EXECUTION COPY
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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 MINNESOTA, 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, 2003
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2003-TOP12
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINITIONS.........................................10
SECTION 1.2 CALCULATIONS RESPECTING
MORTGAGE LOANS......................................85
SECTION 1.3 CALCULATIONS RESPECTING
ACCRUED INTEREST....................................86
SECTION 1.4 INTERPRETATION......................................86
SECTION 1.5 ARD LOANS...........................................86
SECTION 1.6 CERTAIN MATTERS WITH RESPECT TO LOAN PAIRS
AND A/B MORTGAGE LOANS..............................87
ARTICLE II
DECLARATION OF TRUST;
ISSUANCES OF CERTIFICATES
SECTION 2.1 CONVEYANCE OF MORTGAGE LOANS........................89
SECTION 2.2 ACCEPTANCE BY TRUSTEE...............................92
SECTION 2.3 SELLERS' REPURCHASE OF MORTGAGE LOANS FOR
MATERIAL DOCUMENT DEFECTS AND MATERIAL
BREACHES OF REPRESENTATIONS AND WARRANTIES..........94
SECTION 2.4 REPRESENTATIONS AND WARRANTIES.....................101
SECTION 2.5 CONVEYANCE OF INTERESTS............................102
ARTICLE III
THE CERTIFICATES
SECTION 3.1 THE CERTIFICATES...................................103
SECTION 3.2 REGISTRATION.......................................103
SECTION 3.3 TRANSFER AND EXCHANGE OF CERTIFICATES..............104
SECTION 3.4 MUTILATED, DESTROYED,LOST OR STOLEN
CERTIFICATES.......................................110
SECTION 3.5 PERSONS DEEMED OWNERS..............................110
SECTION 3.6 ACCESS TO LIST OF CERTIFICATEHOLDERS'
NAMES AND ADDRESSES................................110
SECTION 3.7 BOOK-ENTRY CERTIFICATES............................111
SECTION 3.8 NOTICES TO CLEARING AGENCY.........................114
SECTION 3.9 DEFINITIVE CERTIFICATES............................114
ARTICLE IV
ADVANCES
SECTION 4.1 P&I ADVANCES BY MASTER SERVICER....................115
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SECTION 4.1A P&I ADVANCES WITH RESPECT TO THE BERKELEY
& XXXXX XXXX PASSU LOAN, THE RSA PARI PASSU LOAN
AND THE WESTSHORE PLAZA PARI PASSU LOAN...........116
SECTION 4.2 SERVICING ADVANCES................................117
SECTION 4.3 ADVANCES BY THE TRUSTEE AND THE FISCAL AGENT......117
SECTION 4.4 EVIDENCE OF NONRECOVERABILITY.....................118
SECTION 4.5 INTEREST ON ADVANCES; CALCULATION OF
OUTSTANDING ADVANCES WITH RESPECT TO A
MORTGAGE LOAN.....................................119
SECTION 4.6 REIMBURSEMENT OF ADVANCES AND ADVANCE
INTEREST..........................................120
SECTION 4.7 FISCAL AGENT TERMINATION EVENT....................122
SECTION 4.8 PROCEDURE UPON TERMINATION EVENT..................122
SECTION 4.9 MERGER OR CONSOLIDATION OF FISCAL AGENT...........123
SECTION 4.10 LIMITATION ON LIABILITY OF THE FISCAL AGENT AND
OTHERS............................................123
SECTION 4.11 INDEMNIFICATION OF FISCAL AGENT...................124
ARTICLE V
ADMINISTRATION OF THE TRUST
SECTION 5.1 COLLECTIONS.......................................124
SECTION 5.2 APPLICATION OF FUNDS IN THE CERTIFICATE ACCOUNT
AND INTEREST RESERVE ACCOUNT......................128
SECTION 5.3 DISTRIBUTION ACCOUNT AND RESERVE ACCOUNT..........138
SECTION 5.4 PAYING AGENT REPORTS..............................139
SECTION 5.5 PAYING AGENT TAX REPORTS..........................141
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 DISTRIBUTIONS GENERALLY...........................142
SECTION 6.2 XXXXXXX XXXX LOAN REMIC...........................143
SECTION 6.3 REMIC I...........................................143
SECTION 6.4 REMIC II..........................................144
SECTION 6.5 REMIC III.........................................151
SECTION 6.5A GRANTOR TRUST.....................................156
SECTION 6.6 ALLOCATION OF REALIZED LOSSES, EXPENSE LOSSES
AND SHORTFALLS DUE TO NONRECOVERABILITY...........156
SECTION 6.7 NET AGGREGATE PREPAYMENT INTEREST SHORTFALLS......158
SECTION 6.8 ADJUSTMENT OF SERVICING FEES......................159
SECTION 6.9 APPRAISAL REDUCTIONS..............................159
SECTION 6.10 COMPLIANCE WITH WITHHOLDING REQUIREMENTS..........159
SECTION 6.11 PREPAYMENT PREMIUMS...............................160
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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......................................161
SECTION 7.2 CERTAIN MATTERS AFFECTING THE TRUSTEE,
THE FISCAL AGENT AND THE PAYING AGENT.............162
SECTION 7.3 THE TRUSTEE, THE FISCAL AGENT AND THE PAYING
AGENT NOT LIABLE FOR CERTIFICATES OR
INTERESTS OR MORTGAGE LOANS.......................164
SECTION 7.4 THE TRUSTEE, THE FISCAL AGENT AND THE PAYING
AGENT MAY OWN CERTIFICATES........................166
SECTION 7.5 ELIGIBILITY REQUIREMENTS FOR THE TRUSTEE, THE
FISCAL AGENT AND THE PAYING AGENT.................166
SECTION 7.6 RESIGNATION AND REMOVAL OF THE TRUSTEE, THE
FISCAL AGENT OR THE PAYING AGENT..................166
SECTION 7.7 SUCCESSOR TRUSTEE, FISCAL AGENT OR PAYING
AGENT.............................................168
SECTION 7.8 MERGER OR CONSOLIDATION OF TRUSTEE, FISCAL AGENT
OR PAYING AGENT...................................169
SECTION 7.9 APPOINTMENT OF CO-TRUSTEE, SEPARATE
TRUSTEE, AGENTS OR CUSTODIAN......................170
SECTION 7.10 AUTHENTICATING AGENTS.............................172
SECTION 7.11 INDEMNIFICATION OF TRUSTEE, THE FISCAL
AGENT AND THE PAYING AGENT........................172
SECTION 7.12 FEES AND EXPENSES OF TRUSTEE, THE FISCAL
AGENT AND THE PAYING AGENT........................174
SECTION 7.13 COLLECTION OF MONEYS..............................175
SECTION 7.14 TRUSTEE TO ACT; APPOINTMENT OF SUCCESSOR..........175
SECTION 7.15 NOTIFICATION TO HOLDERS...........................177
SECTION 7.16 REPRESENTATIONS AND WARRANTIES OF THE TRUSTEE,
THE FISCAL AGENT AND THE PAYING AGENT.............177
SECTION 7.17 FIDELITY BOND AND ERRORS AND OMISSIONS INSURANCE
POLICY MAINTAINED BY THE TRUSTEE, THE FISCAL
AGENT AND THE PAYING AGENT........................180
SECTION 7.18 APPOINTMENT OF LUXEMBOURG PAYING AGENT;
NOTIFICATION TO CERTIFICATEHOLDERS................180
ARTICLE VIII
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
SECTION 8.1 SERVICING STANDARD; SERVICING DUTIES..............182
SECTION 8.2 FIDELITY BOND AND ERRORS AND OMISSIONS INSURANCE
POLICY MAINTAINED BY THE MASTER SERVICER..........183
SECTION 8.3 MASTER SERVICER'S GENERAL POWER AND DUTIES........183
SECTION 8.4 PRIMARY SERVICING AND SUB-SERVICING...............190
SECTION 8.5 SERVICERS MAY OWN CERTIFICATES....................191
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SECTION 8.6 MAINTENANCE OF HAZARD INSURANCE, OTHER
INSURANCE, TAXES AND OTHER........................192
SECTION 8.7 ENFORCEMENT OF DUE-ON-SALE CLAUSES; ASSUMPTION
AGREEMENTS; DUE-ON-ENCUMBRANCE CLAUSE.............195
SECTION 8.8 TRUSTEE TO COOPERATE; RELEASE OF TRUSTEE
MORTGAGE FILES....................................199
SECTION 8.9 DOCUMENTS, RECORDS AND FUNDS IN POSSESSION OF
MASTER SERVICER TO BE HELD FOR THE TRUSTEE FOR
THE BENEFIT OF THE CERTIFICATEHOLDERS.............200
SECTION 8.10 SERVICING COMPENSATION............................200
SECTION 8.11 MASTER SERVICER REPORTS; ACCOUNT STATEMENTS.......201
SECTION 8.12 ANNUAL STATEMENT AS TO COMPLIANCE.................204
SECTION 8.13 ANNUAL INDEPENDENT PUBLIC ACCOUNTANTS'
SERVICING REPORT..................................204
SECTION 8.14 CMSA OPERATING STATEMENT ANALYSIS REPORTS
REGARDING THE MORTGAGED PROPERTIES................205
SECTION 8.15 OTHER AVAILABLE INFORMATION AND CERTAIN
RIGHTS OF THE MASTER SERVICER.....................206
SECTION 8.16 RULE 144A INFORMATION.............................208
SECTION 8.17 INSPECTIONS.......................................208
SECTION 8.18 MODIFICATIONS, WAIVERS, AMENDMENTS, EXTENSIONS
AND CONSENTS......................................209
SECTION 8.19 SPECIALLY SERVICED MORTGAGE LOANS.................212
SECTION 8.20 REPRESENTATIONS, WARRANTIES AND COVENANTS
OF THE MASTER SERVICER............................213
SECTION 8.21 MERGER OR CONSOLIDATION...........................214
SECTION 8.22 RESIGNATION OF MASTER SERVICER....................214
SECTION 8.23 ASSIGNMENT OR DELEGATION OF DUTIES BY MASTER
SERVICER..........................................215
SECTION 8.24 LIMITATION ON LIABILITY OF THE MASTER SERVICER
AND OTHERS........................................215
SECTION 8.25 INDEMNIFICATION; THIRD-PARTY CLAIMS...............217
SECTION 8.26 EXCHANGE ACT REPORTING............................221
SECTION 8.27 COMPLIANCE WITH REMIC PROVISIONS..................222
SECTION 8.28 TERMINATION.......................................222
SECTION 8.29 PROCEDURE UPON TERMINATION........................225
SECTION 8.30 OPERATING ADVISER CONTACT WITH MASTER
SERVICER AND SPECIAL SERVICER.....................227
ARTICLE IX
ADMINISTRATION AND SERVICING OF SPECIALLY SERVICED MORTGAGE
LOANS BY SPECIAL SERVICER
SECTION 9.1 DUTIES OF SPECIAL SERVICER........................227
SECTION 9.2 FIDELITY BOND AND ERRORS AND OMISSIONS INSURANCE
POLICY OF SPECIAL SERVICER........................229
SECTION 9.3 SUB-SERVICERS.....................................229
SECTION 9.4 SPECIAL SERVICER GENERAL POWERS AND DUTIES........229
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SECTION 9.5 "DUE-ON-SALE" CLAUSES; ASSIGNMENT AND
ASSUMPTION AGREEMENTS; MODIFICATIONS OF
SPECIALLY SERVICED MORTGAGE LOANS;
DUE-ON-ENCUMBRANCE CLAUSES........................233
SECTION 9.6 RELEASE OF MORTGAGE FILES.........................237
SECTION 9.7 DOCUMENTS, RECORDS AND FUNDS IN POSSESSION OF
SPECIAL SERVICER TO BE HELD FOR THE TRUSTEE.......238
SECTION 9.8 REPRESENTATIONS, WARRANTIES AND COVENANTS
OF THE SPECIAL SERVICER...........................239
SECTION 9.9 STANDARD HAZARD, FLOOD AND COMPREHENSIVE
GENERAL LIABILITY INSURANCE POLICIES..............240
SECTION 9.10 PRESENTMENT OF CLAIMS AND COLLECTION OF
PROCEEDS..........................................242
SECTION 9.11 COMPENSATION TO THE SPECIAL SERVICER..............242
SECTION 9.12 REALIZATION UPON DEFAULTED MORTGAGE LOANS.........243
SECTION 9.13 FORECLOSURE.......................................245
SECTION 9.14 OPERATION OF REO PROPERTY.........................246
SECTION 9.15 SALE OF REO PROPERTY..............................259
SECTION 9.16 REALIZATION ON COLLATERAL SECURITY................250
SECTION 9.17 RESERVED..........................................251
SECTION 9.18 ANNUAL OFFICER'S CERTIFICATE AS TO COMPLIANCE.....251
SECTION 9.19 ANNUAL INDEPENDENT ACCOUNTANTS' SERVICING
REPORT............................................251
SECTION 9.20 MERGER OR CONSOLIDATION...........................251
SECTION 9.21 RESIGNATION OF SPECIAL SERVICER...................252
SECTION 9.22 ASSIGNMENT OR DELEGATION OF DUTIES BY SPECIAL
SERVICER..........................................253
SECTION 9.23 LIMITATION ON LIABILITY OF THE SPECIAL SERVICER
AND OTHERS........................................253
SECTION 9.24 INDEMNIFICATION; THIRD-PARTY CLAIMS...............255
SECTION 9.25 RESERVED..........................................257
SECTION 9.26 SPECIAL SERVICER MAY OWN CERTIFICATES.............257
SECTION 9.27 TAX REPORTING.....................................257
SECTION 9.28 APPLICATION OF FUNDS RECEIVED.....................257
SECTION 9.29 COMPLIANCE WITH REMIC PROVISIONS..................258
SECTION 9.30 TERMINATION.......................................258
SECTION 9.31 PROCEDURE UPON TERMINATION........................260
SECTION 9.32 CERTAIN SPECIAL SERVICER REPORTS..................262
SECTION 9.33 SPECIAL SERVICER TO COOPERATE WITH THE
MASTER SERVICER AND PAYING AGENT..................263
SECTION 9.34 RESERVED..........................................264
SECTION 9.35 RESERVED..........................................264
SECTION 9.36 SALE OF DEFAULTED MORTGAGE LOANS..................265
SECTION 9.37 OPERATING ADVISER; ELECTIONS......................267
SECTION 9.38 LIMITATION ON LIABILITY OF OPERATING ADVISER......268
SECTION 9.39 DUTIES OF OPERATING ADVISER.......................269
SECTION 9.40 RIGHTS OF THE HOLDER OF A B NOTE..................270
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ARTICLE X
PURCHASE AND TERMINATION OF THE TRUST
SECTION 00.0 XXXXXXXXXXX XX XXXXX XXXX XXXXXXXXXX OR
LIQUIDATION OF ALL MORTGAGE LOANS.................271
SECTION 10.2 PROCEDURE UPON TERMINATION OF TRUST...............273
SECTION 10.3 ADDITIONAL TRUST TERMINATION REQUIREMENTS.........274
ARTICLE XI
RIGHTS OF CERTIFICATEHOLDERS
SECTION 11.1 LIMITATION ON RIGHTS OF HOLDERS...................275
SECTION 11.2 ACCESS TO LIST OF HOLDERS.........................276
SECTION 11.3 ACTS OF HOLDERS OF CERTIFICATES...................276
ARTICLE XII
REMIC AND GRANTOR TRUST ADMINISTRATION
SECTION 12.1 REMIC ADMINISTRATION..............................277
SECTION 12.2 PROHIBITED TRANSACTIONS AND ACTIVITIES............283
SECTION 12.3 MODIFICATIONS OF MORTGAGE LOANS...................283
SECTION 12.4 LIABILITY WITH RESPECT TO CERTAIN TAXES AND
LOSS OF REMIC STATUS..............................283
SECTION 12.5 THE GRANTOR TRUST.................................284
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.1 BINDING NATURE OF AGREEMENT.......................284
SECTION 13.2 ENTIRE AGREEMENT..................................285
SECTION 13.3 AMENDMENT.........................................285
SECTION 13.4 GOVERNING LAW.....................................287
SECTION 13.5 NOTICES...........................................277
SECTION 13.6 SEVERABILITY OF PROVISIONS........................288
SECTION 13.7 INDULGENCES; NO WAIVERS...........................288
SECTION 13.8 HEADINGS NOT TO AFFECT INTERPRETATION.............288
SECTION 13.9 BENEFITS OF AGREEMENT.............................288
SECTION 13.10 SPECIAL NOTICES TO THE RATING AGENCIES............288
SECTION 13.11 COUNTERPARTS......................................290
SECTION 13.12 INTENTION OF PARTIES..............................290
SECTION 13.13 RECORDATION OF AGREEMENT..........................291
SECTION 13.14 RATING AGENCY MONITORING FEES.....................292
SECTION 13.15 ACKNOWLEDGEMENT BY PRIMARY SERVICERS..............292
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EXHIBITS AND SCHEDULES
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EXHIBIT A-1 Form of Class A-1 Certificate
EXHIBIT A-2 Form of Class A-2 Certificate
EXHIBIT A-3 Form of Class A-3 Certificate
EXHIBIT A-4 Form of Class A-4 Certificate
EXHIBIT A-5 Form of Class B Certificate
EXHIBIT A-6 Form of Class C Certificate
EXHIBIT A-7 Form of Class D Certificate
EXHIBIT A-8 Form of Class E Certificate
EXHIBIT A-9 Form of Class F Certificate
EXHIBIT A-10 Form of Class G Certificate
EXHIBIT A-11 Form of Class H Certificate
EXHIBIT A-12 Form of Class J Certificate
EXHIBIT A-13 Form of Class K Certificate
EXHIBIT A-14 Form of Class L Certificate
EXHIBIT A-15 Form of Class M Certificate
EXHIBIT A-16 Form of Class N Certificate
EXHIBIT A-17 Form of Class O Certificate
EXHIBIT A-18 Form of Class R-I Certificate
EXHIBIT A-19 Form of Class R-II Certificate
EXHIBIT A-20 Form of Class R-III Certificate
EXHIBIT A-21 Form of Class R-K Certificate
EXHIBIT A-22 Form of Class X-1 Certificate
EXHIBIT A-23 Form of Class X-2 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 Form of JHREF Primary Servicing Agreement
EXHIBIT H Form of Exchange Certification
EXHIBIT I Form of Euroclear Bank or Clearstream Bank Certificate
(Section 3.7(d)
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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 Form of Mortgage Loan Purchase Agreement V (JHREF)
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))
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))
SCHEDULE I BSCMI Loan Schedule
SCHEDULE II Xxxxx Fargo Loan Schedule
SCHEDULE III Principal Loan Schedule
SCHEDULE IV MSMC Loan Schedule
SCHEDULE V JHREF Loan Schedule
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 -
SCHEDULE XVI Rates Used in Determination of Class X Pass-Through Rates
("Class X-1 Strip Rate" and "Class X-2 Strip Rate")
SCHEDULE XVII Mortgage Loans Secured by Mortgaged Properties Covered
by an Environmental Insurance Policy
SCHEDULE XVIII List of Mortgage Loans that have Scheduled Payments
after the end of a Collection Period
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THIS POOLING AND SERVICING AGREEMENT is dated as of October 1,
2003 (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 MINNESOTA, 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 Principal Commercial Funding, LLC, as seller ("Principal"), Xxxxx
Fargo Bank, National Association, as seller ("Xxxxx Fargo"), Bear Xxxxxxx
Commercial Mortgage, Inc., as seller ("BSCMI"), Xxxx Xxxxxxx Real Estate
Finance, Inc., as seller ("JHREF") and Xxxxxx Xxxxxxx Mortgage Capital Inc., as
seller ("MSMC"), 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 Xxxxxxx
Xxxx Loan REMIC Regular Interest and the Xxxxxxx Xxxx Loan REMIC Residual
Interest as consideration for its transfer to the Trust of the Xxxxxxx Xxxx
Loan; (ii) the REMIC I Regular Interests and the REMIC I Residual Interest as
consideration for its transfer to the Trust of the Majority Mortgage Loans and
the Xxxxxxx Xxxx Loan REMIC Regular Interest; (iii) 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; and (iv) the REMIC III Certificates
(other than the portion of the Class O Certificates representing Excess Interest
and the portion of the Class A-1 and Class X Certificates representing Xxxxxxx
Xxxx Yield Maintenance Amounts) as consideration for its transfer of the REMIC
II Regular Interests to the Trust and the portion of the Class O Certificates
representing Excess Interest and the portion of the Class A-1 and Class X
Certificates representing Xxxxxxx Xxxx Yield Maintenance Amounts as
consideration for its transfer to the Trust of the Excess Interest and the
Xxxxxxx Xxxx Yield Maintenance Amounts, respectively. The Depositor has duly
authorized the execution and delivery of this Agreement to provide for the
foregoing and the issuance of (A) the Xxxxxxx Xxxx Loan Regular Interest and the
Xxxxxxx Xxxx Loan REMIC Residual Interest representing in the aggregate the
entire beneficial ownership of Xxxxxxx Xxxx Loan REMIC, (B) the REMIC I Regular
Interests and the REMIC I Residual Interest representing in the aggregate the
entire beneficial ownership of REMIC I, (C) the REMIC II Regular Interests and
the Class R-II Certificates representing in the aggregate the entire beneficial
ownership of REMIC II and (D) the REMIC III Certificates representing in the
aggregate the entire beneficial ownership of REMIC III and, in the case of the
Class O Certificates, the Class A-1 Certificates and the Class X Certificates,
the Grantor Trust. 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 Xxxxxxx Xxxx
Loan REMIC Regular Interest, the REMIC I Regular Interests, the REMIC II Regular
Interests, the Residual Certificates, the REMIC Regular Certificates and the
Class O Certificates to the extent of their interest in the Excess Interest. The
Class R-I Certificates shall represent ownership of the REMIC I Residual
Interest. The Class R-K Certificates shall represent ownership of the Xxxxxxx
Xxxx Loan REMIC Residual 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, Class B, Class C and Class D Certificates will be
offered for sale pursuant to the prospectus (the "Prospectus") dated August 13,
2003, as supplemented by the preliminary prospectus supplement dated September
19, 2003 (together with the Prospectus, the "Preliminary Prospectus
Supplement"), and as further supplemented by the final prospectus supplement
dated October 1, 2003 (together with the Prospectus, the "Final Prospectus
Supplement"), and the Class X-1, Class X-2, Class E, Class F, Class G, Class H,
Class J, Class K, Class L, Class M, Class N and Class O Certificates will be
offered for sale pursuant to a Private Placement Memorandum dated October 1,
2003.
The following sets forth the Class designation, Pass-Through
Rate, initial Aggregate Certificate Balance (or initial Notional Amount) and
Final Scheduled Distribution Date for the Xxxxxxx Xxxx Loan REMIC Regular
Interest and the Xxxxxxx Xxxx Loan REMIC Residual Interest comprising interests
in the Xxxxxxx Xxxx Loan REMIC, each Class of REMIC I Regular Interests and the
REMIC I Residual Interest comprising the interests in REMIC I, each Class of
REMIC II Regular Interests and the Class R-II Certificates comprising the
interests in REMIC II and each Class of REMIC III Certificates comprising the
interests in REMIC III created hereunder:
XXXXXXX XXXX LOAN REMIC
The Xxxxxxx Xxxx Loan REMIC Regular Interest will relate to
the Xxxxxxx Xxxx Loan. The Xxxxxxx Xxxx Loan REMIC Regular Interest will have a
pass-through rate equal to the Xxxxxxx Xxxx Loan REMIC Net Mortgage Rate, an
initial principal amount (the initial "Certificate Balance") equal to the
Scheduled Principal Balance as of the Cut-Off Date (as herein defined) of the
Xxxxxxx Xxxx Loan, and a "latest possible maturity date" set to the Rated Final
Distribution Date of the Xxxxxxx Xxxx Loan. The Xxxxxxx Xxxx Loan REMIC Residual
Interest will be represented by the Class R-K Certificate, will be designated as
the sole Class of residual interests in the Xxxxxxx Xxxx Loan REMIC and will
have no Certificate Balance and no Pass-Through Rate, but will be entitled to
receive the proceeds of any assets remaining in the Xxxxxxx Xxxx Loan REMIC
after the Xxxxxxx Xxxx Loan REMIC Regular Interest has been paid in full.
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 will have a pass-through rate equal to the REMIC I Net
Mortgage Rate of the related Mortgage Loan an initial principal amount (the
initial "Certificate Balance") equal to the Scheduled Principal Balance as of
the Cut-Off Date (as herein defined) of the Mortgage Loan to which the
Corresponding REMIC I Regular Interest relates, and a "latest possible maturity
date" set to the Maturity Date (as defined herein) of the Mortgage Loan to which
the Corresponding REMIC I Regular Interest relates; provided that in the case of
the Xxxxxxx Xxxx Loan, the Corresponding REMIC I Regular Interest will have a
pass-through rate equal to the REMIC I Net Mortgage Rate of the Xxxxxxx Xxxx
Loan REMIC Regular Interest, an initial principal amount (the initial
"Certificate Balance") equal to the initial Certificate Balance of the Xxxxxxx
Xxxx Loan REMIC Regular Interest, and a "latest possible maturity date" set to
the "latest possible maturity date" of
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the Xxxxxxx Xxxx Loan REMIC Regular Interest. The REMIC I Residual Interest will
be represented by 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.
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REMIC III
Initial Aggregate
Initial Certificate Principal
REMIC III Regular Pass-Through Balance or Notional Final Scheduled
Interest Designation Rate(a) Amount Distribution Date(b)
-------------------- ------------- --------------------- -----------------------
Class A-1(c) 2.96% $198,000,000 August 13, 2008
Class A-2 3.88% $150,600,000 April 13, 2010
Class A-3 4.24% $185,900,000 April 13, 2012
Class A-4 4.68% $487,288,000 September 13, 2013
Class X-1(d) 0.12% $1,161,122,793 September 13, 2023
Class X-2(e) 0.93% $1,097,720,000 October 13, 2011
Class B 4.81% $30,479,000 September 13, 2013
Class C 4.93% $31,931,000 September 13, 2014
Class D 5.20% $13,063,000 August 13, 2015
Class E 5.24% $14,514,000 June 13, 2016
Class F 5.24% $7,257,000 December 13, 2016
Class G 5.24% $7,257,000 October 13, 2017
Class H 4.941% $5,805,000 July 13, 2018
Class J 4.941% $5,806,000 August 13, 2018
Class K 4.941% $2,903,000 August 13, 2018
Class L 4.941% $2,902,000 August 13, 2018
Class M 4.941% $2,903,000 August 13, 2018
Class N 4.941% $2,903,000 August 13, 2018
Class O (f) 4.941% $11,611,793 September 13, 2023
Class R-III(g) N/A N/A N/A
(a) On each Distribution Date after the initial Distribution Date,
the Pass-Through Rate for each Class of Certificates will be determined as
described herein under the definition of "Pass-Through Rate." The initial
Pass-Through Rates shown above are approximate for the Class X, X, X, X, X,
X, X-0 and X-2 Certificates.
(b) The Final Scheduled Distribution Date for each Class of
Certificates assigned a rating is the Distribution Date on which such Class
is expected to be paid in full, assuming that timely payments (and no
prepayments) will be made on the Mortgage Loans in accordance with their
terms (except that each ARD Loan will be prepaid in full on its Anticipated
Repayment Date).
(c) Each Class A-1 Certificate represents ownership of one REMIC
III Regular Interest (entitled to the principal and interest set forth
above). In addition, each Class A-1 Certificate will be entitled to Xxxxxxx
Xxxx Yield Maintenance Amounts, as set forth in Section 6.11 (which will
not be a part of any REMIC Pool). The parties intend that (i) the portion
of the Trust representing the right to receive Xxxxxxx Xxxx Yield
Maintenance Amounts and the Xxxxxxx Xxxx 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 (the "Grantor Trust") and (ii) the Class A-1
Certificates (other than the portion thereof consisting of a REMIC III
Regular Interest) shall represent undivided beneficial interests in the
portion of the Grantor Trust consisting of its entitlement to receive
Xxxxxxx Xxxx Yield Maintenance Amounts.
(d) Each Class X-1 Certificate represents ownership of multiple
"regular interests" in REMIC III. In addition, each Class X-1 Certificate
will be entitled to the Xxxxxxx Xxxx Yield Maintenance Amounts, as set
forth in Section 6.11 from the Grantor Trust (which will not be a part of
any REMIC Pool) and the Class X-1 Certificates (other than the portion
thereof consisting of the related REMIC III Regular Interests) shall
represent undivided beneficial interests in the portion of the Grantor
Trust consisting of its entitlement to receive Xxxxxxx Xxxx Yield
Maintenance Amounts. The Class X-1 Certificates are comprised of the
following regular interests:
(1) the right to receive, on each Distribution Date, the product of
(A) the Certificate Balance of the Class A-1A Component and (B) one
twelfth of the excess (if any) of (x) the Weighted Average REMIC I Net
Mortgage Rate on such Distribution Date over (y) the Pass-Through Rate
of the Class A-1 Certificates;
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(2) the right to receive, on each Distribution Date, the product of
(A) the Certificate Balance of the Class A-1B Component and (B) one
twelfth of the excess (if any) of (x) the Weighted Average REMIC I Net
Mortgage Rate on such Distribution Date over (y) the greater of (i)
the rate shown on Schedule IX for such Distribution Date and (ii) the
Pass-Through Rate of the Class A-1 Certificates;
(3) the right to receive, on each Distribution Date, the product of
(A) the Certificate Balance of the Class A-1C Component and (B) one
twelfth of the excess (if any) of (x) the Weighted Average REMIC I Net
Mortgage Rate on such Distribution Date over (y) the greater of (i)
the rate shown on Schedule X for such Distribution Date and (ii) the
Pass-Through Rate of the Class A-1 Certificates;
(4) the right to receive, on each Distribution Date, the product of
(A) the Certificate Balance of the Class A-1D Component and (B) one
twelfth of the excess (if any) of (x) the Weighted Average REMIC I Net
Mortgage Rate on such Distribution Date over (y) the greater of (i)
the rate shown on Schedule XI for such Distribution Date and (ii) the
Pass-Through Rate of the Class A-1 Certificates;
(5) the right to receive, on each Distribution Date, the product of
(A) the Certificate Balance of the Class A-2A Component and (B) one
twelfth of the excess (if any) of (x) the Weighted Average REMIC I Net
Mortgage Rate on such Distribution Date over (y) the greater of (i)
the rate shown on Schedule XI for such Distribution Date and (ii) the
Pass-Through Rate of the Class A-2 Certificates;
(6) the right to receive, on each Distribution Date, the product of
(A) the Certificate Balance of the Class A-2B Component and (B) one
twelfth of the excess (if any) of (x) the Weighted Average REMIC I Net
Mortgage Rate on such Distribution Date over (y) the greater of (i)
the rate shown on Schedule XII for such Distribution Date and (ii) the
Pass-Through Rate of the Class A-2 Certificates;
(7) the right to receive, on each Distribution Date, the product of
(A) the Certificate Balance of the Class A-3A Component and (B) one
twelfth of the excess (if any) of (x) the Weighted Average REMIC I Net
Mortgage Rate on such Distribution Date over (y) the greater of (i)
the rate shown on Schedule XII for such Distribution Date and (ii) the
Pass-Through Rate of the Class A-3 Certificates;
(8) the right to receive, on each Distribution Date, the product of
(A) the Certificate Balance of the Class A-3B Component and (B) one
twelfth of the excess (if any) of (x) the Weighted Average REMIC I Net
Mortgage Rate on such Distribution Date over (y) the greater of (i)
the rate shown on Schedule XIII for such Distribution Date and (ii)
the Pass-Through Rate of the Class A-3 Certificates;
(9) the right to receive, on each Distribution Date, the product of
(A) the Certificate Balance of the Class A-3C Component and (B) one
twelfth of the excess (if any) of (x) the Weighted Average REMIC I Net
Mortgage Rate on such Distribution Date over (y) the greater of (i)
the rate shown on Schedule XIV for such Distribution Date and (ii) the
Pass-Through Rate of the Class A-3 Certificates;
(10) the right to receive, on each Distribution Date, the product of
(A) the Certificate Balance of the Class A-4A Component and (B) one
twelfth of the excess (if any) of (x) the Weighted Average REMIC I Net
Mortgage Rate on such Distribution Date over (y) the greater of (i)
the rate shown on Schedule XIV for such Distribution Date and (ii) the
Pass-Through Rate of the Class A-4 Certificates;
(11) the right to receive, on each Distribution Date, the product of
(A) the Certificate Balance of the Class A-4B Component and (B) one
twelfth of the excess (if any) of (x) the Weighted Average REMIC I Net
Mortgage Rate on such Distribution Date over (y) the greater of (i)
the rate shown on Schedule XV for such Distribution Date and (ii) the
Pass-Through Rate of the Class A-4 Certificates;
(12) the right to receive, on each Distribution Date, the product of
(A) the Certificate Balance of the Class A-4C Component and (B) one
twelfth of the excess (if any) of (x) the Weighted Average REMIC I Net
Mortgage Rate on such Distribution Date over (y) the greater of (i)
the rate shown on Schedule XVI for such Distribution Date and (ii) the
Pass-Through Rate of the Class A-4 Certificates;
(13) the right to receive, on each Distribution Date, the product of
(A) the Certificate Balance of the Class B-3 Component and (B) one
twelfth of the excess (if any) of (x) the Weighted Average REMIC I Net
Mortgage Rate on such Distribution Date over (y) the greater of (i)
the rate shown on Schedule XVI for such Distribution Date and (ii) the
Pass-Through Rate of the Class B Certificates;
(14) the right to receive, on each Distribution Date, the product of
(A) the Certificate Balance of the Class B-2 Component and (B) one
twelfth of the excess (if any) of (x) the Weighted Average REMIC I Net
Mortgage Rate on such Distribution Date over (y) the greater of (i)
the rate shown on Schedule XV for such Distribution Date and (ii) the
Pass-Through Rate of the Class B Certificates;
(15) the right to receive, on each Distribution Date, the product of
(A) the Certificate Balance of the Class B-1 Component and (B) one
twelfth of the excess (if any) of (x) the Weighted Average REMIC I Net
Mortgage Rate on such Distribution Date over (y) the greater of (i)
the rate shown on Schedule XIV for such Distribution Date and (ii) the
Pass-Through Rate of the Class B Certificates;
(16) the right to receive, on each Distribution Date, the product of
(A) the Certificate Balance of the Class C-3 Component and (B) one
twelfth of the excess (if any) of (x) the Weighted Average REMIC I Net
Mortgage Rate on such Distribution Date over (y) the greater of (i)
the rate shown on Schedule XIV for such Distribution Date and (ii) the
Pass-Through Rate of the Class C Certificates;
(17) the right to receive, on each Distribution Date, the product of
(A) the Certificate Balance of the Class C-2 Component and (B) one
twelfth of the excess (if any) of (x) the Weighted Average REMIC I Net
Mortgage Rate on such Distribution Date over (y) the greater of (i)
the rate shown on Schedule XIII for such Distribution Date and (ii)
the Pass-Through Rate of the Class C Certificates;
-5-
(18) the right to receive, on each Distribution Date, the product of
(A) the Certificate Balance of the Class C-1 Component and (B) one
twelfth of the excess (if any) of (x) the Weighted Average REMIC I Net
Mortgage Rate on such Distribution Date over (y) the greater of (i)
the rate shown on Schedule XII for such Distribution Date and (ii) the
Pass-Through Rate of the Class C Certificates;
(19) the right to receive, on each Distribution Date, the product of
(A) the Certificate Balance of the Class D-2 Component and (B) one
twelfth of the excess (if any) of (x) the Weighted Average REMIC I Net
Mortgage Rate on such Distribution Date over (y) the greater of (i)
the rate shown on Schedule XII for such Distribution Date and (ii) the
Pass-Through Rate of the Class D Certificates;
(20) the right to receive, on each Distribution Date, the product of
(A) the Certificate Balance of the Class D-1 Component and (B) one
twelfth of the excess (if any) of (x) the Weighted Average REMIC I Net
Mortgage Rate on such Distribution Date over (y) the greater of (i)
the rate shown on Schedule XI for such Distribution Date and (ii) the
Pass-Through Rate of the Class D Certificates;
(21) the right to receive, on each Distribution Date, the product of
(A) the Certificate Balance of the Class E-2 Component and (B) one
twelfth of the excess (if any) of (x) the Weighted Average REMIC I Net
Mortgage Rate on such Distribution Date over (y) the greater of (i)
the rate shown on Schedule XI for such Distribution Date and (ii) the
Pass-Through Rate of the Class E Certificates;
(22) the right to receive, on each Distribution Date, the product of
(A) the Certificate Balance of the Class E-1 Component and (B) one
twelfth of the excess (if any) of (x) the Weighted Average REMIC I Net
Mortgage Rate on such Distribution Date over (y) the greater of (i)
the rate shown on Schedule X for such Distribution Date and (ii) the
Pass-Through Rate of the Class E Certificates;
(23) the right to receive, on each Distribution Date, the product of
(A) the Certificate Balance of the Class F Certificate and (B) one
twelfth of the excess (if any) of (x) the Weighted Average REMIC I Net
Mortgage Rate on such Distribution Date over (y) the greater of (i)
the rate shown on Schedule X for such Distribution Date and (ii) the
Pass-Through Rate of the Class F Certificates;
(24) the right to receive, on each Distribution Date, the product of
(A) the Certificate Balance of the Class G Certificate and (B) one
twelfth of the excess (if any) of (x) the Weighted Average REMIC I Net
Mortgage Rate on such Distribution Date over (y) the greater of (i)
the rate shown on Schedule X for such Distribution Date and (ii) the
Pass-Through Rate of the Class G Certificates;
(25) the right to receive, on each Distribution Date, the product of
(A) the Certificate Balance of the Class H-2 Component and (B) one
twelfth of the excess (if any) of (x) the Weighted Average REMIC I Net
Mortgage Rate on such Distribution Date over (y) the greater of (i)
the rate shown on Schedule X for such Distribution Date and (ii) the
Pass-Through Rate of the Class H Certificates;
(26) the right to receive, on each Distribution Date, the product of
(A) the Certificate Balance of the Class H-1 Component and (B) one
twelfth of the excess (if any) of (x) the Weighted Average REMIC I Net
Mortgage Rate on such Distribution Date over (y) the greater of (i)
the rate shown on Schedule IX for such Distribution Date and (ii) the
Pass-Through Rate of the Class H Certificates;
(27) the right to receive, on each Distribution Date, the product of
(A) the Certificate Balance of the Class J Certificate and (B) one
twelfth of the excess (if any) of (x) the Weighted Average REMIC I Net
Mortgage Rate on such Distribution Date over (y) the greater of (i)
the rate shown on Schedule IX for such Distribution Date and (ii) the
Pass-Through Rate of the Class J Certificates;
(28) the right to receive, on each Distribution Date, the product of
(A) the Certificate Balance of the Class K Certificate and (B) one
twelfth of the excess (if any) of (x) the Weighted Average REMIC I Net
Mortgage Rate on such Distribution Date over (y) the greater of (i)
the rate shown on Schedule IX for such Distribution Date and (ii) the
Pass-Through Rate of the Class K Certificates;
(29) the right to receive, on each Distribution Date, the product of
(A) the Certificate Balance of the Class L Certificates and (B) one
twelfth of the excess (if any) of (x) the Weighted Average REMIC I Net
Mortgage Rate on such Distribution Date over (y) the Pass-Through Rate
of the Class L Certificates;
(30) the right to receive, on each Distribution Date, the product of
(A) the Certificate Balance of the Class M Certificates and (B) one
twelfth of the excess (if any) of (x) the Weighted Average REMIC I Net
Mortgage Rate on such Distribution Date over (y) the Pass-Through Rate
of the Class M Certificates;
(31) the right to receive, on each Distribution Date, the product of
(A) the Certificate Balance of the Class N Certificates and (B) one
twelfth of the excess (if any) of (x) the Weighted Average REMIC I Net
Mortgage Rate on such Distribution Date over (y) the Pass-Through Rate
of the Class N Certificates; and
(32) the right to receive, on each Distribution Date, the product of
(A) the Certificate Balance of the Class O Certificates and (B) one
twelfth of the excess (if any) of (x) the Weighted Average REMIC I Net
Mortgage Rate on such Distribution Date over (y) the Pass-Through Rate
of the Class O Certificates.
(e) Each Class X-2 Certificate represents ownership of multiple
"regular interests" in REMIC III. In addition, each Class X-2 Certificate
will be entitled to the Xxxxxxx Xxxx Yield Maintenance Amounts, as set
forth in Section 6.11 from the Grantor Trust (which will not be a part of
any REMIC Pool) and the Class X-2 Certificates (other than the portion
thereof consisting of the related REMIC III Regular Interests) shall
represent undivided beneficial interests in the portion of the Grantor
Trust consisting of its entitlement to receive Xxxxxxx Xxxx Yield
Maintenance Amounts. The Class X-2 Certificates are comprised of the
following regular interests:
(1) the right to receive, on each Distribution Date, the product of
(A) the Certificate Balance of the Class A-1B Component and (B) one
twelfth of the excess (if any) of (i) the lesser of (x) the rate shown
on Schedule IX for such
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Distribution Date and (y) the Weighted Average REMIC I Net Mortgage
Rate on such Distribution Date, over (ii) the Pass-Through Rate of the
Class A-1 Certificates;
(2) the right to receive, on each Distribution Date, the product of
(A) the Certificate Balance of the Class A-1C Component and (B) one
twelfth of the excess (if any) of (i) the lesser of (x) the rate shown
on Schedule X for such Distribution Date and (y) the Weighted Average
REMIC I Net Mortgage Rate on such Distribution Date, over (ii) the
Pass-Through Rate of the Class A-1 Certificates;
(3) the right to receive, on each Distribution Date, the product of
(A) the Certificate Balance of the Class A-1D Component and (B) one
twelfth of the excess (if any) of (i) the lesser of (x) the rate shown
on Schedule XI for such Distribution Date and (y) the Weighted Average
REMIC I Net Mortgage Rate on such Distribution Date, over (ii) the
Pass-Through Rate of the Class A-1 Certificates;
(4) the right to receive, on each Distribution Date, the product of
(A) the Certificate Balance of the Class A-2A Component and (B) one
twelfth of the excess (if any) of (i) the lesser of (x) the rate shown
on Schedule XI for such Distribution Date and (y) the Weighted Average
REMIC I Net Mortgage Rate on such Distribution Date, over (ii) the
Pass-Through Rate of the Class A-2 Certificates;
(5) the right to receive, on each Distribution Date, the product of
(A) the Certificate Balance of the Class A-2B Component and (B) one
twelfth of the excess (if any) of (i) the lesser of (x) the rate shown
on Schedule XII for such Distribution Date and (y) the Weighted
Average REMIC I Net Mortgage Rate on such Distribution Date, over (ii)
the Pass-Through Rate of the Class A-2 Certificates;
(6) the right to receive, on each Distribution Date, the product of
(A) the Certificate Balance of the Class A-3A Component and (B) one
twelfth of the excess (if any) of (i) the lesser of (x) the rate shown
on Schedule XII for such Distribution Date and (y) the Weighted
Average REMIC I Net Mortgage Rate on such Distribution Date, over (ii)
the Pass-Through Rate of the Class A-3 Certificates;
(7) the right to receive, on each Distribution Date, the product of
(A) the Certificate Balance of the Class A-3B Component and (B) one
twelfth of the excess (if any) of (i) the lesser of (x) the rate shown
on Schedule XIII for such Distribution Date and (y) the Weighted
Average REMIC I Net Mortgage Rate on such Distribution Date, over (ii)
the Pass-Through Rate of the Class A-3 Certificates;
(8) the right to receive, on each Distribution Date, the product of
(A) the Certificate Balance of the Class A-3C Component and (B) one
twelfth of the excess (if any) of (i) the lesser of (x) the rate shown
on Schedule XIV for such Distribution Date and (y) the Weighted
Average REMIC I Net Mortgage Rate on such Distribution Date, over (ii)
the Pass-Through Rate of the Class A-3 Certificates;
(9) the right to receive, on each Distribution Date, the product of
(A) the Certificate Balance of the Class A-4A Component and (B) one
twelfth of the excess (if any) of (i) the lesser of (x) the rate shown
on Schedule XIV for such Distribution Date and (y) the Weighted
Average REMIC I Net Mortgage Rate on such Distribution Date, over (ii)
the Pass-Through Rate of the Class A-4 Certificates;
(10) the right to receive, on each Distribution Date, the product of
(A) the Certificate Balance of the Class A-4B Component and (B) one
twelfth of the excess (if any) of (i) the lesser of (x) the rate shown
on Schedule XV for such Distribution Date and (y) the Weighted Average
REMIC I Net Mortgage Rate on such Distribution Date, over (ii) the
Pass-Through Rate of the Class A-4 Certificates;
(11) the right to receive, on each Distribution Date, the product of
(A) the Certificate Balance of the Class A-4C Component and (B) one
twelfth of the excess (if any) of (i) the lesser of (x) the rate shown
on Schedule XVI for such Distribution Date and (y) the Weighted
Average REMIC I Net Mortgage Rate on such Distribution Date, over (ii)
the Pass-Through Rate of the Class A-4 Certificates;
(12) the right to receive, on each Distribution Date, the product of
(A) the Certificate Balance of the Class B-3 Component and (B) one
twelfth of the excess (if any) of (i) the lesser of (x) the rate shown
on Schedule XVI for such Distribution Date and (y) the Weighted
Average REMIC I Net Mortgage Rate on such Distribution Date, over (ii)
the Pass-Through Rate of the Class B Certificates;
(13) the right to receive, on each Distribution Date, the product of
(A) the Certificate Balance of the Class B-2 Component and (B) one
twelfth of the excess (if any) of (i) the lesser of (x) the rate shown
on Schedule XV for such Distribution Date and (y) the Weighted Average
REMIC I Net Mortgage Rate on such Distribution Date, over (ii) the
Pass-Through Rate of the Class B Certificates;
(14) the right to receive, on each Distribution Date, the product of
(A) the Certificate Balance of the Class B-1 Component and (B) one
twelfth of the excess (if any) of (i) the lesser of (x) the rate shown
on Schedule XIV for such Distribution Date and (y) the Weighted
Average REMIC I Net Mortgage Rate on such Distribution Date, over (ii)
the Pass-Through Rate of the Class B Certificates;
(15) the right to receive, on each Distribution Date, the product of
(A) the Certificate Balance of the Class C-3 Component and (B) one
twelfth of the excess (if any) of (i) the lesser of (x) the rate shown
on Schedule XIV for such Distribution Date and (y) the Weighted
Average REMIC I Net Mortgage Rate on such Distribution Date, over (ii)
the Pass-Through Rate of the Class C Certificates;
(16) the right to receive, on each Distribution Date, the product of
(A) the Certificate Balance of the Class C-2 Component and (B) one
twelfth of the excess (if any) of (i) the lesser of (x) the rate shown
on Schedule XIII for such Distribution Date and (y) the Weighted
Average REMIC I Net Mortgage Rate on such Distribution Date, over (ii)
the Pass-Through Rate of the Class C Certificates;
(17) the right to receive, on each Distribution Date, the product of
(A) the Certificate Balance of the Class C-1 Component and (B) one
twelfth of the excess (if any) of (i) the lesser of (x) the rate shown
on Schedule XII for
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such Distribution Date and (y) the Weighted Average REMIC I Net
Mortgage Rate on such Distribution Date, over (ii) the Pass-Through
Rate of the Class C Certificates;
(18) the right to receive, on each Distribution Date, the product of
(A) the Certificate Balance of the Class D-2 Component and (B) one
twelfth of the excess (if any) of (i) the lesser of (x) the rate shown
on Schedule XII for such Distribution Date and (y) the Weighted
Average REMIC I Net Mortgage Rate on such Distribution Date, over (ii)
the Pass-Through Rate of the Class D Certificates
(19) the right to receive, on each Distribution Date, the product of
(A) the Certificate Balance of the Class D-1 Component and (B) one
twelfth of the excess (if any) of (i) the lesser of (x) the rate shown
on Schedule XI for such Distribution Date and (y) the Weighted Average
REMIC I Net Mortgage Rate on such Distribution Date, over (ii) the
Pass-Through Rate of the Class D Certificates;
(20) the right to receive, on each Distribution Date, the product of
(A) the Certificate Balance of the Class E-2 Component and (B) one
twelfth of the excess (if any) of (i) the lesser of (x) the rate shown
on Schedule XI for such Distribution Date and (y) the Weighted Average
REMIC I Net Mortgage Rate on such Distribution Date, over (ii) the
Pass-Through Rate of the Class E Certificates;
(21) the right to receive, on each Distribution Date, the product of
(A) the Certificate Balance of the Class E-1 Component and (B) one
twelfth of the excess (if any) of (i) the lesser of (x) the rate shown
on Schedule X for such Distribution Date and (y) the Weighted Average
REMIC I Net Mortgage Rate on such Distribution Date, over (ii) the
Pass-Through Rate of the Class E Certificates;
(22) the right to receive, on each Distribution Date, the product of
(A) the Certificate Balance of the Class F Certificates and (B) one
twelfth of the excess (if any) of (i) the lesser of (x) the rate shown
on Schedule X for such Distribution Date and (y) the Weighted Average
REMIC I Net Mortgage Rate on such Distribution Date, over (ii) the
Pass-Through Rate of the Class F Certificates;
(23) the right to receive, on each Distribution Date, the product of
(A) the Certificate Balance of the Class G Certificates and (B) one
twelfth of the excess (if any) of (i) the lesser of (x) the rate shown
on Schedule X for such Distribution Date and (y) the Weighted Average
REMIC I Net Mortgage Rate on such Distribution Date, over (ii) the
Pass-Through Rate of the Class G Certificates;
(24) the right to receive, on each Distribution Date, the product of
(A) the Certificate Balance of the Class H-2 Component and (B) one
twelfth of the excess (if any) of (i) the lesser of (x) the rate shown
on Schedule X for such Distribution Date and (y) the Weighted Average
REMIC I Net Mortgage Rate on such Distribution Date, over (ii) the
Pass-Through Rate of the Class H Certificates;
(25) the right to receive, on each Distribution Date, the product of
(A) the Certificate Balance of the Class H-1 Component and (B) one
twelfth of the excess (if any) of (i) the lesser of (x) the rate shown
on Schedule IX for such Distribution Date and (y) the Weighted Average
REMIC I Net Mortgage Rate on such Distribution Date, over (ii) the
Pass-Through Rate of the Class H Certificates;
(26) the right to receive, on each Distribution Date, the product of
(A) the Certificate Balance of the Class J Certificates and (B) one
twelfth of the excess (if any) of (i) the lesser of (x) the rate shown
on Schedule IX for such Distribution Date and (y) the Weighted Average
REMIC I Net Mortgage Rate on such Distribution Date, over (ii) the
Pass-Through Rate of the Class J Certificates; and
(27) the right to receive, on each Distribution Date, the product of
(A) the Certificate Balance of the Class K Certificates and (B) one
twelfth of the excess (if any) of (i) the lesser of (x) the rate shown
on Schedule IX for such Distribution Date and (y) the Weighted Average
REMIC I Net Mortgage Rate on such Distribution Date, over (ii) the
Pass-Through Rate of the Class K Certificates;
After the Distribution Date in April 2005, payments made in respect of the
Class A-1B Component, Class H-1 Component, Class J Certificates and Class K
Certificates shall not be included in the calculation of the amount paid in
respect of the Class X-2 Certificates. After the Distribution Date in April
2006, payments made in respect of the Class A-1C Component, Class E-1
Component, Class F Certificates, Class G Certificates and Class H-2
Component shall not be included in the calculation of the amount paid in
respect of the Class X-2 Certificates. After the Distribution Date in April
2007, payments made in respect of the Class A-1D Component, Class A-2A
Component, Class D-1 Component and Class E-2 Component shall not be
included in the calculation of the amount paid in respect of the Class X-2
Certificates. After the Distribution Date in April 2008, payments made in
respect of the Class A-2B Component, Class A-3A Component, Class C-1
Component and Class D-2 Component shall not be included in the calculation
of the amount paid in respect of the Class X-2 Certificates. After the
Distribution Date in April 2009, payments made in respect of the Class A-3B
Component and Class C-2 Component shall not be included in the calculation
of the amount paid in respect of the Class X-2 Certificates. After the
Distribution Date in April 2010, payments made in respect of the Class A-3C
Component, Class A-4A Component, Class B-1 Component and Class C-3
Component shall not be included in the calculation of the amount paid in
respect of the Class X-2 Certificates. After the Distribution Date in April
2011, payments made in respect of the Class A-4B Component and Class B-2
Component shall not be included in the calculation of the amount paid in
respect of the Class X-2 Certificates.
(f) Each Class O Certificate represents ownership of one REMIC III
Regular Interest (entitled to the principal and interest set forth above).
In addition, each Class O Certificate will be entitled to Excess Interest
from the Grantor Trust (which will not be a part of any REMIC Pool) and the
Class O Certificates (other than the portion thereof consisting of a REMIC
III Regular Interest) shall represent undivided beneficial interests in the
portion of the Grantor Trust consisting of the entitlement to receive
Excess Interest.
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(g) 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 $1,161,122,793.
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 consisting of the Xxxxxxx Xxxx Loan to be treated for federal income tax
purposes as a real estate mortgage investment conduit (the "Xxxxxxx Xxxx Loan
REMIC"). The Xxxxxxx Xxxx Loan REMIC Regular Interest will be held as an asset
of REMIC I, and the Xxxxxxx Xxxx Loan REMIC Residual Interest will represent the
sole class of "residual interests" in the Xxxxxxx Xxxx Loan REMIC and will be
represented by the Class R-K Certificates.
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
Majority Mortgage Loans and the Xxxxxxx Xxxx Loan REMIC Regular Interest) 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 REMIC I Residual Interest will be
designated as the sole Class of "residual interests" in REMIC I and will be
represented by the Class R-I Certificates.
As provided herein, with respect to the Trust, the Paying
Agent on behalf of the Trustee will make an election for the segregated pool of
assets described in the second paragraph of Section 12.1(a) hereof consisting of
the REMIC I Regular Interests to be treated for federal income tax purposes as a
real estate mortgage investment conduit ("REMIC II"). The REMIC II Regular
Interests will be designated as the "regular interests" in REMIC II and the
Class R-II Certificates will be designated as the sole Class of "residual
interests" in REMIC II for purposes of the REMIC Provisions.
As provided herein, with respect to the Trust, the Paying
Agent on behalf of the Trustee will make an election for the segregated pool of
assets described in the third paragraph of Section 12.1(a) hereof consisting of
the REMIC II Regular Interests to be treated for federal income tax purposes as
a real estate mortgage investment conduit ("REMIC III"). The REMIC III Regular
Interests (and, in the case of the Class O, Class A-1, Class X-1 and Class X-2
Certificates, the Class O REMIC Interest represented by the Class O
Certificates, the Class A-1 REMIC Interest represented by the Class A-1
Certificates, the Class X-1 REMIC Interest represented by the Class X-1
Certificates and the Class X-2 REMIC Interest represented by the Class X-2
Certificates, respectively) will be designated as the "regular interests" in
REMIC III and the Class R-III Certificates (together with the REMIC Regular
Certificates, the "REMIC III Certificates") will be designated as the sole Class
of "residual interests" in REMIC III for purposes of the REMIC Provisions.
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ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions. Whenever used in this Agreement, the
following words and phrases, unless the context otherwise requires, shall have
the following meanings:
"A NOTE" means, with respect to any A/B Mortgage Loan, the
mortgage note that is senior in right of payment to the related B Note to the
extent set forth in the related Intercreditor Agreement.
"A-1 NOTE" means, with respect to any A/B Mortgage Loan or the
Loan Pair, as applicable, the Mortgage Note included in the Trust, which, in the
case of an A/B Mortgage Loan, is senior in right of payment to the related B
Note to the extent set forth in the related Intercreditor Agreement, and which,
in the case of the Loan Pair, is pari passu in right of payment to the related
A-2 Note to the extent set forth in the Loan Pair Intercreditor Agreement.
"A-2 NOTE" means, with respect to any A/B Mortgage Loan or the
Loan Pair, as applicable, the A-2 component of such Mortgage Loan, if any, which
is not included in the Trust and which, in the case of an A/B Mortgage Loan, is
senior in right of payment to the related B Note to the extent set forth in the
related Intercreditor Agreement, and which, in the case of the Loan Pair, is
pari passu in right of payment to the related A-1 Note to the extent set forth
in the Loan Pair 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 any mortgage loan that is divided
into a senior mortgage note and a subordinated mortgage note, which senior
mortgage note is included in the Trust. Mortgage Loan Nos. 50 and 54 are each
designated as A/B Mortgage Loans on the Mortgage Loan Schedule, and any
additional A/B Mortgage Loan that is substituted for the Xxxxxxx Xxxx Loan in
accordance with the provisions of this Agreement. 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,
other than the Class X Certificates, the Class R-I Certificates, the Class R-II
Certificates, the Class R-III Certificates and the Class R-K Certificates,
interest accrued during the Interest Accrual Period relating to such
Distribution Date on the Aggregate Certificate Balance of such Class or Interest
as of the close of business on the immediately preceding Distribution Date at
the respective rates per annum set forth in the definition of the applicable
Pass-Through Rate for each such Class. Accrued Certificate Interest on the Class
X-1 Certificates for each Distribution Date will equal the Class X-1 Interest
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Amount. Accrued Certificate Interest on the Class X-2 Certificates for each
Distribution Date will equal the Class X-2 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, any Berkeley & Xxxxx Companion Loan, the Berkeley & Xxxxx Xxxx
Passu Loan, the RSA Companion Loan, the RSA Pari Passu Loan and the 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, the applicable Non-Serviced Mortgage Loan
Master Servicer, the applicable Non-Serviced Mortgage Loan Special Servicer, any
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. 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 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-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.
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"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 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 Xxxxxxx Xxxx
Loan REMIC Regular Interest, the REMIC I Regular Interests or the REMIC II
Regular Interests, as the case may be, at any date of determination. With
respect to a Class of Principal Balance Certificates, the Xxxxxxx Xxxx Loan
REMIC Regular Interest, REMIC I Regular Interests or REMIC II 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 the ARD
Loans, the anticipated maturity date set forth in the related Mortgage Note.
"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. ss. 225.62.
"APPRAISAL EVENT" means, with respect to any Mortgage Loan or
the 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 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
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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 or the 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 or Loan Pair (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 or
Loan Pair at a per annum rate equal to the Mortgage Rate, (iii) all unreimbursed
Advances (including Unliquidated Advances) and interest on Advances (other than
Unliquidated Advances) at the Advance Rate with respect to such Mortgage Loan or
Loan Pair, 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 or the Loan Pair (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 based on subsequent Appraisals, internal valuations or updates. Any
Appraisal Reduction for any Mortgage Loan shall be reduced to reflect any
Realized Principal Losses on the Required Appraisal Loan. Each Appraisal
Reduction will be reduced to zero as of the date the related Mortgage Loan or
the Loan Pair is brought current under the then current terms of the Mortgage
Loan or the Loan Pair for at least three consecutive months, and no Appraisal
Reduction will exist as to any Mortgage Loan or the Loan Pair 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 Mortgage Loan Companion Loans and all other related pari passu
loans. Any Appraisal Reduction in respect of the Loan Pair shall be allocated,
as between the WestShore Plaza Pari Passu Loan Pari Passu Loan and the WestShore
Plaza Companion Loan, pro rata according to their respective Principal Balances.
Any Appraisal Reduction in respect of the Xxxxxxx Xxxx Loan shall be calculated
in respect of the entire aggregate Principal Balance of
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the Xxxxxxx Xxxx Loan and the related B Note, and any Appraisal Reduction shall
be allocated first to the related B Note, and then to the related A Note.
"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 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
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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. The Assumed Scheduled Payment calculated in
respect of the Xxxxxxx Xxxx Loan shall not include any portion thereof defined
as the "Fixed Retained Yield" in 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).
"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 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, any 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 and any Xxxxxxx Xxxx Yield Maintenance
Amounts, (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 the 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 the WestShore Plaza
Companion Loan, as applicable, pursuant to the terms of the related B Note or
the WestShore Plaza Companion 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 WestShore Plaza Companion 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
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in March of any year, commencing March 2004, the aggregate of the Interest
Reserve Amounts 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 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, B Note or the WestShore Plaza Companion Loan, the Scheduled Payment
payable on the Maturity Date of such Mortgage Loan or B Note.
"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 (or repurchase of the Xxxxxxx Xxxx Loan by the related Seller in
connection with an early defeasance of such Mortgage Loan) of any Mortgage Loan
that provides for payment of a Prepayment Premium (including any Xxxxxxx Xxxx
Yield Maintenance Amounts), 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.
"BERKELEY & XXXXX COMPANION LOANS" means the two notes secured
by the Berkeley & Xxxxx Xxxx Passu Mortgage on a pari passu basis with the
Berkeley & Xxxxx Xxxx Passu Loan and which are not included in the Trust.
Neither of the Berkeley & Xxxxx Companion Loans is a "Mortgage Loan." As of the
date hereof, one of the Berkeley & Xxxxx Companion Loans is included in a trust
fund created in connection with the issuance of the
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Xxxxxx Xxxxxxx Capital I Trust 2003-IQ5, Commercial Mortgage Pass-Through
Certificates, Series 2003-IQ5 and the other Berkeley & Xxxxx Companion Loan is
included in a trust fund created in connection with the issuance of the LB-UBS
Commercial Mortgage Trust 2003-C7, Commercial Mortgage Pass-Through
Certificates, Series 0000-X0.
"XXXXXXXX & XXXXX XXXX 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 Berkeley & Xxxxx Companion Loans and with
any other note secured by the related Mortgaged Property pursuant to the
Berkeley & Xxxxx Xxxx Passu Mortgage. The Berkeley & Xxxxx Xxxx Passu Loan is a
"Mortgage Loan."
"BERKELEY & XXXXX XXXX PASSU MORTGAGE" means the Mortgage
securing the Berkeley & Xxxxx Companion Loans and the Berkeley & Xxxxx Xxxx
Passu Loan and any other note secured by the related Mortgaged Property.
"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, Boston, Massachusetts (but
only with respect to matters related to the performance of obligations delegated
to JHREF as Primary Servicer under the related Primary Servicing Agreement),
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 related 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.
"CASH LIQUIDATION" means, as to any Defaulted Mortgage Loan
other than a Mortgage Loan with respect to which the related Mortgaged Property
became REO Property, the sale of such Defaulted Mortgage Loan. The Master
Servicer shall maintain records in accordance with the Servicing Standard (and,
in the case of Specially Serviced Mortgage Loans, based on the written reports
with respect to such Cash Liquidation delivered by the Special Servicer to the
Master Servicer), of each Cash Liquidation.
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended (42 U.S.C.ss.9601, et seq.).
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"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
or Interest (other than the Class X Certificates and the Residual Certificates)
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 herein (in the case of an
Interest), minus (A)(i) the amount of all principal distributions previously
made with respect to such Certificate pursuant to Section 6.5(a) or deemed to
have been made with respect to such Interest pursuant to Section 6.2(a) or
Section 6.3(a), as the case may be, (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, and plus (B) an amount equal to the
amounts identified in clause (I)(C) of the definition of Principal Distribution
Amount, such increases to be allocated to the Principal Balance Certificates or
Interests in sequential order (i.e. to the most senior Class first), in each
case up to the amount of Realized Losses previously allocated thereto and not
otherwise reimbursed hereunder. The Certificate Balance of the Class A-1A
Component, the Class A-1B Component, the Class A-1C Component and the Class A-1D
Component shall equal the Certificate Balance of the REMIC II Regular Interest
A-1A, the REMIC II Regular Interest A-1B, the REMIC II Regular Interest A-1C and
the REMIC II Regular Interest A-1D, respectively. The Certificate Balance of the
Class A-2A Component and the Class A-2B Component shall equal the Certificate
Balance of the REMIC II Regular Interest A-2A and the REMIC II Regular Interest
A-2B, respectively. The Certificate Balance of the Class A-3A Component, the
Class A-3B Component and the Class A-3C Component shall equal the Certificate
Balance of the REMIC II Regular Interest A-3A, the REMIC II Regular Interest
A-3B and the REMIC II Regular Interest A-3C, respectively. The Certificate
Balance of the Class A-4A Component, the Class A-4B Component and the Class A-4C
Component shall equal the Certificate Balance of the REMIC II Regular Interest
A-4A, the REMIC II Regular Interest A-4B and the REMIC II Regular Interest A-4C,
respectively. The Certificate Balance of the Class B-1 Component, the Class B-2
Component and the Class B-3 Component shall equal the Certificate Balance of the
REMIC II Regular Interest B-1, the REMIC II Regular Interest B-2 and the REMIC
II Regular Interest B-3, respectively. The Certificate Balance of the Class C-1
Component, the Class C-2 Component and the Class C-3 Component shall equal the
Certificate Balance of the REMIC II Regular Interest C-1, the REMIC II Regular
Interest C-2 and the REMIC II Regular Interest C-3, respectively. The
Certificate Balance of the Class D-1 Component and the Class D-2 Component shall
equal the Certificate Balance of the REMIC II Regular Interest D-1 and the REMIC
II Regular Interest D-2, respectively. The Certificate Balance of the Class E-1
Component and the Class E-2 Component shall equal the Certificate Balance of the
REMIC II Regular Interest E-1 and the REMIC II Regular Interest E-2,
respectively. The Certificate Balance of the Class H-1 Component and the Class
H-2 Component shall equal the Certificate Balance of the REMIC II Regular
Interest H-1 and the REMIC II Regular Interest H-2, respectively.
"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
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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, the Class R-II Certificates and the
Class R-K Certificates.
"CERTIFICATION PARTIES" has the meaning set forth in Section
8.26(b).
"CERTIFYING PERSON" has the meaning set forth in Section
8.26(b).
"CLASS" means, with respect to the Xxxxxxx Xxxx Loan REMIC
Regular Interest, 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-4 CERTIFICATES," "CLASS X-1 CERTIFICATES," "CLASS X-2
CERTIFICATES," "CLASS B CERTIFICATES," "CLASS C Certificates," "CLASS D
CERTIFICATES," "CLASS E CERTIFICATES," "CLASS F CERTIFICATES," "CLASS G
CERTIFICATES," "CLASS H CERTIFICATES," "CLASS J CERTIFICATES," "CLASS K
Certificates," "CLASS L CERTIFICATES," "CLASS M CERTIFICATES," "CLASS N
CERTIFICATES," "CLASS O CERTIFICATES," "CLASS R-I CERTIFICATES," "CLASS R-II
CERTIFICATES," "CLASS R-III CERTIFICATES" or "CLASS R-K CERTIFICATES," mean the
Certificates designated as "Class A-1," "Class A-2," "Class A-3," "Class A-4,"
"Class X-1," "Class X-2," "Class B," "Class C," "Class D," "Class E," "Class F,"
"Class G," "Class H," "Class J," "Class K," "Class L," "Class M," "Class N,"
"Class O," "Class R-I," "Class R-II", "Class R-III" and "Class R-K"
respectively, on the face thereof, in substantially the form attached hereto as
Exhibits.
"CLASS A CERTIFICATES" means the Class A-1 Certificates, the
Class A-2 Certificates, the Class A-3 Certificates and the Class A-4
Certificates, collectively.
"CLASS A-1 GRANTOR TRUST INTEREST" means that portion of the
rights represented by the Class A-1 Certificates that evidences beneficial
ownership of the Xxxxxxx Xxxx Yield Maintenance Amounts and the Xxxxxxx Xxxx
Sub-account, as described in Section 12.1(b) hereof.
"CLASS A-1 REMIC INTEREST" means that portion of the rights
represented by the Class A-1 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 A-1
Certificates other than those comprising the Grantor Trust.
"CLASS A-1A COMPONENT" means a component of the beneficial
interest in REMIC III evidenced by the Class A-1 Certificates, which component
represents a Certificate Balance equal to the Certificate Balance of the REMIC
II Regular Interest A-1A.
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"CLASS A-1B COMPONENT" means a component of the beneficial
interest in REMIC III evidenced by the Class A-1 Certificates, which component
represents a Certificate Balance equal to the Certificate Balance of the REMIC
II Regular Interest A-1B.
"CLASS A-1C COMPONENT" means a component of the beneficial
interest in REMIC III evidenced by the Class A-1 Certificates, which component
represents a Certificate Balance equal to the Certificate Balance of the REMIC
II Regular Interest A-1C.
"CLASS A-1D COMPONENT" means a component of the beneficial
interest in REMIC III evidenced by the Class A-1 Certificates, which component
represents a Certificate Balance equal to the Certificate Balance of the REMIC
II Regular Interest A-1D.
"CLASS A-2A COMPONENT" means a component of the beneficial
interest in REMIC III evidenced by the Class A-2 Certificates, which component
represents a Certificate Balance equal to the Certificate Balance of the REMIC
II Regular Interest A-2A.
"CLASS A-2B COMPONENT" means a component of the beneficial
interest in REMIC III evidenced by the Class A-2 Certificates, which component
represents a Certificate Balance equal to the Certificate Balance of the REMIC
II Regular Interest A-2B.
"CLASS A-3A COMPONENT" means a component of the beneficial
interest in REMIC III evidenced by the Class A-3 Certificates, which component
represents a Certificate Balance equal to the Certificate Balance of the REMIC
II Regular Interest A-3A.
"CLASS A-3B COMPONENT" means a component of the beneficial
interest in REMIC III evidenced by the Class A-3 Certificates, which component
represents a Certificate Balance equal to the Certificate Balance of the REMIC
II Regular Interest A-3B.
"CLASS A-3C COMPONENT" means a component of the beneficial
interest in REMIC III evidenced by the Class A-3 Certificates, which component
represents a Certificate Balance equal to the Certificate Balance of the REMIC
II Regular Interest A-3C.
"CLASS A-4A COMPONENT" means a component of the beneficial
interest in REMIC III evidenced by the Class A-4 Certificates, which component
represents a Certificate Balance equal to the Certificate Balance of the REMIC
II Regular Interest A-4A.
"CLASS A-4B COMPONENT" means a component of the beneficial
interest in REMIC III evidenced by the Class A-4 Certificates, which component
represents a Certificate Balance equal to the Certificate Balance of the REMIC
II Regular Interest A-4B.
"CLASS A-4C COMPONENT" means a component of the beneficial
interest in REMIC III evidenced by the Class A-4 Certificates, which component
represents a Certificate Balance equal to the Certificate Balance of the REMIC
II Regular Interest A-4C.
"CLASS B-1 COMPONENT" means a component of the beneficial
interest in REMIC III evidenced by the Class B Certificates, which component
represents a Certificate Balance equal to the Certificate Balance of the REMIC
II Regular Interest B-1.
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"CLASS B-2 COMPONENT" means a component of the beneficial
interest in REMIC III evidenced by the Class B Certificates, which component
represents a Certificate Balance equal to the Certificate Balance of the REMIC
II Regular Interest B-2.
"CLASS B-3 COMPONENT" means a component of the beneficial
interest in REMIC III evidenced by the Class B Certificates, which component
represents a Certificate Balance equal to the Certificate Balance of the REMIC
II Regular Interest B-3.
"CLASS C-1 COMPONENT" means a component of the beneficial
interest in REMIC III evidenced by the Class C Certificates, which component
represents a Certificate Balance equal to the Certificate Balance of the REMIC
II Regular Interest C-1.
"CLASS C-2 COMPONENT" means a component of the beneficial
interest in REMIC III evidenced by the Class C Certificates, which component
represents a Certificate Balance equal to the Certificate Balance of the REMIC
II Regular Interest C-2.
"CLASS C-3 COMPONENT" means a component of the beneficial
interest in REMIC III evidenced by the Class C Certificates, which component
represents a Certificate Balance equal to the Certificate Balance of the REMIC
II Regular Interest C-3.
"CLASS D-1 COMPONENT" means a component of the beneficial
interest in REMIC III evidenced by the Class D Certificates, which component
represents a Certificate Balance equal to the Certificate Balance of the REMIC
II Regular Interest D-1.
"CLASS D-2 COMPONENT" means a component of the beneficial
interest in REMIC III evidenced by the Class D Certificates, which component
represents a Certificate Balance equal to the Certificate Balance of the REMIC
II Regular Interest D-2.
"CLASS E-1 COMPONENT" means a component of the beneficial
interest in REMIC III evidenced by the Class E Certificates, which component
represents a Certificate Balance equal to the Certificate Balance of the REMIC
II Regular Interest E-1.
"CLASS E-2 COMPONENT" means a component of the beneficial
interest in REMIC III evidenced by the Class E Certificates, which component
represents a Certificate Balance equal to the Certificate Balance of the REMIC
II Regular Interest E-2.
"CLASS H-1 COMPONENT" means a component of the beneficial
interest in REMIC III evidenced by the Class H Certificates, which component
represents a Certificate Balance equal to the Certificate Balance of the REMIC
II Regular Interest H-1.
"CLASS H-2 COMPONENT" means a component of the beneficial
interest in REMIC III evidenced by the Class H Certificates, which component
represents a Certificate Balance equal to the Certificate Balance of the REMIC
II Regular Interest H-2.
"CLASS O GRANTOR TRUST INTEREST" means that portion of the
rights represented by the Class O Certificates that evidences beneficial
ownership of the Excess Interest and the Excess Interest Sub-account, as
described in Section 12.1(b) hereof.
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"CLASS O REMIC INTEREST" means that portion of the rights
represented by the Class O 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 O
Certificates other than those comprising the Grantor Trust.
"CLASS X CERTIFICATES" means the Class X-1 Certificates and
the Class X-2 Certificates.
"CLASS X-1 GRANTOR TRUST INTEREST" means that portion of the
rights represented by the Class X-1 Certificates that evidences beneficial
ownership of the Xxxxxxx Xxxx Yield Maintenance Amounts and the Xxxxxxx Xxxx
Sub-account, as described in Section 12.1(b) hereof.
"CLASS X-1 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-1 Strip Rates for the Class A-1A Component, Class A-1B Component,
Class A-1C Component, Class A-1D Component, Class A-2A Component, Class A-2B
Component, Class A-3A Component, Class A-3B Component, Class A-3C Component,
Class A-4A Component, Class A-4B Component, Class A-4C Component, Class B-1
Component, Class B-2 Component, Class B-3 Component, Class C-1 Component, Class
C-2 Component, Class C-3 Component, Class D-1 Component, Class D-2 Component,
Class E-1 Component, Class E-2 Component Class F Certificates, Class G
Certificates, Class H-1 Component, Class H-2 Component, Class J Certificates,
Class K Certificates, Class L Certificates, Class M Certificates, Class N
Certificates and Class O Certificates, weighted on the basis of the respective
Certificate Balances of such Classes of Certificates or such Components
immediately prior to such Distribution Date and (ii) the Class X-1 Notional
Amount for such Distribution Date.
"CLASS X-1 NOTIONAL AMOUNT" means, with respect to any
Distribution Date, the aggregate of the Certificate Balances of the Principal
Balance Certificates as of the close of business on the preceding Distribution
Date.
"CLASS X-1 REMIC INTEREST" means that portion of the rights
represented by the Class X-1 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 X-1
Certificates other than those comprising the Grantor Trust.
"CLASS X-1 STRIP RATE" means, with respect to any Class of
Certificates (other than the Class A-1, Class A-2, Class A-3, Class A-4, Class
B, Class C, Class D, Class E, Class H, Class X and the Residual Certificates),
the Class A-1A Component, the Class A-1B Component, the Class A-1C Component,
the Class A-1D Component, the Class A-2A Component, the Class A-2B Component,
the Class A-3A Component, the Class A-3B Component, the Class A-3C Component,
the Class A-4A Component, Class A-4B Component, the Class A-4C Component, the
Class B-1 Component, the Class B-2 Component, the Class B-3 Component, the Class
C-1 Component, the Class C-2 Component, the Class C-3 Component, the Class D-1
Component, the Class D-2 Component, the Class E-1 Component, the Class E-2
Component, the Class H-1 Component and the Class H-2 Component:
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(A) for any Distribution Date occurring on or before April
2005, the excess, if any, of (i) the Weighted Average REMIC I Net Mortgage Rate
for such Distribution Date over (ii) (x) in the case of the Class A-1A
Component, Class L Certificates, Class M Certificates, Class N Certificates and
Class O Certificates, the Pass-Through Rate for such Class of Certificates or
such Component and (y) in the case of the Class A-1B Component, Class A-1C
Component, Class A-1D Component, Class A-2A Component, Class A-2B Component,
Class A-3A Component, Class A-3B Component, Class A-3C Component, Class A-4A
Component, Class A-4B Component, Class A-4C Component, Class B-1 Component,
Class B-2 Component, Class B-3 Component, Class C-1 Component, Class C-2
Component, Class C-3 Component, Class D-1 Component, Class D-2 Component, Class
E-1 Component, Class E-2 Component, Class F Certificates, Class G Certificates,
Class H-1 Component, Class H-2 Component, Class J Certificates and Class K
Certificates, the greater of (1) the rate per annum corresponding to such
Distribution Date as set forth in Schedule IX attached hereto and (2) the
Pass-Through Rate for such Class of Certificates or Components;
(B) for any Distribution Date occurring after April 2005 and
on or before April 2006, the excess, if any, of (i) the Weighted Average REMIC I
Net Mortgage Rate for such Distribution Date over (ii) (x) in the case of the
Class A-1A Component, Class A-1B Component, Class H-1 Component, Class J
Certificates, Class K Certificates, Class L Certificates, Class M Certificates,
Class N Certificates and Class O Certificates, the Pass-Through Rate for such
Class of Certificates or such Component and (y) in the case of the Class A-1C
Component, Class A-1D Component, Class A-2A Component, Class A-2B Component,
Class A-3A Component, Class A-3B Component, Class A-3C Component, Class A-4A
Component, Class A-4B Component, Class A-4C Component, Class B-1 Component,
Class B-2 Component, Class B-3 Component, Class C-1 Component, Class C-2
Component, Class C-3 Component, Class D-1 Component, Class D-2 Component, Class
E-1 Component, Class E-2 Component, Class F Certificates, Class G Certificates
and Class H-2 Component, the greater of (1) the rate per annum corresponding to
such Distribution Date as set forth in Schedule X attached hereto and (2) the
Pass-Through Rate for such Class of Certificates or Components;
(C) for any Distribution Date occurring after April 2006 and
on or before April 2007, the excess, if any, of (i) the Weighted Average REMIC I
Net Mortgage Rate for such Distribution Date over (ii) (x) in the case of the
Class A-1A Component, Class A-1B Component, Class A-1C Component, Class E-1
Component, Class F Certificates, Class G Certificates, Class H-1 Component,
Class H-2 Component, Class J Certificates, Class K Certificates, Class L
Certificates, Class M Certificates, Class N Certificates and Class O
Certificates, the Pass-Through Rate for such Class of Certificates or such
Component and (y) in the case of the Class A-1D Component, Class A-2A Component,
Class A-2B Component, Class A-3A Component, Class A-3B Component, Class A-3C
Component, Class A-4A Component, Class A-4B Component, Class A-4C Component,
Class B-1 Component, Class B-2 Component, Class B-3 Component, Class C-1
Component, Class C-2 Component, Class C-3 Component, Class D-1 Component, Class
D-2 Component and Class E-2 Component, the greater of (1) the rate per annum
corresponding to such Distribution Date as set forth in Schedule XI attached
hereto and (2) the Pass-Through Rate for such Class of Certificates or
Components;
(D) for any Distribution Date occurring after April 2007 and
on or before April 2008, the excess, if any, of (i) the Weighted Average REMIC I
Net Mortgage Rate for such Distribution Date over (ii) (x) in the case of the
Class A-1A Component, Class A-1B Component, Class A-1C Component, Class A-1D
Component, Class A-2A Component, Class D-
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1 Component, Class E-1 Component, Class E-2 Component, Class F Certificates,
Class G Certificates, Class H-1 Component, Class H-2 Component, Class J
Certificates, Class K Certificates, Class L Certificates, Class M Certificates,
Class N Certificates and Class O Certificates, the Pass-Through Rate for such
Class of Certificates or such Component and (y) in the case of the Class A-2B
Component, Class A-3A Component, Class A-3B Component, Class A-3C Component,
Class A-4A Component, Class A-4B Component, Class A-4C Component, Class B-1
Component, Class B-2 Component, Class B-3 Component, Class C-1 Component, Class
C-2 Component, Class C-3 Component and Class D-2 Component, the greater of (1)
the rate per annum corresponding to such Distribution Date as set forth in
Schedule XII attached hereto and (2) the Pass-Through Rate for such Class of
Certificates or Components;
(E) for any Distribution Date occurring after April 2008 and
on or before April 2009, the excess, if any, of (i) the Weighted Average REMIC I
Net Mortgage Rate for such Distribution Date over (ii) (x) in the case of the
Class A-1A Component, Class A-1B Component, Class A-1C Component, Class A-1D
Component, Class A-2A Component, Class A-2B Component, Class A-3A Component,
Class C-1 Component, Class D-1 Component, Class D-2 Component, Class E-1
Component, Class E-2 Component, Class F Certificates, Class G Certificates,
Class H-1 Component, Class H-2 Component, Class J Certificates, Class K
Certificates, Class L Certificates, Class M Certificates, Class N Certificates
and Class O Certificates, the Pass-Through Rate for such Class of Certificates
or such Component and (y) in the case of the Class A-3B Component, Class A-3C
Component, Class A-4A Component, Class A-4B Component, Class A-4C Component,
Class B-1 Component, Class B-2 Component, Class B-3 Component, Class C-2
Component and Class C-3 Component, the greater of (1) the rate per annum
corresponding to such Distribution Date as set forth on Schedule XIII attached
hereto and (2) the Pass-Through Rate for such Class of Certificates or
Components;
(F) for any Distribution Date occurring after April 2009 and
on or before April 2010, the excess, if any, of (i) the Weighted Average REMIC I
Net Mortgage Rate for such Distribution Date over (ii) (x) in the case of the
Class A-1A Component, Class A-1B Component, Class A-1C Component, Class A-1D
Component, Class A-2A Component, Class A-2B Component, Class A-3A Component,
Class A-3B Component, Class C-1 Component, Class C-2 Component, Class D-1
Component, Class D-2 Component, Class E-1 Component, Class E-2 Component, Class
F Certificates, Class G Certificates, Class H-1 Component, Class H-2 Component,
Class J Certificates, Class K Certificates, Class L Certificates, Class M
Certificates, Class N Certificates and Class O Certificates, the Pass-Through
Rate for such Class of Certificates or such Component and (y) in the case of the
Class A-3C Component, Class A-4A Component, Class A-4B Component, Class A-4C
Component, Class B-1 Component, Class B-2 Component, Class B-3 Component and
Class C-3 Component, the greater of (1) the rate per annum corresponding to such
Distribution Date as set forth on Schedule XIV attached hereto and (2) the
Pass-Through Rate for such Class of Certificates or Components;
(G) for any Distribution Date occurring after April 2010 and
on or before April 2011, the excess, if any, of (i) the Weighted Average REMIC I
Net Mortgage Rate for such Distribution Date over (ii) (x) in the case of the
Class A-1A Component, Class A-1B Component, Class A-1C Component, Class A-1D
Component, Class A-2A Component, Class A-2B Component, Class A-3A Component,
Class A-3B Component, Class A-3C Component, Class A-4A Component, Class B-1
Component, Class C-1 Component, Class C-2 Component, Class C-3 Component, Class
D-1 Component, Class D-2 Component, Class E-1 Component, Class E-2 Component,
Class F Certificates, Class G Certificates, Class H-1 Component, Class H-2
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Component, Class J Certificates, Class K Certificates, Class L Certificates,
Class M Certificates, Class N Certificates and Class O Certificates, the
Pass-Through Rate for such Class of Certificates or such Component and (y) in
the case of the Class A-4B Component, Class A-4C Component, Class B-2 Component
and Class B-3 Component, the greater of (1) the rate per annum corresponding to
such Distribution Date as set forth on Schedule XV attached hereto and (2) the
Pass-Through Rate for such Class of Certificates or Components;
(H) for any Distribution Date occurring after April 2011 and
on or before October 2011, the excess, if any, of (i) the Weighted Average REMIC
I Net Mortgage Rate for such Distribution Date over (ii) (x) in the case of the
Class A-1A Component, Class A-1B Component, Class A-1C Component, Class A-1D
Component, Class A-2A Component, Class A-2B Component, Class A-3A Component,
Class A-3B Component, Class A-3C Component, Class A-4A Component, Class A-4B
Component, Class B-1 Component, Class B-2 Component, Class C-1 Component, Class
C-2 Component, Class C-3 Component, Class D-1 Component, Class D-2 Component,
Class E-1 Component, Class E-2 Component, Class F Certificates, Class G
Certificates, Class H-1 Component, Class H-2 Component, Class J Certificates,
Class K Certificates, Class L Certificates, Class M Certificates, Class N
Certificates and Class O Certificates, the Pass-Through Rate for such Class of
Certificates or such Component and (y) in the case of the Class A-4C Component
and Class B-3 Component, the greater of (1) the rate per annum corresponding to
such Distribution Date as set forth on Schedule XVI attached hereto and (2) the
Pass-Through Rate for such Class of Certificates or Components; and
(I) for any Distribution Date occurring after October 2011,
and for any Class of Certificates or Components, the excess of (i) the Weighted
Average REMIC I Net Mortgage Rate for such Distribution Date over (ii) the
Pass-Through Rate for each such Class of Certificates or Component. In no event
will any Class X-1 Strip Rate be less than zero.
"CLASS X-2 GRANTOR TRUST INTEREST" means that portion of the
rights represented by the Class X-2 Certificates that evidences beneficial
ownership of the Xxxxxxx Xxxx Yield Maintenance Amounts and the Xxxxxxx Xxxx
Sub-account, as described in Section 12.1(b) hereof.
"CLASS X-2 INTEREST AMOUNT" means,
(A) with respect to any Distribution Date occurring on or
before April 2005 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-2 Strip Rates for the Class A-1B Component, Class A-1C Component,
Class A-1D Component, Class A-2A Component, Class A-2B Component, Class A-3A
Component, Class A-3B Component, Class A-3C Component, Class A-4A Component,
Class A-4B Component, Class A-4C Component, Class B-1 Component, Class B-2
Component, Class B-3 Component, Class C-1 Component, Class C-2 Component, Class
C-3 Component, Class D-1 Component, Class D-2 Component, Class E-1 Component,
Class E-2 Component, Class F Certificates, Class G Certificates, Class H-1
Component, Class H-2 Component, Class J Certificates and Class K Certificates,
weighted on the basis of the respective Certificate Balances of such Classes of
Certificates or such Components immediately prior to such Distribution Date and
(ii) the Class X-2 Notional Amount for such Distribution Date;
(B) with respect to any Distribution Date occurring after
April 2005 and on or before the Distribution Date in April 2006 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
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X-2 Strip Rates for the Class A-1C Component, Class A-1D Component, Class A-2A
Component, Class A-2B Component, Class A-3A Component, Class A-3B Component,
Class A-3C Component, Class A-4A Component, Class A-4B Component, Class A-4C
Component, Class B-1 Component, Class B-2 Component, Class B-3 Component, Class
C-1 Component, Class C-2 Component, Class C-3 Component, Class D-1 Component,
Class D-2 Component, Class E-1 Component, Class E-2 Component, Class F
Certificates, Class G Certificates and Class H-2 Component, weighted on the
basis of the respective Certificate Balances of such Classes of Certificates or
such Component immediately prior to such Distribution Date and (ii) the Class
X-2 Notional Amount for such Distribution Date;
(C) with respect to any Distribution Date occurring after
April 2006 and on or before the Distribution Date in April 2007 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 A-1D Component, Class
A-2A Component, Class A-2B Component, Class A-3A Component, Class A-3B
Component, Class A-3C Component, Class A-4A Component, Class A-4B Component,
Class A-4C Component, Class B-1 Component, Class B-2 Component, Class B-3
Component, Class C-1 Component, Class C-2 Component, Class C-3 Component, Class
D-1 Component, Class D-2 Component and Class E-2 Component, weighted on the
basis of the respective Certificate Balances of such Classes of Certificates or
such Component immediately prior to such Distribution Date and (ii) the Class
X-2 Notional Amount for such Distribution Date;
(D) with respect to any Distribution Date occurring after
April 2007 and on or before the Distribution Date in April 2008 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 A-2B Component, Class
A-3A Component, Class A-3B Component, Class A-3C Component, Class A-4A
Component, Class A-4B Component, Class A-4C Component, Class B-1 Component,
Class B-2 Component, Class B-3 Component, Class C-1 Component, Class C-2
Component, Class C-3 Component and Class D-2 Component, weighted on the basis of
the respective Certificate Balances of such Classes of Certificates or such
Component immediately prior to such Distribution Date and (ii) the Class X-2
Notional Amount for such Distribution Date;
(E) with respect to any Distribution Date occurring after
April 2008 and on or before the Distribution Date in April 2009 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 A-3B Component, Class
A-3C Component, Class A-4A Component, Class A-4B Component, Class A-4C
Component, Class B-1 Component, Class B-2 Component, Class B-3 Component, Class
C-2 Component and Class C-3 Component, weighted on the basis of the respective
Certificate Balances of such Classes of Certificates or such Component
immediately prior to such Distribution Date and (ii) the Class X-2 Notional
Amount for such Distribution Date;
(F) with respect to any Distribution Date occurring after
April 2009 and on or before the Distribution Date in April 2010 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 A-3C Component, Class
A-4A Component, Class A-4B Component, Class A-4C Component, Class B-1 Component,
Class B-2 Component, Class B-3 Component and Class C-3 Component, weighted on
the basis of the respective Certificate Balances of such Classes of Certificates
or
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such Component immediately prior to such Distribution Date and (ii) the Class
X-2 Notional Amount for such Distribution Date;
(G) with respect to any Distribution Date occurring after
April 2010 and on or before the Distribution Date in April 2011 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 A-4B Component, Class
A-4C Component, Class B-2 Component and Class B-3 Component, weighted on the
basis of the respective Certificate Balances of such Classes of Certificates or
such Component immediately prior to such Distribution Date and (ii) the Class
X-2 Notional Amount for such Distribution Date;
(H) with respect to any Distribution Date occurring after
April 2011 and on or before the Distribution Date in October 2011 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 A-4C
Component and Class B-3 Component, weighted on the basis of the respective
Certificate Balances of such Classes of Certificates or such Component
immediately prior to such Distribution Date and (ii) the Class X-2 Notional
Amount for such Distribution Date.
"CLASS X-2 NOTIONAL AMOUNT" means,
(A) with respect to any Distribution Date occurring on or
before the Distribution Date in April 2005, the aggregate of the Certificate
Balances of the Class A-1B Component, Class A-1C Component, Class A-1D
Component, Class A-2A Component, Class A-2B Component, Class A-3A Component,
Class A-3B Component, Class A-3C Component, Class A-4A Component, Class A-4B
Component, Class A-4C Component, Class B-1 Component, Class B-2 Component, Class
B-3 Component, Class C-1 Component, Class C-2 Component, Class C-3 Component,
Class D-1 Component, Class D-2 Component, Class E-1 Component, Class E-2
Component, Class F Certificates, Class G Certificates, Class H-1 Component,
Class H-2 Component, Class J Certificates and Class K Certificates as of the
close of business on the preceding Distribution Date,
(B) with respect to any Distribution Date after the
Distribution Date in April 2005 and on or before the Distribution Date in April
2006, the aggregate of the Certificate Balances of the Class A-1C Component,
Class A-1D Component, Class A-2A Component, Class A-2B Component, Class A-3A
Component, Class A-3B Component, Class A-3C Component, Class A-4A Component,
Class A-4B Component, Class A-4C Component, Class B-1 Component, Class B-2
Component, Class B-3 Component, Class C-1 Component, Class C-2 Component, Class
C-3 Component, Class D-1 Component, Class D-2 Component, Class E-1 Component,
Class E-2 Component, Class F Certificates, Class G Certificates and Class H-2
Component as of the close of business on the preceding Distribution Date,
(C) with respect to any Distribution Date after the
Distribution Date in April 2006 and on or before the Distribution Date in April
2007, the aggregate of the Certificate Balances of the Class A-1D Component,
Class A-2A Component, Class A-2B Component, Class A-3A Component, Class A-3B
Component, Class A-3C Component, Class A-4A Component, Class A-4B Component,
Class A-4C Component, Class B-1 Component, Class B-2 Component, Class B-3
Component, Class C-1 Component, Class C-2 Component, Class C-3 Component, Class
D-1
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Component, Class D-2 Component and Class E-2 Component as of the close of
business on the preceding Distribution Date,
(D) with respect to any Distribution Date after the
Distribution Date in April 2007 and on or before the Distribution Date in April
2008, the aggregate of the Certificate Balances of the Class A-2B Component,
Class A-3A Component, Class A-3B Component, Class A-3C Component, Class A-4A
Component, Class A-4B Component, Class A-4C Component, Class B-1 Component,
Class B-2 Component, Class B-3 Component, Class C-1 Component, Class C-2
Component, Class C-3 Component and Class D-2 Component as of the close of
business on the preceding Distribution Date,
(E) with respect to any Distribution Date after the
Distribution Date in April 2008 and on or before the Distribution Date in April
2009, the aggregate of the Certificate Balances of the Class A-3B Component,
Class A-3C Component, Class A-4A Component, Class A-4B Component, Class A-4C
Component, Class B-1 Component, Class B-2 Component, Class B-3 Component, Class
C-2 Component and Class C-3 Component as of the close of business on the
preceding Distribution Date,
(F) with respect to any Distribution Date after the
Distribution Date in April 2009 and on or before the Distribution Date in April
2010, the aggregate of the Certificate Balances of the Class A-3C Component,
Class A-4A Component, Class A-4B Component, Class A-4C Component, Class B-1
Component, Class B-2 Component, Class B-3 Component and Class C-3 Component as
of the close of business on the preceding Distribution Date,
(G) with respect to any Distribution Date after the
Distribution Date in April 2010 and on or before the Distribution Date in April
2011, the aggregate of the Certificate Balances of the Class A-4B Component,
Class A-4C Component, Class B-2 Component and Class B-3 Component as of the
close of business on the preceding Distribution Date,
(H) with respect to any Distribution Date after the
Distribution Date in April 2011 and on or before the Distribution Date in
October 2011, the aggregate of the Certificate Balances of the Class A-4C
Component and Class B-3 Component as of the close of business on the preceding
Distribution Date, and
(I) with respect to any Distribution Date occurring after the
Distribution Date in October 2011, zero.
"CLASS X-2 REMIC INTEREST" means that portion of the rights
represented by the Class X-2 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 X-2
Certificates other than those comprising the Grantor Trust.
"CLASS X-2 STRIP RATE" means,
(A) for any Distribution Date occurring on or before April
2005, with respect to those components of the Class X-2 Notional Amount
outstanding immediately prior to the related Distribution Date, the excess, if
any, of (x) the lesser of (i) the rate per annum corresponding to such
Distribution Date as set forth in Schedule IX attached hereto and (ii) the
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Weighted Average REMIC I Net Mortgage Rate for such Distribution Date over (y)
the Pass-Through Rate for such Class of Certificates or Component;
(B) for any Distribution Date occurring after April 2005 and
on or before April 2006, with respect to those components of the Class X-2
Notional Amount outstanding immediately prior to the related Distribution Date,
the excess, if any, of (x) the lesser of (i) the rate per annum corresponding to
such Distribution Date as set forth in Schedule X attached hereto and (ii) the
Weighted Average REMIC I Net Mortgage Rate for such Distribution Date over (y)
the Pass-Through Rate for such Class of Certificates or Component;
(C) for any Distribution Date occurring after April 2006 and
on or before April 2007, with respect to those components of the Class X-2
Notional Amount outstanding immediately prior to the related Distribution Date,
the excess, if any, of (x) the lesser of (i) the rate per annum corresponding to
such Distribution Date as set forth in Schedule XI attached hereto and (ii) the
Weighted Average REMIC I Net Mortgage Rate for such Distribution Date over (y)
the Pass-Through Rate for such Class of Certificates or Component;
(D) for any Distribution Date occurring after April 2007 and
on or before April 2008, with respect to those components of the Class X-2
Notional Amount outstanding immediately prior to the related Distribution Date,
the excess, if any, of (x) the lesser of (i) the rate per annum corresponding to
such Distribution Date as set forth in Schedule XII attached hereto and (ii) the
Weighted Average REMIC I Net Mortgage Rate for such Distribution Date over (y)
the Pass-Through Rate for such Class of Certificates or Component;
(E) for any Distribution Date occurring after April 2008 and
on or before April 2009, with respect to those components of the Class X-2
Notional Amount outstanding immediately prior to the related Distribution Date,
the excess, if any, of (x) the lesser of (i) the rate per annum corresponding to
such Distribution Date as set forth in Schedule XIII attached hereto and (ii)
the Weighted Average REMIC I Net Mortgage Rate for such Distribution Date over
(y) the Pass-Through Rate for such Class of Certificates or Component;
(F) for any Distribution Date occurring after April 2009 and
on or before April 2010, with respect to those components of the Class X-2
Notional Amount outstanding immediately prior to the related Distribution Date,
the excess, if any, of (x) the lesser of (i) the rate per annum corresponding to
such Distribution Date as set forth in Schedule XIV attached hereto and (ii) the
Weighted Average REMIC I Net Mortgage Rate for such Distribution Date over (y)
the Pass-Through Rate for such Class of Certificates or Component;
(G) for any Distribution Date occurring after April 2010 and
on or before April 2011, with respect to those components of the Class X-2
Notional Amount outstanding immediately prior to the related Distribution Date,
the excess, if any, of (x) the lesser of (i) the rate per annum corresponding to
such Distribution Date as set forth in Schedule XV attached hereto and (ii) the
Weighted Average REMIC I Net Mortgage Rate for such Distribution Date over (y)
the Pass-Through Rate for such Class of Certificates or Component;
(H) for any Distribution Date occurring after April 2011 and
on or before October 2011, with respect to those components of the Class X-2
Notional Amount outstanding immediately prior to the related Distribution Date,
the excess, if any, of (x) the lesser of (i) the
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rate per annum corresponding to such Distribution Date as set forth in Schedule
XVI attached hereto and (ii) the Weighted Average REMIC I Net Mortgage Rate for
such Distribution Date over (y) the Pass-Through Rate for such Class of
Certificates or Component; and
(I) for any Distribution Date occurring after October 2011,
the Class X-2 Strip Rate for any Certificate or Component will be equal to zero.
"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 14, 2003.
"CMSA" means the Commercial Mortgage Securities Association.
"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 Mortgage Loan
Companion Loan or the WestShore Plaza Companion 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 Mortgage Loan Companion Loan or the
WestShore Plaza Companion 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
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Note, Non-Serviced Mortgage Loan Companion Loan or the WestShore Plaza Companion
Loan), plus any investment income earned on the amount prepaid prior to such
Distribution Date.
"COMPONENT" means any of the Class A-1A Component, the Class
A-1B Component, the Class A-1C Component, the Class A-1D Component, the Class
A-2A Component, the Class A-2B Component, the Class A-3A Component, the Class
A-3B Component, the Class A-3C Component, the Class A-4A Component, the Class
A-4B Component, the Class A-4C Component, the Class B-1 Component, the Class B-2
Component, the Class B-3 Component, the Class C-1 Component, the Class C-2
Component, the Class C-3 Component, the Class D-1 Component, the Class D-2
Component, the Class E-1 Component, the Class E-2 Component, the Class H-1
Component and the Class H-2 Component.
"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 the WestShore Plaza Companion Loan, and with respect to
the Mortgaged Property securing the Non-Serviced Mortgage Loans and the
Non-Serviced Mortgage Loan Companion Loans, any portion of such amounts payable
to the holders of the related Non-Serviced Mortgage Loans.
"CONTROLLING CLASS" means the most subordinate Class of REMIC
Regular 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 outstanding. As of the Closing Date, the Controlling Class will be
the Class O 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: Asset-Backed Securities Trust
Services Group-- Bear Xxxxxxx Commercial Mortgage Securities Inc. Series
2003-TOP12 and the office of the Certificate Registrar is presently located for
certificate transfer purposes at Xxxxx Fargo Center, Sixth and Marquette Avenue,
MAC #N9303-121, Xxxxxxxxxxx, Xxxxxxxxx 00000-0000, Attention: Corporate Trust
Services (CMBS)-- Bear Xxxxxxx Commercial Mortgage Securities Inc. Series
2003-TOP12, 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 2003-TOP12, 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.
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"CORRESPONDING REMIC I REGULAR INTEREST" means with respect to
each Majority Mortgage Loan and the Xxxxxxx Xxxx Loan REMIC Regular Interest,
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 (or in the case of the Xxxxxxx Xxxx Loan REMIC Regular
Interest, an initial principal amount (the initial "Certificate Balance") equal
to the initial Certificate Balance of the Xxxxxxx Xxxx Loan REMIC Regular
Interest).
"CORRESPONDING REMIC II REGULAR INTEREST" means (i) with
respect to each Class of Certificates other than the Class A-1 Certificates,
Class A-2 Certificates, Class A-3 Certificates, Class A-4 Certificates, Class B
Certificates, Class C Certificates, Class D Certificates, Class E Certificates
and Class H Certificates, the REMIC II Regular Interest having the same letter
designation, (ii) with respect to the Class A-1 Certificates, the REMIC II
Regular Interest A-1A, REMIC II Regular Interest A-1B, REMIC II Regular Interest
A-1C and REMIC II Regular Interest A-1D, (iii) with respect to the Class A-2
Certificates, the REMIC II Regular Interest A-2A and the REMIC II Regular
Interest A-2B, (iv) with respect to the Class A-3 Certificates, the REMIC II
Regular Interest A-3A, REMIC II Regular Interest A-3B and REMIC II Regular
Interest A-3C, (v) with respect to the Class A-4 Certificates, the REMIC II
Regular Interest A-4A, the REMIC II Regular Interest A-4B and REMIC II Regular
Interest A-4C, (vi) with respect to the Class B Certificates, the REMIC II
Regular Interest B-1, the REMIC II Regular Interest B-2 and the REMIC II Regular
Interest B-3, (vii) with respect to the Class C Certificates, the REMIC II
Regular Interest C-1, the REMIC II Regular Interest C-2 and the REMIC II Regular
Interest C-3, (viii) with respect to the Class D Certificates, the REMIC II
Regular Interest D-1 and the REMIC II Regular Interest D-2, (ix) with respect to
the Class E Certificates, the REMIC II Regular Interest E-1 and the REMIC II
Regular Interest E-2 and (x) with respect to the Class H Certificates, the REMIC
II Regular Interest H-1 and the REMIC II Regular Interest H-2.
"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.
"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, 2003.
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, 2003, and
Scheduled Payments due in October 2003 with respect to Mortgage Loans not having
Due Dates on the first of each month have been deemed received on October 1,
2003, 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.
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"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, the WestShore Plaza Companion 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 the
WestShore Plaza Companion 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, the WestShore Plaza
Companion Loan or any B Note which requires or permits the related Mortgagor (or
permits the holder of such Mortgage Loan, the WestShore Plaza Companion 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 and the WestShore Plaza Pari Passu Loan), any A/B Mortgage
Loan and the Loan Pair, a valuation by a court of competent jurisdiction of the
Mortgaged Property (or, with respect to the Berkeley & Xxxxx Xxxx Passu Loan,
the RSA Pari Passu Loan or the WestShore Plaza Pari Passu Loan, the pro rata
portion of the valuation allocable to the Berkeley & Xxxxx Xxxx Passu Loan, the
RSA Pari Passu Loan or the WestShore Plaza Pari Passu 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 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 and the WestShore Plaza Pari Passu Loan),
any A/B Mortgage Loan and the 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 the WestShore Plaza
Pari Passu 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 the WestShore Plaza Pari Passu Loan, as applicable, under the
related Intercreditor Agreement or Loan Pair Intercreditor Agreement, as
applicable.
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"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 8th 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 5, 2003.
"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.
"DISCOUNT RATE" means the rate which, when compounded monthly,
is equivalent to the Treasury Rate when compounded semi-annually. The "Treasury
Rate," unless otherwise set forth in the Mortgage Loan documents, is the yield
calculated by the linear interpolation of the yields, as reported in Federal
Reserve Statistical Release H.15--Selected Interest Rates under the heading
"U.S. government securities/Treasury constant maturities" for the week ending
prior to the date of the relevant principal prepayment, of U.S. Treasury
constant maturities with a maturity date (one longer and one shorter) most
nearly approximating the maturity date (or the Anticipated Repayment Date, if
applicable) of the Mortgage Loan prepaid. If Release H.15 is no longer
published, the Master Servicer will select a comparable publication to determine
the Treasury Rate.
"DISQUALIFIED ORGANIZATION" means any of (i) the United
States, any State or any political subdivision thereof, or any agency or
instrumentality of any of the foregoing (other than an instrumentality which is
a corporation if all of its activities are subject to tax and, except for FHLMC,
a majority of its board of directors is not selected by any such governmental
unit), (ii) a foreign government, international organization or any agency or
instrumentality of either of the
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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 of Certificates (other than the Residual
Certificates) or Interests, the sum of (A) Accrued Certificate Interest in
respect of such Class or Interest, reduced (to not less than zero) by (i) any
Net Aggregate Prepayment Interest Shortfalls for such Class of Certificates or
Interests, allocated on such Distribution Date to such Class or Interest
pursuant to Section 6.7, and (ii) Realized Losses allocated on such Distribution
Date to reduce the Distributable Certificate Interest payable to such Class or
Interest pursuant to Section 6.6, plus (B) the Unpaid Interest, plus (C) if the
Aggregate Certificate Balance is reduced because of a diversion of principal in
accordance with Section 5.2(a)(II)(iv), and there is a subsequent recovery of
amounts as described in Section 6.6(c)(i), then interest at the applicable
Pass-Through Rate that would have accrued and been distributable with respect to
the amount 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.
"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 13th day of each month or, if
such day is not a Business Day, the next succeeding Business Day, commencing
November 13, 2003.
"DUE DATE" means, with respect to a Mortgage Loan, the
WestShore Plaza Companion Loan or a B Note, the date on which a Scheduled
Payment is due.
"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 "F-1+" by Fitch and "P-1" by Moody's, 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 "AA-" by Fitch and at least "Aa2"
by Moody's, 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), or (iii) an account or accounts of a depository
institution acceptable
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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 or Xxxxx Fargo Bank Iowa, N.A., each 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 "F-1" in the case of Fitch, and "P-1" in
the case of Moody's, 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 "A+" in
the case of Fitch and at least "Aa3" in the case of Moody's, 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;
(ii) demand or time deposits in, unsecured certificates of
deposit of, money market deposit accounts of, or bankers' acceptances issued by,
any depository institution or trust company (including the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent or any Affiliate of the Master
Servicer, the Special Servicer, the Paying Agent or the Trustee, acting in its
commercial capacity) incorporated or organized under the laws of the United
States of America or any State thereof and subject to supervision and
examination by federal or state banking authorities, so long as the commercial
paper or other short-term debt obligations of such depository institution or
trust company are rated "Prime-1" by Moody's and "F-1+" by Fitch 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 "Aa2"
by Moody's and "AA" by Fitch 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
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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 "Prime-1" by Moody's and "F-1+" by Fitch (or for which Rating
Agency Confirmation is obtained with respect to such ratings);
(vi) units of investment funds (including money market
funds) that are rated in the highest long-term category by Moody's, or if not
rated by Moody's then Moody's has issued a Rating Agency Confirmation, and the
highest long-term category by Fitch, or if not rated by Fitch, then Fitch has
issued a Rating Agency Confirmation;
(vii) guaranteed reinvestment agreements maturing within
365 days or less issued by any bank, insurance company or other corporation
whose long-term unsecured debt rating is not less than "Aa2" by Moody's and "AA"
by Fitch, or for which Rating Agency Confirmation is obtained with respect to
such ratings;
(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 Fitch and "Aaa" (or
its equivalent) by Moody's, 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
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Investments shall be purchased at a price in excess of par. For the purpose of
this definition, units of investment funds (including money market funds) shall
be deemed to mature daily.
"ENVIRONMENTAL INSURANCE POLICY" shall mean, with respect to
any Mortgage Loan or the related Mortgaged Property or REO Property, any
insurance policy covering pollution conditions and/or other environmental
conditions that is maintained from time to time in respect of such Mortgage
Loan, Mortgaged Property or REO Property, as the case may be, for the benefit
of, among others, the Trustee on behalf of the Certificateholders.
"ENVIRONMENTAL LAWS" means any and all federal, state and
local statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or other
governmental restrictions, now or hereafter in effect, relating to health or the
environment or to emissions, discharges or releases of chemical substances,
including, without limitation, any and all pollutants, contaminants, petroleum
or petroleum products, asbestos or asbestos-containing materials,
polychlorinated biphenyls, urea-formaldehyde insulation, radon, industrial,
toxic or hazardous substances or wastes, into the environment, including,
without limitation, ambient air, surface water, ground water or land, or
otherwise relating to the manufacture, processing, distribution, use, labeling,
registration, treatment, storage, disposal, transport or handling of any of the
foregoing substances or wastes or the clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
"ESCROW ACCOUNT" means an account established by or on behalf
of the Master Servicer pursuant to Section 8.3(e).
"ESCROW AMOUNT" means any amount payable with respect to a
Mortgage Loan (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 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 formed hereunder.
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"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 the Loan Pair, a Principal
Prepayment in full had been made with respect to both the WestShore Plaza Pari
Passu Loan and the WestShore Plaza Companion Loan) on the date such proceeds
were received.
"EXCESS SERVICING FEE" means, with respect to the Mortgage
Loans or the WestShore Plaza Companion Loan for which an "excess servicing fee
rate" is designated on the Mortgage Loan Schedule, the monthly fee payable to
(a) Xxxxx Fargo Bank, National Association or its successors and assigns, and
(b) JHREF, or its successors and assigns, each 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"). Each holder of excess servicing
rights is entitled to Excess Servicing Fees only with respect to the Mortgage
Loans as indicated on Exhibit J hereto.
"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 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.
"FHLMC" means the Federal Home Loan Mortgage Corporation, or
any successor thereto.
"FHLMC AUDIT PROGRAM" has the meaning set forth in Section
8.13.
"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.
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"FINAL RECOVERY DETERMINATION" means a determination with
respect to any Mortgage Loan, B Note, Specially Serviced Mortgage Loan or the
WestShore Plaza Companion Loan by the Special Servicer in consultation with the
Operating Adviser and the Master Servicer (including a Mortgage Loan, the
WestShore Plaza Companion 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, the WestShore Plaza Companion Loan
or a 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.
"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 Ratings, 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" means that portion of the Trust consisting of
the Class A-1 Grantor Trust Interest, Class X-1 Grantor Trust Interest, Class
X-2 Grantor Trust Interest and Class O Grantor Trust Interest.
"HOLDER" means the Person in whose name a Certificate is
registered on the Certificate Register.
"IAI DEFINITIVE CERTIFICATE" means, with respect to any Class
of Certificates sold to Institutional Accredited Investors who are not Qualified
Institutional Buyers, a Certificate in definitive, fully registered certificated
form without interest coupons.
"INDEPENDENT" means, when used with respect to any
Accountants, a Person who is "independent" within the meaning of Rule 2-01(B) of
the 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
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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 within the meaning of Section
856(d)(3) of the Code if such REMIC 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 Class R-III Certificates), a Percentage Interest of
35% or more in the Class R-III Certificates or such other interest in any Class
of the Certificates or of the applicable REMIC 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 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 Regulation 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.
"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.
"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.
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"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 WestShore Plaza
Companion Loan, the related B Note or the Servicing Standard and with respect to
the Mortgaged Property securing the Non-Serviced Mortgage Loans and the
Non-Serviced Mortgage Loan Companion Loans, any portion of such amounts payable
to the holder of the related Non-Serviced Mortgage Loan.
"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 and the holder of the related B Note relating to the relative
rights of such holders of the respective A Note and B Note, as the same may be
further amended from time to time in accordance with the terms thereof.
"INTEREST" means a Xxxxxxx Xxxx Loan REMIC Interest, 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.
"INTERESTED PERSON" means, as of any date of determination,
the Master Servicer, the Special Servicer, the Depositor, the holder of any
related Junior Indebtedness (with respect to any particular Mortgage Loan), a
holder of 50% or more of the Controlling Class, the Operating Adviser, any
Independent Contractor engaged by the Master Servicer or the Special Servicer
pursuant to this Agreement, or any Person actually known to a Responsible
Officer of the Trustee to be an Affiliate of any of them.
"JHREF" has the meaning set forth in the Preliminary Statement
hereto.
"JHREF LOANS" means, collectively, those Mortgage Loans sold
to the Depositor pursuant to Mortgage Loan Purchase Agreement V and shown on
Schedule V hereto.
"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.
"XXXXXXX XXXX LOAN" means that certain Mortgage Loan
identified on the Mortgage Loan Schedule as Mortgage Loan No. 54.
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"XXXXXXX XXXX LOAN REMIC" means the segregated pool of assets
consisting of the Xxxxxxx Xxxx Loan, such amounts with respect thereto as shall
from time to time be held in the Certificate Account, the Interest Reserve
Account and the Distribution Account, the related Insurance Policies and any
related REO Properties, for which a REMIC election has been made pursuant to
Section 12.1(a) hereof.
"XXXXXXX XXXX LOAN REMIC INTERESTS" mean collectively, the
Xxxxxxx Xxxx Loan REMIC Regular Interest and the Xxxxxxx Xxxx Loan REMIC
Residual Interest.
"XXXXXXX XXXX LOAN REMIC NET MORTGAGE RATE" means, with
respect to any Distribution Date, as to the Xxxxxxx Xxxx Loan REMIC Regular
Interest, a rate per annum equal to the annualized rate that, when applied to
the Principal Balance of the Xxxxxxx Xxxx 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 (a) the
Mortgage Rate of the Xxxxxxx Xxxx 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 (b)
the Administrative Cost Rate, and assuming an interest accrual basis that is the
same as the actual interest accrual basis of the Xxxxxxx Xxxx Loan, provided
that (i) the Xxxxxxx Xxxx Loan REMIC Net Mortgage Rate for the loan accrual
period relating to the Due Dates in both January and February in any year that
is not a leap year and in February in any year that is a leap year, shall be
determined net of any amounts transferred to the Interest Reserve Account
relating to such Mortgage Loan and (ii) the Xxxxxxx Xxxx Loan REMIC Net Mortgage
Rate for the loan accrual period relating to the Due Date in March in any year
shall be determined taking into account the addition of any amounts withdrawn
from the Interest Reserve Account. For any Distribution Date following the date
on which one or more Qualifying Substitute Mortgage Loans are substituted for
the Xxxxxxx Xxxx Loan pursuant to Section 2.3(e), the Xxxxxxx Xxxx Loan REMIC
Net Mortgage Rate shall be 7.2728% per annum, subject to the proviso in the
preceding sentence.
"XXXXXXX XXXX LOAN REMIC REGULAR INTEREST" means, the
uncertificated interest designated as the "regular interest" in the Xxxxxxx Xxxx
Loan REMIC, which shall consist of, an interest having an initial Certificate
Balance equal to the Cut-Off Date Scheduled Principal Balance of the Xxxxxxx
Xxxx Loan (or, if applicable, the deemed Scheduled Principal Balance of any
successor REO Loan), and which has a Pass-Through Rate equal to the Xxxxxxx Xxxx
Loan REMIC Net Mortgage Rate. Payments and other collections of amounts received
on or in respect to the Xxxxxxx Xxxx Loan (or any related REO Property) shall be
deemed distributable on the Xxxxxxx Xxxx Loan REMIC Regular Interest.
"XXXXXXX XXXX LOAN REMIC RESIDUAL INTEREST" means the sole
class of "residual interest," within the meaning of Code Section 860G(a)(2), in
the Xxxxxxx Xxxx Loan REMIC. The Xxxxxxx Xxxx Loan REMIC Residual Interest shall
be represented by the Class R-K Certificates.
"XXXXXXX XXXX SUB-ACCOUNT" means an administrative account
deemed to be a sub-account of the Distribution Account. The Xxxxxxx Xxxx
Sub-account shall not be an asset of any REMIC Pool formed hereunder.
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"XXXXXXX XXXX XXXXX MAINTENANCE AMOUNTS" means any amounts
received by the Trustee in respect of the Seller's obligation pursuant to
Section 5(d) of the Mortgage Loan Purchase Agreement X. Xxxxxxx Lane Yield
Maintenance Amounts are assets of the Trust, but shall not be an asset of any
REMIC Pool formed hereunder.
"LATE COLLECTIONS" means, with respect to any Mortgage Loan,
the WestShore Plaza Companion Loan or any 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 FEES" means a fee payable to the Master Servicer or the
Special Servicer, as the case may be, to the extent actually collected from the
Mortgagor as provided in the related Mortgage Loan or the related B Note in
connection with a late payment made by such Mortgagor.
"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 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 received in connection with any Non-Serviced Mortgage
Loan).
"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, the WestShore Plaza
Companion Loan or a B Note or related REO Property, net of Liquidation Expenses
and any related Advances and interest thereon (to the extent not otherwise paid
pursuant to Section 4.6(c)) and with respect to the sale or liquidation of any
REO Property related to the Non-Serviced Mortgage Loans and the Non-Serviced
Mortgage Loan Companion Loans, any portion of such amounts allocable to the
related Non-Serviced Mortgage Loan.
"LIQUIDATION REALIZED LOSS" means, with respect to each
Mortgage Loan or REO Property, as the case may be, as to which a Cash
Liquidation or REO Disposition has occurred, an amount equal to the sum, without
duplication, of (A) the Principal Balance of the Mortgage Loan (or deemed
Principal Balance, in the case of an REO Mortgage Loan) as of the date of the
Cash Liquidation or REO Disposition (adjusted in accordance with Section
6.6(c)(i)),
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plus (B) unpaid interest and interest accrued thereon at the applicable Mortgage
Rate (including interest accrued and unpaid on the portion of the Principal
Balance added in accordance with Section 6.6(c)(i), which interest shall accrue
from the date of the reduction in the Principal Balance resulting from the
allocation of a Realized Loss incurred pursuant to Section 6.6(b)(i)), plus (C)
any expenses (including Additional Trust Expenses) incurred in connection with
such Mortgage Loan that are payable or reimbursable to any Person, other than
amounts included in the definition of Liquidation Expenses and amounts
previously treated as Expense Losses (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, the Loan Pair Intercreditor Agreement or
Non-Serviced Mortgage Loan Intercreditor Agreement to be payable or reimbursable
to any holder of a B Note or the WestShore Plaza Companion Loan. REO Income,
Liquidation Proceeds, Condemnation Proceeds and Insurance Proceeds shall be
applied first against any Expense Losses (to the extent not included in the
definition of Liquidation Expenses) for such Mortgage Loan, 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 the WestShore Plaza Pari Passu Loan and the
WestShore Plaza Companion Loan, collectively.
"LOAN PAIR INTERCREDITOR AGREEMENT" means, with respect to the
Loan Pair, the intercreditor agreement by and between the holders of the
WestShore Plaza Pari Passu Loan and the WestShore Plaza Companion 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 a Primary
Servicer or Sub-Servicer on its behalf) pursuant to which a Lock-Box Account is
created.
"LOSSES" has the meaning set forth in Section 12.4.
"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.
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"MAJORITY MORTGAGE LOAN" shall mean any Mortgage Loan other
than the Xxxxxxx Xxxx Loan.
"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).
"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, the WestShore Plaza Companion Loan and each 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, the WestShore Plaza Companion Loan or B Note for such
month) multiplied by the Scheduled Principal Balance of such Mortgage Loan, the
WestShore Plaza Companion 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).
"MASTER SERVICING FEE RATE" means, with respect to each
Mortgage Loan (other than any Non-Serviced Mortgage Loan), the WestShore Plaza
Companion Loan and each 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.
"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, the
WestShore Plaza Companion Loan or any B Note as of any date of determination,
the date on which the last
46
payment of principal is due and payable under the related Mortgage Loan, the
WestShore Plaza Companion Loan or the related B Note, after taking into account
all Principal Prepayments received and any Deficient Valuation, Debt Service
Reduction Amount or modification of the Mortgage Loan, the WestShore Plaza
Companion Loan or a B Note occurring prior to such date of determination, but
without giving effect to (i) any acceleration of the principal of such Mortgage
Loan, the WestShore Plaza Companion Loan or B Note or (ii) any grace period
permitted by the related Mortgage Loan, the related B Note or the WestShore
Plaza Companion Loan.
"MODIFICATION FEE" means a fee, if any, collected from a
Mortgagor by the Master Servicer in connection with a modification of any
Mortgage Loan, the WestShore Plaza Companion Loan or any 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, the
WestShore Plaza Companion Loan or any 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 ADDITIONAL REPORT ON RECOVERIES AND REIMBURSEMENTS"
means with respect to each Collection Period, a report prepared by the Master
Servicer, in a format reasonably acceptable to the Special Servicer, the Paying
Agent, the Trustee and the Certificate Registrar, that identifies the following
with respect to such Collection Period, in all cases both on a loan-by-loan
basis and in the aggregate:
(a) the amount of any Advance (and accrued and unpaid
Advance Interest thereon) that became a Workout-Delayed Reimbursement
Amount during such Collection Period;
(b)(i) the amount of any Workout-Delayed
Reimbursement Amount that was reimbursed to the Master Servicer, the
Special Servicer, the Trustee or the Fiscal Agent during such
Collection Period, (ii) the extent to which any reimbursement of a
Workout-Delayed Reimbursement Amount made during such Collection Period
was made from principal collections on the related Mortgage Loan
received during the Collection Period as contemplated by subsection
(iii) of Section 5.2(a)(II), (iii) the extent to which any
reimbursement of a Workout-Delayed Reimbursement Amount made during
such Collection Period was made from principal collections on the
remainder of the Mortgage Loans received during such Collection Period
as contemplated by
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subsection (iii) of Section 5.2(a)(II) and (iv) the amount of any
related Unliquidated Advances;
(c) the amount of any Unliquidated Advances recovered
from the related Mortgagor or otherwise from the proceeds of the
related Mortgage Loan or REO Property on behalf of the Trust during the
current Collection Period;
(d)(i) the amount of any Unliquidated Advance that
became a Nonrecoverable Advance in the current Collection Period, and
(ii) the amount of any Workout-Delayed Reimbursement Amount that arose
in a prior Collection Period, was not reimbursed to the Master
Servicer, the Special Servicer, the Trustee or the Fiscal Agent in the
current or a prior Collection Period (and therefore had not become an
Unliquidated Advance) but which has became a Nonrecoverable Advance in
the current Collection Period;
(e) the amount of any Advance (and accrued and unpaid
Advance Interest thereon), other than an amount described in clause (d)
above, that became a Nonrecoverable Advance during such Collection
Period;
(f)(i) the amount of any Nonrecoverable Advance (and
accrued and unpaid Advance Interest thereon) that was reimbursed to the
Master Servicer, the Special Servicer, the Trustee or the Fiscal Agent
during the current Collection Period, and (ii) the extent (if any) to
which any reimbursement of a Nonrecoverable Advance (and accrued and
unpaid Advance Interest thereon) was made from principal collections on
the Mortgage Loans received during such Collection Period as
contemplated by subsection (iv) of Section 5.2(a)(II);
(g)(i) the amount of any Advance reimbursed to the
Master Servicer, the Special Servicer, the Trustee or the Fiscal Agent
as a Nonrecoverable Advance in a prior Collection Period but recovered
from the related Mortgagor or otherwise from the proceeds of the
related Mortgage Loan or REO Property on behalf of the Trust during the
current Collection Period (notwithstanding that it was previously
determined to constitute a Nonrecoverable Advance) and (ii) the extent
to which any such amount is an amount described by clause (I)(C) of the
definition of Principal Distribution Amount; and
(h) a reconciliation of Advance Interest accrued on
any Workout-Delayed Reimbursement Amount or any Nonrecoverable Advance,
any Late Fees and default interest collected during the related
Collection Period and the amount of Late Fees and default interest that
were applied to pay such Advance Interest.
The preparation of each Monthly Additional Report on
Recoveries and Reimbursements shall constitute a responsibility of the Master
Servicer and shall not constitute a responsibility of any other party. Each Loan
Periodic Update File prepared by the Master Servicer shall be accompanied by a
Monthly Additional Report on Recoveries and Reimbursements. Notwithstanding
anything in this Agreement that suggests otherwise, the Master Servicer shall
not be required to deliver a Monthly Additional Report on Recoveries and
Reimbursements (and no Loan Periodic Update File need be accompanied by any such
report)
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with respect to any Collection Period for which all of the entries in the report
would be "zero" or "not applicable."
"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 at the respective Pass-Through Rates, less any Net Aggregate Prepayment
Interest Shortfalls and (B) Prepayment Premiums (including any Xxxxxxx Xxxx
Yield Maintenance Amounts); (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 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 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 in respect of the Non-Serviced
Mortgage Loans and the Non-Serviced Mortgage Loan Companion 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.
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"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 2003-TOP12, 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 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 or 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 2003-TOP12;"
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(v) originals of all intervening assignments of Mortgage,
if any, with evidence of recording thereon or, if such original assignments of
Mortgage have been delivered to the appropriate recorder's office for
recordation, certified true copies of such assignments of Mortgage certified by
the applicable Seller, or in the case of an original blanket intervening
assignment of Mortgage retained by the applicable Seller, a copy thereof
certified by the applicable Seller or, if any original intervening assignment of
Mortgage has not yet been returned on or prior to the 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 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 2003-TOP12," which assignment may be effected in the
related Assignment of Mortgage;
(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;
(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;
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(xi) copies of any loan agreements, lock-box agreements
and intercreditor agreements (including, without limitation, the Intercreditor
Agreement, any Non-Serviced Mortgage Loan Intercreditor Agreement and the Loan
Pair Intercreditor Agreement, and a copy (that is, not the original) of the
mortgage note evidencing the WestShore Plaza Companion Loan and the related 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 applicable 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 applicable 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 applicable 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 applicable Primary Servicing Agreement (it
being understood that each Seller has agreed (a) that the proceeds of such
letter of credit belong to the Trust, (b) to notify, on or before the Closing
Date, the bank issuing the letter of credit that the letter of credit and the
proceeds thereof belong to the Trust, and to use reasonable efforts to obtain
within 30 days (but in any event to obtain within 90 days) following the Closing
Date, an acknowledgement thereof by the bank (with a copy of such
acknowledgement to be sent to the Trustee) and (c) to indemnify the Trust for
any liabilities, charges, costs, fees or other expenses accruing from the
failure of the Seller to assign the letter of credit hereunder). In the case of
clause (B) above, each Primary Servicer (and the Master Servicer) acknowledges
that any letter of credit held by it shall be held in its capacity as agent of
the Trust, and if a Primary Servicer (or Master Servicer) sells its rights to
service the applicable Mortgage Loan, the applicable Primary Servicer (or Master
Servicer) will assign the applicable letter of credit to the Trust or at the
direction of the Special Servicer to such party as the Special Servicer may
instruct, in each case, at the expense of the Primary Servicer (or 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 hotels and
for such other Mortgaged Properties securing Mortgage Loans with a Cut-Off Date
Principal Balance equal to or greater than $20,000,000;
(xv) any Environmental Insurance Policy;
(xvi) any affidavit and indemnification agreement; and
(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
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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.
"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, and Mortgage Loan shall also include any
Defeasance Loan and any Non-Serviced Mortgage Loan (but shall not include any
Non-Serviced Mortgage Loan Companion 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) the Loan Pair, shall include the WestShore Plaza Pari Passu Loan
(but shall not include the WestShore Plaza Companion Loan).
"MORTGAGE LOAN PURCHASE AGREEMENT" means Mortgage Loan
Purchase Agreement I, Mortgage Loan Purchase Agreement II, Mortgage Loan
Purchase Agreement III, Mortgage Loan Purchase Agreement IV or Mortgage Loan
Purchase Agreement V, 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 1, 2003 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 1, 2003 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 1, 2003 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 1, 2003 with respect to the MSMC Loans, a form of which is attached
hereto as Exhibit K-4.
"MORTGAGE LOAN PURCHASE AGREEMENT V" means that certain
Mortgage Loan Purchase Agreement between JHREF and the Depositor dated as of
October 1, 2003 with respect to the JHREF Loans, a form of which is attached
hereto as Exhibit K-5.
"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, the schedule attached hereto as Schedule IV, which identifies
each MSMC Loan and the schedule attached hereto as Schedule V, which identifies
each JHREF Loan as such schedules may be amended from time to time pursuant to
Section 2.3.
"MORTGAGE NOTE" means the note or other evidence of
indebtedness evidencing the indebtedness of a Mortgagor under a Mortgage Loan.
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"MORTGAGE RATE" means, for a given Mortgage Loan, the
WestShore Plaza Companion Loan or a B Note, the per annum rate at which interest
accrues on such Mortgage Loan, the WestShore Plaza Companion Loan or B Note. In
connection with the Xxxxxxx Xxxx Loan, the Mortgage Rate shall be the per annum
rate equal to the "Note A Interest Rate" as defined in the related Intercreditor
Agreement.
"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 the Loan Pair, the WestShore Plaza Companion Loan.
"MORTGAGEE" means, with respect to any Mortgage as of any date
of determination, the mortgagee named therein as of such date.
"MORTGAGOR" means the obligor on a Mortgage Note.
"MSMC" has the meaning 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 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
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 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 Xxxxx'x or Fitch.
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"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 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 the WestShore Plaza Companion 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 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 the WestShore Plaza Companion Loan, the holder of the B Note or the WestShore
Plaza Companion 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, 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.
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"NON-REGISTERED CERTIFICATE" means unless and until registered
under the Securities Act, any Class X, Class E, Class F, Class G, Class H, Class
J, Class K, Class L, Class M, Class N, Class O or Residual Certificate.
"NON-SERVICED MORTGAGE LOAN" means the Berkeley & Xxxxx Xxxx
Passu Loan and the RSA Pari Passu Loan.
"NON-SERVICED MORTGAGE LOAN COMPANION LOANS" means the
Berkeley & Xxxxx Companion Loans and the RSA Companion 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,
(i) with respect to Mortgage Loan No. 3, that certain intercreditor agreement,
dated September 30, 2003, by and between the holders of the Berkeley & Xxxxx
Xxxx Passu Loan, the Berkeley & Xxxxx Companion Loans and the holders of the
related subordinated notes relating to the relative rights of such holders, as
the same may be amended from time to time in accordance with the terms thereof
and (ii) with respect to Mortgage Loan No. 29, that certain intercreditor
agreement, by and between the holders of the RSA Pari Passu Loan and the RSA
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 Berkeley &
Xxxxx Xxxx Passu Mortgage and the RSA Pari Passu Mortgage, as applicable.
"NON-SERVICED MORTGAGE LOAN POOLING AND SERVICING AGREEMENT"
means the 2003-IQ5 Pooling and Servicing Agreement and the 2003-TOP11 Pooling
and Servicing Agreement, as applicable.
"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-1 Certificates as a Class, the Class X-1
Notional Amount as of such date of determination; (ii) with respect to any Class
X-1 Certificate, the product of the Percentage Interest evidenced by such
Certificate and the Class X-1 Notional Amount as of such date of determination;
(iii) with respect to all of the Class X-2 Certificates as a Class, the Class
X-2 Notional Amount as of such date of determination and (iv) with respect to
any Class X-2 Certificate, the product of the Percentage Interest evidenced by
such Certificate and the Class X-2 Notional Amount 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
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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 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 the Trust or any REMIC Pool.
"OPTION PURCHASE PRICE" has the meaning set forth in Section
9.36(b) hereof.
"OTHER ADVANCE REPORT DATE" means with respect to a Berkeley &
Xxxxx Companion Loan, the RSA Companion Loan or the WestShore Plaza Companion
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 2003-IQ5 Pooling and Servicing Agreement or any pooling and servicing
agreement relating to a Berkeley & Xxxxx Companion Loan, the RSA Companion Loan
or a WestShore Plaza Companion Loan that creates a commercial mortgage
securitization trust, as applicable.
"OTHER MASTER SERVICER" means the 2003-IQ5 Master Servicer or
any other master servicer under an Other Companion Loan Pooling and Servicing
Agreement relating to a Berkeley & Xxxxx Companion Loan, the RSA Companion Loan
or a WestShore Plaza Companion 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.
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"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.
"P&I ADVANCE" shall mean, (i) with respect to any Mortgage
Loan or Specially Serviced Mortgage Loan (other than the WestShore Plaza
Companion Loan or a B Note) 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 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 or Xxxxxxx Xxxx Loan
REMIC Net Mortgage Rate, as applicable, 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 Fees;
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
as of the immediately preceding Determination Date less any Appraisal Reduction
applicable to such Mortgage Loan (or, in the case of the Berkeley & Xxxxx Xxxx
Passu Loan, the RSA Pari Passu Loan and the WestShore Plaza Pari Passu Loan, the
portion thereof allocable (based upon their respective Principal Balances) to
the Berkeley & Xxxxx Xxxx Passu Loan, the RSA Pari Passu Loan or the WestShore
Plaza Pari Passu Loan under the related Intercreditor Agreement or the Loan Pair
Intercreditor Agreement and Section 1.6 of this Agreement) and the denominator
of which is the Principal Balance of such Mortgage Loan 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.
"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.
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"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" and any other servicing fee rate (other than those payable
to the applicable Non-Serviced Mortgage Loan Master Servicer) applicable to any
Non-Serviced Mortgage Loan as defined in the related Non-Serviced Mortgage Loan
Pooling and Servicing Agreement.
"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.
"PASS-THROUGH RATE" or "PASS-THROUGH RATES" means with respect
to the Xxxxxxx Xxxx Loan REMIC Regular Interest, any Class of REMIC I Regular
Interests, REMIC II Regular Interests or REMIC Regular Certificates, other than
the Class X, Class B, Class C, Class D, Class E, Class F and Class G
Certificates, for the first Distribution Date, the rate set forth in the
Preliminary Statement hereto (subject to the calculations set forth in the
following sentence). For any Distribution Date occurring thereafter (and with
respect to the Class X, Class B, Class C, Class D, Class E, Class F and Class G
Certificates, for each Distribution Date), the Pass-Through Rates for (i) the
Xxxxxxx Xxxx Loan REMIC Regular Interest shall equal the Xxxxxxx Xxxx Loan REMIC
Net Mortgage Rate on the Xxxxxxx Xxxx Loan for such Distribution Date, (ii) the
REMIC I Regular Interests shall equal the REMIC I Net Mortgage Rate on the
related Mortgage Loan for such Distribution Date, (iii) the REMIC II Regular
Interests shall equal the Weighted Average REMIC I Net Mortgage Rate for such
Distribution Date, (iv) the Class A-1, Class A-2 and Class A-3 Certificates, the
fixed rate corresponding to such Class set forth in the Preliminary Statement
hereto, (v) the Class A-4 Certificates shall equal the lesser of (A) 4.68% per
annum and (B) the Weighted Average REMIC I Net Mortgage Rate for such
Distribution Date, (vi) the Class B Certificates shall equal the Weighted
Average REMIC I Net Mortgage Rate for such Distribution Date less 0.43%, (vii)
the Class C Certificates shall equal the Weighted Average REMIC I Net Mortgage
Rate for such Distribution Date less 0.31%, (viii) the Class D Certificates
shall equal the Weighted Average REMIC I Net Mortgage Rate for such Distribution
Date less 0.04%, (ix) the Class E, Class F and Class G Certificates shall equal
the Weighted Average REMIC I Net Mortgage Rate for such Distribution Date, (x)
the Class H, Class J, Class K, Class L, Class M, Class N and Class O
Certificates shall equal the lesser of (A) 4.941% per annum and (B) the Weighted
Average REMIC I Net Mortgage Rate for such Distribution Date, (xi) the Class X-1
Certificates, the per annum rate equal to the product of the Accrued Certificate
Interest thereon for such Distribution Date and 12, divided by the Class X-1
Notional Amount and (xii) the Class X-2 Certificates, the per annum rate equal
to the product of the Accrued Certificate Interest thereon for such Distribution
Date and 12, divided by the Class X-2 Notional
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Amount. The Pass-Through Rate for the Class A-1A Component, the Class A-1B
Component, the Class A-1C Component and the Class A-1D Component shall equal the
Pass-Through Rate of the Class A-1 Certificates. The Pass-Through Rate for the
Class A-2A Component and the Class A-2B Component shall equal the Pass-Through
Rate of the Class A-2 Certificates. The Pass-Through Rate for the Class A-3A
Component, the Class A-3B Component and the Class A-3C Component shall equal the
Pass-Through Rate of the Class A-3 Certificates. The Pass-Through Rate for the
Class A-4A Component, the Class A-4B Component and the Class A-4C Component
shall equal the Pass-Through Rate of the Class A-4 Certificates. The
Pass-Through Rate for the Class B-1 Component, the Class B-2 Component and the
Class B-3 Component shall equal the Pass-Through Rate of the Class B
Certificates. The Pass-Through Rate for the Class C-1 Component, the Class C-2
Component and the Class C-3 Component shall equal the Pass-Through Rate of the
Class C Certificates. The Pass-Through Rate for the Class D-1 Component and the
Class D-2 Component shall equal the Pass-Through Rate of the Class D
Certificates. The Pass-Through Rate for the Class E-1 Component and the Class
E-2 Component shall equal the Pass-Through Rate of the Class E Certificates. The
Pass-Through Rate for the Class H-1 Component and the Class H-2 Component shall
equal the Pass-Through Rate of the Class H Certificates.
"PAYING AGENT" means Xxxxx Fargo Bank Minnesota, 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.
"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
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imposed by institutional commercial mortgage lenders and who has a reasonable
amount of experience conducting such assessments.
"PLACEMENT AGENT" means Bear, Xxxxxxx & Co. Inc., Xxxxxx
Xxxxxxx & Co. Incorporated, Xxxxxxx, Sachs & Co. and Xxxxx Fargo Brokerage
Services, LLC or its respective successor in interest.
"PLAN" has the meaning set forth in Section 3.3(d).
"PLAN ASSET REGULATIONS" means the Department of Labor
regulations set forth in 29 X.X.X.xx. 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 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
Fees, 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 Fees,
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). A
Prepayment Interest Shortfall in respect of the Xxxxxxx Xxxx Loan shall be a
Prepayment Interest Shortfall in respect of the Xxxxxxx Xxxx Loan REMIC Regular
Interest.
"PREPAYMENT PREMIUM" means, with respect to any Mortgage Loan,
the WestShore Plaza Companion Loan or any B Note for any Distribution Date, the
prepayment premiums, yield maintenance charges or percentage premiums, if any,
received during the
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related Collection Period in connection with Principal Prepayments on such
Mortgage Loan, the WestShore Plaza Companion 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 SERVICERS" means Principal Global Investors, LLC and
JHREF and each of their respective permitted successors and assigns.
"PRIMARY SERVICING AGREEMENT" means, with respect to each
Primary Servicer, the agreement between such Primary Servicer and the Master
Servicer, dated as of October 1, 2003, a form of which is attached hereto as
Exhibit G, under which such Primary Servicer services the Mortgage Loans set
forth on the schedule attached thereto.
"PRIMARY SERVICING FEE" means, for each calendar month, as to
each Mortgage Loan, 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 Loan.
"PRIMARY SERVICING FEE RATE" means, the monthly fee payable to
the applicable 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 applicable Primary
Servicing Agreement (determined in the same manner (other than the rate of
accrual) as the applicable Mortgage Rate is determined for such Mortgage Loan
for such month).
"PRINCIPAL" has the meaning set forth in the Preliminary
Statement hereto.
"PRINCIPAL BALANCE" means, with respect to any Mortgage Loan,
the WestShore Plaza Companion Loan, any B Note or REO Mortgage Loan, for
purposes of performing calculations with respect to any Distribution Date, the
principal balance of such Mortgage Loan, the WestShore Plaza Companion 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, the WestShore Plaza
Companion Loan or any B Note with a Due Date in October 2003 that is not October
1, 2003, that principal and interest payments for such month were paid on
October 1, 2003), reduced (to not less than zero) by (i) any payments or other
collections of amounts allocable to principal on such Mortgage Loan, the
WestShore Plaza Companion Loan, any 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 A-2, Class A-3, Class A-4, Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N and Class
O Certificates.
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"PRINCIPAL DISTRIBUTION AMOUNT" means, on any Distribution
Date, the amount equal to the excess, if any, of
(I) the sum of:
(A) the aggregate (without duplication) of the following:
(i) the principal portion of all Scheduled Payments (other
than the principal portion of Balloon Payments) and any Assumed Scheduled
Payments, in each case, to the extent received or advanced, as the case may be,
in respect of the Mortgage Loans and any REO Mortgage Loans (but not in respect
of the WestShore Plaza Companion Loan or any B Note or its successor REO
Mortgage Loan) for their respective Due Dates occurring during the related
Collection Period; and
(ii) all payments (including Principal Prepayments and the
principal portion of Balloon Payments but not in respect of the WestShore Plaza
Companion Loan or any B Note or its respective successor REO Mortgage Loan) and
any other collections (including Liquidation Proceeds (other than the portion
thereof, if any, constituting Excess Liquidation Proceeds), Condemnation
Proceeds, Insurance Proceeds, Purchase Proceeds and REO Income) received on or
in respect of the Mortgage Loans during the related Collection Period and that
were identified and applied by the Master Servicer as recoveries of principal
thereof;
(B) the aggregate amount of any collections of principal
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 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 identified and
applied by the Master Servicer as recoveries of principal and received on or in
respect of the Mortgage Loans during the related Collection Period that, in each
case, represents a recovery of an amount previously determined (in a Collection
Period for a prior Distribution Date) to have been a Nonrecoverable Advance and
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 principal collections on the
Mortgage Loans pursuant to subsection (iii) of Section 5.2(a)(II); and
(B) the aggregate amount of Nonrecoverable Advances (and
Advance Interest thereon) that was reimbursed or paid during the related
Collection Period to one or more of the Master Servicer, the Special Servicer,
the Trustee and the Fiscal Agent during the related Collection Period from
principal collections on the Mortgage Loans pursuant to subsection (iv) of
Section 5.2(a)(II).
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"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, the WestShore Plaza
Companion 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, the WestShore Plaza Companion 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.
"PRIVATE PLACEMENT MEMORANDUM" means the Private Placement
Memorandum dated October 1, 2003, pursuant to which the Class X-1, Class X-2,
Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N
and Class O 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 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/or (if
applicable) the WestShore Plaza Companion Loan or the related B Note or the
related 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/or (if applicable) the WestShore Plaza Companion Loan or the related B Note)
related to such Mortgage Loan and/or (if applicable) the WestShore Plaza
Companion Loan or the related B Note and all Special Servicing Fees and
Liquidation Fees paid with respect to the Mortgage Loan and/or (if applicable)
the WestShore Plaza Companion Loan or the related 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 a Primary Servicer, the Master Servicer, the
Special Servicer, the Depositor, the Paying Agent or the Trustee in respect of
the Material Breach or Material Document Defect giving rise to the repurchase or
substitution obligation (and that are not otherwise included in (C) above).
"PURCHASE PROCEEDS" means any cash amounts received by the
Master Servicer in connection with: (i) the repurchase of a Mortgage Loan or an
REO Mortgage Loan by a Seller pursuant to Section 2.3 or (ii) the purchase of
the Mortgage Loans and REO Properties by the
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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 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, the WestShore Plaza Companion Loan or any 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 "A2" by Xxxxx'x, if rated by Xxxxx'x or if not rated by
Xxxxx'x, then Xxxxx'x has issued a Rating Agency Confirmation and "A" by Fitch
if rated by Fitch or if not rated by Fitch, then Fitch 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 "A2" by Xxxxx'x if rated by Xxxxx'x, or if not
rated by Xxxxx'x, then Xxxxx'x has issued a Rating Agency Confirmation, and "A"
by Fitch if rated by Fitch or if not rated by Fitch, then as to which Fitch 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
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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 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 shall have approved of such substitution (provided, however,
that such approval of the Operating Adviser may not be unreasonably withheld).
In the event that either one mortgage loan is substituted for more than one
Deleted Mortgage Loan or more than one mortgage loan is substituted for one or
more Deleted Mortgage Loans, then (A) the Principal Balance referred to in
clause (i) above shall be determined on the basis of aggregate Principal
Balances and (B) the rates referred to in clause (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 and
Xxxxxxx Xxxx Loan REMIC 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 subject to a cap based on 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 promptly, and in any event
within five Business Days following the Paying Agent's receipt of such
certification. Notwithstanding the foregoing, a "Qualifying Substitute Mortgage
Loan" delivered in connection with a substitution pursuant to Section 2.3(e)
need not satisfy the requirements set forth in clauses (i) and (ii) above so
long as the scheduled cash flow of the substitute mortgage loan is sufficient to
pay all of the scheduled interest payments and the ultimate payment of principal
that would have been payable on the Deleted Mortgage Loan. Any excess cashflow
over the amount required to pay the scheduled principal and interest of the
Deleted Mortgage Loan shall be payable to the holder of the Xxxxxxx Xxxx Loan
REMIC Residual Interest or the REMIC I Residual Interest, as applicable. A
"Qualifying Substitute Mortgage Loan" delivered in connection with a
substitution pursuant to Section 2.3(e) may be secured on a senior or pari passu
basis with one or more other notes secured by the related Mortgaged Property
pursuant to the related Mortgage, and in such case such other notes shall be
serviced hereunder in accordance with the terms hereof and the related
Intercreditor Agreement.
"RATED FINAL DISTRIBUTION DATE" means with respect to each
rated Class of Certificates, the Distribution Date in August 2039.
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"RATING AGENCIES" means Xxxxx'x and Xxxxx.
"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.
"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 the last sentence of the
definition of "Realized Principal Loss" or (iv) in the case of a Modification
Loss, a Modification Loss described in clause (iii) of the definition thereof.
"REALIZED LOSS" means a Liquidation Realized Loss, a
Modification Loss, a Bankruptcy Loss or an Expense Loss with respect to a
Mortgage Loan.
"REALIZED PRINCIPAL LOSS" means, with respect to each Mortgage
Loan, (i) in the case of a Liquidation Realized Loss, the amount of such
Realized Loss, to the extent that it does not exceed the Principal Balance of
the Mortgage Loan (or deemed Principal Balance, in the case of REO Property),
(ii) in the case of a Modification Loss, the amount of such Modification Loss
described in clause (i) of the definition thereof, (iii) in the case of a
Bankruptcy Loss, the portion of such Realized Loss attributable to the reduction
in the Principal Balance of the related Mortgage Loan, (iv) in the case of an
Expense Loss, any such Expense Loss (other than Expense Losses resulting from
the payment of Special Servicing Fees) to the extent that such Expense Losses do
not exceed amounts collected in respect of the Mortgage Loans that were
identified as allocable to principal, and any such excess shall be treated as a
Realized Interest Loss and (v) the amounts in respect thereof that are withdrawn
from the Certificate Account pursuant to Section 6.6(b)(i).
"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, the WestShore Plaza Companion 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).
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"REGULATION S GLOBAL CERTIFICATES" means the Regulation S
Permanent Global Certificates together with the Regulation S Temporary Global
Certificates.
"REGULATION S PERMANENT GLOBAL CERTIFICATE" means any single
permanent global Certificate, in definitive, fully registered form without
interest coupons received in exchange for a Regulation S Temporary Global
Certificate.
"REGULATION S TEMPORARY GLOBAL CERTIFICATE" means, with
respect to any Class of Certificates offered and sold outside of the United
States in reliance on Regulation S, a single temporary global Certificate, in
definitive, fully registered form without interest coupons.
"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, the WestShore Plaza
Companion 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. The WestShore Plaza Pari Passu Loan
shall not constitute a Rehabilitated Mortgage Loan unless the WestShore Plaza
Companion Loan would constitute a Rehabilitated Mortgage Loan. The WestShore
Plaza Companion Loan shall not constitute a Rehabilitated Mortgage Loan unless
the WestShore Plaza Pari Passu Loan also would constitute a Rehabilitated
Mortgage Loan. Under the terms of the applicable Non-Serviced Mortgage Loan
Pooling and Servicing Agreement, a Non-Serviced Mortgage Loan shall not
constitute a Rehabilitated Mortgage Loan unless its related Non-Serviced
Mortgage Loan Companion Loan would also 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
(i) the Majority Mortgage Loans (other than any Excess Interest payable
thereon), such amounts with respect thereto as shall from time to time be held
in the Certificate Account, the Distribution Account (other than the portion
thereof constituting the Excess Interest Sub-account) and the Interest Reserve
Account (other than with respect to the Xxxxxxx Xxxx Loan), the Insurance
Policies (other than with respect to the Xxxxxxx Xxxx Loan and other than the
interests of the holder of the WestShore Plaza Companion Loan or any B Note
therein) and any REO Properties (other than with respect to the Xxxxxxx Xxxx
Loan and other than the interests of the holder of the WestShore Plaza Companion
Loan or any B Note therein) and (ii) the Xxxxxxx Xxxx Loan REMIC Regular
Interest and collections thereon, for which a REMIC election has been made
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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 Mortgage Loan
Companion 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 Pool formed
hereunder. Neither the WestShore Plaza Companion Loan or any amounts payable
thereon shall constitute an asset of the Trust or any REMIC Pool formed
hereunder. The Xxxxxxx Xxxx Loan, collections thereon, and any related REO
Property acquired in respect thereof shall be held as assets of the Xxxxxxx Xxxx
Loan REMIC.
"REMIC I INTERESTS" means, collectively, the REMIC I Regular
Interests and the REMIC I Residual Interest.
"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 Regular Interest corresponding to the Xxxxxxx Xxxx Loan REMIC Regular
Interest, a rate per annum equal (a) with respect to any Majority 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 Majority 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 and February in
any year that is not a leap year and in February in any year that is a leap
year, shall be determined net of any amounts transferred to the Interest Reserve
Account and (ii) the REMIC I Net Mortgage Rate for the loan accrual period
relating to the Due Date in March shall be determined taking into account the
addition of any amounts withdrawn from the Interest Reserve Account and (II) as
to the REMIC I Regular Interest corresponding to the Xxxxxxx Xxxx Loan REMIC
Regular Interest, the Xxxxxxx Xxxx Loan REMIC Net Mortgage Rate.
"REMIC I REGULAR INTERESTS" means, collectively, the
uncertificated interests designated as "regular interests" in REMIC I, which
shall consist of, with respect to each 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.
"REMIC I RESIDUAL INTEREST" means the sole class of "residual
interest," within the meaning of Code Section 860G(a)(2), in REMIC I. The REMIC
I Residual Interest shall be represented by the Class R-I Certificates.
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"REMIC II" means the segregated pool of assets consisting of
the REMIC I Regular Interests 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-1A" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having initial Certificate Balance equal to $43,083,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-1B" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having initial Certificate Balance equal to $60,397,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-1C" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having initial Certificate Balance equal to $57,957,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-1D" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having initial Certificate Balance equal to $36,563,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-2A" 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 $65,549,000, and
which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage
Rate.
"REMIC II REGULAR INTEREST A-2B" 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 $85,051,000, and
which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage
Rate.
"REMIC II REGULAR INTEREST A-3A" 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 $37,576,000, and
which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage
Rate.
"REMIC II REGULAR INTEREST A-3B" 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 $96,602,000, and
which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage
Rate.
"REMIC II REGULAR INTEREST A-3C" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having an initial Certificate
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Balance equal to $51,722,000, 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 an initial Certificate Balance equal to $63,825,000, and
which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage
Rate.
"REMIC II REGULAR INTEREST A-4B" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having an initial Certificate Balance equal to $22,980,000, and
which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage
Rate.
"REMIC II REGULAR INTEREST A-4C" 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 $400,483,000, and
which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage
Rate.
"REMIC II REGULAR INTEREST B-1" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having an initial Certificate Balance equal to $9,187,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST B-2" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having an initial Certificate Balance equal to $4,859,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST B-3" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having an initial Certificate Balance equal to $16,433,000, and
which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage
Rate.
"REMIC II REGULAR INTEREST C-1" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having an initial Certificate Balance equal to $15,478,000, and
which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage
Rate.
"REMIC II REGULAR INTEREST C-2" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having an initial Certificate Balance equal to $14,516,000, and
which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage
Rate.
"REMIC II REGULAR INTEREST C-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 $1,937,000, 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 D-1" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having an initial Certificate Balance equal to $11,642,000, and
which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage
Rate.
"REMIC II REGULAR INTEREST D-2" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having an initial Certificate Balance equal to $1,421,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST E-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 $6,139,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST E-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 $8,375,000, 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 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-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 $4,754,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST H-2" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having an initial Certificate Balance equal to $1,051,000, 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.
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"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 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.
"REMIC II REGULAR INTERESTS" means, collectively, the REMIC II
Regular Interest A-1A, REMIC II Regular Interest A-1B, REMIC II Regular Interest
A-1C, REMIC II Regular Interest A-1D, REMIC II Regular Interest A-2A, REMIC II
Regular Interest A-2B, REMIC II Regular Interest A-3A, REMIC II Regular Interest
A-3B, REMIC II Regular Interest A-3C, REMIC II Regular Interest A-4A, REMIC II
Regular Interest A-4B, REMIC II Regular Interest A-4C, REMIC II Regular Interest
B-1, REMIC II Regular Interest B-2, REMIC II Regular Interest B-3, REMIC II
Regular Interest C-1, REMIC II Regular Interest C-2, REMIC II Regular Interest
C-3, REMIC II Regular Interest D-1, REMIC II Regular Interest D-2, REMIC II
Regular Interest E-1, REMIC II Regular Interest E-2, REMIC II Regular Interest
F, REMIC II Regular Interest G, REMIC II Regular Interest H-1, REMIC II Regular
Interest H-2, REMIC II Regular Interest J, REMIC II Regular Interest K, REMIC II
Regular Interest L, REMIC II Regular Interest M, REMIC II Regular Interest N and
REMIC II Regular Interest O.
"REMIC III" means the segregated pool of assets consisting of
the REMIC II Regular Interests for which a REMIC election has been made pursuant
to Section 12.1(a) hereof.
"REMIC III CERTIFICATES" has the meaning set forth in the
final paragraph of the Preliminary Statement hereto.
"REMIC III REGULAR INTERESTS" means, collectively, the Class
A-1 Certificates, Class A-2 Certificates, Class A-3 Certificates, Class A-4
Certificates, Class X-1 Certificates (each Class X-1 Certificate representing
multiple "regular interests" in REMIC III), Class X-2 Certificates (each Class
X-2 Certificate representing multiple "regular interests" in REMIC III), Class B
Certificates, Class C Certificates, Class D Certificates, Class E Certificates,
Class F Certificates, Class G Certificates, Class H Certificates, Class J
Certificates, Class K Certificates, Class L Certificates, Class M Certificates,
Class N Certificates and Class O Certificates. With respect to the Class A-1,
Class X-1, Class X-2 and Class O Certificates, references to REMIC III Regular
Interests will be considered to refer to the Class A-1 REMIC Interest, Class X-1
REMIC
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Interest, Class X-2 REMIC Interest and Class O REMIC Interest, respectively,
which are "regular interests" in REMIC III, where appropriate.
"REMIC POOL" means each of the four 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,
Class X-1, Class X-2, Class B, Class C, Class D, Class E, Class F, Class G,
Class H, Class J, Class K, Class L, Class M, Class N and Class O 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 the 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 the Loan Pair, the portion of the amounts described above received with
respect to such REO Property and allocable to the related A Note or the
WestShore Plaza Pari Passu 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.
"REO MORTGAGE LOAN" means a Mortgage Loan, the WestShore Plaza
Companion 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 Non-Serviced Mortgage Loan and
related Non-Serviced Mortgage Loan Companion Loans, the Loan Pair or the
Mortgaged Property securing an A/B
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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.
"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, the Loan
Pair or any B Note as to which an Appraisal Event has occurred. A Mortgage Loan,
the Loan Pair or a 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 the Xxxxxxx
Xxxx Loan REMIC, the Class R-K Certificates; 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 Servicer Watch List, (v) a Property File, (vi)
without duplication with Section 8.14, a Financial File and (vii) a CMSA Special
Servicer Loan File.
"REVERSE SEQUENTIAL ORDER" means sequentially to the Class O,
Class N, Class M, Class L, Class K, Class J, Class H, Class G, Class F, Class E,
Class D, Class C, Class B and finally to the Class X and Class A Certificates,
on a pro rata basis, as described herein.
"RSA COMPANION LOAN" means, with respect to the Mortgage Loan
identified on the Mortgage Loan Schedule as Mortgage Loan No. 29, which is
secured by the related
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Mortgage on a pari passu basis with the RSA Pari Passu Loan. The RSA Companion
Loan is not a "Mortgage Loan."
"RSA PARI PASSU LOAN" means, with respect to the Mortgage Loan
identified on the Mortgage Loan Schedule as Mortgage Loan No. 29, which is
secured by the related Mortgage on a pari passu basis with the RSA Companion
Loan. The RSA Pari Passu Loan is a "Mortgage Loan."
"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.
"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, the WestShore Plaza Companion 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, the WestShore Plaza Companion Loan or
the related 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 the WestShore Plaza Pari Passu Loan or the WestShore Plaza
Companion Loan or any A Note or B Note shall be calculated without regard to the
Loan Pair Intercreditor Agreement or the related Intercreditor Agreement, as
applicable, and for the avoidance of doubt, the Scheduled Payment calculated in
respect of the Xxxxxxx Xxxx Loan shall not include any portion thereof defined
as the "Fixed Retained Yield" in the related Intercreditor Agreement.
"SCHEDULED PRINCIPAL BALANCE" means, with respect to any
Mortgage Loan, the WestShore Plaza Companion Loan, any 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 such Mortgage Loan, the
WestShore Plaza Companion Loan, B Note or REO Mortgage Loan.
"SELLER" means Principal, Xxxxx Fargo, BSCMI, JHREF or MSMC as
the case may be.
"SENIOR CERTIFICATES" means the Class A and Class X
Certificates.
"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
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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 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 and/or (if applicable) the WestShore Plaza
Companion Loan or the related 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, the WestShore Plaza Companion 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 the WestShore Plaza Companion Loan and any B Note) 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 the WestShore Plaza Companion Loan or any
B Note, the related holder of the WestShore Plaza Companion Loan or B Note, as
applicable) (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, the WestShore Plaza Companion Loan and any B Note (and, in the
case of the Loan Pair or any A Note and B Note, the 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;
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(b) with a view to the timely collection of all scheduled
payments of principal and interest under the Mortgage Loans, the WestShore Plaza
Companion Loan and any B Note or, if a Mortgage Loan, the WestShore Plaza
Companion 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 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 the Loan Pair, the maximization of recovery on such A/B Mortgage Loan or
the Loan Pair, as applicable, to the Certificateholders and the holder of the
related B Note or the WestShore Plaza Companion Loan, as applicable, all taken
as a collective whole) on a present value basis (the relevant discounting of
anticipated collections that will be distributable to Certificateholders to be
performed at the related REMIC I Net Mortgage Rate, in the case of the Mortgage
Loans (other than any A Note or the WestShore Plaza Pari Passu Loan) or 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 WestShore Plaza Pari Passu Loan and
the WestShore Plaza Companion Loan in the case of the 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 the Berkeley
& Xxxxx Companion Loans, the RSA Companion Loan, the WestShore Plaza Companion
Loan, a 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, the WestShore Plaza Companion Loan or
any 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, the
WestShore Plaza Companion Loan or any 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, the
WestShore Plaza Companion Loan or any 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, the WestShore
Plaza Companion Loan or any 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 the WestShore Plaza Companion Loan or any related 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, the WestShore Plaza Companion Loan or any B Note as to which the
Mortgagor admits in writing its
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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; (vi) any Mortgage Loan, the WestShore Plaza Companion Loan or
any B Note as to which, in the good faith reasonable judgment of the Master
Servicer, (a) (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 the
WestShore Plaza Companion Loan or any related B Note (as the case may be); and
(vii) with respect to any A/B Mortgage Loan, if the holder of the B Note chooses
not to cure a monetary default that is permitted to be cured under the related
Intercreditor Agreement, the Business Day following the expiration of the Cure
Period (as defined in the related Intercreditor Agreement) that commences one
month after such monetary default; 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 three consecutive
monetary defaults 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. 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. However, if a Servicing
Transfer Event has not occurred with respect to an A Note solely due to the
holder of the related B Note exercising its cure rights under the related
Intercreditor Agreement, then a Servicing Transfer Event will not occur with
respect to such B Note. If a Servicing Transfer Event occurs with respect to the
WestShore Plaza Pari Passu Loan, it shall be deemed to have occurred also with
respect to the WestShore Plaza Companion Loan. If a Servicing Transfer Event
occurs with respect to the WestShore Plaza Companion Loan, it shall be deemed to
have occurred also with respect to the WestShore Plaza Pari Passu Loan. Under
the applicable Non-Serviced Mortgage Loan Pooling and Servicing Agreement, if a
Servicing Transfer Event occurs with respect to any Non-Serviced Mortgage Loan
Companion 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
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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.
"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), the WestShore
Plaza Companion Loan or each 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, the WestShore Plaza Companion 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),
the WestShore Plaza Companion Loan or any B Note with respect to which the
Master Servicer has notified the Special Servicer, the Operating Adviser and the
Trustee that a Servicing Transfer Event has occurred (which notice shall be
effective upon receipt) and the Special Servicer has received all information,
documents and records relating to such Mortgage Loan, the WestShore Plaza
Companion Loan or B Note as reasonably requested by the Special Servicer to
enable it to assume its duties with respect to such Mortgage Loan, the WestShore
Plaza Companion 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, 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
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XxxxXxxxx Xxxxx Companion Loan in the case of the 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 the WestShore
Plaza Pari Passu Loan (or the WestShore Plaza Companion Loan) that is or was a
Specially Serviced Mortgage Loan, the WestShore Plaza Companion Loan (or the
WestShore Plaza Pari Passu 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, the WestShore Plaza Companion 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" with respect to each of the Xxxxxxx Xxxx Loan
REMIC, 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 B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L,
Class M, Class N and Class O 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).
"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 the Xxxxxxx Xxxx Loan REMIC
(including the Xxxxxxx Xxxx Loan and related assets), REMIC I (including the
Majority Mortgage Loans (other than Excess Interest), such amounts related
thereto as shall from time to time be held in the Certificate Account, the
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Distribution Account, the Interest Reserve Account, the Insurance Policies, any
REO Properties and other items referred to in Section 2.1(a) hereof), REMIC II,
REMIC III, the Excess Interest Sub-account and any Excess Interest on the
Mortgage Loans, the Xxxxxxx Xxxx Sub-account and any Xxxxxxx Xxxx Yield
Maintenance Amounts. The Trust shall not include any Non-Serviced Mortgage Loan
Companion Loan, any B Note, any interest of the holders of a B Note, any A/B
Loan Custodial Account or the WestShore Plaza Companion Loan, any interest of
the holders the WestShore Plaza Companion Loan or the WestShore Plaza Companion
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 0.0022% per annum (which includes the
Paying Agent Fee).
"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 WestShore Plaza Companion 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.
"2003-IQ5 DEPOSITOR" means the "depositor" under the 2003-IQ5
Pooling and Servicing Agreement, which as of the date hereof is Xxxxxx Xxxxxxx
Capital I Inc.
"2003-IQ5 FISCAL AGENT" means the "fiscal agent" under the
2003-IQ5 Pooling and Servicing Agreement, which as of the date hereof is ABN
AMRO Bank N.V.
"2003-IQ5 MASTER SERVICER" means the "master servicer" under
the 2003-IQ5 Pooling and Servicing Agreement, which as of the date hereof is
GMAC Commercial Mortgage Corporation.
"2003-IQ5 POOLING AND SERVICING AGREEMENT" means the pooling
and servicing agreement dated as of September 1, 2003 by and between the
2003-IQ5 Depositor, the 2003-IQ5 Master Servicer, the 2003-IQ5 Special Servicer,
the 2003-IQ5 Trustee and the 2003-IQ5 Fiscal Agent, pursuant to which the
2003-IQ5 Trust issued its Commercial Mortgage Pass-Through Certificates, Series
2003-IQ5.
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"2003-IQ5 SPECIAL SERVICER" means the "special servicer" under
the 2003-IQ5 Pooling and Servicing Agreement, which as of the date hereof is
Midland Loan Services, Inc., or, as it relates to the Berkeley & Xxxxx Loan
Group, is ARCap Servicing, Inc.
"2003-IQ5 TRUST" means the trust established pursuant to the
2003-IQ5 Pooling and Servicing Agreement.
"2003-IQ5 TRUSTEE" means the "trustee" under the 2003-IQ5
Pooling and Servicing Agreement, which as of the date hereof is LaSalle Bank
National Association.
"2003-TOP11 DEPOSITOR" means the "depositor" under the
2003-TOP11 Pooling and Servicing Agreement, which as of the date hereof is
Xxxxxx Xxxxxxx Capital I Inc.
"2003-TOP11 FISCAL AGENT" means the "fiscal agent" under the
2003-TOP11 Pooling and Servicing Agreement, which as of the date hereof is ABN
AMRO Bank N.V.
"2003-TOP11 MASTER SERVICER" means the "master servicer "
under the 2003-TOP11 Pooling and Servicing Agreement, which as of the date
hereof is Xxxxx Fargo Bank, National Association.
"2003-TOP11 PAYING AGENT" means the "paying agent" under the
2003-TOP11 Pooling and Servicing Agreement, which as of the date hereof is Xxxxx
Fargo Bank Minnesota, National Association.
"2003-TOP11 POOLING AND SERVICING AGREEMENT" means the pooling
and servicing agreement dated as of August 1, 2003 by and between the 2003-TOP11
Depositor, the 2003-TOP11 Master Servicer, the 2003-TOP11 Special Servicer, the
2003-TOP11 Paying Agent, the 2003-TOP11 Trustee and the 2003-TOP11 Fiscal Agent,
pursuant to which the 2003-TOP11 Trust issued its Commercial Mortgage
Pass-Through Certificates, Series 2003-TOP11.
"2003-TOP11 SPECIAL SERVICER" means the "special servicer"
under the 2003-TOP11 Pooling and Servicing Agreement, which as of the date
hereof is ARCap Servicing, Inc.
"2003-TOP11 TRUST" means the trust established pursuant to the
2003-TOP11 Pooling and Servicing Agreement.
"2003-TOP11 TRUSTEE" means the "trustee" under the 2003-TOP11
Pooling and Servicing Agreement, which as of the date hereof is LaSalle Bank
National Association.
"UNDERWRITER" means each of Bear, Xxxxxxx & Co. Inc., Xxxxxx
Xxxxxxx & Co. Incorporated, Xxxxxxx, Sachs & Co. and Xxxxx Fargo Brokerage
Services, LLC 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
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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 the Person that made the
Advance 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 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,
plus one month's interest thereon at the applicable Pass-Through Rate.
"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 Mortgaged Loans and
REO Properties)): (a) the following electronic files; (i) a Loan Set-Up 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, 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.
"WESTSHORE PLAZA COMPANION LOAN" means with respect to the
Mortgage Loan designated as Mortgage Loan No. 2, the related A-2 Note, which is
secured by the related Mortgage on a pari passu basis with the WestShore Plaza
Pari Passu Loan. The WestShore Plaza Companion Loan is not a "Mortgage Loan."
"WESTSHORE PLAZA COMPANION 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 WestShore Plaza Companion Loan.
Any such sub-account(s) shall be maintained as sub-accounts of an Eligible
Account.
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"WESTSHORE PLAZA PARI PASSU LOAN" means the Mortgage Loan
designated as Mortgage Loan No. 2 on the Mortgage Loan Schedule, comprised of
the related A-1 Note and which is secured on a pari passu basis with the
WestShore Plaza Companion Loan. The WestShore Plaza Pari Passu Loan is a
"Mortgage Loan."
"WESTSHORE PLAZA PARI PASSU MORTGAGE" means the Mortgage
securing the WestShore Plaza Companion Loan and the WestShore Plaza Pari Passu
Loan secured by the related Mortgaged Property.
"WORKOUT-DELAYED REIMBURSEMENT AMOUNT" has the meaning set
forth in subsection (II)(A) of Section 5.2(a).
"WORK-OUT FEE" means a fee payable with respect to any
Rehabilitated Mortgage Loan (other than any Non-Serviced Mortgage Loan), the
WestShore Plaza Companion Loan or any 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, the WestShore Plaza Companion 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, the WestShore Plaza Companion Loan or any B
Note shall be made based upon current information as to the terms of such
Mortgage Loan, the WestShore Plaza Companion Loan and B Note and reports of
payments received from the Master Servicer on such Mortgage Loan, the WestShore
Plaza Companion 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 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, the WestShore Plaza Companion Loan or B Note documents (or the
related Intercreditor Agreement or Loan Pair Intercreditor Agreement, as
applicable), any amounts (other than escrow and reserve deposits and
reimbursements of lender advances and expenses) received in respect of a
Mortgage Loan, the WestShore Plaza Companion 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, the WestShore Plaza Companion
Loan or B Note at the Mortgage Rate thereof, next to current interest due with
respect to such Mortgage Loan, the WestShore Plaza Companion Loan or B Note at
the Mortgage Rate thereof, next to the reduction of the Principal Balance of
such Mortgage Loan, the WestShore Plaza Companion Loan or B Note to zero if such
Mortgage Loan, the WestShore Plaza Companion 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, the WestShore Plaza Companion Loan or B Note has not
yet been accelerated, next to any default interest and other amounts due on such
Mortgage Loan, the WestShore Plaza Companion Loan or B Note and finally to Late
Fees due with respect to such Mortgage Loan, the WestShore Plaza Companion Loan
or B Note.
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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 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 on the Anticipated Repayment Date as specifically provided
for in the related Mortgage Note shall not be taken into account for purposes of
the definitions of "Appraisal Reduction," "Assumed Scheduled Payment," "Mortgage
Rate," "Purchase Price" and "Realized Loss."
(b) Excess Interest shall constitute an asset of the Trust
but not an asset of any REMIC Pool.
(c) Neither the Master Servicer nor the Special Servicer
shall take any enforcement action with respect to the payment of Excess Interest
unless the taking of such action is consistent with the Servicing Standard and
all other amounts due under such Mortgage
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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.
SECTION 1.6 CERTAIN MATTERS WITH RESPECT TO LOAN PAIRS AND A/B MORTGAGE LOANS.
(a) The parties hereto acknowledge that, pursuant to the
Loan Pair Intercreditor Agreement or the related Intercreditor Agreement, if the
WestShore Plaza Pari Passu Loan or B Note, as applicable, is no longer part of
the Trust Fund, the new holder of such WestShore Plaza Pari Passu 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 WestShore Plaza
Pari Passu Loan or B Note, as applicable, shall obtain and provide to the holder
of the WestShore Plaza Companion Loan and/or the related B Note written
confirmation from each rating agency then rating any securitization relating to
such WestShore Plaza Companion 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 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 the Loan Pair (including both the
WestShore Plaza Pari Passu Loan and the WestShore Plaza Companion Loan), 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 the WestShore Plaza Pari Passu 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
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(iii) any payment in full of any and all amounts due (or deemed due) under the
related A Note or the WestShore Plaza Pari Passu Loan (or its successor REO
Mortgage Loan) (including amounts to which the holder of such A Note or the
WestShore Plaza Pari Passu Loan is entitled under the related Intercreditor
Agreement or 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
WestShore Plaza Companion Loan or the related 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, 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 the Loan Pair. If the WestShore Plaza Pari
Passu Loan and the WestShore Plaza Companion 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 the WestShore Plaza Companion Loan or
any B Note and such holder shall not suffer any adverse consequences as a result
of the payment of such expense.
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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 the Xxxxxxx Xxxx Loan REMIC or REMIC I for the benefit of REMIC II and REMIC
III or the Grantor Trust for the benefit of the Class A-1, Class X-1, Class X-2
and Class O 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 Loan 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.
(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).
(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, as the case may be, in the appropriate
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public office for real property records or UCC financing statements, as
appropriate, each assignment to the Trustee referred to in clauses (iv), (vi)(B)
and (ix)(B) of the definition of "Mortgage File". Each such assignment shall
reflect that it should be returned by the public recording office to the Trustee
following recording or filing; provided that in those instances where the public
recording office retains the original Assignment of Mortgage, assignment of
Assignment of Leases or assignment of UCC financing statements, the 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. 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.
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 that to the extent that the absence of
a document described in the second preceding sentence with respect to such
Mortgage Loan remains unremedied as of the earlier of (i) the date that is 180
days following the delivery of notice of such absence to the related Seller, but
in no event earlier than 18 months from the Closing Date, and (ii) the date (if
any) on which such Mortgage Loan becomes a Specially Serviced Mortgage Loan. The
Trustee shall submit such documents for recording, at the related Seller's
expense, after the periods set forth above; provided, however, the Trustee shall
not submit such assignments for recording if the applicable Seller produces
evidence that it has sent any such assignment for recording and certifies that
it is awaiting its return from the applicable recording office.
(d) All relevant servicing or loan documents and records in
the possession of the Depositor or the Sellers that relate to the Mortgage
Loans, the WestShore Plaza Companion Loan or B Notes and that are not required
to be a part of a Mortgage File in accordance with the definition thereof shall
be delivered to the Master Servicer or the related 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 related 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 related 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
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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 applicable Primary Servicer (or sub-servicer) shall
be deemed delivery to the Master Servicer and satisfy the Depositor's
obligations under this Section 2.1(d). None of the Master Servicer, the Special
Servicer or any Primary Servicer shall have any liability for the absence of any
of the foregoing items from the Servicing Mortgage File if such item was not
delivered by the related Seller.
(e) In connection with the Depositor's assignment pursuant
to Section 2.1(a) above, the Depositor shall deliver to the Trustee 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, the JHREF Loans from JHREF 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. 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 JHREF
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, JHREF and MSMC, as
applicable, are required 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
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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, the JHREF Loans shall be deemed to have been transferred from
JHREF 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 Xxxxxxx Xxxx Loan REMIC Regular Interest, (iii) the REMIC I Regular
Interests, and (iv) 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 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 the WestShore Plaza Pari
Passu Loan relate to the WestShore Plaza Companion 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 WestShore Plaza Companion 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
and the Operating Adviser a certification (the "Initial Certification" and the
"Final Certification", respectively, in the respective forms set forth as
Exhibit B-1 and Exhibit B-2 hereto), which may be in electronic format (i) in
the case of the Initial Certification, as to each Mortgage Loan listed in the
Mortgage Loan Schedule, except as may be specified in the schedule of exceptions
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) 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 any applicable Primary Servicing Agreement), and with
respect to all documents specified in the other clauses of the definition of
Mortgage File to the extent known by a Responsible Officer of the Trustee to be
required pursuant to this 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
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
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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. The Trustee
shall deliver to the Master Servicer, the Special Servicer, the Operating
Adviser and each Seller a copy of such Final Certification, which may be in
electronic format.
Within 360 days after the Cut-Off Date, the Trustee shall
provide a confirmation of receipt of recorded assignments of Mortgage (as
described in the definition of Mortgage File, with evidence of recording
thereon) or otherwise provide evidence of such recordation to the Master
Servicer, the Special Servicer, the Operating Adviser and each Seller, and if
any recorded assignment of Mortgage has not been received by the Trustee by such
time, the Trustee shall provide information in such confirmation on the status
of missing assignments. The Trustee agrees to use reasonable efforts to submit
for recording any unrecorded assignments of Mortgage that have been delivered to
it (including effecting such recordation process through or cooperating with the
applicable Seller) such recordation to be at the expense of the applicable
Seller; provided, however, that the Trustee shall not submit for recording any
such assignments if the applicable Seller produces evidence that it has sent any
such assignment for recording and is awaiting its return from the applicable
recording office. In giving the certifications required above, the Trustee shall
be under no obligation or duty to inspect, review or examine any such documents,
instruments, securities or other papers to determine whether they or the
signatures thereon are valid, legal, genuine, enforceable, in recordable form or
appropriate for their represented purposes, or that they are other than what
they purport to be on their face, or to determine whether any Mortgage File
should include any assumption agreement, modification agreement, consolidation
agreement, extension agreement, Assignment of Lease, ground lease, UCC financing
statement, guaranty, written assurance, substitution agreement, lock box
agreement, intercreditor agreement, management agreement or letter of credit.
If any exceptions are noted on a schedule of exceptions
attached to the Final Certification, including exceptions resulting from the
fact that the recordation and/or filing has not been completed (based solely on
the absence of receipt by the Custodian (or the Trustee) of the particular
documents showing evidence of the recordation and/or filing), then the Custodian
on behalf of the Trustee (or the Trustee) shall continuously update such
schedule of exceptions to reflect receipt of any corrected documents, additional
documents or instruments or evidences of recordation and/or filing, as to each
Mortgage Loan, until the earliest of the following dates: (i) the date on which
all such exceptions are eliminated (any such elimination resulting from the fact
that recordation and/or filing has been completed shall be based solely on
receipt by the Custodian or the Trustee of the particular documents showing
evidence of the recordation and/or filing), (ii) the date on which all the
affected Mortgage Loans are removed from the Trust and (iii) the second
anniversary of the Closing Date, and shall provide such updated schedule of
exceptions (which may be in electronic format) to each of the Depositor, each
Seller (as to its respective Mortgage Loans only), the Master Servicer, the
Special Servicer, the Operating Adviser and the Paying Agent on or about the
date that is 180 days after the Closing Date and then again every 90 days
thereafter (until the earliest date specified above). 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 or the Operating Adviser that is made later than two years
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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.
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 such defect or breach either (i) materially and adversely affects
the interests of the holders of the Certificates in the related Mortgage Loan,
or (ii) both (A) the document defect or breach materially and adversely affects
the value of the Mortgage Loan and (B) the Mortgage Loan is a Specially Serviced
Mortgage Loan or Rehabilitated Mortgage Loan (such a document defect described
in the preceding clause (i) or (ii), a "Material Document Defect", and such a
breach described in the preceding clause (i) or (ii), a "Material Breach") such
party shall give prompt written notice to the other parties hereto and to each
Rating Agency subject to the terms of the applicable Mortgage Loan Purchase
Agreement. Promptly (but in any event within three Business Days) upon becoming
aware of any such Material Document Defect or Material Breach, the Master
Servicer shall, and the Special Servicer may, request that the related Seller,
not later than 90 days from such Seller's receipt of the notice of such Material
Document Defect or Material Breach, cure such Material Document Defect or
Material Breach, as the case may be, in all material respects; provided,
however, that if such Material Document Defect or Material Breach, as the case
may be, cannot be corrected or cured in all material respects within such 90-day
period, and such Material Document Defect or Material Breach would not cause the
Mortgage Loan to be other than a "qualified mortgage" (as defined in the Code)
but the related Seller is diligently attempting to effect such correction or
cure, as certified by such Seller in an Officer's Certificate delivered to the
Trustee, then the cure period will be extended for an additional 90 days unless,
solely in the case of a Material Document Defect, (x) the Mortgage Loan is 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 of any Material Document
Defect listed therein.
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If any such Material Document Defect or Material Breach cannot
be corrected or cured in all material respects within the above cure periods,
the related Seller will be obligated, not later than the last day of such
permitted cure period, to (i) repurchase the affected Mortgage Loan or REO
Mortgage Loan from the Trust at the applicable Purchase Price in accordance with
the related Mortgage Loan Purchase Agreement, or (ii) if within the 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 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. In connection with a repurchase of the
Xxxxxxx Xxxx Loan, as contemplated by this Section 2.3(a), the Paying Agent
shall effect a "qualified liquidation" of the Xxxxxxx Xxxx Loan REMIC in
accordance with the REMIC Provisions. In the case of a substitution for the
Xxxxxxx Xxxx Loan, all references in this Agreement to the Xxxxxxx Xxxx Loan
shall be to the Qualifying Substitute Mortgage Loan or Loans substituted
therefor; provided, however, that the Xxxxxxx Xxxx Loan REMIC Net Mortgage Rate
and the Certificate Balance of the Xxxxxxx Xxxx Loan REMIC Regular Interest
shall not change.
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 (to the extent
that such title was
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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 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
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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 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; or (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). 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 and the parties
hereto and making demand upon the related Seller for the cure of the document
defect or repurchase or replacement of the related Mortgage Loan.
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
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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 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.
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
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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
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
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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.
(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, (iv) JHREF, as Seller
under Mortgage Loan Purchase Agreement V, will be providing the remedies with
respect to the JHREF Loans and (v) MSMC, as Seller under Mortgage Loan Purchase
Agreement IV, will be providing the remedies with respect to the MSMC Loans.
If the Master Servicer or the Special Servicer receives notice
from the Mortgagor under the Xxxxxxx Xxxx Loan that such Mortgagor intends to
defease the Xxxxxxx Xxxx Loan on or before the second anniversary of the Startup
Day, the Master Servicer or the Special Servicer shall promptly notify the
Trustee, the Paying Agent and the applicable Seller of such Mortgagor's
intention, and the Master Servicer shall direct such Seller to repurchase the
Xxxxxxx Xxxx Loan at the Purchase Price on a Due Date, but in no event later
than one Business Day prior to the date scheduled for such defeasance. In
addition, the applicable Seller, in this circumstance, shall be required to
remit the Xxxxxxx Xxxx Yield Maintenance Amount to the Paying Agent to
distribute to the Class A-1, Class X-1 and Class X-2 Certificateholders the
amounts to which they are entitled in accordance with Section 6.11. If the
applicable Seller fails to purchase the Xxxxxxx Xxxx Loan as required, the
Special Servicer shall sell such Xxxxxxx Xxxx Loan from the Trust Fund at the
highest available price and shall effect a "qualified liquidation" of the
Xxxxxxx Xxxx Loan REMIC, within the meaning of Section 860F(a)(4) of the Code,
as soon as reasonably practicable (but in no event later than one Business Day
prior to the date of such early defeasance). The Trust shall be indemnified by
the applicable Seller for any amount by which the Purchase Price plus the
Xxxxxxx Xxxx Yield Maintenance Amount exceeds the proceeds received by the Trust
with respect to such sale and liquidation of the Xxxxxxx Xxxx Loan.
(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.
(e) BSCMI shall have the right, prior to January 14, 2004
and in its sole discretion, to substitute one or more Qualifying Substitute
Mortgage Loans for one or more of the Mortgage Loans sold to the Depositor by
Bear Xxxxxxx Commercial Mortgage, Inc., provided that the aggregate Principal
Balance of such Deleted Mortgage Loans shall not exceed $9,500,000 and provided,
further, that such substitution is part of a bona fide replacement (and not part
of a swap of mortgages) within the meaning of Section 860G(e)(5) of the Code. In
connection with such a substitution, BSCMI and the parties hereto shall comply
with the second
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third, fourth and eleventh paragraphs of Section 2.3(a) and Section 2.3(b). In
connection with any substitution pursuant to this Section 2.3(e), (i) the
Certificate Balance and Xxxxxxx Xxxx Loan REMIC Net Mortgage Rate of the Xxxxxxx
Xxxx Loan REMIC Regular Interest shall not be changed, and (ii) the Certificate
Balance and REMIC I Net Mortgage Rate of the related REMIC I Regular Interest
shall not be changed. If BSCMI exercises its right to substitute one or more
Qualifying Substitute Mortgage Loans for the Xxxxxxx Xxxx Loan pursuant to this
Section 2.3(e), and the Qualifying Substitute Mortgage Loan or Loans delivered
in connection therewith do not otherwise satisfy the requirements set forth in
clauses (i) and (ii) of the definition of "Qualifying Substitute Mortgage Loan"
(but the aggregate scheduled cash flow of the Qualifying Substitute Mortgage
Loan or Loans is sufficient to pay interest on the Due Date(s) of the related
Qualifying Substitute Mortgage Loan or Loans on the Certificate Balance of the
Xxxxxxx Xxxx Loan REMIC Regular Interest at the Xxxxxxx Xxxx Loan REMIC Net
Mortgage Rate and the ultimate payment of principal in an amount sufficient to
reduce the Certificate Balance of the Xxxxxxx Xxxx Loan REMIC Regular Interest
to zero), then that cash flow when received shall be allocated first to the
accrued and unpaid interest on the Certificate Balance of the Xxxxxxx Xxxx Loan
REMIC Regular Interest at the Xxxxxxx Xxxx Loan REMIC Net Mortgage Rate, second
in respect of principal in reduction of the Certificate Balance of the Xxxxxxx
Xxxx Loan REMIC Regular Interest until reduced to zero at which time the
remainder of the cash flow shall be paid to the Xxxxxxx Xxxx Loan REMIC Residual
Interest, and such amounts allocable as interest and principal shall be deemed
to constitute interest paid on and principal of the Mortgage Loan underlying the
Xxxxxxx Xxxx Loan REMIC Regular Interest in the amounts reallocated hereunder
for all purposes of this Agreement (notwithstanding the characterization of such
payments prior to such reallocation).
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
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perform its obligations under this Agreement or (ii) the business, operations,
financial condition, properties or assets of the Depositor;
(c) The execution, delivery and performance by the Depositor
of this Agreement and the consummation of the transactions contemplated hereby
do not require the consent or approval of, the giving of notice to, the
registration with, or the taking of any other action in respect of, any state,
federal or other governmental authority or agency, except such as has been
obtained, given, effected or taken prior to the date hereof;
(d) This Agreement has been duly executed and delivered by
the Depositor and, assuming due authorization, execution and delivery by the
Trustee, constitutes a valid and binding obligation of the Depositor enforceable
against it in accordance with its terms;
(e) There are no actions, suits or proceedings pending or,
to the best of the Depositor's knowledge, threatened or likely to be asserted
against or affecting the Depositor, before or by any court, administrative
agency, arbitrator or governmental body (A) with respect to any of the
transactions contemplated by this Agreement or (B) with respect to any other
matter which in the judgment of the Depositor will be determined adversely to
the Depositor and will, if determined adversely to the Depositor, materially and
adversely affect it or its business, assets, operations or condition, financial
or otherwise, or adversely affect its ability to perform its obligations under
this Agreement; and
(f) Immediately prior to the consummation of the
transactions contemplated in this Agreement, the Depositor had good title to and
was the sole owner of each Mortgage Loan free and clear of any and all adverse
claims, charges or security interests (including liens arising under the federal
tax laws or the Employee Retirement Income Security Act of 1974, as amended).
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 Majority Mortgage Loans
and the Xxxxxxx Xxxx Loan REMIC Regular Interest in exchange for the REMIC I
Regular Interests, (ii) the REMIC I Regular Interests in exchange for the REMIC
II Interests, (iii) the REMIC II Regular Interests in exchange for the REMIC III
Certificates, (iv) the Excess Interest in exchange for the Class O Grantor Trust
Interest and (v) the Xxxxxxx Xxxx Yield Maintenance Amounts in exchange for the
Class A-1 Grantor Trust Interest, Class X-1 Grantor Trust Interest and Class X-2
Grantor Trust Interest.
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,
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with applicable laws, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange on which any of the
Certificates may be listed, or as may, consistently herewith, be determined by
the officers executing such Certificates, as evidenced by their execution
thereof.
The Definitive Certificates shall be printed, typewritten,
lithographed or engraved or produced by any combination of these methods or may
be produced in any other manner permitted by the rules of any securities
exchange on which any of the Certificates may be listed, all as determined by
the officers executing such Certificates, as evidenced by their execution
thereof.
(b) The Class A Certificates 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 and Class
O 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, Class R-III and Class
R-K 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, 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 and Class O Certificates that are issued in book-entry form, on
the Closing Date, the Authenticating Agent upon the order of the Depositor shall
authenticate Book-Entry Certificates that are issued to a Clearing Agency or its
nominee as provided in Section 3.7 against payment of the purchase price
thereof. With respect to the Class H, Class J, Class K, Class L, Class M, Class
N and Class O 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,
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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 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
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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 ("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
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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 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.
(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 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
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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 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
Regulation 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
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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 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 and the Depositor the following:
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(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 the
Xxxxxxx Xxxx Loan REMIC, 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 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
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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.
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, the Paying Agent
and any agent of the Master Servicer, the Special Servicer, the Fiscal Agent,
the Paying Agent, the Trustee or the Operating Adviser may treat the Person in
whose name any Certificate is registered as of the related Record Date as the
owner of such Certificate for the purpose of receiving distributions as provided
in this Agreement and for all other purposes whatsoever, and 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 or the Operating
Adviser shall be affected by any notice to the contrary.
SECTION 3.6 ACCESS TO LIST OF CERTIFICATEHOLDERS' NAMES AND
ADDRESSES. If three or more Certificateholders, a Certificateholder holding all
the Certificates of any Class of Certificates, the Master Servicer, the Special
Servicer, the Paying Agent, the Trustee, the Operating Adviser or the Depositor
(A) request in writing from the Certificate Registrar a list of the names and
addresses of Certificateholders and (B) in the case of a request by
Certificateholders, state that such Certificateholders desire to communicate
with other Certificateholders with respect to their rights under this Agreement
or under the Certificates, then the Certificate Registrar shall, within ten
Business Days after the receipt of such request, afford such Certificateholders,
the Master Servicer, the Special Servicer, the Depositor, the Paying Agent, the
Trustee or the Operating Adviser, as applicable, access during normal business
hours to a current list of the Certificateholders. The expense of providing any
such information requested by such Person shall be borne by the party requesting
such information and shall not
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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-4,
Class X-1, Class X-2, Class B, Class C, Class D, Class E, Class F, Class G,
Class H, Class J, Class K, Class L, Class M, Class N and Class O 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 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.
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(c) The Certificates of each Class (other than the Residual
Certificates) initially sold in reliance on Rule 144A or with respect to the
Class E, Class F and Class G 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 H, Class J, Class K, Class L, Class M, Class N and Class O
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
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
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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 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
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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.
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
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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.
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 Mortgage Loan 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
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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) 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 not have any
obligation to make Servicing Advances with respect to such Mortgage Loan.
SECTION 4.1A P&I ADVANCES WITH RESPECT TO THE BERKELEY & XXXXX
XXXX PASSU LOAN, THE RSA PARI PASSU LOAN AND THE WESTSHORE PLAZA PARI PASSU
LOAN.
With respect to the Berkeley & Xxxxx Xxxx Passu Loan, the RSA
Pari Passu Loan and the WestShore Plaza Pari Passu Loan (the "Serviced Pari
Passu Loans"), the Master Servicer shall make its determination that a P&I
Advance previously made on any Serviced 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 Serviced 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 Serviced Pari Passu Loan following deposit of the
Berkeley & Xxxxx Companion Loans, RSA Companion Loan or WestShore Plaza
Companion Loan 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 Berkeley &
Xxxxx Companion Loans, RSA Companion Loan or WestShore Plaza Companion Loan, 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 Berkeley & Xxxxx Companion Loans, RSA Companion Loan or WestShore Plaza
Companion Loan, as applicable. The Master Servicer shall not make a P&I Advance
with respect to any Serviced 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 Berkeley & Xxxxx Companion
Loans, RSA Companion Loan or WestShore Plaza Companion Loan, 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 an Advance would be (if
made), or any outstanding 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 Advance would be, or any outstanding Advance is, a
Nonrecoverable Advance, the Master Servicer shall not make any additional
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
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changed such that a proposed future 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
Advance or outstanding 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 Advances with respect to such Mortgage
Loan.
Following a securitization of the WestShore Plaza Companion
Loan, the Master Servicer shall be required to deliver to the related Other
Master Servicer the following information: (i) any loan related information (in
the form received), including without limitation CMSA Reports relating to the
WestShore Plaza Pari Passu 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 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 the WestShore Plaza
Pari Passu Loan, the holder of the WestShore Plaza Companion 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.
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
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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 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
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 Special Servicer, the
Operating Adviser and the Rating Agencies (and the holder of the WestShore Plaza
Companion Loan if the Advance relates to the 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
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expense statements, rent rolls, occupancy status, property inspections and any
Appraisals performed within the last 12 months on the Mortgaged Property, and,
if such reports are used by the Master Servicer or the Special Servicer, 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 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 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 the 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 (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 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
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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, written notice of
whether (and, if any, how much) Advance Interest will be payable on the interest
component of a 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, any B
Note or any 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 WestShore Plaza Companion Loan) 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 Mortgaged 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 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, the
WestShore Plaza Companion Loan, each 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, the WestShore
Plaza Companion 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, the WestShore Plaza Companion Loan, any B Note, any Specially
Serviced Mortgage Loans or any REO Mortgage Loans, the Available Advance
Reimbursement Amount with respect to any Determination Date shall be applied to
reimburse (i) the Fiscal Agent for any Advances outstanding to the Fiscal Agent
with respect to any of such Mortgage Loans, the WestShore Plaza Companion Loan,
B Note, Specially Serviced Mortgage Loans or REO Mortgage Loans,
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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, the WestShore Plaza Companion 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, the WestShore Plaza Companion 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, the WestShore Plaza Companion 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 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 the WestShore
Plaza Companion 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, the WestShore Plaza Companion Loan, 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 the Loan Pair shall be allocated to the
WestShore Plaza Pari Passu Loan and the WestShore Plaza Companion 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.
(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
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amounts reimbursed by the Master Servicer shall be a Servicing Advance. In the
event that the Master Servicer fails to reimburse the Special Servicer hereunder
or the Master Servicer determines that such Servicing Advance was or, if made,
would be a Nonrecoverable Advance and the Master Servicer does not make such
payment, the Special Servicer shall notify the Master Servicer and the Paying
Agent in writing of such nonpayment and the amount payable to the Special
Servicer and shall be entitled to receive reimbursement from the Trust as an
Additional Trust Expense. The Master Servicer, the Paying Agent and the Trustee
shall have no obligation to verify the amount payable to the Special Servicer
pursuant to this Section 4.6(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) The long-term unsecured debt of the Fiscal Agent
is rated below "Aa3" by Xxxxx'x or "AA-" by Fitch (or "A+" by Fitch if the
Fiscal Agent's short-term unsecured debt is rated at least "F-1" by Fitch),
unless such other rating shall be acceptable to the Rating Agencies as evidenced
by a Rating Agency Confirmation; or
(vi) 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
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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 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.
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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.
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 2003-TOP12" (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,
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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 2003-TOP12" (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) 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, the
WestShore Plaza Companion 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 applicable Primary Servicing Fees payable as provided
in Section 5.2(a)(iv)(unless already retained by the applicable Primary
Servicer), and (III) shall, rather than deposit them in 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)):
(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, the WestShore Plaza Companion
Loan and any B Note;
(B) Interest: subject to subsection (d) hereof, all
payments on account of interest on the Mortgage Loans, the
WestShore Plaza Companion 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, the WestShore Plaza
Companion 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
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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; and
(I) Other: all other amounts, including Prepayment
Premiums and any Xxxxxxx Xxxx Yield Maintenance Amounts,
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, amounts with
respect to the WestShore Plaza Companion Loan and with respect
to any B Note, all other amounts received pursuant to the cure
and purchase rights set forth in the applicable 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 the Loan Pair, the Master Servicer shall
establish and maintain one or more sub-accounts of the Certificate Account
(collectively, the WestShore Plaza Companion 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 WestShore Plaza Companion Loan pursuant to the
terms of the Loan Pair Intercreditor Agreement, in each case on the same day as
the deposit thereof into the Certificate Account. The WestShore Plaza Companion
Loan Custodial Account shall be held in trust for the benefit of the holder of
the WestShore Plaza Companion Loan and shall not be part of any REMIC Pool.
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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, 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 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."
(e) Funds in the Certificate Account (including any A/B Loan
Custodial Accounts and the WestShore Plaza Companion Loan Custodial Account) 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 2003-TOP12 and the holder of the WestShore
Plaza Companion Loan or any related 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 the WestShore Plaza Companion Loan
Custodial Account, deposit to the related A/B Loan Custodial Account or the
WestShore Plaza Companion 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 any Certificate
Account, any A/B Loan Custodial Account, the WestShore Plaza Companion 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 WestShore Plaza Companion Loan
Custodial Account or the Interest Reserve Account, as the case may be, any
provision herein to the contrary notwithstanding.
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(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 WestShore Plaza Companion Loan
Custodial Account, the related A/B Loan Custodial Account and the Interest
Reserve Account an amount equal to all amounts due under any such Eligible
Investment (net of anticipated income or earnings thereon that would have been
payable to the Master Servicer as additional servicing compensation) the Master
Servicer shall have the sole right to enforce such payment or performance.
(g) Certain of the Mortgage Loans may provide for payment by
the Mortgagor to the Master Servicer of amounts to be used for payment of Escrow
Amounts for the account of the Mortgagor. The Master Servicer shall deal with
these amounts in accordance with the Servicing Standard, the terms of the
related Mortgage Loans and Section 8.3(e) hereof, and each Primary Servicer will
be entitled to hold any Escrow Accounts relating to the Mortgage Loans 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, 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 complete in
accordance with the requirements of the escrow, the Master Servicer and the
Special Servicer (which shall itself consult with the Operating Adviser) 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
XVIII, 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
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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 the
WestShore Plaza Companion Loan, from the WestShore Plaza Companion 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 the WestShore Plaza
Companion Loan, from the WestShore Plaza Companion 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 such 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 the
WestShore Plaza Companion Loan, from the WestShore Plaza Companion 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 or B Notes which are not Specially Serviced Mortgage Loans, Modification
Fees relating to Mortgage Loans, the WestShore Plaza Companion Loan 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 collected on Specially Serviced
Mortgage Loans in excess of Advance Interest (which Advance Interest the Master
Servicer shall retain to the extent provided for in this Agreement) to the
extent the Special Servicer is entitled to such Late Fees under Section 4.5;
(ii) Servicing Advances (including amounts later determined
to be Nonrecoverable Advances): (A) in the case of all Mortgage Loans, the
WestShore Plaza Companion Loan and any B Note, 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, the WestShore Plaza Companion
Loan and any B Note 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 the WestShore Plaza Companion Loan
and the related B Note) and on a "loan-by-loan basis" (under which Late Fees and
default interest will be offset against the Advance Interest
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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 the WestShore
Plaza Companion Loan and any B Note) 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, the WestShore Plaza Companion Loan or any B Note is a
Nonrecoverable Advance, any Servicing Advances made on the related Mortgage
Loan, the WestShore Plaza Companion Loan, the related B Note or REO Property
from any funds on deposit in the Certificate Account (regardless of whether such
amount was recovered from the applicable Mortgage Loan or REO Property) and pay
Advance Interest thereon first, from Late Fees and default interest collected
during the Collection Period 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 the WestShore Plaza Companion Loan and any B Note)
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 the WestShore Plaza
Companion Loan and any B Note) 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 Pooling and Servicing Agreement;
(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;
(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), the payment of which is not
more specifically provided for in this Agreement; provided that the Depositor
shall not be entitled to receive reimbursement for performing its duties under
this Agreement;
(vii) Liquidation Fees: 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 such Certificate Account
(including any A/B Loan Custodial Accounts and the WestShore Plaza Companion
Loan Custodial Account);
(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;
(xi) Distribution Account: to make payment on each Master
Servicer Remittance Date of the remaining amounts in the Certificate Account
(including any Excess Interest and Xxxxxxx Xxxx Yield Maintenance Amounts) to
the Distribution Account (or in the case of any Excess Interest, deposit to the
Excess Interest Sub-account under Section 5.3(b), or in the case of Xxxxxxx Xxxx
Yield Maintenance Amounts, deposit to the Xxxxxxx Xxxx Sub-account
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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:
(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
Agreement that entitles the holder of the B Note to
reimbursement of cure payments made by it).
and provided further, however, that in the case of the WestShore Plaza Companion
Loan:
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(A) the Master Servicer shall be entitled to make transfers
from time to time, from the WestShore Plaza Companion Loan
Custodial Account to the portion of the Certificate Account
that does not constitute the WestShore Plaza Companion 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 the Loan Pair and is allocable to the WestShore
Plaza Companion Loan, and the Master Servicer shall also be
entitled to make transfers from time to time, from the
WestShore Plaza Companion Loan Custodial Account to the
portion of the Certificate Account tat does not constitute
the WestShore Plaza Companion Loan Custodial Account, of
amounts transferred to such WestShore Plaza Companion 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 the WestShore
Plaza Companion Loan Custodial Account (other than amounts
previously transferred from the WestShore Plaza Companion 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 WestShore Plaza Companion Loan
Custodial Account to the portion of the Certificate Account
that does not constitute the WestShore Plaza Companion Loan
Custodial Account, of amounts not otherwise described in
clause (A) above to which the holder of the WestShore Plaza
Pari Passu Loan is entitled under the Loan Pair Intercreditor
Agreement (including in respect of interest, principal and
Prepayment Premiums); and
(C) the Master Servicer shall, on the later of (i) one (1)
Business Day after the related Determination Date or (ii) one
(1) Business Day after receipt from the related Primary
Servicer, remit to the holder of the WestShore Plaza Companion
Loan all amounts on deposit in such WestShore Plaza Companion
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 the WestShore
Plaza Companion Loan is entitled thereto under the Loan Pair
Intercreditor Agreement.
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 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
and B Note for the purpose of justifying any withdrawal or transfer from the
Certificate Account and any A/B Loan Custodial Account.
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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.
Expenses incurred with respect to the Loan Pair shall be
allocated in accordance with the Loan Pair Intercreditor Agreement. The Master
Servicer shall keep and maintain a separate accounting for each Mortgage Loan
and the WestShore Plaza Companion Loan for the purpose of justifying any
withdrawal or transfer from the Certificate Account and the WestShore Plaza
Companion Loan Custodial Account.
Subsection (II). The provisions of this subsection II of this
Section 5.2(a) shall apply notwithstanding any contrary provision of subsection
(I) of this Section 5.2(a):
(i Identification of Workout-Delayed Reimbursement
Amounts: If any Advance made with respect to any Mortgage Loan
on or before the date on which such Mortgage Loan becomes (or,
but for the requirement that the Mortgagor shall have made
three consecutive scheduled payments under its modified terms,
would then constitute) a Rehabilitated Mortgage Loan, together
with Advance Interest accrued thereon, is not, pursuant to the
operation of the provisions of Section 5.2(a)(I), reimbursed
to the Person who made such Advance on or before the date, if
any, on which such Mortgage Loan becomes a Rehabilitated
Mortgage Loan, such Advance, together with such Advance
Interest, shall constitute a "Workout-Delayed Reimbursement
Amount" to the extent that such amount has not been determined
to constitute a Nonrecoverable Advance. All references herein
to "Workout-Delayed Reimbursement Amount" shall be construed
always to mean the related Advance and any Advance Interest
thereon, together with any further Advance Interest that
accrues on the unreimbursed portion of such Advance from time
to time in accordance with the other provisions of this
Agreement. That any amount constitutes all or a portion of any
Workout-Delayed Reimbursement Amount shall not in any manner
limit the right of any Person hereunder to determine that such
amount instead constitutes a Nonrecoverable Advance.
(ii) General Relationship of Provisions. Subsection
(iii) below (subject to the terms and conditions thereof) sets
forth the terms of and conditions to the right of a Person to
be reimbursed for any Workout-Delayed Reimbursement Amount to
the extent that such Person is not otherwise entitled to
reimbursement and payment of such Workout-Delayed
Reimbursement Amount pursuant to the operation of Section
5.2(a)(I) above. Subsection (iv) below (subject to the terms
and conditions thereof) authorizes the Master Servicer to
abstain from reimbursing itself (or, if applicable, the
Trustee 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
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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 principal
collections and recoveries on the Mortgage Loans for such
Collection Period contemplated by clause (I)(A) of the
definition of Principal Distribution Amount (but not including
any such amounts that constitute Advances) and net of any
Nonrecoverable Advances then outstanding and reimbursable from
such principal collections and recoveries 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 aggregate principal collections 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
principal collections and recoveries on the Mortgage Loans for
such Collection Period contemplated by clause (I)(A) of the
definition of Principal Distribution Amount (but not including
any such amounts that constitute Advances, and prior to any
deduction for Workout-Delayed Reimbursement Amounts (and
Advance Interest thereon) that were reimbursed or paid during
the related Collection Period from principal collections on
the Mortgage Loans, as described by clause (II)(A) of the
definition of Principal Distribution Amount and pursuant to
subsection (iii) of Section 5.2(a)(II)), and then from other
collections (including interest) on the Mortgage Loans for
such Collection Period, and (b) if and to the extent that the
amount of such a Nonrecoverable Advance (and Advance Interest
thereon), together with all Nonrecoverable Advances (and
Advance Interest thereon) theretofore reimbursed
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during such Collection Period, would exceed such principal
collections and recoveries on the Mortgage Loans for such
Collection Period (and Advance Interest thereon), the Master
Servicer (and the 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.
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, 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
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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 the WestShore
Plaza Companion 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 XVIII, for which the Scheduled Payment due each month is due
on a Due Date (including any grace period) 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 XVIII. 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," the Scheduled Payments and
Principal Prepayments referred to in the preceding proviso shall be deemed to
have been collected in the prior Collection Period.
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(c) On each Master Servicer Remittance Date in March of
every year commencing in March 2004, 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 Minnesota, 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 2003-TOP12, 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 Minnesota, 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 2003-TOP12, 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 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 2003-TOP12 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.
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(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 (i) Excess Interest on the Mortgage Loans into the Excess
Interest Sub-account and (ii) Xxxxxxx Xxxx Yield Maintenance Amounts into the
Xxxxxxx Xxxx 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 2004, 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 Xxxxxxx Xxxx
Sub-account) and the Reserve Account only for the following purposes:
(i) to withdraw amounts deposited in the Distribution
Account in error and pay such amounts to the Persons entitled thereto;
(ii) to pay any amounts payable to the Master
Servicer, the Primary 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 (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 Section 6.5 and 6.11; and (iv) to clear and terminate the
Distribution 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 Monthly Additional Report on Recoveries and
Reimbursements, (v) the supplemental reports set forth in paragraph (b) of the
definition of Unrestricted Servicer Reports and (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.
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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 2003). 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 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 Agent's Website and assumes no responsibility therefor.
The Paying Agent shall be entitled to conclusively rely on any information
provided to it by the Master Servicer or the Special Servicer and shall have no
obligation to verify such information and the Paying Agent may disclaim
responsibility for any information distributed by the Paying Agent for which it
is not the original source. In connection with providing access to the Paying
Agent's Website, the Paying Agent, may require registration and the acceptance
of a disclaimer. None of the Master Servicer, the Special Servicer, any Primary
Servicer or the Paying Agent shall be liable for the dissemination of
information in accordance with this Agreement; provided that this sentence shall
not in any way limit the liability the Paying Agent may otherwise have in the
performance of its duties hereunder.
(b) Subject to Section 8.15, upon advance written request,
if required by federal regulation, of any Certificateholder (or holder of the
WestShore Plaza Companion Loan or a 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 the WestShore
Plaza Companion Loan or a 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 the WestShore Plaza Companion Loan
or a 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
the WestShore Plaza Companion Loan or a 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 the WestShore Plaza Companion
Loan shall be entitled to receive information and documentation only with
respect to the 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 xxxxx xxx be necessary or
desirable for such Holders to prepare their federal income tax returns.
(d) Reserved
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(e) The Paying Agent shall afford the Rating Agencies, 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, 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 the Loan Pair, the holder of the
WestShore Plaza Companion 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 or the Operating Adviser) of a sum sufficient
to cover the reasonable expenses actually incurred by the Paying Agent or the
Trustee of providing access or copies (including electronic or digital copies)
of any such information reasonably requested in accordance with the preceding
sentence.
SECTION 5.5 PAYING AGENT TAX REPORTS. The Paying Agent shall
perform all reporting and other tax compliance duties that are the
responsibility of each REMIC Pool and the 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, Class R-III or Class R-K Certificate,
to a Disqualified Organization or to an agent that has acquired a Class R-I,
Class R-II, Class R-III or Class R-K 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, Class R-III or Class R-K
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 as
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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.
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.
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SECTION 6.2 XXXXXXX XXXX LOAN REMIC.
(a) On each Distribution Date, the Paying Agent shall be
deemed to distribute to itself on behalf of the Trustee, as holder of the
Xxxxxxx Xxxx Loan REMIC Regular Interest, for the following purposes and in the
following order of priority:
(i) from the portion of the Available Distribution
Amount attributable to interest collected or deemed collected on or with respect
to the Xxxxxxx Xxxx Loan or related REO Property, Distributable Certificate
Interest to the Xxxxxxx Xxxx Loan REMIC Regular Interest;
(ii) from the portion of the Available Distribution
Amount attributable to principal collected or deemed collected on or with
respect to the Xxxxxxx Xxxx Loan or related REO Property, principal to the
Xxxxxxx Xxxx Loan REMIC Regular Interest, until the Certificate Balance thereof
is reduced to zero;
(iii) any remaining funds, to reimburse any Realized
Losses previously allocated to the Xxxxxxx Xxxx Loan REMIC Regular Interest,
plus interest on such Realized Losses previously allocated thereto, at the
applicable Pass-Through Rate; and
(iv) thereafter, to the Class R-K Certificateholders
with respect to the Xxxxxxx Xxxx Loan REMIC Residual Interest at such time as
the Certificate Balance of the Xxxxxxx Xxxx Loan REMIC Regular Interest has been
reduced to zero, and Realized Losses previously allocated thereto have been
reimbursed to the Holder of the Xxxxxxx Xxxx Loan REMIC Regular Interest, any
amounts remaining.
SECTION 6.3 REMIC I.
(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
I Regular Interests, for the following purposes and in the following order of
priority:
(i) from the portion of the Available Distribution
Amount attributable to interest collected or deemed collected on or with respect
to each Majority
Mortgage Loan or related REO Property and the Xxxxxxx Xxxx Loan REMIC Regular
Interest, Distributable Certificate Interest to each Corresponding REMIC I
Regular Interest;
(ii) from the portion of the Available Distribution
Amount attributable to principal collected or deemed collected on or with
respect to each Majority Mortgage Loan or related REO Property and the Xxxxxxx
Xxxx Loan REMIC Regular Interest, principal to the Corresponding REMIC I Regular
Interest, until the Certificate Balance thereof is reduced to zero;
(iii) any remaining funds, to reimburse any Realized
Losses previously allocated to the REMIC I Regular Interests, plus interest on
such Realized Losses previously allocated thereto, at the applicable
Pass-Through Rates; and
(iv) thereafter, to the Class R-I Certificateholders (in
respect of the REMIC I Residual Interest) at such time as the Certificate
Balance of all Classes of REMIC I
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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.
SECTION 6.4 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, for the following purposes and in the following order of
priority:
(i) an amount equal to Distributable Certificate
Interest for the Class A-1 Certificates, Class A-2 Certificates, Class A-3
Certificates, Class A-4 Certificates, Class X-1 Certificates and Class X-2
Certificates to REMIC II Regular Interest A-1A, REMIC II Regular Interest A-1B,
REMIC II Regular Interest A-1C, REMIC II Regular Interest A-1D, REMIC II Regular
Interest A-2A, REMIC II Regular Interest A-2B, REMIC II Regular Interest A-3A,
REMIC II Regular Interest A-3B, REMIC II Regular Interest A-3C, REMIC II Regular
Interest A-4A, REMIC II Regular Interest A-4B, REMIC II Regular Interest A-4C,
REMIC II Regular Interest B-1, REMIC II Regular Interest B-2, REMIC II Regular
Interest B-3, REMIC II Regular Interest C-1, REMIC II Regular Interest C-2,
REMIC II Regular Interest C-3, REMIC II Regular Interest D-1, REMIC II Regular
Interest D-2, REMIC II Regular Interest E-1, REMIC II Regular Interest E-2,
REMIC II Regular Interest F, REMIC II Regular Interest G, REMIC II Regular
Interest H-1, REMIC II Regular Interest H-2, REMIC II Regular Interest J, REMIC
II Regular Interest K, REMIC II Regular Interest L, REMIC II Regular Interest M,
REMIC II Regular Interest N and REMIC II Regular Interest O, divided among such
REMIC II Regular Interests in proportion to (A) in the case of the REMIC II
Regular Interest A-1A, REMIC II Regular Interest A-1B, REMIC II Regular Interest
A-1C, REMIC II Regular Interest A-1D, REMIC II Regular Interest A-2A, REMIC II
Regular Interest A-2B, REMIC II Regular Interest A-3A, REMIC II Regular Interest
A-3B, REMIC II Regular Interest A-3C, REMIC II Regular Interest A-4A, REMIC II
Regular Interest A-4B and REMIC II Regular Interest A-4C, the Accrued
Certificate Interest for such Distribution Date and (B) in the case of REMIC II
Regular Interest B-1, REMIC II Regular Interest B-2, REMIC II Regular Interest
B-3, REMIC II Regular Interest C-1, REMIC II Regular Interest C-2, REMIC II
Regular Interest C-3, REMIC II Regular Interest D-1, REMIC II Regular Interest
D-2, REMIC II Regular Interest E-1, REMIC II Regular Interest E-2, REMIC II
Regular Interest F, REMIC II Regular Interest G, REMIC II Regular Interest H-1,
REMIC II Regular Interest H-2, REMIC II Regular Interest J, REMIC II Regular
Interest K, REMIC II Regular Interest L, REMIC II Regular Interest M, REMIC II
Regular Interest N and REMIC II Regular Interest O, the product of (a) the
Certificate Balance of such Interest and (b) one-twelfth of the sum of the
related Class X-1 Strip Rate and the related Class X-2 Strip Rate (if any);
(ii) to REMIC II Regular Interest A-1A, REMIC II Regular
Interest A-1B, REMIC II Regular Interest A-1C, REMIC II Regular Interest A-1D,
REMIC II Regular Interest A-2A, REMIC II Regular Interest A-2B, REMIC II Regular
Interest A-3A, REMIC II Regular Interest A-3B, REMIC II Regular Interest A-3C,
REMIC II Regular Interest A-4A, REMIC II Regular Interest A-4B and REMIC II
Regular Interest A-4C, in reduction of the Certificate Balances thereof, in an
amount up to the Principal Distribution Amount for such Distribution Date: (A)
first, to the REMIC II Regular Interest A-1A until the Certificate Balance of
REMIC II Regular Interest A-1A is reduced to zero, and upon payment in full of
the Certificate Balance of the REMIC II Regular Interest A-1A, to the REMIC II
Regular Interest A-1B, the Principal Distribution Amount for such Distribution
Date (reduced by any portion thereof deemed to be distributed to the REMIC II
Regular Interest A-1A), until the Certificate Balance of the REMIC II Regular
Interest A-1B has been reduced to zero, and upon payment in full of the
Certificate Balance of the REMIC II Regular Interest A-1B, to the REMIC II
Regular Interest A-1C, the Principal Distribution Amount for such Distribution
Date (reduced by any portion thereof deemed to be distributed to the REMIC II
Regular Interest A-1A and A-1B), until the Certificate Balance of the REMIC II
Regular Interest A-1C has been reduced to zero, and upon payment in full of the
Certificate Balance of the REMIC II Regular Interest A-1C, to the REMIC II
Regular Interest A-1D, the Principal Distribution Amount for such Distribution
Date (reduced by any portion thereof deemed to be distributed to the REMIC II
Regular Interest A-1A, A-1B and A-1C), until the Certificate Balance of the
REMIC II Regular Interest A-1D has been reduced to zero; (B) second, to the
REMIC II Regular Interest A-2A, the Principal Distribution Amount for such
Distribution Date (reduced by any portion thereof
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deemed to be distributed to the REMIC II Regular Xxxxxxxx X-0X, X-0X, X-0X and
A-1D), until the Certificate Balance of the REMIC II Regular Interest A-2A has
been reduced to zero, and upon payment in full of the Certificate Balance of the
REMIC II Regular Interest A-2A, to the REMIC II Regular Interest A-2B, the
Principal Distribution Amount for such Distribution Date (reduced by any portion
thereof deemed to be distributed to the REMIC II Regular Xxxxxxxx X-0X, X-0X,
X-0X, X-0X and A-2A), until the Certificate Balance of the REMIC II Regular
Interest A-2B has been reduced to zero; (C) third, to the REMIC II Regular
Interest A-3A, the Principal Distribution Amount for such Distribution Date
(reduced by any portion thereof deemed to be distributed to the REMIC II Regular
Interest X-0X, X-0X, X-0X, X-0X, X-0X xxx X-0X), until the Certificate Balance
of the REMIC II Regular Interest A-3A has been reduced to zero, and upon payment
in full of the Certificate Balance of the REMIC II Regular Interest A-3A, to the
REMIC II Regular Interest A-3B, the Principal Distribution Amount for such
Distribution Date (reduced by any portion thereof deemed to be distributed to
the REMIC II Regular Xxxxxxxx X-0X, X-0X, X-0X, X-0X, X-0X, X-0X and A-3A),
until the Certificate Balance of the REMIC II Regular Interest A-3B has been
reduced to zero, and upon payment in full of the Certificate Balance of the
REMIC II Regular Interest A-3B, to the REMIC II Regular Interest A-3C, the
Principal Distribution Amount for such Distribution Date (reduced by any portion
thereof deemed to be distributed to the REMIC II Regular Interest X-0X, X-0X,
X-0X, X-0X, X-0X, X-0X, A-3A and A-3B), until the Certificate Balance of the
REMIC II Regular Interest A-3C has been reduced to zero; and (D) fourth, to the
REMIC II Regular Interest A-4A, the Principal Distribution Amount for such
Distribution Date (reduced by any portion thereof deemed to be distributed to
the REMIC II Regular Interest X-0X, X-0X, X-0X, X-0X, X-0X, X-0X, X-0X, X-0X and
A-3C), until the Certificate Balance of the REMIC II Regular Interest A-4A has
been reduced to zero, and upon payment in full of the Certificate Balance of the
REMIC II Regular Interest A-4A, to the REMIC II Regular Interest A-4B, the
Principal Distribution Amount for such Distribution Date (reduced by any portion
thereof deemed to be distributed to the REMIC II Regular Interest X-0X, X-0X,
X-0X, X-0X, X-0X, X-0X, X-0X, X-0X, X-0X and A-4A), until the Certificate
Balance of the REMIC II Regular Interest A-4B has been reduced to zero, and upon
payment in full of the Certificate Balance of the REMIC II Regular Interest
A-4B, to the REMIC II Regular Interest A-4C, the Principal Distribution Amount
for such Distribution Date (reduced by any portion thereof deemed to be
distributed to the REMIC II Regular Interest X-0X, X-0X, X-0X, X-0X, X-0X, X-0X,
X-0X, X-0X, A-3C, A-4A and A-4B), until the Certificate Balance of the REMIC II
Regular Interest A-4C has been reduced to zero;
(iii) to REMIC II Regular Interest A-1A, REMIC II
Regular Interest A-1B, REMIC II Regular Interest A-1C, REMIC II Regular Interest
A-1D, REMIC II Regular Interes
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A-2A, REMIC II Regular Interest A-2B, REMIC II Regular Interest A-3A, REMIC II
Regular Interest A-3B, REMIC II Regular Interest A-3C, REMIC II Regular Interest
A-4A, REMIC II Regular Interest A-4B, REMIC II Regular Interest A-4C, REMIC II
Regular Interest B-1, REMIC II Regular Interest B-2, REMIC II Regular Interest
B-3, REMIC II Regular Interest C-1, REMIC II Regular Interest C-2, REMIC II
Regular Interest C-3, REMIC II Regular Interest D-1, REMIC II Regular Interest
D-2, REMIC II Regular Interest E-1, REMIC II Regular Interest E-2, REMIC II
Regular Interest F, REMIC II Regular Interest G, REMIC II Regular Interest H-1,
REMIC II Regular Interest H-2, REMIC Regular Interest J, REMIC II Regular
Interest K, REMIC II Regular Interest L, REMIC II Regular Interest M, REMIC II
Regular Interest N and REMIC II Regular Interest O, pro rata on the basis of
their respective entitlements to reimbursement described in this clause (iii),
to reimburse any Realized Losses previously allocated to REMIC II Regular
Interest A-1A, REMIC II Regular Interest A-1B, REMIC II Regular Interest A-1C,
REMIC II Regular Interest A-1D, REMIC II Regular Interest A-2A, REMIC II Regular
Interest A-2B, REMIC II Regular Interest A-3A, REMIC II Regular Interest A-3B,
REMIC II Regular Interest A-3C, REMIC II Regular Interest A-4A, REMIC II Regular
Interest A-4B, REMIC II Regular Interest A-4C, REMIC II Regular Interest B-1,
REMIC II Regular Interest B-2, REMIC II Regular Interest B-3, REMIC II Regular
Interest C-1, REMIC II Regular Interest C-2, REMIC II Regular Interest C-3,
REMIC II Regular Interest D-1, REMIC II Regular Interest D-2, REMIC II Regular
Interest E-1, REMIC II Regular Interest E-2, REMIC II Regular Interest F, REMIC
II Regular Interest G, REMIC II Regular Interest H-1, REMIC II Regular Interest
H-2, REMIC Regular Interest J, REMIC II Regular Interest K, REMIC II Regular
Interest L, REMIC II Regular Interest M, REMIC II Regular Interest N and REMIC
II Regular Interest O, in the case of all such Interests other than the REMIC II
Regular Interest A-1A, REMIC II Regular Interest A-1B, REMIC II Regular Interest
A-1C, REMIC II Regular Interest A-1D, REMIC II Regular Interest A-2A, REMIC II
Regular Interest A-2B, REMIC II Regular Interest A-3A, REMIC II Regular Interest
A-3B, REMIC II Regular Interest A-3C, REMIC II Regular Interest A-4A, REMIC II
Regular Interest A-4B and REMIC II Regular Interest A-4C, as a result of the
allocation of Realized Losses to the Class X Certificates and in the case of all
such Interests, inclusive of accrued and unpaid interest at the applicable
Pass-Through Rate on such Realized Losses;
(iv) to the REMIC II Regular Interest B-1, REMIC II
Regular Interest B-2 and REMIC II Regular Interest B-3, the remainder of the
Distributable Certificate Interest for such Interest for such Distribution Date,
divided among such REMIC II Regular Interests in proportion to the Accrued
Certificate Interest for such Distribution Date, to the extent not distributed
pursuant to clause (i) above;
(v) upon payment in full of the Certificate Balance of
the REMIC II Regular Interest A-4C, to the REMIC II Regular Interest B-1, the
Principal Distribution Amount for such Distribution Date (reduced by any portion
thereof deemed to be distributed pursuant to the preceding provisions hereof),
until the Certificate Balance of the REMIC II Regular Interest B-1 has been
reduced to zero, and upon payment in full of the Certificate Balance of the
REMIC II Regular Interest B-1, to the REMIC II Regular Interest B-2, the
Principal Distribution Amount for such Distribution Date (reduced by any portion
thereof deemed to be distributed pursuant to the preceding provisions hereof),
until the Certificate Balance of the REMIC II Regular Interest B-2 has been
reduced to zero, and upon payment in full of the Certificate Balance of the
REMIC II Regular Interest B-2, to the REMIC II Regular Interest B-3, the
Principal Distribution Amount for such Distribution Date (reduced by any portion
thereof deemed to be distributed pursuant to
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the preceding provisions hereof), until the Certificate Balance of the REMIC II
Regular Interest B-3 has been reduced to zero;
(vi) to the REMIC II Regular Interest B-1, REMIC II
Regular Interest B-2 and REMIC II Regular Interest B-3, to reimburse any
unreimbursed Realized Losses previously allocated thereto, plus accrued and
unpaid interest at the applicable Pass-Through Rate on such Realized Losses, pro
rata on the basis of their respective entitlements to reimbursement;
(vii) to the REMIC II Regular Interest C-1, REMIC II
Regular Interest C-2 and REMIC II Regular Interest C-3, the remainder of the
Distributable Certificate Interest for such Interest for such Distribution Date,
divided among such REMIC II Regular Interests in proportion to the Accrued
Certificate Interest for such Distribution Date, to the extent not distributed
pursuant to clause (i) above;
(viii) upon payment in full of the Certificate Balance
of the REMIC II Regular Interest B-3, to the REMIC II Regular Interest C-1, the
Principal Distribution Amount for such Distribution Date (reduced by any portion
thereof deemed to be distributed pursuant to the preceding provisions hereof),
until the Certificate Balance of the REMIC II Regular Interest C-1 has been
reduced to zero, and upon payment in full of the Certificate Balance of the
REMIC II Regular Interest C-1, to the REMIC II Regular Interest C-2, the
Principal Distribution Amount for such Distribution Date (reduced by any portion
thereof deemed to be distributed pursuant to the preceding provisions hereof),
until the Certificate Balance of the REMIC II Regular Interest C-2 has been
reduced to zero, and upon payment in full of the Certificate Balance of the
REMIC II Regular Interest C-2, to the REMIC II Regular Interest C-3, the
Principal Distribution Amount for such Distribution Date (reduced by any portion
thereof deemed to be distributed pursuant to the preceding provisions hereof),
until the Certificate Balance of the REMIC II Regular Interest C-3 has been
reduced to zero;
(ix) to the REMIC II Regular Interest C-1, REMIC II
Regular Interest C-2 and REMIC II Regular Interest C-3, to reimburse any
unreimbursed Realized Losses previously allocated thereto, plus accrued and
unpaid interest at the applicable Pass-Through Rate on such Realized Losses, pro
rata on the basis of their respective entitlements to reimbursement;
(x) to the REMIC II Regular Interest D-1 and REMIC II
Regular Interest D-2, the remainder of the Distributable Certificate Interest
for such Interests for such Distribution Date, divided among such REMIC II
Regular Interests in proportion to the Accrued Certificate Interest for such
Distribution Date, to the extent not distributed pursuant to clause (i) above;
(xi) upon payment in full of the Certificate Balance
of the REMIC II Regular Interest C-3, to the REMIC II Regular Interest D-1, the
Principal Distribution Amount for such Distribution Date (reduced by any portion
thereof deemed to be distributed pursuant to the preceding provisions hereof),
until the Certificate Balance of the REMIC II Regular Interest D-1 has been
reduced to zero, and upon payment in full of the Certificate Balance of the
REMIC II Regular Interest D-1, to the REMIC II Regular Interest D-2, the
Principal Distribution Amount for such Distribution Date (reduced by any portion
thereof deemed to be distributed pursuant to
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the preceding provisions hereof), until the Certificate Balance of the REMIC II
Regular Interest D-2 has been reduced to zero;
(xii) to the REMIC II Regular Interest D-1 and
REMIC II Regular Interest D-2, to reimburse any unreimbursed Realized Losses
previously allocated thereto, plus accrued and unpaid interest at the applicable
Pass-Through Rate on such Realized Losses, pro rata on the basis of their
respective entitlements to reimbursement;
(xiii) to the REMIC II Regular Interest E-1 and
REMIC II Regular Interest E-2, the remainder of the Distributable Certificate
Interest for such Interests for such Distribution Date, divided among such REMIC
II Regular Interests in proportion to the Accrued Certificate Interest for such
Distribution Date, to the extent not distributed pursuant to clause (i) above;
(xiv) upon payment in full of the Certificate
Balance of the REMIC II Regular Interest D-2, to the REMIC II Regular Interest
E-1, the Principal Distribution Amount for such Distribution Date (reduced by
any portion thereof deemed to be distributed pursuant to the preceding
provisions hereof), until the Certificate Balance of the REMIC II Regular
Interest E-1 has been reduced to zero, and upon payment in full of the
Certificate Balance of the REMIC II Regular Interest E-1, to the REMIC II
Regular Interest E-2, the Principal Distribution Amount for such Distribution
Date (reduced by any portion thereof deemed to be distributed pursuant to the
preceding provisions hereof), until the Certificate Balance of the REMIC II
Regular Interest E-2 has been reduced to zero;
(xv) to the REMIC II Regular Interest E-1 and
REMIC II Regular Interest E-2, to reimburse any unreimbursed Realized Losses
previously allocated thereto, plus accrued and unpaid interest at the applicable
Pass-Through Rate on such Realized Losses, pro rata on the basis of their
respective entitlements to reimbursement;
(xvi) to the REMIC II Regular Interest F, the
remainder of the Distributable Certificate Interest for such Interests for such
Distribution Date, to the extent not distributed pursuant to clause (i) above;
(xvii) upon payment in full of the Certificate
Balance of the REMIC II Regular Interest E-2, to the REMIC II Regular Interest
F, the Principal Distribution Amount for such Distribution Date (reduced by any
portion thereof deemed to be distributed pursuant to the preceding provisions
hereof), until the Certificate Balance of the REMIC II Regular Interest F has
been reduced to zero;
(xviii) to the REMIC II Regular Interest F, to
reimburse any unreimbursed Realized Losses previously allocated thereto, plus
accrued and unpaid interest at the applicable Pass-Through Rate on such Realized
Losses;
(xix) to the REMIC II Regular Interest G, the
remainder of the Distributable Certificate Interest for such Interests for such
Distribution Date, to the extent not distributed pursuant to clause (i) above;
(xx) upon payment in full of the Certificate
Balance of the REMIC II Regular Interest F, to the REMIC II Regular Interest G,
the Principal Distribution Amount for
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such Distribution Date (reduced by any portion thereof deemed to be distributed
pursuant to the preceding provisions hereof), until the Certificate Balance of
the REMIC II Regular Interest G has been reduced to zero;
(xxi) to the REMIC II Regular Interest G, to
reimburse any unreimbursed Realized Losses previously allocated thereto, plus
accrued and unpaid interest at the applicable Pass-Through Rate on such Realized
Losses;
(xxii) to the REMIC II Regular Interest H-1 and
REMIC II Regular Interest H-2, the remainder of the Distributable Certificate
Interest for such Interests for such Distribution Date, divided among such REMIC
II Regular Interests in proportion to the Accrued Certificate Interest for such
Distribution Date, to the extent not distributed pursuant to clause (i) above;
(xxiii) upon payment in full of the Certificate Balance
of the REMIC II Regular Interest G, to the REMIC II Regular Interest H-1, the
Principal Distribution Amount for such Distribution Date (reduced by any portion
thereof deemed to be distributed pursuant to the preceding provisions hereof),
until the Certificate Balance of the REMIC II Regular Interest H-1 has been
reduced to zero, and upon payment in full of the Certificate Balance of the
REMIC II Regular Interest H-1, to the REMIC II Regular Interest H-2, the
Principal Distribution Amount for such Distribution Date (reduced by any portion
thereof deemed to be distributed pursuant to the preceding provisions hereof),
until the Certificate Balance of the REMIC II Regular Interest H-2 has been
reduced to zero;
(xxiv) to the REMIC II Regular Interest H-1 and
FREMIC II Regular Interest H-2, to reimburse any unreimbursed Realized Losses
previously allocated thereto, plus accrued and unpaid interest at the applicable
Pass-Through Rate on such Realized Losses, pro rata on the basis of their
respective entitlements to reimbursement;
(xxv) to the REMIC II Regular Interest J, the
remainder of the Distributable Certificate Interest for such Interest for such
Distribution Date to the extent not distributed pursuant to clause (i) above;
(xxvi) upon payment in full of the Certificate Balance
of the REMIC II Regular Interest H-2, to the REMIC II Regular Interest J, the
Principal Distribution Amount for such Distribution Date (reduced by any portion
thereof deemed to be distributed pursuant to the preceding provisions hereof),
until the Certificate Balance of the REMIC II Regular Interest J has been
reduced to zero;
(xxvii) to the REMIC II Regular Interest J, to
reimburse any unreimbursed Realized Losses previously allocated thereto, plus
accrued and unpaid interest at the applicable Pass-Through Rate on such Realized
Losses;
(xxviii) to the REMIC II Regular Interest K, the
remainder of the Distributable Certificate Interest for such Interest for such
Distribution Date, to the extent not distributed pursuant to clause (i) above;
(xxix) upon payment in full of the Certificate Balance
of the REMIC II Regular Interest J, to the REMIC II Regular Interest K, the
Principal Distribution Amount for
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such Distribution Date (reduced by any portion thereof deemed to be distributed
pursuant to the preceding provisions hereof), until the Certificate Balance of
the REMIC II Regular Interest K has been reduced to zero;
(xxx) to the REMIC II Regular Interest K, to
reimburse any unreimbursed Realized Losses previously allocated thereto, plus
accrued and unpaid interest at the applicable Pass-Through Rate on such Realized
Losses;
(xxxi) to the REMIC II Regular Interest L, the
remainder of the Distributable Certificate Interest for such Interest for such
Distribution Date to the extent not distributed pursuant to clause (i) above; (
xxxii) upon payment in full of the Certificate
Balance of the REMIC II Regular Interest K, to the REMIC II Regular Interest L,
the Principal Distribution Amount for such Distribution Date (reduced by any
portion thereof deemed to be distributed pursuant to the preceding provisions
hereof), until the Certificate Balance of the REMIC II Regular Interest L has
been reduced to zero;
(xxxiii) to the REMIC II Regular Interest L, to
reimburse any unreimbursed Realized Losses previously allocated thereto, plus
accrued and unpaid interest at the applicable Pass-Through Rate on such Realized
Losses;
(xxxiv) to the REMIC II Regular Interest M, the
remainder of the Distributable Certificate Interest for such Interest for such
Distribution Date to the extent not distributed pursuant to clause (i) above;
(xxxv) upon payment in full of the Certificate
Balance of the REMIC II Regular Interest L, to the REMIC II Regular Interest M,
the Principal Distribution Amount for such Distribution Date (reduced by any
portion thereof deemed to be distributed pursuant to the preceding provisions
hereof), until the Certificate Balance of the REMIC II Regular Interest M has
been reduced to zero;
(xxxvi) to the REMIC II Regular Interest M, to
reimburse any unreimbursed Realized Losses previously allocated thereto, plus
accrued and unpaid interest at the applicable Pass-Through Rate on such Realized
Losses;
(xxxvii) to the REMIC II Regular Interest N, the
remainder of the Distributable Certificate Interest for such Interest for such
Distribution Date to the extent not distributed pursuant to clause (i) above;
(xxxviii) upon payment in full of the Certificate
Balance of the REMIC II Regular Interest M, to the REMIC II Regular Interest N,
the Principal Distribution Amount for such Distribution Date (reduced by any
portion thereof deemed to be distributed pursuant to the preceding provisions
hereof), until the Certificate Balance of the REMIC II Regular Interest N has
been reduced to zero;
(xxxix) to the REMIC II Regular Interest N, to
reimburse any unreimbursed Realized Losses previously allocated thereto, plus
accrued and unpaid interest at the applicable Pass-Through Rate on such Realized
Losses;
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(xl) to the REMIC II Regular Interest O, the
remainder of the Distributable Certificate Interest for such Interest for such
Distribution Date to the extent not distributed pursuant to clause (i) above;
(xli) upon payment in full of the Certificate
Balance of the REMIC II Regular Interest N, to the REMIC II Regular Interest O,
the Principal Distribution Amount for such Distribution Date (reduced by any
portion thereof deemed to be distributed pursuant to the preceding provisions
hereof), until the Certificate Balance of the REMIC II Regular Interest O has
been reduced to zero;
(xlii) to the REMIC II Regular Interest O, to
reimburse any unreimbursed Realized Losses previously allocated thereto, plus
accrued and unpaid interest at the applicable Pass-Through Rate on such Realized
Losses;
(xliii) thereafter, to the Class R-II
Certificateholders at such time as the Certificate Balances of all Classes of
REMIC II Regular Interests have been reduced to zero, and Realized Losses
previously allocated thereto have been reimbursed to the Holders of the REMIC II
Regular Interests, any amounts remaining.
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:
(i) to the Holders of the Class A-1 Certificates,
Class A-2 Certificates, Class A-3 Certificates, Class A-4 Certificates, Class
X-1 Certificates and Class X-2 Certificates, Distributable Certificate Interest
for such Distribution Date, pro rata in proportion to the Distributable
Certificate Interest payable to each such Class;
(ii) to the Holders of the Class A-1, Class A-2,
Class A-3 and Class A-4 Certificates, in reduction of the Certificate Balances
thereof, in an amount up to the Principal Distribution Amount for such
Distribution Date: first, to the Holders of the Class A-1 Certificates, the
Principal Distribution Amount for such Distribution Date 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 and fourth, upon payment in full
of the aggregate Certificate Balance of the Class A-3 Certificates, to the
holders of the Class A-4 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-4 Certificates has been
reduced to zero;
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(iii) to the Holders of the Class A Certificates,
Class X-1 Certificates and Class X-2 Certificates, pro rata (treating principal
and interest losses separately), 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;
(iv) to the Holders of the Class B Certificates,
Distributable Certificate Interest for such Distribution Date;
(v) upon payment in full of the Certificate Balance
of the Class A-4 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;
(vi) 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;
(vii) to the Holders of the Class C Certificates,
Distributable Certificate Interest for such Distribution Date;
(viii) 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;
(ix) 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;
(x) to the Holders of the Class D Certificates,
Distributable Certificate Interest for such Distribution Date;
(xi) 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;
(xii) 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; (
xiii) to the Holders of the Class E Certificates,
Distributable Certificate Interest for such Distribution Date;
(xiv) 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;
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(xv) 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;
(xvi) to the Holders of the Class F Certificates,
Distributable Certificate Interest for such Distribution Date;
(xvii) 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;
(xviii) 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;
(xix) to the Holders of the Class G Certificates,
Distributable Certificate Interest for such Distribution Date;
(xx) 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;
(xxi) 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;
(xxii) to the Holders of the Class H Certificates,
Distributable Certificate Interest for such Distribution Date;
(xxiii) 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;
(xxiv) 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;
(xxv) to the Holders of the Class J Certificates,
Distributable Certificate Interest for such Distribution Date;
(xxvi) 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;
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(xxvii) 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;
(xxviii) to the Holders of the Class K Certificates,
Distributable Certificate Interest for such Distribution Date;
(xxix) 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;
(xxx) 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;
(xxxi) to the Holders of the Class L Certificates,
Distributable Certificate Interest for such Distribution Date;
(xxxii 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;
(xxxiii) 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;
(xxxiv) to the Holders of the Class M Certificates,
Distributable Certificate Interest for such Distribution Date;
(xxxv) 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;
(xxxvi) 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;
(xxxvii) to the Holders of the Class
N Certificates, Distributable Certificate Interest for such Distribution Date;
(xxxviii) 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;
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(xxxix) 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;
(xl) to the Holders of the Class O Certificates,
Distributable Certificate Interest for such Distribution Date;
(xli) 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;
(xlii) 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; and
(xliii) 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 on deposit in the Distribution Account.
Notwithstanding the foregoing, on each Distribution Date
occurring on or after the earliest date, if any, upon which the Certificate
Balances of all the Classes of Subordinate Certificates have been reduced to
zero or the aggregate Appraisal Reduction in effect is greater than or equal to
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 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; and, second, to the Holders of the Class A-1, Class A-2, Class
A-3 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. A
similar rule shall apply to the distribution of the Principal Distribution
Amount to REMIC II Regular Interests X-0X, X-0X, X-0X, X-0X, X-0X, X-0X, X-0X,
X-0X, A-3C, A-4A, A-4B and A-4C, in lieu of the distributions described in
Section 6.3(a)(ii).
(b) 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.
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This Section 6.5(b) shall apply mutatis mutandis to
reimbursement of Realized Losses previously allocated to the REMIC II Regular
Interests.
SECTION 6.5A GRANTOR TRUST.
(a) 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 O Certificates (even if the Certificate Balance
of the Class O Certificates has been reduced to zero for any reason).
(b) On each Distribution Date, the Paying Agent shall
withdraw from the Xxxxxxx Xxxx Sub-account any Xxxxxxx Xxxx Yield Maintenance
Amounts on deposit therein, and the Paying Agent shall pay such Xxxxxxx Xxxx
Yield Maintenance Amounts on such Distribution Date to the Class A-1, Class X-1
and Class X-2 Certificates as provided in Section 6.11.
SECTION 6.6 ALLOCATION OF REALIZED LOSSES, EXPENSE LOSSES
AND SHORTFALLS DUE TO NONRECOVERABILITY.
(a) REMIC I. On each Distribution Date, except as provided
in subsection (b) below,
(i) Realized Principal Losses on each Mortgage
Loan realized during the related Collection Period shall reduce the Certificate
Balance of the Corresponding REMIC I Regular Interest;
(ii) Realized Interest Losses on each Mortgage Loan
shall be allocated to reduce first, Distributable Certificate Interest for such
Distribution Date, and then Unpaid Interest in each case owing on the
Corresponding REMIC I Regular 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.
(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), 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:
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(i) the amount withdrawn from the Certificate
Account shall be treated as Realized Principal Losses up to the amount of the
aggregate principal collections and recoveries on the Mortgage Loans for such
Collection Period contemplated by clause (I)(A) of the definition of Principal
Distribution Amount, 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 principal collections and recoveries on the Mortgage Loans for such
Collection Period, then such additional amounts shall constitute Unpaid
Interest, and shall be allocated to the REMIC I Regular Interests on a pro rata
basis based upon the amount of accrued and unpaid interest thereon.
(c) At such time as a Final Recovery Determination is made
with respect to any Mortgage Loan with respect to which the Master Servicer
previously had withdrawn amounts from the Certificate Account following a
determination that Advances previously made were Nonrecoverable Advances and
Realized Losses were computed and allocated pursuant to clauses (a) and (b)
above, and amounts are recovered:
(i) the portion of the amount of collections
recovered on the Mortgage Loan that is identified and applied by the Master
Servicer as recoveries of principal shall be applied first, to make payments of
principal on the Corresponding REMIC I Regular Interest up to an amount equal to
the Realized Principal Losses previously allocated thereto as a result of the
reimbursement of Nonrecoverable Advances or Advance Interest (and the Principal
Balance of the Mortgage Loan and the related Certificate Balance of the
Corresponding REMIC I Regular Interest shall be correspondingly increased), and
thereafter to make payments of principal to the Corresponding REMIC I Regular
Interests with respect to which principal distributions were reduced pursuant to
Section 6.6(b)(i) above, in proportion to the amount of such reductions; and
(ii) the portion of the amount recovered on the
Mortgage Loan that is identified and applied by the Master Servicer as
recoveries of interest shall be applied to make payments of Unpaid Interest on
the REMIC I Regular Interests with respect to which Unpaid Interest was
allocated pursuant to Section 6.6(b)(ii).
(d) REMIC II. On each Distribution Date, all Realized Losses
on the REMIC I Interests 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
will be allocated to the REMIC Regular Certificates relating thereto pursuant to
Section 6.6(f); provided, however, that Realized Losses allocated to REMIC II
Regular Interests that have Components shall be allocated among the Components
of such REMIC II Regular Interests sequentially in alphabetical and numerical
order. Realized Losses allocated to the Class X Certificates shall reduce the
amount of interest payable on the REMIC II Regular Interest A-1A, REMIC II
Regular Interest A-1B, REMIC II Regular Interest A-1C,
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REMIC II Regular Interest A-1D, REMIC II Regular Interest A-2A, REMIC II Regular
Interest A-2B, REMIC II Regular Interest A-3A, REMIC II Regular Interest A-3B,
REMIC II Regular Interest A-3C, REMIC II Regular Interest A-4A, REMIC II Regular
Interest A-4B, REMIC II Regular Interest A-4C, REMIC II Regular Interest B-1,
REMIC II Regular Interest B-2, REMIC II Regular Interest B-3, REMIC II Regular
Interest C-1, REMIC II Regular Interest C-2, REMIC II Regular Interest C-3,
REMIC II Regular Interest D-1, REMIC II Regular Interest D-2, REMIC II Regular
Interest E-1, REMIC II Regular Interest E-2, REMIC II Regular Interest F, REMIC
II Regular Interest G, REMIC II Regular Interest H-1, REMIC II Regular Interest
H-2, REMIC Regular Interest J, REMIC II Regular Interest K, REMIC II Regular
Interest L, REMIC II Regular Interest M, REMIC II Regular Interest N and REMIC
II Regular Interest O, which reduction shall be allocated pro rata based on the
product of the Certificate Balance of such REMIC II Regular Interest and the sum
of the Class X-1 Strip Rate and the Class X-2 Strip Rate (if any) applicable to
the Class of 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 for such Distribution Date (or for
prior Distribution Dates, to the extent not previously allocated) shall be
allocated to the REMIC Regular 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 Principal Balance
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-4
Certificates, Class X-1 Certificates and Class X-2 Certificates, pro rata, based
upon their outstanding Certificate Balances or accrued interest, as the case may
be, and provided further, that Realized Losses shall not reduce the Aggregate
Certificate Balance of the REMIC III Certificates below the sum of the Aggregate
Certificate Balances of the REMIC II Regular Interests.
SECTION 6.7 NET AGGREGATE PREPAYMENT INTEREST Shortfalls.
On each Distribution Date, Net Aggregate Prepayment Interest Shortfalls
attributable to the Xxxxxxx Xxxx Loan, shall be allocated to the Xxxxxxx Xxxx
Loan REMIC Regular Interest for such Distribution Date and shall reduce
Distributable Certificate Interest for such Interest. On each Distribution Date,
any Net Aggregate Prepayment Interest Shortfalls in REMIC I shall be allocated
among the REMIC I Regular Interests, pro rata in proportion to the Accrued
Certificate Interest for each such REMIC I Regular Interest for such
Distribution Date and shall reduce Distributable Certificate Interest for each
such Interest. On each Distribution Date, any Net Aggregate Prepayment Interest
Shortfalls in REMIC II shall be allocated among the REMIC II Regular Interests,
pro rata in proportion to the Accrued Certificate Interest for each such REMIC
II Regular Interest for such Distribution Date and shall reduce Distributable
Certificate Interest for each such Interest. 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, 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 the
WestShore Plaza Companion Loan or a B Note shall be allocated to any Class of
Certificates.
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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 or
Loan Pair, if the Principal Balance of such Mortgage Loan or Loan Pair 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 or Loan Pair 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
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. ss. 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, 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 4.6 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, the B Note and the 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. 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
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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.
SECTION 6.11 PREPAYMENT PREMIUMS. Any Prepayment Premium
collected with respect to a Mortgage Loan (but not a B Note or the WestShore
Plaza Companion Loan, which Prepayment Premium is payable to the holder of the
related B Note or the holder of the WestShore Plaza Companion 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 Xxxxxxx Xxxx Loan REMIC Regular Interest any
Prepayment Premiums collected on or with respect to the Xxxxxxx Xxxx Loan; (ii)
second, the Paying Agent shall be deemed to distribute to the Trustee, as holder
of the REMIC I Regular Interest to which such Majority Mortgage Loan or Xxxxxxx
Xxxx Loan REMIC Regular Interest relates, any Prepayment Premiums collected on
or with respect to such Majority Mortgage Loan or Xxxxxxx Xxxx Loan REMIC
Regular Interest; and (iii) third, 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 or the deposit
of Xxxxxxx Xxxx Yield Maintenance Amounts into the Xxxxxxx Xxxx Sub-account
pursuant to Section 5.2(a)(I)(xi), the Holders of the respective Classes of
Principal Balance Certificates, other than the Class H, Class J, Class K, Class
L, Class M, Class N and Class O 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 (or in the
case of any Xxxxxxx Xxxx Yield Maintenance Amounts, only to the Holders of the
Class A-1 Certificates), 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 on that Distribution
Date, (b) the Base Interest Fraction for the related Principal Prepayment and
that Class of Certificates and (c) the aggregate amount of Prepayment Premiums
(or Xxxxxxx Xxxx Yield Maintenance Amounts, if applicable) collected during the
related Collection Period. Any portion of such Prepayment Premium (or Xxxxxxx
Xxxx Yield Maintenance Amounts, if applicable) that is not so distributed to the
Holders of such Principal Balance Certificates will be distributed to the
Holders of the Class X Certificates. On any Distribution Date on or before the
Distribution Date in October 2007, 70% of the Prepayment Premium (or Xxxxxxx
Xxxx Yield Maintenance Amounts, if applicable) that is not so distributed to the
Holders of such Principal Balance Certificates will be distributed to the
Holders of the Class X-1 Certificates and 30% of the Prepayment Premium (or
Xxxxxxx Xxxx Yield Maintenance Amounts, if applicable) that is not so
distributed to the Holders of such Principal Balance Certificates will be
distributed to the Holders of the Class X-2
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Certificates. After the Distribution Date in October 2007, 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-1
Certificates. The Trustee shall not be responsible for the Paying Agent's
failure to comply with any withholding requirements.
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 other Person to it
pursuant to this Agreement. If any such instrument is found on its face not to
conform to the requirements of this Agreement, the Trustee or the Paying Agent
shall request the providing party to correct the instrument and if not so
corrected, the Trustee shall inform the Certificateholders.
(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
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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
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
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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;
(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;
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(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 if such taxes arise out of a breach by the Trustee of its
obligations hereunder, which breach constitutes negligence or willful misconduct
of the Trustee.
(e) The Paying Agent shall timely pay, from its own funds,
the amount of any and all federal, state and local taxes imposed on the Trust or
its assets or transactions including, without limitation, (A) "prohibited
transaction" penalty taxes as defined in Section 860F of the Code, if, when and
as the same shall be due and payable, (B) any tax on contributions to a REMIC
after the Closing Date imposed by Section 860G(d) of the Code and (C) any tax on
"net income from foreclosure property" as defined in Section 860G(c) of the
Code, but only if such taxes arise out of a breach by the Paying Agent of its
obligations hereunder, which breach constitutes negligence or willful misconduct
of the Paying Agent.
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
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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-- 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 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
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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 "Aa3" by Xxxxx'x
and "AA-" by Fitch (or "A+" by Fitch if the Fiscal Agent's short-term unsecured
debt is rated at least "F-1" by Fitch), the Fiscal Agent also has a short-term
rating of at least "F-1+" by Fitch), then the Trustee must be rated not less
than "A3" by Xxxxx'x and "A-" by Fitch, 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 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 "A2" by Xxxxx'x and "A" by Fitch, 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
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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 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.
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(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 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.
(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
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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 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.
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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 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
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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.
(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
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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 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
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(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 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.
(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
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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 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
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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, 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 a Primary
Servicer arising after the termination of the Master Servicer from their
servicing rights and obligations under the applicable Primary Servicing
Agreement. In the Trustee's capacity as such successor, the Trustee shall have
the same limitations on liability granted to the Master Servicer in this
Agreement. As compensation therefor, the Trustee shall be entitled to receive
all the compensation payable to the Master Servicer set forth in this Agreement,
including, without limitation, the Master Servicing Fee.
(b) Notwithstanding the above, the Trustee (A) may, if the
Trustee is unwilling to so act, or (B) shall, if it is unable to so act,
appoint, or petition a court of competent jurisdiction to appoint any
established commercial or multifamily mortgage finance institution, servicer or
special servicer or mortgage servicing institution having a net worth of not
less than $15,000,000, meeting such other standards for a successor servicer as
are set forth in this Agreement and with respect to which Rating Agency
Confirmation is obtained, as the successor to 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
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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 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
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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 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;
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(ii) the execution and delivery by the Trustee of
this Agreement have been duly authorized by all necessary action on the part of
the Trustee; neither the execution and delivery of this Agreement, nor the
consummation of the transactions contemplated in this Agreement, nor compliance
with the provisions of this Agreement, will conflict with or result in a breach
of, or constitute a default under, (i) any of the provisions of any law,
governmental rule, regulation, judgment, decree or order binding on the Trustee
or its properties that would materially and adversely affect the Trustee's
ability to perform its obligations under this Agreement, (ii) the organizational
documents of the Trustee, or (iii) the terms of any material agreement or
instrument to which the Trustee is a party or by which it is bound; the Trustee
is not in default with respect to any order or decree of any court or any order,
regulation or demand of any federal, state, municipal or other governmental
agency, which default would materially and adversely affect its performance
under this Agreement;
(iii) the execution, delivery and performance by the
Trustee of this Agreement and the consummation of the transactions contemplated
by this Agreement do not require the consent, approval, authorization or order
of, the giving of notice to or the registration with any state, federal or other
governmental authority or agency, except such as has been or will be obtained,
given, effected or taken in order for the Trustee to perform its obligations
under this Agreement;
(iv) this Agreement has been duly executed and
delivered by the Trustee and, assuming due authorization, execution and delivery
by the other parties hereto, constitutes a valid and binding obligation of the
Trustee, enforceable against the Trustee in accordance with its terms, subject,
as to enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium and other similar laws affecting creditors' rights
generally as from time to time in effect, and to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law); and
(v) no litigation is pending or, to the Trustee's
knowledge, threatened, against the Trustee that, either in one instance or in
the aggregate, would draw into question the validity of this Agreement, or which
would be likely to impair materially the ability of the Trustee to perform under
the terms of this Agreement.
(b) The 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
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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 Fisca
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:
(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;
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(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 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 "Baa1" as rated by Xxxxx'x, if rated by Xxxxx'x and "A"
as rated by Fitch, if rated by Fitch, 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
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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;
(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.
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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 and the Loan Pair, for
the benefit of the holder of the related B Note and the WestShore Plaza
Companion Loan, the Master Servicer shall service and administer the Mortgage
Loans, any B Note and the WestShore Plaza Companion 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 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 the WestShore Plaza Companion 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 the WestShore Plaza Companion 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 Loan or the
Loan Pair, the Certificateholders and the holder of the related B Note and the
WestShore Plaza Companion 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, each Seller and, in the case of an A/B Mortgage Loan, the holder of the
related B Note and, in the case of the Loan Pair, the holder of the WestShore
Plaza Companion 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 applicable Primary Servicer shall notify the Special
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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).
SECTION 8.2 FIDELITY BOND AND ERRORS AND OMISSIONS
INSURANCE POLICY MAINTAINED BY THE MASTER SERVICER. The Master Servicer, at its
expense, shall maintain in effect a Servicer Fidelity Bond and a Servicer Errors
and Omissions Insurance Policy. The Servicer Errors and Omissions Insurance
Policy and Servicer Fidelity Bond shall be issued by a Qualified Insurer (unless
the Master Servicer self insures as provided below) and be in form and amount
consistent with the Servicing Standard. In the event that any such Servicer
Errors and Omissions Insurance Policy or Servicer Fidelity Bond ceases to be in
effect, the Master Servicer shall obtain a comparable replacement policy or bond
from an insurer or issuer meeting the requirements set forth above as of the
date of such replacement. So long as the long-term rating of the Master Servicer
is not in any event less than "Baa1" as rated by Xxxxx'x and "A" as rated by
Fitch, 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 the 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 the Loan Pair, the holder of the WestShore Plaza Companion 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
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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 the
WestShore Plaza Companion 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, the WestShore Plaza
Companion 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 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 the WestShore Plaza
Companion 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 (including any Xxxxxxx Xxxx Yield Maintenance
Amounts) 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
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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 any Primary Servicer any additional powers of attorney and other
documents necessary or appropriate to enable the Master Servicer and the Special
Servicer to service and administer the Mortgage Loans including, without
limitation, documents relating to the management, operation, maintenance,
repair, leasing or marketing of the Mortgaged Properties. The Master Servicer
shall indemnify the Trustee for any costs, liabilities and expenses (including
attorneys' fees) incurred by the Trustee in connection with the intentional or
negligent misuse of such power of attorney by the Master Servicer.
Notwithstanding anything contained herein to the contrary, neither the Master
Servicer nor the Special Servicer shall without the Trustee's written consent:
(i) initiate any action, suit or proceeding 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 any 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
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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
relating to Escrow Amounts, but only from amounts received with respect to the
related Mortgage Loan which represent late collections of Escrow Amounts
thereunder;
(iii) for application to the restoration or repair of
the related Mortgaged Property in accordance with the related Mortgage Loan and
the Servicing Standard;
(iv) to clear and terminate such Escrow Account upon
the termination of this Agreement or pay-off of the related Mortgage Loan;
(v) to pay from time to time to the related
Mortgagor any interest or investment income earned on funds deposited in the
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
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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.
(f) The relationship of each of the Master Servicer and the
Special Servicer to the Trustee and the Paying Agent and to each other under
this Agreement is intended by the parties to be that of an independent
contractor and not of a joint venturer, partner or agent.
(g) With respect to each Mortgage Loan, if required by the
terms of the related Mortgage Loan, any Lock-Box Agreement or similar agreement,
the Master Servicer shall establish and maintain, in accordance with the
Servicing Standard, one or more lock-box, cash management or similar accounts
("Lock-Box Accounts") to be held outside the Trust and maintained by the Master
Servicer in accordance with the terms of the related Mortgage. No Lock-Box
Account is required to be an Eligible Account, unless otherwise required
pursuant to the related Mortgage Loan documents. The Master Servicer shall apply
the funds deposited in such accounts in accordance with terms of the related
Mortgage Loan documents, any Lock-Box Agreement and in accordance with the
Servicing Standard.
(h) The Master Servicer or any Primary Servicer on its
behalf shall process all defeasances of Mortgage Loans in accordance with the
terms of the Mortgage Loan documents, and shall be entitled to any fees paid
relating thereto. The Master Servicer shall not permit defeasance (or partial
defeasance if permitted under the Mortgage Loan) of any Mortgage Loan on or
before the second anniversary of the Closing Date unless such defeasance will
not result in an Adverse REMIC Event and the Master Servicer has received an
opinion of counsel to such effect and all items in the following sentence have
been satisfied. Subsequent to the second anniversary of the Closing Date, the
Master Servicer, in connection with the defeasance of a Mortgage Loan shall
require (to the extent it is not inconsistent with the Servicing Standard) that:
(i) the defeasance collateral consists of U.S. Treasury obligations, (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
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stating that payments made on such Defeasance Collateral in accordance with the
terms thereof will be sufficient to pay the subject Mortgage Loan (or the
defeased portion thereof in connection with a partial defeasance) in full on or
before its Maturity Date (or, in the case of the ARD Loan, on or before its
Anticipated Repayment Date) and to timely pay each subsequent Scheduled Payment,
(v) (A) 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, unless such Rating Agency has waived in writing such Rating
Agency Confirmation requirement or (B) if the Mortgage Loan is less than or
equal to both of the amounts set forth in clause (A), either a Notice and
Certification in the form attached hereto as Exhibit Z or a Rating Agency
Confirmation is received from Fitch 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. 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
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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 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 the Loan Pair Intercreditor Agreement, the
owner of the WestShore Plaza Companion Loan has agreed that the Master Servicer
and the Special Servicer are authorized and obligated to service and administer
the WestShore Plaza Companion Loan pursuant to this Agreement. The Master
Servicer, the Special Servicer, the Trustee and the Fiscal Agent are authorized
and directed to execute and deliver to the holder of the WestShore Plaza
Companion 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 WestShore Plaza Companion Loan, and references herein to
the Loan Pair Intercreditor Agreement shall be construed to refer to such Loan
Pair Intercreditor Agreement and such letter agreement taken together. 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 each of the Primary Servicers pursuant to the
applicable Primary Servicing Agreements; and (B) agree: (1) in addition to those
obligations specifically delegated by the Master Servicer to each Primary
Servicer under the applicable Primary Servicing Agreement, each 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
each Primary Servicer under the applicable 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 each 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 each 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 each 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 any 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 the WestShore Plaza Companion Loan and the holder of any B Note for
servicing and administering of the Mortgage Loans and the WestShore Plaza
Companion 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 WestShore Plaza Companion Loan. The Master Servicer or
applicable Primary Servicer shall supervise, administer, monitor, enforce and
oversee the servicing of the applicable Mortgage Loans by any Sub-Servicer
appointed by it. The terms of any arrangement or agreement between the Master
Servicer or applicable 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 applicable Primary Servicer is terminated in accordance with this
Agreement or the applicable Primary Servicing Agreement. In addition, none of
the Trustee, the Paying Agent, the Certificateholders, the holder of the
WestShore Plaza Companion 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 applicable
Primary Servicer shall pay the costs of enforcement against any of its
Sub-Servicers at its own expense, but shall be reimbursed therefor only (i) from
a general recovery resulting from such enforcement only to the extent that such
recovery exceeds all amounts due in respect of the related Mortgage Loans or
(ii) from a specific recovery of costs, expenses or attorneys fees against the
party against whom such enforcement is directed. Notwithstanding the provisions
of any primary servicing agreement or sub-servicing agreement, any of the
provisions of this Agreement relating to agreements or arrangements between the
Master Servicer or applicable Primary Servicer or a Sub-Servicer, or reference
to actions taken through a Sub-Servicer or otherwise, the Master Servicer or
applicable Primary Servicer shall remain obligated and liable to the Trustee,
the Paying Agent, the Special Servicer and the Certificateholders for the
servicing and administering of the applicable Mortgage Loans and the WestShore
Plaza Companion Loan in accordance with (and subject to the limitations
contained within) the provisions of this Agreement or the applicable Primary
Servicing Agreement without diminution of such
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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 applicable Primary Servicer alone were servicing and administering
the Mortgage Loans.
(b) Subject to the limitations of subsection (a), the Master
Servicer and either 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 a Primary
Servicer's discretion as a "lender" under any loan document with respect to a
Mortgage Loan shall be exercised only by the Primary Servicer and may not be
delegated to a Sub-Servicer.
The Master Servicer shall enter into the Primary Servicing
Agreements with each of the Primary Servicers and shall not terminate such
agreements except in accordance with the terms thereof. To the extent consistent
with the rights of the Primary Servicers under this Agreement and the related
Primary Servicing Agreement, but not in limitation of any other rights granted
to the Primary Servicers in this Agreement and/or in each of the Primary
Servicing Agreements, the Primary Servicers shall have all of the rights and
obligations of a Sub-Servicer set forth herein.
Notwithstanding any other provision set forth in this
Agreement to the contrary, (i) each Primary Servicer's rights and obligations
under its respective Primary Servicing Agreement shall expressly survive a
termination of the Master Servicer's servicing rights under this Agreement;
provided that the applicable 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 each of the then current Primary Servicing Agreements 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 a Primary Servicer hereunder and/or under the applicable Primary
Servicing Agreement, without the prior written consent of such Primary Servicer
(which consent shall not be unreasonably withheld).
If a task, right or obligation of Master Servicer is delegated
to a Primary Servicer under a Primary Servicing Agreement, and such task, right
or obligation involves or requires the consent of the Special Servicer, then the
Special Servicer shall accept the performance of such task, right or obligation
by such Primary Servicer in accordance with the terms of this Agreement
(including without limitation any time periods for consent or deemed consent to
be observed by the Special Servicer) as if 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 any Primary Servicing Agreement, nor is it bound by any provision of
any Primary Servicing Agreement. The Special Servicer hereby acknowledges the
delegation of rights and duties hereunder by the Master Servicer pursuant to the
provisions of any Primary Servicing Agreement.
SECTION 8.5 SERVICERS MAY OWN CERTIFICATES. The Master
Servicer and any 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
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would have if it were not the Master Servicer or such agent. Any such interest
of the Master Servicer or any Primary Servicer or such agent in the Certificates
shall not be taken into account when evaluating whether actions of the Master
Servicer are consistent with its obligations in accordance with the Servicing
Standard regardless of whether such actions may have the effect of benefiting
the Class or Classes of Certificates owned by the Master Servicer.
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, 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,
any related B Note or the WestShore Plaza Companion 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 to be maintained such insurance with a Qualified Insurer. The Master
Servicer shall be deemed to have satisfied its Servicing Standard 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, 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 (subject to the last 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 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 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, the WestShore Plaza Companion Loan and any B Note serviced by
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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 "A2" by Xxxxx'x
and "A" by Fitch, 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, the WestShore Plaza Companion Loan and any B Note, the
Master Servicer agrees to present, on its behalf and on behalf of the Trustee
and the holders of the WestShore Plaza Companion 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 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.
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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,
the WestShore Plaza Companion Loan or any B Note (other than a Specially
Serviced Mortgage Loan) that expressly permits, subject to any conditions set
forth in the Mortgage Loan documents, the assignment of the related Mortgaged
Property to, and assumption of such Mortgage Loan, the WestShore Plaza Companion
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, the WestShore Plaza Companion
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 each Primary Servicing Agreement. If the Special Servicer
withholds consent pursuant to the provisions of this Agreement, it shall provide
the Master Servicer or any applicable Primary Servicer with a written statement
and a verbal explanation as to its reasoning and analysis. 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, the WestShore Plaza Companion Loan or B Note from liability
under the related Mortgage Loan, the WestShore Plaza Companion Loan or the
related 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
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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, B Note or the WestShore Plaza Companion 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 Servicers with respect to Post Closing Requests (as
defined in the Primary Servicing Agreement) pursuant to Section 8.4 of this
Agreement. The Primary Servicing Agreements classify certain Post Closing
Requests as Category 1 Requests (as defined in the Primary Servicing Agreement),
in which each Primary Servicer has certain authority to evaluate and process
such requests in accordance with this Agreement, the applicable 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 Agreements provide 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 Agreements upon a determination of materiality. The Special
Servicer acknowledges such provisions. Nothing in this Agreement, however, shall
grant the Primary Servicers greater authority, discretion or delegated rights
over Post Closing Requests than are set forth in the Primary Servicing
Agreements.
Neither the Master Servicer nor the Special Servicer shall
have any liability, and shall be indemnified by the Trust for any liability to
the Mortgagor or the proposed assignee, for any delay in responding to requests
for assumption, if the same shall occur as a result of the failure of the Rating
Agencies, or any of them, to respond to such request in a reasonable period of
time.
(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 contains a provision in the nature of a
"due-on-sale" clause, which by its terms (i) provides that such Mortgage Loan
shall (or may at the mortgagee's option) become due and payable upon the sale or
other transfer of an interest in the related Mortgaged Property or ownership
interest in the related Mortgagor, or (ii) provides that such Mortgage Loan may
not be assumed, or ownership interests in the related Mortgagor may not be
transferred, without the consent of the related mortgagee in connection with any
such sale or other transfer, then, the Master Servicer 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
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the same manner as in Section 8.7(a); provided, however, that if the Principal
Balance of such Mortgage Loan (together with any other Mortgage Loan with which
it is cross-collateralized) at such time equals or exceeds 5% of the Aggregate
Certificate Balance or exceeds $35,000,000 or is one of the then current top 10
loans (by Principal Balance) in the pool, then prior to waiving the effect of
such provision, the Master Servicer shall obtain Rating Agency Confirmation
(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 consent, the Master
Servicer shall prepare and deliver to Xxxxx'x and Fitch a memorandum outlining
its analysis and recommendation in accordance with the Servicing Standard,
together with copies of all relevant documentation. The Master Servicer shall
promptly forward copies of the assignment and assumption documents relating to
any Mortgage Loan to the Special Servicer, the Paying Agent and the Trustee, and
the Master Servicer shall promptly thereafter forward such documents to the
Rating Agencies. The Special Servicer and the Master Servicer shall each be
entitled to (as additional compensation) 50% of any fee collected from a
Mortgagor in connection with the granting or withholding such consent (other
than any such fee payable in connection with any Non-Serviced Mortgage Loan).
(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 exceeds 5% of the Aggregate
Certificate Balance 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 the WestShore Plaza Companion 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 (a)) or the Special 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) 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
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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 or is one of the 10
largest Mortgage Loans based on Principal Balance and (y) such Mortgage Loan has
a Loan-to-Value Ratio (which includes Junior Indebtedness, if any) that is
greater than or equal to 85% and a Debt Service Coverage Ratio (which includes
debt service on Junior Indebtedness, if any) 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.
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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. 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.
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 thereon. 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 the WestShore Plaza Companion 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, the WestShore Plaza Companion Loan or any B Note,
and with respect to the Mortgaged Properties held for the benefit of the
Certificateholders, the holder of the WestShore Plaza Companion 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.
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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 the
WestShore Plaza Companion 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 the WestShore Plaza Companion 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 the WestShore Plaza Companion
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
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
WestShore Plaza Companion Loan Custodial Account to the extent related solely to
the WestShore Plaza Companion Loan) or otherwise collected from the Mortgage
Loans as provided in Section 5.2. The Master Servicer shall be required to pay
to each Primary Servicer its related Primary Servicing Fees, which shall be
payable by the Trust from amounts as provided in Section 5.1(c), unless retained
by the Primary Servicers from amounts transferred to the Master Servicer in
accordance with the terms of the Primary Servicing Agreements. The Master
Servicer shall be required to pay to the holders of the rights to the Excess
Servicing Fees, 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
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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 and Schedule V, 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. The Master Servicer shall be
required to pay all applicable expenses incurred by it in connection with its
servicing activities hereunder.
(c) Notwithstanding any other provision herein, with respect
to any Distribution Date, the Master Servicing Fee for each monthly period
relating to such Distribution Date (together with any investment income earned
prior to such Distribution Date on Principal Prepayments as to which Prepayment
Interest Shortfalls were incurred with respect to such Distribution Date) shall
be reduced by an amount equal to the Compensating Interest (if any) relating to
Mortgage Loans which are not Specially Serviced Mortgage Loans for such
Determination Date.
(d) 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 the WestShore Plaza
Companion 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
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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, the WestShore Plaza Companion 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.
(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 the WestShore Plaza
Companion Loan within 30 days following each Distribution Date a statement
setting forth the status of the related A/B Loan Custodial Account and the
WestShore Plaza Companion 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 WestShore Plaza Companion 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
(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 the WestShore Plaza Companion
Loan (in respect of the WestShore Plaza Companion 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
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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 Servicers are required to deliver the CMSA
Financial File only quarterly) not later than each Report Date, commencing in
December 2003; (ii) a CMSA Operating Statement Analysis Report and an NOI
Adjustment Worksheet in accordance with Section 8.14 of this Agreement; (iii) a
Servicer Watch List in accordance with and subject to the terms of Section
8.11(h) on each Report Date, commencing in December 2003; (iv) a Loan Set-Up
File (with respect to the initial Distribution Date only) not later than the
Report Date in November 2003; (v) a Loan Periodic Update File not later than
each Report Date commencing in November 2003 (which Loan Periodic Update File
shall be accompanied by a Monthly Additional Report on Recoveries and
Reimbursements); (vi) a Property File not later than each Report Date,
commencing in December 2003; (vii) a Delinquent Loan Status Report on each
Report Date, commencing in December 2003; (viii) an Historical Loan Modification
Report not later than each Report Date, commencing in December 2003, (ix) an
Historical Liquidation Report not later than each Report Date, commencing in
December 2003; and (x) an REO Status Report on each Report Date, commencing in
December 2003. 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 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 the Loan Pair, the
holder of the WestShore Plaza Companion Loan), not later than the related Report
Date, a Servicer Watch List. The Master Servicer shall list any Mortgage Loan on
the Servicer 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 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.
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(j) The Master Servicer, the Special Servicer, the Trustee
and the Paying Agent, as applicable, but not any of the Primary Servicers, shall
prepare and deliver (or make available on their respective websites) to the
Operating Adviser 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 2004, 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 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 2004, 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 Primary Servicers 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 those Primary Servicers or Sub-Servicers. Promptly
after receipt of such report, the Depositor shall review the report and, if
applicable, consult with the Master
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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) for the trailing or
quarterly information received, commencing in the quarter ending on March 31,
2004, 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 2004 for year-end 2003, 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 Mortgaged Loans, as provided to the Special Servicer, which Special
Servicer shall forward such information to the Master Servicer on or before May
31 of each such year), containing such information and 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 the WestShore Plaza Companion 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 the Loan Pair, to the holder
of the WestShore Plaza Companion 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
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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, any 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 the WestShore Plaza Companion Loan, if it relates to the WestShore Plaza
Companion 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,
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, any
Certificateholder, any holder of the WestShore Plaza Companion 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, 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
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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
the WestShore Plaza Companion 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 the WestShore Plaza Companion Loan, from amounts held in the
WestShore Plaza Companion 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.
(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 the WestShore Plaza Companion 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 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 2003-TOP12 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
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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
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 2004, or every
second calendar year beginning in 2004 if the Principal Balance of the related
Mortgage Loan or Loan Pair is less than $2,000,000; provided that the Master
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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 the Loan Pair that has a Principal Balance of less than
$2,000,000 and has been placed on the Servicer Watch List, the Master Servicer
shall, at the expense of the Trust and at request of the Controlling Class,
inspect or cause to be inspected the related Mortgaged Property every calendar
year beginning in 2004 so long as such Mortgage Loan or Loan Pair continues to
be on the Servicer Watch List; provided, if such Mortgage Loan or Loan Pair is
no longer on the Servicer 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, the Special Servicer, solely as it relates to the
Loan Pair, to the holder of the WestShore Plaza Companion 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 any
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 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 (including, without limitation, Master Servicer
Consent Matters set forth in Section 8.3(a) hereof) other than a Money Term of a
Mortgage Loan, the WestShore Plaza Companion Loan or a B Note that is not a
Specially Serviced Mortgage Loan, provided that such amendment would not result
in an Adverse REMIC Event; and provided, further that if any consent relates to
a release of a letter of credit relating to any Mortgage Loan (other than
letters of credit or portions thereof released upon satisfaction of conditions
specified in the related agreements), then (i) the Master Servicer shall notify
the Special Servicer of any Mortgagor's request to release such letter of credit
which the Master Servicer recommends to release, and (ii) if the terms of the
related Mortgage Loan do not require the Master Servicer to approve 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
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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, 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 Agreements classify certain Post Closing
Requests as Category 1 Requests (as defined in the Primary Servicing
Agreements), in which each Primary Servicer has certain authority to evaluate
and process such requests in accordance with this Agreement, the applicable
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 Agreements provide 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 Agreements upon a determination of materiality. The
Special Servicer acknowledges such provisions. Nothing in this Agreement,
however, shall grant the Primary Servicers greater authority, discretion or
delegated rights over Post Closing Requests than are set forth in the Primary
Servicing Agreements.
(ii) The Master Servicer may, without the consent of
the Special Servicer, extend the maturity date of any Balloon Mortgage Loan that
is not a Specially Serviced Mortgage Loan to a date that is not more than 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 the WestShore Plaza Companion Loan (as a
collective whole) on a net
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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 or amendment, that such Mortgagor pay to the Master Servicer a reasonable
and customary modification fee to the extent permitted by law; provided that the
collection of such fee shall not be permitted if collection of such fee would
cause a "significant modification" (within the meaning of Treasury 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 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 (which
amounts shall be reimbursed to the Special Servicer) in connection with any
request for a modification, waiver or amendment. The Master Servicer agrees to
use its 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 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 WestShore Plaza Companion Loan of any
modification of the monthly payments of an A/B Mortgage Loan or the 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.
(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
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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 any 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 any Primary Servicer shall not be permitted to waive (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, 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 the Loan Pair, to the holder of
the WestShore Plaza Companion 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 XVII
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
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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 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
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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.
(b) It is understood that the representations and warranties
set forth in this Section 8.20 shall survive the execution and delivery of this
Agreement.
(c) Any cause of action against the Master Servicer arising
out of the breach of any representations and warranties made in this Section
shall accrue upon the giving of written notice to the Master Servicer by any of
the Trustee or the Master Servicer. The Master Servicer shall give prompt notice
to the Trustee, the Depositor, the Primary Servicers and the Special Servicer of
the occurrence, or the failure to occur, of any event that, with notice or the
passage of time or both, would cause any representation or warranty in this
Section to be untrue or inaccurate in any respect.
SECTION 8.21 MERGER OR CONSOLIDATION. Any Person into which
the Master Servicer may be merged or consolidated, or any Person resulting from
any merger, conversion, other change in form or consolidation to which the
Master Servicer shall be a party, or any Person succeeding to the business of
the Master Servicer, shall be the successor of the Master Servicer hereunder,
without the execution 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. 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.
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(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
Agreements; (ii) the Master Servicer bears all costs associated with its
resignation and the transfer of servicing; and (iii) Rating Agency Confirmation
is obtained with respect to such servicing transfer, as evidenced by a letter
delivered to the Trustee by each Rating Agency.
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 Servicers, the holder of the B Note (only if such
assignment/delegation relates to the related A/B Mortgage Loan), the holder of
the WestShore Plaza Companion Loan (only if such assignment/delegation relates
to the 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 Agreements; (iii) the purchaser or transferee has assets in
excess of $15,000,000; (iv) such assignment and delegation is the subject of a
Rating Agency Confirmation; 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 the WestShore Plaza Companion 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
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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 the
WestShore Plaza Companion Loan (subject to the Special Servicer's servicing of
Specially Serviced Mortgage Loans as 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;
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(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 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, the WestShore Plaza Companion Loan and
any B Notes, as provided in the following paragraph,
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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, the WestShore Plaza
Companion Loan, 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 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 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)
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, the WestShore
Plaza Companion 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 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:
(1) if such Master Servicer Losses relate to the Loan Pair,
then such indemnification shall be paid (x) first, out of collections on, and
other proceeds of, such WestShore Plaza Pari Passu Loan and the WestShore Plaza
Companion 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 WestShore Plaza Pari Passu Loan
and the WestShore Plaza Companion Loan, in the relative proportions provided for
in the 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
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Account (and, if and to the extent that the amount due shall be paid from
collections on, and other proceeds of, the WestShore Plaza Companion Loan or any
B Note, as described above, out of the WestShore Plaza Companion 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.
(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) Each 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, its
related 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 its related 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 a Primary
Servicer's willful misfeasance, bad faith or
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negligence in the performance of duties thereunder. The applicable Primary
Servicer shall assume the defense of any such claim (with counsel reasonably
satisfactory to the applicable Primary Servicer) and out of the Trust pay all
expenses in connection therewith, including counsel fees, and out of the Trust
promptly pay, discharge and satisfy any judgment or decree which may be entered
against it or them in respect of such claim. The indemnification provided herein
shall survive the termination of this Agreement and the related Primary
Servicing Agreement. The Trustee, the Paying Agent or the Master Servicer shall
promptly make from the Certificate Account any payments certified by a Primary
Servicer to the Trustee and the Paying Agent as required to be made to such
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 Mortgage Loan Companion 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) Each 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 applicable Primary Servicer's duties under this
Agreement, its related Primary Servicing Agreement or by reason of negligent
disregard of the applicable 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 applicable 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
applicable Primary Servicer if a claim is made by any Person with respect to
this Agreement, the related 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 applicable 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 applicable Primary
Servicer shall not affect any rights the Trustee, the Fiscal Agent, the Special
Servicer, the Depositor, the Paying
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Agent or the Trust may have to indemnification under this Agreement, the related
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 or indemnification payments made by a Primary Servicer shall be
reimbursed by the party so paid, if a court of competent jurisdiction makes a
final, non-appealable judgment that the conduct of such Primary Servicer was not
culpable or that such Primary Servicer did not act with willful misfeasance, bad
faith or negligence.
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 (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
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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") 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. The Master
Servicer shall act in accordance with this Agreement and the REMIC Provisions
and related provisions of the Code in order to create or maintain the status of
the REMICs created hereby as REMICs under the Code. The Master Servicer shall
take no action or 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)) unless the Trustee shall
have received a Nondisqualification Opinion (at the expense of the party seeking
to take such action) to the effect that the contemplated action will not
endanger such status or result in the imposition of such tax. The Master
Servicer shall comply with the provisions of Article XII hereof.
SECTION 8.28 TERMINATION. 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
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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), (viii), (ix) 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), (v), (vi) or
(vii) has occurred, immediately upon the date on which the Trustee or the
Depositor gives written notice to the Master Servicer that the Master Servicer
is terminated. After any Event of Default, the Trustee (i) may elect to
terminate the Master Servicer by providing such notice, and (ii) shall provide
such notice if holders of Certificates representing more than 25% of the
Aggregate Certificate Balance of all Certificates so direct the Trustee.
(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 to the Trustee and the Depositor that the Master
Servicer is in good faith attempting to remedy such breach, such cure period
will be extended to the extent necessary to permit the Master Servicer to cure
such breach; provided, further that such cure period may not exceed 90 days; or
(v) a decree or order of a court or agency or
supervisory authority having jurisdiction in the premises in an involuntary case
under any present or future federal or state bankruptcy, insolvency or similar
law for the appointment of a conservator, receiver, liquidator, trustee or
similar official in any bankruptcy, insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation
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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
(vi) the Master Servicer shall consent to the
appointment of a conservator, receiver, liquidator, trustee or similar official
in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings of or relating to the Master Servicer or of
or relating to all or substantially all of its property; or
(vii) the Master Servicer shall admit in writing its
inability to pay its debts generally as they become due, file a petition to take
advantage of any applicable bankruptcy, insolvency or reorganization statute,
make an assignment for the benefit of its creditors, voluntarily suspend payment
of its obligations, or take any corporate action in furtherance of the
foregoing; or
(viii) 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 obtained 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.
(ix) 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
(x) the Master Servicer has been downgraded to a
servicer rating level below "CMS3" (or its equivalent) by Fitch.
(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 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 "Primary Servicers" hereunder
as to such Mortgage Loans (and under such Primary Servicing Agreement). For
purposes of the preceding sentence, a "Primary Servicing Default" means an
"event of default" of the related Primary
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Servicer under the related Primary Servicing Agreement of either Principal
Global Investors, LLC or JHREF. 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), (viii), (ix) 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 a Primary Servicing Agreement, so long as the terminated Master
Servicer is on the approved list of commercial mortgage loan servicers
maintained by Fitch.
SECTION 8.29 PROCEDURE UPON TERMINATION.
(a) Notice of any termination pursuant to clause (i) of
Section 8.28(a), specifying the Master Servicer Remittance Date upon which the
final transfer by the Master Servicer to the Paying Agent shall be made, shall
be given promptly in writing by the Master Servicer to the Paying Agent no later
than the later of (i) five Business Days after the final payment or other
liquidation of the last Mortgage Loan or (ii) the sixth day of the month of such
final distribution. Upon any such termination, the duties of the Master Servicer
(other than the obligation of the Master Servicer to pay to the Paying Agent the
amounts remaining in the 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 Section 8.28(a), or on
the date on which a written notice of termination is given to the Master
Servicer pursuant to clause (iii) of Section 8.28(a) all authority, power and
rights of the Master Servicer under this Agreement, whether with respect to the
Mortgage Loans or otherwise, shall terminate (except for any rights relating to
unpaid servicing compensation 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 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)(v), 8.28(a)(vi) or 8.28(a)(vii), the Trustee
shall act as successor servicer immediately upon delivery of a notice of
termination to the Master Servicer and shall use commercially reasonable efforts
within 90 days of assuming the duties of the Master Servicer, either to satisfy
the conditions of Section 8.22(b) hereof or to transfer the duties of the Master
Servicer to a successor servicer who has satisfied such conditions. The Trustee
is hereby authorized and
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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 Section 8.28(a) relating solely to an
Event of Default set forth in clause (viii), (ix) 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 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.
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(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. Each
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.
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 the Loan Pair, for
the benefit of the holder of the WestShore Plaza Companion Loan, the Special
Servicer shall service the Specially Serviced Mortgage Loans and manage the
related REO Properties in accordance with the provisions of this Agreement and
the Servicing Standard. Certain of the provisions of this Article IX make
explicit reference to their applicability to Mortgage Loans, the WestShore Plaza
Companion 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 WestShore Plaza
Companion 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 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 the WestShore Plaza Companion 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
the WestShore Plaza Companion Loan shall be deposited in the WestShore Plaza
Companion 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).
(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
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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 "Aa2" as rated by
Xxxxx'x and "A" as rated by Fitch, the Special Servicer may self-insure for the
Servicer Fidelity Bond and the Servicer Error and Omissions Insurance Policy.
SECTION 9.3 SUB-SERVICERS. The Special Servicer shall have
the right to use a Sub-Servicer on the same terms and conditions as those set
forth in Section 8.4 for a Sub-Servicer of the Master Servicer. The Special
Servicer shall notify the Master Servicer, 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 the Loan Pair, the holder of the WestShore Plaza Companion Loan, of
the appointment of any Sub-Servicer of the Special Servicer.
SECTION 9.4 SPECIAL SERVICER GENERAL POWERS AND DUTIES.
(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 the WestShore Plaza Companion 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
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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 the WestShore Plaza Companion 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 WestShore Plaza Companion 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 WestShore Plaza Companion Loan, if applicable), be deemed to be
the agent of the Trust (or holder of a B Note or the WestShore Plaza Companion
Loan, as applicable). The Special Servicer shall indemnify the Trustee for any
loss, liability or reasonable expense (including 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.
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(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, 2004); 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 the Loan
Pair, to the holder of the WestShore Plaza Companion Loan) and the 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 Loan Pair Intercreditor Agreement, the
owner of the WestShore Plaza Companion Loan has agreed that the Master Servicer
and the Special Servicer are authorized and obligated to service and administer
such WestShore Plaza Companion Loan pursuant to this Agreement.
(d) Pursuant to the Loan Pair Intercreditor Agreement, each
owner of the WestShore Plaza Companion Loan has agreed that the Master Servicer
and the Special Servicer are authorized and obligated to service and administer
such WestShore Plaza Companion 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 the WestShore Plaza Pari Passu Loan
are limited by and subject to the terms of the Loan Pair Intercreditor
Agreement. At such time when the WestShore Plaza Companion 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 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
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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 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 the
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 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.
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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 in accordance with the REMIC Provisions, take
such actions as it deems to be in the best economic interest of the Trust in
accordance with the Servicing Standard, and may waive or enforce any due-on-sale
clause contained in the related Mortgage Note or Mortgage; provided, however,
that if the Principal Balance of such Mortgage Loan at such time equals or
exceeds 5% of the Aggregate Certificate Balance or 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 Xxxxx'x and
Fitch 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 Xxxxx'x and Fitch with such
memorandum and documentation for all transfer, assumption and encumbrance
consents granted for Mortgage Loans below the threshold set forth above, but for
which the Special Servicer's decision will be sufficient and a Rating Agency
Confirmation is not required. As to any Mortgage Loan that is not a Specially
Serviced Mortgage Loan and contains a provision in the nature of a "due-on-sale"
clause, the Special Servicer shall have the rights and duties set forth in
Section 8.7(b). The Special Servicer shall be entitled to 100% of all assumption
fees in connection with Specially Serviced Mortgage Loans.
After notice to the 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
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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 increase the
recovery on the Specially Serviced Mortgage Loan to Certificateholders, the
holder of the WestShore Plaza Companion 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, the
holder of the WestShore Plaza Companion Loan and the holder of the related B
Note (as a collective whole) to be performed at the related Mortgage Rate (or,
in the case of an A/B Mortgage Loan, such discounting to be performed at 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 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 the
WestShore Plaza Companion Loan that is a Specially Serviced Mortgage Loan, shall
notify the holder of the B Note and the WestShore Plaza Companion Loan, as
applicable, of any modification of the monthly payments of an A/B Mortgage Loan
or the Loan Pair, as the case may be, and such monthly payments shall be
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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 the WestShore Plaza Companion 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 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.
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(e) The Special Servicer will promptly deliver to the Master
Servicer, the Operating Adviser, the Trustee, the Paying Agent, the Rating
Agencies (and, solely with respect to an A/B Mortgage Loan) a notice, specifying
any such assignments and assumptions, modifications, waivers or amendments, such
notice identifying the affected Specially Serviced Mortgage Loan. Such notice
shall set forth the reasons for such waiver, modification, or amendment
(including, but not limited to, information such as related income and expense
statements, rent rolls, 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 ss. 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 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 prior to
acting, and provisions of this Agreement requiring such shall be of no effect,
if the Operating Adviser resigns or is removed, during the period following such
resignation or removal until a replacement is elected and (ii) no advice,
direction or objection from or by the Operating Adviser, as contemplated by this
Agreement, may (and the Special Servicer shall ignore and act without regard to
any such advice, direction or objection that the Special Servicer has
determined, in its reasonable good faith judgment would) (A) require or cause
the Special Servicer to violate applicable law, the terms of any Mortgage Loan,
any provision of this Agreement or the REMIC Provisions, including the Special
Servicer's obligation to act in accordance with the Servicing Standard, (B)
result in an Adverse REMIC Event with respect to any REMIC Pool, (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
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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.
(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% or more of the Principal
Balance of all of the Mortgage Loans held by the Trust or is one of the 10
largest Mortgage Loans based on Principal Balance and (y) such Mortgage Loan has
a Loan-to-Value Ratio (which includes Junior Indebtedness and any other loans
secured by the related Mortgaged Property, if any) that is greater than or equal
to 85% and a Debt Service Coverage Ratio (which includes debt service on Junior
Indebtedness and any other loans secured by the related Mortgaged Property, if
any) 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
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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 each 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 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 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 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 WestShore Plaza Companion Loan, if the 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
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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 WestShore Plaza Companion Loan, if the 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.
(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
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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 o
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.
(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 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 Property, 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 the WestShore Plaza Companion 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
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the improvements to the Mortgaged Property are in an area identified in the
Federal Register by the Federal Emergency Management Agency as having special
flood hazards (and such flood insurance has been made available), the Special
Servicer shall maintain a flood insurance policy meeting the requirements of the
current guidelines of the Federal Insurance Administration in an amount
representing coverage equal to the lesser of the then outstanding Principal
Balance of the Specially Serviced Mortgage Loan and unpaid Advances (plus
Advance Interest) and the maximum insurance coverage required under such current
guidelines. It is understood and agreed that the Special Servicer has no
obligation to obtain earthquake or other additional insurance on REO Property,
except as required by law 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 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, the WestShore Plaza Companion 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
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Qualified Insurer with a minimum claims paying ability rating of at least "A2"
by Xxxxx'x and "A" by Fitch 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 "A2" by Xxxxx'x and "A" by Fitch 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, the WestShore
Plaza Companion 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, WestShore Plaza Companion 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 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 A/B Mortgage Loan or (ii) if there is no deductible limitation
required under the Mortgage Loan or A/B 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, the WestShore Plaza Companion 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 final disposition of a
Specially Serviced Mortgage Loan or REO Property in whole or in part (whether
arising pursuant to a sale, condemnation or otherwise). With respect to each REO
Mortgage Loan that is a successor to a Mortgage Loan secured by two or more
Mortgaged Properties, the reference to "REO Property" in the preceding sentence
shall be
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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 Loan remains 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 the WestShore Plaza Companion Loan Custodial Account, the Special Servicer
Compensation to the extent related solely to the WestShore Plaza Companion 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 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,
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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 be a Nonrecoverable Advance unless the Special
Servicer determines that such Servicing Advance is in the best interest of the
Certificateholders.
(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 the WestShore Plaza Companion 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
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(iii) there are no circumstances or conditions
present or threatened at such Mortgaged Property relating to the use,
management, disposal or release of any hazardous substances, hazardous
materials, hazardous wastes, or petroleum-based materials for which
investigation, testing, monitoring, removal, clean-up or remediation could be
required under any federal, state or local law or regulation, or that, if any
such materials are present for which such action could be required, after
consultation with an environmental expert taking such actions with respect to
the affected Mortgaged Property is reasonably likely to produce a greater
recovery on a net present value basis than not 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 WestShore Plaza Companion Loan if in
connection with the 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
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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 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 WestShore Plaza Companion Loan if in connection with the
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 WestShore Plaza Companion Loan if in
connection with the 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 WestShore Plaza
Companion Loan if in connection with the 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
2003-TOP12, the holder of the WestShore Plaza Companion 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
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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 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 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 the Loan Pair, the holder of the WestShore Plaza Companion 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 consisten
t 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;
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(iv) none of the provisions of this Section 9.14
relating to any such contract or to actions taken through any such Independent
Contractor shall be deemed to relieve the Special Servicer of any of its duties
and obligations to the Trustee with respect to the operation and management of
any such REO Property;
(v) if the Independent Contractor is an Affiliate
of the Special Servicer, the consent of the Operating Adviser and a
Nondisqualification Opinion must be obtained; and
(vi) the Special Servicer shall be obligated with
respect thereto to the same extent as if it alone were performing all duties and
obligations in connection with the operation and management of such REO
Property.
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 the WestShore Plaza Companion
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 the Xxxxxxx Xxxx Loan REMIC or REMIC I by the REO Property would not result
in the imposition of a tax upon the Xxxxxxx Xxxx Loan REMIC or 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.
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Subject to, and without limiting the generality of the
foregoing, the Special Servicer, on behalf of the Trust, shall not:
(i) permit the Trust to enter into, renew or extend
any New Lease with respect to the REO Property, if the New Lease by its terms
will give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued
under any New Lease other than amounts that will constitute Rents from Real
Property;
(iii) authorize or permit any construction on the REO
Property, other than the completion of a building or other improvement thereon,
and then only if more than ten percent of the construction of such building or
other improvement was completed before 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 I
ndependent Contractor, or allow any other Person to Directly Operate, other than
through an Independent Contractor, the REO Property on any date more than 90
days after the Acquisition Date; unless, in any such case, the Special Servicer
has requested and received an Opinion of Counsel at the Trust's sole expense to
the effect that such action will not cause such REO Property to fail to qualify
as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code
(without giving effect to the final sentence thereof) at any time that it is
held by the applicable REMIC Pool, in which case the Special Servicer may take
such actions as are specified in such Opinion of Counsel.
SECTION 9.15 SALE OF REO PROPERTY.
(a) In the event that title to any REO Property is acquired
by the Trust in respect of any Specially Serviced Mortgage Loan, the deed or
certificate of sale shall be issued to the Trust, the Trustee or to its
nominees. The Special Servicer, after notice to the Operating Adviser, shall 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 the WestShore Plaza Companion 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 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 to fail to qualify as a REMIC
at any time that any Certificates are outstanding. If
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the Trustee has not received an Extension or such Opinion of Counsel and the
Special Servicer is not able to sell such REO Property within the period
specified above, or if an Extension has been granted and the Special Servicer is
unable to sell such REO Property within the extended time period, the Special
Servicer shall, after consultation with the Operating Adviser, before the end of
such period or extended period, as the case may be, auction the REO Property to
the highest bidder (which may be the Special Servicer) in accordance with the
Servicing Standard; provided, however, that no Interested Person shall be
permitted to purchase the REO Property at a price less than the Purchase Price;
and provided, further that if the Special Servicer intends to bid on 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 WestShore Plaza Companion Loan, if in
connection with the 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 WestShore Plaza
Companion Loan, if in connection with the 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) The Special Servicer shall provide the necessary
information to the Master Servicer and the Paying Agent to allow the Master
Servicer to prepare, deliver and file reports of foreclosure and abandonment in
accordance with Section 6050J and Section 6050P, if required, of the Code with
respect to such REO Property and shall deliver such information with respect
thereto as the Master Servicer or the Paying Agent may request in writing.
SECTION 9.16 REALIZATION ON COLLATERAL SECURITY. In
connection with the enforcement of the rights of the Trust to any property
securing any Specially Serviced Mortgage Loan other than the related Mortgaged
Property, the Special Servicer shall consult with counsel to determine how best
to enforce such rights in a manner consistent with the REMIC Provisions and
shall not, based on a Nondisqualification Opinion addressed to the Special
Servicer and the Trustee (the cost of which shall be an expense of the Trust)
take any action that could result in the failure of any REMIC Pool to qualify as
a REMIC while any Certificates are outstanding, unless such action has been
approved by a vote of 100% of each Class of Certificateholders (including the
Class R-I, Class R-II, Class R-III and Class R-K Certificateholders).
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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 2004, 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 2004, 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, 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
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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 the A Notes and any 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 the A
Notes and any 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 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, the WestShore Plaza Companion Loan and any B Note that became
Rehabilitated Mortgage Loans during the period that it acted as Special Servicer
and that were still Rehabilitated Mortgage Loans at the time of such resignation
(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, the
WestShore Plaza Companion Loan or B Note again becomes a Specially Serviced
Mortgage Loan or are no longer included in the Trust.
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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 the
WestShore Plaza Companion 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 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 the WestShore Plaza
Companion 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
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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 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, 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.
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(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 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
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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 the
WestShore Plaza Pari Passu Loan (or another Mortgage Loan included in the Trust)
or the WestShore Plaza Companion Loan, then such indemnification shall be paid
out of collections on, and other proceeds of, such WestShore Plaza Pari Passu
Loan, other Mortgage Loan or the WestShore Plaza Companion 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, 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
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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 Mortgage Loan Companion 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
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. 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, the WestShore Plaza Companion 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
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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. The Special
Servicer shall act in accordance with this Agreement and the provisions of the
Code relating to REMICs in order to create or maintain the status of any REMIC
Pool as a REMIC under the Code or, as appropriate, adopt a plan of complete
liquidation. The Special Servicer shall not take any action or cause any REMIC
Pool to take any action that would (i) endanger the status of any REMIC 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)) unless the Master Servicer
and the Trustee have received a Nondisqualification Opinion (at the expense of
the party seeking to take such action) to the effect that the contemplated
action will not endanger such status or result in the imposition of such tax.
The Special Servicer shall comply with the provisions of Article XII hereof.
SECTION 9.30 TERMINATION.
(a) The obligations and responsibilities of the Special
Servicer created hereby (other than the obligation of the Special Servicer to
make payments to the Master Servicer as set forth in Section 9.28 and the
obligations of the Special Servicer pursuant to Sections 9.8 and 9.24 hereof)
shall terminate on the date which is the earliest of (i) the later of (A) the
final payment or other liquidation of the last Mortgage Loan remaining
outstanding (and final distribution to the Certificateholders) or, (B) the
disposition of all REO Property in respect of any Specially Serviced Mortgage
Loan (and final distribution to the Certificateholders), (ii) 60 days following
the date on which the Trustee or the Operating Adviser has given written notice
to the Special Servicer that 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. The obligations and responsibilities of the Special Servicer
created hereby with respect to the Loan Pair (other than the obligation of the
Special Servicer to make payments to the Master Servicer as set forth in Section
9.28, the obligations of the Special Servicer pursuant to Sections 9.8 and 9.24
hereof and obligations under this Agreement that survive termination) shall
terminate on the date that is 60 days following the date on which the Trustee
has given written notice to the Special Servicer that this Agreement is
terminated with respect to the Special Servicer's obligations with respect to
such Loan Pair pursuant to Section 9.30(d).
(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
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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) 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; (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 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; or
(ix) 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. Such termination shall be
effective on the date after the date of any of the above events that the Trustee
specifies in a written notice to the Special Servicer specifying the reason for
such termination. The Operating Adviser shall have the right to appoint a
successor if the Trustee terminates the Special Servicer.
(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
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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 the A Notes
and any B Note) from each Rating Agency prior to the termination of the Special
Servicer. The Special Servicer shall not be terminated pursuant to this
subsection (c) until a successor Special Servicer shall have been appointed. The
Operating Adviser shall pay any costs and expenses incurred by the Trust in
connection with the removal and appointment of a Special Servicer (unless such
removal is based on any of the events or circumstances set forth in Section
9.30(b)).
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 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
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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 WestShore Plaza Pari Passu 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) or (ix), 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, the WestShore Plaza
Companion 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 Agency Confirmation (including with respect to any securities evidencing
interests in the A Notes) 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.
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(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 ten Business Day following such Final Recovery Determination.
(c) The Special Servicer shall provide to the Master
Servicer or the Paying Agent at the reasonable request in writing of the Master
Servicer or the Paying Agent, any information in its possession with respect to
the Specially Serviced Mortgage Loans which the Master Servicer or Paying Agent,
as the case may be, shall require in order for the Master Servicer or the Paying
Agent to comply with its obligations under this Agreement; provided that the
Special Servicer shall not be required to take any action or provide any
information that the Special Servicer determines will result in any material
cost or expense to which it is not entitled to reimbursement hereunder or will
result in any material liability for which it is not indemnified hereunder. The
Master Servicer shall provide the Special Servicer at the 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.
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(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, 2004, (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, 2004 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 provide, as soon as
practicable after a Mortgage Loan becomes a Specially Serviced Mortgage Loan, to
the Master Servicer its estimate of the net recoverable amount to the
Certificateholders (and the holder of the B Note if in connection with an A/B
Mortgage Loan and the holder of the WestShore Plaza Companion Loan if in
connection with the Loan Pair) and anticipated expenses in connection therewith
(and a general description of the plan to achieve such recovery) of such
Specially Serviced Mortgage Loan and other information reasonably requested by
the Master Servicer. The Special Servicer shall update such information on a
quarterly basis.
SECTION 9.33 SPECIAL SERVICER TO COOPERATE WITH THE MASTER
SERVICER AND PAYING AGENT.
(a) The Special Servicer shall furnish on a timely basis
such reports, certifications, and information as are reasonably requested by the
Master Servicer, the Trustee, the Paying Agent or any Primary Servicer to enable
it to perform its duties under this Agreement or 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 Agreement and to maintain the REMIC status
of any REMIC Pool or (ii) expose the Special
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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 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
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SECTION 9.36 SALE OF DEFAULTED MORTGAGE LOANS.
(a) 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 any Non-Serviced
Mortgage Loan) from the Trust at a price equal to the Option Purchase Price upon
receipt of notice from the Special Servicer that such Mortgage Loan has become
at least 60 days delinquent as to any monthly debt service payment (or is
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. 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 (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 above, the
fair value of a Mortgage Loan shall be deemed to be an amount equal to the
Purchase Price plus (i) any prepayment penalty or yield maintenance charge then
payable upon the prepayment of such Mortgage Loan and (ii) the reasonable fees
and expenses of the Special Servicer, the Master Servicer and the Trustee
incurred in connection with the sale of the Mortgage Loan. The Special Servicer
shall determine the fair value of a Mortgage Loan
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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 and (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. 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 the holder of the related B Note in connection with an A Note), either of
which has a material effect on the fair value, provided that the Special
Servicer shall be required to recalculate the fair value of the Mortgage Loan if
the time between the date of last determination of the fair value of the
Mortgage Loan and the date of the exercise of the Option has exceeded 60 days.
Upon any recalculation, the Special Servicer shall be required to promptly
notify in writing each Option Holder (and the Trustee and each of the other
parties set forth above that could become the Option Holder) of the revised
Option Purchase Price. Any such recalculation of the fair value of the Mortgage
Loan shall be deemed to renew the Option in its original priority at the
recalculated price with respect to any party as to which the Option had
previously expired or been waived, unless the Option has previously been
exercised by an Option Holder at a higher Option Purchase Price. In determining
fair value, the Special Servicer shall take into account, among other factors,
the results of any Appraisal or updated Appraisal that it or the Master Servicer
may have obtained in accordance with this Agreement within the prior twelve
months; any views on fair value expressed by Independent investors in mortgage
loans comparable to the Mortgage Loan (provided that the Special Servicer shall
not be obligated to solicit such views); the period and amount of any
delinquency on the affected Mortgage Loan; whether to the Special Servicer's
actual knowledge, the Mortgage Loan is in default to avoid a prepayment
restriction; the physical condition of the related Mortgaged Property; the state
of the local economy; the expected recoveries from the Mortgage Loan if the
Special Servicer were to pursue a workout or foreclosure strategy instead of the
Option being exercised; and the Trust's obligation to dispose of any REO
Property as soon as practicable consistent with the objective of maximizing
proceeds for all Certificateholders, but in no event later than the three-year
period (or such extended period) specified in Section 9.15. If the Mortgage Loan
as to which the Option relates is the WestShore Plaza Pari Passu Loan, then the
Option Holder, in connection with its exercise of such option, shall also be
required to purchase the WestShore Plaza Companion Loan. Pursuant to the related
Non-Serviced Mortgage Loan Pooling and Servicing Agreement, if the holder of the
option thereunder repurchases a Non-Serviced Mortgage Loan Companion 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.
(c) Any Option relating to a Mortgage Loan 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 the WestShore
Plaza Pari Passu Loan, the holder of the WestShore Plaza Companion Loan) by the
Option Holder at its discretion at any time after its receipt of notice from the
Special Servicer that an Option is exercisable with respect to a specified
Mortgage Loan, and upon such assignment such third party shall have all of the
rights granted to the Option Holder hereunder in respect of the Option. Such
assignment shall only be effective upon written notice (together with a copy of
the executed assignment and assumption agreement)
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being delivered to the Trustee, the Master Servicer and the Special Servicer,
and none of such parties shall be obligated to recognize any entity as an Option
Holder absent such notice.
(d) If the Special Servicer, the holder of Certificates
representing the greatest percentage interest in the Controlling Class or an
Affiliate of either thereof elects to exercise the Option, the Trustee shall be
required to determine whether the Option Purchase Price constitutes a fair price
for the Mortgage Loan. Upon request of the Special Servicer to make such a
determination, the Trustee will do so within a reasonable period of time (but in
no event more than 15 Business Days). In doing so, the Trustee may rely on the
opinion of an 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. The Trustee may also rely on the most recent
Appraisal of the related Mortgaged Property that was prepared in accordance with
this Agreement. If the Trustee were to determine that the Option Purchase Price
does not constitute a fair price, then the Special Servicer shall redetermine
the fair value taking into account the objections of the Trustee.
(e) The Option shall terminate, and shall not be exercisable
as set forth in clause (a) above (or if exercised, but the purchase of the
related Mortgage Loan has not yet occurred, shall terminate and be of no further
force or effect) if the Mortgage Loan to which it relates is no longer
delinquent as set forth above because the Mortgage Loan has (i) become a
Rehabilitated Mortgage Loan, (ii) been subject to a 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.
(f) Unless and until an Option Holder exercises an Option,
the Special Servicer shall continue to service and administer the related
Mortgage Loan in accordance with the Servicing Standard and this Agreement, and
shall pursue such other resolution or recovery strategies, including workout or
foreclosure, as is consistent with this Agreement and the Servicing Standard.
SECTION 9.37 OPERATING ADVISER; ELECTIONS.
(a) In accordance with Section 9.37(c), the
Certificateholders representing more than 50% of the Certificate Balance of the
Certificates of the then Controlling Class may elect the Operating Adviser. The
Operating Adviser shall be elected for the purpose of receiving reports and
information from the Special Servicer in respect of the Specially Serviced
Mortgage Loans.
(b) The initial Operating Adviser is ARCap CMBS Fund 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
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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 the event that an Operating Adviser shall have
resigned or been removed and a successor Operating Adviser shall not have been
elected, there shall be no Operating Adviser.
(d) The Operating Adviser may be removed at any time by the
written vote, copies of which must be delivered to the Paying Agent, of more
than 50% of the Certificate Balance of the Holders of the Certificates of the
then Controlling Class.
(e) The Paying Agent shall act as judge of each election
and, absent manifest error, the determination of the results of any election by
the Paying Agent shall be conclusive. Notwithstanding any other provisions of
this Section 9.37, the Paying Agent may make such reasonable regulations as it
may deem advisable for any election.
(f) Notwithstanding any provision of this Section 9.37 or
any other provision of this Agreement to the contrary, at any time that the
Special Servicer has been elected as Operating Adviser or no Operating Adviser
has been elected, (i) the Special Servicer shall not be required to deliver
notices or information to, or obtain the consent or approval of, the Operating
Adviser and (ii) to the extent any Person other than the Special Servicer is
otherwise required hereunder to provide notices or information to, or obtain the
consent or approval of, the Operating Adviser, such Person shall be required to
provide such notices or information to, or obtain the consent or approval of,
the Special Servicer.
SECTION 9.38 LIMITATION ON LIABILITY OF OPERATING Adviser.
The Operating Adviser shall have no liability to the Trust, the holder of the
WestShore Plaza Companion 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 the WestShore Plaza Companion 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.
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SECTION 9.39 DUTIES OF OPERATING ADVISER. 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
in writing and such 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 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 modification consisting of the extension of the original Maturity Date of a
Mortgage Loan;
(iii) any proposed sale of a Defaulted Mortgage Loan
(other than upon termination of the Trust pursuant to Article X);
(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 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;
(ix) any release of collateral for a Specially
Serviced Mortgage Loan (other than in accordance with the terms of or upon
satisfaction of, such Mortgage Loan);
(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; and
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(xii) any determination as to whether any type of
property-level insurance is required under the terms of any 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.
Notwithstanding the foregoing, the Operating Adviser shall not
be entitled to the consultation rights described above in respect of any
non-Specially Serviced Mortgage Loan that has an unpaid Principal Balance of
less than $2,500,000.
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.
Notwithstanding anything herein to the contrary, no advice,
direction or objection from the Operating Adviser, as contemplated by this
Section 9.39, 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, will) require or cause the
Special Servicer to violate any provision of this Agreement or the Mortgage
Loans, including the Special Servicer's obligation to act in accordance with the
Servicing Standard.
SECTION 9.40 RIGHTS OF THE HOLDER OF A B NOTEWith respect to
each A/B Mortgage Loan (if any), the holder of the B Note shall have such
consent rights or consultation rights, 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 that immediate action is necessary
to protect the interest of the Certificateholders and the holder of the
WestShore Plaza Companion 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 the 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 the A/B Mortgage Loan, provide the holder of the B Note with any
information in the Master Servicer's
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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 to take any action (other than those provided for in the related
Intercreditor Agreement), the Master 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 in taking such action. The Master Servicer shall
notify the holder of the B Note, prior to taking the related action, if the
Master 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
its reasonable, good faith judgment, will) require or cause the Master Servicer
or Special Servicer to violate any provision of this Agreement or the Mortgage
Loans, including the Master Servicer's and Special Servicer's obligation to act
in accordance with the Servicing Standard.
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, the Class R-III Certificateholders and the Class R-K
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
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Mortgage Loans 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 Certificates, in such priority (and in the case of the Class R-I
Certificateholders, a majority of the Class R-I Certificateholders), may
purchase, in whole only, the Mortgage Loans and any other property, if any,
remaining in the Trust. If any party desires to exercise such option, it will
notify the Trustee who will notify any party with a prior right to exercise such
option. If any party that has been provided notice by the Trustee (excluding the
Depositor) notifies the Trustee within ten Business Days after receiving notice
of the proposed purchase that it wishes to purchase the assets of the Trust,
then such party (or, in the event that more than one of such parties notifies
the Trustee that it wishes to purchase the assets of the Trust, the party with
the first right to purchase the assets of the Trust) may purchase the assets of
the Trust in accordance with this Agreement. Upon the Paying Agent's receipt of
the Termination Price set forth below, the Trustee shall promptly release or
cause to be released to the Master Servicer for the benefit of the Holder of the
majority of the Class R-I Certificates, the Special Servicer or the Master
Servicer, as the case may be, the Mortgage Files pertaining to the Mortgage
Loans. The "Termination Price" shall equal 100% of the aggregate Principal
Balances of the Mortgage Loans (other than Mortgage Loans as to which a Final
Recovery Determination has been made) on the day of such purchase plus accrued
and unpaid interest thereon 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 the Xxxxxxx
Xxxx Loan REMIC and 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 any Placement Agent
or any Underwriter or an Affiliate of the Placement Agent or the Underwriters is
exercising its right to purchase the Trust assets, the Trustee shall consult
with the Operating Adviser in order for the Trustee to determine the fair market
value, provided that the Operating Adviser is not an Affiliate of the Class R-I
Holder, the Special Servicer or the Master Servicer, or the Trustee (the fees
and expenses of which shall be paid for by buyer of the property). As a
condition to the purchase of the Trust pursuant to this Section 10.1(b), the
Holder of the majority of the Class R-I Certificates, the Special Servicer or
the Master Servicer, as the case may be, must deliver to the Trustee an Opinion
of Counsel, which shall be at the expense of such Holders, the Special Servicer
or the Master Servicer, as the case may be, stating that such termination will
be a "qualified liquidation" under section 860F(a)(4) of the Code. Such purchase
shall be made in accordance with Section 10.3.
(c) If at any time the Holders of the Class R-I Certificates
own 100% of the REMIC III Certificates such Holders may terminate the Xxxxxxx
Xxxx Loan REMIC and 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.
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(d) Upon the termination of the Trust, (i) any funds or
other property held by the Grantor Trust related to Excess Interest shall be
distributed to the Class O Certificateholders, on a pro rata basis, whether or
not the respective Certificate Balances thereof have been reduced to zero, and
(ii) any funds or other property held by the Grantor Trust related to the
Xxxxxxx Xxxx Yield Maintenance Amount shall be distributed to the Class A-1,
Class X-1 and Class X-2 Certificateholders to the extent of their entitlements
that were not previously distributed in accordance with Section 6.5A.
(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 Class R-K, Class R-I, Class R-II and
REMIC III Certificateholders mailed no later than ten days prior to the date of
such termination. Such notice shall specify (A) the Distribution Date upon which
final distribution on the Class R-K, Class R-I, Class R-II and REMIC III
Certificates will be made, and upon presentation and surrender of the Class R-K,
Class R-I, Class R-II and REMIC III Certificates at the office or agency of the
Certificate Registrar therein specified, and (B) that the Record Date otherwise
applicable to such Distribution Date is not applicable, distribution being made
only upon presentation and surrender of the Class R-K, Class R-I, Class R-II and
REMIC III Certificates at the office or agency of the Certificate Registrar
therein specified. The Trustee shall give such notice to the Depositor and the
Certificate Registrar at the time such notice is given to Holders of the Class
R-K, Class R-I, Class R-II and REMIC III Certificates. Upon any such
termination, the duties of the Certificate Registrar with respect to the Class
R-K, Class R-I, Class R-II and REMIC III 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 Class
R-K, Class R-I, Class R-II and REMIC III Certificateholders in trust without
interest pending such payment.
(b) In the event that all of the Holders do not surrender
their certificates evidencing the Class R-K, Class R-I, Class R-II and REMIC III
Certificates for cancellation within three months after the time specified in
the above-mentioned written notice, the Certificate Registrar shall give a
second written notice to the remaining Class R-K, Class R-I, Class R-II and
REMIC III Certificateholders to surrender their certificates evidencing the
Class R-K, Class R-I, Class R-II and REMIC III Certificates for cancellation and
receive the final distribution with respect thereto. If within one year after
the second notice any Class R-K, Class R-I, Class R-II and REMIC III
Certificates shall not have been surrendered for cancellation, the Certificate
Registrar may take appropriate steps to contact the remaining Class R-K, Class
R-I, Class R-II and REMIC III Certificateholders concerning surrender of such
certificates, and the cost thereof shall be paid out of the amounts
distributable to such Holders. If within two years after the second notice any
such Class R-K, Class R-I, Class R-II and REMIC III Certificates shall not have
been surrendered for cancellation, the Paying Agent shall, subject to applicable
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state law relating to escheatment, hold all amounts distributable to such
Holders for the benefit of such Holders. No interest shall accrue on any amount
held by the Trustee and not distributed to a Class R-K, Class R-I, Class R-II or
REMIC III Certificateholder due to such Certificateholder's failure to surrender
its Certificate(s) for payment of the final distribution thereon in accordance
with this Section. Any money held by the Paying Agent pending distribution under
this Section 10.2 after 90 days after the adoption of a plan of complete
liquidation shall be deemed for tax purposes to have been distributed from the
REMIC Pools and shall be beneficially owned by the related Holder.
SECTION 10.3 ADDITIONAL TRUST TERMINATION REQUIREMENTS.
(a) The Trust and each REMIC 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 the Xxxxxxx Xxxx Loan REMIC, REMIC I,
REMIC II or REMIC III) shall adopt a plan of complete liquidation of each such
REMIC Pool, meeting the requirements of a qualified liquidation under the REMIC
Provisions, which plan need not be in any special form and the date of which, in
general, shall be the date of the notice specified in Section 10.2(a) and shall
be specified in a statement attached to the 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-K Certificates all
assets of the Xxxxxxx Xxxx Loan REMIC remaining after such final payment of the
Xxxxxxx Xxxx Loan REMIC Regular Interest, (B) 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, (C) to the Holders of the Class R-II Certificates all
remaining assets of REMIC II after such final payment of the REMIC II Regular
Interests and (D) 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
Xxxxxxx Xxxx Loan REMIC Regular Interest, REMIC I Regular Interests, REMIC II
Regular Interests or REMIC
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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, Class
R-III or Class R-K 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 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, Class R-III and Class R-K
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
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this Agreement, except in the manner herein provided and for the benefit of all
Certificateholders. For the protection and enforcement of the provisions of this
Section, each and every Certificateholder and the Trustee shall be entitled to
such relief as can be given either at law or in equity.
SECTION 11.2 ACCESS TO LIST OF HOLDERS.
(a) If the Paying Agent is not acting as Certificate
Registrar, the Certificate Registrar will furnish or cause to be furnished to
the Trustee and the Paying Agent, within 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.
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(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer authorized
by law to take acknowledgments or deeds, certifying that the individual signing
such instrument or writing acknowledged to such notary public or other officer
the execution thereof. Whenever such execution is by an officer of a corporation
or a member of a partnership on behalf of such corporation or partnership, such
certificate or affidavit shall also constitute sufficient proof of such
officer's or member's authority. The fact and date of the execution of any such
instrument or writing, or the authority of the individual executing the same,
may also be proved in any other manner which the Trustee deems sufficient.
(c) The ownership of Certificates (notwithstanding any
notation of ownership or other writing thereon made by anyone other than the
Trustee) shall be proved by the Certificate Register, and neither the Trustee
nor the Depositor nor the Paying Agent shall be affected by any notice to the
contrary.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Certificate shall bind
every future Holder of the same Certificate and the Holder of every Certificate
issued upon the registration of transfer thereof or 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.
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 Xxxxxxx
Xxxx Loan, such amounts related to the Xxxxxxx Xxxx Loan as shall from time to
time be held in the Certificate Account, the Interest Reserve Account and the
Distribution Account, the related Insurance Policies and any related REO
Properties as a REMIC ("Xxxxxxx Xxxx Loan REMIC ") 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 Xxxxxxx Xxxx Loan REMIC Interests are issued. For
purposes of such election, the Xxxxxxx Xxxx Loan REMIC Regular Interests shall
each be designated as a Class of "regular interests" in the Xxxxxxx Xxxx Loan
REMIC and the Xxxxxxx Xxxx Loan REMIC Residual Interest shall be designated as
the sole Class of "residual interests" in the Xxxxxxx Xxxx Loan REMIC.
An election will be made by the Paying Agent on behalf of the
Trustee to treat the segregated pool of assets consisting of the Majority
Mortgage Loans, the Xxxxxxx Xxxx Loan REMIC Regular Interest, such amounts
related to the Majority Mortgage Loans as shall from time to time be held in the
Certificate Account and the Interest Reserve Account, such amounts related to
the Majority Mortgage Loans and the Xxxxxxx Xxxx Loan REMIC Regular Interest as
shall from time to time be held in the Distribution Account (exclusive of the
Excess Interest Sub-
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account and the Xxxxxxx Xxxx Sub-account), the related Insurance Policies 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 the WestShore Plaza
Companion Loan. Such election will be made on Form 1066 or other appropriate
federal tax or information return or any appropriate state return for the
taxable year ending on the last day of the calendar year in which the REMIC I
Interests are issued. For purposes of such election, the REMIC I Regular
Interests shall each be designated as a separate Class of "regular interests" in
REMIC I and the REMIC I Residual Interest shall be designated as the sole Class
of "residual interests" in REMIC I.
An election will be made by the Paying Agent to treat the
segregated pool of assets consisting of the REMIC I Regular Interests as a REMIC
("REMIC II") under the Code. Such election will be made on Form 1066 or other
appropriate federal tax or information return or any appropriate state return
for the taxable year ending on the last day of the calendar year in which the
REMIC II Interests are issued. For the purposes of such election, the REMIC II
Regular Interests shall be designated as the "regular interests" in REMIC II and
the Class R-II Certificates shall be designated as the sole Class of the
"residual interests" in REMIC II.
An election will be made by the Paying Agent to treat the
segregated pool of assets consisting of the REMIC II Regular Interests as a
REMIC ("REMIC III") under the Code. Such election will be made on Form 1066 or
other appropriate federal tax or information return or any appropriate state
return for the taxable year ending on the last day of the calendar year in which
the REMIC III Certificates are issued. For purposes of such election, the Class
A-1, Class A-2, Class A-3, Class A-4, Class X-1 (each Class X-1 Certificate
representing multiple "regular interests" in REMIC III, as set forth in the
Preliminary Statement), Class X-2 (each Class X-2 Certificate representing
multiple "regular interests" in REMIC III, as set forth in the Preliminary
Statement), Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class
J, Class K, Class L, Class M, Class N and Class O Certificates (but other than
the Class A-1, Class X-1, Class X-2 and Class O 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 REMICs other than the Xxxxxxx Xxxx Loan REMIC Regular Interest, 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
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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 all of each
REMIC Pool's federal and state income or franchise tax and information returns
as such REMIC Pool direct representative; 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
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
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
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Internal Revenue Service or other Persons (including, but not limited to, the
Transferor of a Residual Certificate, to a Disqualified Organization or to an
agent that has acquired a Residual Certificate on behalf of a Disqualified
Organization) such information as is necessary for the application of any tax
relating to the transfer of a Residual Certificate to any Disqualified
Organization and (ii) to the Certificateholders such information or reports as
are required by the Code or REMIC Provisions.
(g) The Paying Agent shall forward to the Depositor copies
of quarterly and annual REMIC tax returns and Internal Revenue Service Form 1099
information returns and such other information within the control of the Paying
Agent as the Depositor may reasonably request in writing. Moreover, the Paying
Agent shall forward to each Certificateholder such forms and furnish such
information within its control as are required by the Code to be furnished to
them, shall prepare and file with the appropriate state authorities as may to
the actual knowledge of a Responsible Officer of the Paying Agent be required by
applicable law and shall prepare and disseminate to Certificateholders Internal
Revenue Service Forms 1099 (or otherwise furnish information within the control
of the Paying Agent) to the extent required by applicable law. The Paying Agent
will make available to any Certificateholder any tax related information
required to be made available to Certificateholders pursuant to the Code and any
regulations thereunder.
(h) The Holder of more than 50% of the Percentage Interests
in Class R-I, Class R-II, Class R-III and Class R-K Certificates, respectively
(or of the greatest percentage of such Class R-I, Class R-II, Class R-III and
Class R-K Certificates if no Holder holds more than 50% thereof), shall be the
applicable REMIC'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 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 tak
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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 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 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 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.
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(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 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 the
Xxxxxxx Xxxx Loan REMIC and 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 II Regular Interests, for each Class of REMIC I Regular Interests and for
the Xxxxxxx Xxxx Loan REMIC Regular Interest is the Rated Final Distribution
Date; provided that the "latest possible maturity date" for the Class X-2
Certificates is the Distribution Date in October 2011.
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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 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
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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 THE GRANTOR TRUST
(a) The assets of the 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 Trustee and Paying Agent for the benefit of
the Holders of the Class O Grantor Trust Interest, represented by the Class O
Certificates, which Class O Certificates, in the aggregate, will evidence 100%
beneficial ownership of such assets from and after the Closing Date.
(b) The assets of the Grantor Trust, consisting of the right
to any Xxxxxxx Xxxx Yield Maintenance Amounts and the Xxxxxxx Xxxx Sub-account,
shall be held by the Trustee and Paying Agent for the benefit of the Holders of
the Class A-1 Grantor Trust Interest represented by the Class A-1 Certificates,
for the benefit of the Class X-1 Grantor Trust Interest represented by the Class
X-1 Certificates and for the benefit of the Holders of the Class X-2 Grantor
Trust Interest represented by the Class X-2 Certificates, which Class A-1, Class
X-1 and Class X-2 Certificates, in the aggregate, will evidence 100% beneficial
ownership of such assets from and after the Closing Date.
(c) The parties intend that the portions of the Trust
consisting of the 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. Under no circumstances may the
Trustee or the Paying Agent vary the assets of the Grantor Trust so as to take
advantage of variations in the market so as to improve the rate of return of
Holders of the Class A-1, Class X-1, Class X-2 or Class O Certificates. The
Trustee and Paying Agent shall be deemed to hold and shall account for the
Grantor Trust separate and apart from the assets of the Xxxxxxx Xxxx Loan REMIC,
REMIC I, REMIC II and REMIC III created hereunder. The Paying Agent shall
furnish or cause to be furnished to the Class A-1, Class X-1, Class X-2 and
Class O 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 Grantor Trust, and with respect
to the Grantor Trust, on the cash or accrual method of accounting and so as to
enable reporting to the Holders of Class A-1, Class X-1, Class X-2 and Class O
Certificates based on their annual accounting period, at the time or times and
in the manner required by the Code.
ARTICLE XIII
MISCELLANEOUS PROVISION
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.
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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
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 grantor trust created from the related portion
of the 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).
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(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 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 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) no such amendment shall 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 the WestShore Plaza Companion 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) or the Grantor Trust as a grantor trust without the
consent of 100% of the Certificateholders (including the Class R-I, Class R-II,
Class R-III and Class R-K Certificateholders); 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.
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(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 any
Primary Servicer without first obtaining the written consent of such 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, any 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.
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: Xxxxxxx Xxxxxx, with a copy to Xxxxx Xxxxxxxx, 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 Xxxxxx, with a copy to: General Counsel; (G) in the case of
JHREF, Xxxx Xxxxxxx Real Estate Finance, Inc., 000 Xxxxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000, Attention: Xxxxx X. Xxxxxx, Senior Vice President, with
copies to the attention of Xxxxxxx X. Xxxxxxx, Esq. and Xxxxxxxxx X. Xxxxxxxx,
Esq.; (H) in the case of the Special Servicer, ARCap Servicing, Inc., 0000 X.
XxxXxxxxx Xxxx., Xxxxx 000, Xxxxxx, Xxxxx 00000, Attention: Xxxxx X. Xxxxxxx,
(I) in the case of the initial Operating Adviser, ARCap
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CMBS Fund REIT, Inc., 0000 X. XxxXxxxxx Xxxx., Xxxxx 000, Xxxxxx, Xxxxx 00000,
Attention: Xxxxx X. Xxxxxxx; and (J) in the case of the Paying Agent, Xxxxx
Fargo Bank Minnesota, National Association, 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx,
Xxxxxxxx 00000, Attention: Corporate Trust Services (CMBS) Bear Xxxxxxx
Commercial Mortgage Securities Inc., Series 2003-TOP12, 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 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 any Primary Servicer to the
extent applicable to such Primary Servicer) and their successors hereunder and
the Holders of the Certificates, any benefit or any legal or equitable right,
power, remedy or claim under this Agreement; provided, however, that (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 the WestShore Plaza Companion Loan and any B Note, if any, is an
intended third-party beneficiary in respect of the rights afforded it hereunder
and (iii) the applicable Non-Serviced Mortgage Loan Master Servicer and the
applicable Non-Serviced Mortgage Loan Special Servicer are intended third-party
beneficiaries of Section 5.2(a)(ii)(B).
SECTION 13.10 SPECIAL NOTICES TO THE RATING AGENCIES.
(a) 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:
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(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;
(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 Fitch, to:
Fitch Ratings, Inc.
Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Commercial Mortgage
Surveillance
If to Moody's, to:
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Structured Finance Commercial Real Estate
Monitoring
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:
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(i) the resignation or removal of the Trustee
pursuant to Section 7.6; or
(ii) the appointment of a successor trustee pursuant
to Section 7.7; or
(iii) the appointment of a successor Operating
Adviser pursuant to Section 9.37.
(d) The Master Servicer shall deliver to the Rating Agencies
and the Depositor any other information as reasonably requested by the Rating
Agencies and the Depositor, and shall deliver to the Primary Servicers and the
Special Servicer each of the reports required to be delivered by the Master
Servicer to the Primary Servicers and the Special Servicer pursuant to the terms
of this Agreement. The Trustee, the Paying Agent and the Special Servicer shall
deliver to the Rating Agencies and the Depositor any information as reasonably
requested by the Rating Agencies and Depositor, as the case may be.
(e) Any notice or other document required to be delivered or
mailed by the Depositor, 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
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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 Xxxxxxx Xxxx Loan REMIC Regular
Interest, the REMIC I Regular Interests and the REMIC II 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
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comparable jurisdictions in which any or all of the properties subject to the
Mortgages are situated, and in any other appropriate public recording office or
elsewhere. Such recordation, if any, shall be effected by the Master Servicer at
the expense of the Trust as an Additional Trust Expense, but only upon direction
of the Depositor accompanied by an Opinion of Counsel to the effect that such
recordation materially and beneficially affects the interests of the
Certificateholders of the Trust.
SECTION 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 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 SERVICERS. The
Primary Servicers agree, to the extent applicable to such Primary Servicer and
the Mortgage Loans serviced by such 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(d) and 8.26 of this
Agreement.
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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:
-----------------------------------------
Name:
Title:
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Master Servicer
By:
-----------------------------------------
Name:
Title:
ARCAP SERVICING, INC., as Special Servicer
By:
-----------------------------------------
Name:
Title:
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:
-----------------------------------------
Name:
Title:
ABN AMRO BANK N.V., as Fiscal Agent
By:
-----------------------------------------
Name:
Title:
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By:
-----------------------------------------
Name:
Title:
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, as Paying Agent and
Certificate Registrar
By:
-----------------------------------------
Name:
Title:
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:
-----------------------------------------
Name:
Title:
By:
-----------------------------------------
Name:
Title:
XXXX XXXXXXX REAL ESTATE FINANCE INC.,
acting solely in its capacity as Primary
Servicer with respect to the sections
referred to in Section 13.15 of the Agreement
By:
-----------------------------------------
Name:
Title:
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STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this __ day of October 2003, 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 ___ day of October 2003, 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 ______ day of October 2003, 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 ___ day of October 2003, 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
-0-
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On this ___ day of October 2003, 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
-0-
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On this ___ day of October 2003, 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
-0-
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On this ___ day of October 2003, 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