with the knowledge and
intent that they will rely upon this certification, that:
1. Based on our knowledge, with respect to the period ending December
31, 20___ (the "Relevant Period"), all required reportable information (the
"Servicing Reports") was materially complete and reviewed by the Primary
Servicer prior to its submission to the Servicer under the Primary Servicing
Agreement for inclusion in the monthly servicing reports issued by the Servicer
to the Trustee under the Pooling and Servicing Agreement, and all reports
required to be submitted by the Primary Servicer to the Servicer pursuant to the
Primary Servicing Agreement (the "Primary Servicing Reports") have been
submitted by the Primary Servicer to the Servicer;
2. Based on our knowledge, the information contained in the Primary
Servicing 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 period ending December 31, 20___;
3. Based on our knowledge and the annual compliance review required
under Section 5.2 of the Primary Servicing Agreement, during the Relevant Period
the Primary Servicer has fulfilled its obligations under the Primary Servicing
Agreement in all material respects, except as disclosed in the annual officer's
certificate required under such Section; and
4. The Primary Servicer has disclosed to its certified public
accountants all significant deficiencies relating to the Primary Servicer's
compliance with the minimum servicing standards, and such deficiencies, if any,
have been included in the independent public accountants' report (the "Report").
The Report was created in accordance with a review covering the Relevant Period
in compliance with the minimum servicing standards set forth in the Mortgage
Bankers Association's "Uniform Single Attestation Program" or similar standard
as set forth in the Primary Servicing Agreement.
Date: March ___, 200__
XXXXX FARGO BANK, NATIONAL ASSOCIATION
By
-------------------------------------
Name:
Title:
EXHIBIT E
Quarterly Servicing Accounts Reconciliation Certification
Primary Servicer: Xxxxx Fargo Bank, National Association
RE: Bear Xxxxxxx Commercial Mortgage Securities, Inc., Commercial Mortgage
Pass-Through Certificates, Series 2005-TOP18
Pursuant to the Primary Servicing Agreement between [NAME OF SUCCESSOR MASTER
SERVICER] ("Master Servicer") and Xxxxx Fargo Bank, National Association
("Primary Servicer") for the transaction referenced above, I hereby certify with
respect to each mortgage loan primary serviced by Primary Servicer for Master
Servicer for such transaction that within 45 days after the end of each of the
months of [January, February and March][April, May and June][July, August and
September][October, November and December], any and all deposit accounts, escrow
accounts and reserve accounts, and any and all other collection accounts and
servicing accounts, related to such mortgage loan have been properly reconciled,
and the reconciliations have been reviewed and approved, by Primary Servicer's
management, except as otherwise noted below:
EXCEPTIONS: _____________________________________________
[Signature]
--------------------------
Name: [INSERT NAME OF SERVICING OFFICER]
Title: Servicing Officer, Xxxxx Fargo Bank, National Association
Date:[February, May, August, November] 15, [20__]
EXHIBIT BB
CONTROLLING CLASS CERTIFICATEHOLDER'S REPORTS CHECKLIST
Information Format Frequency
------------------------------------- --------- ------------ -------------------------------
Property Operating Statement Actual PDF/TIF As received/Quarterly
Property Rent Roll Actual PDF/TIF As received/Quarterly
Other Financials as required by loan
documents Actual PDF/TIF As received
Property Inspection Actual PDF/TIF As received/Quarterly
Payments Received After Determination
Date Report (1) Monthly Excel Master Servicer Remittance Date
Mortgage Loans Delinquent Report (2) Monthly Excel 30th of each month
Interest on Advance Reconciliation Monthly Excel Distribution Date
CMSA Setup File (Issuer/Servicer) CMSA IRP Access/Excel Monthly/Distribution Date
CMSA Property File CMSA IRP Access/Excel Monthly/Distribution Date
CMSA Loan Periodic Update File CMSA IRP Access/Excel Monthly/Distribution Date
CMSA Financial File CMSA IRP Access/Excel Monthly/Distribution Date
Distribution Statement (Paying Agent) Monthly Excel/PDF Monthly/Distribution Date
CMSA Bond File (Paying Agent) CMSA IRP Access/Excel Monthly/Distribution Date
CMSA Collateral File (Paying Agent) CMSA IRP Access/Excel Monthly/Distribution Date
CMSA Supplemental Reports CMSA IRP Access/Excel Monthly/Distribution Date
Operating Statement Analysis Report CMSA IRP Access/Excel Monthly/Distribution Date
NOI Adjustment Worksheet CMSA IRP Access/Excel Monthly/Distribution Date
Documentation Exceptions Report
(Trustee) Quarterly Access/Excel Monthly/Distribution Date
Footnotes:
1) On the Master Servicer Remittance Date following each Determination
Date, a list of all Mortgage Loans which are delinquent as to the
applicable Collection Period on that Master Servicer Remittance Date.
This list should represent all delinquent Mortgage Loans that required
a P&I Advance to be made.
2) On the last day of the month (30th), for all delinquencies reported in
#1 above, a list of all Mortgage Loans which remain delinquent for
such Collection Period (along with the number of days delinquent),
accompanied with any reason, in the Master Servicer's opinion, for the
continued delinquency of such Mortgage Loans, along with an
explanation of the Master 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 Master Servicer's or the 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 CC
FORM OF PERFORMANCE CERTIFICATION
(Xxxxxxxx-Xxxxx Act)
Re: BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC., COMMERCIAL
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2005-TOP20, issued pursuant to the
Pooling and Servicing Agreement dated as of October 1, 2005 (the "Pooling and
Servicing Agreement") among Bear Xxxxxxx Commercial Mortgage Securities Inc., as
depositor, Xxxxx Fargo Bank, National Association, as master servicer (the
"Master Servicer"), ARCap Servicing, Inc., as special servicer, LaSalle Bank
National Association, as trustee, Xxxxx Fargo Bank, National Association, as
paying agent and certificate registrar (the "Paying Agent"), and ABN AMRO Bank
N.V., as fiscal agent.
----------
The undersigned Special Servicer hereby certifies to the Master
Servicer and its officers, directors and Affiliates (collectively, the
"Certification Parties") as follows, with the knowledge and intent that the
Certification Parties will rely on this Certification in connection with the
certification concerning the Trust to be signed by an officer of the Master
Servicer and submitted to the Securities and Exchange Commission pursuant to the
Xxxxxxxx-Xxxxx Act of 2002:
1. The Special Servicer has reviewed the information and reports
provided by it to the Master Servicer pursuant to the Pooling and Servicing
Agreement with respect to the mortgage loans being serviced under the Pooling
and Servicing Agreement (the "Special Servicer Information");
2. Based on the Special Servicer's knowledge, the Special Servicer
Information, 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 calendar year preceding the date of this
Certification;
3. Based on the Special Servicer's knowledge, all servicing
information required to be provided to the Master Servicer by the Special
Servicer under the Pooling and Servicing Agreement has been so provided by the
Special Servicer;
4. Based on the Special Servicer's knowledge and the annual compliance
review required under the Pooling and Servicing Agreement, and except as
disclosed in the Officer's Certificate delivered to the Master Servicer pursuant
to Section 9.18 of the Pooling and Servicing Agreement in connection with such
review, the Special Servicer has fulfilled its obligations under the Pooling and
Servicing Agreement; and
5. Based on the Special Servicer's knowledge, there are no significant
deficiencies relating to the Special Servicer's compliance with the minimum
servicing standards based upon
the report provided by an independent public accountant, after conducting a
review in compliance with the Uniform Single Attestation Program for Mortgage
Bankers or similar procedure, delivered to the Master Servicer pursuant to
Section 9.19 of the Pooling and Servicing Agreement, except as disclosed in such
report.
This Certification is being signed on behalf of the Special Servicer
by an officer of the Special Servicer responsible for reviewing the activities
performed by the Special Servicer under the Pooling and Servicing Agreement.
Date: October 28, 2005
ARCAP SERVICING, INC.
By
----------------------------------
Name:
Title:
CERTIFICATION
Re: BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC., COMMERCIAL
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2005-TOP20, issued pursuant to the
Pooling and Servicing Agreement dated as of October 1, 2005 (the "Pooling and
Servicing Agreement") among Bear Xxxxxxx Commercial Mortgage Securities Inc., as
depositor, Xxxxx Fargo Bank, National Association, as master servicer (the
"Master Servicer"), ARCap Servicing, Inc., as special servicer, LaSalle Bank
National Association, as trustee, Xxxxx Fargo Bank, National Association, as
paying agent and certificate registrar (the "Paying Agent"), and ABN AMRO Bank
N.V., as fiscal agent; and Primary Servicing Agreement dated as of October 1,
2005 (the "Primary Servicing Agreement") between the Master Servicer and [name
of Primary Servicer] (the "Primary Servicer"). Capitalized terms used but not
defined herein have the meanings set forth in the Primary Servicing Agreement
or, if not defined therein, in the Pooling and Servicing Agreement.
----------
The undersigned Primary Servicer hereby certifies to the Master
Servicer and its officers, directors and Affiliates (collectively, the
"Certification Parties") as follows, with the knowledge and intent that the
Certification Parties will rely on this Certification in connection with the
certification concerning the Trust to be signed by an officer of the Master
Servicer and submitted to the Securities and Exchange Commission pursuant to the
Xxxxxxxx-Xxxxx Act of 2002:
1. The Primary Servicer has reviewed the information in the Annual
Statement of Compliance and the Annual Independent Public Accountant's Servicing
Report to be provided by [name of Primary Servicer] under the Primary Servicing
Agreement, as well as all servicing reports, officers' certificates and other
information that relate to the servicing of the Mortgage Loans and are delivered
under the Primary Servicing Agreement (the "Primary Servicer Information");
2. Based on the Primary Servicer's knowledge, the Primary Servicer
Information, 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 calendar year preceding the date of this
Certification;
3. Based on the Primary Servicer's knowledge, all servicing
information required to be provided to the Master Servicer by the Primary
Servicer under the Primary Servicing Agreement for inclusion in the reports on
Forms 8-K and 10-K filed on behalf of the Trust for the calendar year preceding
the date of this Certification has been so provided by the Primary Servicer;
4. Based on the Primary Servicer's knowledge and the annual compliance
review required under the Primary Servicing Agreement, and except as disclosed
in the Officer's
Certificate delivered to the Master Servicer pursuant to Section 5.3 of the
Primary Servicing Agreement in connection with such review, the Primary Servicer
has fulfilled its obligations under the Primary Servicing Agreement; and
5. Based on the Primary Servicer's knowledge, the report provided by
an independent public accountant, after conducting a review in compliance with
the Uniform Single Attestation Program for Mortgage Bankers or similar
procedure, delivered to the Master Servicer pursuant to Section 5.4 of the
Primary Servicing Agreement, discloses all significant deficiencies, if any,
relating to the Primary Servicer's compliance with the minimum servicing
standards.
This Certification is being signed on behalf of the Primary Servicer
by an officer of the Primary Servicer responsible for reviewing the activities
performed by the Primary Servicer under the Primary Servicing Agreement.
Date: _______ ___, 200__
[NAME OF PRIMARY SERVICER]
By
---------------------------------
Name:
Title:
[EXHIBIT DD]
FORM OF TRUSTEE NON-SERVICED MORTGAGE LOAN NOTICE
October 28, 2005
[INSERT ADDRESSES OF RELATED TRUSTEE,CERTIFICATE REGISTRAR, PAYING AGENT, MASTER
SERVICER AND SPECIAL SERVICER]
[Holders of the [Name of Non-Serviced Companion Loans]]
Re: Bear Xxxxxxx Commercial Mortgage Securities Trust 2005-TOP20, Commercial
Mortgage Pass-Through Certificates, Series 2005-TOP20 - [Name of
Non-Serviced Mortgage Loan]
Ladies and Gentlemen:
Bear Xxxxxxx Commercial Mortgage Securities Trust 2005-TOP20, Commercial
Mortgage Pass-Through Certificates, Series 2005-TOP20 (the "Trust Fund") is the
[_________] Noteholder, as such term is defined under the [description of
intercreditor agreement] (the "Intercreditor Agreement"). In connection with the
deposit of the [___] Note of the [Non-Serviced Mortgage Loan] into the Bear
Xxxxxxx Commercial Mortgage Securities Trust 2005-TOP20 established by Bear
Xxxxxxx Commercial Mortgage Securities Inc., the contact information for each of
the parties to the related pooling and servicing agreement are set forth on
Schedule I attached hereto.
The [Non-Serviced Mortgage Loan] is being serviced pursuant to the terms of that
certain Pooling and Sevicing agreement dated as of [________], among
[_______________], as may be from time to time amended, supplemented or modified
(the "[______________] Pooling Agreement"). Xxxxx Fargo Bank, National
Association, as Certificate Registrar and Paying Agent for the registered
holders of the Trust Fund (the "Certificate Registrar"), hereby directs the
applicable parties to the [______________] Pooling Agreement as follows:
(i) Remit all amounts payable in accordance with the Intercreditor Agreement and
the [______________] Pooling Agreement due to the holder of the [___] Note of
the [Non-Serviced Mortgage Loan] on such days as specified in the
[______________] Pooling Agreement to Xxxxx Fargo Bank, National Association, as
master servicer of the Trust Fund (the "Master Servicer"), and to the collection
account set forth on Schedule II attached hereto; and
(ii) Forward, deliver or otherwise make available, as the case may be, all
reports, statements, documents, communications and other information that are to
be forwarded, delivered or otherwise made available to the holder of the [___]
Note of the [Non-Serviced Mortgage Loan] in accordance with the Intercreditor
Agreement and the [______________] Pooling Agreement to the Certificate
Registrar and the Master Servicer.
Thank you for your attention to this matter.
XXXXX FARGO BANK, NATIONAL ASSOCIATION
as Certificate Registrar and Paying Agent for the Holders of the Bear Xxxxxxx
Commercial Mortgage Securities Trust 2005-TOP20, Commercial Mortgage
Pass-Through Certificates, Series2005-TOP20
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
SCHEDULE I TO FORM OF TRUSTEE
NON-SERVICED MORTGAGE LOAN NOTICE
ARCap Servicing, Inc., as Special Servicer
0000 Xxxxx XxxXxxxxx Xxxx.
Xxxxx 000
Xxxxxx, Xxxxx 00000
Xxxxx Fargo Bank, National Association, as Master Servicer
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
SCHEDULE II TO FORM OF TRUSTEE
NON-SERVICED MORTGAGE LOAN NOTICE
(MSCI 2005-TOP20 Collection Account Information)
SCHEDULE I
BSCMI LOAN SCHEDULE
ORIGINAL
MORTGAGE TERM TO
LOAN LOAN CUT-OFF DATE MATURITY
SELLER NUMBER PROPERTY NAME BALANCE NOTE DATE OR ARD
---------------------------------------------------------------------------------------------------------------
6 BSCMI 00000 Xxxxxx Xxxxxxx $58,300,000 07/27/2005 120
13 BSCMI 44547 Computershare Canton $44,500,000 09/21/2005 60
15 BSCMI 44112 Wilton Executive Campus $36,000,000 07/29/2005 120
16 BSCMI 43985 InTown Suites - Military Trail $ 6,742,378 07/21/2005 120
17 BSCMI 43985 InTown Suites - Xxxxxxx $ 5,579,138 07/21/2005 120
18 BSCMI 43985 InTown Suites - Xxxxxxxx Church $ 3,616,225 07/21/2005 120
19 BSCMI 43985 InTown Suites - Broad River $ 3,613,245 07/21/2005 120
20 BSCMI 43985 InTown Suites - Mobile $ 3,497,348 07/21/2005 000
00 XXXXX 00000 XxXxxx Xxxxxx - Xxxxx Xxxxxxx $ 2,860,726 07/21/2005 000
00 XXXXX 00000 XxXxxx Xxxxxx - Xxxxxxx Xxxx $ 2,600,113 07/21/2005 000
00 XXXXX 00000 XxXxxx Xxxxxx - Xxxxxxxxx Xxxxx $ 2,418,224 07/21/2005 000
00 XXXXX 00000 XxXxxx Xxxxxx - Xxxxxxx XX $ 1,990,964 07/21/2005 000
00 XXXXX 00000 XxXxxx Xxxxxx - Xxxxxxxxx Xxxx $ 1,972,183 07/21/2005 120
26 BSCMI 43397 Circuit City Headquarters $31,270,000 06/14/2005 84
27 BSCMI 00000 Xxxxxxxx Xxxxxxxxxxxx West $29,860,000 04/29/2005 120
29 BSCMI 43493 American Stock Exchange Building $26,500,000 08/18/2005 120
33 BSCMI 00000 Xxxxx Xxxxx Xxxxx $22,000,000 07/27/2005 120
37 BSCMI 42589 0000 Xxxx Xxxxxxxxx Xxxxxxxxx $19,737,600 09/16/2005 120
56 BSCMI 43328 Rollingwood Shopping Center $13,600,000 06/27/2005 120
60 BSCMI 42401 Sun Trust $12,600,000 07/14/2005 120
65 BSCMI 00000 Xxxxxxx Portfolio - Applebee's - Mount Xxxxxx $ 2,040,000 06/15/2005 84
66 BSCMI 43697 Xxxxxxx Portfolio - Golden Corral - Lakeland $ 1,600,000 06/15/2005 84
67 BSCMI 43697 Xxxxxxx Portfolio - Black Eyed Pea - Plano $ 1,490,000 06/15/2005 84
68 BSCMI 43697 Xxxxxxx Portfolio - Xxxx Xxxx'x - Jacksonville $ 1,300,000 06/15/2005 84
69 BSCMI 43697 Xxxxxxx Portfolio - Denny's - Virginia Beach $ 990,000 06/15/2005 84
70 BSCMI 43697 Xxxxxxx Portfolio - Xxxx in the Box - Xxxxx $ 880,000 06/15/2005 84
71 BSCMI 43697 Xxxxxxx Portfolio - Taco Xxxx - Macomb $ 720,000 06/15/2005 84
72 BSCMI 00000 Xxxxxxx Portfolio - Church's - San Antonio $ 700,000 06/15/2005 84
73 BSCMI 00000 Xxxxxxx Portfolio - Arby's - New Bern $ 580,000 06/15/2005 84
77 BSCMI 00000 Xxxxx Xxxxxx $ 9,976,137 07/20/2005 120
80 BSCMI 00000 Xxxxxxxx Xxxx Xxxxxx $ 9,360,000 08/17/2005 120
83 BSCMI 44311 205 Place $ 8,800,000 09/20/2005 120
84 BSCMI 00000 Xxxxx'x Xxxxxxxxx Xxxxxx $ 8,650,000 09/28/2005 120
86 BSCMI 42208 The Tannery $ 8,000,000 09/20/2005 120
89 BSCMI 00000 Xxxxxxxx Xxxxxxxxx Xxxxxx $ 7,600,000 09/20/2005 120
100 BSCMI 00000 Xxxxxxx Xxxxx $ 6,400,000 06/16/2005 60
134 BSCMI 43954 25 East Salem $ 5,000,000 07/06/2005 120
138 BSCMI 43344 CVS - Keystone Heights $ 2,534,009 05/27/2005 000
000 XXXXX 00000 XXX - Xxxxxxxx $ 2,384,949 05/27/2005 120
140 BSCMI 44217 00000 Xxxxxxx Xxxx. $ 4,700,000 08/24/2005 120
146 BSCMI 00000 Xxxxx Xxxxx Xxxxxxxx Xxxxxx $ 4,335,735 07/29/2005 120
147 BSCMI 00000 Xxxxxxx Xxxxxxx $ 4,250,000 07/13/2005 120
155 BSCMI 44275 Rosamond Apartments $ 3,800,000 08/30/2005 120
157 BSCMI 42650 000 Xxxxxxxx Xxxxxx $ 3,782,645 06/21/2005 120
159 BSCMI 00000 Xxxx Xxxx Benicia $ 3,589,280 06/14/2005 000
000 XXXXX 00000 Xxxxxxxxx - Xxxxx $ 3,400,000 08/10/2005 120
173 BSCMI 00000 Xxxx Xxxxx $ 3,119,502 05/13/2005 84
180 BSCMI 43768 000 Xxxxxxxx Xxxx $ 2,900,000 06/24/2005 120
192 BSCMI 43877 Eckerd - McKeesport $ 2,694,024 07/29/2005 120
199 BSCMI 43272 Walgreens Chesapeake $ 2,500,000 07/22/2005 120
203 BSCMI 41952 Kash N' Xxxxx - New Port Xxxxxx $ 2,452,308 09/10/2004 000
000 XXXXX 00000 Xxxxxx - Xxxxxxxx Xxxxx $ 2,339,577 06/10/2005 120
209 BSCMI 41249 CVS Wilmington $ 2,335,000 07/08/2005 84
217 BSCMI 44116 Eckerd - Xxxxx $ 2,200,000 09/15/2005 120
242 BSCMI 44131 Rite Aid - Medford $ 1,775,000 07/18/2005 120
248 BSCMI 43553 Xxxxxxxx Retail $ 1,642,313 06/23/2005 120
250 BSCMI 44132 Rite Aid - Poulsbo $ 1,600,000 07/18/2005 120
251 BSCMI 44133 Rite Aid - Sequim $ 1,600,000 07/18/2005 120
259 BSCMI 44128 Rite Aid - Turlock $ 1,550,000 07/18/2005 120
263 BSCMI 44004 0000 Xxxxx Xxxxxx $ 1,498,158 08/04/2005 120
264 BSCMI 44005 0000 Xxxxxxxx Xxxxxx $ 1,498,158 08/04/2005 120
266 BSCMI 44130 Rite Aid - Seaside $ 1,475,000 07/18/2005 000
000 XXXXX 00000 Xxxxxxxxx Xxxxxxxxxx $ 1,100,000 04/25/2005 120
MORTGAGE MONTHLY
LOAN LOAN REMAINING ORIG. DEBT
SELLER NUMBER TERM AMORT. RATE SERVICE SEASONING DEF
----------------------------------------------------------------------------------
6 BSCMI 43989 118 360 5.528% $272,299 2 90
13 BSCMI 44547 60 IO 5.339% $197,988 0
15 BSCMI 44112 118 IO 4.890% $148,738 2 93
16 BSCMI 43985 118 300 5.189% $ 40,285 2 90
17 BSCMI 43985 118 300 5.189% $ 33,335 2 90
18 BSCMI 43985 118 300 5.189% $ 21,607 2 90
19 BSCMI 43985 118 300 5.189% $ 21,589 2 90
20 BSCMI 43985 118 300 5.189% $ 20,896 2 90
21 BSCMI 43985 118 300 5.189% $ 17,093 2 90
22 BSCMI 43985 118 300 5.189% $ 15,536 2 90
23 BSCMI 43985 118 300 5.189% $ 14,449 2 90
24 BSCMI 43985 118 300 5.189% $ 11,896 2 90
25 BSCMI 43985 118 300 5.189% $ 11,784 2 90
26 BSCMI 43397 81 IO 5.105% $133,028 3
27 BSCMI 43282 115 300 5.339% $134,685 5 90
29 BSCMI 43493 119 IO 4.926% $110,293 1 94
33 BSCMI 42907 118 360 5.324% $ 98,962 2 90
37 BSCMI 42589 120 360 5.609% $113,421 0 95
56 BSCMI 43328 117 IO 5.150% $ 59,177 3 90
60 BSCMI 42401 118 360 5.180% $ 55,145 2 93
65 BSCMI 43697 81 IO 5.250% $ 9,049 3 56
66 BSCMI 43697 81 IO 5.250% $ 7,097 3 56
67 BSCMI 43697 81 IO 5.250% $ 6,609 3 56
68 BSCMI 43697 81 IO 5.250% $ 5,766 3 56
69 BSCMI 43697 81 IO 5.250% $ 4,391 3 56
70 BSCMI 43697 81 IO 5.250% $ 3,903 3 56
71 BSCMI 43697 81 IO 5.250% $ 3,194 3 56
72 BSCMI 43697 81 IO 5.250% $ 3,105 3 56
73 BSCMI 43697 81 IO 5.250% $ 2,573 3 56
77 BSCMI 43994 118 360 4.755% $ 52,195 2 93
80 BSCMI 44563 119 IO 5.174% $ 40,918 1
83 BSCMI 44311 120 IO 5.086% $ 37,815 0 93
84 BSCMI 43467 120 360 5.060% $ 46,753 0 94
86 BSCMI 42208 120 360 5.309% $ 44,469 0 95
89 BSCMI 44346 120 360 4.975% $ 31,946 0 94
100 BSCMI 43186 57 360 5.250% $ 28,389 3 32
134 BSCMI 43954 118 IO 4.975% $ 21,017 2 93
138 BSCMI 43344 116 300 5.200% $ 15,206 4 90
139 BSCMI 43344 116 300 5.200% $ 14,311 4 90
140 BSCMI 44217 119 IO 4.743% $ 18,835 1 94
146 BSCMI 43758 118 300 4.900% $ 25,177 2 93
147 BSCMI 43720 118 IO 4.995% $ 17,936 2 93
155 BSCMI 44275 119 IO 4.988% $ 16,015 1 94
157 BSCMI 42650 117 300 5.267% $ 22,810 3 72
159 BSCMI 43138 117 360 5.520% $ 20,486 3 89
168 BSCMI 43886 119 IO 5.044% $ 14,490 1 94
173 BSCMI 42114 80 300 5.234% $ 18,787 4
180 BSCMI 43768 117 IO 5.103% $ 12,504 3 92
192 BSCMI 43877 118 360 5.118% $ 14,690 2 93
199 BSCMI 43272 118 360 5.250% $ 11,089 2 93
203 BSCMI 41952 108 300 5.272% $ 15,014 12 83
208 BSCMI 43623 117 360 5.250% $ 12,960 3 92
209 BSCMI 41249 82 IO 5.034% $ 9,795 2
217 BSCMI 44116 120 360 5.410% $ 12,367 0 95
242 BSCMI 44131 118 336 5.336% $ 8,002 2
248 BSCMI 43553 117 300 5.550% $ 10,182 3 90
250 BSCMI 44132 118 336 5.336% $ 7,213 2
251 BSCMI 44133 118 336 5.336% $ 7,213 2
259 BSCMI 44128 118 336 5.336% $ 6,988 2
263 BSCMI 44004 119 360 4.881% $ 7,944 1
264 BSCMI 44005 119 360 4.881% $ 7,944 1
266 BSCMI 44130 118 336 5.336% $ 6,650 2
279 BSCMI 43226 115 360 5.566% $ 5,173 5 90
-----------------------------------------------------------------------------------------
MORTGAGE
LOAN LOAN DEF/
SELLER NUMBER YM1 YM3 YM2 YM1.75 YM1.5 YM1.25 YM1 YM 5% 4%
-----------------------------------------------------------------------------------------
6 BSCMI 43989
13 BSCMI 44547 23
15 BSCMI 44112
16 BSCMI 43985 26
17 BSCMI 43985 26
18 BSCMI 43985 26
19 BSCMI 43985 26
20 BSCMI 43985 26
21 BSCMI 43985 26
22 BSCMI 43985 26
23 BSCMI 43985 26
24 BSCMI 43985 26
25 BSCMI 43985 26
26 BSCMI 43397 47
27 BSCMI 43282
29 BSCMI 43493
33 BSCMI 42907
37 BSCMI 42589
56 BSCMI 43328
60 BSCMI 42401
65 BSCMI 43697
66 BSCMI 43697
67 BSCMI 43697
68 BSCMI 43697
69 BSCMI 43697
70 BSCMI 43697
71 BSCMI 43697
72 BSCMI 43697
73 BSCMI 43697
77 BSCMI 43994
80 BSCMI 44563 88
83 BSCMI 44311
84 BSCMI 43467
86 BSCMI 42208
89 BSCMI 44346
100 BSCMI 43186
134 BSCMI 43954
138 BSCMI 43344
139 BSCMI 43344
140 BSCMI 44217
146 BSCMI 43758
147 BSCMI 43720
155 BSCMI 44275
157 BSCMI 42650
159 BSCMI 43138
168 BSCMI 43886
173 BSCMI 42114 47
180 BSCMI 43768
192 BSCMI 43877
199 BSCMI 43272
203 BSCMI 41952
208 BSCMI 43623
209 BSCMI 41249 47
217 BSCMI 44116
242 BSCMI 44131 93 26
248 BSCMI 43553
250 BSCMI 44132 93 26
251 BSCMI 44133 93 26
259 BSCMI 44128 93 26
263 BSCMI 44004 94
264 BSCMI 44005 94
266 BSCMI 44130 93 26
279 BSCMI 43226
MASTER PRIMARY
EXCESS EXCESS
MORTGAGE ADMIN MASTER PRIMARY SERV. SERVICING
LOAN LOAN YM COST SERVICE SERVICE FEE RATE FEE RATE
SELLER NUMBER 3% 2% FORMULA RATE FEE RATE FEE RATE (BPS) (BPS)
-------------------------------------------------------------------------------------------------
6 BSCMI 43989 9.128 2.000 5.000 2.000 0.000
13 BSCMI 44547 B 9.128 2.000 5.000 2.000 0.000
15 BSCMI 44112 10.128 2.000 6.000 2.000 0.000
16 BSCMI 43985 C 5.128 2.000 1.000 2.000 0.000
17 BSCMI 43985 C 5.128 2.000 1.000 2.000 0.000
18 BSCMI 43985 C 5.128 2.000 1.000 2.000 0.000
19 BSCMI 43985 C 5.128 2.000 1.000 2.000 0.000
20 BSCMI 43985 C 5.128 2.000 1.000 2.000 0.000
21 BSCMI 43985 C 5.128 2.000 1.000 2.000 0.000
22 BSCMI 43985 C 5.128 2.000 1.000 2.000 0.000
23 BSCMI 43985 C 5.128 2.000 1.000 2.000 0.000
24 BSCMI 43985 C 5.128 2.000 1.000 2.000 0.000
25 BSCMI 43985 C 5.128 2.000 1.000 2.000 0.000
26 BSCMI 43397 B 5.128 2.000 1.000 2.000 0.000
27 BSCMI 43282 5.128 2.000 1.000 2.000 0.000
29 BSCMI 43493 7.128 2.000 3.000 2.000 0.000
33 BSCMI 42907 9.128 2.000 5.000 2.000 0.000
37 BSCMI 42589 5.128 2.000 1.000 2.000 0.000
56 BSCMI 43328 5.128 2.000 1.000 2.000 0.000
60 BSCMI 42401 10.128 2.000 6.000 2.000 0.000
65 BSCMI 43697 5.128 2.000 1.000 2.000 0.000
66 BSCMI 43697 5.128 2.000 1.000 2.000 0.000
67 BSCMI 43697 5.128 2.000 1.000 2.000 0.000
68 BSCMI 43697 5.128 2.000 1.000 2.000 0.000
69 BSCMI 43697 5.128 2.000 1.000 2.000 0.000
70 BSCMI 43697 5.128 2.000 1.000 2.000 0.000
71 BSCMI 43697 5.128 2.000 1.000 2.000 0.000
72 BSCMI 43697 5.128 2.000 1.000 2.000 0.000
73 BSCMI 43697 5.128 2.000 1.000 2.000 0.000
77 BSCMI 43994 5.128 2.000 1.000 2.000 0.000
80 BSCMI 44563 I 5.128 2.000 1.000 2.000 0.000
83 BSCMI 44311 5.128 2.000 1.000 2.000 0.000
84 BSCMI 43467 5.128 2.000 1.000 2.000 0.000
86 BSCMI 42208 5.128 2.000 1.000 2.000 0.000
89 BSCMI 44346 5.128 2.000 1.000 2.000 0.000
100 BSCMI 43186 5.128 2.000 1.000 2.000 0.000
134 BSCMI 43954 9.128 2.000 5.000 2.000 0.000
138 BSCMI 43344 10.128 2.000 6.000 2.000 0.000
139 BSCMI 43344 10.128 2.000 6.000 2.000 0.000
140 BSCMI 44217 5.128 2.000 1.000 2.000 0.000
146 BSCMI 43758 5.128 2.000 1.000 2.000 0.000
147 BSCMI 43720 5.128 2.000 1.000 2.000 0.000
155 BSCMI 44275 5.128 2.000 1.000 2.000 0.000
157 BSCMI 42650 5.128 2.000 1.000 2.000 0.000
159 BSCMI 43138 5.128 2.000 1.000 2.000 0.000
168 BSCMI 43886 5.128 2.000 1.000 2.000 0.000
173 BSCMI 42114 B 5.128 2.000 1.000 2.000 0.000
180 BSCMI 43768 5.128 2.000 1.000 2.000 0.000
192 BSCMI 43877 10.128 2.000 6.000 2.000 0.000
199 BSCMI 43272 5.128 2.000 1.000 2.000 0.000
203 BSCMI 41952 5.128 2.000 1.000 2.000 0.000
208 BSCMI 43623 5.128 2.000 1.000 2.000 0.000
209 BSCMI 41249 B 5.128 2.000 1.000 2.000 0.000
217 BSCMI 44116 10.128 2.000 6.000 2.000 0.000
242 BSCMI 44131 K 5.128 2.000 1.000 2.000 0.000
248 BSCMI 43553 5.128 2.000 1.000 2.000 0.000
250 BSCMI 44132 K 5.128 2.000 1.000 2.000 0.000
251 BSCMI 44133 K 5.128 2.000 1.000 2.000 0.000
259 BSCMI 44128 K 5.128 2.000 1.000 2.000 0.000
263 BSCMI 44004 L 5.128 2.000 1.000 2.000 0.000
264 BSCMI 44005 L 5.128 2.000 1.000 2.000 0.000
266 BSCMI 44130 K 5.128 2.000 1.000 2.000 0.000
279 BSCMI 43226 5.128 2.000 1.000 2.000 0.000
MORTGAGE OTHER
LOAN LOAN DEAL TRUSTEE MASTER
SELLER NUMBER FEES FEE RATE FEE
--------------------------------------------------
6 BSCMI 43989 7 0.128 0
13 BSCMI 44547 7 0.128 0
15 BSCMI 44112 8 0.128 0
16 BSCMI 43985 3 0.128 0
17 BSCMI 43985 3 0.128 0
18 BSCMI 43985 3 0.128 0
19 BSCMI 43985 3 0.128 0
20 BSCMI 43985 3 0.128 0
21 BSCMI 43985 3 0.128 0
22 BSCMI 43985 3 0.128 0
23 BSCMI 43985 3 0.128 0
24 BSCMI 43985 3 0.128 0
25 BSCMI 43985 3 0.128 0
26 BSCMI 43397 3 0.128 0
27 BSCMI 43282 3 0.128 0
29 BSCMI 43493 5 0.128 0
33 BSCMI 42907 7 0.128 0
37 BSCMI 42589 3 0.128 0
56 BSCMI 43328 3 0.128 0
60 BSCMI 42401 8 0.128 0
65 BSCMI 43697 3 0.128 0
66 BSCMI 43697 3 0.128 0
67 BSCMI 43697 3 0.128 0
68 BSCMI 43697 3 0.128 0
69 BSCMI 43697 3 0.128 0
70 BSCMI 43697 3 0.128 0
71 BSCMI 43697 3 0.128 0
72 BSCMI 43697 3 0.128 0
73 BSCMI 43697 3 0.128 0
77 BSCMI 43994 3 0.128 0
80 BSCMI 44563 3 0.128 0
83 BSCMI 44311 3 0.128 0
84 BSCMI 43467 3 0.128 0
86 BSCMI 42208 3 0.128 0
89 BSCMI 44346 3 0.128 0
100 BSCMI 43186 3 0.128 0
134 BSCMI 43954 7 0.128 0
138 BSCMI 43344 8 0.128 0
139 BSCMI 43344 8 0.128 0
140 BSCMI 44217 3 0.128 0
146 BSCMI 43758 3 0.128 0
147 BSCMI 43720 3 0.128 0
155 BSCMI 44275 3 0.128 0
157 BSCMI 42650 3 0.128 0
159 BSCMI 43138 3 0.128 0
168 BSCMI 43886 3 0.128 0
173 BSCMI 42114 3 0.128 0
180 BSCMI 43768 3 0.128 0
192 BSCMI 43877 8 0.128 0
199 BSCMI 43272 3 0.128 0
203 BSCMI 41952 3 0.128 0
208 BSCMI 43623 3 0.128 0
209 BSCMI 41249 3 0.128 0
217 BSCMI 44116 8 0.128 0
242 BSCMI 44131 3 0.128 0
248 BSCMI 43553 3 0.128 0
250 BSCMI 44132 3 0.128 0
251 BSCMI 44133 3 0.128 0
259 BSCMI 44128 3 0.128 0
263 BSCMI 44004 3 0.128 0
264 BSCMI 44005 3 0.128 0
266 BSCMI 44130 3 0.128 0
279 BSCMI 43226 3 0.128 0
SCHEDULE II
XXXXX FARGO LOAN SCHEDULE
ORIGINAL
MORTGAGE TERM TO
LOAN LOAN CUT-OFF DATE MATURITY OR
SELLER NUMBER PROPERTY NAME BALANCE NOTE DATE ARD
--------------------------------------------------------------------------------------------------------------------------
3 WFB 510903198 The Westin Xxxxxx Place $105,000,000 08/30/2005 120
7 WFB 510902854A Park 'N Fly Atlanta $ 16,890,000 07/21/2005 120
8 WFB 510902854B Park 'N Fly Dallas $ 14,110,000 07/21/2005 120
9 WFB 510902854C Park 'N Fly Cleveland $ 9,440,000 07/21/2005 120
10 WFB 510902854D Park 'N Fly Houston $ 7,560,000 07/21/2005 120
14 WFB 510903065 Depot Business Park $ 42,000,000 09/12/2005 110
30 WFB 310902837 AMLI Downtown Apartments $ 25,000,000 07/26/2005 84
32 WFB 310903084 Manhattan Gateway Shopping Center $ 22,400,000 09/22/2005 120
36 WFB 310903078 Sand Hill Plaza $ 20,000,000 08/29/2005 120
39 WFB 310903043 Temple Towne Center $ 18,976,444 08/05/2005 120
40 WFB 510902463A 24 Hour Fitness Portfolio - Cypress $ 16,400,004 09/01/2005 120
41 WFB 510902463B 00 Xxxx Xxxxxxx Xxxxxxxxx - 0000 Xxxxxxx $ 2,473,904 09/01/2005 120
42 WFB 310902845 Summerhill Plaza $ 17,463,200 07/26/2005 120
43 WFB 310903141A Hinckley Portfolio - Stuart Facility $ 5,587,362 07/01/2005 240
44 WFB 310903141B Hinckley Portfolio - Portsmouth Facility $ 5,512,864 07/01/2005 240
45 WFB 310903141C Hinckley Portfolio - SW Harbor Shore $ 3,836,655 07/01/2005 240
46 WFB 310903141D Hinckley Portfolio - Trenton Facility $ 2,197,695 07/01/2005 240
47 WFB 310903141E Hinckley Portfolio - SW Harbor Bass Harbor $ 223,495 07/01/2005 240
48 WFB 310903064A Xxxxxxxxxx Xxxxxxx Xxxxxxxxx - Xxxxx Xxxxxx Xxxxxxx $ 7,060,000 09/02/2005 120
49 WFB 310903064C Springview Terrace Portfolio - Wedgewood Terrace $ 3,320,000 09/02/2005 120
50 WFB 310903064B Xxxxxxxxxx Xxxxxxx Xxxxxxxxx - Xxxxxxxx Xxxxxxx $ 3,300,000 09/02/2005 120
51 WFB 310903064D Springview Terrace Portfolio - Meadowview Village $ 3,240,000 09/02/2005 120
52 WFB 610902069 The Colonnade Shopping Center $ 16,200,000 09/01/2005 120
57 WFB 310903093 0000 Xxxxxx Xxxx. $ 13,000,000 09/22/2005 120
64 WFB 310902999 Winding Commons $ 10,400,000 08/31/2005 120
74 WFB 310902906 Xxxxxxx - Xxxxxx Business Park $ 10,250,000 09/22/2005 120
76 WFB 310902924 Security Public Storage - Bethesda $ 9,988,379 08/31/2005 120
85 WFB 310902812 Wal-Mart Supercenter $ 8,011,850 06/24/2005 120
87 WFB 310903057 Xxxxxx Street Station Apartments $ 8,000,000 09/09/2005 120
90 WFB 310902364 Best Buy, Sanford, FL $ 7,537,741 06/30/2005 120
95 WFB 610901804 Rivercrest Apartments - Idaho $ 6,780,874 05/27/2005 120
96 WFB 310902827 Birch Commons Apartment Complex $ 6,550,000 07/25/2005 120
99 WFB 310902946 Security Public Storage - Richmond $ 6,450,000 08/26/2005 000
000 XXX 000000000 Xxxxxx Xxxxxx Plaza $ 6,400,000 09/15/2005 120
104 WFB 310903030 Shoppes of Midtown $ 5,880,000 09/14/2005 120
105 WFB 310903044 ParkCenter 400 $ 5,800,000 08/23/2005 120
107 WFB 937241403A Circle K Portfolio Pod 3 - 00000 X Xxxxxxx Xxx $ 655,000 10/01/2004 120
108 WFB 937241403B Circle K Portfolio Pod 3 - 410 N Center $ 599,000 10/01/2004 120
109 WFB 937241403C Circle K Portfolio Pod 3 - 000 X Xxxxxxxx Xxx $ 592,000 10/01/2004 120
110 WFB 937241403D Circle K Portfolio Pod 3 - 0000 X Xxxxxxxxxx Xx $ 585,000 10/01/2004 120
111 WFB 937241403E Circle K Portfolio Xxx 0 - 00 X Xxxxxxxx Xxx $ 571,000 10/01/2004 120
112 WFB 937241403F Circle K Portfolio Pod 3 - 0000 X Xxxx Xx $ 570,000 10/01/2004 120
113 WFB 937241403G Circle K Portfolio Pod 3 - 2815 E University $ 494,000 10/01/2004 120
114 WFB 937241403H Circle K Portfolio Pod 3 - 0000 X Xxxxxx Xx $ 494,000 10/01/2004 120
115 WFB 937241403I Circle K Portfolio Pod 3 - 0000 X Xxxxxx Xxx $ 435,000 10/01/2004 120
116 WFB 937241403J Circle K Portfolio Pod 3 - 0000 X Xxxxxxxx Xxx $ 425,000 10/01/2004 120
121 WFB 310902907 Security Public Storage - Xxxxxxx $ 5,250,000 09/22/2005 120
123 WFB 510902855 Xxxx Xxxxx Shopping Center $ 5,154,180 07/27/2005 120
124 WFB 937241410A Circle K Portfolio Xxx 00 - 000 X 00 Xx $ 613,000 10/01/2004 120
125 WFB 937241410B Circle K Portfolio Xxx 00 - 00 Xxxxxxx Xx $ 593,000 10/01/2004 120
126 WFB 937241410C Circle K Portfolio Xxx 00 - 0000 Xxxxxxx Xxxxxx Xx $ 578,000 10/01/2004 120
127 WFB 937241410D Circle K Portfolio Pod 10 - 0000 X Xxxxxxxx Xxx $ 557,000 10/01/2004 120
128 WFB 937241410E Circle K Portfolio Xxx 00 - 0000 XXX 00 X $ 529,000 10/01/2004 120
129 WFB 937241410F Circle K Portfolio Xxx 00 - 000 Xxxxxxxxxx Xx $ 502,000 10/01/2004 120
130 WFB 937241410G Circle K Portfolio Pod 10 - 000 X Xxxxxxxx Xxxx $ 487,000 10/01/2004 120
131 WFB 937241410H Circle K Portfolio Xxx 00 - 0000 Xxxxxxxxxxx Xx $ 484,000 10/01/2004 120
132 WFB 937241410I Circle K Portfolio Xxx 00 - 0000 X Xxxx Xx Xxxx Xxx $ 418,000 10/01/2004 120
133 WFB 937241410J Circle K Portfolio Pod 10 - 000 XX Xxxxxxx 00 $ 377,000 10/01/2004 120
136 WFB 410902885 Corporate Pointe $ 4,991,616 07/14/2005 120
137 WFB 310902810 Posthole Office $ 4,979,409 07/08/2005 240
141 WFB 410902740 Walgreens - Cheyenne $ 4,613,133 07/25/2005 120
142 WFB 410902739 Walgreens - Albuquerque $ 4,540,288 07/25/2005 120
145 WFB 310901649 Terri's Consign and Design Furnishings $ 4,426,240 01/03/2005 000
000 XXX 000000000 Xxxxxxxxxxx Xxxxxx $ 4,214,967 08/04/2005 120
150 WFB 410902927 Security Public Storage - Escondido $ 4,095,262 08/12/2005 120
151 WFB 310902733 North Bay Self Storage $ 4,095,182 08/31/2005 120
152 WFB 410901769 Colonial Village $ 3,894,008 07/27/2005 120
153 WFB 410902800 Castroville and Xxxxxxx Industrial $ 3,891,711 07/01/2005 120
154 WFB 410902742 Walgreens - Xxxxxx $ 3,841,782 07/28/2005 120
156 WFB 620902887 0000 X. Xx Xxxxx Xxx. $ 3,788,401 06/24/2005 84
158 WFB 410902914 Mill Creek Professional Center $ 3,716,724 07/15/2005 60
161 WFB 410902743 Walgreens - Ruidoso $ 3,572,359 07/25/2005 120
162 WFB 410902741 Walgreens - Des Moines $ 3,567,369 07/25/2005 120
163 WFB 410903076 00000 Xxxxxxx Xxxx $ 3,500,000 09/09/2005 120
166 WFB 410902734 0000 X. Xxxxxxxxx Xxxxxx $ 3,490,110 05/26/2005 120
167 WFB 620902872 Los Altos Courtyard $ 3,439,363 06/16/2005 120
169 WFB 410902596 Walgreens - San Bernardino $ 3,396,410 08/08/2005 120
170 WFB 410903053 Maple Xxxxx Business Center-Corona CA $ 3,240,015 08/09/2005 120
171 WFB 620902834 Foothill Center $ 3,225,000 07/18/2005 120
172 WFB 410902811 Pierremont Mall Shopping Center $ 3,190,642 06/13/2005 60
176 WFB 410902895 Pebble Creek Apartments $ 3,093,040 07/12/2005 120
177 WFB 410902961 Xxxxxx Xxxxx Apartments $ 2,993,474 07/25/2005 120
179 WFB 410902870 CVS Pharmacy-CT $ 2,941,334 06/23/2005 120
181 WFB 410902808 Page Self Storage $ 2,860,544 08/29/2005 120
182 WFB 410902650A Dollar General (Pool 7) - Weslaco $ 587,954 08/09/2005 120
183 WFB 410902650B Dollar General (Pool 7) - Edinburg $ 580,954 08/09/2005 120
184 WFB 410902650C Dollar General (Pool 7) - Southpark $ 580,954 08/09/2005 120
185 WFB 410902650D Dollar General (Pool 7) - Santa Xxxx $ 566,954 08/09/2005 120
186 WFB 410902650E Dollar General (Pool 7) - Heavenly $ 503,961 08/09/2005 120
187 WFB 410902832 Owatonna Commons $ 2,754,368 07/15/2005 120
190 WFB 410902859 Four Storage - Bristol Plaza $ 2,694,346 07/01/2005 120
191 WFB 410902926 Security Public Storage - Oceanside $ 2,694,200 07/25/2005 120
196 WFB 410902949 Tractor Supply Company - Wisconsin $ 2,574,609 07/06/2005 000
000 XXX 000000000 Xxxxxxx Xxxxxx $ 2,550,000 06/20/2005 120
198 WFB 410902866 Veteran Avenue Apartments $ 2,524,680 06/28/2005 000
000 XXX 000000000 Xxxxxxxxx Xxxxxx $ 2,497,154 08/04/2005 120
201 WFB 410902861 Maple Commerce Center $ 2,494,765 07/05/2005 120
204 WFB 410902648A Dollar General (Pool 5) - Laredo $ 630,106 08/09/2005 120
205 WFB 410902648B Dollar General (Pool 5) - McAllen (Auburn) $ 616,699 08/09/2005 120
206 WFB 410902648C Dollar General (Pool 5) - Xxxxx $ 613,348 08/09/2005 120
207 WFB 410902648D Dollar General (Pool 5) - McAllen (Dove) $ 536,260 08/09/2005 120
212 WFB 410902945 Security Public Storage - Roseville $ 2,297,396 08/15/2005 120
213 WFB 410902919 Severna Park Plaza $ 2,297,357 08/04/2005 120
219 WFB 410902960 Xxxxxxx Hilltop Apartments $ 2,095,431 07/25/2005 120
220 WFB 410902646A Dollar General (Pool 3) - Castroville $ 555,101 08/09/2005 120
221 WFB 410902646B Dollar General (Pool 3) - Harlingen $ 534,285 08/09/2005 120
222 WFB 410902646C Dollar General (Pool 3) - Dripping Springs $ 499,591 08/09/2005 120
223 WFB 410902646D Dollar General (Pool 3) - New Waverly $ 457,958 08/09/2005 120
226 WFB 410902968 South Bluff Crossing $ 1,996,741 08/05/2005 120
228 WFB 410902860 University Manor Apartments $ 1,990,918 06/09/2005 120
229 WFB 410902871 Heritage Heights Apartments $ 1,921,197 06/24/2005 120
230 WFB 410902956 0000 00xx Xxxxxx Apartments $ 1,897,804 08/01/2005 120
232 WFB 410902819 Holiday Xxxxxxx and The Edge $ 1,869,579 06/29/2005 120
233 WFB 410902841 Rite Aid - Philadelphia $ 1,802,773 06/13/2005 120
234 WFB 410902857 0000 X. 00xx Xxxxxx $ 1,800,000 08/19/2005 120
235 WFB 410902973 City View Apartments $ 1,800,000 08/08/2005 120
236 WFB 410902944 Security Public Storage - Sacramento II $ 1,797,958 08/15/2005 120
237 WFB 410903024 White Cap Industries II $ 1,797,097 08/05/2005 120
238 WFB 410902940 Sundance Apartments $ 1,787,456 07/20/2005 180
239 WFB 410902649A Dollar General (Pool 6) - San Marcos $ 617,277 06/15/2005 120
240 WFB 410902649B Dollar General (Pool 6) - Walnut $ 596,469 06/15/2005 120
241 WFB 410902649C Dollar General (Pool 6) - Hwy 46 $ 568,726 06/15/2005 120
243 WFB 410902930 Cirby Business Park $ 1,721,380 07/19/2005 120
244 WFB 410902948 Oregon Aero Building $ 1,696,175 08/08/2005 120
245 WFB 410902684 Van Nuys and Xxxxxxx Way Shopping Center $ 1,694,893 05/27/2005 120
246 WFB 410902877 0000 X. Xxxxx Xxxxxx $ 1,679,741 06/24/2005 120
247 WFB 620902951 Broomfield Marketplace $ 1,650,000 08/15/2005 120
249 WFB 410902729 0000 Xxx Xxxxxxxx Xxxx $ 1,637,339 07/11/2005 120
253 WFB 410902934 Red Branch Center $ 1,598,134 08/04/2005 120
254 WFB 410902647A Dollar General (Pool 4) - Edinburg $ 620,712 08/09/2005 120
255 WFB 410902647B Dollar General (Pool 4) - San Xxxx $ 613,657 08/09/2005 120
256 WFB 410902647C Dollar General (Pool 4) - Premont $ 363,257 08/09/2005 120
257 WFB 410902928 Security Public Storage - Vallejo $ 1,596,563 07/25/2005 120
258 WFB 410902958 Office Max - San Francisco $ 1,570,749 06/14/2005 90
260 WFB 410902839 0000 Xxxxxx Xxxxxx $ 1,498,446 07/22/2005 120
262 WFB 410902974 Country Faire Shopping Center $ 1,498,273 08/08/2005 120
265 WFB 410902829 00000 Xxx Xxxxxx Industrial $ 1,484,156 06/15/2005 180
267 WFB 410902706 XX XXXXX - Muncie, IN. $ 1,462,433 07/05/2005 120
269 WFB 410902972 SouthTown Mobile Home Park $ 1,347,991 08/31/2005 60
270 WFB 410902975 Sunrise Business Park $ 1,298,503 08/08/2005 120
272 WFB 410902863A Xxxx Xxxxxxxxxx Xxxxxxxxx - Xxxxx 00xx Xxxxxx Apartments $ 812,381 06/24/2005 120
273 WFB 410902863B Xxxx Xxxxxxxxxx Xxxxxxxxx - 0000 & 0000 Xxxxx $ 227,083 06/24/2005 120
274 WFB 410902863C Waco Apartments Portfolio - St. Xxxxx Apartments $ 177,048 06/24/2005 120
275 WFB 410903107 Gunbarrel Commons $ 1,198,644 08/09/2005 60
278 WFB 410902852 5800 Park Center, Ltd $ 1,148,265 08/11/2005 120
280 WFB 410902894 Oxboro Place Apartments $ 1,098,261 09/01/2005 120
MORTGAGE MONTHLY
LOAN LOAN REMAINING ORIG. DEBT
SELLER NUMBER TERM AMORT. RATE SERVICE SEASONING DEF
-----------------------------------------------------------------------------
3 WFB 510903198 119 IO 5.280% $468,417 1 91
7 WFB 510902854A 118 300 4.980% $ 71,067 2 92
8 WFB 510902854B 118 300 4.980% $ 59,370 2 92
9 WFB 510902854C 118 300 4.980% $ 39,720 2 92
10 WFB 510902854D 118 300 4.980% $ 31,810 2 92
14 WFB 510903065 110 360 4.960% $224,439 0 72
30 WFB 310902837 82 360 5.250% $110,894 2 47
32 WFB 310903084 120 336 5.100% $ 96,522 0 81
36 WFB 310903078 119 IO 4.865% $ 82,209 1
39 WFB 310903043 119 360 4.830% $100,031 1 93
40 WFB 510902463A 119 300 5.615% $101,996 1 91
41 WFB 510902463B 119 300 5.615% $ 15,386 1 91
42 WFB 310902845 118 360 5.360% $ 97,831 2 81
43 WFB 310903141A 236 240 6.260% $ 41,206 4 201
44 WFB 310903141B 236 240 6.260% $ 40,657 4 201
45 WFB 310903141C 236 240 6.260% $ 28,295 4 201
46 WFB 310903141D 236 240 6.260% $ 16,208 4 201
47 WFB 310903141E 236 240 6.260% $ 1,648 4 201
48 WFB 310903064A 120 360 5.030% $ 30,004 0 82
49 WFB 310903064C 120 360 5.030% $ 14,110 0 82
50 WFB 310903064B 120 360 5.030% $ 14,025 0 82
51 WFB 310903064D 120 360 5.030% $ 13,770 0 82
52 WFB 610902069 120 360 5.790% $ 94,951 0
57 WFB 310903093 120 360 5.120% $ 70,743 0 81
64 WFB 310902999 120 300 5.310% $ 46,659 0 83
74 WFB 310902906 120 360 5.165% $ 56,062 0 83
76 WFB 310902924 119 360 5.180% $ 54,788 1 83
85 WFB 310902812 117 300 5.050% $ 47,294 3 89
87 WFB 310903057 120 360 4.920% $ 33,256 0 83
90 WFB 310902364 117 360 5.570% $ 43,257 3 83
95 WFB 610901804 117 360 5.770% $ 39,769 3
96 WFB 310902827 118 360 5.350% $ 29,608 2 83
99 WFB 310902946 120 360 5.220% $ 35,497 0 83
102 WFB 310903073 120 360 4.990% $ 34,317 0 83
104 WFB 310903030 120 360 5.250% $ 26,082 0 81
105 WFB 310903044 120 IO 4.840% $ 23,718 0 81
107 WFB 937241403A 108 300 6.040% $ 3,343 12 80
108 WFB 937241403B 108 300 6.040% $ 3,057 12 80
109 WFB 937241403C 108 300 6.040% $ 3,021 12 80
110 WFB 937241403D 108 300 6.040% $ 2,985 12 80
111 WFB 937241403E 108 300 6.040% $ 2,914 12 80
112 WFB 937241403F 108 300 6.040% $ 2,909 12 80
113 WFB 937241403G 108 300 6.040% $ 2,521 12 80
114 WFB 937241403H 108 300 6.040% $ 2,521 12 80
115 WFB 937241403I 108 300 6.040% $ 2,220 12 80
116 WFB 937241403J 108 300 6.040% $ 2,169 12 80
121 WFB 310902907 120 360 5.330% $ 23,643 0 83
123 WFB 510902855 119 360 5.340% $ 28,782 1 91
124 WFB 937241410A 108 300 6.040% $ 3,128 12 80
125 WFB 937241410B 108 300 6.040% $ 3,026 12 80
126 WFB 937241410C 108 300 6.040% $ 2,950 12 80
127 WFB 937241410D 108 300 6.040% $ 2,843 12 80
128 WFB 937241410E 108 300 6.040% $ 2,700 12 80
129 WFB 937241410F 108 300 6.040% $ 2,562 12 80
130 WFB 937241410G 108 300 6.040% $ 2,485 12 80
131 WFB 937241410H 108 300 6.040% $ 2,470 12 80
132 WFB 937241410I 108 300 6.040% $ 2,133 12 80
133 WFB 937241410J 108 300 6.040% $ 1,924 12 80
136 WFB 410902885 119 300 5.010% $ 29,259 1
137 WFB 310902810 238 240 6.100% $ 36,111 2
141 WFB 410902740 118 360 5.290% $ 25,643 2 81
142 WFB 410902739 118 360 5.290% $ 25,238 2 81
145 WFB 310901649 112 240 6.440% $ 33,392 8
148 WFB 410902896 119 360 5.040% $ 22,757 1
150 WFB 410902927 119 360 5.210% $ 22,539 1
151 WFB 310902733 119 360 5.120% $ 22,311 1 81
152 WFB 410901769 119 300 5.590% $ 24,159 1 81
153 WFB 410902800 118 360 5.310% $ 21,681 2
154 WFB 410902742 118 360 5.290% $ 21,355 2 81
156 WFB 620902887 81 360 5.410% $ 21,362 3
158 WFB 410902914 58 360 5.100% $ 20,225 2
161 WFB 410902743 118 360 5.290% $ 19,858 2 81
162 WFB 410902741 118 360 5.290% $ 19,830 2 81
163 WFB 410903076 120 180 5.070% $ 27,806 0 81
166 WFB 410902734 117 360 5.750% $ 20,425 3
167 WFB 620902872 117 360 5.365% $ 19,298 3 83
169 WFB 410902596 119 360 5.690% $ 19,712 1 83
170 WFB 410903053 119 360 5.230% $ 17,872 1
171 WFB 620902834 119 IO 5.420% $ 14,769 1 81
172 WFB 410902811 57 360 5.600% $ 18,371 3
176 WFB 410902895 118 360 5.050% $ 16,736 2
177 WFB 410902961 118 360 5.200% $ 16,473 2
179 WFB 410902870 117 360 5.580% $ 16,898 3
181 WFB 410902808 119 300 5.510% $ 17,611 1 81
182 WFB 410902650A 119 300 5.770% $ 3,712 1 81
183 WFB 410902650B 119 300 5.770% $ 3,667 1 81
184 WFB 410902650C 119 300 5.770% $ 3,667 1 81
185 WFB 410902650D 119 300 5.770% $ 3,579 1 81
186 WFB 410902650E 119 300 5.770% $ 3,181 1 81
187 WFB 410902832 118 360 5.500% $ 15,671 2 81
190 WFB 410902859 118 360 5.380% $ 15,128 2
191 WFB 410902926 118 360 5.260% $ 14,926 2
196 WFB 410902949 118 360 5.390% $ 14,471 2 81
197 WFB 410902825 118 360 5.470% $ 11,785 2 83
198 WFB 410902866 118 360 5.360% $ 14,144 2 81
200 WFB 410902935 119 360 5.290% $ 13,867 1 91
201 WFB 410902861 118 360 5.380% $ 14,007 2
204 WFB 410902648A 119 300 5.770% $ 3,978 1 81
205 WFB 410902648B 119 300 5.770% $ 3,893 1 81
206 WFB 410902648C 119 300 5.770% $ 3,872 1 81
207 WFB 410902648D 119 300 5.770% $ 3,385 1 81
212 WFB 410902945 119 360 5.320% $ 12,801 1
213 WFB 410902919 119 360 5.240% $ 12,686 1 91
219 WFB 410902960 118 360 5.200% $ 11,531 2
220 WFB 410902646A 119 300 5.770% $ 3,504 1 81
221 WFB 410902646B 119 300 5.770% $ 3,373 1 81
222 WFB 410902646C 119 300 5.770% $ 3,154 1 81
223 WFB 410902646D 119 300 5.770% $ 2,891 1 81
226 WFB 410902968 119 300 5.200% $ 11,926 1 81
228 WFB 410902860 117 300 5.300% $ 12,044 3
229 WFB 410902871 117 360 5.470% $ 10,905 3 81
230 WFB 410902956 119 360 5.210% $ 10,445 1
232 WFB 410902819 117 360 5.650% $ 10,823 3 81
233 WFB 410902841 117 360 5.650% $ 10,436 3 83
234 WFB 410902857 119 360 5.350% $ 8,136 1
235 WFB 410902973 119 360 5.040% $ 7,665 1
236 WFB 410902944 119 360 5.310% $ 10,007 1
237 WFB 410903024 119 300 5.270% $ 10,808 1 83
238 WFB 410902940 178 180 5.610% $ 14,813 2
239 WFB 410902649A 117 300 5.740% $ 3,896 3 81
240 WFB 410902649B 117 300 5.740% $ 3,765 3 81
241 WFB 410902649C 117 300 5.740% $ 3,590 3 81
243 WFB 410902930 118 360 5.370% $ 9,654 2 81
244 WFB 410902948 119 240 5.670% $ 11,858 1
245 WFB 410902684 118 300 5.430% $ 10,369 2
246 WFB 410902877 118 300 5.200% $ 10,048 2
247 WFB 620902951 119 IO 5.180% $ 7,221 1 81
249 WFB 410902729 119 300 5.230% $ 9,808 1
253 WFB 410902934 119 360 5.160% $ 8,746 1 91
254 WFB 410902647A 119 300 5.820% $ 3,937 1 81
255 WFB 410902647B 119 300 5.820% $ 3,892 1 81
256 WFB 410902647C 119 300 5.820% $ 2,304 1 81
257 WFB 410902928 118 360 5.260% $ 8,845 2
258 WFB 410902958 88 90 4.970% $ 21,333 2 54
260 WFB 410902839 119 360 5.790% $ 8,792 1 81
262 WFB 410902974 119 360 5.230% $ 8,264 1
265 WFB 410902829 177 180 5.440% $ 12,209 3
267 WFB 410902706 118 300 5.900% $ 9,359 2 81
269 WFB 410902972 59 300 5.800% $ 8,534 1 21
270 WFB 410902975 119 360 5.230% $ 7,163 1
272 WFB 410902863A 117 360 5.700% $ 4,729 3
273 WFB 410902863B 117 360 5.700% $ 1,322 3
274 WFB 410902863C 117 360 5.700% $ 1,031 3
275 WFB 410903107 59 360 5.330% $ 6,686 1
278 WFB 410902852 119 300 5.710% $ 7,207 1 83
280 WFB 410902894 119 300 5.400% $ 6,689 1 81
MORTGAGE
LOAN LOAN
SELLER NUMBER DEF/YM1 YM3 YM2 YM1.75 YM1.5 YM1.25 YM1 YM 5% 4%
------------------------------------------------------------------------------------------------
3 WFB 510903198
7 WFB 510902854A
8 WFB 510902854B
9 WFB 510902854C
10 WFB 510902854D
14 WFB 510903065
30 WFB 310902837
32 WFB 310903084
36 WFB 310903078 91
39 WFB 310903043
40 WFB 510902463A
41 WFB 510902463B
42 WFB 310902845
43 WFB 310903141A
44 WFB 310903141B
45 WFB 310903141C
46 WFB 310903141D
47 WFB 310903141E
48 WFB 310903064A
49 WFB 310903064C
50 WFB 310903064B
51 WFB 310903064D
52 WFB 610902069 81
57 WFB 310903093
64 WFB 310902999
74 WFB 310902906
76 WFB 310902924
85 WFB 310902812
87 WFB 310903057
90 WFB 310902364
95 WFB 610901804 83
96 WFB 310902827
99 WFB 310902946
102 WFB 310903073
104 WFB 310903030
105 WFB 310903044
107 WFB 937241403A
108 WFB 937241403B
109 WFB 937241403C
110 WFB 937241403D
111 WFB 937241403E
112 WFB 937241403F
113 WFB 937241403G
114 WFB 937241403H
115 WFB 937241403I
116 WFB 937241403J
121 WFB 310902907
123 WFB 510902855
124 WFB 937241410A
125 WFB 937241410B
126 WFB 937241410C
127 WFB 937241410D
128 WFB 937241410E
129 WFB 937241410F
130 WFB 937241410G
131 WFB 937241410H
132 WFB 937241410I
133 WFB 937241410J
136 WFB 410902885 83
137 WFB 310902810 201
141 WFB 410902740
142 WFB 410902739
145 WFB 310901649 81
148 WFB 410902896 83
150 WFB 410902927 83
151 WFB 310902733
152 WFB 410901769
153 WFB 410902800 81
154 WFB 410902742
156 WFB 620902887 45
158 WFB 410902914 18
161 WFB 410902743
162 WFB 410902741
163 WFB 410903076
166 WFB 410902734 81
167 WFB 620902872
169 WFB 410902596
170 WFB 410903053 81
171 WFB 620902834
172 WFB 410902811 21
176 WFB 410902895 83
177 WFB 410902961 81
179 WFB 410902870 81
181 WFB 410902808
182 WFB 410902650A
183 WFB 410902650B
184 WFB 410902650C
185 WFB 410902650D
186 WFB 410902650E
187 WFB 410902832
190 WFB 410902859 69
191 WFB 410902926 83
196 WFB 410902949
197 WFB 410902825
198 WFB 410902866
200 WFB 410902935
201 WFB 410902861 81
204 WFB 410902648A
205 WFB 410902648B
206 WFB 410902648C
207 WFB 410902648D
212 WFB 410902945 83
213 WFB 410902919
219 WFB 410902960 81
220 WFB 410902646A
221 WFB 410902646B
222 WFB 410902646C
223 WFB 410902646D
226 WFB 410902968
228 WFB 410902860 81
229 WFB 410902871
230 WFB 410902956 83
232 WFB 410902819
233 WFB 410902841
234 WFB 410902857 81
235 WFB 410902973 81
236 WFB 410902944 83
237 WFB 410903024
238 WFB 410902940 141
239 WFB 410902649A
240 WFB 410902649B
241 WFB 410902649C
243 WFB 410902930
244 WFB 410902948 81
245 WFB 410902684 81
246 WFB 410902877 81
247 WFB 620902951
249 WFB 410902729 81
253 WFB 410902934
254 WFB 410902647A
255 WFB 410902647B
256 WFB 410902647C
257 WFB 410902928 83
258 WFB 410902958
260 WFB 410902839
262 WFB 410902974 81
265 WFB 410902829 141
267 WFB 410902706
269 WFB 410902972
270 WFB 410902975 81
272 WFB 410902863A 81
273 WFB 410902863B 81
274 WFB 410902863C 81
275 WFB 410903107 21
278 WFB 410902852
280 WFB 410902894
MORTGAGE MASTER PRIMARY
LOAN LOAN YM ADMIN SERVICE SERVICE
SELLER NUMBER 3% 2% 1% OPEN FORMULA COST RATE FEE RATE FEE RATE
---------------------------------------------------------------------------------------------------
3 WFB 510903198 4 3.128 2.000 1.000
7 WFB 510902854A 2 3.128 2.000 1.000
8 WFB 510902854B 2 3.128 2.000 1.000
9 WFB 510902854C 2 3.128 2.000 1.000
10 WFB 510902854D 2 3.128 2.000 1.000
14 WFB 510903065 3 3.128 2.000 1.000
30 WFB 310902837 2 3.128 2.000 1.000
32 WFB 310903084 4 3.128 2.000 1.000
36 WFB 310903078 4 F 3.128 2.000 1.000
39 WFB 310903043 2 3.128 2.000 1.000
40 WFB 510902463A 4 3.128 2.000 1.000
41 WFB 510902463B 4 3.128 2.000 1.000
42 WFB 310902845 4 3.128 2.000 1.000
43 WFB 310903141A 4 5.128 2.000 1.000
44 WFB 310903141B 4 5.128 2.000 1.000
45 WFB 310903141C 4 5.128 2.000 1.000
46 WFB 310903141D 4 5.128 2.000 1.000
47 WFB 310903141E 4 5.128 2.000 1.000
48 WFB 310903064A 3 3.128 2.000 1.000
49 WFB 310903064C 3 3.128 2.000 1.000
50 WFB 310903064B 3 3.128 2.000 1.000
51 WFB 310903064D 3 3.128 2.000 1.000
52 WFB 610902069 4 G 8.128 2.000 5.000
57 WFB 310903093 4 3.128 2.000 1.000
64 WFB 310902999 2 3.128 2.000 1.000
74 WFB 310902906 2 3.128 2.000 1.000
76 WFB 310902924 2 3.128 2.000 1.000
85 WFB 310902812 4 3.128 2.000 1.000
87 WFB 310903057 2 3.128 2.000 1.000
90 WFB 310902364 2 3.128 2.000 1.000
95 WFB 610901804 2 G 8.128 2.000 5.000
96 WFB 310902827 2 3.128 2.000 1.000
99 WFB 310902946 2 3.128 2.000 1.000
102 WFB 310903073 2 3.128 2.000 1.000
104 WFB 310903030 4 3.128 2.000 1.000
105 WFB 310903044 4 3.128 2.000 1.000
107 WFB 937241403A 4 19.128 2.000 1.000
108 WFB 937241403B 4 19.128 2.000 1.000
109 WFB 937241403C 4 19.128 2.000 1.000
110 WFB 937241403D 4 19.128 2.000 1.000
111 WFB 937241403E 4 19.128 2.000 1.000
112 WFB 937241403F 4 19.128 2.000 1.000
113 WFB 937241403G 4 19.128 2.000 1.000
114 WFB 937241403H 4 19.128 2.000 1.000
115 WFB 937241403I 4 19.128 2.000 1.000
116 WFB 937241403J 4 19.128 2.000 1.000
121 WFB 310902907 2 3.128 2.000 1.000
123 WFB 510902855 4 3.128 2.000 1.000
124 WFB 937241410A 4 20.128 2.000 1.000
125 WFB 937241410B 4 20.128 2.000 1.000
126 WFB 937241410C 4 20.128 2.000 1.000
127 WFB 937241410D 4 20.128 2.000 1.000
128 WFB 937241410E 4 20.128 2.000 1.000
129 WFB 937241410F 4 20.128 2.000 1.000
130 WFB 937241410G 4 20.128 2.000 1.000
131 WFB 937241410H 4 20.128 2.000 1.000
132 WFB 937241410I 4 20.128 2.000 1.000
133 WFB 937241410J 4 20.128 2.000 1.000
136 WFB 410902885 2 G 3.128 2.000 1.000
137 WFB 310902810 4 G 3.128 2.000 1.000
141 WFB 410902740 4 3.128 2.000 1.000
142 WFB 410902739 4 3.128 2.000 1.000
145 WFB 310901649 4 G 3.128 2.000 1.000
148 WFB 410902896 2 G 3.128 2.000 1.000
150 WFB 410902927 2 G 8.128 2.000 1.000
151 WFB 310902733 4 3.128 2.000 1.000
152 WFB 410901769 4 3.128 2.000 1.000
153 WFB 410902800 4 G 3.128 2.000 1.000
154 WFB 410902742 4 8.128 2.000 1.000
156 WFB 620902887 4 G 8.128 2.000 5.000
158 WFB 410902914 7 G 3.128 2.000 1.000
161 WFB 410902743 4 8.128 2.000 1.000
162 WFB 410902741 4 8.128 2.000 1.000
163 WFB 410903076 4 8.128 2.000 1.000
166 WFB 410902734 4 G 8.128 2.000 1.000
167 WFB 620902872 2 8.128 2.000 5.000
169 WFB 410902596 2 8.128 2.000 1.000
170 WFB 410903053 4 G 8.128 2.000 1.000
171 WFB 620902834 4 13.128 2.000 5.000
172 WFB 410902811 4 G 3.128 2.000 1.000
176 WFB 410902895 2 G 3.128 2.000 1.000
177 WFB 410902961 4 G 3.128 2.000 1.000
179 WFB 410902870 4 G 8.128 2.000 1.000
181 WFB 410902808 4 3.128 2.000 1.000
182 WFB 410902650A 4 20.128 2.000 1.000
183 WFB 410902650B 4 20.128 2.000 1.000
184 WFB 410902650C 4 20.128 2.000 1.000
185 WFB 410902650D 4 20.128 2.000 1.000
186 WFB 410902650E 4 20.128 2.000 1.000
187 WFB 410902832 4 3.128 2.000 1.000
190 WFB 410902859 4 G 3.128 2.000 1.000
191 WFB 410902926 2 G 8.128 2.000 1.000
196 WFB 410902949 4 8.128 2.000 1.000
197 WFB 410902825 2 3.128 2.000 1.000
198 WFB 410902866 4 3.128 2.000 1.000
200 WFB 410902935 4 8.128 2.000 1.000
201 WFB 410902861 4 G 3.128 2.000 1.000
204 WFB 410902648A 4 20.128 2.000 1.000
205 WFB 410902648B 4 20.128 2.000 1.000
206 WFB 410902648C 4 20.128 2.000 1.000
207 WFB 410902648D 4 20.128 2.000 1.000
212 WFB 410902945 2 G 8.128 2.000 1.000
213 WFB 410902919 4 8.128 2.000 1.000
219 WFB 410902960 4 G 8.128 2.000 1.000
220 WFB 410902646A 4 20.128 2.000 1.000
221 WFB 410902646B 4 20.128 2.000 1.000
222 WFB 410902646C 4 20.128 2.000 1.000
223 WFB 410902646D 4 20.128 2.000 1.000
226 WFB 410902968 4 3.128 2.000 1.000
228 WFB 410902860 4 G 3.128 2.000 1.000
229 WFB 410902871 4 3.128 2.000 1.000
230 WFB 410902956 2 G 8.128 2.000 1.000
232 WFB 410902819 4 3.128 2.000 1.000
233 WFB 410902841 2 13.128 2.000 1.000
234 WFB 410902857 4 G 13.128 2.000 1.000
235 WFB 410902973 4 G 8.128 2.000 1.000
236 WFB 410902944 2 G 13.128 2.000 1.000
237 WFB 410903024 2 13.128 2.000 1.000
238 WFB 410902940 4 G 3.128 2.000 1.000
239 WFB 410902649A 4 20.128 2.000 1.000
240 WFB 410902649B 4 20.128 2.000 1.000
241 WFB 410902649C 4 20.128 2.000 1.000
243 WFB 410902930 4 13.128 2.000 1.000
244 WFB 410902948 4 G 3.128 2.000 1.000
245 WFB 410902684 4 G 13.128 2.000 1.000
246 WFB 410902877 4 G 8.128 2.000 1.000
247 WFB 620902951 4 18.128 2.000 5.000
249 WFB 410902729 4 G 8.128 2.000 1.000
253 WFB 410902934 4 13.128 2.000 1.000
254 WFB 410902647A 4 20.128 2.000 1.000
255 WFB 410902647B 4 20.128 2.000 1.000
256 WFB 410902647C 4 20.128 2.000 1.000
257 WFB 410902928 2 G 13.128 2.000 1.000
258 WFB 410902958 1 18.128 2.000 1.000
260 WFB 410902839 4 3.128 2.000 1.000
262 WFB 410902974 4 G 8.128 2.000 1.000
265 WFB 410902829 4 G 18.128 2.000 1.000
267 WFB 410902706 4 8.128 2.000 1.000
269 WFB 410902972 4 8.128 2.000 1.000
270 WFB 410902975 4 G 8.128 2.000 1.000
272 WFB 410902863A 4 G 20.128 2.000 1.000
273 WFB 410902863B 4 G 20.128 2.000 1.000
274 WFB 410902863C 4 G 20.128 2.000 1.000
275 WFB 410903107 4 G 18.128 2.000 1.000
278 WFB 410902852 2 13.128 2.000 1.000
280 WFB 410902894 4 13.128 2.000 1.000
PRIMARY
MASTER EXCESS
MORTGAGE EXCESS SERVICING TRUSTEE OTHER
LOAN LOAN SERV. FEE FEE RATE FEE MASTER
SELLER NUMBER RATE (BPS) (BPS) DEAL FEES RATE FEE
----------------------------------------------------------------------------
3 WFB 510903198 0.000 0.000 3.000 0.128 0.000
7 WFB 510902854A 0.000 0.000 3.000 0.128 0.000
8 WFB 510902854B 0.000 0.000 3.000 0.128 0.000
9 WFB 510902854C 0.000 0.000 3.000 0.128 0.000
10 WFB 510902854D 0.000 0.000 3.000 0.128 0.000
14 WFB 510903065 0.000 0.000 3.000 0.128 0.000
30 WFB 310902837 0.000 0.000 3.000 0.128 0.000
32 WFB 310903084 0.000 0.000 3.000 0.128 0.000
36 WFB 310903078 0.000 0.000 3.000 0.128 0.000
39 WFB 310903043 0.000 0.000 3.000 0.128 0.000
40 WFB 510902463A 0.000 0.000 3.000 0.128 0.000
41 WFB 510902463B 0.000 0.000 3.000 0.128 0.000
42 WFB 310902845 0.000 0.000 3.000 0.128 0.000
43 WFB 310903141A 0.000 0.000 3.000 0.128 2.000
44 WFB 310903141B 0.000 0.000 3.000 0.128 2.000
45 WFB 310903141C 0.000 0.000 3.000 0.128 2.000
46 WFB 310903141D 0.000 0.000 3.000 0.128 2.000
47 WFB 310903141E 0.000 0.000 3.000 0.128 2.000
48 WFB 310903064A 0.000 0.000 3.000 0.128 0.000
49 WFB 310903064C 0.000 0.000 3.000 0.128 0.000
50 WFB 310903064B 0.000 0.000 3.000 0.128 0.000
51 WFB 310903064D 0.000 0.000 3.000 0.128 0.000
52 WFB 610902069 1.000 0.000 7.000 0.128 0.000
57 WFB 310903093 0.000 0.000 3.000 0.128 0.000
64 WFB 310902999 0.000 0.000 3.000 0.128 0.000
74 WFB 310902906 0.000 0.000 3.000 0.128 0.000
76 WFB 310902924 0.000 0.000 3.000 0.128 0.000
85 WFB 310902812 0.000 0.000 3.000 0.128 0.000
87 WFB 310903057 0.000 0.000 3.000 0.128 0.000
90 WFB 310902364 0.000 0.000 3.000 0.128 0.000
95 WFB 610901804 1.000 0.000 7.000 0.128 0.000
96 WFB 310902827 0.000 0.000 3.000 0.128 0.000
99 WFB 310902946 0.000 0.000 3.000 0.128 0.000
102 WFB 310903073 0.000 0.000 3.000 0.128 0.000
104 WFB 310903030 0.000 0.000 3.000 0.128 0.000
105 WFB 310903044 0.000 0.000 3.000 0.128 0.000
107 WFB 937241403A 16.000 0.000 3.000 0.128 0.000
108 WFB 937241403B 16.000 0.000 3.000 0.128 0.000
109 WFB 937241403C 16.000 0.000 3.000 0.128 0.000
110 WFB 937241403D 16.000 0.000 3.000 0.128 0.000
111 WFB 937241403E 16.000 0.000 3.000 0.128 0.000
112 WFB 937241403F 16.000 0.000 3.000 0.128 0.000
113 WFB 937241403G 16.000 0.000 3.000 0.128 0.000
114 WFB 937241403H 16.000 0.000 3.000 0.128 0.000
115 WFB 937241403I 16.000 0.000 3.000 0.128 0.000
116 WFB 937241403J 16.000 0.000 3.000 0.128 0.000
121 WFB 310902907 0.000 0.000 3.000 0.128 0.000
123 WFB 510902855 0.000 0.000 3.000 0.128 0.000
124 WFB 937241410A 17.000 0.000 3.000 0.128 0.000
125 WFB 937241410B 17.000 0.000 3.000 0.128 0.000
126 WFB 937241410C 17.000 0.000 3.000 0.128 0.000
127 WFB 937241410D 17.000 0.000 3.000 0.128 0.000
128 WFB 937241410E 17.000 0.000 3.000 0.128 0.000
129 WFB 937241410F 17.000 0.000 3.000 0.128 0.000
130 WFB 937241410G 17.000 0.000 3.000 0.128 0.000
131 WFB 937241410H 17.000 0.000 3.000 0.128 0.000
132 WFB 937241410I 17.000 0.000 3.000 0.128 0.000
133 WFB 937241410J 17.000 0.000 3.000 0.128 0.000
136 WFB 410902885 0.000 0.000 3.000 0.128 0.000
137 WFB 310902810 0.000 0.000 3.000 0.128 0.000
141 WFB 410902740 0.000 0.000 3.000 0.128 0.000
142 WFB 410902739 0.000 0.000 3.000 0.128 0.000
145 WFB 310901649 0.000 0.000 3.000 0.128 0.000
148 WFB 410902896 0.000 0.000 3.000 0.128 0.000
150 WFB 410902927 5.000 0.000 3.000 0.128 0.000
151 WFB 310902733 0.000 0.000 3.000 0.128 0.000
152 WFB 410901769 0.000 0.000 3.000 0.128 0.000
153 WFB 410902800 0.000 0.000 3.000 0.128 0.000
154 WFB 410902742 5.000 0.000 3.000 0.128 0.000
156 WFB 620902887 1.000 0.000 7.000 0.128 0.000
158 WFB 410902914 0.000 0.000 3.000 0.128 0.000
161 WFB 410902743 5.000 0.000 3.000 0.128 0.000
162 WFB 410902741 5.000 0.000 3.000 0.128 0.000
163 WFB 410903076 5.000 0.000 3.000 0.128 0.000
166 WFB 410902734 5.000 0.000 3.000 0.128 0.000
167 WFB 620902872 1.000 0.000 7.000 0.128 0.000
169 WFB 410902596 5.000 0.000 3.000 0.128 0.000
170 WFB 410903053 5.000 0.000 3.000 0.128 0.000
171 WFB 620902834 6.000 0.000 7.000 0.128 0.000
172 WFB 410902811 0.000 0.000 3.000 0.128 0.000
176 WFB 410902895 0.000 0.000 3.000 0.128 0.000
177 WFB 410902961 0.000 0.000 3.000 0.128 0.000
179 WFB 410902870 5.000 0.000 3.000 0.128 0.000
181 WFB 410902808 0.000 0.000 3.000 0.128 0.000
182 WFB 410902650A 17.000 0.000 3.000 0.128 0.000
183 WFB 410902650B 17.000 0.000 3.000 0.128 0.000
184 WFB 410902650C 17.000 0.000 3.000 0.128 0.000
185 WFB 410902650D 17.000 0.000 3.000 0.128 0.000
186 WFB 410902650E 17.000 0.000 3.000 0.128 0.000
187 WFB 410902832 0.000 0.000 3.000 0.128 0.000
190 WFB 410902859 0.000 0.000 3.000 0.128 0.000
191 WFB 410902926 5.000 0.000 3.000 0.128 0.000
196 WFB 410902949 5.000 0.000 3.000 0.128 0.000
197 WFB 410902825 0.000 0.000 3.000 0.128 0.000
198 WFB 410902866 0.000 0.000 3.000 0.128 0.000
200 WFB 410902935 5.000 0.000 3.000 0.128 0.000
201 WFB 410902861 0.000 0.000 3.000 0.128 0.000
204 WFB 410902648A 17.000 0.000 3.000 0.128 0.000
205 WFB 410902648B 17.000 0.000 3.000 0.128 0.000
206 WFB 410902648C 17.000 0.000 3.000 0.128 0.000
207 WFB 410902648D 17.000 0.000 3.000 0.128 0.000
212 WFB 410902945 5.000 0.000 3.000 0.128 0.000
213 WFB 410902919 5.000 0.000 3.000 0.128 0.000
219 WFB 410902960 5.000 0.000 3.000 0.128 0.000
220 WFB 410902646A 17.000 0.000 3.000 0.128 0.000
221 WFB 410902646B 17.000 0.000 3.000 0.128 0.000
222 WFB 410902646C 17.000 0.000 3.000 0.128 0.000
223 WFB 410902646D 17.000 0.000 3.000 0.128 0.000
226 WFB 410902968 0.000 0.000 3.000 0.128 0.000
228 WFB 410902860 0.000 0.000 3.000 0.128 0.000
229 WFB 410902871 0.000 0.000 3.000 0.128 0.000
230 WFB 410902956 5.000 0.000 3.000 0.128 0.000
232 WFB 410902819 0.000 0.000 3.000 0.128 0.000
233 WFB 410902841 10.000 0.000 3.000 0.128 0.000
234 WFB 410902857 10.000 0.000 3.000 0.128 0.000
235 WFB 410902973 5.000 0.000 3.000 0.128 0.000
236 WFB 410902944 10.000 0.000 3.000 0.128 0.000
237 WFB 410903024 10.000 0.000 3.000 0.128 0.000
238 WFB 410902940 0.000 0.000 3.000 0.128 0.000
239 WFB 410902649A 17.000 0.000 3.000 0.128 0.000
240 WFB 410902649B 17.000 0.000 3.000 0.128 0.000
241 WFB 410902649C 17.000 0.000 3.000 0.128 0.000
243 WFB 410902930 10.000 0.000 3.000 0.128 0.000
244 WFB 410902948 0.000 0.000 3.000 0.128 0.000
245 WFB 410902684 10.000 0.000 3.000 0.128 0.000
246 WFB 410902877 5.000 0.000 3.000 0.128 0.000
247 WFB 620902951 11.000 0.000 7.000 0.128 0.000
249 WFB 410902729 5.000 0.000 3.000 0.128 0.000
253 WFB 410902934 10.000 0.000 3.000 0.128 0.000
254 WFB 410902647A 17.000 0.000 3.000 0.128 0.000
255 WFB 410902647B 17.000 0.000 3.000 0.128 0.000
256 WFB 410902647C 17.000 0.000 3.000 0.128 0.000
257 WFB 410902928 10.000 0.000 3.000 0.128 0.000
258 WFB 410902958 15.000 0.000 3.000 0.128 0.000
260 WFB 410902839 0.000 0.000 3.000 0.128 0.000
262 WFB 410902974 5.000 0.000 3.000 0.128 0.000
265 WFB 410902829 15.000 0.000 3.000 0.128 0.000
267 WFB 410902706 5.000 0.000 3.000 0.128 0.000
269 WFB 410902972 5.000 0.000 3.000 0.128 0.000
270 WFB 410902975 5.000 0.000 3.000 0.128 0.000
272 WFB 410902863A 17.000 0.000 3.000 0.128 0.000
273 WFB 410902863B 17.000 0.000 3.000 0.128 0.000
274 WFB 410902863C 17.000 0.000 3.000 0.128 0.000
275 WFB 410903107 15.000 0.000 3.000 0.128 0.000
278 WFB 410902852 10.000 0.000 3.000 0.128 0.000
280 WFB 410902894 10.000 0.000 3.000 0.128 0.000
SCHEDULE III
PRINCIPAL LOAN SCHEDULE
----------------------------------------------------------------------------------------------
ORIGINAL
MORTGAGE TERM TO
LOAN LOAN CUT-OFF DATE MATURITY
SELLER NUMBER PROPERTY NAME BALANCE NOTE DATE OR ARD
----------------------------------------------------------------------------------------------
2 PCF/MSMC(1) 000000 Xxxx Xxxxx Xxxx $113,000,000 10/03/2005 120
4 PCF 754666 Two Renaissance Square $ 85,200,000 09/28/2005 78
5 PCF/MSMC(2) 000000 Xxxx Xxxxx Xxxx $ 80,000,000 10/03/2005 120
31 PCF 754514 Saddle Brook Shopping Center $ 23,471,972 08/30/2005 120
35 PCF 754567 000 Xxxxxxxx Xxxxxx, Xxxxx $ 20,975,822 08/15/2005 132
53 PCF 754580 11303 Antoine $ 15,963,271 08/26/2005 240
59 PCF 754592 Willow Run Apartments $ 12,784,846 08/25/2005 120
62 PCF 754595 FedEx Miami $ 11,250,000 09/08/2005 108
63 PCF 754617 0000 Xxxxx Xxxxxxxxx Xxxxxxxxx $ 10,500,000 09/19/2005 60
81 PCF 754566 00000 Xxxxxx Xxxxxx $ 9,000,000 07/29/2005 000
00 XXX 000000 Xxxxxxxxxx Xxxxx $ 6,856,603 06/30/2005 240
94 PCF 754582 0000 Xxxxxxxxxx Xxxxxxx $ 6,786,273 07/22/2005 129
101 PCF 754519 Amberley Court Apartments Complex $ 6,400,000 09/21/2005 120
106 PCF 754499 0000 Xxxxxxxxxx Xxxxxxx $ 5,757,300 07/22/2005 180
117 PCF 754561 00-00 Xxxx 00xx Xxxxxx $ 5,285,000 08/24/2005 120
143 PCF 754569 Spanish River Plaza $ 4,500,000 09/15/2005 120
149 PCF 754586 000 Xxxxxx Xxxxxx $ 4,175,000 09/13/2005 120
164 PCF 000000 Xxxxxx Xxxxx Apartments $ 3,493,287 08/18/2005 120
175 PCF 754232 0000 Xxxxxxxxxx Xxxxx $ 3,093,187 08/01/2005 240
188 PCF 754600 000 Xxxxx 00xx Xxxxxx $ 2,700,000 09/01/2005 000
000 XXX 000000 Xxxxxx Xxxxxx Xxxx $ 2,697,072 08/26/2005 120
193 PCF 754494 McBlock XxXxxxxxx $ 1,373,049 07/19/2005 000
000 XXX 000000 XxXxxxx Xxxxxxxxx $ 1,319,553 07/19/2005 180
202 PCF 754279 Stevens Creek Retail Center $ 2,485,660 05/05/2005 180
210 PCF 754500 0000 Xxxxxxxxx Xxxxxx $ 2,307,883 07/29/2005 180
214 PCF 754575 0000 Xxxxx Xxxxxx Xxxxxx $ 2,296,341 08/05/2005 120
216 PCF 754593 000 X. Xxxxx Xxxx $ 2,247,380 08/31/2005 120
218 PCF 754536 XxXxxxxxx Promenade $ 2,194,890 08/08/2005 240
225 PCF 754614 0000 Xxxxxxxx Xxxxxx $ 2,000,000 09/02/2005 120
227 PCF 754534 The Veranda $ 1,990,933 07/22/2005 180
231 PCF 754601 Parkway Apartments $ 1,896,954 08/19/2005 120
271 PCF 754605 0000 Xxxx Xxxxxxxx Xxxx Xxxx $ 1,248,695 08/26/2005 120
282 PCF 754516 0000 Xxxx Xxxxxxxx Xxxxxx $ 773,194 08/03/2005 120
283 PCF 754517 00 Xxxx 00xx Xxxxxx $ 688,392 08/17/2005 120
285 PCF 754518 0000 Xxxx 00xx Xxxxxx $ 548,718 08/03/2005 120
----------------------------------------------------------------------------
MORTGAGE MONTHLY
LOAN LOAN REMAINING ORIG. DEBT
SELLER NUMBER TERM AMORT. RATE SERVICE SEASONING DEF
----------------------------------------------------------------------------
2 PCF/MSMC(1) 754641 120 360 5.000% $606,608 0 92
4 PCF 754666 78 IO 5.140% $370,009 0
5 PCF/MSMC(2) 754639 120 360 5.000% $429,457 0 92
31 PCF 754514 119 360 5.040% $126,728 1 91
35 PCF 754567 131 360 5.230% $115,703 1
53 PCF 754580 239 240 5.500% $110,062 1
59 PCF 754592 119 360 5.080% $ 69,340 1 91
62 PCF 754595 108 415 5.440% $ 60,215 0 82
63 PCF 754617 60 IO 5.480% $ 48,616 0
81 PCF 754566 118 336 5.360% $ 40,758 2
93 PCF 754135 237 240 5.880% $ 48,957 3 209
94 PCF 754582 127 360 5.550% $ 27,496 2 98
101 PCF 754519 120 324 5.250% $ 36,992 0 94
106 PCF 754499 178 180 5.220% $ 46,533 2
117 PCF 754561 119 360 5.630% $ 25,140 1
143 PCF 754569 120 300 5.600% $ 27,903 0 92
149 PCF 754586 120 360 5.150% $ 18,167 0 92
164 PCF 754572 119 282 4.810% $ 20,742 1 93
175 PCF 754232 239 240 5.870% $ 21,978 1 211
188 PCF 754600 120 300 5.370% $ 16,371 0 92
189 PCF 754622 119 360 5.550% $ 15,415 1 91
193 PCF 754494 178 300 5.970% $ 8,846 2
194 PCF 754494 178 300 5.970% $ 8,501 2
202 PCF 754279 176 300 6.090% $ 16,245 4
210 PCF 754500 178 180 5.220% $ 18,654 2
214 PCF 754575 119 300 5.360% $ 13,932 1 91
216 PCF 754593 119 360 5.170% $ 12,313 1 92
218 PCF 754536 239 240 5.400% $ 15,010 1 211
225 PCF 754614 120 360 5.620% $ 11,507 0 92
227 PCF 754534 178 240 5.350% $ 13,589 2 150
231 PCF 754601 119 300 5.310% $ 11,453 1 93
271 PCF 754605 119 360 5.750% $ 7,295 1 91
282 PCF 754516 119 240 5.370% $ 5,274 1 92
283 PCF 754517 119 240 5.370% $ 4,696 1 92
285 PCF 754518 119 240 5.370% $ 3,743 1 92
---------------------------------------------------------------------------------
MORTGAGE
LOAN LOAN
SELLER NUMBER DEF/YM1 YM3 YM2 YM1.75 YM1.5 YM1.25 YM1 YM 5% 4%
---------------------------------------------------------------------------------
2 PCF/MSMC(1) 754641
4 PCF 754666 74
5 PCF/MSMC(2) 754639
31 PCF 754514
35 PCF 754567 104
53 PCF 754580 211
59 PCF 754592
62 PCF 754595
63 PCF 754617 33
81 PCF 754566 92
93 PCF 754135
94 PCF 754582
101 PCF 754519
106 PCF 754499 152
117 PCF 754561 93
143 PCF 754569
149 PCF 754586
164 PCF 754572
175 PCF 754232
188 PCF 754600
189 PCF 754622
193 PCF 754494 152
194 PCF 754494 152
202 PCF 754279 160
210 PCF 754500 152
214 PCF 754575
216 PCF 754593
218 PCF 754536
225 PCF 754614
227 PCF 754534
231 PCF 754601
271 PCF 754605
282 PCF 754516
283 PCF 754517
285 PCF 754518
------------------------------------------------------------------------------------------
MASTER
MORTGAGE ADMIN SERVICE PRIMARY MASTER EXCESS
LOAN LOAN YM COST FEE SERVICE SERV. FEE
SELLER NUMBER 3% 2% 1% OPEN FORMULA RATE RATE FEE RATE RATE (BPS)
------------------------------------------------------------------------------------------
2 PCF/MSMC(1) 754641 5 3.128 2.000 1.000 0.000
4 PCF 754666 4 A 3.128 2.000 1.000 0.000
5 PCF/MSMC(2) 754639 5 3.128 2.000 1.000 0.000
31 PCF 754514 4 3.128 2.000 1.000 0.000
35 PCF 754567 3 A 3.128 2.000 1.000 0.000
53 PCF 754580 4 A 3.128 2.000 1.000 0.000
59 PCF 754592 4 3.128 2.000 1.000 0.000
62 PCF 754595 2 3.128 2.000 1.000 0.000
63 PCF 754617 3 A 3.128 2.000 1.000 0.000
81 PCF 754566 2 A 3.128 2.000 1.000 0.000
93 PCF 754135 4 3.128 2.000 1.000 0.000
94 PCF 754582 5 3.128 2.000 1.000 0.000
101 PCF 754519 2 3.128 2.000 1.000 0.000
106 PCF 754499 2 A 3.128 2.000 1.000 0.000
117 PCF 754561 2 A 3.128 2.000 1.000 0.000
143 PCF 754569 4 3.128 2.000 1.000 0.000
149 PCF 754586 4 3.128 2.000 1.000 0.000
164 PCF 754572 2 3.128 2.000 1.000 0.000
175 PCF 754232 4 3.128 2.000 1.000 0.000
188 PCF 754600 4 3.128 2.000 1.000 0.000
189 PCF 754622 4 3.128 2.000 1.000 0.000
193 PCF 754494 2 A 3.128 2.000 1.000 0.000
194 PCF 754494 2 A 3.128 2.000 1.000 0.000
202 PCF 754279 4 A 3.128 2.000 1.000 0.000
210 PCF 754500 2 A 3.128 2.000 1.000 0.000
214 PCF 754575 4 3.128 2.000 1.000 0.000
216 PCF 754593 3 3.128 2.000 1.000 0.000
218 PCF 754536 4 3.128 2.000 1.000 0.000
225 PCF 754614 4 3.128 2.000 1.000 0.000
227 PCF 754534 4 3.128 2.000 1.000 0.000
231 PCF 754601 2 3.128 2.000 1.000 0.000
271 PCF 754605 4 3.128 2.000 1.000 0.000
282 PCF 754516 3 3.128 2.000 1.000 0.000
283 PCF 754517 3 3.128 2.000 1.000 0.000
285 PCF 754518 3 3.128 2.000 1.000 0.000
PRIMARY
EXCESS
SERVICING TRUSTEE OTHER
MORTGAGE LOAN FEE RATE DEAL FEE MASTER
LOAN SELLER NUMBER (BPS) FEES RATE FEE
-----------------------------------------------------------
2 PCF/MSMC(1) 754641 0.000 3.000 0.128 0.000
4 PCF 754666 0.000 3.000 0.128 0.000
5 PCF/MSMC(2) 754639 0.000 3.000 0.128 0.000
31 PCF 754514 0.000 3.000 0.128 0.000
35 PCF 754567 0.000 3.000 0.128 0.000
53 PCF 754580 0.000 3.000 0.128 0.000
59 PCF 754592 0.000 3.000 0.128 0.000
62 PCF 754595 0.000 3.000 0.128 0.000
63 PCF 754617 0.000 3.000 0.128 0.000
81 PCF 754566 0.000 3.000 0.128 0.000
93 PCF 754135 0.000 3.000 0.128 0.000
94 PCF 754582 0.000 3.000 0.128 0.000
101 PCF 754519 0.000 3.000 0.128 0.000
106 PCF 754499 0.000 3.000 0.128 0.000
117 PCF 754561 0.000 3.000 0.128 0.000
143 PCF 754569 0.000 3.000 0.128 0.000
149 PCF 754586 0.000 3.000 0.128 0.000
164 PCF 754572 0.000 3.000 0.128 0.000
175 PCF 754232 0.000 3.000 0.128 0.000
188 PCF 754600 0.000 3.000 0.128 0.000
189 PCF 754622 0.000 3.000 0.128 0.000
193 PCF 754494 0.000 3.000 0.128 0.000
194 PCF 754494 0.000 3.000 0.128 0.000
202 PCF 754279 0.000 3.000 0.128 0.000
210 PCF 754500 0.000 3.000 0.128 0.000
214 PCF 754575 0.000 3.000 0.128 0.000
216 PCF 754593 0.000 3.000 0.128 0.000
218 PCF 754536 0.000 3.000 0.128 0.000
225 PCF 754614 0.000 3.000 0.128 0.000
227 PCF 754534 0.000 3.000 0.128 0.000
231 PCF 754601 0.000 3.000 0.128 0.000
271 PCF 754605 0.000 3.000 0.128 0.000
282 PCF 754516 0.000 3.000 0.128 0.000
283 PCF 754517 0.000 3.000 0.128 0.000
285 PCF 754518 0.000 3.000 0.128 0.000
1. PCF is selling a 50% interest in this Mortgage Loan evidenced by the
Mortgage Note in the amount of $56,500,000; and MSMC is selling a 50%
interest in this Mortgage Loan evidenced by the Mortgage Note in the
amount of $56,500,000.
2. PCF is selling a 50% interest in this Mortgage Loan evidenced by the
Mortgage Note in the amount of $40,000,000; and MSMC is selling a 50%
interest in this Mortgage Loan evidenced by the Mortgage Note in the
amount of $40,000,000.
MSMC LOAN SCHEDULE
ORIGINAL
MORTGAGE TERM TO
LOAN LOAN CUT-OFF DATE MATURITY
SELLER NUMBER PROPERTY NAME BALANCE NOTE DATE OR ARD
--------------------------------------------------------------------------------------------------
1 XXXX 0 Xxxxxxxxxx Xxxx $121,050,000 06/09/2005 60
2 PCF/MSMC(1) 754641 West Towne Mall $113,000,000 10/03/2005 120
5 PCF/MSMC(2) 000000 Xxxx Xxxxx Xxxx $ 80,000,000 10/03/2005 120
11 XXXX 0 0000 Xxxxxx of the Americas $ 46,800,000 07/06/2005 121
12 MSMC 05-19277 000 Xxxxxxx Xxxxxx $ 45,000,000 03/15/2005 120
28 MSMC 3 Fifth & Pine $ 28,500,000 07/21/2005 120
34 MSMC 05-19230 Corral Hollow $ 21,300,000 07/22/2005 120
38 MSMC 0 Xxxx Xxxxxx Xxxxx $ 19,350,000 07/25/2005 121
54 MSMC 05-21141 Hampton Inn St. Louis $ 14,982,954 09/01/2005 120
55 MSMC 00-00000 Xxxxxxx Xxxxxxxxx Xxxxxx $ 14,500,000 08/30/2005 120
58 MSMC 05-20862 CarMax Buena Park $ 12,970,243 07/25/2005 120
61 MSMC 05-21291 Xxxxxxx Fiesta Center $ 11,386,678 08/04/2005 120
75 MSMC 00-00000 Xxxxxxxxx Xxxxxxx Xxxx $ 10,100,000 09/01/2005 84
78 MSMC 05-18977 AMTEC Center 4 & 10 $ 9,941,035 05/18/2005 120
79 MSMC 05-20716 Brookstone Apartments $ 9,690,000 06/17/2005 120
82 MSMC 05-19861 00 Xxxx Xxx Xxxxxx Xxxx $ 8,900,000 04/28/2005 120
88 MSMC 05-21474 Holiday Inn - Daytona Beach $ 7,986,884 08/25/2005 120
91 MSMC 05-20708 Days Inn - Anaheim $ 7,238,587 08/04/2005 120
92 MSMC 05-21746 Golden Valley Office Park $ 7,200,000 09/14/2005 84
97 MSMC 05-20387 000 Xxxx 00xx Xxxxxx Xxxx $ 6,500,000 06/28/2005 120
98 MSMC 05-20662 Plantation Corporate Center $ 6,500,000 06/29/2005 120
103 MSMC 05-20536 Ridgepoint Apartments $ 6,400,000 06/22/2005 120
118 MSMC 04-18580 NJ Retail Portfolio $ 2,581,808 06/08/2005 120
119 MSMC 05-21247 Metroliner Center $ 1,385,604 06/08/2005 120
120 MSMC 00-00000 Xxxxxxxx Xxxxx $ 1,315,825 06/08/2005 120
122 MSMC 00-00000 Xxxxxxxx Xxxxx $ 5,190,577 07/13/2005 120
135 MSMC 05-20493 0 Xxxx Xxxxxx Xxxxxx Xxxxx $ 5,000,000 08/25/2005 120
144 MSMC 05-21302 Campus Edge Apts - Phase II $ 4,456,000 06/10/2005 60
160 MSMC 05-20136 Pyramid Self Storage $ 3,575,000 06/29/2005 120
165 MSMC 05-19700 Xxxxxx Fields Apartments $ 3,493,056 07/29/2005 180
174 MSMC 05-20462 0000-0000 Xxxxxx Xxxx $ 3,100,000 07/11/2005 120
178 MSMC 05-19863 Xxxx Center Ground Lease $ 2,987,854 05/20/2005 120
195 MSMC 00-00000 Xxxxxxxx Xxxxxx Xxxxxxxx Xxxxxx $ 2,647,116 08/02/2005 120
211 MSMC 05-20129 Park City Retail $ 2,300,000 05/20/2005 120
215 MSMC 00-00000 Xxxxxxxx Xxxxxxx $ 2,250,000 06/07/2005 60
224 MSMC 05-19535 00 Xxxxx Xxxxxxx Xx. $ 2,037,933 05/17/2005 120
252 MSMC 05-20284 College & Horizon $ 1,600,000 06/01/2005 120
261 MSMC 05-19919 Towne Storage - West Jordan $ 1,498,407 08/11/2005 120
268 MSMC 00-00000 Xxxxxxxx Xxxxxx Apartments $ 1,350,000 09/14/2005 120
276 MSMC 00-00000 Xxxxxxxx Xxxxx Apartments $ 1,195,004 05/17/2005 120
277 MSMC 05-20170 Rite Aid - Xxxxxxxx, LA $ 1,182,634 07/07/2005 120
281 MSMC 00-00000 Xxxxxxxxx Xxxxxx Apartments $ 796,669 05/17/2005 120
284 MSMC 05-19835 00 Xxxx Xxxxxx $ 600,000 04/29/2005 120
-----------------------------------------------------------------------------------
MORTGAGE MONTHLY
LOAN LOAN REMAINING ORIG. DEBT
SELLER NUMBER TERM AMORT. RATE SERVICE SEASONING DEF
-----------------------------------------------------------------------------------
1 MSMC 1 57 IO 4.895% $500,641 3 29
2 PCF/MSMC(1) 754641 120 360 5.000% $606,608 0 92
5 PCF/MSMC(2) 754639 120 360 5.000% $429,457 0 92
11 MSMC 2 118 97 5.365% $212,121 3 94
12 MSMC 05-19277 114 IO 4.950% $188,203 6 85
28 MSMC 3 118 IO 5.050% $121,603 2 90
34 MSMC 05-19230 118 IO 4.890% $ 88,003 2
38 MSMC 4 119 91 5.391% $ 88,139 2 95
54 MSMC 05-21141 119 360 5.300% $ 83,296 1
55 MSMC 05-20998 119 360 5.070% $ 62,113 1 91
58 MSMC 05-20862 118 360 4.957% $ 69,446 2 90
61 MSMC 05-21291 119 360 5.150% $ 62,247 1 91
75 MSMC 05-21427 83 360 5.260% $ 44,887 1
78 MSMC 05-18977 116 300 5.570% $ 61,828 4 88
79 MSMC 05-20716 117 IO 4.930% $ 40,363 3 92
82 MSMC 05-19861 115 IO 4.950% $ 37,222 5
88 MSMC 05-21474 119 300 5.160% $ 47,516 1 88
91 MSMC 05-20708 119 300 5.430% $ 44,219 1 88
92 MSMC 05-21746 84 360 5.160% $ 31,390 0 56
97 MSMC 05-20387 117 IO 4.860% $ 26,691 3
98 MSMC 05-20662 117 360 5.050% $ 27,734 3 89
103 MSMC 05-20536 117 360 5.080% $ 27,470 3 89
118 MSMC 04-18580 117 360 5.250% $ 14,302 3 89
119 MSMC 05-21247 117 360 5.250% $ 7,676 3 89
120 MSMC 05-21248 117 360 5.250% $ 7,289 3 89
122 MSMC 03-14550 118 360 6.040% $ 31,310 2 90
135 MSMC 05-20493 119 IO 5.180% $ 21,883 1 91
144 MSMC 05-21302 57 IO 4.540% $ 17,093 3 32
160 MSMC 05-20136 117 360 5.150% $ 15,556 3 89
165 MSMC 05-19700 178 360 5.630% $ 20,159 2 150
174 MSMC 05-20462 118 IO 5.010% $ 13,122 2 90
178 MSMC 05-19863 116 360 5.560% $ 17,147 4 88
195 MSMC 05-20547 119 360 5.530% $ 15,096 1 91
211 MSMC 05-20129 116 360 5.400% $ 10,494 4 88
215 MSMC 05-19995 57 IO 5.030% $ 9,562 3 29
224 MSMC 05-19535 116 300 5.580% $ 12,687 4 88
252 MSMC 05-20284 116 360 5.130% $ 6,935 4 88
261 MSMC 05-19919 119 360 5.660% $ 8,668 1 91
268 MSMC 05-20038 120 360 5.430% $ 7,606 0 92
276 MSMC 05-20036 116 360 5.430% $ 6,761 4 88
277 MSMC 05-20170 118 360 5.600% $ 6,803 2 90
281 MSMC 05-20037 116 360 5.430% $ 4,507 4 88
284 MSMC 05-19835 115 IO 5.210% $ 2,641 5
MORTGAGE
LOAN LOAN
SELLER NUMBER DEF/YM1 YM3 YM2 YM1.75 YM1.5 YM1.25 YM1 YM 5% 4% 3% 2%
--------------------------------------------------------------------------------------------------------
1 MSMC 1
2 PCF/MSMC(1) 754641
5 PCF/MSMC(2) 754639
11 MSMC 2
12 MSMC 05-19277
28 MSMC 3 26
34 MSMC 05-19230 90
38 MSMC 4
54 MSMC 05-21141 91
55 MSMC 05-20998
58 MSMC 05-20862
61 MSMC 05-21291
75 MSMC 05-21427 55
78 MSMC 05-18977
79 MSMC 05-20716
82 MSMC 05-19861 87
88 MSMC 05-21474
91 MSMC 05-20708
92 MSMC 05-21746
97 MSMC 05-20387 89
98 MSMC 05-20662
103 MSMC 05-20536
118 MSMC 04-18580
119 MSMC 05-21247
120 MSMC 05-21248
122 MSMC 03-14550
135 MSMC 05-20493
144 MSMC 05-21302
160 MSMC 05-20136
165 MSMC 05-19700
174 MSMC 05-20462
178 MSMC 05-19863
195 MSMC 05-20547
211 MSMC 05-20129
215 MSMC 05-19995
224 MSMC 05-19535
252 MSMC 05-20284
261 MSMC 05-19919
268 MSMC 05-20038
276 MSMC 05-20036
277 MSMC 05-20170
281 MSMC 05-20037
284 MSMC 05-19835 87
MASTER PRIMARY
SERVICE SERVICE
MORTGAGE LOAN YM ADMIN FEE FEE
LOAN SELLER NUMBER 1% OPEN FORMULA COST RATE RATE RATE
--------------------------------------------------------------------------
1 MSMC 1 4 3.128 2.000 1.000
2 PCF/MSMC(1) 754641 5 3.128 2.000 1.000
5 PCF/MSMC(2) 754639 5 3.128 2.000 1.000
11 MSMC 2 0.378 0.000 0.250
12 MSMC 05-19277 5 1.128 0.000 1.000
28 MSMC 3 4 D 3.128 2.000 1.000
34 MSMC 05-19230 4 E 3.128 2.000 1.000
38 MSMC 4 0.378 0.000 0.250
54 MSMC 05-21141 4 H 3.128 2.000 1.000
55 MSMC 05-20998 4 3.128 2.000 1.000
58 MSMC 05-20862 4 3.128 2.000 1.000
61 MSMC 05-21291 4 8.128 2.000 5.000
75 MSMC 05-21427 4 H 3.128 2.000 1.000
78 MSMC 05-18977 4 3.128 2.000 1.000
79 MSMC 05-20716 1 3.128 2.000 1.000
82 MSMC 05-19861 4 J 3.128 2.000 1.000
88 MSMC 05-21474 7 3.128 2.000 1.000
91 MSMC 05-20708 7 3.128 2.000 1.000
92 MSMC 05-21746 4 3.128 2.000 1.000
97 MSMC 05-20387 4 J 3.128 2.000 1.000
98 MSMC 05-20662 4 3.128 2.000 1.000
103 MSMC 05-20536 4 3.128 2.000 1.000
118 MSMC 04-18580 4 3.128 2.000 1.000
119 MSMC 05-21247 4 3.128 2.000 1.000
120 MSMC 05-21248 4 3.128 2.000 1.000
122 MSMC 03-14550 4 3.128 2.000 1.000
135 MSMC 05-20493 4 3.128 2.000 1.000
144 MSMC 05-21302 1 3.128 2.000 1.000
160 MSMC 05-20136 4 3.128 2.000 1.000
165 MSMC 05-19700 4 3.128 2.000 1.000
174 MSMC 05-20462 4 3.128 2.000 1.000
178 MSMC 05-19863 4 3.128 2.000 1.000
195 MSMC 05-20547 4 3.128 2.000 1.000
211 MSMC 05-20129 4 13.128 2.000 10.000
215 MSMC 05-19995 4 3.128 2.000 1.000
224 MSMC 05-19535 4 3.128 2.000 1.000
252 MSMC 05-20284 4 3.128 2.000 1.000
261 MSMC 05-19919 4 3.128 2.000 1.000
268 MSMC 05-20038 4 3.128 2.000 1.000
276 MSMC 05-20036 4 3.128 2.000 1.000
277 MSMC 05-20170 4 3.128 2.000 1.000
281 MSMC 05-20037 4 3.128 2.000 1.000
284 MSMC 05-19835 4 M 3.128 2.000 1.000
MASTER
EXCESS PRIMARY
SERV. EXCESS
FEE SERVICING TRUSTEE OTHER
MORTGAGE LOAN RATE FEE RATE DEAL FEE MASTER
LOAN SELLER NUMBER (BPS) (BPS) FEES RATE FEE
----------------------------------------------------------------------
1 MSMC 1 0.000 0.000 3.000 0.128 0.000
2 PCF/MSMC(1) 754641 0.000 0.000 3.000 0.128 0.000
5 PCF/MSMC(2) 754639 0.000 0.000 3.000 0.128 0.000
11 MSMC 2 0.000 0.000 0.250 0.128 0.000
12 MSMC 05-19277 0.000 0.000 1.000 0.128 0.000
28 MSMC 3 0.000 0.000 3.000 0.128 0.000
34 MSMC 05-19230 0.000 0.000 3.000 0.128 0.000
38 MSMC 4 0.000 0.000 0.250 0.128 0.000
54 MSMC 05-21141 0.000 0.000 3.000 0.128 0.000
55 MSMC 05-20998 0.000 0.000 3.000 0.128 0.000
58 MSMC 05-20862 0.000 0.000 3.000 0.128 0.000
61 MSMC 05-21291 1.000 0.000 7.000 0.128 0.000
75 MSMC 05-21427 0.000 0.000 3.000 0.128 0.000
78 MSMC 05-18977 0.000 0.000 3.000 0.128 0.000
79 MSMC 05-20716 0.000 0.000 3.000 0.128 0.000
82 MSMC 05-19861 0.000 0.000 3.000 0.128 0.000
88 MSMC 05-21474 0.000 0.000 3.000 0.128 0.000
91 MSMC 05-20708 0.000 0.000 3.000 0.128 0.000
92 MSMC 05-21746 0.000 0.000 3.000 0.128 0.000
97 MSMC 05-20387 0.000 0.000 3.000 0.128 0.000
98 MSMC 05-20662 0.000 0.000 3.000 0.128 0.000
103 MSMC 05-20536 0.000 0.000 3.000 0.128 0.000
118 MSMC 04-18580 0.000 0.000 3.000 0.128 0.000
119 MSMC 05-21247 0.000 0.000 3.000 0.128 0.000
120 MSMC 05-21248 0.000 0.000 3.000 0.128 0.000
122 MSMC 03-14550 0.000 0.000 3.000 0.128 0.000
135 MSMC 05-20493 0.000 0.000 3.000 0.128 0.000
144 MSMC 05-21302 0.000 0.000 3.000 0.128 0.000
160 MSMC 05-20136 0.000 0.000 3.000 0.128 0.000
165 MSMC 05-19700 0.000 0.000 3.000 0.128 0.000
174 MSMC 05-20462 0.000 0.000 3.000 0.128 0.000
178 MSMC 05-19863 0.000 0.000 3.000 0.128 0.000
195 MSMC 05-20547 0.000 0.000 3.000 0.128 0.000
211 MSMC 05-20129 1.000 0.000 12.000 0.128 0.000
215 MSMC 05-19995 0.000 0.000 3.000 0.128 0.000
224 MSMC 05-19535 0.000 0.000 3.000 0.128 0.000
252 MSMC 05-20284 0.000 0.000 3.000 0.128 0.000
261 MSMC 05-19919 0.000 0.000 3.000 0.128 0.000
268 MSMC 05-20038 0.000 0.000 3.000 0.128 0.000
276 MSMC 05-20036 0.000 0.000 3.000 0.128 0.000
277 MSMC 05-20170 0.000 0.000 3.000 0.128 0.000
281 MSMC 05-20037 0.000 0.000 3.000 0.128 0.000
284 MSMC 05-19835 0.000 0.000 3.000 0.128 0.000
1. PCF is selling a 50% interest in this Mortgage Loan evidenced by the
Mortgage Note in the amount of $56,500,000; and MSMC is selling a 50%
interest in this Mortgage Loan evidenced by the Mortgage Note in the
amount of $56,500,000.
2. PCF is selling a 50% interest in this Mortgage Loan evidenced by the
Mortgage Note in the amount of $40,000,000; and MSMC is selling a 50%
interest in this Mortgage Loan evidenced by the Mortgage Note in the
amount of $40,000,000.
SCHEDULE V
[Reserved]
SCHEDULE VI
LIST OF ESCROW ACCOUNTS NOT CURRENTLY
ELIGIBLE ACCOUNTS
MSMC - NONE
BSCMI - NONE
PRINCIPAL - NONE
XXXXX - NONE
SCHEDULE VII
CERTAIN ESCROW ACCOUNTS FOR
WHICH A REPORT UNDER SECTION 5.1(G)
IS REQUIRED
MSMC
DEFERRED MAINTENANCE
INITIAL TAX ESCROW INITIAL INSURANCE ESCROW ESCROW
-----------------------------------------------------------------------------
Hampton Inn St. Louis NAP Victoria Square
Shopping Center
Holiday Inn - Daytona Beach
Golden Valley Office Park
Plantation Corporate Center
INITIAL ENVIRONMENTAL
INITIAL CAP EX ESCROW INITIAL TI/LC ESCROW ESCROW OTHER ESCROW
--------------------------------------------------------------------------------------------------
Xxxxxxx Fiesta Center Park Avenue Plaza NAP West Towne Mall
1345 Avenue of the Americas ($3,000,000 LOC)
BSCMSI
BSCMI
MORTGAGE LOAN
LOAN NO. NUMBER PROPERTY NAME ESCROW AMOUNT ($)
--------------------------------------------------------------------------------
100 43186 STAPLES PLAZA $450,000 (DEFERRED MAINTENANCE)
146 43758 SWIFT CREEK SHOPPING CENTER $ 81,250 (DEFERRED MAINTENANCE)
155 44275 ROSAMOND APARTMENTS $169,750 (DEFERRED MAINTENANCE)
PRINCIPAL
CMSA MASTER PRIMARY ACTION OR
LOAN LOAN LOAN PROPERTY EXPIRATION ORIGINAL CURRENT
ID # # NAME DATE TYPE BALANCE BALANCE STATUS PURPOSE COMMENTS
--------------------------------------------------------------------------------------------------------------------------
138 00-0000000 754662 Xxxxxx 6/1/2006 Escrow $167,958.75 $167,958.75 Active Deferred Within 9 months
Centre Maintenance of loan closing,
East Borrower is to
provide evidence
that deferred
maintenance items
referenced in the
PCA are completed.
* Schedule VII sets forth those Mortgage Loans as to which an upfront reserve
was collected at closing in an amount in excess of $75,000 with respect to
specific immediate engineering work, completion of additional construction,
environmental remediation or similar one-time projects (but not with
respect to escrow accounts maintained for ongoing obligations, such as real
estate taxes, insurance premiums, ongoing property maintenance,
replacements and capital improvements or debt service).
XXXXX
SCHEDULE VII - UPFRONT
RESERVES, IN EXCESS
OF $75,000, FOR:
- SPECIFIC IMMEDIATE
ENGINEERING WORK
- COMPLETION OF
ADDITIONAL
CONSTRUCTION
- ENVIRONMENTAL
REMEDIATON OT
LOAN NUMBER PROPERTY NAME SIMILAR PROJECTS SCHEDULE VII - UPFRONT RESERVES COMMENTS
------------------------------------------------------------------------------------------------------------------------------
510903198 The Westin Xxxxxx Place
510902854A Park 'N Fly Atlanta
510902854B Park 'N Fly Dallas
510902854C Park 'N Fly Cleveland $304,688 Immediate repairs were identified
consisting of asphalt repaving with a
cost of $243,750. At closing, 125% of
the estimated cost of $243,750 for
asphalt repaving equal to $304,688
was collected.
510902854D Park 'N Fly Houston
510903065 Depot Business Park
310902837 AMLI Downtown Apartments
310903084 Manhattan Gateway Shopping Center
310903078 Sand Hill Plaza
310903043 Temple Towne Center
510902463A 24 Hour Fitness Portfolio - Cypress
510902463B 24 Hour Fitness Portfolio - 7420 Xxxxxxx
310902845 Xxxxxxxxxx Xxxxx
000000000X Xxxxxxxx Xxxxxxxxx - Stuart Facility
310903141B Hinckley Portfolio - Portsmouth Facility
310903141C Hinckley Portfolio - SW Harbor Shore
310903141D Hinckley Portfolio - Trenton Facility
310903141E Hinckley Portfolio - SW Harbor Bass Harbor
310903064A Springview Terrace Portfolio - Grand Valley
Village
310903064C Springview Terrace Portfolio - Wedgewood
Terrace
310903064B Springview Terrace Portfolio - Fairview Estates
310903064D Springview Terrace Portfolio - Meadowview
Village
610902069 The Colonnade Shopping Center
310903093 0000 Xxxxxx Xxxx.
310902999 Winding Commons
310902924 Security Public Storage - Bethesda
310902812 Wal-Mart Supercenter
310903057 Xxxxxx Street Station Apartments $111,431 $111,431 was impounded upfront and was
the total of short-term capital
improvements for roof, HVAC, and
interior. Total short-term capital
improvements were $138,044. $5,075 was
deducted for parking lot repairs and
$21,538 deducted for exterior painting.
The remaining $111,431 is the
recommended reserve amount for roof,
HVAC, and unit repairs.
310902364 Best Buy, Sanford, FL
310902906 Xxxxxxx - Xxxxxx Business Park
610901804 Xxxxxxxxxx Xxxxxxxxxx - Xxxxx
000000000 Xxxxxx Xxxxxx Xxxxx
310902827 Birch Commons Apartment Complex
310902946 Security Public Storage - Richmond
310903030 Shoppes of Midtown
310903044 ParkCenter 400
937241403A Circle K Portfolio Pod 3 - 00000 X Xxxxxxx Xxx
937241403B Circle K Portfolio Xxx 0 - 000 X Xxxxxx
000000000X Xxxxxx X Portfolio Xxx 0 - 000 X Xxxxxxxx Xxx
000000000X Xxxxxx X Portfolio Xxx 0 - 0000 X Xxxxxxxxxx Xx
000000000X Xxxxxx X Portfolio Xxx 0 - 00 X Xxxxxxxx Xxx
000000000X Xxxxxx X Portfolio Xxx 0 - 0000 X Xxxx Xx
000000000X Xxxxxx X Portfolio Xxx 0 - 0000 X Xxxxxxxxxx
000000000X Xxxxxx X Portfolio Xxx 0 - 0000 X Xxxxxx Xx
000000000X Xxxxxx X Portfolio Xxx 0 - 0000 X Xxxxxx Xxx
000000000X Xxxxxx X Portfolio Pod 3 - 4306 W Maryland Ave
310902907 Security Public Storage - Xxxxxxx
510902855 Xxxx Xxxxx Shopping Center
937241410A Circle K Portfolio Xxx 00 - 000 X 00 Xx
000000000X Xxxxxx X Portfolio Xxx 00 - 00 Xxxxxxx Xx
937241410C Circle K Portfolio Pod 10 - 1825 Xxxxxxx
Harlem Dr
937241410D Circle K Portfolio Xxx 00 - 0000 X Xxxxxxxx Xxx
000000000X Xxxxxx X Portfolio Xxx 00 - 0000 XXX 00 X
000000000X Xxxxxx X Portfolio Xxx 00 - 000 Xxxxxxxxxx Xx
000000000X Xxxxxx X Portfolio Xxx 00 - 000 X Xxxxxxxx Xxxx
000000000X Xxxxxx X Portfolio Pod 10 - 2631 Wrightsboro Rd
937241410I Circle K Portfolio Pod 10 - 3275 W Gulf To
Lake Hwy
937241410J Circle K Portfolio Pod 10 - 528 US Highway 80
410902885 Corporate Pointe
310902810 Posthole Office
410902740 Walgreens - Cheyenne
410902739 Walgreens - Albuquerque
310901649 Terri's Consign and Design Furnishings
410902896 Marketplace Square
410902927 Security Public Storage - Escondido
310902733 North Bay Self Storage
410901769 Colonial Village
410902800 Xxxxxxxxxxx xxx Xxxxxxx Xxxxxxxxxx
000000000 Xxxxxxxxx - Xxxxxx
620902887 0000 X. Xx Xxxxx Xxx.
410902914 Mill Creek Professional Center
410902743 Walgreens - Ruidoso
410902741 Walgreens - Des Moines
410903076 00000 Xxxxxxx Xxxx
410902734 0000 X. Xxxxxxxxx Xxxxxx
620902872 Xxx Xxxxx Xxxxxxxxx
000000000 Xxxxxxxxx - Xxx Xxxxxxxxxx
410903053 Maple Xxxxx Business Center-Corona CA
620902834 Foothill Center $100,000 An up-front environmental impound of
$100,000 collected at loan funding. If
Borrower has not obtained a "no further
action letter" by the end of the 18th
month of the loan, a $5,000 monthly
impound will be collected from months 19
to 36. Upon receipt of "no further
action letter", such impound plus
interest shall be released to Borrower.
In the event Borrower elects to pre-pay
the loan, such impound plus interest
shall be released to Borrower.
410902811 Pierremont Mall Shopping Center
410902895 Pebble Creek Apartments
410902961 Xxxxxx Xxxxx Apartments
410902870 CVS Pharmacy-CT
410902808 Page Self Storage
410902650A Dollar General (Pool 7) - Weslaco
410902650B Dollar General (Pool 7) - Edinburg
410902650C Dollar General (Pool 7) - Southpark
410902650D Dollar General (Pool 7) - Santa Xxxx
410902650E Dollar General (Pool 7) - Heavenly
410902832 Owatonna Commons
410902859 Four Storage - Bristol Plaza
410902926 Security Public Storage - Oceanside
410902949 Tractor Supply Company - Wisconsin
410902825 Airport Center
410902866 Veteran Avenue Apartments
410902935 Parkridge Center
410902861 Maple Commerce Center
410902648A Dollar General (Pool 5) - Laredo
410902648B Dollar General (Pool 5) - McAllen (Auburn)
410902648C Dollar General (Pool 5) - Xxxxx
410902648D Dollar General (Pool 5) - McAllen (Dove)
410902945 Security Public Storage - Roseville
410902919 Severna Park Plaza
410902960 Redding Hilltop Apartments
410902646A Dollar General (Pool 3) - Castroville
410902646B Dollar General (Pool 3) - Harlingen
410902646C Dollar General (Pool 3) - Dripping Springs
410902646D Dollar General (Pool 3) - New Waverly
410902968 South Bluff Crossing
410902860 University Manor Apartments $150,000 $150,000 will be held back at loan close
which will be used for roof replacement,
parking lot resurfacing, and other
upgrades. Funds will be released upon
satisfactory completion of the 2.
410902871 Heritage Heights Apartments
410902956 0000 00xx Xxxxxx Apartments
410902819 Holiday Xxxxxxx and The Edge $98,750 Holiday Xxxxxxx requires $79,000 in
immediate repairs, including inspecting
and repairing the roof, inspecting and
sealing (water tight) original flip-type
windows, replacing damaged wood floor,
inspecting and repairing air handlers'
condensate lines, repairing exterior
walls at basement level, and repairing
basement (as needed). / Mitigants: A
deferred maintenance impound of 125% of
the costs of the immediate repairs is
required, per the application letter.
The Borrower is aware of the deferred
maintenance and will impound the
required amount, and will make the
necessary repairs post closing.
410902841 Rite Aid - Philadelphia
410902857 0000 X. 00xx Xxxxxx
410902973 City View Apartments
410902944 Security Public Storage - Sacramento II
410903024 White Cap Industries II
410902940 Sundance Apartments
410902649A Dollar General (Pool 6) - San Marcos
410902649B Dollar General (Pool 6) - Walnut
410902649C Dollar General (Pool 6) - Hwy 46
410902930 Cirby Business Park
410902948 Oregon Aero Building
410902684 Van Nuys and Xxxxxxx Way Shopping Center
410902877 0000 X. Xxxxx Xxxxxx
620902951 Broomfield Marketplace
410902729 0000 Xxx Xxxxxxxx Xxxx
410902934 Red Branch Center
410902647A Dollar General (Pool 4) - Edinburg
410902647B Dollar General (Pool 4) - San Xxxx
410902647C Dollar General (Pool 4) - Premont
410902928 Security Public Storage - Vallejo
410902958 Office Max - San Francisco
410902839 0000 Xxxxxx Xxxxxx $92,438 The engineering consultant concluded the
subject property appeared to be in
generally good condition. However,
asphalt pavement appeared to be original
installation materials (circa 1981) with
numerous repairs and previous seal
coating evident. The asphalt pavement,
especially surrounding the structure,
was identified in significantly
deteriorated condition with large areas
of "alligator" fracturing, overlaying
repairs, and de-lamination noted. The
report recommended $73,950 in immediate
repairs to resurface the asphalt
pavement and restripe the parking
spaces.
410902974 Country Faire Shopping Center
410902829 25620 Rye Canyon Industrial
410902706 XX XXXXX - Muncie, IN.
410902972 SouthTown Xxxxxx Xxxx Xxxx
000000000 Xxxxxxx Xxxxxxxx Xxxx
410902863A Waco Apartments Portfolio - South 11th Street
Apartments
410902863B Waco Apartments Portfolio - 1600 & 0000 Xxxxx
410902863C Waco Apartments Portfolio - St. Xxxxx
Apartments
410903107 Gunbarrel Commons
410902852 5800 Park Center, Ltd
410902894 Oxboro Place Apartments
SCHEDULE VIII
LIST OF MORTGAGORS THAT ARE THIRD PARTY
BENEFICIARIES UNDER SECTION 2.3(A)
MSMC NJ Retail Portfolio (A)
Metroliner Center (A)
Turnpike Plaza (A)
BSCMI NONE
PRINCIPAL NONE
XXXXX NONE
SCHEDULE IX
[RESERVED]
SCHEDULE X
MORTGAGE LOANS SECURED BY MORTGAGED PROPERTIES COVERED BY AN
ENVIRONMENTAL INSURANCE POLICY
MORTGAGE MORTGAGE
LOAN NO. LOAN SELLER LOAN NAME
-------------------------------------------------------------------
00 XXX Xxxxxxxxx Xxxxxxx Shopping Center
98 MSMC Plantation Corporate Center
152 WFB Colonial Village
156 WFB 0000 X. Xx Xxxxx Xxx.
158 WFB Mill Creek Professional Center
161 WFB Walgreens - Ruidoso
163 WFB 00000 Xxxxxxx Xxxx
166 WFB 0000 X. Xxxxxxxxx Xxxxxx
167 WFB Los Altos Courtyard
000 XXX Xxxxxxxxx - Xxx Xxxxxxxxxx
176 WFB Pebble Creek Apartments
177 WFB Xxxxxx Xxxxx Apartments
179 WFB CVS Pharmacy-CT
181 WFB Page Self Storage
182 WFB Dollar General (Pool 7) - Weslaco
183 WFB Dollar General (Pool 7) - Edinburg
184 WFB Dollar General (Pool 7) - Southpark
185 WFB Dollar General (Pool 7) - Santa Xxxx
186 WFB Dollar General (Pool 7) - Heavenly
187 WFB Owatonna Commons
190 WFB Four Storage - Bristol Plaza
191 WFB Security Public Storage - Oceanside
196 WFB Tractor Supply Company - Wisconsin
197 WFB Airport Center
198 WFB Veteran Avenue Apartments
200 WFB Parkridge Center
204 WFB Dollar General (Pool 5) - Laredo
205 WFB Dollar General (Pool 5) - McAllen (Auburn)
206 WFB Dollar General (Pool 5) - Xxxxx
207 WFB Dollar General (Pool 5) - McAllen (Dove)
212 WFB Security Public Storage - Roseville
213 WFB Severna Xxxx Xxxxx
000 XXX Xxxxxxx Hilltop Apartments
220 WFB Dollar General (Pool 3) - Castroville
221 WFB Dollar General (Pool 3) - Harlingen
222 WFB Dollar General (Pool 3) - Dripping Springs
223 WFB Dollar General (Pool 3) - New Waverly
226 WFB South Bluff Crossing
MORTGAGE MORTGAGE
LOAN NO. LOAN SELLER LOAN NAME
--------------------------------------------------------------------------------
228 WFB University Manor Apartments
229 WFB Heritage Heights Apartments
230 WFB 0000 00xx Xxxxxx Apartments
232 WFB Holiday Xxxxxxx and The Edge
233 WFB Rite Aid - Philadelphia
234 WFB 0000 X. 00xx Xxxxxx
235 WFB City View Apartments
236 WFB Security Public Storage - Sacramento II
238 WFB Sundance Apartments
239 WFB Dollar General (Pool 6) - San Marcos
240 WFB Dollar General (Pool 6) - Walnut
241 WFB Dollar General (Pool 6) - Xxx 00
000 XXX Xxxxx Xxxxxxxx Xxxx
245 WFB Van Nuys and Xxxxxxx Way Shopping Center
253 WFB Red Branch Center
254 WFB Dollar General (Pool 4) - Edinburg
255 WFB Dollar General (Pool 4) - San Xxxx
256 WFB Dollar General (Pool 4) - Premont
257 WFB Security Public Storage - Vallejo
260 WFB 3010 Knight Street
267 WFB XX XXXXX - Muncie, IN.
000 XXX XxxxxXxxx Mobile Home Park
000 XXX Xxxxxxx Xxxxxxxx Xxxx
272 WFB Waco Apartments Portfolio -South 00xx Xxxxxx Xxxxxxxxxx
000 XXX Xxxx Apartments Portfolio - 1600 & 1604 Xxxxx
274 WFB Waco Apartments Portfolio - St. Xxxxx Apartments
278 WFB 5800 Park Center, Ltd
SCHEDULE XI
LIST OF MORTGAGE LOANS THAT HAVE SCHEDULED PAYMENTS AFTER THE END
OF A COLLECTION PERIOD
SELLER
MORTGAGE LOAN NO. LOAN NUMBER Property Name DUE DATE
------------------------------------------------------------------------
0 XXXX XXXXXXXXXX XXXX 0XX
11 MSMC 1345 AVENUE OF THE AMERICAS 8TH
28 MSMC FIFTH & PINE 7TH
34 MSMC CORRAL HOLLOW 8TH
00 XXXX XXXX XXXXXX XXXXX 0XX
SCHEDULE XII
LIST OF MORTGAGE LOANS THAT ACCRUE ON AN ACTUAL/360 BASIS, BUT WHOSE SERVICING
FEES ACCRUE ON A 30/360 BASIS
NONE
SCHEDULE XIII
CLASS A-AB PLANNED PRINCIPAL BALANCE
DISTRIBUTION DATE BALANCE
----------------- ---------------
Closing Date $142,600,000.00
11/12/2005 $142,600,000.00
12/12/2005 $142,600,000.00
01/12/2006 $142,600,000.00
02/12/2006 $142,600,000.00
03/12/2006 $142,600,000.00
04/12/2006 $142,600,000.00
05/12/2006 $142,600,000.00
06/12/2006 $142,600,000.00
07/12/2006 $142,600,000.00
08/12/2006 $142,600,000.00
09/12/2006 $142,600,000.00
10/12/2006 $142,600,000.00
11/12/2006 $142,600,000.00
12/12/2006 $142,600,000.00
01/12/2007 $142,600,000.00
02/12/2007 $142,600,000.00
03/12/2007 $142,600,000.00
04/12/2007 $142,600,000.00
05/12/2007 $142,600,000.00
06/12/2007 $142,600,000.00
07/12/2007 $142,600,000.00
08/12/2007 $142,600,000.00
09/12/2007 $142,600,000.00
10/12/2007 $142,600,000.00
11/12/2007 $142,600,000.00
12/12/2007 $142,600,000.00
01/12/2008 $142,600,000.00
02/12/2008 $142,600,000.00
03/12/2008 $142,600,000.00
04/12/2008 $142,600,000.00
05/12/2008 $142,600,000.00
06/12/2008 $142,600,000.00
07/12/2008 $142,600,000.00
08/12/2008 $142,600,000.00
09/12/2008 $142,600,000.00
10/12/2008 $142,600,000.00
11/12/2008 $142,600,000.00
12/12/2008 $142,600,000.00
01/12/2009 $142,600,000.00
02/12/2009 $142,600,000.00
03/12/2009 $142,600,000.00
04/12/2009 $142,600,000.00
05/12/2009 $142,600,000.00
06/12/2009 $142,600,000.00
07/12/2009 $142,600,000.00
08/12/2009 $142,600,000.00
09/12/2009 $142,600,000.00
10/12/2009 $142,600,000.00
11/12/2009 $142,600,000.00
12/12/2009 $142,600,000.00
01/12/2010 $142,600,000.00
02/12/2010 $142,600,000.00
03/12/2010 $142,600,000.00
04/12/2010 $142,600,000.00
05/12/2010 $142,600,000.00
06/12/2010 $142,600,000.00
07/12/2010 $142,600,000.00
08/12/2010 $142,600,000.00
09/12/2010 $142,600,000.00
10/12/2010 $142,549,950.85
11/12/2010 $139,909,000.00
12/12/2010 $137,039,000.00
01/12/2011 $134,373,000.00
02/12/2011 $131,695,000.00
03/12/2011 $128,359,000.00
04/12/2011 $125,654,000.00
05/12/2011 $122,722,000.00
06/12/2011 $119,991,000.00
07/12/2011 $117,033,000.00
08/12/2011 $114,276,000.00
09/12/2011 $111,507,000.00
10/12/2011 $108,512,000.00
11/12/2011 $105,716,000.00
12/12/2011 $102,696,000.00
01/12/2012 $ 99,874,000.00
02/12/2012 $ 97,039,000.00
03/12/2012 $ 93,770,000.00
04/12/2012 $ 91,000,000.00
05/12/2012 $ 88,300,000.00
06/12/2012 $ 85,600,000.00
07/12/2012 $ 82,900,000.00
08/12/2012 $ 80,200,000.00
09/12/2012 $ 77,500,000.00
10/12/2012 $ 74,440,000.00
11/12/2012 $ 71,550,000.00
DISTRIBUTION DATE BALANCE
----------------- --------------
12/12/2012 $68,447,000.00
01/12/2013 $65,531,000.00
02/12/2013 $62,595,000.00
03/12/2013 $59,074,000.00
04/12/2013 $56,136,000.00
05/12/2013 $52,986,000.00
06/12/2013 $50,021,000.00
07/12/2013 $46,844,000.00
08/12/2013 $43,851,000.00
09/12/2013 $40,844,000.00
10/12/2013 $37,626,000.00
11/12/2013 $34,591,000.00
12/12/2013 $31,346,000.00
01/12/2014 $28,282,000.00
02/12/2014 $25,205,000.00
03/12/2014 $21,527,000.00
04/12/2014 $18,422,000.00
05/12/2014 $15,099,000.00
06/12/2014 $11,965,000.00
07/12/2014 $ 8,625,000.00
08/12/2014 $ 5,463,000.00
09/12/2014 $ 2,286,000.00
10/12/2014 $ 0.00